BULK MAIL TERMS & CONDITIONS

Introduction

HostworX is committed to complying with legislation and ensuring all its Customers have the ability to use its network and the Internet without interference or harassment from other users. HostworX’s Bulkmail Term & Conditions is designed to help achieve these goals.

By using any of HostworX’s services, Customers agree to comply with these bulkmail terms and conditions and to remain responsible for its users, where applicable. HostworX reserves the right to change or modify the terms and conditions any time, by posting an updated version on its website at http://www.HostworX.co.za/terms-bulkmail.php. Customer's use of HostworX’s services after changes to the bulkmail terms and conditions are posted shall constitute acceptance of any changed or additional terms.

Scope of the terms and conditions

The bulkmail terms and conditions applies to HostworX services that provide (or include) Internet services, including but not limited to, any service providing access to the Internet, hosting services (data/content hosting, server hosting, web hosting, email hosting services, etc) or any other services provided over the Internet or wireless data networks (collectively as"Internet Services").

General Conditions

HostworX shall provide the Account Holder with a Bulk email service in accordance with the Account Holder's choices as requested.

The account Holder will ensure that all subscriptions on the maillist are verified subscriptions, and dirty lists will result in possible blacklisting of ip addresses and will result in suspension and possible termination of such maillists.

HostworX shall assume NO responsibility for the failure of any mail delivery or the loss of any mail.

Compliance of the ECT Act, POPI Act and any other acts regarding Commercial mail must be abided to. Any contravention of the ECT Act/POPI Act leading to legal action due to the breach will be for the maillist owners responsibility.

The Account Holder indemnifies and holds HostworX , its employees, agents, dealers and/or distributors harmless against all losses, injury, damage, penalties and/or Claims of whatsoever nature and howsoever arising from or in connection with the Bulk email service.

By using our bulk mailing system, we automatically accept that you have agreed to be bound by these terms and conditions listed herein.

Unlawful Activities:

Internet Services shall not be used in connection with any criminal, civil or administrative violation of any applicable local, provincial, national or international law, treaty, court orders, ordinance, regulation or administrative rules.

Spam/E-mail Abuse:

Spam/E-mail abuse is prohibited using Internet Services. Spam/E-mail abuse shall include, but are not limited to, the following activities:0

sending multiple unsolicited electronic mail messages or "mail-bombing" to one or more recipient;

sending unsolicited commercial e-mail, or unsolicited electronic messages directed primarily at the advertising or promotion of products or services;

sending unsolicited electronic messages with petitions for signatures or requests for charitable donations, or sending any chain mail related materials;

sending bulk electronic messages without identifying, within the message, a reasonable means of opting out from receiving additional messages from the sender;

sending electronic messages, files or other transmissions that exceed contracted for capacity or that create the potential for disruption of the

HostworX network or of the networks with which HostworX interconnects, by virtue of quantity, size or otherwise;

using another site's mail server to relay mail without the express permission of that site;

using another computer, without authorization, to send multiple e-mail messages or to retransmit e-mail messages for the purpose of misleading recipients as to the origin or to conduct any of the activities prohibited by these bulkmail terms and conditions;

using IP addresses that the Customer does not have a right to use;

collecting the responses from unsolicited electronic messages;

maintaining a site that is advertised via unsolicited electronic messages, regardless of the origin of the unsolicited electronic messages;

sending messages that are harassing or malicious, or otherwise could reasonably be predicted to interfere with another party's quiet enjoyment of the Internet Services or the Internet (e.g., through language, frequency, size or otherwise);

using distribution lists containing addresses that include those who have opted out;

sending electronic messages that do not accurately identify the sender, the sender's return address, the e-mail address of origin, or other information contained in the subject line or header;

falsifying packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin;

using redirect links in unsolicited commercial e-mail to advertise a website or service;

posting a message to more than ten (10) online forums or newsgroups, that could reasonably be expected to generate complaints;

intercepting, redirecting or otherwise interfering or attempting to interfere with e-mail intended for third parties;

knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the user mails or sends;

using, distributing, advertising, transmitting, or otherwise making available any software program, product, or service that is designed to violate these bulkmail terms and conditions or the terms and conditions / AUP of any other Internet Service Provider, including, but not limited to, the facilitation of the means to spam.

