The E-mail List Management Opportunity
Website operators and other online businesses frequently amass a very valuable, targeted database of e-mail addresses in the course of operating their respective businesses. Where permitted by the privacy policy (and the specific website registration consent language) associated with the applicable website or venture, that database can be shared by the database owner (“list owner”) with third party companies (“list managers”) that specialize in e-mail marketing to client databases in order to create a revenue sharing business opportunity.
Typically, in connection with an e-mail list management arrangement, the list managers select the offers and advertisements made available by third party advertisers and deliver those advertisements, via e-mail, to the databases owned by their respective list owner clients.
Entering into an e-mail list management agreement with a reputable list manager can be an effective means of enabling list owners to maximize the value of their consumer databases without actually incurring the expense associated with hiring personnel familiar with e-mail marketing and establishing, monitoring and maintaining relationships with third party advertisers.
However, it is essential that parties interested in pursuing these types of relationships, whether as a list manager or list owner, utilize well-crafted e-mail list management agreements in order to reduce exposure and potential liability, while maximizing revenue. With the right contracts in place, e-mail list management relationships offer substantial lucrative upside, with very little risk.
Manager on Duty
The primary goal for the list manager in creating an e-mail list management agreement should be to ensure that the list owner remains fully liable for any and all matters relating to the collection of the database(s), and the sharing of the database with the list manager for the marketing purposes contemplated by the list management relationship.
In order to achieve this, the list manager should require that the list owner represent and warrant in the -mail list management agreement that the list owner’s data collection and sharing practices comply with all applicable laws including, without limitation, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”).
For Rent by Owner
List owners should have two overarching priorities when drafting an e-mail list management agreement. First, list owners should seek to ensure that the list manager represents that its e-mail marketing activities will comply with all applicable laws (including CAN-SPAM) and that the list manager will remain solely responsible for any and all e-mail marketing activities associated with its use of the database.
Second, list owners should require clear, strong language regarding the list owner’s continued exclusive ownership of the database that is licensed (on a limited basis) to the list manager, not sold.
Making a List, Checking it Twice
Without strict rules ensuring each party’s legal compliance in connection with the data collection, sharing and marketing practices associated with an e-mail list management relationship, there is an increased likelihood that you, as either a list owner or list manager, will suffer significant liability.
Under these circumstances, it is highly recommended that you retain qualified legal counsel to ensure that any e-mail list management agreement that you intend to use, or currently use, is drafted and/or revised, as applicable, in order to ensure that you are fully protected.
If you are interested in learning more about this topic or require the preparation, or negotiation, of e-mail list management agreements, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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