Information About Us
This website, elasticgrid.com ("Elastic Grid web site"), is operated by Elastic Digital Pty Ltd (the "Company"), a company registered in Australia (company number CAN 092 238 018) whose principal place of business is at 30 Boronia Street, Redfern, NSW 2016, Australia.
The Company together with its affiliates and subsidiaries, provides vendors, distributors and call centres ("Principals") a service (the "Elastic Grid") that hosts multiple Internet marketing campaigns ("campaigns") for the customers and prospects ("end users") of their resellers, dealers or business partners ("Partner"). From time to time these Principals will request the Company to produce campaigns for their Partners. These campaigns will be hosted on the Elastic Grid web site. To facilitate the distribution of these campaigns, Partners will load a confidential database of end user contacts ("end user database") onto the Elastic Grid for the sole purpose of distributing the campaigns developed for Principals by the Company.
"Data Protection Legislation" all applicable laws or regulations relating to the processing of personal data and privacy in any jurisdiction in which the Partner operates and/or end-users are located (including, but not limited to, the Australian Privacy Act, 1988 (CWTH) , the USA CAN SPAM Act, Japanese Act on the Protection of Personal Information 2005, the UK Data Protection Act 1998, the EU Data Protection Directive (95/46/EC), the UK Regulation of Investigatory Powers Act 2000, the Electronic Communications Data Protection Directive (2002/58/EC), the UK Privacy and Electronic Communications (EC Directive) Regulations 2003, the German Federal Data Protection Act (Bundesdatenscutzgesetz), the Data Protection Acts of the German Federal States (Landesdatenschutzgesetze), the German Telecommunications Act (Telekommunikationsgesetz) and any equivalent or analogous laws in any applicable jurisdiction) including any applicable guidance and/or codes of practice issued by any relevant authority from time to time.
"Personal Data" and "Data Subject" shall have the meaning given in the applicable Data Protection Legislation.
"Partner Information" means all electronic data or information submitted by you to the Elastic Grid service and/or the Company, including but not limited to, any Personal Data.
1. In consideration of this agreement the Company:
1.1. Acknowledges that all of the information provided by a Partner to the Company is confidential and is being provided to the Company in order to enable the Company to perform its obligations under this agreement.
1.2. Acknowledges that it is a condition of a Partner supplying the confidential information to the Company that the Company gives this undertaking both on behalf of itself and on behalf of any other person who is under the control of the Company.
1.3. Agrees to treat as confidential all information relating to a Partner's end user databases or customer lists provided by Partners and acknowledges that the information so supplied remains the property of the Partner.
1.4. Agrees that the logo and any other graphic material supplied by the Partner remains the property of the Partner and the Company agrees to treat as confidential all such material supplied by the Partner.
1.5. Undertakes that it will not without the prior written consent of the Partner disclose any of the confidential information to any other person including Principals with the exception of the following statistics, which will be provided to Principals:
1.5.1. number of site visits;
1.5.2. number of Calls To Action activated;
1.5.3. number of leads generated.
1.6. Undertakes that it will it not use or permit the use of any such information by any officer, employee or agent of the Company or any other person under its control for any purpose other than for the purposes for which it is intended.
1.7. Acknowledges that the execution of this agreement does not oblige the Partner to disclose any particular information to the Company and the Partner shall retain discretion as to the confidential information, which it discloses to the Company.
1.8. Warrants that, to the extent it (and shall procure that its third party subcontractor(s)) processes any Personal Data on behalf of the Partner:
1.8.1 it shall act only on written instructions from the Partner; and
1.8.2 it has in place appropriate technical and organisational security measures acceptable to the Partner against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
1.9. May give its affiliates and subcontractors outside of the European Economic Area ("EEA") access to Personal Data you store on the Elastic Grid. For example, the Company may provide its US affiliates and subcontractors with access to the Elastic Grid so that the US affiliates may provide support to you.
1.10. Agrees that it will not (and shall procure that its third party subcontractor(s) shall not) transfer Personal Data that is stored on the Elastic Grid to any subcontractor or affiliate outside of the EEA, except to the extent necessary for performance of the Campaign as set out in this agreement and provided that person meets the requirements stated below during the entire time that it has access to the personal data:
1.10.1 for personal data for which the Company are a "controller" under any applicable Data Protection Legislation, the affiliate or subcontractor to whom we transfer the Personal Data (i) is located in a country for which the European Commission has made a positive finding of adequacy, (ii) is located in the United States and has certified to the United States Department of Commerce that it adheres to the Safe Harbor framework developed by the United States Department of Commerce in coordination with the European Union, or (iii) has signed the standard contractual model clauses for the transfer of personal data from either: (a) the Company to a processor, or (b) the Company to a controller who is based in a country outside the EEA that is not recognised as offering an adequate level of data protection; and
1.10.2 for personal data for which the Company are a “processor” under the applicable Data Protection Legislation, the affiliate or subcontractor that has access to the Elastic Grid has signed a data processing agreement with the Company.