At HostworX, we take spamming and email permissions very seriously. By creating an account and using our systems, you agree to all of our Terms of Use, Acceptable use policy, and you are also agreeing to our bulkmail anti-spam policy. The law isn't enough, it's permission that counts

While the ECT Act of 2002, section 45 and CAN-SPAM laws are a step in the right direction for reducing the spam, we don't feel they go far enough.

Our definition of spam goes beyond the laws in most countries and encompasses what we believe to be true permission email marketing.

Spam is any email you send to someone who hasn't given you their direct permission to contact them on the topic of the email.
Permission is a very fuzzy word and is open to interpretation. Let's give you some specific scenarios so it's clear what does and doesn't constitute permission.

What kind of email addresses are OK to send to with HostworX?
To send email to anyone using HostworX mail systems, you must have clearly obtained their permission. This could be done through:

1) An email newsletter subscribe form on your web site.
2) An opt-in checkbox on a form. This checkbox must not be checked by default, the person completing the form must willingly select the checkbox to indicate they want to hear from you.
3) If someone completes an offline form like a survey or enters a competition, you can only contact them if it was explained to them that you would be contacting them by email AND they ticked a box indicating they would like you to contact them.
4) Customers who have purchased from you within the last 2 years.
5) If someone gives you their business card and you have explicitly asked for permission to add them to your list, you can contact them. If they dropped their business card in a fishbowl at a trade show, there must be a sign indicating they will be contacted by email about that specific topic.
6) Basically, you can only ever email anyone who has clearly given you permission to email them specifically about the subject you're contacting them about.

What kind of email address ARE NOT OK to send to with HostworX?
Anything outside the examples above doesn't equal permission in our eyes, but here are some examples to make sure we're crystal clear. By using HostworX mail systems, you agree not to import or send to any email address which:

1) You do not have explicit, provable permission to contact in relation to the topic of the email you're sending.
2) You bought, loaned, rented or in any way acquired from a third party, no matter what they claim about quality or permission. You need to obtain permission yourself.
3) You haven't contacted via email in the last 2 years. Permission doesn't age well and these people have either changed email address or won't remember giving their permission in the first place.
4) You scraped or copy and pasted from the web. Just because people publish their email address doesn't mean they want to hear from you.
5) Sure, some of these people might have given you their email address, but what's missing is your permission to email them commercial messages. Blasting promotional emails to any of these people won't be effective and will more than likely see your email marked as spam by many of your recipients.

What content MUST I include in my email?

Every email you send using HostworX will by default include a single-click unsubscribe link that instantly removes the subscriber from your list.

Once they unsubscribe, you can never email them again.

How we'll know if you don't have permission

HostworX has various layers of approval and monitoring to ensure you comply with our anti-spam policy. A few of them:

Until your account has been approved by our bulkmail team, every email you send may need to be approved before it is released for delivery.

We make use of various spam reporting systems for some of the biggest ISP's like Yahoo, Hotmail and AOL. If you don't have permission and someone flags your emails as spam, we'll know about it. If you receive a complaint rate greater than 0.4% of all recipients (that's 40 complaints for every 10,000 recipients) you will receive a warning email requesting an explanation and giving you advice on how to resolve this. This is a generous figure that takes into account false spam reports. Higher levels of spam complaints will result in accounts being locked or terminated.

Our team verifies all large lists imported into our software. Until we've given it the all clear, you may not be able to send to it.

We monitor blacklists and our abuse accounts all day every day. We can pinpoint who is causing us delivery problems or attracting complaints very easily.

If we do discover that you're emailing people without their permission, we will terminate your account with HostworX immediately.

In the end, it's really common sense. Take off your marketing hat and put yourself in your recipient's shoes. If they don't recognize who you are or aren't interested in what you're sending, they'll think you're a spammer. It's that simple.

If you have any questions about our Anti-Spam Policy, or if you want to report spamming activity by one of our customers, please contact our abuse department at: abuse@hostworx.co.za

General Customer Responsibilities

Customers remain solely and fully responsible for the content of any material transmitted using any mail services provided by Hostworx, either via the bulk mail platform or Via third party software provided by the customer. HostworX has no responsibility for any material transmitted across the HostworX's network or using Third party Internet Services, including bulk mail facilities hosted on third-party websites linked to the HostworX network. Such third-party website software hosted on HostworX web servers, do not constitute in any way an endorsement by HostworX of the acceptability of such software.

Customers need to ensure that any third party software used to transmit email, needs to comply with the various legislations in place, managing the transmissions of such email to end users, such as the ECT Act of 2002, section 45, and the CAN SPAM Act.

