Agency Partner Program: Terms of Service
By signing the Channel Partner Program Agreement (“Partner Program Agreement”) you agree to be bound by the following terms of service (the “Terms of Service”) which have been created to govern your rights and obligations of being GetResponse’s partner in the GetResponse Channel Partner Program, as well as to be bound by the GetResponse MAX Terms of Service which regulate your rights and obligations related to your use of services known collectively as the GetResponse MAX Service, being part of the Channel Partner Program (the “Program”).
Please ensure that you read the above-mentioned documents carefully before signing your Partner Program Agreement. These Terms of Service, the GetResponse MAX Terms of Service and the Partner Program Agreement constitute a legal agreement (the “Agreement”) between GetResponse S.A. (Polish joint-stock company) with its registered office at Arkonska 6/A3, 80-387 Gdansk, Poland (“GetResponse”, “we”, “us,”) and the partner (the “Partner”,” “you” or “your”).
The Program is dedicated for a business-to-business service only; we cooperate with Partners who subscribe to the Service for purposes relating directly to their trade, business or profession.
I. The Service
1.1 Under the Agreement, GetResponse undertakes to provide the Partner with a service consisting of access to and use of a web-based, SaaS (Software-as-a-Service) model platform, as made generally available to other customers, that allows them to create, send and manage marketing campaigns, and host mailing lists on the GetResponse platform using tools such as the Newsletter Creator, the Landing Page Builder, Marketing Automation Software and others (the “Service”).
1.2 In consideration of the Service, the Partner shall pay the remuneration to GetResponse in accordance with the Agreement.
1.3 Within the Service the Partner receives access to:
- a. one main Partner account, containing a unique sending identity and a database capable of storing and managing email lists and sending email campaigns (the “Main Account”);
- b. the capability of automatic communication between the Service and the Partner’s system to run the Partner’s Contacts (defined below) database through the Service API;
- c. individual Internet Protocol address(es) (IPs) allocated to the Partner’s sending channels at GetResponse.
1.4 You may use the Service to send emails only to those recipients who have given you permission to add them to your mailing list and have not subsequently withdrawn such permission (“Contacts”), unless you have another valid legal basis to process your Contacts’ personal data within the Service.
2. Main Account and Accounts
2.1 The Main Account may be accessed only by use of your login credentials. You are responsible for keeping your login credentials confidential and for all activity under your Main Account.
2.2 Within the Main Account, you may create additional accounts (“Accounts”) and render them available to Users (defined below), who you authorize to use your Accounts.
2.3 We will provide technical support by the Customer Engineering Team only to the user of the Main Account, and not to any of the Users of Accounts.
3.1 GetResponse authorizes and appoints the Partner as GetResponse’s non-exclusive reseller, with the right to market, distribute, resell and/or sell GetResponse’s Service to the Partner’s clients (“Users”) within Accounts created within the Partner’s Main Account.
3.2 For opening any new Account, the Partner shall pay the remuneration to GetResponse in accordance with the Partner Program Agreement.
3.3 The Partner may determine, at its sole discretion, its own retail prices of the Service within the Accounts of the Partner’s clients.
3.4 Non-payment for Accounts by any User or any refund initiated does not relieve the Partner of the obligation to duly and timely pay the amounts due to GetResponse.
3.5 The Partner acknowledges and accepts that:
- the Partner is solely responsible for the conduct of Users of the GetResponse Main Account and Accounts, including for their use of the Service in accordance with the GetResponse MAX Terms of Service and applicable laws, for the consequences of granting access and authorization to the GetResponse Main Account and Accounts and the data associated therewith, as well as for the payment of any fees accrued in connection with the use of the GetResponse Main Account and Accounts;
- creating Accounts for Users does not create any legal relationship between GetResponse and such Users;
- the Partner is responsible for the activity of Users as for their own acts and omissions;
- Accounts will be created by GetResponse only at the express request of the Partner;
- the Partner is solely responsible for assuring technical support to Account Users;
- any and all claims of Users related to the use or non-use of the Accounts and Services, as well as for to their suspension and/or the termination of the Agreement shall be resolved solely by the Partner; the Partner is obliged to indemnify and hold GetResponse harmless from any losses, damages, costs and/or expenses resulting from such claims.
3.6 Notwithstanding the above, GetResponse reserves the right to suspend or close an Account at its own discretion, in particular when one of the below-mentioned reasons occurred:
- A User uses the Service for abusive or prohibited practices, as defined in the GetResponse Terms of Service;
- A User sends emails which GetResponse considers as SPAM (determined on the basis of GetResponse algorithms and compliance procedures);
- A User breaches the rules on using GetResponse’s trademarks and other intellectual property.
4. Agreement term and termination
4.1 Either party may terminate the Agreement in accordance with the provisions set forth in the Channel Partner Program Agreement.
