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Emailagency business terms and conditions

Version 1.0 (01/06/09)

Terms and Conditions

1. Definitions and Application

In this Contract:

1.01	API - means application program interface that is included in or linked to the Email Agency Software - Including XML;
1.02	Email Agency - The Email Agency Limited, Eagle Tower, Montpellier Drive, Cheltenham, Gloucestershire, GL50 1TA.
1.03	Change request - means any request to change any aspect of any service, software or emarketing campaign which falls outside of the scope of the original proposal;
1.04	Commencement date - means the date of Email Agency acceptance of the client's order specified by the date on Proposal Acceptance Form or the Service Contract Agreement or the first day of provision of service whichever is earlier;
1.05	Client - means the client with whom Email Agency makes this contract including a person reasonably appearing to Email Agency to act with that client's authority. The term client applies to persons after a contract has expired, been cancelled or has been terminated;
1.06	Documentation - means any online or otherwise enclosed documentation provided by Email Agency;
1.07	Domain names - means Internet addresses which have been registered with the central registration authorities on the Internet on behalf of the client;
1.08	Gigabyte - means 1,073,741,824 bytes or characters of information;
1.09	Go live - means the date at which the software or web pages are made available on the WWW.
1.1	Gone live - means after the date at which the software or web pages have been made available on the WWW.
1.11	Hosting - means the making available of the clients domain name to the Internet community or the making available of the clients content to the internet community;
1.12	Illegal - means any act or acts which are capable of breaching the criminal law of England and Wales, the European Union or International Laws;
1.13	In writing - means communicated by email, letter or fax;
1.14	IP - means Intellectual Property;
1.15	Last date of service provision - means the last date of use of any software or services that were provided for use by the client
1.16	Launched - the date and time that an electronic marketing campaign is sent to recipients and/or the date and time that an electronic marketing campaign, web site or software service is made available on the WWW;
1.17	Megabyte - means 1,048,576 bytes or characters of information;
1.18	Renewal date - means the date of renewal of this contract between the client and Email Agency. Unless otherwise stated the renewal date will be 12 months from the initial contract date (see Proposal Acceptance Form) renewing on a 12 month
1.19	Support - means help given by Email Agency to any in contract client to resolve problems in using or accessing any Email Agency service. It does not imply Email Agency will always be able to resolve outstanding support issues;
1.2	Services - means Email Agency including Hosted Business Information Services, Web and Microsite development Services and Electronic Marketing Services;
1.21	This contract - means the contract between the client and Email Agency incorporating these terms and conditions;
1.22	Upload - means transfer computer files to the Email Agency computer system for publication on the Internet, WWW;
1.23	WWW - means World Wide Web service available on the Internet;
1.24	Web site - means the area on Email Agency's computer system allocated to the client for the purpose of this order;
1.25	Working hours - means the hours of 9am to 5pm BST, Monday to Friday, excluding UK Public holidays;

2. General Terms and Conditions

2.01	This Agreement is made between the Client and Email Agency. This Agreement sets out the Terms and Conditions between the above parties with respect to the commercial exploitation of Email Agency products and services.

3. Provision of Service

3.01	This contract covers the provision of service by the Email Agency and supplying these to the client. It supersedes and takes precedence over any previous written or oral representations given or made by the company or any representatives of the company. In agreeing to the provision of the services, the client is deemed to have read and understood these terms and conditions.
3.02	Any date proposed either by the client or Avensc for the provision of services to be treated as an estimate only and Avensc accept no liability for any failure to meet it.
3.03	Unless the Email Agency receive a notice in writing from the client terminating this contract at any time prior to the renewal date, the client will be deemed to renew the contract for the period covered by the issued renewal notice and be subject to the terms and conditions referred to herein. An account cancellation form can be obtained on request from the Email Agency.

