No modification or variation to the Agreement will be binding on the parties unless first agreed in writing by authorised representatives of the parties.
Our objective is to provide all clients the highest levels of service and to ensure each campaign delivers the highest quality lead whilst remaining compliant to all local, and where appropriate, international laws and legislation that protect consumers from receiving unsolicited communications. This includes but is not limited to laws regulating spam and privacy.
We rely on the Publisher to deliver this quality service and the Publisher, by providing a completed Publisher Booking Form, acknowledges and agrees to the Terms.
The parties to this Agreement are:
iCumulus Pty Ltd (ABN 78 151 741 892) of Level 9, 131 York Street Sydney NSW 2000
(“iCumulus”, “We”, “Us”)
- Legislation and Compliance:
iCumulus is bound by and committed to supporting the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). For detailed information, visit http://www.oaic.gov.au/
Privacy Act
1.1. The Publisher must:
(a) provide to all members and potential members, at the point of collection, a notification statement which sets out, at a minimum, the purposes for which the Publisher collects personal information, details of the types of entities to which the Publisher usually discloses personal information, refers to the availability of the Publisher’s privacy policy and states whether the Publisher is likely to disclose personal information to overseas recipients and, if so and practicable, identifies the countries to which such disclosures will take place;
(b) make available to all members and potential members, their Privacy Policy; and
(c) where the Publisher is located outside Australia, provide to all members and potential members any additional or alternative privacy statement or other information required by local privacy and data protection laws in that jurisdiction, such as collection statements, privacy policies, cookie policies and consents.
1.2. The privacy policy must provide, at a minimum, information about the kinds of personal information collected, how the personal information is collected and held, the intended uses of the collected personal information, and the process that members can use to request access to and/or correction of their personal information held by the Publisher and make a privacy-related complaint. The privacy policy must also state, if relevant, whether personal information will be disclosed to overseas recipients, and if so, where those recipients are located. The privacy policy must also satisfy any content requirements which are contained in any privacy and data protection laws which are applicable to the Publisher and members if located outside Australia.
1.3. The Publisher agrees to maintain terms and conditions that clearly state the conditions under which the members have joined the database including the type of communications they are likely to receive.
1.4. The Publisher warrants and undertakes that its collection, handling, use, disclosure and storage of members' personal information (and that of any Network Publisher) complies with the requirements of the Privacy Act and the Australian Privacy Principles and any local privacy and data protection laws which are applicable to the Publisher, any Network Publisher and members if located outside Australia.
Spam Act
1.5. The Publisher agrees that commercial electronic messages sent by the Publisher (and any Network Publisher) to its members will comply with the following requirements:
(a) Consent - commercial electronic messages will only be sent with the addressee’s consent - either express or inferred consent. A record of consent will be maintained by the Publisher (and any Network Publisher, if applicable) which will be sufficient to prove consent, if proof is ever requested by iCumulus, a client or a regulator.
(b) Identify - commercial electronic messages will include clear and accurate information about (i) the person or business that authorised the sending of the commercial electronic message; and (ii) how the recipient can contact the Publisher (or Network Publisher, if applicable).
(c) Unsubscribe - each commercial electronic message will include a functional unsubscribe facility which will remain active for at least thirty days after the commercial electronic message was sent and unsubscribe requests will be dealt with promptly (within five business days of receipt of the unsubscribe request).
1.6. The Publisher warrants and undertakes that all commercial electronic messages it (any Network Publisher) will send to members will comply with the requirements of the Spam Act relevant to the location of the Publisher, any Network Publisher and members.
GDPR
1.7. The Publisher warrants and undertakes that all campaigns it (and any Network Publisher) will run to prospects and to members will comply with the requirements of the GDPR relevant to the location of the Publisher, any Network Publisher and members.
- Publisher Identification
2.1. The Publisher must be able to identify to iCumulus the source of entry (IP address, date/time stamp and URL) for each member receiving the email from the Publisher (or any Network Publisher, if applicable) if requested by iCumulus. This information must be included in the lead data supplied to iCumulus and made available within 24 hours of a request sent via email.
- Networks or Affiliates
3.1. In the instance we accept a Network Booking, the Publisher acknowledges and agrees that iCumulus must have the ability to identify each Lead source back to the specifics of the Publisher. For identification purposes in the case of networks that are considered “Blind or undisclosed”, the Publisher agrees to provide iCumulus a list of the Publisher Sub IDs that we can track and recall as required.
3.2. Where the Publisher has outsourced the media booking to a Network Publisher, the Publisher remains responsible for the conduct of the [media booking and campaign] by the Network Publisher in accordance with the terms of this Agreement, despite outsourcing the media booking.
3.3. The Publisher will be liable for all acts and omissions of the Network Publisher including any failure to comply with any relevant laws, including but not limited to the Privacy Act and Spam Act.
3.4. Where a Network Publisher is used, the Publisher agrees to disclose its agreement with the Network Publisher to iCumulus to the extent necessary to prove to iCumulus’ reasonable satisfaction that the Publisher imposes the same restrictions and obligations on the Network Publisher as those imposed by iCumulus on the Publisher under this Agreement.
3.5. For each campaign, the Publisher agrees to provide iCumulus with a list of the Publisher Sub IDs so we can set up the tracking and reporting accordingly ahead of any start date of campaigns.
3.6. Under NO circumstances can the Network or any Network Publisher introduce a 3rd party or downstream affiliate network, 3rd party affiliate network.
- Data scrub – datasafehaven.com.au
4.1 As required by each iCumulus client prior to the commencement of each email campaign to be conducted by the Publisher and/or any Network Publisher, the Publisher (and any Network Publisher) agree:
(a) to wash their data against clients’ Do Not Contact (scrub) File via the platform www.datasafehaven.com.au; and
(b) that only clean records are to be utilised in the email campaign.
