Mymailer Terms and Conditions

This document sets out the terms and conditions (“Terms”) between (1) the Client, whose details are set out on the Order Form (“Client/you”) and (2) mymailer. These Terms and the Privacy Policy govern your Use of the mymailer system and Services. By using our Site and Services, you confirm that you accept these Terms and the Privacy Policy and that you agree to abide and be bound by them. YOU MAY NOT USE THE SITE AND SERVICE UNLESS YOU AGREE TO BE BOUND BY THESE TERMS AND THE PRIVACY POLICY.

 1. Interpretation

1.1 In these Terms the capitalised terms set out below shall have the following meanings:

“Associated Company” means a company belonging to the same group as either party;

“Charges” means mymailer’s charges for the Services which shall be either on a Pay Per Send or Value Plan basis, as agreed between the parties and set out in the attached Order Form together with such other additional charges as may be agreed between the parties from time to time;

“Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to email marketing in the countries in which the Client operates and/or in which recipients of emails sent using the Services are located (including, without limitation, the Committee of Advertising Practice Code (CAP Code), Spamhaus best practice guides, DMA best practice guides, the CAN-SPAM Act 2003 and Canada’s anti-spam legislation (CASL);

“Data Protection Laws” means: (a) in relation to the Client all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (and state where applicable) in which the Client signing an Order Form is located and all countries (and states where applicable) in which recipients of emails sent via the Services are located; (b) in relation to mymailer all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (or state where applicable) in which the mymailer entity signing an Order Form is located;

“Mymailer” means: (a) for Clients signing an Order Form who are registered in any EU country or any country outside of North America – Mymailer Limited, whose registered office is at 20-22 Wenlock Road, London, England, N1 7GU (registered in England and Wales under company number 10193359 and VAT number GB 247 234 901)

“Initial Term” means the fixed term, minimum term or initial term set out in the Order Form;

“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 mymailer, 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 mymailer 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 or sms sent by mymailer on behalf of the Client as more particularly detailed on the Site;

“Privacy Policy” means mymailer’s privacy policy available at www.mymailer.com;

“Renewal Period” means twelve (24) months;

“Services” means the provision of the mymailer data processing services and Software for Use by the Client according to the Level of Services whereby: (a) mymailer provides the Software to manipulate the personal data collected; (b) mymailer 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) mymailer provides facilities for the Client to export personal data together with such other services agreed between mymailer and the Client from time to time or ancillary to the Services;

“Site” means mymailer website(s) at www.mymailer.com or www.mymailer.net;

“Software” means mymailer’s data management and manipulation software;

“Trade Mark” means the ‘mymailer’ unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of mymailer 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, SMS services and such other use as may be, in accordance with the Level of Services, Used by the Client and as permitted by mymailer in writing from time to time only;

“Value Plan” means a fixed tariff pricing for the Services where the Client may send up to a specified number of emails or sms messages for a fixed price;

“Working Day” means Monday to Friday excluding statutory holidays in the country in which mymailer is located; and

“Working Hours” means 9.00 to 5.30 on a Working Day in the time zone in which mymailer is located.

1.2 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.

1.3 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.

 

2. Supply of the Services

2.1 Mymailer shall provide the Services to the Client for the term set out in clause 10.1 in accordance with these Terms and the Privacy Policy. These Terms shall come into force and govern the provision of the Services by mymailer and the Use of the Services by the Client from the date set out on the Order Form signed by the Client.

2.2 Mymailer uses third parties to host the mymailer application servers for the provision of the Services. The Client hereby consents to mymailer using data centres located in the EU, the USA and other key global locations for the provision of the hosting services. Clients can request their data be held at rest at one of these locations.

2.3 mymailer does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay. The Services will be available with 98% uptime during Working Hours in any calendar month. The calculation of availability excludes scheduled maintenance and emergency maintenance.

2.4 It may be necessary for mymailer to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services. mymailer 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 in order to minimise disruption to the Services provided to the Client. However mymailer 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 mymailer 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. mymailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.4.

