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Terms of Business

Terms and Conditions

These Terms and Conditions define the legal relationship between [Branded Emails](“we” / “Provider”) and our customer identified during our online sign-up process (“you”).
All contracts that we may enter into from time to time for the provision of our email branding services shall be governed by these Terms and Conditions.
We will usually ask for your express acceptance of these Terms and Conditions before providing any services to you. By requesting, using or paying for any services, you consent to these Terms and Conditions, and you agree that they will govern the provision of such services.
If you are a company or legal person, the individual accepting or agreeing to these Terms and Conditions gives that acceptance or agreement on behalf of that company or legal person, and represents to us that he or she has the legal authority to bind that company or legal person to these Terms and Conditions.
In these Terms and Conditions, some of the words and phrases we use have special meanings. These words and phrases all start with capital letters. The special meanings are set out near the end of these Terms and Conditions, in Clause 27.
Branded Emails is a company incorporated in England and Wales (company number 10221788) with its registered office at 24A Aldermans Hill, London N13 4PN. You can contact us by writing to this address or by email to directors@brandedemails.com.

1. The Contract

1.1. The Contract will come into force when you complete the online sign-up process for the Services.

1.2. Provider shall provide to you those Services ordered during the online-sign-up process, subject to these Terms and Conditions.

2. Email Branding Service

2.1. Provider hereby grants to you a worldwide, non-exclusive licence to use the Email Branding Service by means of the Supported Web Browser and/or Supported Email Clients for your internal business purposes in accordance with the Documentation during the Term.

2.2. The licence granted by Provider to you under Clause 2.1 is subject to the following limitation: the Email Branding Service may only be used by your officers, employees, agents and subcontractors.

2.3. Except to the extent expressly permitted in this Contract or required by law on a non-excludable basis, the licence granted by Provider to the you under Clause 2.1 is subject to the following prohibitions:

(a) You must not license or sub-license your right to access and use the Email Branding Service, or sell, resell, distribute, rent, lease or lend the Email Branding Service;
(b) You must not permit any unauthorised person or application to access or use the Email Branding Service;
(c) You must not use the Email Branding Service to provide services to third parties;
(d) You must not republish or redistribute any content or material from the Email Branding Service;
(e) You must not make any alteration to the Platform or the Email Branding Service;
(f) You must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or the Email Branding Service without the prior written consent of Provider;
(g) You must not use the Email Branding Service to store or transmit any malicious code, malware, attack, bugs, viruses, Trojans or similar;
(h) You must not use the Email Branding Service in any way that causes, or may cause, damage to the Email Branding Service or Platform or impairment of the availability, integrity, performance or accessibility of the Email Branding Service (including making an unreasonable number of requests to the Email Branding Service or otherwise placing an unreasonable load upon the Email Branding Service);
(i) You must not attempt to gain unauthorised access to the Email Branding Service or its related systems or networks;
(j) You must not copy the Email Branding Service or any part, feature, function or user interface thereof;
(k) You must not access or use the Email Branding Service to provide a product or service that is in any way competitive with the Email Branding Service; and
(l) You must not reverse engineer, decompile, manipulate or access any source code or object code related to the Email Branding Service, or use any machine learning or artificial intelligence system in relation to the output of the Email Branding Service.

2.4. You shall implement and maintain reasonable security measures relating to the access credentials enabling access to the Email Branding Service to ensure that no unauthorised person or application may gain access to the Email Branding Service by means of the access credentials.

2.5. You must comply with Clause 7 (Acceptable Use Policy), and must ensure that all persons using the Email Branding Service with your authority comply with Clause 7.

2.6. You must not use the Email Branding Service in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by Provider to its other customers using the Platform; and you acknowledges that Provider may use reasonable technical measures to limit your use of Platform resources for the purpose of assuring services to its customers generally.

2.7. For the avoidance of doubt, You have no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

2.8. To the extent that Provider provides artwork or designs to you in connection with the Email Branding Service, these shall constitute Content Deliverables for the purposes of the Contract. See Clause 5.3 for licensing terms relating to the Content Deliverables.

