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Terms for Sendster Customers




A) Sendster operates the Site and provides internet and social network marketing services.

B) Customer wishes to upload Contact Data and Customer Content to the Site. Sendster has agreed to permit Customer use of the Site subject to the terms of this Agreement.

Agreed terms

1. Interpretation

1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.

Agreement: means these terms and conditions.

Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London, England.

Charges: the charges payable in respect of the Services as set out on the Site and/or by e-mail issued by Sendster and from time to time revised in accordance with Clause 7.3.

Contact: an individual who has consented to receive direct marketing from Customer as required by the Privacy Regulations.

Contact Data: the mobile telephone, email and other contact information relating to a Contact.

Customer Content: all text, information, data, software, executable code, images, audio or video material in whatever medium or form uploaded by Customer to the Customer Page.

Customer Marks: any registered or unregistered trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans of Customer provided by Customer to Sendster.

Customer Page: web-page(s) on the Site allocated to Customer by Sendster in accordance with the Services.

Customer Portal: any webpage through which Customer may access the Site, order Services, configure the Customer Page, upload Customer Content or upload Contact Data.

Effective Date: means the date upon which the Customer clicks the “I agree” button on the Site when registering an application to use the Site and Services.

Force Majeure Event: any event beyond the reasonable control of Sendster including without limitation, act of God, war, riot, civil commotion, malicious damage, interruption or failure of utility services, compliance with Laws or with any governmental order, rule, regulation or direction, accident, breakdown of plant, machinery, computers, communication networks or the Internet, fire, flood and/or the default of suppliers or sub-contractors.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Laws: all applicable statutes, statutory instruments, regulations, industry codes of practice (including without limitation the CAP Code and any guidance issued by the Advertising Standards Authority) and any other rules having the force of law, including any amendments, extensions, applications or re-enactments of any of the same in any territory in which any Contact is located.

Marketing Materials: has the meaning given in Clause 6.1.

Minimum Term: in relation to any Service means the period stated on the Site or in an e-mail sent to Customer by Sendster as applicable.

Recurring Charges: means any charges of a periodic nature.

Regulations: together, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Consumer Protection from Unfair Trading Regulations 2008.

Sendster Marks: any registered or unregistered trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans of Sendster.

Service Description: in relation to any Service means the description of that Service set out on the Site and/or in an e-mail issued by Sendster, and as may be varied in accordance with Clause 4.3.

Services: the website services made available at the Site, detailed thereon or in an e-mail issued by Sendster and as revised from time to time in accordance with Clause 4.3.

Site: the website at or such replacement URL as Sendster may from time to time operate.

URL: uniform resource locator.

1.2 Clause headings do not affect the interpretation of this Agreement.

1.3 References to Clauses are (unless otherwise provided) references to the Clauses of this Agreement.

1.4 Words in the singular include the plural and those in the plural include the singular.

1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 Writing or written includes faxes and e-mail.

2. Applications

2.1 Acceptance by Customer of these terms and conditions represents an application by Customer to become a registered user of the Site and Services. In connection with such application, Customer acknowledges that: (i) Sendster may require the provision of additional information concerning Customer’s business; (ii) Sendster may conduct security checks prior to accepting any application; and (iii) acceptance of such application is at Sendster’s sole discretion.

2.2 Customer warrants that all information provided by it to Sendster under Clause 2.1 or otherwise in connection with this Agreement is complete and accurate in all respects.

2.3 Sendster shall notify Customer of its acceptance of an application on or after the Effective Date.

2.4 On or following the Effective Date, Sendster shall allocate to Customer and/or activate a password giving Customer access to the Customer Portal. Customer shall keep the password and other unique identifiers providing access to the Customer Portal confidential.

3. Contact Data

3.1 With effect from the Effective Date and subject to Clause 2.4, Customer may upload Contact Data to the Site: (i) through the Customer Portal; (ii) by inviting Contacts to enter their Contact Data on Customer Page; and/or (iii) by such other methods as Sendster may from time to time make available.

3.2 The parties acknowledge and agree that: (i) the Contact Data represents personal data under the terms of the Data Protection Act 1998 (the Act) and (ii) for the purposes of the Act, Customer is the data controller and Sendster acts as data processor. Customer shall not upload to the Site any data identifying or personal to individual consumers other than data relating to Contacts.