2.5 mymailer will process information about the Client in accordance with mymailer’s Privacy Policy. By using the Site or any of the mymaile products or services, the Client consents to such processing and warrants that all data provided by the Client is accurate so far as the Client is reasonably aware.

2.6 Where the Site contains links to other sites and resources provided by third parties, these links are provided for the Client’s information only. mymailer 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.

2.7 mymailer cannot guarantee the delivery of emails to any recipient under the Services as this 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. mymailer will use reasonable endeavours to assist the Client with methods to maximise the delivery rate of emails, however mymailer makes no representations or warranties whatsoever about the speed or number of emails sent that will be received by recipients. mymailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.7.

2.8 mymailer 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 Client will be given prior notice of any change to its account manager.

 

3. Charges, Invoicing and Payment

3.1 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 mymailer. Payment shall be made in the currency in which Charges are set out in the Order Form.

3.2 After expiry of the Initial Term, mymailer may alter the level of Charges or the payment terms by giving the Client 30 (thirty) days’ written notice. Within 30 (thirty) days of receiving such notice, the Client must notify mymailer in writing if it does not accept the changes, otherwise the changes will be deemed accepted. If the Client gives notice of any objection as aforementioned the parties shall attempt to mutually agree the changes to be made to the Terms and if the parties cannot agree within 30 (thirty) days of the notice of objection being served, either party may terminate these Terms by giving the other 90 (ninety) days notice in writing.

3.3 All Charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, sales tax, or other applicable tax, for which the Client shall be additionally liable at the applicable rate from time to time.

3.4 mymailer will invoice the Charges to the Client on a monthly basis on or before the last day of each calendar month.

3.5 The Client shall pay all Charges and any additional sums payable under the Terms to mymailer (together with any applicable Value Added Tax and without any set off or other deduction) within 30 (thirty) days of the date of invoices or immediately if invoices are marked with PRE PAID SERVICE (All prepaid services require immediate payment from the client).

3.6 No payment shall be deemed paid until mymailer receives payment in cleared funds from the Client.

3.7 If the Client fails to pay mymailer any Charges due pursuant to these Terms, then mymailer 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.

3.8 If the Client fails to pay any sums due to mymailer and if 7 (seven) days after being sent a payment reminder notice by mymailer any sums remain unpaid, mymailer reserves the right to: (a) disable the account; and (b) temporarily suspend the provision of the Services to the Client until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services will be reinstated. In the event of an invoice being disputed by the Client for valid and reasonable grounds mymailer may agree to continued provision of the Services for a further 14 (fourteen) days whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 12.1.

3.9 If the Customer disputes any portion of an invoice based upon usage of the Services, the Client accepts that mymailer’s records of such usage are correct unless proven otherwise by an independent expert.

 

4. Data, Data Protection & Indemnity

4.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws.

4.2 The Client is the data controller and mymailer is the data processor in respect of any personal data that mymailer processes in the course of providing Services. Personal data is derived from data provided by the Client and is not checked or monitored by mymailer. mymailer has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, content or use of such personal data under this clause 4.2, provided that such use is in accordance with the instructions of the Client and mymailer’s obligations set out in these Terms.

4.3 mymailer shall not disclose any personal data to any business, organisation or individual without the Client’s prior written consent, unless required by law. Details of all third party providers who may access, process or store personal data in connection with the provision of the Services are provided in the list found at: www.mymailer.com/trust, as updated by mymailer from time to time. The Client hereby permits such third party providers used by mymailer to access, process and store personal data on behalf of the Client. mymailer confirms that: (a) its agreement with such third party providers contains data protection provisions that are no less equal to those contained in this clause 4; and (b) mymailer shall be liable for any breaches of clause 4 caused by such third party providers as if such breaches had been committed by mymailer itself.

4.4 mymailer has no responsibility or liability for the back up of Client data and although mymailer makes daily back-ups, the Client remains responsible for making its own back-ups, particularly but not limited to when the Client adds a significant amount of data to the Services over a period of 24 hours.

4.5 mymailer shall only process personal data in accordance with the Client’s instructions and confirms that it has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.

