ActivePipe – Terms & Conditions and Terms of Use ("Terms")

Thanks for becoming a user of the ActivePipe Platform.

As a user of the Platform, or by accessing, using, or signing up for an ActivePipe account (or otherwise agreeing to these Terms), you agree on behalf of yourself or the entity you represent (client, you, your, user) to follow and be bound by these Terms and our Privacy Policy (each as published on our Website and as updated from time to time) when using the Platform and any other associated products or services provided by ActivePipe. Capitalized terms not otherwise defined herein have the meanings specified in the “Definitions” section at the end of these Terms.

PLEASE CAREFULLY REVIEW THESE TERMS BEFORE YOU START TO USE THE PLATFORM. IF YOU DO NOT ACCEPT ALL OR ANY PART OF THEM, PLEASE DO NOT ACCESS OR USE THE PLATFORM, OUR WEBSITE OR ANY ACTIVEPIPE SERVICES.

By using the Platform and/or accessing, using, or signing up for an ActivePipe account, you (including, where applicable, the entity you represent) will be deemed to have understood and accepted these Terms, which form a binding legal agreement between you and us, ActivePipe, Inc., a Delaware corporation with registered address at 919 N. Market Street, Suite 950, Wilmington, DE 19801 (ActivePipe, we, our, us).

Thanks for becoming a user of the ActivePipe Platform.

Any services provided by ActivePipe, including any updates and enhancements, are subject to these Terms. Please note that ActivePipe reserves the right to make changes to these Terms from time to time. Any such changes will be posted via the www.activepipe.com website. It is your responsibility to review the Terms as published at www.activepipe.com at regular intervals.

Some key information and concepts to help you understand these Terms:

The Platform is an advanced customer relationship management plug-in platform delivering enterprise level marketing automation and smart data analytics to the real estate and mortgage broking sectors.
The Platform is accessed by a subdomain of www.activepipe.com, the subdomain being unique to each user of the Platform, including you.
The Platform and the business associated with the Platform is operated in the United States by ActivePipe under license from its holding company, ActivePipe Group Pty Ltd (ABN 91 139 274 436), 64 Gwynne Street, Vic, Australia 3121.

License to Use the Platform

Subject to our acceptance of your application for registration for an ActivePipe account, your compliance with these Terms and payment of all fees payable under these Terms, we grant you a limited, non-exclusive, non-transferable right to access and use the Platform only for your business operations on the terms set out in these Terms and in accordance with any other requirements specified during the registration process for your ActivePipe account.

ActivePipe Obligations

ActivePipe will use all reasonable efforts to ensure that the Platform is fully functional and operational at all times except for periods of planned or emergency maintenance.
Where ActivePipe is engaged by a client to undertake the initial set-up of the client’s user account, and this set-up requires the import of the user’s database, ActivePipe will employ controls and systems to protect the integrity of that database. This includes controls that prevent unauthorized access, copying or other proliferation of such database.

Client (User) Obligations

As the owner of any database that you choose to upload to the Platform, you warrant that all individuals included in the database have elected to receive your emails in accordance with all applicable Privacy Laws. You warrant you will not send spam emails under any circumstances.
When using the Platform, you agree to provide, and are responsible for providing, truthful, accurate and complete information about yourself during registration, and to update such information to keep it current. You acknowledge that you may be required to provide us with certain Personal Information (which may include a name, email, address or phone number) to access and use the Platform.
You are entirely responsible for maintaining the confidentiality of your password to your account and your account itself. Furthermore, you are entirely responsible for any and all activities that occur under your account.
The decision to accept a registration is in our discretion and, at our sole discretion, we may immediately terminate the accounts or access rights of users who may have provided inaccurate or incomplete information during registration.
By applying to register an account to use the Platform on behalf of an entity you represent and by accepting these Terms and our Privacy Policy (as updated from time to time) on behalf of such entity, you warrant that you are duly authorized to represent such entity and bind it to these Terms and our Privacy Policy.
Despite anything else in these Terms, to the extent that the Platform is accessed or used by any entity you represent and such entity is not bound by these Terms, you must ensure that such entity complies with these Terms and must procure that such entity makes the same warranties and grants to us the same licenses and rights as are made and granted by you as set out in these Terms.
You may not register to use the Platform if you are already registered or if you were previously a registered user and we cancelled your account as a result of your being in breach of these Terms.
You must immediately notify us of any unauthorized use of your password or account or any other breach of security. We will not be liable for any loss or damage whatsoever resulting from the disclosure of your account details and/or password contrary to these Terms.
You are responsible for ensuring that the information we hold about you is up to date. Please amend your details via the Platform as appropriate from time to time or contact us if you require assistance.
You warrant that you will not use purchased, rented or third party lists of email addresses.
You warrant that all emails sent by you via the Platform comply with the specific requirements of the applicable Privacy Laws.
You warrant that you will not violate ActivePipe’s Acceptable Use Policy below, which forms part of these Terms. You understand and accept that the content of emails sent via the Platform is entirely your responsibility. You accept that ActivePipe is purely a delivery mechanism and has no involvement in the content of the emails, the performance of the emails, nor the delivery rate or engagement rate of any particular email campaign.
While ActivePipe constantly monitors its email delivery rates and any overall changes in the internet service provider environment that may affect delivery of emails, you accept that the information contained in emails, and specifically the subject header, may affect the delivery performance of your emails. You acknowledge that any such information and/or subject headers are entirely your responsibility.