4.2 Notwithstanding the foregoing, we reserve the right to block sending emails, suspend the Main Account (or part thereof – including each Account or add-on) and/or terminate your Agreement (which means shutting down the Main Account and Accounts) with immediate effect and without notice if we reasonably believe that you are in breach of any provision of the Agreement. Without limiting the foregoing, the activities specified below each constitute a violation of the Agreement and grounds for immediate termination or suspension of your Agreement and/or Main Account (including the Accounts) or part thereof.
4.3 Examples of activities regarded as violations of the Agreement:
4.3.1 failing to make payment when due;
4.3.2 using the Service for abusive or prohibited practices listed in these Terms of Service and the GetResponse MAX Terms of Service;
4.3.3 sending emails which we consider SPAM (determined on the basis of GetResponse algorithms and compliance procedures), in particular if:
- the Partner’s name or domain (which the Contacts can access by clicking links contained in emails sent by the Partner) is listed on the Spamhaus Register of Known Spam Operations (ROKSO, http://www.spamhaus.org/rokso/) or such a domain is listed on at least one of the following blacklists: URIBL (http://uribl.com/), SURBL (http://www.surbl.org/), SpamHaus DBL (http://www.spamhaus.org/dbl/) or ivmURI (http://dnsbl.invaluement.com/);
- the Partner or a User is found spamming by SpamCop or any other anti-spam organization that reports to GetResponse spam trap hits thru Unsolicited Commercial Email reports;
- the Partner breaches the rules of the use of our trademarks or other intellectual property;
- the Partner provides inaccurate, unreliable or false contact details, or fails to keep such contact details up-to-date;
- the Partner assigns rights or obligations under the Partner Program Agreement to a third party without the prior consent of GetResponse.
4.3.4 Upon termination or expiry of the Agreement, all further rights and obligations of the Parties shall cease, except the rights and obligations indicated in the Agreement as still binding after its termination or expiration.
5. Partner Status
5.1 GetResponse and the Partner confirm that they are independent contractors, and the Partner does not obtain the status of an employee, an agent, proxy or does not enter into any other business relationship with GetResponse. The Partner retains the right to perform other business activities, as long as the Partner does not violate the provisions regarding prohibited practices listed in these Terms of Service and the GetResponse MAX Terms of Service.
5.2 The Partner is not entitled to represent GetResponse or make binding declarations of will on behalf of GetResponse. The Partner is not entitled to contact media about GetResponse or its services, act as a spokesperson for GetResponse or to submit statements addressed to the media.
5.3 The Partner conducts business activity on their own account and at their own risk, at the time and place set by the Partner. Subject to express provisions of the Agreement, the Partner is not subject to any instructions by GetResponse regarding the management of their activities as part of the performance of the Agreement, relating to the place or time of the undertaken activities. The Partner is solely responsible for all liabilities and costs related to their business and for any claims of third parties arising from the performance of the Agreement.
5.4 The Partner undertakes to perform their obligations in accordance with the Agreement with due diligence.
5.5 The Partner represents and warrants that their activity under the Agreement, including selling the GetResponse Service within Accounts, and the marketing and promotion of the Service, complies with any applicable laws. The Partner undertakes to comply with the legal provisions governing their business. In the event of a breach of an applicable law, the Partner shall relieve GetResponse of liability for any damages, financial penalties and claims of third parties arising from this violation.
The Partner confirms that GetResponse’s payment provision regulating their payments for the Service are comprehensively regulated in the Partner Program Agreement and the GetResponse MAX Terms of Service.
7. Personal Data
7.1 The Partner entrusts to GetResponse the processing of personal data necessary for the performance of the Agreement on terms specified in the Data Processing Addendum constituting an integral part of these Terms of Service.
7.2 GetResponse and the Partner confirm they will inform the persons whose personal data is disclosed for the purpose of the cooperation between them that they will respectively process their personal data (i.e. first name, last name, email address, telephone number) as data controllers, for the purposes of their legitimate interests (Art. 6, sec. 1 (f) of the General Data Protection Regulation), i.e. the execution of the Agreement, communication in the course of providing the Service, the establishment, exercise or defence of legal claims, and for evidence purposes, in accordance with their respective privacy policies.
7.3 The Partner is obliged to comply with all applicable laws governing personal data processing, in particular the Partner is obliged to obtain necessary consents from data subjects to process their data for marketing purposes and to entrust their data to GetResponse. The Partner authorizes GetResponse to process such data as reasonably required for the purpose of exercising the rights and performing the obligations under the Agreement.
8. Reservation of rights
8.1 GetResponse reserves the right to take the following actions at any time, at its sole discretion and without liability:
- to add services to the Agreement or to cease the provision of services included in the Agreement,
- to modify the design of, change or upgrade the Service or any part of the Service.
8.2 GetResponse will promptly inform the Partner of new software development relating to the Service.
8.3 At no time and under no circumstances shall this Agreement prohibit or limit GetResponse’s right to promote, market and sell the Service, on a direct or indirect basis, via various sales channels, such as local websites, the GetResponse Affiliate Program or other referral programs, or to appoint other partners to any referral program. GetResponse reserves any and all rights not expressly and explicitly granted under the Agreement.