2.9. You acknowledge that the technical process by which emails modified by the Email Branding Service are dispatched will depend upon the type and configuration of your email systems. In some cases, emails may be returned to your email servers for dispatch by those servers; in other cases, emails may be dispatched by Provider’s or its subcontractor’s email servers.

2.10. See Clause 7 for additional rules governing the content of emails modified or sent by means of the Email Branding Service.

2.11. You are responsible for ensuring that you have the correct number of User for the Email Branding Service. To the extent that Fees for the Email Branding Service are calculated on a per-User basis, you will be liable to pay Fees with respect to all Users that are live as at each Billing Date.

2.12. You acknowledge that to use the Email Branding Service your systems must comply with or meet any minimum system requirements set out on our website.

2.13. The Minimum Service Period for the Email Branding Service is 12 months beginning on the applicable Go Live Date. You shall have no right to terminate the Contract under Clause 16.1 before the end of the Minimum Service Period.

2.14. Provider may at any time add, alter, withdraw, remove or replace any features of the Email Branding Service or alter the Platform and shall make available to you all relevant documentation describing such changes:

(a) where such changes are due to any actions or changes by third parties and outside the reasonable control of Provider, or
(b) otherwise, provided that such changes do not materially adversely alter or disrupt the functionality of the Email Branding Service.

3. Support, maintenance and availability

3.1. Provider may provide support to you during the Term in relation to the use of the Services and the identification and resolution of errors in the Services.

3.2. Support shall be provided remotely, save to the extent that the parties agree otherwise in writing.

3.3. For the avoidance of doubt, Provider shall have no obligation to provide support in respect of any issue caused by:

(a) the improper use of the Services by you; or
(b) any alteration to the Services made without the prior consent of Provider.

3.4. Provider may from time to time suspend the Services and/or access to the Services for the purposes of scheduled maintenance. Provider shall where practicable give to you prior written notice of scheduled maintenance that is likely to affect the availability of the Services. Provider shall where practicable ensure that scheduled maintenance affecting Service availability is carried out outside Business Hours.

3.5. Provider shall use reasonable endeavours to maintain the availability of the Services during the Term but does not guarantee continuous or uninterrupted availability.

3.6. Without prejudice to the generality of Clause 3.5, you acknowledge that downtime may arise in the following circumstances:

(a) Force Majeure Events;
(b) faults or failures of the internet or any public telecommunications network;
(c) faults or failures of Provider’s hosting infrastructure services providers or other data or services providers;
(d) hardware failures;
(e) faults or failures of your computer systems or networks;
(f) breaches by you of the Contract;
(g) scheduled and emergency maintenance; and/or
(h) any defects in Third Party Materials.

3.7. The use of the Services shall be subject to reasonable resource limitations, including limitations relating to communication volumes, data storage, bandwidth and processor utilisation. You acknowledge and agree that Provider may implement technological measures to prevent or inhibit the use of the Services in any way that breaches the applicable resource limitations.

4. Co-operation

4.1. Save to the extent that the parties have agreed otherwise in writing, you must provide to Provider, or procure for Provider from any third party identified by Provider, such:

(a) co-operation, support and advice; and
(b) information and documentation,
as are reasonably necessary to enable Provider to perform its obligations under the Contract.

4.2. You must provide to Provider, or procure for Provider, such access to your computer hardware, software, networks and systems as may be reasonably required by Provider to enable Provider to perform its obligations under the Contract.

4.3. Save as expressly provided in these Terms and Conditions, you shall be responsible for obtaining and, where relevant, paying for any licences of third party software that may be required for the use of the Services.

4.4. You shall be responsible for ensuring that your passwords relating to the Services are securely constructed, are kept securely and are not disclosed to any unauthorised person; and you must notify Provider as soon as practicable if you become aware that any password relating to the Services has been or may have been compromised or misused.

4.5. You must promptly notify Provider of any complaints you may have regarding the Services. For information about the circumstances in which you may terminate the Contract in the event of a breach by Provider, see Clauses 16.2 and 16.3.

5. Your Materials, Content Deliverables and Trade Marks

5.1. Promptly following receipt of a written request from Provider, you must supply to Provider Your Materials that are reasonably requested by Provider for the purpose of performing the Services.