Use of the Platform and ActivePipe Services

We may vary the scope of the Platform and any other ActivePipe Service, including by adding, removing or changing functionality and features of the Platform, at any time and from time to time.

You must only use the Platform and any ActivePipe Service for lawful purposes, for your own business purposes and in accordance with these Terms, any directions given by us and all local and foreign laws and regulations.

You must not, or cause or permit a third party to:

access and/or use the Platform or any ActivePipe Service in a manner or for a purpose which is: (a) improper, immoral, illegal or fraudulent; (b) infringes any person’s Intellectual Property Rights; or (c) restricts or interferes with the provision of the Platform or any other ActivePipe Service by us to any other customers or users;
reverse engineer, reverse assemble, reverse compile, translate, reproduce, copy, duplicate, modify or make derivative works of or re-sell all or part of the Platform or any ActivePipe Service (or any of our Intellectual Property Rights in the Platform or any ActivePipe Service);
enter into any transaction relating to access or use of the Platform with, or disclose any part of the Platform (or your account information or access credentials) and/or any other ActivePipe Services (or any of our Intellectual Property Rights in the Platform or any ActivePipe Service) to any person or entity other than us, without our written consent; or
gain, attempt to gain or assist or request any person to gain unauthorized access to the Platform, Data and/or any ActivePipe Service, computer systems or networks connected to the Platform, including through hacking, password mining or any other means.

You warrant that the information contained in your emails are of a normal, commercial and/or informational nature, and is consistent with what would be deemed socially acceptable in the jurisdiction(s) in which you use the Platform. Specifically, you warrant that your emails do not carry content that could be deemed sexually extreme or offensive, content that could be deemed as racist or bigotry, content that could be deemed as racially and/or religiously inflammatory, and/or that may carry content that could threaten the security of individuals, organizations and/or nations.

You warrant that you have content preparation controls, procedures and testing in place that prevent the transmission of computer viruses, Trojan horses or any other malicious or harmful software.

You agree that the transmission of any content referred to in the preceding two paragraphs (whether deliberate or otherwise) will entitle ActivePipe to immediately suspend or terminate these Terms and any rights you may have to access and utilize the Platform. You also agree that ActivePipe has the right to refer any such transgressing content to any relevant authority as it deems fit and that you have no legal or monetary recourse against ActivePipe under such circumstances.

Free Trials

If you have commenced using the Platform as the result of a 30 day (or other period) free trial, billing will commence immediately upon completion of the free trial period.

Payment Terms

Under our standard payment terms, invoices will be issued in advance on the “go-live” date and shall be payable 14 days after the date of the invoice. See also the “Fees and Payment” section below.

Capacity Constraints

ActivePipe reserves the right to impose contact import and monthly email send limits on any account flagged as not following sending best practices or acceptable usage of the platform and as such a risk to the sending reputation of the client or ActivePipe or a threat to the stability of the ActivePipe platform.

Termination

Unless otherwise specified in a Master Services Agreement between ActivePipe and you, either party can terminate these Terms and your access to the Platform by providing 30 days’ written notice. Termination will not affect your ongoing obligation to pay any invoice relating to a period prior to the expiration of the termination notice period.

Subject to our rights to own, maintain and use De-Identified Data as set out in these Terms and subject to our Privacy Policy, upon termination of an account, ActivePipe will delete all other client records and historical data associated with the terminating client’s account. No historical or transactional data records will be transferred to the client. Should a client subsequently wish to use the Platform again, a reactivation fee of $400 will apply.

If service fees remain unpaid 14 days from the due date, ActivePipe has the right to suspend your access to the Platform. Once suspension has been notified to you and implemented, ActivePipe has the unrestricted right to immediately terminate these Terms without further notice or recourse from either party other than ActivePipe’s legal entitlement to pursue any outstanding fees that have been invoiced or relate to the period prior to termination.

Should either party under these Terms cease to operate in the ordinary course of business, become or threaten to become subject to any form of insolvency / receivership / administration / liquidation or similar proceeding and/or have a Court Notice applied to it seeking a winding-up order, then ActivePipe has the right to terminate these Terms and the provision of the Platform and any ActivePipe Services immediately and without recourse or notice to you.