4. IP Rights

4.01	The client acknowledges and agrees that any and all IP Rights are and shall remain the exclusive property of Avensc. Nothing in this Agreement intends to transfer any IP Rights to, or to vest any IP Rights in the client. The client is only entitled to the limited use of the IP Rights granted in this Agreement. The client will not take any action to jeopardize, limit or interfere with the IP Rights. The client acknowledges and agrees that any unauthorised use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
4.02	The client agrees that they will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or the Email Agency's rights and ownership thereof.
4.03	Intellectual property rights regarding any translations made by the client of any information on or accessible through the Email AgencyWebsite or as otherwise requested of the client by the Email Agency at any time prior to or subsequent of the Effective Date will be and remain the sole and exclusive property of the Email Agencywithout any compensation to the client. Insofar as necessary, this Agreement serves as a deed of assignment of all of the clients right, title and interest in and to such translations to the Email Agency, notwithstanding the clients obligation to cooperate with Avensc in order finalise any other deed upon the Email Agency's first request. You hereby irrevocably waive to the extent permitted by law any moral rights relating to the clients translations. You furthermore represent and warrant that (a) You are authorized to assign Your rights as stated above and (b) Your translations are correct and accurate and (c) the translations do not infringe upon any third parties' rights, including but not limited to intellectual property rights.
4.04	You are not allowed to use Email Agency Promotional Materials without express prior written permission.
4.05	Any work undertaken by Email Agency on behalf of the client shall be the property of the client subject to full payment being made for the work done. This work includes but is not limited to the following; all elements of visual website and email design developed for the client (for example; htm, html, css, gif, jpg, png, swf, swi, fla, flv) all server and client-side scripts developed for the client (for example; asp, php, js, vb, vbs)
4.06	Any data entered into any Email Agency computer or provided to Email Agency by the client will remain the property of the client and may be requested at the point of termination or cancellation of contract. Under the Data Protection Act, Email Agency will act as a Data Processor for the client.
4.07	The client has no ownership rights over any software or computer provided by Email Agency in order to deliver any service to the client.
4.08	Subject to termination of contract(s) under section 12 or 13 Email Agency will provide any client IP to the client at reasonable cost.

5. The Clients Responsibilities

5.01	It is the client's obligation to ensure that they do not upload a virus to the web space provided by Email Agency which could infect the Email Agency server. The client must not allow a virus to enter the Internet community by allowing Internet users to download files containing viruses and knowingly or otherwise from their web space which is on an Email Agency server.
5.02	It is the client's obligation to ensure that any material being uploaded is not in breach of copyright. Email Agency accepts no responsibility for the client's actions in either uploading material to the WWW or in the client's transferal of any material to other Web sites
5.03	The client agrees not to upload any material which would be considered to be contrary to public decency and morality. Email Agency reserve the right to randomly inspect online content and in the event that any unauthorised material has been uploaded to any Email Agency server, Email Agency reserve the right to inform the appropriate authorities and to terminate this contact forthwith. Uploaded material that is contrary to public decency and morality would expressly include pornographic, racist, libelous, barbaric and overtly tasteless material.
5.04	The client agrees that it shall not cause or permit or in any way assist in any unauthorised publication, any dissemination of any defamatory material or any material which could be considered to be in breach of the criminal laws of England, Wales, the European Union or International laws.
5.05	The client agrees to keep secure any login names and passwords used to access any Email Agency resources or services and not to pass that information to any unauthorised person. In the event of the client's login name and password being used by any unauthorised person, Email Agency accept no responsibility and the client will be liable for additional charges arising therefrom.
5.06	If the contract is terminated for whatever reason, the client will not be entitled to a refund.
5.07	The client agrees not to perform any action that will result in the reduced performance of the Email Agency servers to the detriment of other users.
5.08	Not to commit any act whereby access is gained by the client to any information or resources of any body corporate or person, individual, partnership, government agency, national institution, charity or recognised organisation without first having obtained authority from those persons or institutions.
5.09	The client agrees not to use Email Agency servers to send unsolicited or spam e-mail to other Internet users. Failure to meet this obligation would result in the termination of this contract without refund.
5.10	The client agrees not to use unsolicited or spam e-mail in any way that would result in any part of the Email Agency network being mentioned either directly or indirectly in such postings. Failure to meet this obligation would result in the termination of this contract without refund.
5.11	The client agrees not to use our systems either directly or indirectly in a way that would have a detrimental effect on network or server performance.
5.12	Not to do any act or omission, the result of which would have the effect of bringing Email Agency into disrepute.
5.13	Fair usage policy on resources Resources are defined as network bandwidth and disk space and computer processing time Email Agency does not currently operate a bandwidth capping policy. To provide reasonable performance, we do this by maintaining high resource ratios per client site. In some rare cases Email Agency may find that a client is using resources to such an extent that they may jeopardize server performance and resources for other clients. In such and instance Email Agency reserves the right to impose a High Resource User Policy for the consideration of all clients.
5.14	High Resource User Policy Email Agency may have cause to implement the following policy to its sole discretion: When a website is found to be monopolising available resources Email Agency reserves the right to suspend the offending site or service immediately. This policy would only be implemented in extreme circumstances and is intended to prevent the misuse of our servers and to maintain maximum availability for other clients. Clients may be offered alternate hosting options which may include an additional set up and/or additional monthly fee.