3.3 Customer shall ensure that all use of the Contact Data as contemplated by this Agreement or otherwise instructed by Customer is authorised by the Act, the Regulations and by all associated guidelines, guidance notes, regulations, orders and similar instruments and enactments (Associated Enactments). Customer shall ensure that all Contact Data is maintained up-to-date and not retained for longer than reasonably required. Each party shall comply with the Act, the Regulations and the Associated Enactments.

3.4 Sendster shall process the Contact Data only in accordance with Customer’s instructions as set out herein or as otherwise expressly authorised by Customer and not for any other purposes. Sendster undertakes that it will use all reasonable commercial endeavours to take appropriate technical and organisational measures against the unauthorised or unlawful processing of and/or accidental loss or destruction of the Contact Data having regard to the state of technological development and the cost of implementation.

4. Services

4.1 In consideration for payment by Customer of the Charges, Sendster shall provide the Services on and subject to the terms of this Agreement.

4.2 With effect from the Effective Date, Customer may order Services through the Customer Portal. Customer acknowledges that the Services may have a Minimum Term.

4.3 Sendster may at any time change the scope of the Services and/or the terms on which they are offered by giving notice of such changes in writing, in accordance with Clause 14. Any variation in the Charges for the Services shall be notified to Customer in accordance with Clause 7.3.

4.4 Sendster may from time to time offer additional services in connection with the Site (Additional Services), by advertising them on the Site and including a Service Description and the Charges applicable to such Additional Services, together with any Minimum Term applicable thereto. Customer may order such Additional Services through the Customer Portal. If ordered, Additional Services shall be provided on and subject to the terms of this Agreement and to any relevant information on the Site or issued by e-mail to Customer by Sendster.

4.5 Customer acknowledges that it is the Customer’s sole responsibility to determine that the Services meet the needs of its business and to satisfy itself that the Services are ready for operational use in its business before it is used.

4.6 The Customer shall be solely responsible for implementing any back up measures that it sees fit, to guard against loss of Customer Content or Contact Data from the Site due to malfunctions, data corruption or unauthorised access to the Services.

4.7 Sendster shall use all reasonable endeavours to provide e-mail support in respect of the Services during Business Days. Customer may e-mail support related enquiries to the following

5. Customer Content

5.1 Customer shall be responsible for preparing all Customer Content. Customer shall deliver the Customer Content to Sendster, by uploading it to the Customer Portal.

5.2 Customer shall at all times ensure that the Customer Content: (i) is not misleading; (ii) does not constitute a financial promotion under any Laws or offer credit to consumers; (iii) complies with all Laws; (iv) complies with any rules from time to time issued by Sendster and published on the Site; and (v) is not prejudicial to the image of Sendster and/or the Site. Without prejudice to the generality of the foregoing, Customer shall ensure that all sales promotions launched using Customer Content comply with all applicable Laws including without limitation the CAP Code and the Business Protection from Misleading Marketing Regulations 2008. If Sendster reasonably believes that the Customer is in breach of Clause 5.2 in relation to any Customer Content and/or that such Customer Content may create any liability for Sendster beyond that provided for under the terms of this Agreement, Sendster may suspend provision of the Services and/or remove the Customer Content.

5.3 Customer acknowledges that applicable Laws require that Contacts be offered a right to opt-out of receiving Messages. Customer agrees that Sendster may provide an opt-out mechanism for Contacts on the Customer Page.

5.4 Notwithstanding Clauses 5.3 and 5.4, Sendster has no obligation to Customer, and undertakes no responsibility, to review the Customer Content to determine its accuracy or completeness or to determine whether the Customer Content may result in any liability to any third party.

5.5 Customer hereby grants to Sendster a non-exclusive royalty-free licence to distribute the Customer Content on the Customer Page in any territory from which the Site may be viewed.

5.6 The licence granted under Clause 5.6 permits Sendster to:

(a) modify, electronically reproduce and distribute, and publicly perform and display the Customer Content on the Site; and

(b) reproduce and distribute through any media now known, or hereafter developed, excerpts of the Customer Content in advertisements for, and in marketing and promotional materials related to, the Site.

