Which Email Marketing Contract?The substantive provisions of the two email marketing contracts available on this website are, for the most part, identical. The only significant substantive difference is that the email marketing terms and conditions template includes optional provisions that should be used where the contract will be entered into online.
There are however significant stylistic differences between the two documents. The agreement should be used where the parties will sign the document and where the terms of the document may be negotiated. The terms and conditions should be used where the parties will sign another document (e.g. an order form, proposal or quotation) that will incorporate the terms and conditions by reference, and where one party will impose its non-negotiable trading terms on the other.
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Key Email Marketing ProvisionsEmail marketing services
There is a basic distinction between the provision of a managed email marketing service and the provision of access to an email marketing platform. Accordingly, the services clause in the agreements comes in two alternative forms.
The first is suitable for a managed service. It says that the provider will perform specified services, such as advising on email marketing strategy, designing the marketing collateral to be used in email campaigns, managing email lists, as well as actually running and reporting on campaigns.
The second is suitable for a service that consists of access to an email marketing platform. It says that the provider will give the customer access to a platform with defined minimum functionality, such as the facility to create email lists, subscription and unsubscribe systems, and so on.
A mixed approach may also be used, whereby the services consists of giving access to a platform and then providing additional supplemental services.
Legality and spam
There are wide ranging prohibitions in the agreements relating to the misuse of the email marketing services. There are also detailed rules relating to both unlawful spam and what might be called "legal spam". These are set out in an anti-spam policy document included as a schedule to the main contract.
Spam is defined as email messages that constitute unsolicited bulk email, that constitute unsolicited commercial email and/or that fall foul of anti-spam laws such as the EU's privacy and electronic communications directive.
The general rule that spam may not be sent is supplemented by suggested rules designed to ensure that it is not sent. For example, under the suggested rules email addresses should not be used if they were collected more than 6 months (or more than another defined period) before the date of sending if they have not been used in the interim.
Intellectual property rights
The customer licences the provider to use its materials to the extent necessary to enable the provider to fulfil its obligations under the agreement.
Data protection
A standard data processor clause is included in the agreement. This assumes that the service provider will be a data processor, and the customer will be a data controller, for the purposes of the Data Protection Act 1998.
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