6. Limitation of Liability

6.01	For the avoidance of doubt Email Agency has no obligation duty or liability in contract and/or tort for breach of statutory duty or otherwise beyond that of a duty to exercise reasonable skill and care.
6.02	In any event and in no circumstance shall Email Agency be liable for any loss either direct or indirect of profits, business or anticipated savings or any other direct or indirect consequential loss arising out of the provision or non provision of service to the client.
6.03	In no circumstance shall Email Agency be liable for any loss whether direct or indirect arising from the content of any information placed by the client onto the service provider of Email Agency.
6.04	Under no circumstances shall Email Agency be liable for loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss whatsoever in connection with the registration, renewal, non-registration, non-renewal, suspension, transfer, failure to transfer, operation, delivery, mis-delivery or any and all combinations of the afore mentioned and under no circumstances are Email Agency liable for any errors or omissions or any other actions by the registry administrator arising out of or relating to any application, receipt of, or failure to receive a domain registration.
6.05	Under no circumstances shall Email Agency be liable for loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss whatsoever by the failure of, or any problem experienced by the client in its operation of it's web site.
6.06	Under no circumstances shall Email Agency be liable for loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss whatsoever by the failure of, or any problem experienced by the client in its operation of any hosted service provided by Email Agency.
6.07	Under no circumstances shall Email Agency be liable for loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss whatsoever by the failure of, or any problem experienced by the client in its use of any third party software provided by Email Agency.
6.08	Under no circumstances shall Email Agency be liable for loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss whatsoever by the failure of, or any problem experienced by the client in its operation of any emarketing campaign built and/or executed by Email Agency.
6.09	Each provision of this condition is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held inapplicable or unreasonable.
6.1	In any event the liability of Email Agency shall not exceed either the initial total amount paid for your service provision or domain registration or 250 (two hundred and fifty) pounds sterling.

7. Indemnity

7.01

Without prejudice to any other rights or remedies which Email Agency may have against the client, the client shall indemnify Email Agency against any loss or expenses sustained by reason of any breach of this contract and any actions, proceedings, claims or demands in any way connected with this contract brought on by or threatened against Email Agency by a third party which are caused by or arise from any action of Email Agency carried out pursuant to the instructions of the client.

7.02

The client shall indemnify Email Agency against any actions, proceedings, claims or demands in any way connected with this contract brought or threatened against Email Agency by a third party which are caused by or arise from any act or default of Email Agency carried out pursuant to the instructions of the client.

8. Confidentiality

8.01

Both Email Agency and the Client undertake to the other to keep strictly private and confidential information concerning the business affairs of the other that it shall have obtained in connection with this Agreement save that is:

8.02

Both Email Agency and the Client shall use all reasonable endeavours to ensure that their employees comply with any request or direction given by the other in connection with the requirements of the Data Protection Act 1998.

8.03

The provisions of this clause will remain in effect notwithstanding the expiry or earlier termination of this Agreement.

9. Solicitation

9.01

Neither party (by itself or through any Associate of it or any Employee) shall solicit the employment or services of any Employee of the other party either during the currency of this Agreement or for a period of twelve months from the Last Service Provision Date unless agreed in writing by both parties.

10. Safety and Security

10.01	Email Agency will use all reasonable endeavours to ensure that all its Employees and subcontractors who at any time visit the Client's premises observe and comply with all the Client safety and security rules and procedures that have been notified to Email Agency in advance.
10.02	The Client will use all reasonable endeavours to ensure that all its Employees and subcontractors who at any time visit Email Agency premises observe and comply with all Email Agency safety and security rules and procedures that have been notified to the Client in advance.