Customers providing their own third party software for management of email lists, need to ensure that bounced processing of returned emails and unsubscriptions from recipients is managed, either via the third party software or manually by the customer.

Customers need to ensure that they maintain a bounce rate of less than 1%, failing which an investigation will be started, if any abuse is found could result in the clients account being suspended.

Customers are responsible for taking prompt corrective action(s) to remedy a violation of any of the terms and conditions and to help prevent similar future violations from occuring, failing which a clients account can be suspended until such time such time such violations are resolved.

POPI ACT Addendum - Data Processing

THIS ADDENDUM MUST BE READ IN CONJUNCTION WITH THE GENERAL TERMS AND CONDITIONS. WHERE ANY DISCREPANCY OCCURS, THE PROVISIONS OF THE ADDENDUM SHALL APPLY.

1. Scope
1.1. This addendum deals with the Processing of Personal Information where the Customer is a Responsible Party, and HostworX is the Operator.
1.2. Where HostworX is the Responsible Party and Customer is the Data Subject, the processing of Customer's Personal Information is governed by the General Terms and Conditions, the Code of Conduct Regulations published under section 69 of the ECA, and POPIA.
1.3. In terms of this addendum:
1.3.1. HostworX will take accountability for Personal Information that traverses or is temporarily stored in devices on its Equipment/Network as set out in clause 4 read with clauses 6 and 7 of this addendum; and
1.3.2. Customer takes accountability for Personal Information on is Subscriber Equipment, or that is transmitted across the Customer's network as more fully set out in clause 5 of this addendum.

2. Definitions Capitalised terms not defined herein have the same meaning as defined in the General Terms and Conditions.
2.1. POPIA means the Protection of Personal Information Act, 4 of 2013;
2.2. Equipment/Network means all the network infrastructure between HostworX's Equipment;
2.3. Operatoris as defined in POPIA;
2.4. ECTA means the Electronic Communications and Transactions Act, 25 of 2002;
2.5. End-Point/s means the Managed Service Equipment (whether physical or virtual) connected to Customer's Subscriber Equipment;
2.6. Router means a router between HostworX's network and networks owned and administered by other network providers;
2.7. Data Subjectis as defined in POPIA;
2.8. Personal Information means Personal Information as defined in POPIA;
2.9. Processing means, for this addendum, the dissemination, transmission or distribution across the HostworX Equipment of Personal Information destined for, or originating from, Customer's End-Point/s; and
2.10. Responsible Party is as defined in POPIA.

3. Processing Personal Information in terms of ECTA
3.1. For purpose of this addendum, HostworX does not subscribe to the principles set out in section 52 of ECTA simply because HostworX does not retain the Personal Information it Processes;
3.2. HostworX is a member of a recognised industry representative body and accordingly the limitations of liablity in ECTA applies to the HostworX. Consequently, Customer acknowledges that in respect of Processing (as defined herein), ECTA provides as follows:
3.2.1. Mere conduit. HostworX is not liable for providing access to or for operating facilities for information systems or transmitting, routing or storage of data messages via an information system under its control, as long as HostworX —
3.2.1.1. does not initiate the transmission;
3.2.1.2. does not select the addressee;
3.2.1.3. performs the functions in an automatic, technical manner without selection of the data; and
3.2.1.4. does not modify the data contained in the transmission.

3.2.2. Hosting. Where HostworX provides a service that consists of the storage of data provided by Customer, HostworX is not liable for damages arising from data stored at the request of the Customer, as long as HostworX —
3.2.2.1. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of a third party; or
3.2.2.2. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent; and
3.2.2.3. upon receipt of a take-down notification referred to in section 77, acts expeditiously to remove or disable access to the data.
3.2.3. Caching. Where HostworX transmits data provided by Customer via an information system under its control, it is not liable for the automatic, intermediate and temporary storage of that data, where the purpose of storing such data is to make the onward transmission of the data more efficient to other recipients of the service upon their request, as long as HostworX —
3.2.3.1. does not modify the data;
3.2.3.2. complies with conditions on access to the data;
3.2.3.3. complies with rules regarding the updating of the data, specified in a manner widely recognised and used by industry;
3.2.3.4. does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain information on the use of the data; and
3.2.3.5. removes or disables access to the data it has stored upon receiving a take-down notice referred to in section 77 of ECTA.
3.2.4. No general obligation to monitor. There is no general obligation on HostworX to monitor the data which it transmits or stores.