4.6 mymailer shall not use any Client data or Materials except in connection with the provision of Services to the Client: (a) as set out in these Terms; or (b) as required by law, regulation or regulatory body or any court of competent jurisdiction.

4.7 The Client shall: (a) ensure that it is appropriately registered with any applicable data protection authority; (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.

 

5. Client’s Obligations & Indemnity

5.1 The Client warrants that it shall not: (a) use the Services in any way so as to bring the Services or mymailer into disrepute; (b) use the Services to send unsolicited or unauthorised advertising, promotional material, ‘junk mail’, ‘spam’, ‘chain letters’ or pyramid schemes including but not be limited to illegal goods or services, escort services, pharmaceutical products, nutritional supplements, herbal supplements or vitamin supplements, work from home, Internet Lead-gen, make money on online opportunities and any similar activities, online trading, day trading tips, or stock market related content, gambling services, products or gambling education, multi-level marketing, affiliate marketers, credit repair, get-out-of-debt content, mortgages and/or loans, content containing pornography or nudity, adult novelty items or references in content, list brokers or list rental services, marketing or sending of commercial email without proper consent, purchase of foreign property or shares in foreign hotels, carbon trading, foreign exchange trading, dating services, payday loans, 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.

5.2 The Client warrants that it shall: (a) comply and ensure that its Use of the Services complies with all Codes applicable to the country in which the Client is registered and recipients of emails reside; (b) provide all reasonable assistance required by mymailer to enable mymailer to comply with any requirements or conditions imposed by such Codes; (c) provide, mymailer, relevant authority, user group or regulator of the Codes with all information or material reasonably requested in order to carry out any investigation in connection with the Client’s Use of the Services; and (d) not use the Services to upload or send to records purchased, rented or acquired from a third party in any way. mymailer has no responsibility or liability whatsoever howsoever arising directly or indirectly to the Client for the content of any emails sent using the Services or emails being sent to recipients in breach of the Client of its obligations contained in this clause 5.2.

5.3 mymailer monitors emails created by the Client. If mymailer considers in its reasonable opinion that the Client is sending emails in breach of clause 5.1 or 5.2, mymailer may at absolute discretion (taking into account the Client’s track record of Use of the Services): (a) suspend provision of Services; (b) block Client’s access to the Services for such time as in each case is reasonable; and (c) add any emails addresses to its global suppression list (“GSL”). mymailer will usually provide the Client with prior notice of any suspension, blocking or addition of an email to the GSL, unless immediate action is necessary in the circumstances. mymailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.3.

5.4 Where mymailer suspends or blocks access to the Services pursuant to clause 5.3 above, a member of the mymailer compliance team shall immediately contact the Client to: (a) inform the Client of the action taken or proposed action (where applicable); (b) explain why the access to the Services is suspended or blocked; (c) to inform the Client of the remedial actions that the Client needs to take to rectify the issues with the Client’s use of the Services; and (d) to agree on the timescale for the Client to take the necessary remedial actions. mymailer shall only reactivate the Services once the Client has taken the remedial actions. If the Client fails to take the remedial actions within the timescale agreed, mymailer reserves the right to terminate these Terms upon giving notice to the Client and the Client shall become immediately liable to pay all outstanding fees for remainder of the unexpired Term.

5.5 The Client warrants that it will not use the Email and SMS 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 mymailer 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. mymailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.5.

5.6 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 mymailer immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities resulting from use of 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.

5.7 Without prejudice to its other rights in these Terms mymailer reserves the right to prevent the sending of 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 mymailer’s reasonable opinion a breach of these Terms. mymailer accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.7.

5.8 The Client is not permitted to conduct vulnerability scanning, or any form penetration testing against the mymailer Services or application servers.

 

6. Ownership & Use of the Intellectual Property Rights

6.1 The Client acknowledges and mymailer warrants that: (a) mymailer is the proprietor of the Intellectual Property and Materials; and (b) the Intellectual Property and Materials do not infringe the intellectual property rights of any third party.

