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Terms Of Use
The CAN-SPAM Act: Requirements for Commercial Emailers
The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.
The law, which became effective January 1, 2004, covers email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site. A "transactional or relationship message" - email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship - may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.
The Federal Trade Commission (FTC), the nation's consumer protection agency, is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.
What the Law Requires
Here's a rundown of the law's main provisions:
* It bans false or misleading header information. Your email's "From," "To," and routing information - including the originating domain name and email address - must be accurate and identify the person who initiated the email.
* It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
* It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.
Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it's illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
* It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.
Penalties
Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial email also is subject to laws banning false or misleading advertising.
Additional fines are provided for commercial emailers who not only violate the rules described above, but also:
* "harvest" email addresses from Web sites or Web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending email
* generate email addresses using a "dictionary attack" - combining names, letters, or numbers into multiple permutations
* use scripts or other automated ways to register for multiple email or user accounts to send commercial email
* relay emails through a computer or network without permission - for example, by taking advantage of open relays or open proxies without authorization.
The law allows the DOJ to seek criminal penalties, including imprisonment, for commercial emailers who do - or conspire to:
* use another computer without authorization and send commercial email from or through it
* use a computer to relay or retransmit multiple commercial email messages to deceive or mislead recipients or an Internet access service about the origin of the message
* falsify header information in multiple email messages and initiate the transmission of such messages
* register for multiple email accounts or domain names using information that falsifies the identity of the actual registrant
* falsely represent themselves as owners of multiple Internet Protocol addresses that are used to send commercial email messages.
Additional Rules
The FTC will issue additional rules under the CAN-SPAM Act involving the required labeling of sexually explicit commercial email and the criteria for determining "the primary purpose" of a commercial email. Look for the rule covering the labeling of sexually explicit material in April 2004; "the primary purpose" rulemaking will be complete by the end of 2004. The Act also instructs the FTC to report to Congress in summer 2004 on a National Do Not E-Mail Registry, and issue reports in the next two years on the labeling of all commercial email, the creation of a "bounty system" to promote enforcement of the law, and the effectiveness and enforcement of the CAN-SPAM Act.
See the FTC Web site at www.ftc.gov/spam for updates on implementation of the CAN-SPAM Act.
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Online Advertising Contract Terms and Conditions:
*1. ADVERTISING. The advertiser shall purchase the online advertising package at the rate listed and for the duration specified in the insertion order, which is attached and incorporated herein by reference and made a part of this agreement.
*2. POSITIONING. Except as otherwise expressly provided in the contract, positioning of advertisements on www.Where-to-eat.com, is at the sole discretion of the Where-to-Eat, Inc Advertiser acknowledges that Where-to-Eat, Inc has not made any guarantees with respect to usage statistics or levels of impressions for any advertising except where expressly stated in the attached insertion order. Where-to-Eat, Inc provides Advertiser with estimated usage only as a courtesy to the Advertiser and shall not be held liable for any claims relating to said usage statistics. Any information collected by the Where-to-Eat, Inc, or its site vendors, relating to users or Advertiser’s site (including and without limitation any personally identifiable transactional data, secure data, or demographic information relating to users of the site), shall be property of the Where-to-Eat, Inc, and Advertiser shall not obtain any rights in such information by virtue of this agreement.
*3. ACCEPTANCE OF ADVERTISEMENTS. Where-to-Eat, Inc may, at its sole discretion, reject any advertisements.
*4. CANCELLATION. There are no cancellations once a campaign begins. A campaign can be postponed or suspended by an Advertiser for a maximum of thirty (30) days. The advertiser is still liable for full amount of the contract. If campaign is postponed or suspended, Where-to-Eat, Inc cannot guarantee an exact duplication of the campaign; due to a potentially limited inventory.
*5. INDEMNIFICATION. The Advertiser agrees to defend, hold harmless and will indemnify the Where-to-Eat, Inc from all damages, costs, and expenses, of any nature whatsoever, including but not limited to reasonable attorneys’ fees, for which the Where-to-Eat, Inc and/or its affiliates and subsidiaries may become liable by reason of its publication of the Advertiser’s advertising.
*6. COPYRIGHT. All advertising, which represents the creative effort of the Where-to-Eat, Inc and/or the utilization of creativity, illustrations, labor, composition, or material furnished by it, is and remains the property of the Where-to-Eat, Inc, including all rights of copyright therein. Advertiser understands and agrees that it cannot authorize reproductions, in whole or in part, of any such advertising.
*7. TAXES. Prices do not include tax. In the event that any federal, state, or local taxes are imposed on the creation of the advertising or on the sale of advertising, such taxes shall be assumed and paid by Advertiser.
*8. PAYMENT. The Advertiser shall make payment before any campaign is initiated. Should the Where-to-Eat, Inc extend credit, payment will be made within 10 days of the billing date indicated on the Where-to-Eat, Inc’s statement. In the event that the account becomes past due, in addition to such other remedies as it may have, Where-to-Eat, Inc shall be relieved of its obligation to perform the advertising services under this contract and the full amount of the contract shall immediately become due and payable by Advertiser. The Advertiser must also reimburse Where-to-Eat, Inc for all expenses incurred in connection within the collection of amounts payable, including court costs and attorneys fees. A 10% per month late fee will be applied immediately on all past due invoices.
