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Sendster mobile marketing - Terms & Conditions
This agreement (Agreement) applies to the registered company or business (you) registering to use services offered through the website at www.sendster.co.uk (the Site). The Site is operated by Sendster Limited, having its registered office at Clive House, 12-18 Queens Road, Weybridge, Surrey, KT13 9XB, UK (we, us). By registering on the Site you accept and agree that you will be bound by the terms of this Agreement.
1.1 Your registration on the Site represents an application by you to become a registered user of the Site and Services. In connection with such application, you acknowledge that: (i) We may require the provision of additional information concerning your business; (ii) we may conduct security checks prior to accepting any application; and (iii) acceptance of such application is at our sole discretion.
1.2 You warrant that all information provided to us under Clause 1.1 or otherwise in connection with this Agreement is complete and accurate in all respects.
1.3 We will notify you of our acceptance of an application and the date of such notification shall be the Start Date.
1.4 On or following the Start Date, we will allocate to you and/or activate a password giving you access to the Customer Portal. You must keep the password and other unique identifiers providing access to the Customer Portal confidential.
2. CONTACT DATA
2.1 With effect from the Start Date, you may upload Contact Data to the Site: (i) through the Sendster Portal; (ii) by inviting Contacts to send messages to us containing their Contact Data; and/or (iii) by such other methods as we may from time to time make available.
2.2 You and we acknowledge and agree that: (i) the Contact Data represent personal data under the terms of the Data Protection Act 1998 (the Act); and (ii) for the purposes of the Act, you act as data controller and we act as data processor. You must not upload to the Site any data identifying or personal to individual consumers other than data relating to Contacts.
2.3 Subject to Clause 2.5, you must ensure (i) that all use of the Contact Data as contemplated by this Agreement or otherwise instructed by you is authorised by the Act, the Regulations and by all associated guidelines, guidance notes, regulations, orders and similar instruments and enactments (Associated Enactments); and (ii) that all Contact Data is maintained up-to-date and not retained for longer than reasonably required. We will both comply with the Act, the Regulations and the Associated Enactments.
2.4 We will process the Contact Data only in accordance with your instructions as set out herein or as otherwise expressly authorised by you and not for any other purposes. We undertake that we will 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.
2.5 You agree that we may include in Messages to Contacts a request seeking consent for us to send Messages to that Contact on behalf of other Sendster Businesses (Additional Marketing). If a Contact consents to Additional Marketing we: (i) will give each Contact the right to opt-out of receiving Messages from us and shall comply with any opt-out request; and (ii) will act as data controller in relation to the relevant Contact Data held by us.
3.1 In consideration for the purchase by you of Credits and payment by you of any Charges, we will provide the Services on and subject to the terms of this Agreement.
3.2 With effect from the Start Date, you may order Services through the Customer Portal. You may order Pay-as-you-go Services only if you have sufficient Credits to pay for such Services. The provision by us of Recurring Services is subject to payment by you of the applicable Charges. You acknowledge that the Recurring Services may have a Minimum Term.
3.3 We may at any time and from time to time change the scope of the Services and/or the terms on which they are offered by posting notice of such changes on the Site. Any variation in the Recurring Charges for the Services will be notified to you in accordance with Clause 6.5.
3.4 We 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 Credit Value and/or Charges applicable to such Additional Services, together with any Minimum Term. You may order such Additional Services through the Customer Portal. If ordered, Additional Services will be provided on and subject to the terms of this Agreement.
4. CUSTOMER CONTENT
4.1 You will be responsible for preparing all Customer Content. You will deliver the Customer Content to us, by uploading it to the Customer Portal.
4.2 You will 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 us and published on the Site; and (v) is not prejudicial to our image and/or that of the Site. Without limiting the foregoing, you will ensure that all sales promotions launched by means of the Customer Content comply with all applicable Laws including without limitation the CAP Code and the Business Protection from Misleading Marketing Regulations 2008. You will not launch, promote or operate any prize draws, lotteries or competitions by means of the Services or Customer Content without our prior written consent.
4.3 If we reasonably believe that you are in breach of Clause 4.2 in relation to any Customer Content and/or that such Customer Content may create liability for us, we may suspend provision of the Services and/or remove the Customer Content.
4.4 You acknowledge that applicable Laws require that Contacts be offered a right to opt-out of receiving Messages. You agree that we may insert language into Messages offering a right of opt-out and/or such other wording as we consider may be required under applicable Laws.
4.5 Notwithstanding Clauses 4.3 and 4.4, we have no obligation to you, and undertake 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.
4.6 You hereby grant to us a non-exclusive royalty-free licence to distribute the Customer Content on the Customer Page and through the Messages in any territory from which the Site may be viewed and/or in which such Messages may be received.
4.7 The licence granted under Clause 4.6 permits us to:
(a) modify, electronically reproduce and distribute, and publicly perform and display the Customer Content on the Site and in the Messages; 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.
4.8 If the Customer Content includes a hypertext link to your website, you hereby grant to us a non-exclusive royalty-free licence to provide that hypertext link to your website via the URL(s) notified to us.
