(A) Wired Marketing Ltd is a provider of email marketing and data processing services in particular the provision of marketing tools, management information, storage and support.
(B) The Client wishes to engage Wired Marketing to provide such services to its business, upon and subject to the terms and conditions set out in this Agreement.
1.1 The following definitions apply in this Agreement:
“Agreement” means this agreement signed by Wired Marketing and the Client.
"Client" means the person, business, firm or company who contracts with Wired Marketing under this Agreement for the provision of the Services.
"Commencement Date" means the date of this Agreement.
"Contract" means the Payment Plan option for the payment of Services based on a fixed tariff pricing system as more particularly detailed on the Site. Clients who purchase Services on a Contract basis may send a specified number of emails for a fixed price, any further emails sent each month will be charged as an additional fee
“Data Protection Laws” means: (a) in relation to the Client all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (and state where applicable) in which the Client is located and all countries (and states where applicable) in which recipients of emails sent via the Services are located; (b) in relation to Wired Marketing all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (or state where applicable) in which the Wired Marketing is located;
"Fees" means Wired Marketing's Set-up Fee and Monthly Fees for the Services as agreed between the parties and set out in the Service Confirmation Form together with such other additional charges as may be agreed between the parties from time to time.
"Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, Trade Mark, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Material" means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to Wired Marketing but for the avoidance of doubt does not include material belonging to the Client
"Monthly Fees" means Wired Marketing's fees for the Services which will be charged on a monthly basis in accordance with the Payment Plan agreed between the parties and set out in the Service Confirmation Form.
"Service Confirmation Form" means the order form confirming the type of Package, the Payment Plan and the Fees that the parties have agreed, enclosed at schedule 1.
"Package" means the type of account and level of access granted to the Client for the Use of the Services which is agreed between the parties and set out in the Service Confirmation Form. There is one system package license:
"Pay As You Go" means the Payment Plan option for the payment of Services based on the number of emails sent by Wired Marketing on behalf of the Client as more particularly detailed on the Site.
"Payment Date" means the date on which Monthly Fees are paid which shall be on the first day of each calendar month.
"Payment Plan" means the pricing system agreed between the parties which will either be on a Contract or Pay As You Go basis.
"Services" means Wired Marketing's data processing services and provision of Software for use by the Client in accordance with the access level specified in Package. Specifically:
(a) Wired Marketing provides the Software to manipulate the personal data collected;
(b) Wired Marketing provides the facilities for the Client to send emails to data subjects who have expressly consented to the Client sending them such emails; and
(c) Wired Marketing provides facilities for the Client to export personal data together with such other services agreed between Wired Marketing and the Client from time to time or ancillary to the Services.
"Set-up Fee" means the one off fee charged by Wired Marketing for the set-up of their Enterprise Packages.
"Site" means Wired Marketing's website at www.wiredmarketing.co.uk
"Software" means Wired Marketing's data management and manipulation software which manipulates collected personnel data enabling the Client to send emails to its end users who have expressly consented to the Client sending them such emails and enables the Client to export personal data.
"Term" means the definition given at Clause 3.2 for Clients who have purchased Services on a Contract basis or the definition given at Clause 3.3 for Clients who have purchased Services on a Pay As You Go basis.
"Trade Mark" means Wired Marketing's unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of Wired Marketing or of any associated companies or third parties provided or used as a part of these Services or any application for registration anywhere in the world.
"Use" means direct use of the Services for email marketing, as a survey tool, as a microsite builder and such other use as may be, in accordance with the Package, used by the Client in accordance with this Agreement.
"VAT" means value added tax chargeable under English law for the time being and any similar additional tax.
"Wired Marketing" means Wired Marketing Limited of Unit 2, Kestrel Court, Burnley, BB11 5NA, incorporated and registered in England and Wales with company number 07286005, whose registered office is 22-28 Willow Street, Accrington Lancashire, England, BB5 1LP.
"Working Hours" means 09.00 to 17.30, Monday to Friday UK local time excluding statutory holidays in England and Wales.
1.2 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 of it, and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
1.6 References to "party" shall mean the Client or Wired Marketing and "parties" shall refer to both the Client and Wired Marketing;
1.7 A reference to writing or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.
1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 In this Agreement, any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise
2. Application of Terms
2.1 Wired Marketing shall provide the Services to the Client for the duration of the Term in accordance with this Agreement.
2.2 Subject to any modification under clause 14 the provision of the Services by Wired Marketing and the Use of the Services by the Client shall be upon and subject to this Agreement and the Service Confirmation Form to the exclusion of all other terms and conditions.
2.3 By entering into this Agreement each party warrants to the other that they have the power and authority to enter into this Agreement and perform its obligations under this Agreement.
3. Commencement and Duration
3.1 This Agreement shall come into force on the Commencement Date.
3.2 For Clients who have purchased Services on a Contract basis:
(a) the agreement shall continue for an initial period of 12 months unless terminated earlier in accordance with the provisions of this Agreement ("Initial Term").
