Email marketing terms and conditions

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Provider’s services shall be governed by these Terms and Conditions, and the Provider will ask the Client for the Client’s express written acceptance of these Terms and Conditions before providing any such services to the Client.

TERMS AND CONDITIONS

  1. Definitions

1.1    Except to the extent expressly provided otherwise, in these Terms and Conditions:

Assigned Deliverables” means those Deliverables (excluding the Third Party Materials and the Client Materials) the rights in which are to be assigned (rather than licensed) by the Provider to the Client under Clause 10, as specified in Section 4 of the Statement of Work;

Business Day” means any weekday other than a bank or public holiday in England;

Business Hours” means the hours of 09:00 to 18:00 GMT/BST on a Business Day;

Charges” means the following amounts:

(a)    the amounts specified in Section 7 of the Statement of Work;

(b)    such amounts as may be agreed in writing by the parties from time to time; and

(c)    amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Client before the date of the Contract) by the time spent by the Provider’s personnel performing the Services (rounded down by the Provider to the nearest quarter hour);

Client” means the person or entity identified as such in Section 1 of the Statement of Work;

Client Confidential Information” means:

(a)    any information disclosed by or on behalf of David Henry Marketing the Client to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Provider (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

Client Indemnity Event” has the meaning given to it in Clause 18.3;

Client Materials” means all works and materials supplied by or on behalf of the Client to the Provider for incorporation into the Deliverables or for some other use in connection with the Services;

Client Trade Marks” means the following registered and unregistered

trade marks of the Client:

Client Websites” means any website or websites of the Client in respect of which the Services are provided or in respect of which the Provider has an obligation to provide the Services;

Confidential Information” means the Provider Confidential Information and the Client Confidential Information;

Contract” means a particular contract made under these Terms and Conditions between the Provider and the Client;

Effective Date” means the date of execution of the Contract;

Email Marketing Platform” means the Provider’s web-based platform enabling customers to create and manage email marketing lists and email marketing campaigns;

Email Marketing Services” means some or all of the following services as specified in Section 3 of the Statement of Work: assisting with and advising upon the Client’s email marketing strategy; designing, in consultation with the Client, the forms, emails and web pages to be used in connection with email marketing lists and campaigns; managing the Client’s email marketing lists; running the Client’s email marketing campaigns, including sending emails to addresses in the Client’s email marketing lists; and providing the Client with written reports about these services detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Licensed Deliverables” means the Deliverables excluding the Assigned Deliverables, the Third Party Materials and the Client Materials;

Minimum Term” means, in respect of the Contract, the period of 12 months beginning on the Effective Date OR [the period specified in Section 2 of the Statement of Work;

Online Account” means any user or customer account on any third party website, or on any third party software application accessible via the internet, that is used by the Provider in the course of providing the Services;

Permitted Purpose” means [specify purpose or purposes];

Personal Data” has the meaning given to it in the Data Protection Act 1998;

Provider” means David Henry Marketing having its registered office at 5 Spencer Green, Whiston, Rotherham, South Yorkshire, England

Provider Confidential Information” means:

(a)    any information disclosed by or on behalf of the Provider to the Client during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Client (acting reasonably) to be confidential; and

(b)    the terms of the Contract;

Provider Indemnity Event” has the meaning given to it in Clause 18.1;

Statement of Work” means a written statement of work agreed by or on behalf of each of the parties;

Term” means the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

Terms and Conditions” means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions, Schedule 1 (Acceptable Use Policy) and the Statement of Work, including any amendments to that documentation from time to time; and

Third Party Materials” means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 4 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables.

  1. Term

2.1    The Contract shall come into force upon the Effective Date.

2.2    The Contract shall continue in force indefinitely subject to termination in accordance with Clause 21 or any other provision of these Terms and Conditions.

2.3    Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.

  1. Email Marketing Services

3.1    The Provider shall provide the Email Marketing Services to the Client during the Term.

3.2    The Client shall ensure that any email addresses and associated personal information provided by or on behalf of the Client to the Provider for use in connection with the Email Marketing Services has been collected in accordance with applicable law, and that the use of such information by the Provider in accordance with these Terms and Conditions or the instructions of the Client will not breach any applicable law.

  1. Email Marketing Platform

4.1    From the Effective Date until the end of the Term, the Provider shall make the Email Marketing Platform available to the Client via the internet in accordance with this Clause 4.