We may terminate these Terms and the provision of the Platform and any ActivePipe Services immediately by notice to you if: (a) you breach these Terms and fail to rectify the breach within 14 days of our notice requiring you to rectify the breach; (b) there is any change in control or ownership of you or your parent company; or (c) if otherwise expressly permitted by these Terms.

We may also terminate these Terms and the provision of the Platform and any ActivePipe Services immediately by notice to you if our relationship with our Hosting Service Provider or any other third party supplier that provides software, hosting services or other technology, products or services relied on by us to provide the Platform or relevant ActivePipe Service expires or terminates or such provider requires us to change the way we provide the Platform or relevant ActivePipe Service. In this event, we will give you a pro rata refund of any fees applicable to the Platform or relevant ActivePipe Service that you have paid in advance which relate to the period after the date of termination.

Assignment

You are not permitted to assign, transmit or transfer your access rights to the Platform under these Terms to any other party whatsoever without the written consent of ActivePipe. ActivePipe may, at any time and in its sole discretion, assign, novate, subcontract, encumber or otherwise transfer any of its rights, interests and/or obligations under these Terms without your consent, including to any third party in connection with any financing, refinancing, securitization or other business transaction between ActivePipe and the third party or to any of ActivePipe’s related companies.

Third Party Access

You are specifically prohibited from allowing any third party or third party database access to the ActivePipe Platform and from reselling access to the ActivePipe Platform to any third party.

Indemnification

You agree, without limitation, to defend, indemnify and hold harmless us, our related companies, shareholders, affiliates, representatives, agents, successors, assigns and licensors and each of our and their respective employees, officers, directors, agents, licensors, suppliers, other partners and representatives from and against any claims, damages, losses (including direct, indirect and consequential loss or damage), liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any of the following (including but not limited to any third party claim concerning the following):

(a) your or any individual user or email recipient’s use of the Platform or service provided by the Platform (including any activities by any person via your ActivePipe account and use by your employees, staff and other persons engaged by, authorized by or representing you (“Your Personnel”));

(b) a breach of these Terms (including a breach of any warranty made by you in these Terms and any use of the Platform or any ActivePipe Service that is not authorized by these Terms) or violation of any applicable law (including Privacy Laws) by you, any individual user or Your Personnel;

(c) the content of any emails or other communications sent by you, Your Personnel or any person via your ActivePipe account;

(d) the transmission of any computer viruses, Trojan horses or any other malicious or harmful software by you, Your Personnel or any person via your ActivePipe account, regardless of whether such transmission is accidental or deliberate;

(e) the disclosure, transfer or exchange of Data by us to or with our Hosting Services Provider, the provider of any Approved Third Party Application and otherwise in accordance with these Terms and our Privacy Policy;

(f) any denial of access to or deletion of Data in accordance with these Terms;

(g) your content or the combination of your content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your content or by the use, development, design, production, advertising or marketing of your content; or

(h) a dispute between you (or Your Personnel) and any individual user of the Platform or email recipient.

If we or our affiliates respond to a legal order or process arising from a third party claim in connection with any of the matters described above (“Third Party Action”), you will also reimburse us for all reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the Third Party Action at our then-current hourly rates.

Disclaimers

THE PLATFORM AND ACTIVEPIPE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

SAVE AS SET OUT IN THESE TERMS AND TO THE EXTENT LEGALLY PERMITTED, WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PLATFORM AND/OR ANY ACTIVEPIPE SERVICES OR THIRD PARTY CONTENT, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR THAT THE PLATFORM AND/OR ANY ACTIVEPIPE SERVICE OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS:

1. MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND IN RESPECT OF THE PLATFORM OR ANY CONTENT AVAILABLE THROUGH THE PLATFORM AND ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS EXPRESS OR IMPLIED ARE HEREBY EXCLUDED TO THE FULL EXTENT PERMITTED BY LAW; AND

2. DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR GUARANTEES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

ALTHOUGH WE MAKE REASONABLE EFFORTS TO UPDATE THE INFORMATION ON THE PLATFORM, WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT THE CONTENT ON THE PLATFORM IS ACCURATE, COMPLETE OR UP-TO-DATE.

FOR THE AVOIDANCE OF DOUBT, NOTHING IN THESE TERMS IS OR SHOULD BE INTERPRETED AS AN ATTEMPT TO MODIFY, LIMIT OR EXCLUDE TERMS, WARRANTIES OR GUARANTEES THAT ARE IMPOSED BY APPLICABLE LAW AND WHICH CANNOT BE LEGALLY MODIFIED, LIMITED OR EXCLUDED.

