Agency Terms & Conditions
1. IMPORTANT NOTICE
1.1 Vision 6 Pty Limited ABN: 23 099 766 499 (“Vision6”, “we”, “our” or “us”) provides a variety of Services subject to this Agreement. By clicking on the “Create Account” or “Start a Free Trial” or “I Agree” button or by using the Services, you, as a customer of the Services or a representative of an organisation that is a customer of the Services (collectively, “you”, “your” or “yours”) represent and warrant that:
a) you have read, understand, and agree to be bound by this Agreement;
b) you are at least eighteen (18) years of age;
c) the information you provided in connection with your registration for the Services is true, accurate, current and complete; and
d) you have the authority to enter into this Agreement personally or on behalf of the organisation you have named as the authorised user, and to bind that organisation to this Agreement.
1.2 Note that by representing and warranting to the above, you are making a legally enforceable agreement.
1.3 If you do not agree with this Agreement you should not click on the “Create Account” or “Start a Free Trial” or “I Agree” button and you should not use the Services.
1.4 We may vary any term of this Agreement at any time. Notification of any variation will be posted within the Services. Any material variation of this Agreement will take effect no sooner than thirty (30) days after the variation is posted, except when we are compelled by law or regulation to update this Agreement immediately or within a specified period of time. If you do not agree with the variation of this Agreement, you must, by logging into the Services, terminate this Agreement before the effective date of the variation. Otherwise, your continued use of the Services constitutes your acceptance of such variation. We recommend that you regularly check our website to view the then-current terms.
We may refuse service, close your account or the account of any Authorised Users, and change eligibility requirements at any time, in our sole discretion.
2. DEFINITIONS
For purposes of this Agreement, the following capitalised terms shall have the meaning indicated below.
“Agreement” means these Terms and Conditions and any guidelines, rules or operating policies that we post on our website(s), including our Acceptable Use Policy, our Privacy Policy, and any other policy referenced herein, which are specifically incorporated herein by reference, each, as may be amended, supplemented or modified from time to time.
“Commencement Date” means the date that you clicked on the “Create Account” or “Start Free Trial” or “I Agree” button.
“Customer Data” means any and all data and information provided or made available by you pursuant to this Agreement, including information which contains personal information, confidential information, and any derivation of such information, and, where applicable, any information designated as Customer Data by the Foreign Investments Review Board.
“Fees” means the fees that apply to your use of the Services as shown on our website and accessible from within the Services and any other fees the Parties agree to based on our prevailing rates for any other Services.
“Force Majeure Event” means a failure, default or delay in the performance of any part of the Services or of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by a circumstance beyond our reasonable control, including:
a) acts of God, lightning strikes, earthquakes, floods, storms, epidemics, pandemics, explosions, fires, power supply disruptions (howsoever caused), internet downtime and any natural disaster;
b) acts of war (declared or undeclared), acts of public enemies, acts of civil or military authorities, terrorism, embargoes, riots, civil commotion, malicious damage, sabotage and revolution; and
c) changes to law or regulations, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder, including acts of hackers or third-party internet service providers, industrial action, labour disputes or strikes.
“Harmful Code” means viruses, worms, trojan horses, spyware, malware, backdoor, and other computer programs and software code that harm a computer or a computer program, or operate in some other harmful or destructive way to hardware, software, data, or communications systems.
“Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
“Security Incident” means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Data.
“Services” means, collectively, all our products and services and related offerings, features and functionalities, including email and digital marketing services, Text Services, our website and any related sub-site, user interface designs, applications, including our mobile application, AI Tools, processes, software, source code, application programming interfaces, systems delivered or accessible through any media or device, images that are made available by us through any email design tools, designs, templates, text, graphics, video, information, audio and other files, support, additional services and all related materials and documentation, and any and all enhancements and modifications thereto howsoever made, provided by or on behalf of us to you pursuant to this Agreement.
“Text” means short message services (“SMS”) and/or multi-media services (“MMS”).
“Text Services” means the services provided by Vision6 to send Texts for marketing purposes.