5.7 If the Customer Content includes a hypertext link to Customer’s website, Customer hereby grants to Sendster a non-exclusive royalty-free licence to provide that hypertext link to Customer’s website via the relevant URL(s) notified to Sendster.

5.8 Customer hereby grants to Sendster a non-exclusive royalty-free licence to use the Customer Marks in the display of the Customer Content, provision of the Services and in connection with any advertising, marketing and promotional activities undertaken and materials developed pursuant to this Agreement.

6. Marketing

6.1 Sendster may provide point-of-sale and other marketing materials for use by Customer in promoting the Customer Page to Contacts (Marketing Materials).

6.2 In relation to all promotions of the Customer Page to Contacts, Customer shall not: (i) hold itself out or otherwise represent itself as an agent of Sendster or authorised to bind it or act on its behalf; or (ii) make any representations or claims regarding Sendster or the Services other than those stated by Sendster on the Site.

6.3 Sendster may agree that Customer may reproduce the Sendster Marks in its promotion of the Services. If Sendster so agrees Customer shall have a revocable non-exclusive royalty-free licence to use the Sendster Marks as directed by Sendster and in accordance with any branding guidelines from time to time issued by it. Customer shall refrain from any use of the Sendster Marks to which Sendster objects. Any use of the Sendster marks including any goodwill accruing from the same shall accrue solely to the benefit of Sendster.

7. Charges and Payment

7.1 Customer may order Services via the Customer Portal, by phone or by e-mail and at Sendster’s sole option Charges shall be payable annually in advance (or as otherwise specified on the Site in respect of Recurring Charges for certain Services), by credit/debit card and/or any method of payment then in use from time to time by Sendster. Customer shall ensure that it has sufficient funds available for collection of Recurring Charges, if any, as and when such Recurring Charges fall due for collection and shall not take or fail to take any action that results in payment failure.

7.2 Charges in respect of the Services shall commence from the Effective Date and payment of all amounts due shall be made in accordance with any payment schedule specified on the Site or in an e-mail issued to Customer by Sendster; and if made by credit/debit card immediately on the Effective Date, or within seven (7) days of date of Sendster’s invoice. Save as otherwise expressly provided, the Charges are exclusive of VAT which if invoiced shall be payable at the prevailing rate.

7.3 Sendster may increase the Charges for any Service or part thereof upon forty-five (45) days’ notice to Customer prior to the expiry of the Minimum Term or expiry of any annual period thereafter. If Sendster notifies Customer of an increase to any Recurring Charges, Customer may at its option cancel the relevant Service as provided in Clause 11.2.

7.4 If Customer fails to make payment of any amount when due, Sendster shall be entitled to charge interest on the overdue amount at the rate of 3.5% per annum above the base lending rate from time to time of HSBC Bank Plc. Such interest shall accrue on a daily basis from the due date until the date of payment in full whether before or after judgment and shall be payable on demand.

8. Warranties and Indemnity

8.1 Each party warrants to the other that it has full power and authority to enter into and perform this Agreement.

8.2 Customer warrants to Sendster that the Customer Content and Customer Marks:

(a) do not infringe any third party's Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;

(b) do not violate any Laws including without limitation those regarding unfair competition, anti-discrimination or false advertising;

(c) are not defamatory, trade libellous, unlawfully threatening or unlawfully harassing; and

(d) do not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

8.3 Sendster shall use all reasonable endeavours to make the Site and the Services available for use by the Customer in accordance with the following service levels:

(a) 24 hours a day, 365 days per annum.

(b) a minimum of 98% of the time during Business Days, measured over a quarterly period.

(c) the provisions of (a) and (b) above apply to the Site and Services but exclude any external services outside of Sendster’s control, e.g. the Internet.

