Terms and Conditions

1. DEFINITIONS

1. In these Conditions, the following expressions shall have the following meanings:

"Additional Items" means any additional goods (including but not limited to software) and / or services that are provided by the Company in addition to the Service;

"the Company" means Pinnacle Internet Marketing Limited trading as Swiftsender and includes any subsidiary company of the Company and reference to the consent authority or agreement of the Company means consent authority or agreement in writing signed by a Director of the Company;

"Contract" means the order placed by the Customer with the Company on these terms and conditions and any other document or documents agreed by the Company to be incorporated in a Contract between the Company and the Customer;

"Content" as defined in clause 4.9.2;

"the Customer" means the person firm or company who uses the Service and includes, for the avoidance of doubt, any resellers of the Service;

"the due date" means the first day of each month;

"Email" means any electronic mail sent using the Company's software, servers and/or system, from time to time, by the Company on behalf of the Customer pursuant to the Service, the Content of which is to be provided by the Customer to the Company;

"List" means as defined in clause 4.9.1;

"Recipient" means any person who the Customer intends receive an Email to be sent pursuant to the Service;

"the Service" means the Company's email marketing service, using the Company's software and monitoring systems through the Swiftsender and any Additional Items that the Customer has ordered from the Company, and the Company has agreed in writing to supply;

"the service fees" means the fees agreed between the Company and the Customer for the provision of the Service by the Company pursuant to the Contract;

"Transgression" shall mean any breach of contract, tort or other act of default, omission or statement of the Company its employees, agents or subcontractors in respect of which the Company is liable to the Customer;

"Swiftsender" means the Customer's personal email marketing account on the Company's Swiftsender service;

"Unlawful" means as defined in clause 4.1.

1.2 Terms defined in the Company's order form (or previously agreed in other applicable documents, which forms part of the Contract) have the same meanings in these terms and conditions.

2. THE SERVICES

2.1 The Company shall provide the Service (being Swiftsender), to the Customer pursuant to these terms and conditions and the Service shall continue to be supplied, unless the Contract is terminated in accordance with these terms and conditions. No additions or modifications to or terms inconsistent with these terms and conditions shall be binding unless agreed in writing by the Company. In the event of any inconsistency between these terms and conditions and any other document forming part of the Contract, these terms and conditions shall prevail unless expressly referred to and varied with the written consent of the Company. The Contract is not intended to create a partnership or agency relationship between the Company and the Customer.

2.2 The Company will process information about the Customer and the Recipients in accordance with the Company's privacy policy, from time to time, contained at www.ihm.co.uk and by requesting the Service, the Customer consents to such process and agrees to adhere to the privacy policy.

2.3 The delivery or receipt of Emails to any Recipient cannot be guaranteed and is dependent upon complete, full and accurate Lists from the Customer (including but not limited to, up to date email addresses, upon suitable internet availability or connectivity by the Recipient and on various anti spam and junk mail policies adopted by the Recipient). Whilst the Company will provide the Service in accordance with the terms of the Contract, the Company makes no representations or warranties whatsoever about the speed or proportion of Emails sent that will be delivered.

2.4 The Company may, at its sole discretion and upon notifying the Customer in writing, assign transfer, sub-contract or deal in any other manner with all or any of its rights under the Contract or any part thereof to a third party.

2.5 The Company may, from time to time and without notice, change the Service in order to comply with any applicable statutory requirements and/or industry standard procedures, provided that such changes do not materially affect the nature, or scope of the Service or the service fees.

3. COMPANY RIGHTS AND OBLIGATIONS

3.1 The Company shall provide the Service to the Customer with reasonable skill and care and in a professional manner. All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law from the Contract and terms and conditions.

3.2 The Company shall provide the Customer with a 24-hour contact service in order that it may notify the Company of any interruptions or any other problems with the Service. The Company shall use reasonable endeavours to respond to the Customer's notification of interruptions or other problems with the Service and to rectify any problems with reasonable diligence and within a reasonable timescale.

3.3 The Company shall use all reasonable endeavours to ensure that access to the Service will be available at an uptime level of 95%. For the avoidance of doubt the uptime availability level does not include downtime attributable to:

3.3.1 hardware or telecommunications failures;

3.3.2 interruptions to the flow of data to or from the internet;

3.3.3 changes, updates or repairs to the network or software which the Company uses as a platform to provide the Service;

3.3.4 the effects of the failure or interruption of the Service provided by third parties;

3.3.5 factors outside of the Company's reasonable control;

3.3.6 the Customer's actions or omissions (including without limitation, breach of the Customer's obligations set out in the Contract) or those of any third parties (including but not limited to breaks in the continuity of the electricity supply or of the telecommunications linked to the Company's server); and

3.3.7 interruptions to the Service resulting from any request by the Customer.

3.4 If the Service is suspended or interrupted the Company shall use reasonable endeavours to restore the Service within a reasonable time period.

3.5 The Service is an email marketing solution that should be used for ‘opt in’ email marketing only (for the avoidance of doubt, the term 'opt in' shall mean where the Recipient of the Email has formally agreed and consented to receiving any Email).

3.6 Customer shall not use the Service for the purposes of ‘SPAM’, junk mail, unsolicited or unauthorised advertising.

3.7 If the Company in its sole discretion believes that:

3.7.1 the Service is being used for SPAM, junk mail, unsolicited or unauthorised advertising, or

3.7.2 the Customer is breaching these terms and conditions in any other way, then the Company may decide (in its sole discretion) to suspend or terminate the Service and no refund of any service fee or other payments to the Company will be made.

3.8 The Customer agrees to comply with the Company's Anti-Spam policy, as published on the Company's website, from time to time.

3.9 The Company has the right, at its sole discretion, to remove the details of any Recipient from the List supplied by the Customer (pursuant to clause 4.9.1 below), for whatever reason (including but not limited to, if the Company should receive any complaint from a Recipient in respect of any Email received by them).

3.10 If the Company's order form states that a backup service is included, the Company will make reasonable efforts to protect and backup data for the Customer, at least once every 24 hours. The Company will not be liable for any lost, corrupted or destroyed data as a result of any suspension or interruption to the Service caused by the Company providing such backup service or caused by the failure for whatever reason of any such backup service.

3.11 The Company does not guarantee the accuracy or regularity of the backup service. The Customer is also responsible for taking their own backups in connection with the Customer's use of the Service and the Customer is solely responsible for an independent backup of data stored on the Company's or any third party providers' server and network. The retrieving of back up files by the Company may be charged as an Additional Item.

4. CUSTOMERS OBLIGATIONS

4.1 The Customer undertakes that the Service shall not be used directly or indirectly for any Unlawful purpose and that the Content shall not be Unlawful. For the purpose of this Contract the term "Unlawful" means in breach of any law, regulations or codes of practice in force, from time to time, in any jurisdiction and shall include but is not limited to: -

4.1.1 civil and criminal offences of copyright and trademark infringement;

4.1.2 transmission or display or posting of abusive, indecent, obscene or pornographic material;

4.1.3 commission of any criminal offence (including deliberate transmission of computer viruses) including, but not limited to, pursuant to the Computer Misuse Act 1990 or similar legislation in any country;

4.1.4 any transmission or display or posting of any material which is defamatory, libellous, offensive, abusive, or menacing character or which causes annoyance, inconvenience or needless anxiety to any other person;

4.1.5 transmission or display or posting of any material in breach of the Data Protection Act 1998 (or any replacing statute) dealing with data protection or similar legislation in any other country or of any material which is confidential or is a trade secret;

4.1.6 use of the service in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere;

4.1.7 the use of the service for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing "links" or "how to" information to such material; and

4.1.8 misleading or a misrepresentation.

4.2 The Customer accepts that it is the data controller for the purposes of the Data Protection Act 1998 (or any replacing statute) in respect of any personal data in relation to any Recipient that the Company processes in the course of providing the Service. It is the Customer's obligation to ensure that consent has been provided to the use of the personal data by the Recipient and as such the Company is not liable or responsible for the accuracy or use of such personal data

4.3 The Customer warrants, represents and undertakes that the Company's processing of any Customer's personal data in accordance with this Agreement and its instructions under it will not infringe or breach any rights of any data subject or be other than in accordance with the Data Protection Act 1998 (or any replacing statute).

4.4 The Company does not accept and shall have no responsibility, or liability, for the Recipient's personal data or the Content of the Emails sent using the Service or for sending them to Recipients in accordance with the terms of the Contract and the Customer will indemnify the Company against all and any damages, claims, expenses, losses and costs that the Company may incur as a result of any breach of clause 4.1 to 4.3 above.

4.5 The Customer will ensure that that the Content supplied to the Company complies with all laws, regulations and requirements, in place from time to time, of any country from which it can be accessed and the Customer will indemnify the Company against all and any damages, claims, expenses, losses and costs that the Company may incur as a result of any breach of this clause 4.5 by the Customer.

4.6 The Company reserves the right to monitor any and all communications passing through the Server in connection with the Service, at all times.

4.7 If the Service is used for any Unlawful use the Company may suspend or terminate the Service immediately and at the same time as suspension or termination occurs the Company shall, if it is lawful to do so, notify the Customer.

4.8 The Customer shall comply with the Company's policies which are in place from time to time in respect of the Service. The Customer further agrees to keep its password and other access details for use with the Service 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. The Customer is solely responsible for all activities that occur under the Customer's password or Swiftsender account. The Customer shall notify the Company without undue delay if the Customer believes that its password and other access details for use with the Service is no longer secret.

4.9 The Customer agrees to undertake the following, from time to time, in relation to the Service:

4.9.1 the supply, in a timely manner, the Company with full and accurate details (including but not limited to, names and email addresses) of all Recipients of the Emails (the "List");

4.9.2 to supply, in a timely manner, the content, images, designs and any other information the Customer reasonably requires to be sent by the Company in the Emails (the "Content"); and

4.9.3 to instruct the Company as to when the Emails are to be sent to the Recipients.

4.10 Any date given by the Company to the Customer in respect of the Service and in particular the sending of Emails to Recipients shall be conditional upon the Company receiving from the Customer the List, Content and any other information for any Emails in a final form from the Customer, within any timescales specified by the Company (from time to time) and any delay in the Customer providing such List, Content and any other information will result in the Company receiving an equivalent extension of time to estimated dates given for sending such Emails.

4.11 Where the Customer submits the Content to the Company pursuant to clause 4.9.2, the Customer:

4.11.1 warrants that such Content is the Customers own original work and that the Customer has the right to make it available to the Company for the purpose of the Service and that the Content is and will continue to remain accurate, comprehensive and up-to-date and is not Unlawful;

4.11.2 indemnifies the Company against all legal fees, damages, claims and other expenses that may be incurred by the Company as a result of the Customer breaching clause 4.11.1;

4.11.3 agrees to waive any moral rights in the Content for the purposes of its submission to Recipients as an Email; and

4.11.4 acknowledges and agrees that such Content may be copied or downloaded by any Recipients

4.12 Where the Customer submits Content to the Company (including without limitation any text, graphics, video or audio) the Customer is required by such submission to grant to the Company a perpetual, royalty-free, non-exclusive, sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and exercise all copyright and publicity rights with respect to any such work worldwide.

4.13 The Customer accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any Recipient to the Company and the Company does not accept and shall have no responsibility, or liability, for any such complaints made.

5. TERM AND PRICE

5.1 This Contract will continue for an initial term of 3 months (the "Term") (or as otherwise previously specified in the Company's order form or any other applicable documents which forms part of the Contract) and, subject to clause 6.1, thereafter the Contract will continue until and unless either party terminates the Contract by serving one month's written notice on the other party.

5.2 The service fee for the Service shall remain in force for the duration of the Term. Thereafter the Company reserves the right at the Company's sole discretion to increase the service fee after providing the Customer with one month's written notice of the fee's increase, from time to time.

5.3 The Customer shall pay the service fee by standing order or credit card payment on the due date as set out in writing by the Company from time to time. If the Customer fails to set up or cancels its standing order mandate then the Company reserves the right to charge an administration fee.

5.4 Time for payment shall be of the essence for the Contract. The Company reserves the right to suspend the Service or terminate the Contract and Service immediately if the service fee is not received within 7 days of the due date. Any amounts due up to the point of suspension or termination will remain due and payable as if no suspension or termination had occurred.

5.5 Any Additional Items must be paid for within 30 days of the date of the invoice.

5.6 If all or part of the price or service fee for the Contract or any Additional Items remain unpaid after the due date the Company shall be entitled to charge interest on any unpaid balance at 4% above Barclays Bank plc lending base rate for the time being, such interest being paid in full together with the unpaid balance.

5.7 Unless otherwise expressly stated by the Company, all prices or service fee given by the Company to the Customer pursuant to the Contract shall be exclusive of VAT.

6. TERMINATION

6.1 The Company shall be entitled to terminate the Contract forthwith and recover all losses or damage resulting to the Company (including but without limitation to loss of profit or other consequential loss) if:

6.1.1 the Customer has a bankruptcy petition presented against him, or a bankruptcy order is made, if the Customer makes or seeks to make any composition or arrangement with his or its creditors, if the Customer makes a proposal to his creditors for a voluntary arrangement or applies for an interim order, if an encumbrancer takes possession of any of the Customer's assets, or any of the Customer's assets are taken in execution or process of law, if a petition is presented or an order is made or a resolution is passed for the winding up of the Customer, if a petition is presented or an order is made for an administration order to be made in relation to the Customer, or if a receiver or administrative receiver is appointed over any of the Customer's assets (or any analogous event occurs to the Customer in its jurisdiction); or

6.1.2 the Customer fails to make any payment owed to the Company on the due date as specified in Clause 5;

6.1.3 the Customer is in breach of any contract with the Company (including this Contract) and fails to remedy the same within seven working days of written notice requiring the same or immediately if the breach shall be not be capable of remedy.

6.2 Termination shall be without prejudice to the rights of any party accrued at the date of such termination.

6.3 Upon termination:

6.3.1 the account may be deleted from the Company's server, unless agreed otherwise by the parties;

6.3.2 all service fees shall immediately become due and payable to the Company; and

6.3.3 the Company shall be under no obligation to retain any data (including the Lists) and, provided always that it complies with the requirements of the Data Protection Act 1998 (or any replacing statute), may dispose of such data as the Company deems appropriate.

7. INTELLECTUAL PROPERTY

7.1 Copyright in all software that is supplied or utilised by the Company remains the property of the Company or that of its licensor.

7.2 The Customer shall indemnify and keep the Company indemnified from and against the consequences of the Company suffering any claims of infringements of copyrights, patents, trademarks, industrial designs, database rights or other property rights arising from the provision of the Service.

7.3 In the event that any such infringement occurs or may occur, the Customer may request the Company to modify and / or amend the account content or infringing part thereof so that the same becomes non-infringing and if the Company agrees to modify and / or amend the account content the Company shall be entitled to charge for the additional cost for making the modifications and /or amendments which shall be chargeable at the Company's then current hourly rate.

7.4 The Customer warrants that it has obtained (and for future use, will obtain) all necessary consents, approvals and licences from any third party who has intellectual property rights incorporated as part of the Email, whether now or in the future.

8. PERFORMANCE AND FORCE MAJEURE

8.1 The Company shall take all reasonable steps to perform its obligations under the Contract. The Company shall not be liable for suspension or interruptions to the Service which shall not entitle the Customer to rescind the Contract, subject to clause 3.4.

8.2 Without prejudice to the generality of Clause 8.1, the Company shall have no liability for any delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of computer hardware, software, or parts thereof, viruses, hackers, errors, interruptions, bugs, telecoms connections or power supply or any other cause or causes beyond the Company's control (including but not limited to as result of any act or omission of its agents, subcontractors or consultants).

9. EXEMPTIONS AND EXCLUSIONS

9.1 The Company shall not be liable to the Customer for any loss, injury or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Contract, or the Service (including, without limitation, arising out of or in connection with any misuse of data by an unauthorised third party) except as specified in Clause 9.3 or to the extent to which it is otherwise unlawful to exclude such liability.

9.2 Notwithstanding the generality of 9.1 above, the Company expressly excludes liability for consequential loss, indirect damages, or corruption to other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.

9.3 The Company accepts liability for death or personal injury to the extent that it results from the negligence of the Company, its agents or its employees or authorised representatives.

9.4 To the extent that the Company is held legally liable to the Customer for any single Transgression, the Company's liability for the same shall not exceed the value of the Contract. A number of Transgressions whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression.

10. NON-SOLICITATION OF STAFF

10.1 The Customer undertakes that it shall not during this Agreement and for a period of one-year following its expiry or termination employ or contract the services of any person who is or was employed or engaged by the Company in connection with the Contract.

11. WAIVER

11.1 Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Company's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Company's rights to take subsequent action.

12. NOTICES

12.1 Any notice required under the Contract shall be deemed served if sent by registered or recorded delivery post or by facsimile or e-mail addressed to the party for whom it is intended at such party's registered or main office or last known address and shall be deemed to have been served 48 hours after the date of posting or 12 hours after the time of transmission if by facsimile or e-mail.

13. LEGAL CONSTRUCTION, INTERPRETATION AND LIMITS OF THE CONTRACT

13.1 The Contract shall be governed in all respects by English Law and shall be subject to the jurisdiction of the English Courts. The text of this Contract and these terms and conditions written in the English language is the authentic text and any difficulties or uncertainties arising shall be solved solely by reference to that text.

13.2 Save for statement or representations confirmed in writing in this Contract, no oral statements of whatsoever nature and by whomsoever made shall form part of the Contract. In contracting with the Company the Customer acknowledges that he has not relied on any oral statements or representations made to him save those confirmed as aforesaid.

13.3 Clause headings are for convenience only and do not affect the construction of this document.

13.4 The Contract and the documents referred to therein constitute the entire agreement and understanding of the parties in respect of its subject matter and supersedes and extinguishes any previous agreement, understanding, undertaking, representation, warranty and arrangement between them relating to the Service, save that nothing in the Contract shall operate to limit or exclude any liability for fraud.