*9. REJECTION OF ADVERTISEMENT. Where-to-Eat, Inc reserves the right to not run any advertisement that is received and that is not in accordance with Where-to-Eat, Inc’s policies. In addition, Where-to-Eat, Inc reserves the right to reject or cancel any advertisement, order or reservation at any time and to reject any URL link embodied within any advertisement.
*10. LIMITATION ON LIABILITY. Advertiser assumes all liability for content of advertising, and agrees to hold harmless, and will indemnify Where-to-Eat, Inc from all claims, losses, judgments, and damages arising there from. Liability for typographical errors, wrong insertions, late publications, and/or non-publication, non-performance due to Acts of God, as well as all other matters Advertiser might raise relevant to this contract, is limited to the amount charged to the Advertiser by Where-to-Eat, Inc and/or its affiliates and subsidiaries for the applicable advertisement. Claims for an allowance for such matters must be made within seven (7) days of the matters first occurrence. LIMITATION OF LIABILITY. Where-to-Eat, Inc and/or its affiliates and subsidiaries liability is limited in all cases to the return of the charges made for the applicable advertising. This limitation of liability is a condition for the acceptance of any advertising by the Where-to-Eat, Inc In no event shall Where-to-Eat, Inc (www.Where-to-eat.com) be liable to advertiser or any third party for any indirect, special, or consequential damages, including but not limited to lost profits or unrealized business opportunity, arising out of this agreement or the publication of or failure to publish any advertisement, whether or not the Where-to-Eat, Inc was advised of the possibility of such damage.
*ALL RATES ARE SUBJECT TO CHANGE IN EVENT OF DISTRUBUTION OR PRINTING COST INCREASES!
*The advertiser named in this contract agrees to honor the specified literature as per its terms and conditions to each recipient and not to hold Where-to-Eat, Inc and/or its affiliates and/or subsidiaries liable for such offer made regardless of response to mailing. The advertiser authorizes Where-to-Eat, Inc and its affiliates and subsidiaries to prepare and distribute the advertising agreed to herein this contract. The advertiser acknowledges by signing this agreement that any future distributions are not cancellable for any reason by either party under the terms or conditions of this contract.
*Advertiser acknowledges and agrees that similar and competitive advertisements may be included in the same magazine, direct mail, where-to-eat dining guide and/or any other advertising medium the Where-to-Eat, Inc. offers delivered by Where-to-Eat, Inc and published on www.Where-to-eat.com.
*The advertiser represents that he/she posses the right to publish, and hereby grants to Where-to-Eat, Inc, and any of its affiliates and subsidiaries and/or publishing agents the irrevocable right and permission to reproduce throughout the United States and the rest of the world, all trademarks, tradenames, copyrighted material and other images provided by the advertiser to Where-to-Eat, Inc and/or its affiliates and subsidiaries. The Advertiser acknowledges that he/she has no right or ownership in any photograph, graphic or other image provided or arranged by Where-to-Eat, Inc and/or its affiliates and subsidiaries for the Advertiser, including any photo or image containing the Advertiser’s picture. The Advertiser hereby releases and discharges; Where-to-Eat, Inc and/or its affiliates and subsidiaries and any of their publishing agents from any and all claims and liability arising out of the publication of the Advertiser’s advertisements and any materials provided by the Advertiser to Where-to-Eat, Inc and/or its affiliates and subsidiaries.
*The Advertiser agrees that Where-to-Eat, Inc and/or its affiliates and subsidiaries liability to its advertiser shall not exceed that amount paid by said advertiser to Where-to-Eat, Inc and/or its affiliates and subsidiaries under this agreement. Any substantial errors in Where-to-Eat, Inc and/or its affiliates and subsidiaries production of advertiser’s ad, as determined by Where-to-Eat, Inc and/or its affiliates and subsidiaries, will be corrected at the next available transmission or distribution date. No cash refunds will be made. In the event it becomes necessary for, Where-to-Eat, Inc and/or its affiliates and subsidiaries, at its option, to place this agreement in the hands of an attorney or collection agency for purposes of debt collection the Advertiser agrees to pay an additional sum equal to costs of collection, including but not limited to, attorney’s and/or collection Where-to-Eat, Inc fees.
*All checks for deposit or payments shall be made to Where-to-Eat, Inc only. A $35.00 (Thirty Five Dollar) service charge will be imposed for any check returned for any reason. Where-to-Eat, Inc and/or its affiliates and subsidiaries, reserves the right to cancel any advertiser and/or distribution(s) and/or transmission(s) and to make full refund of any moneys paid. I understand that no agreements shall be made in writing or verbally with representative or agent/agency/or licensee pertaining to this agreement, unless so related in this agreement and approved by Where-to-Eat, Inc and/or its affiliates and subsidiaries.