11. Charges

11.01	Unless indicated, the charges for any service tasks (such as consulting and bespoke development) are provided as an estimate. Should the time or resources required to complete the service tasks, exceed those allocated by Email Agency, then Email Agency will inform the client as to the change. Both parties will then need to agree and approve the revised costs, prior to any further work to complete the services task.
11.02	Charges for website development, software development and emarketing services are payable once the development or services are delivered. Email Agency may part invoice if the length of time to deliver the website development, software development or emarketing services exceeds one month.
11.03	Payment terms for any web services (For example; Dashboard Account, Emarketing Account, Website Hosting) are 14 (fourteen days) days from issuing of invoice payable to The Email Agency Limited. Invoices for these services will be issued 14 days in advance of service provision.
11.04	Payment terms for email send costs, SMS send costs and fax send costs are 14 (fourteen days) days from issuing of invoice payable to The Email Agency Limited. Invoices for these services are issued in arrears the following month.
11.05	Email Agency may, without prejudice to any other rights and remedies at its option, charge the Client interest on any payments which have not been made within 30 (thirty) days of the date of the invoice in question, at 2% (two per cent) per annum above the prevailing Bank Base Rate of Interest or at a fixed rate of 5% (five per cent) (which ever is higher), commencing upon the date the payment becomes overdue and continuing until the date payment is received by Email Agency.
11.06	Email Agency may, without prejudice to any other rights and remedies at its option, retrospectively charge interest on overdue accounts even if interest was not charged in the first instance when the account became overdue. If interest is calculated retrospectively then it will be calculated from the first day the account became overdue (30 days from the each invoice date).
11.07	Any Service Charge specifically excludes all reasonable travelling and accommodation expenses incurred by Email Agency employees and subcontractors during the provision of the services, including those incurred when meeting with Client representatives or agents. Such expenses shall be payable in addition to other charges.
11.08	Charges for use or provision of any hosted solution provided by Email Agency are payable monthly and in advance. It is a condition of service that payment is made within 14 days of receipt of invoice.
11.09	All charges of whatever nature in respect of service shall be as Email Agency determine and specify within a proposal. Charges may change as contracts are renewed.
11.10	All software and website development will be billed once the development is delivered. This may be before the software or website has gone live. Email Agency may part invoice if the length of time to deliver the software or web site development exceeds one month.
11.11	All emarketing campaigns will be billed for once the campaign is delivered. This may be before the email or campaign is Launched. Email Agency may part invoice if the length of time to deliver the software or web site development exceeds one month.
11.12	All Dashboard services must be paid for monthly and in advance. Any set up and/or configuration charges will be billed once the Dashboard is in use by the Client.
11.13	Value added Tax where applicable will be added at the appropriate rate to the total of all charges shown on the clients' invoice.
11.14	Should Email Agency have to issue Court proceedings pursuant to this contract, the client accepts responsibility for all Email Agency legal fees and disbursements notwithstanding the value of the claim, on an indemnity basis.
11.15	Any third party costs Email Agency may incur due to processing the payment for the services will be payable by the client within seven days.

12. Termination Of Contract By The Email Agency

13. Termination Of Contract By Client

13.01

The client can terminate this contract at any time within the first 30 days. The client will be liable for the service charges for the 30 day period and any domain registration charges or charges for additional services not included as a part of one of our standard hosting plans. After this 30 day period, the client may terminate the contract, however no refund will be payable and the client remains liable for all fees to the end of the contract period as defined in section 3 of this contract. The notice of termination should be made in writing to;

The Managing Director
Email Agency
Eagle Tower
Montpellier Drive
Cheltenham
Gloucestershire
GL50 1TA

14. Refunds

14.01	On receipt of a valid cancellation notice, Email Agency will, at it's sole discretion, refund unused time paid, and then only full calendar months of time.
14.02	A cancellation notice in writing sent to the Managing Director, must be received within 10 (ten) working days of a renewal period in order for a cancellation to be processed prior to a renewal payment being taken.
14.03	Should a cancellation notice be received within seven days of a renewal period then an administration charge may be applied to any refund issued.

15. Force Majeure

15.01

Email Agency is not liable for any breach of this contract if the breach was caused by an act of God, insurrection or civil disorder, war or military operations, national or local emergency, acts of omissions of government, highway authority or other comp

16. Proper Law

16.01

This contract is to be treated as made in England and Wales according to English and Welsh Law and subject to the jurisdiction of the English and Welsh Courts.

17. Limitation On Assignment

17.01	The client must not assign the benefit of this contract in whole or in part.
17.02	Email Agency reserves the right to assign the benefit of this contract by giving prior written notice of any assignment to the client.
17.03	Except with the prior written consent of Email Agency, the service shall not be used by or on behalf of any person other than the full time client employee or a third party specified within the proposal.