3. INTERPRETATION
3.1 In this Agreement, unless the contrary intention appears:
a) words in the singular number include the plural and vice versa;
b) words importing a gender include any other gender;
c) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
e) a reference to a party includes its successors and assigns (where permitted);
f) a reference to any schedule includes a reference to any part of that schedule which is incorporated by reference;
g) the titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect;
h) monetary references are references to Australian currency; and
i) whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
3.2 If any term, covenant, clause or condition of this Agreement, or the application of it to any person or circumstance, is deemed to be invalid or unenforceable, the remaining terms, covenants and conditions will not be affected and will be valid and enforceable.
4. Provision of Services
4.1 Access. Upon the terms and subject to the conditions of this Agreement, you are granted a limited, non-exclusive, revocable, non-transferable, non-sublicensable, worldwide limited right to access and use the Services. We may, in our sole discretion, permit you to authorise additional users to use your account(s). For purposes of this Agreement, you are the “Account Owner” and any other users you authorise will be deemed “Authorised User(s).” To the extent applicable, Authorised Users that you appoint as your administrators shall have the authority to act on your behalf to perform administrative duties, enter into binding agreements and incur Fees. You will be responsible for all activity occurring under your account(s), including each Authorised User's compliance with this Agreement.
4.2 Restrictions. You will not, and will not permit any Authorised User or other party to:
a) modify, adapt, alter, translate, or create derivative works of the Services;
b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services to any third party;
c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to us);
d) tamper, bypass, delete, or disable any copy protection or security mechanisms of the Services;
e) use or demonstrate the Services in any other way that is in competition with us;
f) remove any notice of proprietary rights from the Services;
g) attempt to gain unauthorised access to, or disrupt the integrity, performance or security of the Services or the data contained therein;
h) attempt to probe, scan or test the vulnerability of any Service or to breach the security or authentication measures without proper authorization;
i) use or copy the Services, except as expressly allowed herein; or
j) use the Services in violation of our Acceptable Use Policy.
4.3 Service Level Agreement. The hardware infrastructure upon which we host the Services shall be available through the internet at a minimum of ninety-nine-point-eight percent (99.8%), which is calculated as twenty-four (24) hours per calendar day minus any Downtime. “Downtime” means any period of time during each calendar day in which you are unable to access the hardware infrastructure upon which we host the Services. Downtime shall not include any period of time during which you are unable to access the Services due to:
i) scheduled maintenance and/or upgrades to the Services;
ii) an action or omission by you or your Authorised Users;
iii) data quarantined due to virus infection;
iv) issues related to your Equipment (as defined below); or
v) a Force Majeure Event.
5. Use of the Services
5.1 General Rules of Use. By agreeing to this Agreement, you agree to comply with our Acceptable Use Policy and with the following in connection with the use of the Services:
a) You may not use the Services to send spam.
b) You may not use the Services to promote or incite harm toward others or promote discriminatory, hateful, or harassing content, including posting to and/or distributing through the Services:
i) Any statement, photograph, advertisement, or other content that in our sole judgement could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others; or
ii) Any statement, image, photograph, advertisement, or other content that in our sole judgement could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status;
c) You may not use the Services if you are a person or you are a member of an organisation that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor hateful content or a threat of physical harm; and
d) You may not distribute content that is materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances.
In the event that we determine, in our sole discretion, that you are not complying with this Agreement and/or our Acceptable Use Policy, we may suspend or terminate your access to or use of the Services, disable your account or access to the Services, and/or remove all or a portion of your content, in each case, without notice or liability and without refund.
5.2 Username and Password. We will provide you all necessary login codes to access the Services. You acknowledge that internet servers and links are susceptible to hacking, crashes and down time. You are responsible for maintaining the security of your account, usernames, passwords and files (including the passwords and files that your Authorised Users, if any, have access to). You authorise us to act on any instructions reasonably believed by us to be authentic communications from you or any individual who claims to be authorised by you with respect to the management of your account. You will be solely responsible and liable for any activity that occurs under your username and the activities of your Authorised Users, if any, and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorised use or access of your account or any other known or suspected breach of security.