4.9 You hereby grant to us 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.
5.1 We may provide point-of-sale and other marketing materials for use by you in promoting the Services to Contacts (Marketing Materials).
5.2 In relation to all promotions of the Services to Contacts, you will (i) not hold yourself out or otherwise represent yourself as our agent or authorised to bind us or act on our behalf; (ii) ensure that all marketing and promotional materials produced by you are consistent with the Marketing Materials and with any information stated by us on the Site; and (iii) not make any representations or claims about us or about the Services other than those set out in the Marketing Materials or stated by us on the Site.
5.3 We may agree that you may reproduce the Sendster Marks in your promotion of the Services. If we so agree, you will have a revocable non-exclusive royalty-free licence to use the Sendster Marks as directed by us and in accordance with any branding guidelines from time to time issued by us. You will refrain from any use of the Sendster Marks to which we object. Any use of the Sendster Marks including any goodwill accruing from the same shall accrue solely to our benefit.
6. CREDITS AND CHARGES
6.1 You may purchase the Pay-as-you-go Services via a system of Credits. You may purchase Credits through the Customer Portal by credit/debit card and/or any method of payment from time to time permitted by us. The price and value of Credits shall be that stated on the Site at the time of purchase.
6.2 We may deduct Credits from your Account based on your use of the Pay-as-you-go Services and the Credit Value of the Pay-as-you-go Services.
6.3 You may purchase Recurring Services through the Customer Portal by credit/debit card and/or any method of payment from time to time permitted by us. You will ensure that you have sufficient funds available for collection of the Recurring Charges as and when such Recurring Charges fall due for collection and you will not take or fail to take any action that results in payment failure.
6.4 Save as otherwise expressly provided, the price of Credits and the Charges stated in this Agreement and on the Site are exclusive of VAT which if invoiced shall be payable at the prevailing rate.
6.5 We may at any time and from time to time increase the Charges for or Credit Value of any Service and/or introduce Credit Values for Services previously provided at no cost by posting such revised Charges or Credits Values on the Site. If we increase the Recurring Charges, we will give you thirty (30) days’ notice and you may cancel the relevant Recurring Service as provided in Clause 10.2.
6.6 If you fail to make payment of any amount when due, we will 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. This interest will accrue on a daily basis from the due date until the date of payment in full whether before or after judgment and will be payable on demand.
7. WARRANTIES AND INDEMNITY
7.1 We each warrant to each other that we and you have full power and authority to enter into and perform this Agreement.
7.2 You warrant to us 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.
7.3 We do not warrant or represent that the Site or Services are or will be fault-free and all such warranties, representations and other assurances are excluded. You acknowledge that the Site may occasionally be unavailable due to the performance of maintenance. If the Site or Services fail for any other reason within our control, we will use reasonable endeavours to remedy that failure as soon as reasonably practicable but we will not be liable to you for that failure in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise.
7.4 You acknowledge that the provision by us of the Services is reliant on services provided by our suppliers. In the event that our relationship with a supplier terminates for any reason or the services provided by that supplier are suspended or withdrawn: (i) We may suspend provision of the Services and seek another supplier to enable us to continue service provision; (ii) our liability 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 you in respect of the period of interruption; and (iii) if we cease the provision of Services as provided in this Clause 7.4 for more than ninety (90) days, you may terminate this Agreement by written notice to us.
7.5 You will indemnify us in respect of all costs, claims, damages, losses 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 you of Clauses 1.2, 4.2, 5.2 and/or 7.2.
8. LIMITATION OF REMEDIES AND LIABILITY
8.1 Nothing in this Agreement shall operate to exclude or limit our or your liability for:
(a) death or personal injury caused by our or your 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.
8.2 Save for liability under Clause 7.5 neither of us will 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 profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
8.3 Subject to Clause 8.1, our liability to you 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 you during such calendar year.
8.4 We may from time to time offer advice and/or guidance concerning the promotion or use of the Services either on the Site or in response to queries from you. Such advice and/or guidance represents our opinion on the matters in question but you acknowledge and agree that such advice and/or guidance is: (i) offered free of charge; (ii) is not offered in a professional capacity; and (iii) is not intended to be relied on.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 We retain 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 you in respect of such Intellectual Property Rights.
9.2 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Customer Content will remain with you. Except as expressly provided in this Agreement, nothing will be construed to grant to us any right, title or interest in or to the Customer Content. For the purposes of this Clause 9.2, the term Customer Content does not include any Contact Data in respect of which we act as data controller as provided in Clause 2.5.
10. TERM AND TERMINATION
10.1 This Agreement shall commence on the date you register on the Site and subject to earlier termination in accordance with this Clause 10 shall continue unless and until terminated by you or us. You may terminate this Agreement at any time after the expiry of any Minimum Term by accessing the Customer Portal and deleting your account. We may terminate this Agreement at any time after the expiry of any Minimum Term on fourteen (14) days written notice to you.
10.2 You may cancel your requirement for a Recurring Service: (i) by thirty (30) days’ notice to us such notice to be served within ten (10) days of receipt of a notice increasing the applicable Recurring Charges under Clause 6.5; and otherwise (ii) on one month’s notice to expire at any time after the expiry of the Minimum Period.