5.2. Provider has the non-exclusive rights to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Your Materials to the extent reasonably required for the performance of Provider’s obligations and the exercise of Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights.

5.3. From the delivery of Content Deliverables to you, you have the non-exclusive rights to copy, store, distribute, publish, adapt, edit and otherwise use those Content Deliverables (providing that Third Party Materials will be supplied subject to Clause 5.4, and you will be responsible for ensuring that you have a right to use Your Materials). This licence will continue following the termination of the Contract.

5.4. Subject to any express written agreement between the parties, Provider shall ensure that the Third Party Materials are:

(a) licensed to you in accordance with the relevant licensor’s standard licensing terms (which you acknowledge may be open source or Creative Commons licensing terms);
(b) licensed to you on reasonable terms notified by Provider to you; or
(c) sub-licensed to you by Provider on reasonable terms notified in writing to you by Provider.

5.5. Without prejudice to Clause 5.4, you acknowledge that stock photography that Provider provides to you will usually be licensed for a specific use only. Accordingly, you should check the licensing terms relating to stock photography before making any new use of it.

5.6. Promptly following receipt of a written request from Provider, you shall provide or make available to Provider representations of the requested Trade Marks in a digital format reasonably satisfactory to Provider.

5.7. You acknowledge that the Trade Marks shall constitute Your Materials, and you warrant to Provider that the use by Provider of the Trade Marks in accordance with these Terms and Conditions will not breach the terms of Clause 7.

5.8. You acknowledge that Provider will not provide any back-up for Your Materials and providing back-up for Your Materials will be your sole responsibility.

6. Third Party Services

6.1. The Services may be integrated with certain third party services; and Provider may integrate the Services with additional third party services at any time.

6.2. Provider may remove, suspend, deactivate or limit any third party services integration at any time in its sole discretion.

6.3. The supply of third party services shall be under a separate contract or arrangement between you and the relevant third party. Where the supply of Third Party Services is under such separate contract, Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by you to the relevant third party in respect of the integration and/or use of Third Party Services. In relation to integration with some Third Party Services you may be required, in order to activate the integration, to have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider (including any customer relationship management system used by you).

6.4. You acknowledge that:

(a) the integration of third-party services may entail the transfer of Your Materials from the Services to the relevant third-party services; and
(b) where the supply of the Third-Party Services is under a separate contract between you and provider of Third-Party Services, Provider has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Your Materials resulting from any integration with any Third-Party Services.

6.5. Without prejudice to your other obligations under this Clause 6, where the supply of the Third-Party Services is under a separate contract as described in Clause 6.3 ,you must ensure that you have in place the necessary contractual safeguards to ensure that both:

(a) the relevant transfer of Your Personal Data to a provider of Third-Party Services is lawful; and
(b) the relevant use of Your Personal Data by a provider of Third-Party Services is lawful.

6.6. The use of some features of the Services may depend upon your enabling and agreeing to integrations between the Services and Third-Party Services.

6.7. You warrant to Provider that the transfer of Your Materials by Provider to a provider of Third-Party Services in accordance with this Clause 6 will not infringe any person’s legal or contractual rights and will not put Provider in breach of any applicable laws.

6.8. Subject to Clause 14.1:

(a) Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and
(b) Provider shall not be liable to you in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.

7. Acceptable use policy

7.1. You must ensure that Your Materials comply, and your use of the Services complies, with this Clause 7.

7.2. 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.

7.3. You must not use the Services:

(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

7.4. Your Materials and your use of Your Materials in connection with the Services 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). You agree that you will not submit to the Services and/or Platform any works or materials which it would be unlawful for Provider to use or possess in connection with the Services.

7.5. Your Materials must not:

(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any 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;
(k) constitute a breach of any contractual obligation owed to any person; or
(l) be of a size that can be considered to place an unreasonable load upon the Email Branding Service.

7.6. You must ensure that Your Materials are not and have never been the subject of any threatened or actual legal proceedings or other similar complaint.