5.3 Account Disputes. You will not request access to, or information about, an account that is not yours, and you will resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we may require you to resolve the matter through proper channels outside of Vision6. When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.
5.4 Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers (together, the “Equipment”). You are also responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without your knowledge or consent.
5.5 Accuracy of Data and Backups. You agree that you are solely responsible for implementing your own procedures to satisfy your own requirements for accuracy of Customer Data, and for maintaining a means external to us for the reconstruction of any of your lost Customer Data, including by making frequent backup copies of your Customer Data.
5.6 Text Services. To send Texts you will need to pre-purchase SMS credits at the prices listed on our website. Credits may only be used to send Texts to Australian mobile numbers. You may incur additional fees if you use SMS credits to send Texts to non-Australian mobile numbers. The maximum number of characters per Text sent is 160 characters which is equal to one SMS credit. If you send a Text containing more than 160 characters, you will require the usage of an additional SMS credit for each additional 160 characters. An SMS credit is deemed to have been used once the Text has been sent from the Text Services to our SMS gateway on your behalf.
5.7 End User Opt-in/Opt-out Requirements to Text Services. You agree that you are solely responsible for obtaining any and all consents, opt-ins and opt-outs required by law, rule, or regulation to send Texts. You shall send Texts only to end users who (i) have and continue to knowingly consent or “opt-in” to receiving Texts, and (ii) have been informed of their rights to, and have been given, a free, readily accessible process for cancelling receipt or “opting-out” of receiving future Texts, such as via end user text responses of STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE. You shall immediately stop sending Texts to an end user who has “opted-out” from receiving Texts. At our request, you shall provide us with evidence of any and all such consents, opt-ins, opt-outs, and response time to discontinue transmission of Texts after opt-out(s). You shall not rely on, and we shall not be liable for, any guidance, statements, or approvals provided by us concerning consent, opt-ins, opt-outs, or other requirements under applicable law, rules, or regulations.
5.8 Assistance. You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and general tips on best practices and compliance with applicable law, including, and any sample offer terms. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed.
5.9 AI Tools. The Services may include artificial intelligence-powered tools that you can, among other things, use to generate marketing content based on your text, instructions or other content (collectively, “Inputs”) or otherwise assist you in connection with the use of the Services (“AI Tools”). The content, data, visuals, advice, recommendations and any other output generated by the AI Tools (collectively, “Outputs”) may not be unique and may be the same or similar for other customers. The Outputs may not be protectable under copyright or other intellectual property, proprietary rights, or other law. Your use of the AI Tools must be in compliance with this Agreement, including our Acceptable Use Policy. You must review any Outputs before utilising, or sharing with others. You acknowledge that the AI Tools and Outputs are not error-free and that your use of the AI Tools and Outputs is at your own risk. You hereby grant us a worldwide, non-exclusive, irrevocable, transferable, royalty-free, sublicensable licence to access, use, modify, display, publicly perform, distribute, copy, create derivatives from and process any and all Inputs and Outputs for any purpose, including to develop and improve the AI Tools and for purposes stated in our Privacy Policy.
6. Monitoring and Suspension
Although we have no obligation to monitor the content provided by you or your use of the Services, we may do so. We shall be entitled, without liability to you, to immediately suspend, terminate or limit your access to the Services at any time, and/or terminate this Agreement for any reason in our sole discretion, including a determination by us that:
i) the Services are being used by you, or your Authorised Users, in violation of any applicable laws or regulations or this Agreement, including our Acceptable Use Policy and Privacy Policy,
ii) the use of the Services by you adversely affects our equipment or service to others,
iii) we are prohibited by an order of a court or other governmental agency from providing the Services,
iv) there is a security incident or other disaster that impacts the Services or the security of the Services, your account or your content, or
v) any amount due under this Agreement is not received by us within seven days after it was due.