6.2 Subject to clause 8.4, mymailer shall indemnify the Client 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 the Client arising from a breach of clause 6.1. This indemnity shall not cover the Client to the extent that a claim under it results from use of Client’s Intellectual Property.

6.3 mymailer 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.

6.4 The Client shall only Use the Intellectual Property and/or Materials or any mymailer branding in the form stipulated by mymailer from time to time and shall observe all directions given by mymailer 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.

6.5 The Use of the Intellectual Property and/or Materials by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by mymailer and the Client shall cease any use to the contrary as mymailer may require.

6.6 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its Services or use the Trade Mark as part of any corporate business or trading name or style. mymailer may use the Client’s trade marks for publicity purposes only in a form and manner approved by the Client in writing in advance. mymailer may not refer to the Client in mymailer’s marketing and advertising communications, without first obtaining consent.

6.7 The Client shall as soon as it becomes aware thereof give mymailer 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 mymailer’s rights in relation to the Intellectual Property and/or Materials or to passing off.

6.8 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 mymailer full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.

6.9 mymailer 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 mymailer upon mymailer’s reasonable request. mymailer agrees to reimburse the Client’s reasonable expenses incurred in complying with clauses 6.7, 6.8 and 6.9.

6.10 Mymailer is authorised to use the Client’s name or logos or the existence of this contract for publicity purposes e.g. Mymailer can highlight it’s partnership along with the services it provides to the client on the mymailer.com website (and other websites or media which are controlled by the director(s) of Mymailer), social media platforms, mobile devices, print and press or other media outlets it deems fit.

6.11 The provisions of clause 6.10 shall survive the expiry or termination of this contract.

 

7. Confidentiality

7.1 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.

7.2 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; or

 

8. Limitation of Liability and Indemnity

8.1 This clause 8 sets out the entire financial liability of either party to the other (including any liability for the acts or omissions of a party’s 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.

8.2 Other than where expressly stated, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.

8.3 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; (c) or any other liability which cannot be excluded by applicable law.

8.4 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, including any indemnity or contribution, shall be limited to: (i) £25,000 (twenty five thousand pounds Sterling) where Charges are invoiced in pounds Sterling; or (ii) $25,000 (twenty five thousand US Dollars) where the Charges are invoiced in US Dollars, in total in respect of any single claim or series of connected claims brought by either party under these Terms.

8.5 The Client shall indemnify mymailer 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 mymailer arising out of a breach of clauses 4.1, 4.7, 5.1, 5.2 5.5 and 5.6. This indemnity shall not cover mymailer to the extent that a claim under it results from mymailer’s negligence or wilful misconduct.

8.6 If any third party makes a claim, or notifies an intention to make a claim, against either party which may reasonably be considered likely to give rise to a liability under any indemnity (a “Claim”), The indemnifying party shall: (a) as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, 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 indemnifying party (such consent not to be unreasonably withheld), provided that the indemnifying party may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the claiming party.

8.7 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 the internet. However, if such circumstances persist for more than 14 (fourteen) days, the non-defaulting party may terminate these Terms and all Charges due to mymailer up to the date of termination shall become immediately due and payable.

 

10. Term, Suspension and Termination

10.1 mymailer shall provide the Services set out in the Order Form to the Client for the Initial Term. Upon expiry of the Initial Term, these Terms shall automatically renew for successive Renewal Periods, unless a party terminates: (a) by giving at least 180 (one hundred and eighty) days’ written notice prior to expiry of the Initial Term or any Renewal Period; or (b) in accordance with clause 10.3 below.

10.2 Mymailer 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.

10.3 Either party may terminate these Terms on giving written notice if: (a) either party commits a material breach of these Terms and (if capable of remedy) the breaching party fails to remedy the breach within 14 (fourteen) 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.