9. Restricted activities
9.1 The Partner acknowledges that under the Agreement they will obtain access to know-how relating to the Service, its development, distribution and promotion. To ensure the protection of GetResponse’s know-how, during the term of the Agreement and for a period of one (1) year after its termination, the Partner undertakes to refrain from creating, marketing, selling and promoting, directly or indirectly, any services or products that at a given time could in whole or in part, compete with the Service (i.e. constitute its substitutes in whole or in part), in particular using GetResponse’s know-how.
9.2 The Partner may not undertake or support any activities the purpose or effect of which would be to circumvent, violate, diminish or weaken the contractual relations between GetResponse and any of its customers or interfere with their content. The Partner declares that they will not, directly or indirectly, persuade or convince GetResponse’s customers, employees or co-workers to purchase products or services provided by entities directly or indirectly competing with GetResponse.
9.3 Without limiting the generality of the foregoing, the Partner shall not:
- take actions that may be unlawful or harmful to the reputation of GetResponse or any services provided by it, including unfair, deceptive or unethical acts;
- make assurances regarding the functionality or features of the Service, other than those described in promotional materials created by GetResponse or impose additional obligations on GetResponse due to guarantees or assurances regarding the Service provided by the Partner.
10. Intellectual Property
10.1 Under the Agreement, the Partner will recommend the GetResponse MAX and MAX² Service and present the offer regarding the Service to its potential customers. Due to this fact, during the term of this Agreement, GetResponse hereby grants a limited, royalty-free license to the Partner to use GetResponse’s trademarks only in connection with its marketing and sale of the Service, and to carry out the obligations in the Agreement.
10.2 The Partner shall take no action to impair GetResponse’s trademarks or any other mark used by GetResponse or to adversely impact the good name of GetResponse or its brand reputation.
10.3 The Partner shall not attempt to register any trademarks, service marks, logos, brand names, trade names, domain names, email addresses and/or slogans confusingly similar to the ones to which GetResponse is entitled, especially with the use of the word “GetResponse”. Should the Partner obtain any right, title or interest in the aforementioned trademarks (or intellectual property confusingly similar to them), the Partner is obliged upon first demand of GetResponse to transfer any and all title, right and interest of said intellectual property to GetResponse.
10.4 The trademarks, the Service and all content included in GetResponse’s websites and the Service, such as text, graphics, logos, button icons, images, audio clips and video tutorials, are the sole property of GetResponse or its third-party licensors and are protected by national and international trademark and copyright laws and may not be reproduced or transmitted in any form or by any means without the prior permission of GetResponse. No rights not explicitly granted herein shall be deemed granted to such materials.
10.5 For the avoidance of doubt, the Service is the sole property of GetResponse, and nothing herein shall be deemed as a transfer of ownership or license of rights to the Service, or any intellectual property rights associated therewith.
11.1 The Partner confirms that GetResponse’s liability rules regarding the provision of the Service are comprehensively regulated in the GetResponse MAX Terms of Service.
11.2 Under no circumstances shall GetResponse be liable to the Partner’s customers, or any other entity affiliated with the Partner for damages related to the provision of the Service. The Partner is responsible for satisfying the claims of third parties arising from or relating to: (i) violation by the Partner or persons for whom they are responsible (such as employees, contractors, agents, representatives) of any applicable law or rule, third parties’ rights, as well as a material breach of the provisions of the Agreement; (ii) the Partner’s promotional activities relating to the Service. In the event of legal or administrative proceedings against GetResponse in connection with the Partner’s activities, the Partner will be required to hold GetResponse harmless against the claims or return to GetResponse the amount paid by GetResponse as a penalty.
12. Final provisions
12.1 Any notices, including the termination notices of the Agreement, shall be made via email (by sending a scan of the signed notice of termination) or by use of the DocuSign service (or another similar service chosen by GetResponse).
12.2 Termination notices sent by the Partner to GetResponse should be addressed to: email@example.com.
12.3 Termination notices sent by GetResponse to the Partner should be addressed: to any email address of the Partner provided by the Partner to GetResponse (e. g. email address provided in the Partner Agreement or Main Account User’s email address).
12.5 The laws of the Republic of Poland shall apply exclusively to the Agreement and all matters related hereto. Any disputes arising out of or in connection with the Channel Partner Program Agreement shall be submitted to the Polish courts with jurisdiction over the registered office of GetResponse.
12.6 In all matters not regulated in the Channel Partner Program Agreement, the provisions of these Terms of Service shall apply. In matters not regulated in these Terms of Service – the GetResponse MAX Terms of Service shall apply. If there is a conflict between or among the provisions of any of the documents, then unless otherwise expressly provided therein, the conflict will be resolved in favor of the conflicting provision set forth in the following order of precedence: (a) the Channel Partner Program Agreement, (b) these Terms of Service and (c) the GetResponse MAX Terms of Service.
These version of the Terms of Service became valid on January 22, 2022.