4. HostworX Obligations
4.1. Processing. HostworX will:
4.1.1. Process Personal Information on behalf of Customer only with the knowledge or authorisation of Customer;
4.1.2. treat Personal Information conveyed across its Core Network as confidential and will not disclose it unless required by law or in the course of the proper performance of its duties.
4.2. Security measures
4.2.1. Whilst HostworX is Processing Customer's Personal Information, HostworX will ensure that it takes appropriate, reasonable technical and organisational measures to prevent—
4.2.1.1. loss of, damage to or unauthorised destruction of Personal Information; and
4.2.1.2. unlawful access to or processing of Personal Informationwhilst traversing the HostworX Equipment/Network.
4.2.2. HostworX will notify Customer’s designated contact person immediately where there are reasonable grounds to believe that Personal Information has been accessed or acquired by any unauthorised person whilst traversing the HostworX Equipment/Network.

5. Customer Obligations
5.1. Customer acknowledges and agrees that the HostworX security products and services are only components of the Customer's overall security program.
5.2. Even though HostworX offers or provides Customer with security products to protect the logical and physical security of Customer's networking environments.
5.3. The Customer remains responsible for maintaining the security of its internal network and Subscriber Equipment from unauthorised access.
5.4. Customer must ensure that it obtains the consent of its Data Subjects for the transmission of Personal Information to countries outside of the Republic of South Africa

6. Customer Consents
6.1. To give effect to clause 4.1.1 above, Customer hereby freely and voluntarily provide HostworX with permission to Process its Personal Information in accordance with these terms and of POPIA.
6.2. Customer acknowledges that it understands how Personal Information will be Processed and consents to the Processing thereof.

7. Transmission of Personal Information Cross Borders
7.1. HostworX transmits messages to and from source and destination IP’s without interrogating the geographic location of a source or destination IP.
7.2. Furthermore, once a message exits the HostworX Core Network onto the network of an interconnect, peering or transit party’s network, HostworX has no further control of the path that the message is routed on, or the security measures taken along that path. This is a function of the nature of how the global internet functions.
7.3. Accordingly, HostworX has no control of the territories to or from which message are sent.

Bulkmail Terms and Condition Enforcement and Notice

Customer's failure to observe the guidelines set forth in these bulkmail terms and conditions will be regarded as a material breach and may result in HostworX taking actions, which may either be a warning, a suspension or termination of Customer's services. When reasonably possible, HostworX may provide Customer with a notice of an bulkmail terms and conditions violation allowing the Customer to promptly correct such violation.

If the Internet Services are used in a way that we, in our reasonable discretion, believe violates these bulkmail ternms and conditions or any of our rules or limitations, we may take any responsive actions we deem appropriate. Such actions may include without limitation, temporary or permanent removal of content, cancellation of posts, filtering of Internet transmissions, and/or the immediate limitation, restriction, suspension or termination of all or any portion of the services or your account.

Should you engage in any one or more of the above activities, which shall be determined in HostworX's reasonable discretion and which decision shall be final, then HostworX shall be entitled, without prejudice to any other rights it may have, to take any responsive action we deem appropriate, such actions may include, without limitation:

1) without notice, temporary or permanent limitation, restriction or suspension of your access to the IP Service concerned;
2) terminate all agreements with you with immediate effect;
3) bill you for any costs incurred by HostworX as a result of the offending activity, including (without being limited to) bandwidth used, administration costs, downtime, usage of HostworX's name or registered domain namesand CPU cycles; and
4) If any of HostworX ip addresses get blacklisted due to UCE bulk email / Spam sending from any maillist will result in the Account Holder being responsible for costs to have such ip addresses removed from the blacklist systems. This is normally charged at around $50 per ip address/spam email received by RBL's such as Sorbs, Spamhaus, Spamcop, etc. This is normally charged as a "fine" and paid to one of the charities identified by the specific RBL system at that point in time; and
5) disclose information relating to the offending activity as may be required under the circumstances.

HostworX has no obligation to monitor content of any materials distributed or accessed using the Internet Services. However, HostworX may monitor content of any such materials as necessary to comply with applicable laws, regulations or other governmental or judicial requests; or to protect the HostworX network and its customers.

Incident Reporting

Any complaints (other than claims of copyright or trademark infringement) regarding violation of these bulkmail tems and condition by an HostworX Customer (or its user) should be directed to abuse@hostworx.co.za, include details that would assist HostworX in investigating and resolving such complaints.