7.7. Your Materials must be appropriate for all persons who have access to them or are likely to access them. Your Materials must not depict violence in an explicit, graphic or gratuitous manner. Your Materials must not be pornographic or sexually explicit. Your Materials must not contain any extremist political material.

7.8. Your Materials must not constitute or contain Spam, and you must not use the Services to store or transmit Spam. You must not send any Spam to any person using any email address or other contact details made available through the Services or that you find using the Services.

7.9. You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.

7.10. You must not use the Services in any way which is liable to result in the blacklisting of any Provider IP addresses.

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

7.12. You acknowledge that Provider may actively monitor Your Materials and the use of the Services, but Provider shall have no obligation to do so.

7.13. If there is a breach of this Clause 7, Provider may:

(a) suspend the affected Services or any element thereof until such time as the breach is remedied,
(b) remove any element of Your Materials which is in breach of this Clause 7 from the Services and/or Platform without prior notice, and/or
(c) deliver the affected emails unbranded.

7.14. Any breach of this Clause 7, shall be deemed to be a material breach of the Contract.

8. Fees and payments

8.1. You must pay the Fees to Provider in accordance with this Clause 8 and the other provisions of these Terms and Conditions.

8.2. Recurring Fees are payable by reference to a “Billing Date” which means:

(a) the day falling one month after the Go-Live Date and each month thereafter; or
(b) if Provider has agreed in writing that Fees for the Email Branding Service will be paid on an annual basis: (i) the day falling one month after the Go-Live Date; and (ii) each anniversary of that day.

8.3. Provider may elect to vary any element of the Fees payable with respect to a particular Service by giving to you not less than 70 days’ prior written notice of the variation, providing that such notice must expire after the end of the Minimum Service Period.

8.4. Fees must be paid by credit or debit card in accordance with the instructions of Provider from time to time. Provider will send to you an invoice with respect to the Fees due on a Billing Date; and Provider will collect the Fees, in arrears of the provision of the corresponding Services, on each Billing Date.

8.5. To the extent that Provider is unable to calculate Fees, it may collect those Fees at any time following the provision of the corresponding Services.

8.6. If Provider is unable to collect any Fees using the credit or debit card, you must:

(a) pay the relevant Fees; and
(b) provide new credit or debit card details,

in each case within the period of 28 days following the date of failed collection; and any failure to comply with this Clause 8.6 shall constitute a material breach of the Contract.

8.7. Provider may suspend the provision of any or all of the Services if Provider is unable to collect any Fees by means of credit or debit card, or if any amount due to be paid by you to Provider under the Contract is overdue. You acknowledge that, during any period while the Services are suspended, the public interfaces of the Services may be unavailable and/or non-functional, emails may not be sent or received, data may not be collected on your behalf, and you may not have access to your data. Subject to Clause 13.1, Provider shall not be liable to you with respect to any loss or damage arising out of any such suspension, including any loss or damage arising out of any inability to send or receive emails.

8.8. You shall have no right to pause or suspend the Services and the obligation to pay the Fees.

8.9. If you do not pay any amount properly due to Provider under these Terms and Conditions, Provider may:

(a) charge you 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 you pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

8.10. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by you to Provider.

8.11. Except as specified in Clause 16.4, the Fees are not refundable.

9. Confidentiality obligations and publicity

9.1. Provider must:

(a) keep Your Confidential Information strictly confidential;
(b) not disclose Your Confidential Information to any person without your prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of Your Confidential Information as Provider uses to protect Provider’s own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to Your Confidential Information.

9.2. You must:

(a) keep Provider Confidential Information strictly confidential;
(b) not disclose Provider Confidential Information to any person without Provider’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of Provider Confidential Information as you use to protect your own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to Provider Confidential Information.

9.3. Notwithstanding Clauses 9.1 and 9.2, 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 Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

9.4. No obligations are imposed by this Clause 9 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.

9.5. The restrictions in this Clause 9 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.

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

9.7. Provider reserves the right to include Provider branding and attribution credits in any website, email message or software application provided, modified or made available by Provider to you as an element of the Services.

9.8. Subject to the other provisions of this Clause 9, Provider may publish case studies and similar reports relating to you and the subject matter of the Contract on its websites and in its other marketing materials.

