In these Terms: Associated Company means a company belonging to the same group as either party; Charges means Brothermailer's charges for the Services which shall be either on the Pay Per Send or Value Plan basis, as agreed between the parties and set out on the attached Order Form together with such other additional charges as may be agreed between the parties from time to time; data controller, data processor, data subject, personal data and processing shall have the meanings ascribed to them in Data Protection Act 1998 (Act) or such other legislation as may supersede the Act; Intellectual Property means any and all patents, copyrights (including future copyrights), design rights, trade marks, Trade Mark, service marks, domain names, trade secrets, know-how, database rights, and all other intellectual property rights, whether registered or unregistered, and including applications for any of the foregoing and all rights of a similar nature which may exist anywhere in the world and provided by or owned by Brothermailer, or its Associated Companies; Level of Services means the Services and Charges selected by the Client for Use; 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 Brothermailer but for the avoidance of doubt does not include material belonging to the Client; Order Form means the order form confirming the Level of Services you are purchasing and incorporating these Terms; Pay Per Send means the option of paying for the Services based on the number of emails sent by Brothermailer on behalf of the Client as more particularly detailed on the Site; Services means the provision of the Brothermailer data processing services and Software for Use by the Client according to the Level of Services whereby: (a) Brothermailer provides the Software to manipulate the personal data collected; (b) Brothermailer 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) Brothermailer provides facilities for the Client to export personal data together with such other services agreed between Brothermailer and the Client from time to time or ancillary to the Services; Site means Brothermailer's website at www.brothermailer.com; Software means Brothermailer's data management and manipulation software; Trade Mark means the 'Brothermailer' unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of Brothermailer 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 Level of Services, Used by the Client and as permitted by Brothermailer in writing from time to time only; and Value Plan means a fixed tariff pricing for the Services where the Client may send up to a specified number of emails for a fixed price as more particularly detailed on the Site.
Subject to clause 14, any reference in these terms to 'writing' or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.
Except where the context requires otherwise: the singular includes the plural and vice versa; a reference to one gender includes all genders; and words denoting persons include firms and corporations and vice versa.
Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term.
2. Supply of the Services
Brothermailer shall provide the Services to the Client for the duration of and in accordance with these Terms. These Terms shall come into force and govern the provision of the Services by Brothermailer and the Use of the Services by the Client from the date set out on the Order Form signed by the Client until terminated in accordance with these Terms
Brothermailer uses third parties based in the EEA to host the Brothermailer application servers for the provision of the Services. Brothermailer 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.
Brothermailer does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay. Brothermailer will use all reasonable endeavours to maintain an uninterrupted service during Working Hours (08.30 to 18.00, Monday to Friday UK local time excluding statutory holidays in England and Wales).
It may be necessary for Brothermailer to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services. Brothermailer will use its reasonable endeavours to provide the Client with at least 48 hours notice of temporary suspensions of the Services and to undertake any scheduled and planned maintenance or repair work outside of Working Hours (defined at 2.3 above) in order to minimise disruption to the Services provided to the Client. However Brothermailer reserves the right to carry out urgent maintenance or repair work at any time. Services may also be suspended in whole or in part where Brothermailer 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. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.4.
Where the Site contains links to other sites and resources provided by third parties, these links are provided for the Client's information only. Brothermailer 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.
Whilst Brothermailer will use its reasonable endeavours to do so, it cannot guarantee the delivery of emails to any recipient under the Services as it is dependant 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. Brothermailer will use reasonable endeavours to assist the Client with methods to maximise the delivery rate of emails, however Brothermailer makes no representations or warranties whatsoever about the speed or number of emails sent that will be delivered to recipients. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.7.
Brothermailer will ensure that clients who have purchased a professional or enterprise licence will have an account manager appointed and all clients will be provided with contact details of our support team. Depending on the licence purchased, support may be provided by either email or phone. The account manager may change from time to time.
3. Brothermailer will ensure that at all times an account manager is appointed, with an adequate support team, as a point of contact to the Client. The account manager may change from time to time.
The Client shall pay the Charges for the Services in accordance with these Terms, with any terms set out in the Order Form or in accordance with any other payment terms agreed in writing with Brothermailer. Payment shall be made in pounds Sterling.
Brothermailer may alter the level of Charges or the payment terms from time to time upon not less than 30 days' notice to the Client. Within 30 days of receiving such notice, the Client may notify Brothermailer in writing that it wishes to terminate these Terms with effect from the date of any proposed change in the Charges. Brothermailer may then either (i) terminate these Terms or (ii) withdraw its notice of the proposed changes to the Charges and/or the payment terms. In the case of (ii), these Terms will not terminate as a result of the Client's notice. If no such notice is received from the Client, then the Client shall be deemed to have accepted the changes proposed by Brothermailer.
All Charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
Brothermailer will invoice the Charges to the Client on a monthly basis in arrears on the last day of each calendar month.
Payment of the Charges shall be made by direct debit by the Client to Brothermailer. Subject to any separate agreement in writing between the parties from time to time, the Client shall set up a direct debit mandate for payment of charges which must be completed and returned to Brothermailer within 7 days of signing an Order Form for Services. At its sole discretion confirmed in writing, Brothermailer reserves the right to accept payment of Charges by cheque or bank transfer.
Subject to any separate agreement in writing between the parties from time to time, the Charges 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 Brothermailer within the number of days specified in the Order Form from the date of each Invoice. Time for payment is of the essence.
No payment shall be deemed to have been made until Brothermailer has received such payment in cleared funds from the Client.
If the Client fails to pay Brothermailer any Charges due pursuant to these Terms, then Brothermailer 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.
If the Client fails to pay any sums due within the number of days set out in clause 3.6 (subject to any separate agreement in writing between the parties from time to time), Brothermailer shall notify the Client but 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 in cleared funds, whereupon the Services will be reinstated.
Brothermailer reserves the right to carry out credit checks on the Client without notice from time to time, and to provide a restricted Service limiting the send volumes of emails based on the results of such credit checks. Brothermailer also reserves the right to apply a limit on Charges incurred by the Client or to request payments of Charges in advance during the provision of the Services if a Client's credit rating reduces. Such limits will be notified to the Client in writing and shall continue until such time as Brothermailer may elect at its sole discretion.
Brothermailer will bill per calander month as per agreed contract on either a pay as you go or monthly value plan as per rate card. any additional use above value plan agreements will be charged on the standard pay as you go rate card levels unless previously agreed. any changes to billing must be agreed prior to the close of any calander month and prior to invoices being issued.
4. Data, Data Protection & Indemnity
The Client is the data controller in respect of any personal data that Brothermailer 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 Brothermailer and, accordingly, Brothermailer 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 4.1.
Brothermailer 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.
Brothermailer 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. Brothermailer shall incur no direct or indirect liability to the Client for any loss or damage, however caused, arising from any loss of data arising under this clause 4.3.
Brothermailer 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 these Terms.
It is a condition of these Terms that the Client and Brothermailer 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 the Act 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. 4.6 Brothermailer shall not use any Client data or Materials except in connection with the provision of Services to the Client as set out in these Terms or as required by law, regulation or regulatory body or any court of competent jurisdiction. Brothermailer shall at all times comply with its obligations under the Act and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
5. Client's Obligations & Indemnity
The Client shall not: (a) use the Services in any way so as to bring the Services or Brothermailer into disrepute; (b) use the Services to send unsolicited or unauthorised advertising, promotional material, 'junk mail', 'spam', 'chain letters or pyramid schemes, offensive adult services, pornographic material, pornographic images, 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 persons 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; (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; or (h) attack the Site or Services via a denial-of-service attack or a distributed or malicious denial-of service attack.
Brothermailer monitors the content of emails created by the Client and may at its discretion immediately and without notice to the Client suspend the Service if it considers in its reasonable opinion that the Client is in breach of clause 5.1 and no refund of the Charges to the Client will be made. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.2
For avoidance of doubt it is an express condition of these Terms that the Client 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 Charges or other payments to Brothermailer 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. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.3.
Brothermailer firmly believes that email marketing must be built upon a foundation of good practice and permission and that the recipient must be given 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. It is a condition of the provision of these Services that the Client agrees to follow the CAP Code (summarised in brief in the attached Appendix) in all marketing communications and that the reputation, goodwill and brand of Brothermailer and of any Associated Companies are fully preserved and protected. 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 DMA best practice guides, The Committee of Advertising Practice 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, Codes); (b) that where Brothermailer is notified that a Client is or has been in breach of any Codes, Brothermailer shall be entitled to immediately without notice to the Client act on any request or recommendation for access by the Client to be barred to such Services and for such time in each case as are reasonable. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.4(b); (c) to provide all reasonable assistance to Brothermailer 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; and (d) to provide, Brothermailer, 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.
In the event of a breach by the Client of applicable legislation, regulations, directions, Codes, codes of practice, best practice guides and other rules and guidelines Brothermailer 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 terminate the provision of Services or 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. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.5.
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 such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify Brothermailer immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities that occur under the Client's password or account. 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.
Brothermailer does not accept and shall have no responsibility or liability whatsoever 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 these Terms.
Without prejudice to its other rights in these Terms Brothermailer 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 Brothermailer’s reasonable opinion a breach of these Terms. Brothermailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.8.
6. Ownership & Use of the Intellectual Property Rights
The Client acknowledges and Brothermailer warrants that (i) Brothermailer is the proprietor of the Intellectual Property and Materials; and (ii) so far as Brothermailer is aware the Intellectual Property and Materials do not infringe the rights of any third party.