4.2    The Provider shall ensure that the Email Marketing Platform as available to the Client includes the following functionality (along with such other functionality as the Provider may in its sole discretion determine from time to time):

(a)    facilities to design email marketing lists (including custom fields) and to create, edit, manage and delete such lists, and to import records into such lists;

(b)    a subscription system providing for the completion and submission of a sign-up form, the sending of a confirmation email and the clicking of a confirmation link in that email, and the redirection of a user who has clicked a confirmation link to a “subscription success” page and the sending of an email confirming a successful subscription;

(c)    an unsubscribe system providing for unsubscribe links in all emails sent by the email marketing system, unsubscribe links to be included on the Client’s website and the redirection of a user who has clicked an unsubscribe link to an “unsubscribe success” page;

(d)    the ability to customise the forms, emails and web pages that comprise the subscription and unsubscribe processes;

(e)    the automatic removal from the the Client’s email marketing lists of records containing duplicate email addresses;

(f)    the facility to design and create plain text and HTML marketing emails, including variables representing data from email marketing list fields, and to send such emails to the email addresses in the Client’s email marketing lists; and

(g)    the facility to monitor analytics data generated by a mailing detailing numbers of subscriptions and unsubscribes during each calendar month, and numbers of emails sent, returned and opened during each mailing.

4.3    The Client must comply with Schedule 1 (Acceptable Use Policy) in respect of its use of the Email Marketing Platform.

4.4    In this Clause 4, “uptime” means the percentage of time during a given period when the Email Marketing Platform is available at the gateway between public internet and the network of the hosting services provider for the Email Marketing Platform.

4.5    The Provider shall use reasonable endeavours to ensure that the uptime for the Email Marketing Platform is at least [99.9% during each calendar month].

4.6    The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology

4.7    The Provider shall report uptime measurements to the Client in writing, in respect of each calendar month, within 10 Business Days following the end of the relevant calendar month.

4.8    The Provider may undertake scheduled maintenance in respect of the Email Marketing Platform outside Business Hours. Where practicable the Provider shall give to the Client at least 5 Business Days’ prior written notice of such scheduled maintenance. The Provider must ensure that scheduled maintenance does not exceed 8 hours in aggregate in each calendar month during the Term.

4.9    Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Clause 4.5:

(a)    a Force Majeure Event;

(b)    a fault or failure of the internet or any public telecommunications network;

(c)    a fault or failure of the Provider’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;

(d)    a fault or failure of the Client’s computer systems or networks;

(e)    any breach by the Client of the Contract; or

(f)    scheduled maintenance carried out in accordance with the Contract.

  1. Client obligations

5.1    Save to the extent that the parties have agreed otherwise in writing, the Client must provide to the Provider, or procure for the Provider, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

as are reasonably necessary to enable the Provider to perform its obligations under the Contract.

5.2    The Client shall provide to the Provider:

(a)    assistance in determining appropriate keywords and keyword phrases to be targeted using the Services;

(b)    such articles, blog posts and other written materials as the Provider may reasonably request in connection with the performance of the Services;

(c)    direct access to analytical data concerning the Client’s relevant websites, such as data concerning referral sources, visitor activity, website usage, conversion rates and similar; and

(d)    an email account using a relevant Client domain name.

5.3    The Client acknowledges that the promotion of a website may lead to increased bandwidth, processing capacity and/or storage requirements for the website, and the Client shall be responsible for arranging and paying for any services required to meet such requirements.

  1. Client Materials

6.1    The Client must supply to the Provider the Client Materials specified in Section 6 of the Statement of Work, in accordance with the timetable specified in Section 5 of the Statement of Work.

6.2    The Client hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.

6.3    The Client warrants to the Provider that the Client Materials OR [the Client Materials when used by the Provider in accordance with these Terms and Conditions will not infringe the Intellectual Property Rights or other legal rights] of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.

  1. Client Websites

7.1    The Client shall provide to the Provider, promptly following receipt of a written request from the Provider, the facilities to access and make changes to the Client Websites to the extent reasonably necessary to enable the Provider to fulfil its obligations under these Terms and Conditions.

7.2    The Client must not reverse, revert or materially alter any changes to the Client Websites made by or upon the instructions of the Provider in the course of providing the Services without notifying the Provider in writing in advance OR obtaining the Provider’s prior written consent.

7.3    The Client must not use the Client Websites:

(a)    to host, store, send, relay or process any material; or

(b)    for any purpose,

which is unlawful, illegal or fraudulent, or which breaches any applicable laws, regulations or legally binding codes, or infringes any third party rights, or may give rise to any form of legal action against any person.

