Terms and Conditions
IMPORTANT LEGAL NOTICE
This page (and any other documents that are referred to on it) contains the terms and conditions on which we supply any of the Services listed on our website www.marketingunity.com (“our website”) to you. Please read these terms and conditions carefully before ordering any Services from our website. You should be aware that by ordering any of our Services, you agree to be bound by these terms and conditions.
Please print a copy of these terms and conditions for your future reference.
Should you refuse to accept these terms and conditions, you will not be able to order or access any Services from our website.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Customer Data: such data, information or material that Customer submits to the marketingunity network in the course of using the Services.
Fee: the fee payable by Customer to marketingunity.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Scope of Use: refers to the use to which the Software and Services may be put as set out in this Agreement.
Services: certain hosted “software as a service” and such other related services including a licence to use the Software, data import / export, monitoring, support, backup and recovery, change management, technology upgrades, and training necessary for Customer’s productive use of the Software.
Software: the computer programs provided by marketingunity and any modifications, maintenance releases or new versions which are introduced by marketingunity during the subsistence of this Agreement.
1.2 Holding company shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.3 Subsidiary shall be construed in accordance with sections 736 and 736A of the Companies Act 1985, as amended.
1.4 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.
1.5 Unless the context otherwise requires:
(a) references to marketingunity and Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted; and
(c) references to any gender include all genders.
1.6 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedule or appendices, the provision in the body of this Agreement shall take precedence.
1.7 Words in the singular include the plural and in the plural include the singular.
2. THE SERVICES AND TERM
2.1 This Agreement sets forth the terms and conditions under which marketingunity agrees to provide the Services to Customer. This Agreement shall remain in effect for the Term commencing on, and including, the Commencement Date unless terminated earlier in accordance with the terms of this Agreement.
2.2 Customer shall have the right to operate and use the Services. As a part of the Service, marketingunity shall be responsible for all user identification and password change management.
2.3 The method and means of providing the Services shall be under the exclusive control, management, and supervision of marketingunity, giving due consideration to the requests of Customer.
2.4 As a part of the Services, marketingunity shall be responsible for maintaining a backup of Customer Data, for an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in the Special Terms, marketingunity shall maintain a contemporaneous backup of Customer Data that aims to support recovery within four (4) hours at any point in time. Additionally, marketingunity shall store a backup of Customer Data in an off-site “hardened” facility no less than daily, maintaining the security of Customer Data, the security requirements of which are further described herein.
2.5 marketingunity shall be entitled to subcontract the performance of the Services, or assign or transfer any of its rights or obligations under this Agreement on notice to Customer provided that it shall remain liable to Customer for the performance of all such obligations.
3. LICENCE GRANT
3.1 In consideration of the Fee paid by Customer to marketingunity, marketingunity grants to Customer a personal, non-transferable and non-exclusive licence to use the Software as part of the Services.
3.2 In relation to Scope of Use:
(a) for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing Customer Data for the normal business purposes of Customer and only within the Scope of Use (which
shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of Customer).
(b) Customer may not use the Software other than as specified in clause 3.2(a) without the prior written consent of marketingunity and Customer acknowledges that additional fees may be payable on any change of use approved by marketingunity.
(c) Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
(d) Customer may not distribute, sell, rent, loan, lease, transfer, part with possession of or otherwise deal in the Software in whole or in part.
(e) Customer may not remove, change or obscure any identification marks or notices of proprietary rights and restrictions on or in the Software and any other component elements or copy of the Software.
3.3 In relation to assignment and sub-licensing:
(a) Customer has no right to sub-license or to assign the benefit or burden of this Agreement in whole or in part, or to allow the Software to become the subject of any charge, lien or encumbrance.
(b) marketingunity may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this Agreement in relation to the Software, provided it gives written notice to Customer of any sub-licence, assignment, charge or other transfer.
4.1 Customer shall pay to marketingunity the Fees monthly in advance on or before the first day of the month in question. All sums payable under this Agreement are exclusive of VAT, for which Customer shall be responsible.
4.2 If Customer fails to pay any amount payable by it under this Agreement, marketingunity shall be entitled (but not obliged) to charge Customer interest on the overdue amount, payable by Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of four percent (4%) per annum above the base rate for the time being of Barclays Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. marketingunity reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.3 marketingunity reserves the right to suspend the Services if any amount due remains unpaid thirty (30) days after the due date. marketingunity shall only resume the Services upon payment by Customer of the outstanding amount plus any interest and reinstatement charges are made in full. Suspension of the Services shall not constitute a waiver of Customer’s responsibilities or payment of the Fees during the period of suspension.
5. IMPROPER OR PROFLIGATE USE
5.1 The marketingunity network may only be used for lawful purposes by Customer. Transmission of any material through the marketingunity network or any part thereof, in violation of any law is strictly prohibited. Such transmission includes, but is not limited to, copyright material, material legally judged to be threatening or obscene and material protected by trade secret, whether or not Customer was aware of the relevant law. If Customer breaches this clause, marketingunity reserves the right to restrict passage of Customer’s communication or use of the Services without notice until they give a suitable undertaking as to future use.