Brothermailer indemnifies the Client for any breach of the warranties contained in clause 6.1
Brothermailer hereby grants to the Client a personal, non-exclusive and non-transferable licence to Use the Intellectual Property and/or Materials for the duration of these Terms strictly in accordance with these Terms only. The Client shall not be entitled to use the Intellectual Property and/or Materials 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 Intellectual Property and/or Materials in whole or part except as permitted 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
The Client shall only Use the Intellectual Property and/or Materials or any Brothermailer branding in the form stipulated by Brothermailer from time to time and shall observe all directions given by Brothermailer 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.
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 Brothermailer and the Client shall cease any use to the contrary as Brothermailer may require.
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. Brothermailer may use the Client's trade marks for publicity purposes only in a form and manner approved by the Client in writing in advance. Brothermailer may at any time refer to the Client in Brothermailer’s marketing and advertising communications.
The Client shall as soon as it becomes aware thereof give Brothermailer 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 Brothermailer's rights in relation to the Intellectual Property and/or Materials or to passing off.
If the Client becomes aware that any other person, firm or company alleges that the Intellectual Property and/or Materials is invalid or that use of the Intellectual Property and/or Materials infringes any rights of another party or that the Intellectual Property and/or Materials is otherwise attacked or attackable the Client shall as soon as reasonably possible give Brothermailer full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof..
Brothermailer 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. The Client shall not be entitled to bring any action relating to the Intellectual Property in its own name but shall reasonably assist Brothermailer upon Brothermailer’s reasonable request. Brothermailer agrees to reimburse the Client's reasonable expenses incurred in complying with clauses 6.7, 6.8 and 6.9 hereunder.
Subject to clause 7.2, neither party shall disclose at any time during the Term or for a period of ten (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 and 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 these Terms
The provisions of clause 7.1 shall not apply to any information which (a) is in or enters the public domain other than by a breach of clause 7.1; 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 these Terms; 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.
8. Limitation of Liability and Indemnity
This clause 8 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: (a) any breach of these Terms; (b) any use of the Services or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Terms.
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 these Terms.
Nothing in these Terms limits or excludes the liability of either party: (a) for death or personal injury resulting from negligence; or (b) for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;
Subject to clauses 8.2, 8.3, 8.5 and where expressly stated:
(a) neither party shall be liable to the other under these Terms for any loss of profits, loss of business; depletion of goodwill and/or similar losses; 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; and
(b) each party'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 these Terms shall be limited to £25,000 in total in respect of any single claim or series of connected claims brought by either party under these Terms.
The Client shall indemnify Brothermailer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Brothermailer arising out of or in connection with the deliberate and persistent misconduct of the Client resulting in a breach of clauses 4.1, 4.5, 5.1, 5.3 and/or 5.5. This indemnity shall not cover Brothermailer to the extent that a claim under it results from Brothermailer’s negligence or wilful misconduct.
If any third party makes a claim, or notifies an intention to make a claim, against Brothermailer which may reasonably be considered likely to give rise to a liability under the indemnity set out in clause 8.5 (a Claim), Brothermailer shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Client, specifying the nature of the Claim in reasonable detail; and
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Client (such consent not to be unreasonably conditioned, withheld or delayed), provided that Brothermailer may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Client, but without obtaining the Client’s consent) if Brothermailer reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect.
Nothing in this clause shall restrict or limit either party’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 clause 8.
9. Force Majeure
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 Charges) under these Terms 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). However, if such circumstances persist for more than 14 days, the non-defaulting party may terminate these Terms and all Charges due to Brothermailer up to the date of termination shall become immediately due and payable.
10. Term, Suspension and Termination
Brothermailer may immediately and without notice suspend the provision of Services in accordance with the provisions of clause 3.9, 5.1, 5.2, 5.3, 5.4 or 5.5 above.
Brothermailer may immediately and without notice suspend the provision of Services to the Client if the Client’s account remains inactive for a period of 13 months or more.
Either party may suspend or terminate (at their reasonable discretion) these Terms (and Services) forthwith on giving written notice if:(a) either party commits any material breach of these Terms and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice so to do; or (b) either party 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 that party other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading.
Any termination of these Terms for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under these Terms 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 these Terms 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 these Terms.
These Terms shall come into force and govern the provision of the Services by Brothermailer and the Use of the Services by the Client from the date set out on any Order Form signed by the Client. The minimum term of any Value Plan agreement is 12 months from the date set out on the Order Form and payment for the full twelve month term will be due even if the Client purports to terminate prior to the expiry of the full term. Any Client wishing to cancel a Value Plan must serve at least one month's notice prior to the anniversary of the date on the Order Form. Thereafter, a client may cancel at anytime, by providing 90 days written notice to Brothermailer. A client may upgrade their Value Plan to a higher level account at any time. A client may only downgrade their Value Plan to a lower level account on the anniversary of the date set out on the Order Form or thereafter. Clients who enter into a Pay Per Send contract shall have no minimum contract period and may terminate with one month's notice to Brothermailer at any time.