  1. Online Accounts

8.1    The Provider shall have and retain all rights to any Online Accounts that were created by or on behalf of the Provider before the Effective Date or were used by the Provider in the connection with the fulfilment of the Provider’s obligations under these Terms and Conditions only after they had been used by the Provider to provide services to one or more third parties. The Provider shall have no obligation to provide to the Client any access to such Online Accounts, whether during or after the Term.

8.2    The Client shall have and retain all rights to any Online Accounts that are created by the Client or by any third party on behalf of the Client, whether or not the Client provides to the Provider login details to enable the Provider to utilise those Online Accounts. The Provider must not take any action that will prevent the Client from continuing to access and use such Online Accounts. The Provider must not without the prior written consent of the Client use such Online Accounts after the end of the Term.

8.3    If the Provider creates any Online Accounts after the Effective Date (excluding accounts that the Provider uses to provide services to a third party customer before use in connection with the fulfilment of the Provider’s obligations under these Terms and Conditions), then the Client shall have and retain all rights to such Online Accounts. The Provider must promptly following receipt of a written request from the Client supply to the Client login details for such Online Accounts. If the Provider has not previously done so, the Provider must promptly following the end of the Term supply to the Client login details for such Online Accounts, and the Provider must not itself use any such Online Accounts after the end of the Term without the prior written consent of the Client.

8.4    The parties may from time to time agree in writing derogations from the rules set out in this Clause 8 relating to the Online Accounts.

  1. Client Trade Marks

9.1    Within 10 Business Days following the Effective Date, the Client shall provide or make available to the Provider representations of the Client Trade Marks in a digital format reasonably satisfactory to the Provider.

9.2    The Client grants to the Provider a non-exclusive licence to use the Client Trade Marks during the Term for the purposes (and only for the purposes) of enabling the provision of the Services to the Client, and providing that the Client has given its prior written consent in relation to the type of use in question[, or the Client has not objected to the type of use within the period of 10 Business Days following receipt of a written notice from the Provider detailing the type of use in question.

9.3    The Provider must ensure that all uses of the Client Trade Marks will be in accordance with any style guide supplied or made available by the Client to the Provider.

9.4    The Provider shall ensure that all instances of the use of the Client Trade Marks will be of a reasonable professional standard.

9.5    Notwithstanding any other provision of these Terms and Conditions, the Provider must not use the Client Trade Marks in any way that:

(a)    may invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting the Client Trade Marks;

(b)    may assist with any application to cancel or invalidate any registered Client Trade Mark or any opposition to any application by the Client to register any Client Trade Mark;

(c)    is likely to cause harm to the goodwill attaching to any of the Client Trade Marks;

(d)    may prejudice the right or title of the Client to the Client Trade Marks; or

(e)    is liable to bring the Client or any Client Trade Mark into disrepute.

9.6    All goodwill arising as a result of, or in relation to, the use of the Client Trade Marks will accrue exclusively to the Client.

9.7    If the Client considers that a use of the Client Trade Marks by the Provider breaches the provisions of this Clause 9[ or is otherwise undesirable], the Client may issue a notice to the Provider requesting that such usage cease, and the Provider must ensure that such usage will cease within [5 Business Days] following receipt of such a notice.

9.8    The Client warrants to the Provider that the use by the Provider of the Client Trade Marks in accordance with these Terms and Conditions will not infringe any person’s Intellectual Property Rights in any jurisdiction and under any applicable law.

9.9    The Provider will not by virtue of the Contract obtain or claim any right, title or interest in or to the Client Trade Marks except as expressly set out in these Terms and Conditions.

9.10  Within 10 Business Days following the termination of the Contract, the Provider must cease to use the Client Trade Marks and must:

(a)    remove or permanently obscure Client Trade Marks that appear on any works and materials in the possession or control of the Provider; and

(b)    to the extent that neither removal nor permanent obscuring is practicable, deliver to the Client or destroy (as the [Client] OR [Provider] shall determine) all those works and materials in the possession or control of the Provider on which the Client Trade Marks appear.

  1. Intellectual Property Rights

10.1  The Provider hereby assigns to the Client with full title guarantee all of the Intellectual Property Rights in the Deliverables, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term, excluding [the Intellectual Property Rights in the Client Materials and the Third Party Materials. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights.

10.4  The Provider must use reasonable endeavours

(a)    do or procure the doing of all acts; and

(b)    execute or procure the execution of all documents,

that the Client may reasonably request from time to time in order to perfect or confirm the Client’s ownership of the rights assigned by these Terms and Conditions.

  1. Reputation and goodwill

11.1  The Provider undertakes that it will not, during the Term and without the prior written consent of the Client, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Client.