7. Communication With You.
7.1 You consent to receiving electronic and telephone communications from us and our affiliates, including by email, Text, a live person, automatic dialer, prerecorded message or a combination of the foregoing,
a) to discuss the Services or to inform you of changes or additions to the Services, this Agreement or the Fees,
b) to inform you of violations of this Agreement or actions relating to your access and use the Services, or
c) for marketing and other purposes. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or via Text in order to provide you with your password or other information you request. You do not need to agree to this provision in order to use or procure the Services and if you would like us not to contact you by telephone, please send an email to support@vision6.com. Additionally, you may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us.
7.2 You agree that we may, but are not obligated to, monitor or record any of your telephone conversations, chatbot communications and Texts with us for quality control purposes, for purposes of training our employees, and for our own protection. You further agree that any Authorised Users or anyone else you authorise to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls may be recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved or even if retained and retrievable will be made available to you.
8. Intellectual Property.
8.1 We own and shall retain all right, title and interest in and to all Intellectual Property Rights in the Services. Except as expressly set forth herein, no express or implied licence or right of any kind is granted to you regarding the Services, including any right to obtain possession of any software, source code, data or technical material related to the Services.
8.2 You own and shall retain all right, title and interest in and to Customer Data. You grant us a limited, non-exclusive, royalty-free, worldwide licence, with the right to sublicense, use, reproduce, publish, distribute, perform and display your Customer Data in order
a) to provide the Services under this Agreement,
b) to develop services, and
c) to comply with any court order, legal process, law, regulation or any request from a governmental, regulatory or supervisory body.
We may use and disclose aggregated data that does not identify Customer or any natural person for our legitimate business purposes, including improvements to the Services, product development, research and marketing.
8.3 You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement).
8.4 If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Services or otherwise (“Submissions”), you agree that each such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide licence, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
9. Fees; Payment; Taxes.
9.1 Fees. In consideration for the Services, you agree to pay us the Fees (plus any applicable taxes in Australia) as specified in our invoices. Australian based clients will be provided with an invoice complying with the A New Tax System (Goods and Services Tax) Act 1999. We may change any of our Fees at any time effectively immediately by posting a new pricing schedule on our website, to the Services, in your account, and/or sending you a notification by email. You are responsible for reviewing the Fees from time to time and remaining aware of the Fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for any payment due and owed hereunder.
9.2 Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within sixty (60) days of the date such charges are incurred. You agree to waive all disputes not brought within the sixty (60) day period, and all such charges will be final and not subject to challenge.
9.3 Payment. We will charge you the Fees in advance. Payment shall be made by a payment method accepted by us. Fees are only payable in the currencies made available to you when you purchase the Services. If you are paying by credit card, you hereby irrevocably authorise us to charge the credit card or other payment method provided with any associated invoices, fees, chargebacks, corrections and negative settlements created in relation to the provision of the Services on the invoice issue date or shortly thereafter. You are responsible for keeping your credit card details up to date and that there are sufficient funds available on your credit card for us to obtain payment in accordance with this Agreement. You allow us the option of contacting you in the event of a direct debit failure, and as a reminder that our credit card details will be shortly expiring. If we fail to resolve an issue with you resulting from a credit card decline or expiration or your account otherwise becomes overdue, your Service functionality will be reduced until payment is received. You will still be able to access the Services to update your credit card details. Should your account remain unpaid for thirty (30) days we reserve the right to terminate your account in accordance with Section 13.1.
9.4 Taxes. “Tax” or “Taxes” means all applicable taxes, including indirect taxes such as goods and services tax (“GST”), value added tax (“VAT”), sales tax, fees, duties, levies, or other similar taxes. Unless otherwise stated, any Fees or any other amounts are exclusive of Taxes. In the event that any amount payable by you to us is subject to Taxes, we will collect the full amount of those Taxes from you and the collection shall not reduce or somehow impact the amount to which we are entitled. You must pay any applicable Taxes. In the event that any payments and/or amount payable by you to us is subject to
a) any withholding or similar tax,
b) any Taxes not collected by us, or
c) any other Taxes or other government levy of whatever nature, the full amount of that Tax or levy shall be solely your responsibility and shall not reduce the amount to which we are entitled under this Agreement. You will reimburse us and indemnify and hold us harmless against any and all claims by any competent tax authority related to any Taxes, including withholding or similar Taxes, penalties and/or interest that we may be compelled to pay on account of your non-payment.