5.2 Without prejudice to the foregoing, marketingunity considers that any person or company which transmits live video, live audio, or similar traffic demands across the network by whatever means, will be considered to be making profligate use of the network and as such shall not be allowed.
6. CUSTOMER’S RESPONSIBILITIES
6.1 The Services are supplied to Customer for its own use. By entering into this Agreement, Customer undertakes that it will not assign, re-sell, sublease, part with or in any other way transfer the marketingunity connection without the prior written consent of marketingunity.
6.2 Customer shall be responsible for all activity occurring under its user accounts and shall abide by all applicable laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
6.3 Customer shall: (i) notify marketingunity immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to marketingunity immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer; and (iii) not impersonate another marketingunity or provide false identity information to gain access to or use the Service.
6.4 Customer shall ensure that it safeguards its user identification and password, and shall not disclose the same to any person or allow any person to use such information for any purpose including accessing the marketingunity network.
6.5 marketingunity does not own any data, information or material that Customer submits to the Service in the course of using the Service. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and marketingunity shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
6.6 Contravention of any of these obligations in any way, whether successful or not, will be deemed as material breach of this Agreement and will result in suspension or termination of this Agreement.
7. MARKETINGUNITY’S WARRANTIES AND LIMITS OF LIABILITY
7.1 marketingunity represents and warrants to Customer that the Services will be performed:
(a) in accordance with all applicable laws and regulations; and
(b) with all reasonable skill and care;
7.2 If during the Term marketingunity receives written notice from Customer of any breach by marketingunity of the representation and warranties contained in clause 7.1, marketingunity shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate this Agreement immediately on written notice to Customer and repay to Customer all sums which Customer has paid to marketingunity under this Agreement during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. Customer shall provide all information reasonably necessary to enable marketingunity to comply with its obligations under clause 7.2. This clause sets out Customer’s sole remedy and marketingunity’s entire liability for breach of clause 7.1.
7.3 No representation or warranty is given by marketingunity that all faults will be fixed or will be fixed within a specified period of time.
7.4 marketingunity does not warrant that the use of the Services will be uninterrupted or error-free.
7.5 Customer accepts responsibility for the selection of the Services to achieve its intended results.
7.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. Customer acknowledges and accepts that while marketingunity will use all reasonable endeavours to provide a prompt and continuing Service it will not be liable for any loss of data resulting from delays, non-deliveries, missed deliveries or service interruptions caused by events beyond the control of marketingunity, by failure to restore data from backup devices or media, or by errors or omissions of Customer. Further Customer acknowledges that marketingunity is unable to exercise any control over the content of the information passing over marketingunity’s connection and / or marketingunity’s network links to the Internet and marketingunity hereby excludes all liability of any kind for the transmission or reception of infringing information by Customer whatever the nature.
7.7 Except as expressly stated in clause 7.8:
(a) marketingunity’s liability, whether under this licence or any collateral contract, for loss of
or damage to Customer’s tangible property caused by the negligence of marketingunity,
its officers, employees, contractors or agents, shall not exceed an amount equivalent to
fifty percent (50%) of the Fee payable by Customer in the year in which the liability arises;
(b) marketingunity shall have no liability for any losses or damages which may be suffered
by Customer (or any person claiming under or through Customer), whether the same
are suffered directly or indirectly or are immediate or consequential, and whether the
same arise in contract, tort (including negligence) or otherwise howsoever, which fall
within any of the following categories:
(i) special damage even though marketingunity was aware of the circumstances in
which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss of data; provided that this clause 7.7(b) shall not prevent claims for loss of or
damage to Customer’s tangible property that fall within the terms of clause 7.7(a) or
any other claims for direct financial loss that are not excluded by any of categories (i)
to (vi) inclusive of this clause 7.7(b);
(c) the total liability of marketingunity, whether in contract, tort (including negligence) or
otherwise and whether in connection with this licence or any collateral contract, shall in
no circumstances exceed a sum equal to fifty percent (50%) of the Fee payable by
Customer in the year in which the liability arises; and
(d) Customer agrees that, in entering into this Agreement, either it did not rely on any
representations (whether written or oral) of any kind or of any person other than those
expressly set out in this Agreement or (if it did rely on any representations, whether
written or oral, not expressly set out in this Agreement) that it shall have no remedy in
respect of such representations and (in either case) marketingunity shall have no
liability otherwise than pursuant to the express terms of this Agreement.
7.8 The exclusions in clause 7.7 shall apply to the fullest extent permissible at law, but marketingunity does not exclude liability for death or personal injury caused by the negligence of marketingunity, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or for any other liability which may not be excluded by law.
8. CUSTOMER’S INDEMNITY
8.1 Customer hereby agrees to indemnify and hold marketingunity harmless from any claim brought by third parties alleging that data passed over the marketingunity network and / or the marketingunity line by Customer has infringed any intellectual property right of any kind or any applicable United Kingdom or international legislation or regulation.