Limitations of Liability – PLEASE READ THIS SECTION CAREFULLY

TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR FOR ANY LOSS OF PROFITS, GOODWILL, USE, OR DATA, BUSINESS INTERRUPTION, ECONOMIC LOSS OR LOSS OF REVENUE ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PLATFORM, ANY ACTIVEPIPE SERVICE, ANY WEB SITES LINKED TO THE PLATFORM, OR THE SOFTWARE, MATERIALS OR SERVICES CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF STATUTORY DUTY OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, COST OF REPAIR OR CORRECTION, OR LOSS OR DAMAGES ARISING IN CONNECTION WITH:

(A) YOUR USE OF, OR YOUR INABILITY TO USE, THE PLATFORM OR ANY ACTIVEPIPE SERVICE, INCLUDING AS A RESULT OF ANY:

(I) TERMINATION OR SUSPENSION OF THESE TERMS OR YOUR USE OF OR ACCESS TO THE PLATFORM OR ACTIVEPIPE SERVICE;

(II) OUR DISCONTINUATION OF ANY OR ALL OF THE PLATFORM OR ACTIVEPIPE SERVICES; OR

(III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE PLATFORM OR ANY ACTIVEPIPE SERVICE FOR ANY REASON THAT IS NOT AS A DIRECT RESULT OF OUR BREACH OF THESE TERMS OR NEGLIGENCE, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS;

(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;

(C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE TERMS OR YOUR USE OF OR ACCESS TO THE PLATFORM AND/OR ANY ACTIVEPIPE SERVICE;

(D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA;

(E) USE OF OR RELIANCE ON ANY CONTENT DISPLAYED ON OR PRODUCED VIA THE PLATFORM OR ANY ACTIVEPIPE SERVICE; OR

(F) THE ACTS OR OMISSIONS OF ANY OTHER USER OF THE PLATFORM OR ANY ACTIVEPIPE SERVICE.

TO THE EXTENT LEGALLY PERMITTED AND DESPITE ANYTHING ELSE IN THESE TERMS, WHERE LIABILITY HAS NOT OTHERWISE BEEN EXCLUDED OR LIMITED BY THESE TERMS, OUR AND OUR AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY UNDER THESE TERMS WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THESE TERMS FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

It is a condition of accessing the Platform that you accept and agree we shall not be liable for any harmful effect that accessing the Platform may have on you, and you agree that you access and use the Platform entirely at your own risk.

Your Use of the Platform and Content Standards

You are responsible for making all technical arrangements necessary to access the Platform. Access to the Platform may only be available to compatible devices which meet specific system or software requirements specified by us or on our Website from time to time. We give no warranty or guarantee that access to or use of the Platform will be available to all devices and you are responsible for ensuring that any device you use meets system, software or other requirements specified by us or on the Website from time to time.

You are also responsible for ensuring that all persons who access the Platform through your internet connection are aware of these Terms and that they comply with them.

You agree not to:

(a) publish, reproduce, duplicate, translate, adapt, copy or re-sell any part of the Platform (or any content within it) in contravention of these Terms; or

(b) access without authority, interfere with, damage or disrupt:

(A) any part of the Platform;

(B) any equipment or network on which the Platform is stored;

(D) any equipment or network or software owned or used by any third party.

The Platform may include information and materials uploaded by other users. This information and these materials have not been verified or approved by us. The views expressed by other users on the Platform may not represent our views or values. You acknowledge that you may be exposed to content that you may find offensive, indecent or objectionable and that, in this respect, you use the Platform at your own risk.

You acknowledge that:

(a) you are responsible for your interactions with other users;

(b) we make no representations or warranties as to the conduct of other users; and

You agree to take reasonable precautions in all interactions with other users.

Notwithstanding any other provision of these Terms, the parties acknowledge and agree that:

1. any information published on the Platform (the “Platform Information”) may be available to users of the Platform;

2. the publication of Platform Information by ActivePipe will not amount to a breach of any of ActivePipe’s obligations under these Terms; and

3. if you disclose your confidential information to another party on or via the Platform and you wish to impose obligations of confidence on the other party in relation to such information, you should enter into a separate confidentiality agreement with the other party.

Links to Other Platforms or the Platform

The Platform may offer links to other websites from which third party services can be obtained and which we reasonably believe to be reputable sources of such services. You acknowledge that these other websites are independent from us and we make no representations or warranties as to the legitimacy, accuracy or quality of such third party services, and we do not accept any responsibility for their content, safety, practices or privacy policies.

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to the Platform in any website or application that is not owned by you (save where expressly authorized under these Terms). The Platform must not be framed on any other website or application, nor may you create a link to any part of the Platform other than the home page (save where expressly authorized under these Terms).

The website to which you link must comply in all respects with the content standards set out in these Terms.

We reserve the right to withdraw linking permission without notice.