4.2 A Publisher alternative may be considered if full reporting is available to iCumulus upon request.
- Campaign Tracking
5.1. The Publisher agrees to the campaign statistics as presented via the tracking platform Atmosphere LM. All campaigns will be tracked at Network Level Logins will be provided.
- Campaign Requirements
6.1. Testing - Prior to any email campaign launch we must complete a rigorous testing process whereby the Client’s email creative and the Publisher’s sending criteria have been checked until approval from the Client has been granted. iCumulus will facilitate this process with the Publisher [and any Network Publisher]. All Network Publishers must adhere to the same process. Emails must be received directly to iCumulus. iCumulus will provide an email address.
6.2. The key elements of testing are:
- (a) Spam Compliance
- (b) Tracking
- (c) Creative rendering
6.3. The Publisher agrees that each email address used in a campaign will be a unique email address with a valid IP address connected with that unique email address.
- Prohibited Traffic sources
7.1. The following traffic source categories are not allowed [to be used by the Publisher (and any Network Publisher)] under any circumstances (Prohibited Sources):
- (a) Adult sites
- (b) Gaming or gambling
- (c) Content unlocking
- (d) Scam site – Facebook or otherwise
- (e) Incentivised to respond to offers
- Notification of Breach
8.1. The Publisher agrees to notify iCumulus of any detected use of a Prohibited Source as indicated in clause 7 within 1 business day of detection by the Publisher.
- Confidential Information
9.1. "Confidential Information" means all data and other information of whatever nature that the parties provide to each other under the terms of this Agreement but excludes information known to either party prior to the date it was provided by the disclosing party and information which was bona fide obtained from a third party who lawfully possessed the Confidential Information.
9.2. iCumulus and the Publisher agree to:
(a) keep confidential any Confidential Information which has been or which may be disclosed to them or which they may obtain or acquire during the Term.
(b) not copy any Confidential Information without the prior written consent of the other.
(c) not use the Confidential Information for any purpose other than for fulfilling their obligations under this Agreement.
(d) not disclose the Confidential Information to any third party without the prior written consent of the other, except that disclosure may be made to such of its employees on a need-to-know basis on the condition that all necessary steps are taken to ensure that those employees to whom the Confidential Information is disclosed, observe the requirements of this clause.
- Indemnity
10.1. The Publisher agrees to indemnify iCumulus for any loss, damage, costs (including legal costs) and other expenses suffered by iCumulus arising from or in connection with:
(a) any breach of this Agreement, including (but not limited to) any breach of warranty by the Publisher (whether given by the Publisher on its own behalf or on behalf of a Network Publisher);
(b) any breach of the law by the Publisher or a Network Publisher;
(c) any negligence of the Publisher or a Network Publisher; and
(d) any payment made to any client of iCumulus or any third party as a result of any claim by or judgment or settlement in favour of that client or third party because of or in connection with any default or defect in the services supplied by the Publisher (or a Network Publisher) to iCumulus under this Agreement.
10.2. The indemnity in clause 10.1 will continue to apply notwithstanding the termination or expiry of this Agreement.
- Invalidity
11.1. If any part of this Agreement is found to be invalid or unenforceable by any Court or other competent body, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
- Force Majeure
12.1. "Force Majeure" means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations.
12.2. Neither party will be liable for any delay or failure in the performance of any of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.
- Dispute Resolution
13.1. If a dispute arises from this Agreement, a party to this Agreement must not commence court or arbitration proceedings relating to the dispute unless that party has participated in mediation in accordance with this clause. This clause does not apply to an application for urgent interlocutory relief.
13.2. A party to this Agreement claiming that a dispute has arisen from the Agreement (the Dispute) must give a written notice specifying the nature of the Dispute (the Notice) to the other party.
13.3. Any mediation shall be held in Sydney before one mediator mutually agreeable to the parties in accordance with the Mediation Rules of The Law Society of New South Wales. If the parties are unable to appoint a mediator within seven (7) days of one party giving Notice, the parties agree that the President of The Law Society of New South Wales will appoint the mediator.
13.4. If the matter has not been settled by mediation within thirty (30) days of the date of the appointment of the mediator, the matter shall be referred to arbitration before a single arbitrator pursuant to the ACDC Guidelines for Commercial Mediation. Such arbitration shall take place in Sydney, Australia.
- Law and Jurisdiction
14.1. This Agreement is governed by the laws of New South Wales. The courts of New South Wales have non-exclusive jurisdiction over any claim or matter which might arise out of or in connection with this Agreement.
- Invoicing
15.1. All communication in relation to finance are to be sent to – finance@icumulus.com.au or the email address
15.2. Email campaigns - are reported through Atmosphere (ALM) - please invoice us off the figures you will see when log into Buyer portal where all the current campaigns are listed.
15.3. Please state the IO number of each campaign on the invoice to us – our IO number commences with iC00XXXX
15.4. Mark our invoices on 45 days payment terms from the end of the month (or 60 days if invoiced on delivery) – if it has not been explained already a small proportion of our campaigns come from media agencies where they will only pay us in 45 days from the end of the month.
15.5. If your payment terms have a different requirement, please advise ASAP
15.6. (6 digits) Electronic payments – we will pay directly into your account if you require any further payment method please advise in advance
15.7. Make sure the banking details are included on the invoice
Note: All invoices will be billed and paid in AUD.
- Counterparts
16.1. This Agreement may be executed in counterparts. All executed counterparts together constitute one document. A party may execute this Agreement by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.
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