8.2 Customer shall defend and pay all costs, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against marketingunity arising from such claims, and shall provide marketingunity with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims at Customer’s sole expense.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Customer acknowledges that all Intellectual Property Rights in the Services and Software and any modifications thereto belong and shall belong to marketingunity, and Customer shall have no rights in or to the Services or Software other than the right to use it in accordance with the terms of this Agreement.
9.2 marketingunity undertakes at its own expense to defend Customer or, at its option, settle any claim or action brought against Customer alleging that the possession or use of the Services or Software (or any part thereof) in accordance with the terms of this Agreement infringes the United Kingdom Intellectual Property Rights of a third party (Infringement Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against Customer as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, clause 9.2 shall not apply where the Infringement Claim in question is attributable to possession or use of the Software (or any part thereof) by Customer other than in accordance with the terms of this Agreement or use of a non-current release of the Software.
9.3 Clause 9.2 is conditional on:
(a) Customer notifying marketingunity in writing, as soon as reasonably practicable, of any
Infringement Claim of which it has notice;
(b) Customer not making any admission as to liability or compromise or agreeing to any
settlement of any Infringement Claim without the prior written consent of marketingunity,
which consent shall not be unreasonably withheld or delayed; and
(c) marketingunity having, at its own expense, the conduct of or the right to settle all
negotiations and litigation arising from any Infringement Claim and Customer
giving marketingunity all reasonable assistance in connection with those negotiations
and such litigation at marketingunity’s request and expense.
9.4 If any Infringement Claim is made, or in marketingunity’s reasonable opinion is likely to be made, against Customer, marketingunity may at its sole option and expense:
(a) procure for Customer the right to continue using or maintaining the Software
(or any part thereof) in accordance with the terms of this Agreement; or
(b) modify the Software so that it ceases to be infringing; or
(c) replace the Software with non-infringing software; or
(d) terminate this Agreement immediately by notice in writing to Customer and refund any of
the Fee paid by Customer as at the date of termination (less a reasonable sum in
respect of Customer’s use of the Software to the date of termination) on return of the
Software and all copies thereof, provided that if marketingunity modifies or replaces the
Software, the modified or replacement Software must comply with the warranties
contained in clause 7.1 and Customer shall have the same rights in respect thereof as it
would have had under those clauses had the references to the date of this Agreement
been references to the date on which such modification or replacement was made.
9.5 Customer Data contained in any marketingunity repository which shall also be known and treated by marketingunity as Confidential Information shall be and remain the sole and exclusive property of Customer. Customer shall be entitled to an export of Customer Data, without charge, upon the request of Customer and upon termination of this Agreement. marketingunity is provided a license to Customer Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Customer Data only to the extent necessary in providing the Services.
10.1 Either party may terminate this Agreement at any time on written notice to the other if the other:
(a) is in material or persistent breach of any of the terms of this Agreement and either that
breach is incapable of remedy, or the other party fails to remedy that breach within
thirty (30) days after receiving written notice requiring it to remedy that breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986),
or becomes insolvent, or is subject to an order or a resolution for its liquidation,
administration, winding-up or dissolution (otherwise than for the purposes of a solvent
amalgamation or reconstruction), or has an administrative or other receiver, manager,
trustee, liquidator, administrator or similar officer appointed over all or any substantial
part of its assets, or enters into or proposes any composition or arrangement with its
creditors generally, or is subject to any analogous event or proceeding in any applicable
10.2 Termination by either party in accordance with the rights contained in clause 10 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
10.3 On termination for any reason:
(a) all rights granted to Customer under this Agreement shall cease;
(b) Customer shall cease all activities authorised by this Agreement;
(c) Customer shall immediately pay to marketingunity any sums due to the marketingunity
under this Agreement; and
(d) Customer shall immediately destroy or return to marketingunity (at marketingunity’s
option) all copies of the Software then in its possession, custody or control and, in the
case of destruction, certify to marketingunity that it has done so. In the case of Customer
Data, marketingunity shall, immediately upon termination of this Agreement, provide
Customer with a final export of the Customer Data and shall certify the destruction of any
Customer Data within the possession of marketingunity.
11. FORCE MAJEURE
11.1 No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause 11 shall excuse Customer from any payment obligations under this Agreement.
12. CONFIDENTIALITY AND PUBLICITY
12.1 Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
12.2 The terms of this Agreement are confidential and may not be disclosed by Customer without the prior written consent of marketingunity.
12.3 The provisions of clause 12 shall remain in full force and effect notwithstanding termination of this Agreement for any reason.
13. WAIVER No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
14. SEVERABILITY If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
15. AMENDMENTS Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
16. THIRD PARTY RIGHTS No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
17. NOTICES Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or fax, provided that faxes are confirmed within twenty-four (24) hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in clause 17.
18. ENTIRE AGREEMENT This Agreement and the documents annexed as appendices to this Agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
19. GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the non-exclusive jurisdiction of the English courts