(b) either party may give 30 days' written notice prior to the end of the Initial Term to terminate this Agreement. If neither party exercises this right the Agreement shall continue in force beyond the Initial Term for successive periods of 12 months starting from the anniversary of the Commencement Date ("Renewal Term").
(c) The Renewal Term will continue unless and until either party gives 30 days' written notice to the other party prior to the end of the Renewal Term to terminate the Agreement (such notice to expire at the end of a Renewal Term) or is terminated earlier in accordance with the provisions of this Agreement
(d) The Client will be liable to pay the Fees for the Initial Term and/or Renewal Term even if the Agreement is terminated prior to the expiry of the Initial Term or Renewal Term in accordance with this agreement save for termination in accordance with clause 7.4 and clause 14.2.
3.3 For Clients who have purchased Services on a Pay As You Go basis:
(a) There is no minimum contract period associated to the sends package however there is if a monthly annual enterprise license has been purchased. In such circumstances with reference to the Pay As You Go Sends, the Agreement shall continue until either;
(i) the Client gives one calendar months’ written notice to terminate the Agreement; or
(ii) the Agreement is terminated in accordance with one of the provisions set out in this Agreement.
(b) If the Agreement is terminated in accordance with either clause 3.3(a) the Client will be liable to pay any outstanding Fees owned and will not be entitled to a refund of any Fees paid.
4. Supply of Services
4.1 Wired Marketing will provide the Services using such skill and care as may reasonably be expected from a company experienced in the provision of services of the type, scope and complexity of the Services.
4.2 Wired Marketing uses third parties based both within and outside of the European Economic Area (EEA) to host the Wired Marketing application servers for the provision of the Services. The Client hereby consents to Wired Marketing using data centres located in the EU, the USA and other key global locations for the provision of the Services. Wired Marketing will use its reasonable endeavours to ensure that any such third party undertakes to provide its Services to standards regarding confidentiality and data protection that are no less equal to those contained in these Terms. The Client acknowledges that such third parties may have separate privacy and cookies policies that apply to the Services, of which Wired Marketing may inform the Client from time to time; Wired Marketing does not accept any responsibility or liability for such privacy policies, and it is the responsibility of the Client to check such privacy policies before submitting any personal data via the Services.
4.3 Wired Marketing does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay. Wired Marketing will use all reasonable endeavours to maintain an uninterrupted service during Working Hours.
4.4 Wired Marketing cannot guarantee the delivery of emails to any recipient under the Services as it is dependent upon accurate and up to date email addresses, upon suitable internet availability and connectivity, on various anti-spam and junk mail policies adopted by recipient email service providers as well as restrictions regarding the content, wording and graphics of an email.
4.5 Wired Marketing will use reasonable endeavours to assist the Client with methods to maximise the delivery rate of emails, however Wired Marketing makes no representations or warranties whatsoever about the speed or number of emails sent that will be delivered to recipients. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under clause 4.3 and clause 4.4.
4.6 Wired Marketing will process information about the Client in accordance with clause 8. By using the Site, the Client consents to such processing and warrants that all data provided by the Client is accurate so far as the Client is reasonably aware.
4.7 Where the Site contains links to other sites and resources provided by third parties, these links are provided for the Client's information only. Wired Marketing has no control over the availability or content of such other sites or resources, and accepts no responsibility or liability for them or for any loss or damage that may arise from the Client's use of third party sites or Materials.
4.8 The Software and Services are provided by Wired Marketing on an "as is" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement.
4.9 Wired Marketing does not warrant in any way that the Software is compliant with any laws or regulations outside of the United Kingdom. The Client shall be entirely responsible for compliance with all laws and regulations in force from time to time as may be applicable to the use of the Services by the Client.
4.10 The Client shall perform all acts, and do all such things, as Wired Marketing may require from time to time, including accepting and entering into any end user licence agreement made available by any relevant third party relating to the Software or the Services.
5. Client's Obligations
5.1 The Client shall not:
(a) use the Services in any way so as to bring the Services or Wired Marketing into disrepute;
(b) use the Services to send unsolicited or unauthorised advertising, unsolicited bulk email support services, promotional material, 'junk mail', 'spam', 'chain letters or pyramid schemes, offensive adult services, pornographic material, pornographic images, discriminatory material, communications promoting email address data lists or any other form of solicitation to any data subjects or third party;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Services;
(d) use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person's privacy;
(e) use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects;
(f) misuse the Site by introducing viruses, trojans, worms, logic bombs or other material which is technologically harmful or interrupts, destroys or limits the functionality of any computer software, hardware, telecommunications equipment;
(g) attempt to gain unauthorised access to the Site or Services, the server on which the Site or Services are stored or any server, computer or database connected to the Site or Services;
(h) attack the Site or Services via a denial-of-service attack or a distributed or malicious denial-of service attack;
(i) use the Services to upload or send to records purchased, rented or acquired from a third party in any way;
(j) upload, post, email or otherwise transmit content that it does not have the right to transmit under any law or contractual relationship (including confidential information of any other party);
(k) use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that deemed threatening or obscene, or engage in any kind of illegal activity; and/or
(l) contract with any third party provider of the Services or on behalf of whom Wired Marketing resells the Services or access to the Software, to receive the Services or access to the Software directly from such third party provider, for the duration of this Agreement and for six months after its termination for any reason.