9.9. The provisions of this Clause 9 shall continue in force indefinitely following the termination of the Contract.

10. Data protection

10.1. Each party shall comply with the Data Protection Laws with respect to the processing of Your Personal Data.

10.2. You warrant to Provider that you have the legal right to disclose or make available all Personal Data that:

(a) is contained in Your Materials;
(b) you otherwise disclose or make available to Provider under or in connection with the Contract, including Personal Data relating to your business that is accessed by the Services or collected by Provider through any application programming interface.

10.3. You shall only supply to Provider, and Provider shall only process, in each case under or in relation to the Contract:

(a) the Personal Data of data subjects contained in Your Materials (and such other categories as may be agreed by the parties in writing); and
(b) Personal Data of any type contained in Your Materials (and such other types as may be agreed by the parties in writing).

10.4. Provider shall only process Your Personal Data for the purposes of providing, administering and monitoring the Services.

10.5. Provider shall only process Your Personal Data during the Term and for not more than 45 days following the end of the Term, subject to the other provisions of this Clause 10.

10.6. Provider shall only process Your Personal Data on your documented instructions (including with regard to transfers of Your Personal Data to any place outside the United Kingdom and European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

10.7. You hereby authorise Provider to make the following transfers of Your Personal Data:

(a) Provider may transfer Your Personal Data to its sub-processors in the jurisdictions identified in Clause 10.13, providing that such transfers must be protected by appropriate safeguards (namely, the use of standard contractual clauses); and
(b) Provider may transfer Your Personal Data to a country, territory or sector to the extent that the relevant data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

10.8. Provider shall promptly inform you if, in the opinion of Provider, your instructions relating to the processing of Your Personal Data infringe the Data Protection Laws.

10.9. Notwithstanding any other provision of the Contract, Provider may process Your Personal Data if and to the extent that Provider is required to do so by applicable law. In such a case, Provider shall inform you of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

10.10. Provider shall ensure that persons authorised to process Your Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

10.11. Provider and you shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for Your Personal Data.

10.12. Provider must not engage any third party to process Your Personal Data without your prior specific or general written authorisation. In the case of a general written authorisation, Provider shall inform you at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if you object to any such changes before their implementation, then you may terminate the Contract on 7 days’ written notice to Provider, providing that such notice must be given within the period of 7 days following the date that Provider informed you of the intended changes. Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on Provider by this Clause 10.

10.13. As at the Effective Date, Provider is hereby authorised by you to engage, as sub-processors with respect to Your Personal Data, Branded Emails Limited and third parties within the following categories (and in the following jurisdictions): email system services providers; website and application hosting services providers; development and maintenance services providers; marketing and content creation services providers; and social media services providers. These services providers may provide their services in the UK or EU or, subject to Provider’s obligations in Clause 10.7, in the USA or elsewhere in the world.

10.14. Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist you with the fulfilment of your obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

10.15. Provider shall assist you in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Provider may charge you at its standard time-based charging rates for any work performed by Provider at your request pursuant to this Clause 10.15.

10.16. Provider must notify you of any Personal Data breach affecting Your Personal Data without undue delay.

10.17. Provider shall make available to you all information necessary to demonstrate the compliance of Provider with its obligations under this Clause 10 and the Data Protection Laws. Provider may charge you at its standard time-based charging rates for any work performed by Provider at your request pursuant to this Clause 10.17.

10.18. Provider shall delete Your Personal Data after the provision to you of services relating to the processing and before the end of the period of 45 days following termination, save to the extent that applicable law requires storage of the relevant Personal Data. If you request a copy of Your Personal Data before deletion, Provider will provide such copy to you at no charge.

10.19. Provider shall allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you in respect of the compliance of Provider’s processing of Your Personal Data with the Data Protection Laws and this Clause 10. Provider may charge you at its standard time-based charging rates for any work performed by Provider at your request pursuant to this Clause 10.19.

10.20. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to the processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.

11. Warranties and warranty limitations

11.1. Provider shall provide the Services with reasonable skill and care.

11.2. You warrant to Provider that you have the legal right and authority to enter into the Contract and to perform your obligations under these Terms and Conditions.

11.3. 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.

11.4. You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

11.5. Whilst Provider shall use reasonable endeavours to secure the Email Branding Service and shall comply with the Security Policy in relation to the security of the Email Branding Service, you acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Provider gives no warranty or representation that the Services will be entirely secure.

11.6. You acknowledge that the Email Branding Service is designed to be compatible only with the Supported Web Browsers and the Supported Email Clients; and Provider does not warrant or represent that the Email Branding Service will be compatible with any other software or systems.

11.7. You acknowledge that changes to the hardware, software and/or configuration of your computer systems after the Go Live Date may affect the compatibility of those computer systems with the Services and may reduce or negate the benefits of the Services to you. Any work necessary to restore the compatibility may incur additional charges at our standard time and materials rates in force from time to time.

11.8. You acknowledge that, except to the extent expressly provided otherwise in these Terms and Conditions, Provider does not warrant or represent that the use of the Services by you or any other person will not give rise to any legal liability on your part or any other person’s part. You should seek legal advice from a qualified solicitor or other legal professional before placing reliance upon any legal information that Provider may make available to you.

11.9. You acknowledge that delivery of emails can never be guaranteed by an email services provider; accordingly, Provider does not guarantee the delivery of emails modified by or sent using the Services. You further acknowledge that the sending of bulk email may result in the blacklisting of domain names associated with the bulk mailing, that such blacklisting is outside the control of Provider, and that Provider will not be responsible for any loss or damage which may arise out such blacklisting.

11.10. You acknowledge that the validity and enforceability of the Contract will not be affected by any discovery, whether made by you or Provider or a third party, that Your Materials do not comply with Clause 7, without prejudice to Provider’s rights under Clause 7.

11.11. You acknowledge that you are solely responsible for Your Materials and the consequences of posting or publishing Your Materials in any way. You warrant that you have (and will continue to have) all necessary licenses, rights, consents, and permissions which are required to use and to enable the Services and Platform to use Your Materials.

11.12. You acknowledge that you shall be solely responsible for familiarising yourself with the functionality of the Email Branding Service, for ensuring that the Email Branding Service meets your requirements, and for your use of the Email Branding Service and its features, including any training in relation to the use of the Email Branding Service of all persons using the Email Branding Service with your authority. Provider does not warrant any outcomes or results in connection with the Services.

11.13. If Provider reasonably determines, or any third party alleges, that your use of the Services in accordance with these Terms and Conditions infringes any third party’s Intellectual Property Rights, Provider may at its own cost and expense:

(a) modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for you the right to use the Services in accordance with these Terms and Conditions.

12. Indemnity

12.1. You shall indemnify and shall keep indemnified 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 Provider and arising directly or indirectly as a result of any breach or alleged breach by you of Clause 2 or 7.

13. Limitations and exclusions of liability

13.1. 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.

13.2. The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 13.1; 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.

13.3. Provider shall not be liable to you in respect of any losses arising out of a Force Majeure Event.

13.4. Provider shall not be liable to you in respect of any loss of profits or anticipated savings.

13.5. Provider shall not be liable to you in respect of any loss of revenue or income.

13.6. Provider shall not be liable to you in respect of any loss of use.

13.7. Provider shall not be liable to you in respect of any loss of business, contracts or opportunities.

13.8. Provider shall not be liable to you in respect of any loss or corruption of any data or database; however, this Clause 13.8 shall not apply in relation to any loss or damage arising out of a breach of Clause 9 or 10.

13.9. Provider shall not be liable to you in respect of any special, indirect or consequential loss or damage.

13.10. The liability of Provider to you under the Contract in respect of any event or series of related events shall not exceed the greater of:

(a) GBP 1,000; and
(b) the total amount paid and payable by you to Provider under the Contract in the 12 month period preceding the commencement of the event or events.

13.11. The aggregate liability of Provider to you under the Contract shall not exceed GBP 100,000.

13.12. Provider shall not be liable to you in respect of any loss or damage arising out of:

(a) any delay in email delivery or non-delivery of emails, or
(b) your inability to access or use the Services.