Intellectual Property

You acknowledge and agree that all Intellectual Property Rights vested in or associated with the Platform, our Website, compilations of De-Identified Data produced by us, any other ActivePipe Service and in all ActivePipe Content are (as between you and us) owned, controlled or reserved by us or our licensors. You may not copy, adapt, display, communicate to the public or otherwise use any ActivePipe Content except as enabled and permitted by the Platform and/or these Terms from time to time. You agree that nothing in these Terms transfers any of our Intellectual Property Rights to you and that no transfer of our (or our licensors’) Intellectual Property Rights occurs at any time by your (or your customers’) access or use of the Platform or any other ActivePipe Service.

You agree not to dispute or challenge the validity of our (or our licensors’) entitlement to own, use or license the Intellectual Property Rights in the Platform, our Website, compilations of De-Identified Data produced by us, any other ActivePipe Service and in all ActivePipe Content (including their underlying technology, software, programs, as well as all their respective modifications, developments, updates and enhancements), or to assist or join any third parties to challenge or contest the validity of those Intellectual Property Rights.

Subject to these Terms, we authorize you to view, operate and use the information and materials obtained from the Platform or sent to you by ActivePipe via any electronic or physical means, with the understanding that all Intellectual Property Rights vested in such materials remain strictly owned and reserved by us (or our licensors).

Unless otherwise specified in these Terms, the Platform may not be modified, copied, distributed, transmitted, displayed, performed, reproduced, published, licensed, used to create derivative works from, transferred, or otherwise used in a manner inconsistent with the purpose for which the Platform and/or any associated services are provided.

You:

1. agree not to infringe any Intellectual Property Rights of ActivePipe or our licensors;

2. agree to notify us promptly of any actual, suspected or threatened infringement of our Intellectual Property Rights and of any unauthorized, suspected or threatened third party access to or use of the Platform, Data, De-Identified Data or any ActivePipe Service and to reasonably co-operate with us in relation to such infringement or unauthorized third party access or use;

3. confirm that any goodwill in the Platform generated by you belongs to ActivePipe;

4. agree not to use the Platform (and the technology upon which the Platform is based) for anything other than the purposes set out and permitted in these Terms;

5. agree you will not, directly or indirectly, use or Reverse Engineer (or aid or assist in the Reverse Engineering of) the Platform or any part of the Platform or any Intellectual Property Rights subsisting in or relating to the Platform for any purpose or in any way including to manufacture, have made, use, create, design, market or sell a platform which is the same as, similar to or may compete with the Platform or for any purpose, or in any manner, other than as specifically permitted by these Terms;

6. agree you will not, without ActivePipe’s prior written consent, seek to claim ownership or any rights in or apply to register any:

a) trade or service mark in your own or any other name which is the same as or similar to the ActivePipe Trademarks or any trade or service mark owned or used by ActivePipe;

b) patent in the your own or any other name any patent which is the same as or similar to any patent owned by ActivePipe; or

c) Intellectual Property Rights which are based on or use any part of the Platform;

7. must use reasonable endeavours to ensure that all of your related parties comply with the above provisions; and

8. agree that the obligations placed upon you under these Terms (and any other agreement binding upon by you in connection with these Terms) are valid and binding and enforceable against you in accordance with their terms.

In this section, “Reverse Engineering” includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, or otherwise deriving source code.

We may immediately terminate these Terms and your access to the Platform and any ActivePipe Services if you breach any part of this “Intellectual Property” section.

In addition to any other rights and remedies that ActivePipe may have under these Terms or at law, you shall be required in all cases to pay royalties and/or an account of profits to ActivePipe with respect to any products that are developed, marketed or distributed by you which are derived in whole or in part from the Reverse Engineering of the Platform, Active Pipe Content, our data or any code or other material owned by or exclusively licensed to ActivePipe.

Trademarks

You may not remove or alter any ActivePipe Trademarks, or co-brand your own products or material with ActivePipe Trademarks, without ActivePipe’s prior written consent.

You acknowledge ActivePipe’s rights in all ActivePipe Trademarks and agree that any use of ActivePipe Trademarks by you shall inure to ActivePipe’s sole benefit.

You agree not to incorporate any ActivePipe Trademarks into any of your own trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.

The names of actual companies and products mentioned on the Platform or in any information or materials obtained from the Platform or sent to you by us may be the trademarks of their respective owners or licensees.

Copyright

Any software or content that is made available to download from the Platform is the copyright-protected work of, and owned by, ActivePipe and/or its licensors (if any). You must be a registered ActivePipe user and subscriber in order to download and/or use the ActivePipe software with respect to the Platform.

ActivePipe users are required to respect Intellectual Property Rights. Should copyright-protected content belonging to you be posted via ActivePipe without your permission, please let us know by sending a takedown notice with the information required under the Digital Millennium Copyright Act (DMCA) to our Designated Agent for Copyright Infringement at:

Compliance Manager
ActivePipe
64 Gwynne Street, Cremorne
Victoria, Australia 3121
Email: compliance@activepipe.com

Waiver

No failure or delay by ActivePipe to exercise any right or remedy provided under these Terms, or by law, shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Acceptable Use Policy

ActivePipe’s reputation as an email service provider and our deliverability depend upon keeping the Platform and its system clean. Spamming actions of individual users can adversely impact on ActivePipe’s positive reputation and jeopardize deliverability of the system as a whole. So we are in the positive reputation business together.