Notwithstanding the foregoing Sendster does not warrant or represent that the Site or Services are or will be fault-free and Customer acknowledges that the Site may occasionally be unavailable due to the performance of maintenance. If the Site or Services fail for any other reason within Sendster’s control, it shall use reasonable endeavours to remedy that failure as soon as reasonably practicable but it shall not be liable to Customer for that failure in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise. This Clause 8.3 represents Sendster’s entire obligation to make the Site and Services available and all other warranties, conditions, representations, indemnities and guarantees, whether express or implied, arising by law, custom, oral or written statements of Sendster or its third party suppliers or otherwise (including, without limitation, any warranties of merchantability, fitness for particular purpose, or of error-free and uninterrupted use) are hereby superseded, excluded and disclaimed to the fullest extent permitted by law

8.4 Customer acknowledges that the provision by Sendster of the Services is reliant on services provided by Sendster’s third party suppliers. In the event that Sendster’s relationship with such third party suppliers terminates for any reason: (i) Sendster may suspend provision of the Services and seek alternative supplier to enable it to continue service provision; (ii) the liability of Sendster in contract, tort (including negligence) or otherwise arising in respect of any interruption in the provision of the Services shall be limited to the amount paid by Customer in respect of the period of interruption; and (iii) if Sendster ceases the provision of Services as provided in this Clause 8.4 for more than ninety (90) days, Customer may terminate this Agreement by written notice to Sendster.

8.5 Customer shall fully indemnify Sendster in respect of all costs, claims, damages, losses, fines and expenses arising directly or indirectly in connection with: (i) any claim or action that the Customer Content or Customer Marks infringe the Intellectual Property Rights of a third party; and/or (ii) any breach by Customer of Clauses 2.2, 5.2, 6.2 and/or 8.2.

9. Limitation of remedies and liability

9.1 Nothing in this Agreement shall operate to exclude or limit either party's liability for:

(a) death or personal injury caused by its negligence; or

(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(c) fraud; or

(d) any other liability which cannot be excluded or limited under applicable law.

9.2 Save for Customer’s liabilities under Clause 8.5 neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) misrepresentation or otherwise under or in connection with this Agreement for any loss of data, profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage (including loss suffered, or damages incurred as a result of any action brought by a third party) even if advised of the possibility of such loss or damages.

9.3 Subject to Clause 9.1, the liability of Sendster to Customer under or in connection with this Agreement for claims based on events in any calendar year whether in contract or tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the amount payable by Customer to Sendster during such calendar year.

10. Intellectual property rights

10.1 Sendster retains title and ownership of all Intellectual Property Rights in the Site and the Sendster Marks, and nothing in this Agreement shall be taken to grant any rights to Customer in respect of such Intellectual Property Rights.

10.2 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Customer Content shall remain with Customer. Except as expressly provided in this Agreement, nothing shall be construed to grant to Sendster any right, title or interest in or to the Customer Content.

11. Term and termination

11.1 This Agreement shall commence on the Effective Date and subject to earlier termination in accordance with this Clause 11 shall continue for the Minimum Term as specified on the Site or in an e-mail issued to Customer by Sendster.

11.2 Where Sendster increases the Charges for a Service, Customer may cancel its requirement for the Service upon thirty (30) days’ written notice to Sendster: (i) where a Service requires a Recurring Charge, by such notice being to be served within ten (10) days of receipt of a notice increasing the applicable Recurring Charges under Clause 7.3; and (ii) in all other circumstances, such notice to expire no earlier than the last day of the Minimum Term or any annual period thereafter.

11.3 Sendster may terminate this Agreement by ten (10) days’ notice to Customer if Customer fails to make payment of any overdue amount within fourteen (14) days of receipt of a reminder notice.

11.4 Either party may terminate this Agreement immediately at any time by written notice to the other party if:

(a) that other party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within thirty (30) days after the service of written notice specifying the breach and requiring it to be remedied;

(b) that other party ceases to trade or becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party or a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court or the ability of that party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums or any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purpose of solvent amalgamation or reconstruction).

11.5 If at any time Sendster has the right to terminate this Agreement it may immediately suspend the provision of Services under it. Any suspension under this Clause 11.5 or under Clause 5.3 shall be without prejudice to any right of termination accruing to Sendster and shall not affect Customer’s obligation to make payment of the Charges.

11.6 The termination or expiry of this Agreement shall be without prejudice to the accrued rights and liabilities of each party. On such expiry or termination:

(a) Sendster shall remove all Customer Content from the Site (other than any Contact Data in respect of which Sendster acts as data controller as provided in Clause 3.5);

(b) Customer shall forthwith cease all use of the Sendster Marks and return to Sendster all Marketing Materials;

11.7 All provisions of this Agreement shall cease to have effect, save for the following which shall survive termination and continue in full force and effect: Clauses 7, 8, 9, 10,this Clause 11.6, and Clauses 15 and 22.