10.4 The period during which mymailer may suspend the Services under these Terms will continue until the circumstances giving rise to mymailer’s right to suspend the Services ceases to subsist or until these Terms are terminated by either party. In the event that mymailer suspends the provision of Services to the Client, the Client will continue to be obliged to pay all Charges owing or that arise during the period when the Service is suspended; this includes the minimum term of any Value Plan agreement which is set out on the Order Form and payment for the term of contract will be due even if the Client purports to terminate prior to the expiry of the full term except in the event the Client terminates these Terms (and Services) under 10.3; Unless terminated earlier pursuant to the terms of the standard Terms of service for the initial term (“Initial Term”) as stated on the order form, the value plan agreement shall automatically renew after the Initial Term for a maximum period of 3 years from the commencement date. After the expiry of the Initial Term stated on the order form, either party shall at all times be entitled to terminate this contract by giving to the other at least 180 days notice in writing of termination.

10.5 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.

 

11. Effects of termination

11.1 Upon termination of these Terms all Charges for Services up to the effective date of termination of shall be payable unless: (a) an Order Form includes a Value Plan and the Client terminates these Terms prior to the expiry of the Initial Term, then only Charges up to the date of expiry of the Initial Term shall be payable; or (b) the Client terminates the Terms solely due to mymailer’s breach of the Terms.

11.2 Following termination: (a) mymailer shall have no obligation to retain any Client data. If the Client wishes to export any data, it should do so prior to the effective date of termination. Where the Client requires mymailer to export any data on its behalf a charge may be applied for this additional service; ; (b) the Client shall immediately cease using the Intellectual Property and the Materials; and (c) any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.

 

12. Disputes

12.1 In the event of any dispute between the parties to these Terms the parties shall within 10 (ten) 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 (fourteen) 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 14 (fourteen) days of notice to any party that he or she is unable or unwilling to act, apply to appoint a Neutral Adviser. The parties shall within 14 (fourteen) 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. 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.

 

13. Assignment

13.1 Neither party shall assign the whole or any part of these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld, however either party shall be entitled to assign these Terms to any entity that purchases the shares or assets of that party as the result of a merger, takeover or similar event, unless such acquiring entity is a competitor of the non-assigning party.

 

14. Communication & Notices

14.1 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 mymailer by the Client.

14.2 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 (two) Working Days after posting; and (c) if sent to any other country within 5 (five) Working Days after posting; provided that if deemed receipt occurs before 9am or after 5pm on a Working Day then the notice shall be deemed to have been given on the next Working Day.

 

15. General

15.1 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. In the event of any conflict between these Terms and the terms contained in the Order Form, the Order Form shall prevail.

15.2 mymailer may at its reasonable discretion, change or modify the Terms or Services to comply with a change in any applicable law upon giving the Client 30 (thirty) days’ notice of the same either by email or notification on the website. Within a further 14 (fourteen) days from the expiry of such 30 (thirty) days’ notice, the Client may notify mymailer in writing that it wishes to terminate these Terms with effect from the date of any proposed change to the Terms or Services. mymailer 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 mymailer.

15.3 Each party warrants to the other that it has the power and authority: (a) to enter into these Terms; and (b) to perform its obligations under these Terms.

15.4 These Terms shall not be deemed to create any partnership or employment relationship between the parties.

15.5 Nothing contained in these Terms is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.

15.6 No act, failure or delay to act, or acquiescence by mymailer 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 mymailer or the client under these Terms, and no waiver by mymailer 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 mymailer 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.

15.7 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.

 

16. Jurisdiction and Applicable Law

16.1 Each party agrees to: (a) these Terms being subject to the applicable law set out in clause 16.2 below, without regard to choice of law or conflict of law rules; and (b) the exclusive jurisdiction of the applicable courts set out in clause 16.2 below to determine any disputes arising under the Terms.

16.2 If the Client signing the Order Form is registered in: (a) any EU country or any country outside of North America the governing law shall be the laws of England and Wales and the courts of England shall have exclusive jurisdiction; (b) any country within North America the laws of the state of Delaware, USA and the courts of the state of Delaware, USA shall have exclusive jurisdiction.

 

17. Export Restrictions

17.1 The Services, content, and other technology that mymailer makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied party list. The Client shall not permit users to access or use any Service or content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.