In this regard, without limitation, you must not use the Platform to facilitate any communications or activities that breach the CAN-SPAM Act (and equivalent laws that apply to you), and in particular to send, or procure the sending of, any unsolicited or unauthorized electronic communication, advertising or promotional material or any other form of similar solicitation (spam) unless it conforms to the CAN-SPAM Act requirements.

Reputation Explained

ActivePipe is a multi-user platform that provides email delivery services on behalf of its client base (community). In simple terms, ActivePipe passes emails through to Internet Service Providers (ISPs) such as Google (email), Yahoo, etc.

The ISPs have very complex algorithms that monitor what is known as an email sender’s (ActivePipe) “reputation”. These mechanisms exist as one of many tools designed to identify and stop genuine spam emails based on their point of origin (source/sender).

If your email recipients consign your emails to trash or spam, these actions will affect the sending “reputation” of ActivePipe. This in turn impacts the entire ActivePipe community. This impact translates to the ISPs viewing ActivePipe as a sender of dubious reputation, which will “choke” and severely restrict the delivery of your emails and those of our broader community.

In order to protect our reputation and thus the reputation of our community members, ActivePipe maintains an Acceptable Use Policy and operates an API (automated interface) that removes from your database within ActivePipe any email recipients that have trashed or spammed your email. This API also removes any email addresses that are “hard-bounced” (that is where the ISP advises that no such email address exists and/or is not active).

Such data “cleansing,” as it is known, is critical to enhancing and maximizing the reputation of your database and that of the broader community, and thus ActivePipe’s reputation.

You therefore acknowledge and accept this Acceptable Use Policy as a standard operating practice of ActivePipe.

Privacy

Please see the separate ActivePipe Privacy Policy relating to the collection and use of any Personal Information on or via the Platform. By using the Platform, you are consenting to the terms of our Privacy Policy and to ActivePipe processing any Personal Information and other Data in accordance with that Policy.

You warrant that:

(a) any Personal Information that you disclose to us under these Terms, or when using the Platform, our Website or any other ActivePipe Service, has been collected in accordance with applicable Privacy Laws;

(b) the individual to whom the Personal Information relates has been made aware of the recipients’ identities, of how to contact the recipients, and of the other matters of which the recipients are required to inform that individual; and

(c) we are authorized to collect, store, disclose and use the Personal Information disclosed to us by you for the purposes of these Terms and for the purposes of us providing you with and you accessing and using the Platform and any other ActivePipe Service.

You acknowledge that we engage a Hosting Service Provider to provide data storage services, to host the Platform and to store Data. The Hosting Service Provider may transmit, maintain and store all or parts of the Data (including Personal Information) on multiple servers across various jurisdictions. Servers in which Data (including Personal Information) may be stored by the Hosting Service Provider are likely to be located in Australia, New Zealand, Singapore and the United States, although additional or other locations may be used by the Hosting Service Provider in the future. By providing us with Data (including Personal Information) or by accessing or using the Platform, you: (a) consent to us disclosing and transferring Data (including Personal Information) to our Hosting Service Provider for the purpose of allowing the Hosting Service Provider to host all data necessary to support the Platform and for us to provide the Platform and any ActivePipe Service to you; and (b) consent to us and the Hosting Service Provider transmitting, maintaining and storing Data (including Personal Information) between and on servers that may be located outside your home jurisdiction.

You also warrant that you have obtained all licenses, consents, authorizations and approvals and made all disclosures (including to your own customers) necessary to procure the above consents, acknowledgements and agreements from all individuals to whom the Personal Information comprised in the Data relates.

You acknowledge and agree that the transmission of Data (including Personal Information) between us and our Hosting Service Provider is necessary for us to maintain the Platform and provide the Platform and any ActivePipe Service to you. We may engage other data storage providers or store Data on servers in other locations in the future and will update these Terms if that is the case.

Confidentiality

Each party must not without the written consent of the other:

(a) use any Confidential Information of the other party, except in performing its obligations under these Terms; or

(b) disclose any Confidential Information of the other party to any person except to its approved employees, officers, directors and other representatives, who need to review the Confidential Information in connection with performance under these Terms, and then only to those who need to know the same and who agree to be bound by similar obligations of confidentiality. Notwithstanding the above, we may disclose certain of your Confidential Information to our third party suppliers, subject to the obligation of confidentiality, as necessary to: (i) provide you with the Platform and any ActivePipe Service or to obtain support for them; (ii) obtain information specifically requested by you; (iii) perform back-office functions or administrative services; or (iv) as necessary to comply with legal and/or accounting requirements.

