Information About Us
("Elastic Grid web site"), is operated by Elastic Digital Pty Ltd
(the "Company"), a company registered in Australia (company number
CAN 092 238 018) whose principal place of business is at 59 Great Buckingham Street,
Redfern, NSW 2016, Australia.
The Company together with its affiliates and subsidiaries, provides vendors, distributors
and call centres ("Principals") a service (the "Elastic Grid")
that hosts multiple Internet marketing campaigns ("campaigns")
for the customers and prospects ("end users") of their resellers,
dealers or business partners ("Partner"). From time to time these
Principals will request the Company to produce campaigns for their Partners. These
campaigns will be hosted on the Elastic Grid web site. To facilitate the distribution
of these campaigns, Partners will load a confidential database of end user contacts
("end user database") onto the Elastic Grid for the sole purpose
of distributing the campaigns developed for Principals by the Company.
"Data Protection Legislation" all applicable laws or regulations
relating to the processing of personal data and privacy in any jurisdiction in which
the Partner operates and/or end-users are located (including, but not limited to,
the Australian Privacy Act, 1988 (CWTH) , the USA CAN SPAM Act, Japanese Act on
the Protection of Personal Information 2005, the UK Data Protection Act 1998, the
EU Data Protection Directive (95/46/EC), the UK Regulation of Investigatory Powers
Act 2000, the Electronic Communications Data Protection Directive (2002/58/EC),
the UK Privacy and Electronic Communications (EC Directive) Regulations 2003, the
German Federal Data Protection Act (Bundesdatenscutzgesetz), the Data Protection
Acts of the German Federal States (Landesdatenschutzgesetze), the German
Telecommunications Act (Telekommunikationsgesetz) and any equivalent or analogous
laws in any applicable jurisdiction) including any applicable guidance and/or codes
of practice issued by any relevant authority from time to time.
"Personal Data" and "Data Subject" shall have
the meaning given in the applicable Data Protection Legislation.
"Partner Information" means all electronic data or information
submitted by you to the Elastic Grid service and/or the Company, including but not
limited to, any Personal Data.
1. In consideration of this agreement the Company:
1.1. Acknowledges that all of the information provided by a Partner to the Company
is confidential and is being provided to the Company in order to enable the Company
to perform its obligations under this agreement.
1.2. Acknowledges that it is a condition of a Partner supplying the confidential
information to the Company that the Company gives this undertaking both on behalf
of itself and on behalf of any other person who is under the control of the Company.
1.3. Agrees to treat as confidential all information relating to a Partner's end
user databases or customer lists provided by Partners and acknowledges that the
information so supplied remains the property of the Partner.
1.4. Agrees that the logo and any other graphic material supplied by the Partner
remains the property of the Partner and the Company agrees to treat as confidential
all such material supplied by the Partner.
1.5. Undertakes that it will not without the prior written consent of the Partner
disclose any of the confidential information to any other person including Principals
with the exception of the following statistics, which will be provided to Principals:
1.5.1. number of site visits;
1.5.2. number of Calls To Action activated;
1.5.3. number of leads generated.
1.6. Undertakes that it will it not use or permit the use of any such information
by any officer, employee or agent of the Company or any other person under its control
for any purpose other than for the purposes for which it is intended.
1.7. Acknowledges that the execution of this agreement does not oblige the Partner
to disclose any particular information to the Company and the Partner shall retain
discretion as to the confidential information, which it discloses to the Company.
1.8. Warrants that, to the extent it (and shall procure that its third party subcontractor(s))
processes any Personal Data on behalf of the Partner:
1.8.1 it shall act only on written instructions from the Partner; and
1.8.2 it has in place appropriate technical and organisational security measures
acceptable to the Partner against unauthorised or unlawful processing of Personal
Data and against accidental loss or destruction of, or damage to, Personal Data.
1.9. May give its affiliates and subcontractors outside of the European Economic
Area ("EEA") access to Personal Data you store on the Elastic Grid.
For example, the Company may provide its US affiliates and subcontractors with access
to the Elastic Grid so that the US affiliates may provide support to you.
1.10. Agrees that it will not (and shall procure that its third party subcontractor(s)
shall not) transfer Personal Data that is stored on the Elastic Grid to any subcontractor
or affiliate outside of the EEA, except to the extent necessary for performance
of the Campaign as set out in this agreement and provided that person meets the
requirements stated below during the entire time that it has access to the personal
1.10.1 for personal data for which the Company are a "controller" under any applicable
Data Protection Legislation, the affiliate or subcontractor to whom we transfer
the Personal Data (i) is located in a country for which the European Commission
has made a positive finding of adequacy, (ii) is located in the United States and
has certified to the United States Department of Commerce that it adheres to the
Safe Harbor framework developed by the United States Department of Commerce in coordination
with the European Union, or (iii) has signed the standard contractual model clauses
for the transfer of personal data from either: (a) the Company to a processor, or
(b) the Company to a controller who is based in a country outside the EEA that is
not recognised as offering an adequate level of data protection; and
1.10.2 for personal data for which the Company are a “processor” under the applicable
Data Protection Legislation, the affiliate or subcontractor that has access to the
Elastic Grid has signed a data processing agreement with the Company.