10. Compliance with Laws.
10.1 You represent and warrant that your use of the Services will comply with all applicable laws and regulations. You are responsible for determining whether the Services are suitable for you to use in light of your obligations under any applicable laws or regulations, including the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act. You may not use the Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You must comply with the SPAM Act 2003, CAN SPAM Act or any other laws that apply to electronic messaging. If you are subject to any such regulations, laws or acts and you use the Services, then we will not be liable if the Services do not meet those requirements.
10.2 If you collect and use any personal information pertaining to a minor and store such information within your account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.
11. Privacy, Security and Confidentiality.
11.1 Privacy Laws. Each party shall comply with all laws and regulations of the relevant jurisdictions that apply to its respective performance of obligations and exercise of rights under this Agreement, including the “Australian Privacy Principles” in connection with the Australian Privacy Act 1988, Regulation (EU) 2016/679 of 27 April 2016, General Data Protection Regulation (the “GDPR”), the California Consumer Privacy Act (the “CCPA”), as amended by the California Privacy Rights Act (the “CPRA”), and Australian or U.S. federal, provincial or state data privacy and data protection laws, and related implementing regulations (collectively, “Data Privacy Laws”). Vision6 will comply with Chapter 2 of the Information Privacy Act 2009.
11.2 Customer Warranties. You warrant that
a) you have complied, and shall continue to comply, with Data Privacy Laws in your collection, processing and provision to us of personal information, and
b) you shall not process any personal information using the Services, or permit us to process any personal information, in breach or contravention of any order issued to, or limitation of processing imposed on, you by any regulatory authority.
11.3 Data Processing Schedule. To the extent we process your contacts' or customers' personal information that is protected by GDPR as a processor on your behalf (all as defined in our Data Processing Schedule (“DPS”)), you and us will be subject to and comply with the DPS, which is incorporated into and forms an integral part of this Agreement. The DPS sets out our obligations with respect to data protection and security when processing your personal information on your behalf in connection with the Services.
11.4 Customer Privacy Notice. You will adopt and comply with a legally sufficient “customer privacy notice.” Your privacy notice will be posted so that your contacts have notice of your data collection and use practices, including your practices with respect to contact data that you obtain from us, and will otherwise comply with Data Privacy Laws.
11.5 Data Security. We agree to use reasonable commercial endeavours to:
a) implement and maintain industry standard, up to date physical, technical and administrative security measures designed to protect Customer Data from unauthorised access, destruction, use, modification, or disclosure;
b) implement and maintain appropriate and up to date virus screening and protection measures;
c) comply with any information and data security measures agreed between us and you, as evidenced in writing; and
d) where you are based in Australia and use the Services to store and manage all of your Australian Customer Data, store all of your Customer Data in Australian based data management centres.
11.6 If either party becomes aware of or reasonably suspects that a Security Incident has occurred, that party must promptly notify the other party as soon as reasonably practicable, and we agree to, within a reasonable time:
a) take any measures reasonably required to mitigate the effects of a Security Incidents;
b) conduct an investigation to determine the cause and impact of that Security Incident on Customer Data; and
c) cooperate with you in your own investigations into and management of the Security Incident.
11.7 You agree that we may suspend the Services where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, in our sole discretion) to address or deal with the Security Incident.
11.8 We will bear any costs associated with any internal investigation and remediation of our security policies and procedures in connection with a Security Incident, unless the Security Incident is a result of, or in connection with, any act or omission, or non-compliance with this Agreement, by you or your personnel or users.
11.9 Notifiable Data Breaches. We agree to monitor all the Services that maintain, store or process Customer Data for any Security Incidents. To the extent that the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Data Breaches Scheme) applies to us, if as a result of our investigations in accordance with clause 11.6 of this Agreement, we believe a Security Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will promptly notify you of this by telephone or email.