Nothing in these Terms does or is intended to impose confidentiality obligations on the recipient of Confidential Information where:

(a) disclosure of Confidential Information is required by law or required to respond to valid requests by a regulatory, government or judicial body;

(b) the Confidential Information is in the public domain through no fault or action of the recipient, its employees or subcontractors; or

(c) the Confidential Information was received by the recipient on a non-confidential basis from a third party who is not prohibited from disclosing it.

The obligations of confidentiality in these Terms survive termination or expiry of these Terms and cancellation or expiry of your ActivePipe account. The obligations of confidentiality continue to apply to you after you have ceased using the Platform and other ActivePipe Services.

Data

You are responsible for all Data that you provide or disclose to us, input into the Platform or transmit via the Platform through your account, including through access to and/or use of the Platform, our Website or any Approved Third Party Application. You are solely responsible for ensuring the integrity, completeness and accuracy of such Data. You are also solely responsible for ensuring that you understand and accept the purposes and means by which Data (including Personal Information) may be processed by us under these Terms, and must ensure that processing conducted according to your instructions will not place us in breach of any laws (including applicable data protection or privacy laws). You must not upload, distribute or publish via the Platform, our Website or any other ActivePipe Service, any Data or materials which infringe any third party’s copyright, trademark, trade secret, confidentiality, privacy or other proprietary or Intellectual Property Rights or which violate any applicable law, statute, ordinance or regulation. You agree to comply with our procedures and policies in respect of uploading, distributing and publishing Data and materials as may be specified by us or on our Website from time to time.

You warrant that:

(a) you have the right to, or have otherwise obtained all licenses, consents, authorizations and approvals and made all necessary disclosures necessary to, collect, store, disclose, use, upload, reproduce, permit us to reproduce, transmit and/or transfer the Data using the Platform, our Website and any other ActivePipe Service, including any Personal Information included in the Data;

(b) the Data will not violate or infringe upon the rights (including Intellectual Property Rights) of any other person;

(d) the Data will comply with any guidelines we specify on our Website from time to time.

You grant us, or warrant that you have procured for us from the copyright owner or licensor of the Data, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to do and authorize the doing of all acts comprised in the copyright in all Data. For the avoidance of doubt, this includes the right for us to copy, adapt, display, publish and communicate to the public all content (including images, photographs and plans) that you may upload to the Platform or which is transmitted via the Platform in the course of communications between you and other users of the Platform, your customers or members of your database.

You are responsible for and must adopt reasonable measures to limit your exposure to the potential loss, corruption, disclosure and damage of the Data, including making appropriate arrangements for secure back up or storage of the source material in connection with the Data. We expressly exclude liability for any loss of Data no matter how caused.

You acknowledge that we may not be able to provide all or part of the Platform or any ActivePipe Service (or the Platform or relevant ActivePipe Service in the manner intended) if the Data provided by you is not complete, correct or accurate or of a quality or condition suitable for processing based on our applicable standards, specifications and procedures, or is otherwise not in the format required by us. You acknowledge and agree that we are not responsible for any errors, omissions, losses or damages of any kind resulting directly or indirectly from any inaccuracies in Data provided by you or any failure by you to ensure the integrity, completeness or accuracy of Data before providing it to us, inputting it into the Platform or transmitting it via the Platform.

You acknowledge that we may use or modify the Data and information derived from the Data (including by aggregation and other de-identifying techniques) to produce a compilation of De-Identified Data. We own all rights, title and interest in and to the De-Identified Data and consequently may use such De-Identified Data for our own commercial purposes. De-Identified Data is not Personal Information because the De-identified Data does not directly or indirectly reveal the identity of a person. However, if we combine or connect De-Identified Data with other data so that the identity of a person can be reasonably ascertained, we will treat the combined or connected data as Personal Information which may only be used and disclosed in accordance with our Privacy Policy and the sections of these Terms that apply to Personal Information.

Approved Third Party Applications

If you access or use (or request to access or use) an Approved Third Party Application, you:

1. acknowledge and agree that you may be subject to separate legally binding terms of use and a separate privacy policy of the provider of the Approved Third Party Application (“Third Party Terms”)

2. warrant that you have read, understood and agree to comply with all Third Party Terms;

3. consent to us entering into an agreement with the provider of the Approved Third Party Application for the purpose of facilitating integration of the Approved Third Party Application with the Platform and any other ActivePipe Service;

4. consent to us disclosing to, transferring to and otherwise exchanging with the provider of the Approved Third Party Application all Data (including Personal Information) as may be required in order to facilitate integration of the Approved Third Party Application with the Platform or otherwise as may be required for you to use the Approved Third Party Application with the Platform and any other ActivePipe Service; and

5. warrant that you have the right to, or have otherwise obtained all licenses, consents, authorizations and approvals and made all necessary disclosures (including to your own customers) necessary to permit us to disclose to, transfer to and otherwise exchange with the provider of the Approved Third Party Application all Data (including Personal Information) as may be required in order to facilitate integration of the Approved Third Party Application with the Platform or otherwise as may be required for you to use the Approved Third Party Application with the Platform and any other ActivePipe Service.