1.11. Undertakes that if the Company (or its third party subcontractor(s)) receives
a request from a Data Subject for access to Personal Data or any other request relating
to Partner’s obligations under the Data Protection Legislation the Company shall
(and shall procure that its third party subcontractor(s) shall):
a as soon as reasonably practicable notify Partner; and
b provide all reasonable co-operation and assistance to Partner in relation to any
such complaint or request:
(i) providing Partner with full details of any such request; and
(ii) providing Partner with any Personal Data it holds in relation to a Data Subject
in a form reasonably specified by Partner and within 20 days of receipt of the request
from a Data Subject.
1.12. Undertakes that it will return or delete all end user databases as instructed
by the Partner (at its sole discretion), customer lists or other material supplied
by the Partner from its systems at the termination each campaign unless otherwise
directed by the Partner.
1.13. Except to the extent required by law, undertakes not to retain any copies
of any such end user databases, lists or material unless otherwise specified by
2. The Partner:
2.1. Warrants to the Company that:
2.1.1 all Partner Information, including (but not limited to) any names, email address,
telephone numbers and address details contained in the Partner's end user database
or customer list provided to the Company comply with the conditions of all applicable
Data Protection Legislation and the Partner has obtained all necessary consents,
approvals and/or licences for the use and processing of such Partner Information
as set out in this agreement; and
2.1.2 it owns all rights, title and interest in and to all of the Partner Information
(including any end-user database or customer list) and shall have sole responsibility
for the legality, reliability, integrity, accuracy and quality of such Partner Information
(including any end-user database or customer list) and that all the entries in the
Partner’s end-user database or customer list are corporate subscribers.
2.2. Agrees that all e mails sent via the Elastic Grid will contain:
2.2.1. a one click unsubscribe link; and
2.2.2. non Internet contact information of the Partner, including Partner's address,
telephone number and email address.
2.3. Agrees to fully and effectively indemnify (and keep indemnified) and hereby
indemnifies the Company against all losses, liabilities, damages and expenses incurred
by or awarded against the Company as a result of any breach, action, suit, legal
proceedings, claim or demand that may be taken against the Company arising for any
breach of clause 2.1 above.
2.4. Agrees that the Company may refuse to distribute information on campaigns to
any Partners or load any Partner's database on the Elastic Grid where such information
for distribution violates any Data Protection Legislation, direct marketing or anti
spam related legislation, regulations or codes of practice in any applicable jurisdiction
(including, but not limited to the United States of America, Australia and/or any
applicable member state of European Union).
2.5. Agrees that all the intellectual property rights in the Elastic Grid web site,
any graphic material supplied by the Company and assembly and display of such material
("Company Material") remains the property of the Company. The Partner
agrees to treat as confidential all such Company Material and processes supplied
by the Company.
2.6. Agrees that it will not give any third party access to any confidential information,
Company Material or processes supplied by the Company without prior written consent
of the Company.
2.7. Acknowledges and agrees that the Company stores and processes Partner Data
provided to the Company in accordance with the
2.8. Agrees to export any contacts who have chosen to unsubscribe from your marketing
communications and ensure your master contact database is updated in accordance with
your region’s data protection laws.
3. It is acknowledged and agreed by and between the parties to this agreement:
3.1. The undertakings given by the Company in this agreement will continue but will
not apply to any information:
3.1.1. which is in the public domain at the time of disclosure of such information
by the Partner; or
3.1.2. which becomes part of the public domain at any time in the future; or
3.1.3. which the Company can establish was known to the Company at the time of disclosure
by the Partner to the Company; or
3.1.4. which the Company is compelled by law to disclose.
4. The Company undertakes with the Partner to carry out the tasks more particularly
referred to in the "What's Included" page of this web site in a proper and workmanlike
manner and without avoidable delay.
5. In consideration of the Company providing the services required by the Partner
under this agreement the Partner warrants and agrees with the Company to pay the
fees more particularly set out in the Pricing Page of this web site. There will
be no refund of these fees after the Company has set up the Partner on the Elastic
Grid which normally occurs 24 to 48 hours after payment is received.
6. Governing Law for EEA entities. Where the Partner is incorporated within the
EEA, this agreement shall be governed by and construed in accordance with the laws
of England and Wales and the parties agree to submit to the exclusive jurisdiction
of the Courts of England. The parties expressly agree that the U.N. Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement.
7. Governing Law for Non-EEA entities. Where the Partner is incorporated within
a jurisdiction outside of the EEA, this agreement shall be governed by and construed
in accordance with the laws for the time being in force in the State of New South
Wales, Australia and the parties agree to submit to the jurisdiction of the Courts
and Tribunals of that State. The parties expressly agree that the U.N. Convention
on Contracts for the International Sale of Goods shall not apply to this Agreement.
8. No forbearance delay or indulgence by a party in enforcing the provisions of
this agreement shall prejudice or restrict the rights of that party nor shall any
waiver of those rights operate as a waiver of any subsequent breach.
9. No variation of this agreement will be effective unless in writing and signed
by both parties.
10. This agreement, and any documents referred to in it, constitute the whole agreement
between the parties and supersede any previous arrangement, understanding or agreement
between them relating to the subject matter they cover. Each of the parties acknowledges
and agrees that in entering into this agreement it does not rely on any undertaking,
promise, assurance, statement, representation, warranty or understanding (whether
in writing or not) of any person (whether party to this agreement or not) relating
to the subject matter of this agreement, other than as expressly set out in this
11. Should any part of this agreement be or become invalid, that part shall be severed
from this agreement. Such invalidity shall not affect the validity of the remaining
provisions of the agreement.