5.2 For the avoidance of doubt, unsolicited bulk email support services described at clause 5.1(b) may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (ROKSO), services providing 'bullet-proof hosting' for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy.
5.3 Wired Marketing does not monitor the content of emails created by the Client, but may at its discretion immediately and without notice to the Client, if it considers that the Client is in breach of clause 5.1, suspend the Service, block the Client’s access to the Services for any period of time, and/or add any email addresses to its global suppression list. If Wired Marketing suspends the Service in accordance with this clause 5.1 no refund of the Fees paid by the Client will be made. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.3. The Customer is responsible and liable for the content of any emails sent using the Services or emails being sent to recipients in breach of this Agreement.
5.4 Wired Marketing firmly believes that email marketing must be built upon a foundation of good practice and permission. The Client must provide the recipient of any marketing email sent using the Services, the means to control the frequency which businesses communicate with them as well as must be given clear and unambiguous means to unsubscribe from further emails.
5.5 It is a condition of the provision of these Services that the Client agrees to follow the Committee of Advertising (CAP) Code (summarised in brief in the attached Schedule 2 ) in all marketing communications and that the reputation, goodwill and brand of Wired Marketing and of any associated companies are fully preserved and protected.
5.6 The Client agrees:
(a) to comply, and to ensure that its Use of the Services complies, in all respects, with all applicable legislation, regulations, directions, codes of practice, best practice guides (including, without limitation, the Direct Marketing Association (DMA) best practice guides, The CAP Code, the Spamhaus best practice guides) and other rules and guidelines, mandatory or otherwise, promulgated from time to time by governments, regulators and/or email user groups acknowledged both UK and worldwide (collectively known as the "Codes");
(b) that where Wired Marketing is aware or is notified that a Client is or has been in breach of any Codes, Wired Marketing may at its discretion immediately and without notice to the Client suspend the Service. If Wired Marketing suspends the Service in accordance with this clause 5.6(b) no refund of the Fees paid by the Client will be made. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.6(b);
(c) to provide all reasonable assistance to Wired Marketing to comply with any requirements or conditions which are at any time imposed by law or any regulator or appropriate user group which are applicable to or affect the Services;
(d) to provide, Wired Marketing, relevant authority, user group or regulator with such information or material relating to the Services or a future service as it may reasonably request in order to carry out any investigation in connection with the Services; and
(e) not use the Services to upload or send to records purchased, rented or acquired from a third party in any way.
Wired Marketing has no responsibility or liability whatsoever howsoever arising directly or indirectly to the Client for the content of any emails sent using the Services or emails being sent to recipients in breach of the Client of its obligations contained in this Agreement.
5.7 In the event of a breach by the Client of this Agreement, applicable legislation, regulations, directions, Codes, codes of practice, best practice guides and other rules and guidelines Wired Marketing will review the circumstances leading to the breach and may in its absolute discretion (taking account of the Client's track record of Use of the Services) either;
(a) suspend the provision of Services;
(b) terminate the provision of Services; and/or
(c) reactivate the Services subject to the Client providing documentary evidence that the breach was caused inadvertently and while acting in good faith and that appropriate steps have been taken to prevent any further reoccurrences.
Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.7.
5.8 The Client will keep its password and other access details for Use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all members of staff are aware of the confidential nature of such information and treat it accordingly.
5.9 The Client shall notify Wired Marketing immediately if it believes that such information is no longer secret.
5.10 The Client is solely responsible for all activities that occur under the Client's password or account.
5.11 The Client will not permit any person to access the Services for any unauthorised purpose that would constitute a breach of these Terms if such a breach was carried out by the Client.
5.12 Wired Marketing does not accept and shall have no responsibility or liability whatsoever and howsoever arising directly or indirectly to the Client for the content of any emails sent using the Services or for sending them to the recipients in accordance with the Agreement.
5.13 Without prejudice to its other rights in the Agreement Wired Marketing reserves the right to immediately remove any item included in any emails forming part of the Services or any other item or material made available via the Services by the Client at any time and without notice, where the content is in Wired Marketing's reasonable opinion a breach of the Agreement. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.13.