12. Force majeure

12.1 Sendster shall not be liable for any failure to perform or delay in performing its obligations to the extent the same is attributable to a Force Majeure Event. Upon becoming aware of a Force Majeure Event which is likely to give rise to any such failure or delay, Sendster shall notify Customer of the Force Majeure Event and likely duration thereof. Customer may terminate this Agreement by notice to Sendster to have immediate effect if Sendster has been subject to a Force Majeure Event continuously for more than ninety (90) days.

13. Security

13.1 Sendster shall use reasonable endeavours to keep the Site secure from unauthorised intrusion, but shall not otherwise be liable for the acts of unauthorised third parties gaining access to the Site.

14. Notices

14.1 A notice given under this Agreement shall be in writing and sent for the attention of the person, and to the address given at the head of this Agreement (or such other person, address, fax number or e-mail address as the receiving party may notify to the other) or to the fax or email address set out in this Clause 14.1 and shall be delivered personally, sent by fax or e-mail, sent by pre-paid first class post, recorded delivery or registered post.

For Sendster

14.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery; or

(b) in the case of fax, at the time of transmission; or

(c) in the case of email, 24 hours after the email is sent; or

(d) in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or

(e) if deemed receipt under the previous paragraphs of Clause 14.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), deemed receipt shall be when business next starts in the place of receipt.

14.3 To prove service, it is sufficient to prove that the notice was transmitted by fax to the correct fax number or e-mail address of the correct email address or, in the case of post, that the envelope containing the notice was properly addressed and posted.

15. Publicity

15.1 Customer shall not make or issue or cause to be made or issued any media releases, public announcements and public disclosures relating to this Agreement, including promotional or marketing material without the prior approval of Sendster.

16. Assignment

16.1 Customer may not assign or transfer any of its rights or obligations under this Agreement. Sendster may assign or transfer any of its rights or obligations under this Agreement subject to advance notice to Customer.

17. Entire agreement

17.1 Except as set out in this Clause 17, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it upon which it relied in entering into this Agreement (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of this Agreement. Nothing in this Agreement shall exclude or limit either party's liability for any Misrepresentation made knowing that it was untrue.

18. Third party rights

18.1 This Agreement is made solely for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

18.2 The right of the parties to terminate, rescind or agree any amendment, variation, waiver or settlement under this Agreement is not subject to the consent of any person who is not a party to this Agreement.

18.3 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. This condition does not affect any right or remedy of any person which exists or is available otherwise pursuant to the Act.

19. Data Protection

19.1 For the avoidance of doubt, Sendster does not own any Customer Content or Contact Data that the Customer may upload using the Services. The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, suitability and intellectual property ownership or right to use for all Customer Content and Contact Data and Sendster shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Content or Contact Data. In the event that this Agreement is terminated (other than by reason of the Customer’s breach), Sendster will make available to the Customer a file of Customer Content and Contact Data within 30 days of termination, if the Customer so requests at the time of termination. Sendster reserves the right to withhold, remove and/or discard Customer Content and/or Contact Data without notice in the event of any breach of this Agreement by the Customer, including, without limitation, non-payment. Upon termination for cause, the Customer’s right to access or use Customer Content and/or Contact Data shall cease immediately and Sendster shall have no obligation to maintain or forward any Customer Content and/or Contact Data thereafter

19.2 Sendster may store and process personal data relating to Customer for its internal use and for the purposes of providing the Services. From time to time Sendster may contact Customer about future Sendster products and services. Customer may opt-out of receiving mailings by contacting Sendster at

20. Variation and waiver

20.1 A variation of this Agreement shall be made:

(a) Where expressly permitted by this Agreement, by Sendster posting such changes on the Site; or

(b) by Customer consenting to variations notified to it through the Site; or

(c) in writing and signed by or on behalf of both parties.

20.2 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

20.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

21. Severance

21.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22. Governing law and jurisdiction

22.1 This Agreement shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.