1.11. Undertakes that if the Company (or its third party subcontractor(s)) receives a request from a Data Subject for access to Personal Data or any other request relating to Partner’s obligations under the Data Protection Legislation the Company shall (and shall procure that its third party subcontractor(s) shall):
a as soon as reasonably practicable notify Partner; and
b provide all reasonable co-operation and assistance to Partner in relation to any such complaint or request:
(i) providing Partner with full details of any such request; and
(ii) providing Partner with any Personal Data it holds in relation to a Data Subject in a form reasonably specified by Partner and within 20 days of receipt of the request from a Data Subject.
1.12. Undertakes that it will return or delete all end user databases as instructed by the Partner (at its sole discretion), customer lists or other material supplied by the Partner from its systems at the termination each campaign unless otherwise directed by the Partner.
1.13. Except to the extent required by law, undertakes not to retain any copies of any such end user databases, lists or material unless otherwise specified by the Partner.
2. The Partner:
2.1. Warrants to the Company that:
2.1.1 all Partner Information, including (but not limited to) any names, email address, telephone numbers and address details contained in the Partner's end user database or customer list provided to the Company comply with the conditions of all applicable Data Protection Legislation and the Partner has obtained all necessary consents, approvals and/or licences for the use and processing of such Partner Information as set out in this agreement; and
2.1.2 it owns all rights, title and interest in and to all of the Partner Information (including any end-user database or customer list) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Partner Information (including any end-user database or customer list) and that all the entries in the Partner’s end-user database or customer list are corporate subscribers.
2.2. Agrees that all e mails sent via the Elastic Grid will contain:
2.2.1. a one click unsubscribe link; and
2.2.2. non Internet contact information of the Partner, including Partner's address, telephone number and email address.
2.3. Agrees to fully and effectively indemnify (and keep indemnified) and hereby indemnifies the Company against all losses, liabilities, damages and expenses incurred by or awarded against the Company as a result of any breach, action, suit, legal proceedings, claim or demand that may be taken against the Company arising for any breach of clause 2.1 above.
2.4. Agrees that the Company may refuse to distribute information on campaigns to any Partners or load any Partner's database on the Elastic Grid where such information for distribution violates any Data Protection Legislation, direct marketing or anti spam related legislation, regulations or codes of practice in any applicable jurisdiction (including, but not limited to the United States of America, Australia and/or any applicable member state of European Union).
2.5. Agrees that all the intellectual property rights in the Elastic Grid web site, any graphic material supplied by the Company and assembly and display of such material ("Company Material") remains the property of the Company. The Partner agrees to treat as confidential all such Company Material and processes supplied by the Company.
2.6. Agrees that it will not give any third party access to any confidential information, Company Material or processes supplied by the Company without prior written consent of the Company.
2.8. Agrees to export any contacts who have chosen to unsubscribe from your marketing communications and ensure your master contact database is updated in accordance with your region’s data protection laws.
3. It is acknowledged and agreed by and between the parties to this agreement:
3.1. The undertakings given by the Company in this agreement will continue but will not apply to any information:
3.1.1. which is in the public domain at the time of disclosure of such information by the Partner; or
3.1.2. which becomes part of the public domain at any time in the future; or
3.1.3. which the Company can establish was known to the Company at the time of disclosure by the Partner to the Company; or
3.1.4. which the Company is compelled by law to disclose.
4. The Company undertakes with the Partner to carry out the tasks more particularly referred to in the "What's Included" page of this web site in a proper and workmanlike manner and without avoidable delay.
5. In consideration of the Company providing the services required by the Partner under this agreement the Partner warrants and agrees with the Company to pay the fees more particularly set out in the Pricing Page of this web site. There will be no refund of these fees after the Company has set up the Partner on the Elastic Grid which normally occurs 24 to 48 hours after payment is received.
6. Governing Law for EEA entities. Where the Partner is incorporated within the EEA, this agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of England. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
7. Governing Law for Non-EEA entities. Where the Partner is incorporated within a jurisdiction outside of the EEA, this agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales, Australia and the parties agree to submit to the jurisdiction of the Courts and Tribunals of that State. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
8. No forbearance delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party nor shall any waiver of those rights operate as a waiver of any subsequent breach.
9. No variation of this agreement will be effective unless in writing and signed by both parties.
10. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
11. Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.