5.14 If the Client fails to take the remedial actions required by Wired Marketing within any timescale required, Wired Marketing reserves the right to terminate this Agreement upon giving notice to the Client and the Client shall become immediately liable to pay all outstanding fees for remainder of the unexpired Term.
5.15 The Client warrants that it will not use the Service to send email communications advertising or promoting email lists or services supporting unsolicited bulk email. Any Client who uses the Services to promote or advertise email lists or services supporting unsolicited bulk email will have their account disabled without notice and with immediate effect and no refund of Fees or other payments to Wired Marketing will be made. Unsolicited bulk email support services may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (ROKSO), services providing 'bullet-proof hosting' for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this Clause 5.15.
5.16 The Client is not permitted to conduct vulnerability scanning, or any form penetration testing against the Services or application servers.
6. Account Manager
6.1 Wired Marketing will ensure that Clients who have purchased an Enterprise Package will have an account manager appointed.
6.2 Clients will be provided with contact details of Wired Marketing's support team. Depending on the Package purchased, support may be provided by either email or phone. Support will be provided only by Wired Marketing, whether any element of the Package is provided by a third party or resold by Wired Marketing on behalf of a third party.
6.3 The account manager may change from time to time.
7. Fees and Payments
7.1 The Client shall pay the Fees for the Services in accordance with the Agreement, any terms set out in the Service Confirmation Form and any other payment terms agreed in writing with Wired Marketing.
7.2 Payment shall be made in pounds Sterling. All Fees quoted to the Client for the provision of the Services are exclusive of any VAT, for which the Client shall be additionally liable at the applicable rate from time to time
7.3 Wired Marketing may at its reasonable discretion, alter the level of Fees or change or modify the payment terms under the Agreement upon giving the Client 30 days' notice of the same either by email or notification on the website.
7.4 Within 14 days of receiving such notice, the Client may notify Wired Marketing in writing that it wishes to terminate the Agreement on 90 days’ notice with no change to the Fees or payment terms during such notice period. Wired Marketing may then either:
(a) accept the notice of termination from the Client;
(b) make amendments to the proposed charge; or
(c) withdraw its notice to the Client. In such case the Agreement will continue on the original terms agreed between the parties.
If no such notice is received from the Client, then the Client shall be deemed to have accepted the changes proposed by Wired Marketing.
7.5 Payment of the Fees shall be made by direct debit by the Client to Wired Marketing. The Client shall set up a direct debit mandate for payment of the Fees which must be completed and returned to Wired Marketing within 7 days of signing this Agreement for Services.
7.6 At its sole discretion confirmed in writing, Wired Marketing reserves the right to accept payment of Fees by cheque or bank transfer.
7.7 Subject to any variation agreed in writing between the parties from time to time, the Fees and any additional sums payable shall be paid by the Client (together with any applicable Value Added Tax, and without any set off or other deduction) to Wired Marketing on the Payment Date.
7.8 If the Client fails to pay Wired Marketing any Fees due under this Agreement, then Wired Marketing shall be entitled to charge interest (both before and after any judgement) on the outstanding amount at the rate of 3% above the base rate of Barclays Bank Plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full.
7.9 If the Client fails to pay any sums due on the Payment Date, Wired Marketing shall notify the Client and reserves the right to immediately disable the account and temporarily suspend the provision of the Services to the Client until such time as any outstanding invoices have been settled in full, whereupon the Services will be reinstated.
7.10 Wired Marketing reserves the right to carry out credit checks on the Client and by signing this Agreement the Client expressly consents to such credit checks. Credit checks may be carried out without notice from time to time.
7.11 Wired Marketing reserves the right to suspend services or to provide a restricted Service limiting the send volumes of emails based on the results of any credit checks carried out. Wired Marketing also reserves the right to apply a limit on Fees incurred by the Client and/or to request payments of Fees in advance during the provision of the Services if a Client's credit rating worsens. Such restricted Service and Fee limitations will be notified to the Client in writing and shall continue until such time as Wired Marketing may elect at its sole discretion.
7.12 If Wired Marketing has a right to suspend the Services and access to the Software under this Agreement for late payment by the Client of any invoice, and the Client disputes that invoice for what Wired Marketing considers (at its absolute discretion) to be valid and reasonable grounds, Wired Marketing may (at its absolute discretion) agree to continued provision of the Software for a further 14 days whilst discussions take place to resolve the basis of the dispute. Where there have been previous unfounded disputes over invoices with the Client, Wired Marketing may at its absolute discretion suspend the Client’s access to the Software without allowing any 14 day extension for resolution of the dispute. If the Client disputes any portion of an invoice based upon use of the Software, Wired Marketing’s records of such usage shall be presumed to be accurate.
7.13 The Client may not withhold payment of any amount due to Wired Marketing because of any set-off, counter-claim, abatement, or other similar deduction.