11.2  The Client undertakes that it will not, during the Term and without the prior written consent of the Provider, take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the Provider.

  1. Charges

12.1  The Client shall pay the Charges to the Provider in accordance with these Terms and Conditions.

12.2  If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Client’s written consent before performing Services that result in any estimate of time-based Charges given to the Client being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Client agrees otherwise in writing, the Client shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 12.2.

12.3  All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes

12.4  The Provider may elect to vary any element of the Charges by giving to the Client not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of the Contract, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

  1. Timesheets

13.1  The Provider must:

(a)    ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete reasonably detailed records of their time spent providing those Services; and

(b)    retain such records during the Term, and for a period of at least 12 months] following the end of the Term.

13.2  Within 10 Business Days following receipt of a written request, the Provider shall supply to the Client copies of such of the timesheets referred to in Clause 13.1 and in the Provider’s possession or control as the Client may specify in that written request.

  1. Payments

14.1  The Provider shall issue invoices for the Charges to the Client from time to time during the Term on or after the invoicing dates set out in Section 7 of the Statement of Work

14.2  The Client must pay the Charges to the Provider within the period of 15 days following the issue of an invoice in accordance with this Clause 14

14.3  The Client must pay the Charges by debit card, credit card, direct debit, bank transfer, Paypal or cheque (using such payment details as are notified by the Provider to the Client from time to time).

14.4  If the Client does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:

(a)    charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

  1. Confidentiality obligations

15.1  The Provider must:

(a)    keep the Client Confidential Information strictly confidential;

(b)    not disclose the Client Confidential Information to any person without the Client’s prior written consent, and then only under conditions of confidentiality approved in writing by the Client

(c)    use the same degree of care to protect the confidentiality of the Client Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Client Confidential Information; and

(e)    not use any of the Client Confidential Information for any purpose other than the Permitted Purpose.

15.2  The Client must:

(a)    keep the Provider Confidential Information strictly confidential;

(b)    not disclose the Provider Confidential Information to any person without the Provider’s prior written consent, and then only under conditions of confidentiality [approved in writing by the Provider

(c)    use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Client uses to protect the Client’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Provider Confidential Information; and

(e)    not use any of the Provider Confidential Information for any purpose other than the Permitted Purpose.

15.3  Notwithstanding Clauses 15.1 and 15.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

15.4  No obligations are imposed by this Clause 15 with respect to a party’s Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)    is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

15.5  The restrictions in this Clause 15 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

15.6  Upon the termination of the Contract, each party must immediately cease to use the other party’s Confidential Information.

15.7  Following the termination of the Contract, and within 5 Business Days following the date of receipt of a written request from the other party the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

15.8  The provisions of this Clause 15 shall continue in force indefinitely following the termination of the

  1. Data protection

16.1  The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).

16.2  To the extent that the Provider processes Personal Data disclosed by the Client, the Provider warrants that:

(a)    it will act only on instructions from the Client in relation to the processing of that Personal Data;

(b)    it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and

(c)    it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Client.

  1. Warranties

17.1  The Provider shall provide the Services with reasonable skill and care 17.2       The Provider warrants to the Client that:

(a)    the Provider has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under these Terms and Conditions; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

17.3  The Client warrants to the Provider that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.

17.4  All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

  1. Indemnities

18.1  The Provider shall indemnify and shall keep indemnified the Client against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Client and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a “Provider Indemnity Event“).

18.2  The Client must:

(a)    upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b)    provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;

(c)    allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and

(d)    not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,

without prejudice to the Provider’s obligations under Clause 18.1

18.3  The Client shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Client of these Terms and Conditions

(a “Client Indemnity Event“).

18.4  The Provider must:

(a)    upon becoming aware of an actual or potential Client Indemnity Event, notify the Client;

(b)    provide to the Client all such assistance as may be reasonably requested by the Client in relation to the Client Indemnity Event;

(c)    allow the Client the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Client Indemnity Event; and

(d)    not admit liability to any third party in connection with the Client Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Client Indemnity Event without the prior written consent of the Client,

without prejudice to the Client’s obligations under Clause 18.3 OR [and the Client’s obligation to indemnify the Provider under Clause 18.3 shall not apply unless the Provider complies with the requirements of this Clause 18.4.