11.10 Security Audit
a) During the Term of this Agreement, you may request, and we will provide to you, information about our information and data security controls, processes, procedures and testings regimes to demonstrate our compliance with Data Privacy Laws.
b) You may, at your own cost and upon giving us 20 business days' notice in writing, conduct, either yourself of through a third party, an audit on such controls, processes, procedures and testing regimes provided that such audit shall not occur more than once in each calendar year and that we agree on the scope of such audit, unless we have conducted such a process in the last 12 months, in which case you may request a copy of that audit from us.
c) Where such an audit identifies any material non-compliance of our obligations under this Agreement, or identifies any material deficiencies, vulnerabilities or issues in respect of our data security, controls, processes, procedures or testing regimes, we agree to take any measures reasonably necessary to address any non-compliance or Issue.
11.11 Confidentiality. We agree to use Customer Data solely in furtherance of the performance of this Agreement. We shall use the same degree of care to protect Customer Data that we use to protect our own confidential information, but in no circumstances less than a reasonable degree of care. We agree not to disclose Customer Data to any person or entity other than:
i) to our employees, agents, subcontractors or consultants on an as-needed basis, provided such persons have entered into written confidentiality agreements consistent with this Section 11.11 or are otherwise bound by substantially similar confidentiality obligations;
ii) as authorised by you or Authorised Users granted rights by you to access, use, distribute, and/or disclose Customer Data through the Services;
iii) to the extent required by court order, legal process, governmental regulation or applicable law; or
iv) otherwise solely as expressly authorised in writing by you.
12. Unsubscribe. Every email message sent in connection with the Services must contain an “unsubscribe” link that allows contacts to remove themselves from your mailing list. Each such link must remain operational for at least sixty (60) days after the date on which you send the message, and must be in form and substance satisfactory to us. You agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within five (5) Business Days days of submission and update the email addresses to which messages are sent through your account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honouring an unsubscribe request. As required under applicable laws, you acknowledge that you are responsible for maintaining and honouring the list of unsubscribe requests following termination of your account and this Agreement.
13. Term and Termination.
13.1 Term. This Agreement commences on the Commencement Date and it continues until it is terminated by either party. Either party may terminate this Agreement at any time, without giving reason for termination. You may terminate this Agreement by using the online feature to delete your account, or in writing by emailing us. If we terminate this Agreement, where practical, we will give you written notice before terminating this Agreement. Following termination, Customer Data may be deleted in accordance with our standard data deletion procedures. No residual credit will be generated by termination or closing your account
13.2 Pausing Your Account. This Agreement shall remain in effect should you opt to “pause your account” within the Services. The “pause your account” feature is specifically provided to allow you to re-activate your account at a later date. Should you however not re-activate your account within twelve (12) months, we reserve the right to treat your account as deleted and this Agreement as terminated pursuant to Section 13.1.
13.3 WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE OR CLOSE YOUR ACCOUNT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE OR CLOSE YOUR ACCOUNT.
13.4 Effect of Termination. Upon termination of this Agreement, any rights or licences granted to you hereunder shall immediately terminate, except that (a) all sections of this Agreement that by their nature should survive termination will survive termination, including, Sections 8-11, 13-16, and 21.
14. Indemnification. You hereby agree to defend, indemnify and hold us, our officers, directors, employees, affiliates, subsidiaries, licensors, agents, members, sponsors, investors, agents, and representatives (each, an “Indemnified Party”) harmless from any losses, damages, judgments, fines, reasonable attorneys' fees, and costs, arising out of or relating to
a) any actual or alleged breach by you of this Agreement,
b) your contacts and content, including the content or effects of any messages or Texts you distribute, websites you publish, events you host, surveys you administer, or social media campaigns you publish, or
c) otherwise arises from or relates to your use of the Services. Any settlement that does not fully release the Indemnified Party from liability or which would impose any monetary, injunctive or other obligation or restriction upon the Indemnified Party shall be subject to the Indemnified Party's prior written approval. The Indemnified Party may participate in the defence of the claim with counsel of its choosing at its expense; provided, that if you fail to promptly assume the defence or settlement of the claim, the Indemnified Party may assume sole control of the defence of the claim at your expense.