8. Data, Data Protection and Indemnity
8.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws. The Client is the data controller in respect of any personal data that Wired Marketing processes in the course of providing Services. The personal data is derived from data provided by the Client and is not checked or monitored by Wired Marketing and, accordingly, Wired Marketing has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, contents or use of such personal data under this clause 8.1.
8.2 Wired Marketing warrants that it will not disclose any personal data to any business, organisation or individual without the Client's prior written consent, unless required by law.
8.3 Wired Marketing has no responsibility or liability for the storage or back up of Client data and although back-ups shall be carried out at regular intervals, the Client shall remain entirely responsible for making its own back-up of such data if required, particularly but not limited to when the Client adds a significant amount of data over a short time period. Wired Marketing shall incur no direct or indirect liability to the Client for any loss or damage, however caused, arising from any loss of data under this clause 8.3.
8.4 Wired Marketing warrants that to the extent that it processes any personal data of the Client under these Terms that it shall:
(a) have in place reasonably appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access; and
(b) it shall only process such personal data in accordance with the Client's instructions and only to the extent reasonably necessary to fulfil its obligations under this Agreement.
8.5 The Client and Wired Marketing comply with all applicable data protection and communications legislation (including without limitation, if located in the European Economic Area (EEA), any locally applicable legislation giving effect to EC Directive 95/46/EC and EC Directive 2002/58/EC such as the provisions of Date Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003). In particular, each party shall:
(a) if located or operating in the EEA, ensure that it is appropriately registered;
(b) take appropriate organisational and technical measures against unauthorised or unlawful processing;
(c) obtain where appropriate express, specific and informed consent when obtaining personal data from data subjects;
(d) keep full records of its customers opt-in/opt-out choices regarding unsolicited emails;
(e) if located or operating in the EEA, only transfer personal data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant data subject.
8.6 Wired Marketing shall not use any Client data or Materials except in connection with the provision of Services to the Client as set out in this Agreement or as required by law, regulation or regulatory body or any court of competent jurisdiction. Wired Marketing shall at all times comply with its obligations under Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
9. Ownership and Intellectual Property Rights
9.1 The Client acknowledges and Wired Marketing warrants that:
(a) Wired Marketing, and its licensors, own the Intellectual Property Rights in and to the Materials, the Package, the Software and the Services (the “Licensed Rights”); and
(b) as far as Wired Marketing is aware the Software, the Services and Materials do not infringe the rights of any third party.
9.2 Wired Marketing hereby grants to the Client a personal, non-exclusive, revocable and non-transferable licence to Use the Licensed Rights for the duration of the Term strictly in accordance with the level of service agreed in the Package and with the terms of this Agreement. Nothing in this Agreement or any licence or sublicence granted under it shall convey or transfer any ownership or proprietary interest in any Licensed Rights to the Client or any third party. The Client is not granted any rights in relation to the Licensed Rights except for those rights expressly granted in this Agreement
9.3 The Client shall not:
(a) be entitled to use the Licensed Rights for any other purpose than the Use, including, without limitation, that the Client shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works, modify, sell, rent, lease, transfer, assign, sub-licence, make any representations, warranties or guarantees with regard to the Licensed Rights in whole or part except to the extent as cannot be prohibited by law, and the Client acknowledges that the Materials will not be treated as goods within the meaning of the Sale of Goods Act 1979;
(b) modify or create derivative works of the Licensed Rights, the Software, the Services or the Materials;
(c) permit the Software, Materials or Services or any part of it to be combined or merged with or become incorporated in any other program;
(d) encumber the Software, Materials or Services;
(e) remove or alter any copyright or other proprietary notice on the Software, Materials or Services;
(f) distribute, modify, transmit, re-use, re-post or use any of the Licensed Rights for any purpose other than as set out herein nor for public or commercial purposes without Wired Marketing’s prior written permission;
(g) provide hypertext links, URL Links, graphic links, hyperlinks or other direct connection for profit or gain to the Software, Materials or Services without Wired Marketing's or the relevant licensee's prior written permission;
(h) display, publish, copy, print, post or otherwise use the Software, Materials or Services or the Intellectual Property Rights contained therein for the benefit of any other website without Wired Marketing’s or the relevant licensee's prior written permission; or
(i) process or otherwise use the information contained on or within the Software, Materials or Services for any illegal or immoral purpose nor use or process the same unfairly.
9.4 The Client shall only Use the Intellectual Property and/or Materials or any Wired Marketing branding in the form stipulated by Wired Marketing from time to time and shall observe all directions given by Wired Marketing as to colours and size and representations of the Trade Mark and branding and their manner and disposition on the Client's products, packaging, labels, wrappers and any accompanying leaflets, brochures or other materials.
9.5 The Use of the Intellectual Property and/or Materials by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by Wired Marketing and the Client shall cease any use to the contrary as Wired Marketing may require.
9.6 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its Services or use the Trade Mark as part of any corporate business or trading name or style.