14. Force Majeure Event

14.1. 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.

15. Term

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

15.2. The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 16 or any other provision of these Terms and Conditions.

16. Termination

16.1. The effective date of termination of the Contract under this Clause 16.1 must be after the end of the Minimum Service Period. Subject to this, either party may terminate the Contract by giving to the other party written notice of termination, in which case the Contract will be terminated at the end of the calendar month following the calendar month in which the notice of termination is given.

16.2. Provider may terminate the Contract immediately by giving written notice of termination to you if you commit a material breach of the Contract. You may terminate the Contract immediately by giving written notice of termination to Provider if:

(a) Provider commits an irremediable material breach of the Contract; or
(b) Provider commits a remediable material breach of the Contract and fails to remedy that material breach within the period of 30 days following the date of receipt of a written notice from you requiring Provider to do so.

16.3. 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; 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.

16.4. You acknowledge that, as you may complete the sign-up process for the Contract without the intervention of Provider, Provider shall have the right to terminate the Contract on written notice to you at any time during the period of 7 days following the Effective Date. If Provider terminates the Contract under this Clause 16.4, then Provider will give to you a full refund of any Fees paid before such termination.

16.5. Provider may terminate the Contract at any time on 3 months’ notice to you where Provider has made a strategic decision to discontinue the provision of the Email Branding Service across all of its customer base.

16.6. All of the parties’ rights to terminate the Contract are expressly set out in these Terms and Conditions. For the avoidance of doubt, you will have no right to terminate the Contract, or be relieved of any obligation to pay the Fees, as a result of a non-material breach by Provider.

17. Effects of termination

17.1. 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 5.3, 6.8, 8.9, 8.11, 9, 10, 12, 13, 17 and 20 to 28.

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

17.3. Save to the extent expressly provided otherwise in these Terms and Conditions, upon the termination of the Contract all Services shall automatically and immediately terminate.

17.4. Subject to Clause 16.4, within 10 days following the termination of the Contract for any reason you must pay to Provider any Fees in respect of Services provided to you before the termination of the Contract, without prejudice to Provider’s other legal rights.

18. Notices

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

18.2. Any notice given by one party to the other under these Terms and Conditions must be:

(a) delivered personally;
(b) sent by courier;
(c) sent by recorded signed-for post; or
(d) sent by email,
using the relevant contact details set out at the start of these Terms and Conditions or provided by you during the sign-up process.

18.3. The addressee and contact details 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 18.

18.4. A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a) in the case of notices delivered personally, upon delivery;
(b) in the case of notices sent by courier, upon delivery;
(c) in the case of notices sent by post, 48 hours after posting; and
(d) in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).

19. Subcontracting

19.1. Subject to any express restrictions elsewhere in these Terms and Conditions, Provider may subcontract any of its obligations under the Contract.

19.2. Provider shall remain responsible to you for the performance of any subcontracted obligations.

20. Assignment

20.1. You hereby agree that Provider may assign, transfer or otherwise deal with its contractual rights and obligations under these Terms and Conditions.

20.2. You must not assign, transfer or otherwise deal with your contractual rights and/or obligations under these Terms and Conditions without the prior written consent of Provider, providing that you may assign the entirety of your rights and obligations under these Terms and Conditions to any member of your group of companies or to any successor to all or a substantial part of your business from time to time. You must give to us advance written notice of any such assignment.

21. No waivers

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

21.2. No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Contract.

22. Severability

22.1. If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

22.2. If any unlawful and/or unenforceable provision of these Terms and Conditions 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.

23. Third party rights

23.1. The Contract is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

23.2. The exercise of the parties’ rights under the Contract is not subject to the consent of any third party.

24. Variation

24.1. Provider may, in its discretion, change, modify, add to, or remove portions of these Terms and Conditions (the “Changes”), at any time. Providing that any changes to the Pricing Page and other elements of the Fees will be made subject to Clause 8.3, Provider will notify you of the Changes by email and by posting on Provider website at least one month before such Changes will be effective and if you object to the Changes before their implementation, then you may terminate the Contract on 7 days’ written notice to Provider, providing that such notice must be given within the period of 14 days following the date that Provider informed you of the Changes.