Governing Law

1. Governing Law: These Terms are governed by and construed in accordance with the laws of the State of Texas and the United States of America.

2. Jurisdiction: These Terms are subject to the exclusive jurisdiction of the state and federal courts situated in Austin, Texas.

Miscellaneous

1. If any provision or part of a provision of these Terms is held to be illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, such provision will be deemed severed from these Terms and the remainder of these Terms will remain in full force and effect.

2. These Terms, and the documents referred to in them, constitute the entire agreement between you and us in relation to the subject matter of these Terms and supersede any prior agreement in respect of the same.

3. The relationship between you and us is and will be that of independent contractors. Nothing in these Terms shall create an employment, trustee, partnership or agency relationship and neither party will make any representation as such.

4. Provisions of these Terms that by their nature are intended to survive termination shall so survive the termination of these Terms.

5. The failure of ActivePipe to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such a right or provision.

6. These Terms bind and benefit each of our respective successors and permitted assigns.

Fees and Payment

1. You must pay to us all fees, including any applicable sales tax, by the due date as specified in these Terms, an invoice or via the Platform and by the payment method and currency stipulated via the Platform or applicable invoice (which may be updated from time to time).

2. If you fail to make any payment due under these Terms by the due date for payment, then, without limiting our remedies, you agree to pay interest on the overdue amount at the rate of twelve percent (12%) annually, or the maximum amount allowed by applicable law if lower. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You agree to pay the interest together with the overdue amount.

3. You agree to make all payments to ActivePipe under these Terms or with respect to your use of the Platform without withholding or deduction of, or in respect of, any taxes, duties, imposts or levies unless required by law. If any such withholding or deduction is required by law, you agree to, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required. In addition, where required to be paid by law, you must provide to us a copy of the certificate of withholding (or analogous document).

Definitions

For the purposes of these Terms the following terms have the following meanings:

ActivePipe Content means all material published on the Platform including but not limited to text, graphics, photos, logos, button icons, images, trademarks, audio and audio-visual clips, databases, data compilations, data and software, but excluding any content uploaded by users of the Platform;

ActivePipe Service means any website, product, service or software solution operated or provided by us and our related companies from time to time via any distribution platform (including online and via mobile applications), excluding the Platform;

ActivePipe Trademarks means all registered and unregistered names, marks, brands, logos, designs, slogans and other designations that ActivePipe uses in connection with the Platform and any other ActivePipe Service from time to time;

Approved Third Party Application means any third party software, application, product or service integrated with or used in conjunction with the Platform or any ActivePipe Service from time to time with the approval of ActivePipe;

Confidential Information of a party is information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organizational structure, financial position, personnel, policies and business strategies;

Data means the data which is input into the Platform or transmitted via the Platform (including in the course of communications between you and other users of the Platform, your customers or members of your database) through your account or which you disclose or provide to us through access to and/or use of the Platform, our Website or any Approved Third Party Application, which may include Personal Information of you or other persons (including your customers and members of your database);

De-Identified Data means Data, including any information derived or aggregated from the Data, which has Personal Information removed from it such that the identity of any individual person cannot be reasonably ascertained from the data;

Hosting Services Provider means Amazon Web Services and any other person or entity we may engage from time to time to provide data hosting and storage services in connection with the Platform or any ActivePipe Service or to provide serving infrastructure which operates under our direction;

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trademarks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

Personal Information has the meaning given in applicable Privacy Laws;

Platform means the advanced customer relationship management plug-in platform delivering enterprise level marketing automation and smart data analytics to real estate accessible via the Website and as described on the Website from time to time;

Privacy Laws means all privacy laws and regulations applicable to you and the members of your database, including without limitation the General Data Protection Regulation (EU) 2016/679, the CAN-SPAM Act, other U.S. federal laws, and applicable U.S. state laws;

Terms means the agreement between us and you in respect of your access to and use of the Platform and any other ActivePipe Service, which comprises these terms (including as may be updated from time to time), any Master Services Agreement and any other special conditions agreed separately between us and you in connection with your access and use of the Platform and any other ActivePipe Service, our Privacy Policy as published on the Website from time to time, and your registration and payment details;

Website means the website located at www.activepipe.com, any website that may replace that website, and any other website from which we may provide or facilitate provision of the Platform and any other ActivePipe Service from time to time.

Big things are in the works

ActivePipe – Terms & Conditions and Terms of Use ("Terms")