9.7 Wired Marketing may use the Client's trade marks for publicity purposes only in a form and manner approved by the Client in writing in advance. Wired Marketing may at any time refer to the Client in Wired Marketing' marketing and advertising communications.
9.8 As soon as it becomes aware, the Client shall give Wired Marketing in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of Wired Marketing's rights in relation to the Licensed Rights or to passing off.
9.9 If the Client becomes aware that any other person, firm or company alleges that the any of the Licensed Rights is invalid or that use of the Licensed Rights infringes any rights of another party or that any of the Licensed Rights is otherwise attacked or attackable the Client shall as soon as reasonably possible give Wired Marketing full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof. The Client shall, at the request and expense of Wired Marketing, take all such steps during this Agreement as Wired Marketing or its licensors may reasonably require to assist Wired Marketing or its licensors in maintaining the Licensed Rights, or to take or defend any court or other dispute proceedings concerning the Licensed Rights.
9.10 Wired Marketing shall have the conduct of all proceedings relating to the Intellectual Property and/or Materials and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property.
9.11 The Client shall not be entitled to bring any action relating to the Intellectual Property in its own name but shall reasonably assist Wired Marketing upon Wired Marketing' reasonable request. Wired Marketing agrees to reimburse the Client's reasonable expenses incurred in complying with clauses 9.9, 9.10 and 9.11.
10.1 Subject to clause 10.2, neither party shall disclose at any time during the Term or for a period of 10 years after Termination, to any third party any information relating to the other party including information relating to:
(a) Intellectual Property, software, the Software, materials, Materials, products, systems, operations, processes, plans or intentions, product information, know-how and market opportunities; and
(b) business, identity and affairs of the business, identity and affairs of its directors, officers, employees, customers and potential customers or personal data relating to customers, suppliers, agents, or subcontractors and the like, which comes into the possession of the other party as a result of or in connection with the performance of the Agreement.
10.2 The provisions of clause 10.1 shall not apply to any information which
(a) is in or enters the public domain other than by a breach of clause 5.1; or
(b) is in the possession of the receiving party without restriction in relation to disclosure before the date of its receipt in connection with the Agreement; or
(c) is obtained from a third party who is lawfully authorised to disclose such information and is provided to the receiving party without any obligation of confidentiality; or
(d) is authorised in advance for release by the disclosing party.
11.1 It may be necessary for Wired Marketing to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services.
11.2 Wired Marketing will use its reasonable endeavours to provide the Client with at least 48 hours' notice of temporary suspensions of the Services and will aim to carry out any scheduled and planned maintenance or repair work outside of Working Hours in order to minimise disruption to the Services provided to the Client.
11.3 Wired Marketing reserves the right to carry out urgent maintenance or repair work at any time.
11.4 Services may also be suspended in whole or in part where Wired Marketing or any third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation. Wired Marketing accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 11.4.
12. Suspension and Termination
12.1 Wired Marketing may suspend the provision of Services:
(a) in the event of any breach by the Client of this Agreement; and/or
(b) if, in the reasonable opinion of Wired Marketing, the Client's use of the Software or continued provision of the Services damages, or threatens, to damage the security or stability of the services provided by Wired Marketing or its licensors to other customers or clients, or damages the reputation and goodwill of Wired Marketing or its licensors due to the actions of the Client.
12.2 Wired Marketing may also immediately and without notice suspend the provision of Services to the Client if the Client's account remains inactive for a period of 12 months or more. In the event of such suspension, Wired Marketing shall use its reasonable endeavours to investigate the Client's Services or Software as soon as possible and any complaint raised about the Client. The Client may not claim for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract, loss of use; loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or business interruption in such circumstances of suspension and investigation.
12.3 Wired Marketing may suspend or terminate (at its absolute discretion) the Agreement (and Services) forthwith on giving written notice if the Client:
(a) commits any material breach of the Agreement and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice so to do;
(b) becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend trading, wind up or dissolve the Client other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading;
(c) commits multiple infringements of this Agreement;
(d) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(e) the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(f) there is a change of control or ownership of the Client; or
(g) the Client purports to assign its rights or obligations under this Agreement.
12.4 Any termination of the Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under the Agreement and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in the Agreement.
12.5 The period during which Wired Marketing may suspend the Services in accordance with the Agreement will continue until the circumstances giving rise to Wired Marketing's right to suspend the Services ceases to subsist or until the Agreement is terminated.
12.6 In the event that Wired Marketing suspends or terminates the provision of Services to the Client under clause 12 the Client will continue to be obliged to pay any Fees owing or that arise during the period when the Service is suspended.
12.7 Where the provision of Services to the Client has been suspended Wired Marketing reserves the right to charge the Client a £30.00 administration fee for reconnection or any resumption of the provision of the Services.