25. Entire agreement

25.1. The main body of these Terms and Conditions and the Pricing Page shall constitute the entire agreement between the parties in relation to the subject matter of the Contract, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

25.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

25.3. The provisions of this Clause 25 are subject to Clause 13.1.

26. Law and jurisdiction

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

26.2. Any disputes relating to the Contract shall be subject to the exclusive jurisdiction of the courts of England.

27. Definitions

27.1. In these Terms and Conditions:

“Billing Date” has the meaning given to it in Clause 8.2;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Confidential Information” means Provider Confidential Information and Your Confidential Information;
“Content Deliverables” means those works and materials created by or on behalf of Provider in the course of Provider providing the Services that are delivered to you, or that Provider has an obligation to deliver to you, under these Terms and Conditions;
“Contract” means a contract made under these Terms and Conditions between Provider and you;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“Effective Date” means the date upon which you complete the online sign-up process for the Services;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Fees” means:
(a) the amounts specified on the Pricing Page;
(b) such other amounts as may be agreed in writing by the parties from time to time; and
(c) to the extent that these Terms and Conditions provide for time-based fees, amounts calculated by multiplying Provider’s standard time-based charging rates by the time spent providing the relevant Services or performing the relevant work;
“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, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Go Live Date” means the date you sign up to our credit or debit card payment processing provider (currently Stripe or any other replacement provider from time to time);
“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);
“Email Branding Service” means the application of branding to emails;
“Minimum Service Period” means 12 months following the Go Live Date;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
“Platform” means the platform managed by Provider and used by Provider to provide the Email Branding Service, including the application and database software for the Email Branding Service, the system and server software used to provide the Email Branding Service, and the computer hardware on which that application, database, system and server software is installed;
“Pricing Page” means the version of the pricing page on the Provider website that you agree to, subject to any variations and updates in accordance with these Terms and Conditions;
“Provider Confidential Information” means:
(a) any information disclosed by or on behalf of Provider to you 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 you (acting reasonably) to be confidential; and
(b) the financial terms of the Contract (excluding information on the Pricing Page);
“Security Policy” means the security policy document produced and maintained by Provider and available on the Provider’s website (as it may be amended by Provider from time to time);
“Services” means any services that Provider provides to you, or has an obligation to provide to you, under these Terms and Conditions;
“Spam” means:
(a) any electronic messages that breach applicable anti-spam laws, including the Privacy and Electronic Communications (EC Directive) Regulations 2003; and
(b) any bulk and unsolicited electronic messages;
“Supported Email Clients” means Microsoft Office 365;
“Supported Web Browser” means the current release from time to time of Google Chrome or any other web browser that Provider agrees in writing shall be supported;
“Term” means the term of the Contract, commencing in accordance with Clause 15.1 and ending in accordance with Clause 15.2;
“Terms and Conditions” means the main body of these Terms and Conditions and the Pricing Page, including any amendments made to either from time to time;
“Third Party Materials” means those elements of the works and materials that are made available or delivered to you, or that Provider has an obligation to make available or deliver to you, under the Contract (excluding Your Materials), the Intellectual Property Rights in which are owned by a third party;
“Third Party Services” means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Services by Provider from time to time and where the supply of the third party services is under a separate contract or arrangement between you and the relevant third party;
“Trade Marks” means your registered and unregistered trade marks;
“User” means an email address on the Platform that has any the Email Branding applied to it;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Your Confidential Information” means:
(a) any information disclosed by you or on your behalf to 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 Provider (acting reasonably) to be confidential; and
(b) Your Personal Data;
“Your Materials” means all works and materials supplied by you or on your behalf to Provider for use in connection with the Services, including the content of emails sent using the Email Branding Service; and
“Your Personal Data” means any Personal Data that is processed by Provider on your behalf in relation to the Contract.

28. Interpretation

28.1. These Terms and Conditions are accompanied by explanatory text. This explanatory text is for guidance only, and does not supplement, replace or otherwise affect the meaning of these Terms and Conditions.

28.2. 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.

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

28.4. 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.