18. Marketing Rights And Use Of Clients Name

18.01	Email Agency reserve the right to refer to the clients name and use the clients logo in collateral and marketing material including electronic marketing campaigns and the Email Agency website.
18.02	Email Agency reserve the right to provide a web link back to the main Email Agency marketing website from any websites or emarketing campaigns delivered on behalf of the client unless specifically otherwise stated in the Service Contract.

19. Notices

19.01	Any formal notice to be given by one party to the other under this Agreement shall be in writing and sent registered or recorded delivery (air) mail or delivered by hand to the party to whom the notice is given, and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery or (if sent by post) upon expiration of 48 hours after posting:
19.02	To the Client at their advised address, as detailed in the Definitions and Application sections of this document.
19.03	To Email Agency at its registered address, as detailed in the Definitions and Application sections of this document.
19.04	Either party may change the address to which notice to it is to be given by notice as provided above.

20. Contract Period

20.01

This Contract shall continue from the commencement date for a period of twelve calendar months unless otherwise stated and confirmed in writing by Email Agency subject to termination under conditions 12 and 13.

Service Levels

21. Support and Maintenance

21.01	Email Agency offer free email support to in contract clients. This support is provided during Working Hours. Please contact your account manager for details of the email address and process.
21.02	The scope of the support provided by Email Agency to the client is related to all services provided to the client by Email Agency while in contract.
21.03	Support and Maintenance is included within the annual or monthly license charge.
21.04	The provision of error correction is included in the maintenance service and charge, but it is conditional upon the Client having: 21.4.1. provided adequate information in respect of any malfunction in the Program. 21.4.2. not otherwise changed the Program.

22. Beneficiaries

22.01

The Services provided under this entire Agreement are for the sole use of the Client.

23. Service

These provisions refer to the maintenance services for the The Email Agency software. The Email Agency shall:

23.01	Email Agency Product(s) Assistance Advise on the application and use of the Email Agency products, when used with equipment and software in a manner recommended and published by Email Agency.
23.02	Email Agency product(s) Error Correction Promptly investigate any problem in the Avensc product(s), which is notified by the Client in accordance with the agreed software error reporting procedures. Email Agency shall make all reasonable efforts to correct any such reproducible problem which Email Agency determines to be a defect in the product. Email Agency may at its discretion, send details of the correction to enable the Client to make the correction or correct the defect through a later product upgrade or update. Email Agency only warrants to correct all notified errors classified as severity 1 or 2 providing the problem is within programs developed by Email Agency.
23.02	Email Agency product(s) Updates From time to time at its option, either (a) deliver to the Client corrections to the Email Agency product(s) together with instructions on how to install, or (b) deliver to the Client a new release of the Email Agency product(s), incorporating such error corrections as Email Agency may decide, together with summary details of the changes incorporated in the release.
23.04	Email Agency Product(s) Upgrades Deliver to the Client, from time to time, (at the clients option) an upgraded version of the Email Agency software, incorporating such enhancements as may be considered logical extensions, together with summary details of the changes incorporated in the release.

24. Service Level

24.01	Email Agency undertakes to respond to all calls within a target that is controlled by the severity as defined below:
24.02	Due to the nature of the product it is not possible for Email Agency to have a resolution SLA.
24.03	Email Agency warrants to provide regular progress reports to the Client at a frequency to be determined by the affect of the fault on the Client.
24.04	Note that these targets exclude problems caused by hardware failure, network failure, the operating system, database failure or user error.
24.05	If the request is outside of the scope of this support agreement then this will be treated as consultancy. Email Agency reserve the right to charge for the provision of this work and any charges will be agreed in writing by both parties prior to the work being undertaken.

25. Call Escalation

You can escalate your issue further by contacting any of the following:

25.01	Email Agency Account Manager
25.02	Email Agency Support Manager
25.03	Day-to-day contact

26. Eligibility

The client is eligible for the designated service provided the following conditions are met:

26.01	Each component of Email Agency must be properly licensed.
26.02	The Client names one individual as its contact for the purposes of this Agreement.
26.03	Where Email Agency do not provide services for the maintenance of the operating system and database applicable to Email Agency, then the Client undertakes that the said operating system and database is maintained at the level and version required.

27. The Software Products

27.01

The components of the Email Agency software may change with the issue of upgrades. Any new application issued as an integral part of the Email Agency suite will be included within the support contract.