12.8 Upon termination of the Agreement for whatever reason:
(a) there shall be no refund of any element of the Fees to the Client (save for termination in accordance with clause 7.4 and clause 14.2);
(b) all unpaid Fees shall become immediately due to Wired Marketing (in whole or in part on a pro rata basis where part of a periodic charge which is charged in arrears is due);
(c) Wired Marketing will be under no obligation to retain any data (including but not limited to personal data);
(d) the Client shall immediately cease using the Intellectual Property and the Materials and Wired Marketing shall immediately cease using any trademarks of the Client for publicity purposes;
(e) clauses 7.8, 7.9, 8.1, 8.2, 8.5, 8.6, 10.1, 10.2, 12.4, 12.5, 12.6, 12.8, 13, 15, 16, 18 and 19, shall survive termination of this Agreement for a period of ten years from the date of termination;
(f) the Client shall return or (at Wired Marketing’s request) destroy any Confidential Information and other property or materials of Wired Marketing then in its possession or control, and certify in writing to Wired Marketing that this has been done;
(g) all rights and licences of the Client under this Agreement shall terminate on the termination date; and
(h) the Client shall immediately cease using the Software and the Services.
12.9 Where the provision of Services, or access to the Software, to the Client has been suspended for any reason, Wired Marketing reserves the right to charge an administration fee for reconnection or any resumption of the provision of the Services, or access to the Software, as applicable
13.1 In the event of any dispute between the parties to the Agreement the parties shall within 10 days of a written request from a party to the other, meet in a good faith effort to resolve the dispute without recourse to proceedings.
13.2 If the dispute is not resolved as a result of such meeting, any party may (at such meeting or within 14 days from its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor (the "Neutral Adviser").
13.3 If the parties are unable to agree on the appointment of a Neutral Adviser or the Neutral Adviser is unable or unwilling to act, either party may within fourteen days from the date of the proposal to appoint a Neutral Advisor or within fourteen days of notice to any party that he or she is unable or unwilling to act, apply to the Centre of Effective Dispute Resolution (CEDR) to appoint a Neutral Adviser.
13.4 The parties shall within 14 days of the appointment of the Neutral Adviser meet with him or her in order to agree a programme for the exchange of any relevant information and the structure to be adopted for the negotiations. If considered appropriate, the parties may at any stage seek assistance from CEDR to provide guidance on a suitable procedure. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings.
13.5 If the parties accept the Neutral Adviser's recommendations or otherwise reach agreement on the resolution of the disputes, such agreement shall be set down in writing and, when signed by their duly authorised representative, shall be binding on the parties.
13.6 Failing agreement, either of the parties may invite the Neutral Adviser to provide a non-binding opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings commenced pursuant to the terms of the Agreement without the prior written consent of the parties.
13.7 In the event of an invoice being disputed by the Client for an alleged breach or error by Wired Marketing, Wired Marketing may agree to continued provision of the Services for a further 14 days whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 13.
13.8 Where there have been previous unfounded disputes over invoices with the Client, Wired Marketing may at its reasonable discretion suspend the Services to the Client without allowing any 14 day extension for resolution of the dispute. If the Customer disputes any portion of an invoice based upon usage of the Services, Wired Marketing's records of such usage shall be presumed to be accurate unless proved otherwise by an independent expert.
14.1 Wired Marketing may at its reasonable discretion, change or modify the Agreement or Services upon giving the Client 30 days' notice of the same either by email or notification on the website.
14.2 Within 14 days of receiving such notice, the Client may notify Wired Marketing in writing that it wishes to terminate the Agreement with effect from the date of any proposed change to the Agreement or Services. Wired Marketing may then either:
(a) accept the notice of termination from the Client;
(b) make amendments to the proposed charge; or
(c) withdraw its notice to the Client. In such case the Agreement will continue on the original terms agreed between the parties.
If no such notice is received from the Client, then the Client shall be deemed to have accepted the changes proposed by Wired Marketing.
15. Transfer and Subcontracting
15.1 Wired Marketing may at its reasonable discretion and upon reasonable prior notice to the Client assign, transfer or deal in any other manner with all or any of its rights under the Agreement or any part thereof to a third party.
15.2 The Client may not assign, sub-contract, sub-licence or otherwise transfer any rights or obligations under the Agreement or any part thereof without the prior consent in writing of Wired Marketing.
16. Limitation of Liability and Indemnity
16.1 This clause 16 sets out the entire financial liability of either party to the other (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) in respect of any:
(a) breach of the Agreement;
(b) any use of the Services or the Software or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
16.2 Other than where expressly stated, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
16.3 Nothing in the Agreement limits or excludes the liability of either party:
(a) for death or personal injury resulting from negligence;
(b) for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;
(c) any other liability that cannot be excluded or limited by law.