15. Your Representations and Warranties.You represent and warrant that
a) you have all necessary rights and consents to post and distribute Customer Data through the Services,
b) that Customer Data will not
i) infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party,
ii) constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, or
iii) be used in any activity in violation of the law or to promote such activities, including a manner that might be illegal or harmful to any person or entity, and
(c) that your use of the Services will not violate any rules, restrictions, policies, or requirements of your email service provider, internet service provider or other applicable service provider.
16. Exclusion and Limitations of Liability.
16.1 You use the Services, including the Services entirely at your own risk. You expressly agree that the Services are provided on an “as is” and “as available” basis.
16.2 You acknowledge that we have not made and that you have not relied upon any representation or warranty that is not expressly contained in this Agreement.
16.3 You acknowledge that we have not made any warranty or representation as to:
a) the suitability of the Services for any purpose or any particular purpose;
b) whether the Services are of merchantable quality; or
c) whether the Services will be uninterrupted, free of errors, bugs or completely secure.
16.4 We exclude any liability for any Harmful Code that you may download from the Services, including our website.
16.5 We shall have no liability to you arising from any Downtime, or any Force Majeure Event, and you are not entitled to any setoff, discount, refund or credit arising from any of the foregoing.
16.6 To the extent permitted by applicable law, we shall have no liability to you for any indirect, special, incidental, or consequential, punitive, exemplary or enhanced damages, including lost of profit, lost of revenue, lost of good will, loss of data or any other business interruption suffered by you as a result of the Services.
16.7 Our maximum liability to you for any loss or damage whatsoever shall be the re-performance of the Services.
17. Reselling the Services. If you are an authorised reseller of the Services, then the Agency Terms & Conditions shall govern your participation in our authorised reseller program.
18. Restricted Persons; Export of the Services or Technical Data. The Services may be subject to U.S. or Australian export Laws and regulations. You will not use, distribute, transfer, or transmit the Services except in compliance with U.S., Australian and other applicable export regulations.
19. Third Party Websites and Services.
19.1 The Services contain links to websites, chatbots or applications operated by third parties, including our partners and resellers and third-party suppliers and providers, which may include marketing and advertising services, social bookmarking services, social network platforms, publication and delivery services, payment processing services and other payment intermediaries or websites (each, a “Third Party Service”), some of which may have established relationships with us and some of which may not. We do not have control over the content and performance of Third Party Services. We have not reviewed, and cannot review or control, the material, including computer software or other goods or services, made available on Third Party Services, and we do not represent, warrant, or endorse any Third Party Services, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Services. We disclaim, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Services. We may terminate any Third Party Services' ability to interact with the Services at any time, with or without notice, and in our sole discretion, with no liability to you or to any third party.
19.2 You agree to abide by the terms and conditions of any applicable Third Party Service . Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party and you shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
20. Notice and Take Down Procedures.
20.1 If you believe any materials accessible on or from the Services infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from the Services by contacting our copyright agent (identified below) and providing the following information:
i) Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL) of an authorised version of the work;
ii) Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material;
iii) Your name, address, telephone number and (if available) email address;
iv) A statement that you have a good faith belief that the complaint of use of the materials is not authorised by the copyright owner, its agent, or the law;
v) A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorised to act on the copyright owner's behalf; and
vi) A signature or the electronic equivalent from the copyright holder or authorised representative.
Our contact for copyright issues relating to the Services is as follows:
Vision6 Customer Support
Email: support@vision6.com
Please include the subject line: Copyright Infringement.
21. Miscellaneous.
21.1 Entire Agreement. Each party agrees that this 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 writing signed by all 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.
21.2 Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
21.3 Further Assurances. You agree to execute any and all documents and take any other actions reasonably required or necessary to effectuate the purposes of this Agreement.
21.4 Third Party Beneficiaries. Our affiliates, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
21.7 Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party, by virtue of this Agreement, will have any right, power, nor authority to act or create an obligation, expressed or implied, on behalf of the other party.
21.8 Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
21.9 Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of Queensland, Australia, exclusive of conflict or choice of law rules. You and we irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.
21.10 Equitable Relief. Your violation of this Agreement may cause irreparable harm to us. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate this Agreement.
Last update: 25 February 2025