18.5  The indemnity protection set out in this Clause 18 shall be subject to the limitations and exclusions of liability set out in the Contract

  1. Limitations and exclusions of liability

19.1  Nothing in these Terms and Conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

19.2  The limitations and exclusions of liability set out in this Clause 19 and elsewhere in these Terms and Conditions:

(a)    are subject to Clause 19.1; and

(b)    govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

19.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

19.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

19.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

19.6  Neither party shall be liable to the other party] in respect of any loss of use or production.

19.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

19.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

19.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

19.10 The liability of each party to the other party under the Contract in respect of any event or series of related events shall not exceed the greater of:

(a)    [£100]; and

(b)    the total amount paid and payable by the Client to the Provider under the Contract in the 3 month period preceding the commencement of the event or events.

19.11 The aggregate liability of each party to the other party under the Contract shall not exceed the greater of:

(a)    [£100]; and

(b)    the total amount paid and payable by the Client to the Provider under the Contract.

  1. Force Majeure Event

20.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

20.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

20.3  A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  1. Termination

21.3  Either party may terminate the Contract immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

(d)    if that other party is an individual:

(i)     that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)    that other party is the subject of a bankruptcy petition or order.

21.4  The Provider may terminate the Contract immediately by giving written notice to the Client if:

(a)    any amount due to be paid by the Client to the Provider under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Provider has given to the Client at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 21.4.

  1. Effects of termination

22.1  Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 8, 9.10, 10.1, 10.2, 10.4, 13, 14.2, 14.4, 15, 18, 19, 22, 23.2, 26 and 27.

22.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.

22.3  Within 10 Business Days following the date of effective termination of the Contract, the Provider shall provide to the Client a copy of each non-trivial dataset directly relating to the Client that is reasonably available and accessible to the Provider and has been generated by the Provider in the course of performing its obligations under these Terms and Conditions in a format determined by the Provider that the Client must pay, in advance if so requested by the Provider, the Provider’s reasonable costs and expesnses in relation to the performance of the Provider’s obligations under this Clause 22.3].

  1. Status of Provider

23.1  The Provider is not an employee of the Client, but an independent contractor.

23.2  The termination of the Contract will not constitute unfair dismissal; nor will the Provider be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.

  1. Notices

24.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.

24.2  Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 8 of the Statement of Work):

(a)    delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;

providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

24.3  The addressee and contact details set out in Section 8 of the Statement of Work may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 24.

  1. Subcontracting

25.1  The Provider must not subcontract any of its obligations under the Contract without the prior written consent of the Client, providing that the Client must not unreasonably withhold or delay the giving of such consent.

25.2  The Provider shall remain responsible to the Client for the performance of any subcontracted obligations.

  1. General

26.1  No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.

26.2  If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

26.3  The Contract may not be varied except by a written document signed by or on behalf of each of the parties.

26.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.

26.5  The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.

26.6  Subject to Clause 19.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

26.7  These Terms and Conditions shall be governed by and construed in accordance with English law.

26.8  The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.

  1. Interpretation

27.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

27.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

27.3  References in these Terms and Conditions to “calendar months” are to [the 12 named periods (January, February and so on) into which a year is divided].

27.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

SCHEDULE 1 (ACCEPTABLE USE POLICY)

  1. Introduction

1.1    This acceptable use policy (the “Policy“) sets out the rules governing:

(a)    the use of [the website at https://inboxingpro.com, any successor website, and the services available on that website or any successor website] (the “Services“); and

(b)    the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).

1.2    References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to David Henry Marketing (and “we” and “our” should be construed accordingly).

1.3    By using the Services, you agree to the rules set out in this Policy.

1.4    We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5    You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are [at least 18 years of age].

  1. No spam

2.1    Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

2.2    You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.

2.3    You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar letters, schemes or programs.

  1. General usage rules

3.1    You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

3.2    You must not use the Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.3    You must ensure that all Content complies with the provisions of this Policy.

  1. Unlawful Content

4.1    Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

4.2    Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)    be libellous or maliciously false;

(b)    be obscene or indecent;

(c)    infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)    infringe any right of confidence, right of privacy or right under data protection legislation;

(e)    constitute negligent advice or contain any negligent statement;

(f)    constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g)    be in contempt of any court, or in breach of any court order;

(h)    constitute a breach of racial or religious hatred or discrimination legislation;

(i)     be blasphemous;

(j)     constitute a breach of official secrets legislation; or

(k)    constitute a breach of any contractual obligation owed to any person.

4.3    You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

  1. Graphic material

5.1    Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.

5.2    Content must not depict violence in an explicit, graphic or gratuitous manner.

5.3    Content must not be pornographic or sexually explicit.

  1. Monitoring

6.1    You acknowledge that we do not actively monitor the Content or the use of the Services.

  1. Harmful software

7.1    The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

7.2    The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.