16.4 Subject to clause 16.3 :
(a) Wired Marketing shall not be liable to the Client for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) Wired Marketing’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution arising in connection with the performance, or contemplated performance, of the Agreement, including any indemnity or contribution, shall be limited to the total value of the Agreement or £25,000 (whichever is the lower) in respect of any single claim or series of connected claims brought by either party under the Agreement.
16.5 The Client shall indemnify Wired Marketing against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Wired Marketing arising out of or in connection with:
(a) the content that the Client submits, posts or transmits via the Software or the Services; or
(b) the Client's use or misuse of the Software or Services; or
(c) the use/misuse by any third party, employee or person (without limitation) for whom the Client is responsible; or
(d) the Client's violation or breach of this Agreement in any way.
16.6 Subject to clause 16.3, Wired Marketing shall not be responsible in any way or liable howsoever for:
(a) any data of any kind held by Wired Marketing or on the Software; the Client shall be responsible for handling, maintaining or deleting such data at all times and in compliance with this Agreement;
(b) the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other content stored on Wired Marketing’s equipment, transmitted over networks accessed by the Software, or otherwise connected with the Client's use of the Software;
(c) the deletion or failure to store any messages, communications or other content maintained or transmitted by the Software;
(d) any disputes the Client may have with any third parties that it may engage (including, but not limited to, for promotions, advertising, or merchants that it may engage with through the Client’s use of the Software);
(e) any viruses or any other disabling features that affect the Client’s access or use of the Software;
(f) any incompatibility between the Software and other websites, services, software or hardware;
(g) any delays or failures the Client may experience in initiating, conducting or completing any transmission or transactions in connection with the Software; and
(h) any modification, suspension or discontinuance of any of Wired Marketing’s websites, domain names, services or the Software;
16.7 Nothing in this Agreement shall restrict or limit the Client’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this Agreement.
17. Force Majeure
17.1 Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of Fees) under the Agreement cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Site, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities, unavailability of internet default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security), obtain materials or supplies and, in all cases, the inability to do so except at increased prices (whether or not due to such causes).
17.2 However, if such circumstances persist for more than 14 days, the non-defaulting party may terminate the Agreement and all Fees due to Wired Marketing up to the date of termination shall become immediately due and payable.
18.1 Each right or remedy of Wired Marketing under the Agreement is without prejudice to any other right or remedy of Wired Marketing whether under the Agreement or not.
18.2 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable, and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
18.3 Failure or delay by Wired Marketing in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.
18.4 Any waiver by Wired Marketing of any breach of, or any default under, any provision of the Agreement by the Client shall not be deemed a waiver of any subsequent breach or default, and shall in no way affect the other terms of the Agreement.
18.5 The parties to the Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.6 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the jurisdiction of the English Courts.
18.7 Except where otherwise expressly stated herein, this Agreement (and any document referred to in it) constitutes the entire agreement between the parties relating to the subject matter of the Agreement and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of the Agreement. Nothing in this clause 18.7 or any other provision in this Agreement shall operate to exclude or limit either party's liability for fraud.
18.8 The Agreement shall not be deemed to create any partnership or employment relationship between the parties.
19. Communication and Notices
19.1 All notices between the parties about this Agreement shall be in writing and sent by pre-paid first class post or by email.
19.2 All notices sent to Wired Marketing should be sent to its registered office or such changed address as shall be notified to the Client by Wired Marketing or by email to firstname.lastname@example.org.
19.3 All notices to the Client should be sent to the address or email address of the Client specified in this Agreement or such other address or email address as shall be notified to Wired Marketing by the Client.
19.4 All other communications between the parties may be made by email or telephone. Wired Marketing's telephone number is 0845 467 5234 or such changed telephone number as shall be notified to the Client by Wired Marketing.
19.5 Communications and notices shall be deemed to have been served / received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if sent by email on a working day prior to 5.00 p.m., at the time of transmission and otherwise on the next working day.
19.6 Communications addressed to Wired Marketing shall be marked for the attention of a Director.
Overview of the Committee of Advertising Practice (CAP) Code
All marketing communications in the UK are governed by the Committee of Advertising Practice (CAP) Code which is enforced by the Advertising Standards authority, full details of which can be found at www.cap.org.uk.
The general principles of this code are that the content of any marketing email should be legal, decent, honest, truthful, prepared with a sense of responsibility to consumers and society and in line with the principles of fair competition.
Some specific sections of the code which may be relevant to email marketing include:
• Marketers, publishers and owners of other media should ensure that marketing communications are designed and presented in such a way that it is clear that they are marketing communications. Unsolicited e-mail marketing communications should be clearly identifiable as marketing communications without the need to open them.
• E-mail and mobile marketing communications should contain the full name and a valid address (e.g. an email address) of the marketers to which recipients can send opt-out requests.
• Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation... The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication.
• Marketing communications should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency.
• E-mail and mobile marketing communications should contain the full business name, registered office and Company registration number of the sender and must provide a valid mechanism for the recipients request to be unsubscribed.