10.3 We may terminate this Agreement by ten (10) days’ notice to you if you fail to make payment of any overdue amount within fourteen (14) days of receipt of a reminder notice.
10.4 Either you or we may terminate this Agreement immediately at any time by written notice to the other (“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).
10.5 If at any time we have the right to terminate this Agreement we may immediately suspend the provision of Services under it. Any suspension under this Clause 10.5 or under Clause 4.3 shall be without prejudice to any right of termination we may have. It will not affect your obligation to make payment of the Charges.
10.6 The termination of this Agreement shall be without prejudice to any accrued rights and liabilities you or we may have. On such expiry or termination:
(a) We will remove all Customer Content from the Site (other than any Contact Data in respect of which we act as data controller as provided in Clause 2.5); and
(b) you will forthwith cease all use of the Sendster Marks and return to us all Marketing Materials; and
(c) all provisions of this Agreement shall cease to have effect, save for the following which shall continue in full force and effect: Clauses 6, 7, 8, 9, this Clause 10.6, and Clauses 14 and 21.
11. FORCE MAJEURE
11.1 We will not be liable for any failure to perform or delay in performing our obligations to the extent the same is attributable to a Force Majeure Event. You may terminate this Agreement by notice to us to have immediate effect if we have been subject to a Force Majeure Event continuously for more than ninety (90) days.
12.1 We will use reasonable endeavours to keep the Site secure from unauthorised intrusion, but will not otherwise be liable for the acts of unauthorised third parties gaining access to the Site.
12.2 You will keep all login and passcodes permitting access to the Site secure and confidential.
13.1 Save as otherwise set out in this Agreement, any notice given under this Agreement shall be sent by email. We may send notices to you at the email address provided during the registration process. You may send notices to us by using the following email: email@example.com.
13.2 A notice is deemed to have been received 24 hours after the email is sent. To prove service, it is sufficient to prove that the notice was transmitted to the correct email address.
You will 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 our prior written approval.
You may not assign or transfer any of your rights or obligations under this Agreement. We may assign or transfer any of our rights or obligations under this Agreement provided we give you advance notice.
16. ENTIRE AGREEMENT
Except as set out in this Clause 16, you will not have any remedy in respect of any untrue statement (whether written or oral) made to you upon which you relied in entering into this Agreement (Misrepresentation), and neither you nor we shall have any liability other than pursuant to the express terms of this Agreement. Nothing in this Agreement shall exclude or limit either your or our liability for any Misrepresentation made knowing that it was untrue.
17. THIRD PARTY RIGHTS
17.1 This Agreement is made solely for the benefit of us and you. It is not intended to benefit or be enforceable by any other person.
17.2 The right of you and us 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. DATA PROTECTION
We may store and process personal data relating to you for its internal use and for the purposes of providing the Services. From time to time we may contact you about future Sendster products and services. You may opt-out of receiving mailings by contacting us at firstname.lastname@example.org.
19. VARIATION AND WAIVER
19.1 A variation of this Agreement shall be made:
(a) Where expressly permitted by this Agreement, by our posting such changes on the Site; or
(b) by you consenting to variations notified to you through the Site.
19.2 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the company or person 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.
19.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
20.1 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.
20.2 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.
21. GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be governed by English law. You hereby submit to the exclusive jurisdiction of the English courts.
22.1 As used in this Agreement, the following capitalised terms have the meanings given below:
Account: the balance of Credits held by you at any given time.
Charges: the charges payable in respect of the Services as set out on the Site and from time to time revised in accordance with Clause 6.5.
Contact: an individual who has consented to receive direct marketing from you as required by the Regulations.
Contact Data: the mobile telephone, email and other contact information relating to a Contact.
Credits: units that may be purchased by Sendster customers by way of prepayment for the Services.
Credit Value: in relation to each Pay-as-you-go Service, the number of Credits charged by us for the provision of that Service, as set out on the Site and from time to time revised in accordance with Clause 6.5.
Customer Content: all text, information, data, software, executable code, images, audio or video material in whatever medium or form uploaded by you to the Customer Page or provided by you for transmission by means of the Services.
Customer Marks: any of your registered or unregistered trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans which you provide to us.
Customer Page: any web-page(s) on the Site from time to time allocated to you.
Customer Portal: any webpage through which you may access the Site and order Services.
Force Majeure Event: any event beyond our reasonable control 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 5.1.
Messages: any means of electronic communication used by us to communicate with Contacts and includes SMS messages and email.
Minimum Term: in relation to any Recurring Service means the period stated on the Site.
Pay-as-you-go Services: the Services identified as such on the Site.
Recurring Charges: means any charges of a periodic nature.
Recurring Services: the Services identified as such on the Site.
Regulations: together, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Consumer Protection from Unfair Trading Regulations 2008.
Sendster Business: means any customer of Sendster conducting direct marketing by means of the Services.
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, as may be varied in accordance with Clause 3.3.
Services: the email and mobile-based marketing services detailed on the Site, as from time to time revised in accordance with Clause 3.3.
Start Date: has the meaning given in Clause 1.3.
22.2 Clause headings do not affect the interpretation of this Agreement.
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.