The period during which Brothermailer may suspend the Services in accordance with these Terms will continue until the circumstances giving rise to Brothermailer’s right to suspend the Services ceases to subsist or until these Terms are terminated hereunder.
In the event that Brothermailer suspends or terminates the provision of Services to the Client under clauses 10.1 the Client will continue to be obliged to pay any Charges owing or that arise during the period when the Service is suspended. 10.8 Where the provision of Services to the Client has been suspended Brothermailer reserves the right to charge the Client a £30.00 (thirty pounds) administration fee for reconnection or any resumption of the provision of the Services.
11. Effects of termination
Upon termination of these Terms for whatever reason: (a) there shall be no refund of any element of the Charges to the Client; (b) all unpaid Charges shall become immediately due to Brothermailer (in whole or in part on a pro rata basis where part of a periodic charge which is charged in arrears is due); (c) Brothermailer 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 Brothermailer shall immediately cease using any trade marks of the Client for publicity purposes (e) clauses 3.7, 3.8, 4.1, 4.2, 4.2, 4.5, 4.6, 7.1, 7.2, 8, 10.4, 10.6, 10.7, 10.8, 11, 12, 13, 14, 15.1, 15.5, 15.7 and 15.8 shall survive termination of these Terms for a period of ten (10) years from the date of termination.
In the event of any dispute between the parties to these Terms 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. 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”). 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 CEDR to appoint a Neutral Adviser. 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. 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. 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 these Terms without the prior written consent of the parties.
In the event of an invoice being disputed by the Client for valid and reasonable grounds Brothermailer 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 12.1. Where there have been previous unfounded disputes over invoices with the Client Brothermailer 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, Brothermailer's records of such usage shall be presumed to be accurate unless proved otherwise by an independent expert.
13. Transfer and Sub-contracting
Brothermailer 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 these Terms or any part thereof to a third party
The Client may not assign, sub-contract, sub-licence or otherwise transfer any rights or obligations under these Terms or any part thereof without the prior consent in writing of Brothermailer.
14. Communication & Notices
Notices or proceedings relating to a dispute shall be given by post addressed to the other party at its registered office or principal place of business as may at the relevant time have been notified. Other notices required to be given by either party to the other under the terms of these Terms may be given in writing by post or by email. Where such notice is given by email it shall be sent to the registered email address provided to Brothermailer by the Client.
Any such notice shall be deemed to have been received: (a) if delivered personally, at the time of delivery; (b) if sent by post within the United Kingdom, 2 Business Days after posting; and (c) if sent by airmail 5 Business Days after posting; Providing that if deemed receipt occurs before 9am or after 5pm on a Business Day then the notice shall be deemed to have been given on the next Business Day. For the purposes of this clause on a "Business Day" means any day which is not a Saturday, Sunday or a public holiday in England and/or the place to which the notice is sent..
Except where otherwise expressly stated herein, these Terms constitute the entire agreement between the parties relating to the subject matter of these Terms and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of these Terms. Nothing in this clause 15.1 or any other provision in these Terms shall operate to exclude or limit either party's liability for fraud. In the event of any conflict between these Terms and the terms contained in the Order Form, the Order Form shall prevail..
Brothermailer may at its reasonable discretion, change or modify the Terms or Services upon giving the Client 30 days' notice of the same either by email or notification on the website. Within a further 14 days from the expiry of such 30 days’ notice, the Client may notify Brothermailer in writing that it wishes to terminate these Terms with effect from the date of any proposed change to the Terms or Services. Brothermailer may then choose to either accept the notice of termination from the Client, alter the Terms or Service or withdraw its notice to the Client. If no such notice is received from the Client, the Client shall be deemed to have accepted the changes made by Brothermailer.
Each party warrants to the other that they have the power and authority to enter into these Terms and perform its obligations under these Terms.
These Terms shall not be deemed to create any partnership or employment relationship between the parties.
Save for any Associated Company of Brothermailer, a person who is not party to these Terms shall have no rights (under the Contracts (Rights of Third Parties) Act 1999) or otherwise to enforce any term hereunder and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby expressly excluded.
No act, failure or delay to act, or acquiescence by Brothermailer or the Client in exercising any of its rights under these Terms shall be deemed to be a waiver of that right or in any way prejudice any right of Brothermailer or the client under these Terms, and no waiver by Brothermailer of any breach of these Terms by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation whether partly or wholly of any of the terms or conditions of these Terms shall be valid only if in writing and signed by or on behalf of Brothermailer and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of these Terms.
If any provision of these Terms is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms.
These terms are subject to the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales