Software as a Service (SaaS)

EmailSmart.com

Terms and Conditions

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our emailsmart.com and deliverabilitydashboard.com platform and services.

Definitions and interpretation

1.1 In the Agreement:

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, as may be amended by the Provider, providing notice to the Customer of such amendments from time to time;

“Business Day” means Monday to Friday, other than a bank or public holiday in England;

“Business Hours” means between 09:00 and 17:00 in London, UK, on a Business Day;

“Calendar Day” means any day;

“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in Schedule 2);

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer” means the customer specified in the Statement of Services;

“Confidential Information” means

(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the one party to the other that is marked as “confidential”, described as “confidential” or should have been understood by the recipient at the time of disclosure to be confidential;

(b) the financial terms and conditions of the Agreement; and

“Customer Data” all works, data and materials:

(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and

(b) otherwise provided by the Customer to the Provider in connection with the Agreement;

“Defect” means a defect, error or bug having a materially adverse effect on the operation or functionality of the Platform as designed, but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors; or

(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Statement of Services;

“Documentation” means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used;

“Effective Date” means the date that the Agreement comes into force as specified in Clause 2;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, failures of or problems with third party providers, including cloud server hosting, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, the spread of infectious diseases, explosions, sonic boom, fires, floods, riots, terrorist attacks and wars);

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);

“Minimum Term” means the period specified as such in the Statement of Services;

“Permitted Purpose” means the use of the Platform by the Customer to use the tools to monitor, analyse and improve email deliverability and engagement.

“Personal Data” has the meaning given to it in the Data Protection Act 2018;

“Platform” means the software platform and tools which may be accessed via the URL https://emailsmart.com that are owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;

“Provider” means Caldon Consulting Limited, a company incorporated in England and Wales (registration number 09400873) having its registered office at 19 High Street, Eccleshall, Stafford, England, ST21 6BW;

“Schedule” means a schedule attached to the Agreement;

“Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;

“Statement of Services” means the document made available by the Provider to the Customer during the order process that specifies the identity of the Customer, and other matters relating to the Agreement;

“Support Services” means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1;

“Term” means the term of the Agreement; and

“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Agreement.

Agreement and Term

2.1 The advertising of the Platform and the Services on the Provider’s website constitutes an “invitation to treat”; and the Customer’s order for the Platform and the Services constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer’s order in accordance with the procedure detailed in this Clause 2.

2.2 In order to enter into the Agreement, the Customer will register for Services at either https://emailsmart.com or https://deliverabilitydashboard.com. Customers must provide their first name and a valid email address to use the Services. Their password to access the Services will be sent via email to their nominated email address. To access the Services the Customer must connect their CRM to the Platform, however for the avoidance of doubt, this Agreement comes into force at the point the Customer creates their account and registers for Services.

2.3 Once in force, the Agreement will continue in force for the Minimum Term and indefinitely thereafter, unless terminated earlier in accordance with Clause 13.

The Platform

3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform and providing to the Customer login details for that account as soon as practicable following the Effective Date.

3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any web browser listed in Schedule 4 in accordance with the Documentation during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

(a) (subject to (c) below) the Platform may only be used by the person/s named by the Customer when they created their account, and identified in the Statement of Services;

(b) the Platform may only be used in one browser instance at a time, multiple logins from different browsers are not permitted without the prior written consent of the Provider, and such use may impact functionality;

(i) the Customer’s officers (where the Customer is a company);

(ii) the Customer’s partners (where the Customer is a partnership); and

(iii) the Customer’s members (where the Customer is a limited liability partnership);

(d) the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule 3, and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy;

3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;

(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and

3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.

3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer’s account.

3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9 The Customer must not use the Platform:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

In the event the Customer’s use of the Platform falls into at least one of the categories in a) or b) above, it shall constitute a material breach of this Agreement.

3.10 The Provider reserves the right to suspend the Customer’s access to the Platform:

(a) if the Customer’s actions whether intentional or unintentional have an adverse impact on the Platform or any third-party platforms connected to the Platform;

(b) where the Customer’s actions whether intentional or unintentional give rise to a data security risk;

(c) where in its sole discretion the Provider considers that the Customer has committed a material breach of this Agreement.

Support Services and Upgrades

4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 1.

4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

Customer Data

5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Data on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.

5.2 Subject to Clause 5.1, all Intellectual Property Rights in the Customer Data will remain, as between the parties, the property of the Customer.

5.3 The Customer warrants and represents to the Provider that the Customer Data, and their use by the Provider in accordance with the terms of the Agreement, will not:

(a) breach any laws, statutes, regulations or legally-binding codes;

(b) infringe any person’s Intellectual Property Rights or other legal rights; or

(c) give rise to any cause of action against the Provider or the Customer or any third party, in each case in England and Wales and under English law.

5.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, the Provider may:

(a) delete or amend the relevant Customer Data; and/or

(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

5.5 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of the Agreement for the purposes of Clause 13.

5.6 The Provider shall ensure that the Customer Data stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.

Services without Charge

6.1 The Provider may allow access to some of the Services, and / or permit access to the Services for an agreed period of time without charge (a “Free Trial”). In either case, all of the provisions of this Agreement shall apply save that the Customer shall have no obligation to pay any Charges in respect of the Services offered by way of Free Trial for the duration of the agreed Free Trial period. In the event that the Customer continues to access the Services beyond the Free Trial period or beyond agreed parameters, the Provider’s Charges Schedule (accessible at https://emailsmart.com/prices as amended from time to time) shall apply until such time as the parties reach a written agreement to the contrary.

Charges

7.1 Payments will be charged using any credit or debit card which the Provider has on record for the Customer.

7.2 The Services (with the exception of WeDeliver Overage charges) are billed in advance on a monthly, annual or lifetime basis (as determined by the Customer when they sign up for a Services). Those fees are non-refundable. There are no refunds or credits for partial periods of service, upgrade / downgrade refunds or refunds for periods unused with an open account.

7.3 WeDeliver Overage charges are as described in the Statement of Services and are charged in arrears. The Provider will notify the Customer of the Overage charge, following which the Customer has 5 Calendar Days to dispute the charge, after which payment will be taken using the credit or debit card held by the Provider on record.

7.4 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. Where VAT is legally required to be levied by the Provider then this will be payable by the Customer to the Provider in addition to the principal amounts.

7.5 If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of NatWest Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

7.6 The Provider may vary the Charges on and from any anniversary of the Effective Date by giving to the Customer not less than 30 days’ written notice of the variation.

7.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 21 days.

Warranties

8.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.

8.2 The Provider warrants and represents to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;

(b) that it will perform its obligations under the Agreement with reasonable care and skill;

(c) that the Platform will operate without Defects and will perform substantially in accordance with the Documentation (subject to any Upgrades);

(d) that the Platform will be available to the Customer in accordance with the uptime commitments given in Schedule 1;

(e) the Platform (excluding for the avoidance of doubt the Customer Data) will not:

(i) breach any laws, statutes, regulations or legally-binding codes;

(ii) infringe any person’s Intellectual Property Rights or other legal rights; or

(iii) give rise to any cause of action against the Customer, in England and Wales and under English law; and

(f) the Platform is and will remain free from viruses and other malicious software programs.

8.3 The Customer acknowledges that:

(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;

(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in the Statement of Services; and

(c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Customer’s use of the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

8.4 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

Indemnities

9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clauses 3.8, 3.9 and 5.3.

9.2 The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 8.2(e).

Limitations and exclusions of liability

10.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence by that party;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(d) exclude any liability of a party that may not be excluded under applicable law.

10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Agreement:

(a) are subject to Clause 10.1; and

(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.

10.3 The Provider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

10.4 The Provider will not be liable for any loss of business, contracts or commercial opportunities.

10.5 The Provider will not be liable for any loss of or damage to goodwill or reputation.

10.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.

10.7 The Provider will not be liable in respect of any special, indirect or consequential loss or damage.

10.8 Neither party will be liable for any losses arising out of a Force Majeure Event.

10.9 The Provider’s liability in relation to any event or series of related events will not exceed the total amount paid by the Customer to the Provider under the Agreement during the 12-month period immediately preceding the event or events giving rise to the claim.

Data protection

11.1 The Customer warrants that:

(a) it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement; and

(b) any collection, processing, use, disclosure and transfer by the Customer and its Personnel of personal information in connection with the performance of its obligations under this Agreement complies with all applicable privacy laws and the privacy policy of the Customer.

11.2 The Provider warrants that:

(a) it will act only on documented instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer (save when otherwise required by UK law);

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer;

(c) it will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information;

(d) where it employs sub-processors the Provider will ensure that the data processing obligations of UK law are required of the sub-processor;

(e) it will take all appropriate technical and organisation measures to help the Customer respond to requests from data subjects to exercise their rights under UK law;

(f) it will make available to the Customer all information necessary to demonstrate compliance with the obligations of Article 28 of the GDPR, as well as (at the Customer’s cost) contributing to audits and inspections conducted by the Customer or their nominated auditor, provided that such auditor must not be a competitor of the Provider and that the Customer shall not carry out more than one such audit in any calendar year; and

(f) taking into account the nature of the data processing, and information provided by the Customer, it will assist the Customer in compliance with its data protection obligations under UK law.

Confidentiality

12.1 Each party will:

(a) keep confidential and not disclose the Confidential Information to any person save as expressly permitted by this Clause 12;

(b) protect the Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and

12.2 Confidential Information may be disclosed by the recipient party to its officers, employees, agents, insurers and professional advisers, provided that any such recipients are bound in writing to maintain the confidentiality of the Confidential Information disclosed.

12.3 The obligations set out in this Clause 12 shall not apply to:

(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Confidential Information that is in possession of the recipient party prior to disclosure by the disclosing party;

(c) Confidential Information that is received from an independent third party who has a right to disclose the relevant Confidential Information; or

(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the recipient must (where permitted by law) give to the disclosing party prompt written notice of the disclosure requirement.

Termination

13.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).

13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

13.3 The Customer may terminate the Agreement by giving at least 30 Calendar Days’ written notice of termination to the Provider, expiring at any time after the end of the Minimum Term.

13.4 The Provider may terminate the Agreement by giving at least 30 Calendar Days’ written notice of termination to the Customer.

13.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.

Effects of termination

14.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.5, 9, 10, 12, 14 and 17.

14.2 Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.

14.3 Subject to Clause 14.4, within 30 Business Days following the termination of the Agreement, the Provider will:

(a) irrevocably delete from the Platform all Customer Confidential Information; and

(b) irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer or dispose of (as the Customer may instruct) all documents and materials containing Customer Confidential Information.

14.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of the Agreement if:

(a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or

(b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.

14.5 In the event of termination pursuant to clause 13.5, all sums due to be paid during the Minimum Term shall become immediately payable to the Provider.

Notices

15.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause).

The Provider:
Caldon Consulting Limited, 19 High Street, Eccleshall, Stafford, England, ST21 6BW, e-mail support@emailsmart.com

The Customer:
The addressee, address and email set out in the Statement of Services.

15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and

(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

Force Majeure Event

16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:

(a) forthwith notify the other; and

(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

General

17.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

17.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

17.3 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.

17.5 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

17.6 Subject to Clause 10.1:

(a) the Agreement and the acceptable use policy referred to in herein constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and

(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

17.7 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

Schedule 1

Service Level Agreement

Introduction

1.1 In this Schedule:

“New Functionality” means new functionality that is introduced to the Platform by an Upgrade; and

1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

Helpdesk

2.1 The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:

(a) assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer’s other systems;

(b) assisting the Customer with the proper use of the Platform; and/or

2.2 Subject to Paragraph 2.3, the Customer must make all requests for Support Services through the helpdesk, and all such requests must include sufficient information to allow the Provider to give the Customer a satisfactory resolution to its request.

Response and resolution times

3.1 The Provider will:

(a) use all reasonable endeavours to respond to requests for Support Services made through the helpdesk; and

(b) use all reasonable endeavours to resolve issues raised by the Customer.

3.2 The Provider will determine, acting reasonably, into which severity category an issue raised through the Support Services falls.

3.3 All Support Services will be provided remotely unless expressly agreed otherwise in writing by the Provider.

Limits on Support Services

4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs 2 and 3 during any calendar month exceed 10 hours, then:

(a) the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that

(b) the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider’s standard hourly rates from time to time.

4.2 The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:

(a) the improper use of the Platform; or

(b) the use of the Platform otherwise than in accordance with the Documentation.

Upgrades

5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes to the appearance and/or functionality of the Platform.

5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality.

5.3 The Provider will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade.

5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:

(a) the Upgrade introduces New Functionality to the Platform;

(b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;

(c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and

(d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer’s access to and use of the rest of the Platform.

Uptime commitment

6.1 The Provider shall use all reasonable endeavours to ensure that the Platform is available 99% of the time during each calendar month, subject to Paragraph 8.

Back-up and restoration

7.1 The provider will ensure that the Platform is protected by off-site backups retained for a sufficient period of time to meet the Uptime commitment stated in Paragraph 6.

7.2 Customer Data is only saved to the platform on a transient basis, for example to forward emails sent via WeDeliver or for the purposes of setting up contact tagging in the Customer’s CRM (a service provided by SmartDefender).

Scheduled maintenance

8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out and such suspension to be for not more than 4 hours in each calendar month.

8.2 The Provider must give to the Customer at least 14 days’ written notice of scheduled maintenance, including full details of the expected Platform downtime.

8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6.

Schedule 2

Charges

Introduction

1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

1.2 The Charges under the Agreement will consist of the following elements:

(a) monthly Charges, in respect of access to and use of the Platform;

(b) annual Charges, in respect of access to and use of the Platform;

(d) other Charges agreed between the parties in writing.

1.3 The amount of the Charges in each case shall be set out in the Statement of Services.

Monthly Charges

2.1 The Charges in respect of access to and use of the Platform shall be on a monthly basis, if the Customer chooses this option.

2.2 The Charge will be as stated on the pricing plan to which the Customer signs up (plus VAT where applicable) per calendar month, payable in advance on a monthly basis.

2.3 If the Customer adds features and/or extras (or features and/or extras are removed) the monthly Charge will be revised at the commencement of the month following the addition (or removal) of those features and/or extras.

Annual Charges

3.1 The Charges in respect of access to and use of the Platform shall be on an annual basis, if the Customer chooses this option.

3.2 The Charge will be as stated on the pricing plan to which the Customer signs up (plus VAT where applicable) per calendar year, payable in advance on a yearly basis.

3.3 If the Customer adds features and/or extras (or features and/or extras are removed) the annual Charge will be revised at the commencement of the month following the addition (or removal) of those features and/or extras.

Lifetime Charges

4.1 The Charges in respect of access to and use of the Platform shall be provided on an ongoing basis for payment of a one-off fee, where the Customer chooses this option.

4.2 The Charge will be as stated on the pricing plan to which the Customer signs up, and only one fee will be levied in respect of the Services thereunder.

4.3 In this instance, ‘lifetime’ refers to the lifetime of the Platform, during which it is available and maintained.

Other Charges

5.1 In addition to the Charges detailed in Paragraphs 2, 3 and 4 above, the Customer shall pay to the Provider:

(a) Charges payable under Paragraphs 4 and 5 of Schedule 1;

(b) WeDeliver Overage charges, where applicable, as described in the Statement of Services; and

(b) all other Charges that are agreed between the parties in writing from time to time (which may include, for example, charges for Upgrades referred to in paragraph 5.4 of Schedule 1).

Payment

6.1 All charges will be paid by the credit or debit card held on record for the Customer by the Provider.

Schedule 3

Acceptable Use Policy

(1) This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services (the “Service”) and any content that you may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

(2) General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(3) Reasonable Use

You agree to use the Service in a reasonable way and solely for the Permitted Purpose. If we determine that your use of the Service is not in accordance with this paragraph 3 and the Agreement, or that your use is causing degraded performance of the Service for you and for other Customers, we may impose limits on your use of the Service. Where possible we will endeavour to give you at least 24 hours prior notice that your usage is reduced before imposing any limits.

(4) Unlawful and illegal material

You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Service) must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime;

(g) be in contempt of any court, or in breach of any court order;

(h) be in breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) be in breach of official secrets legislation; or

(k) be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

(5) Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.

(6) Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

Schedule 4 Compatible browsers

The web browsers with which the software is compatible are the current, stable, supported versions of the following browsers:

Google Chrome (Windows, MacOS, Linux, Android, iOS)

Mozilla Firefox (Windows, MacOS, Linux, Android, iOS)

Safari (MacOS, iOS)

Microsoft Edge (Windows, MacOS, Linux, Android, iOS)

Software as a Service (SaaS)

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