terms and conditions
for the use of MarketU email marketing solution
YOU AGREE to be bound by these terms between You (the”User") AND Line Business Services Limited whose registered office is Avon House, Avon Mill Lane, Keynsham, Bristol BS31 2UG, UK, registered in England No. 5599751 which sets out the terms and conditions ("Terms") governing Your use of the MarketU system and services (the “Services”).
YOU MAY NOT USE THE SERVICES UNLESS YOU AGREE TO BE BOUND BY THESE TERMS.
1 Definitions and interpretation
1.1 In these Terms:
Agreement means the contract formed between You the User and Line by Your use of the Services and Your agreement to pay the Charges subject to these Terms or as otherwise agreed in writing;
Charges means Line charges for the Services which shall be either on the Pay As You Go or Contract Plan basis, and as agreed between the parties and specified at the Site together with such other additional charges as may be agreed between the parties from time to time;
Confidential Information means information relating to Intellectual Property, Material, products, financial management, business operations, employees, customers, suppliers, licensors, agents, or subcontractors and any other information which might reasonably be considered to be of a confidential nature which comes into the possession of the other party as a result of or in connection with the performance of this Agreement;
Content means any information in whatever format (including text, audio or video) which is provided by the User or on the User’s behalf for distribution using the Services;
Contract Plan means a fixed tariff pricing for the Services where the User may send up to a specified number of emails for a fixed price as more particularly detailed on the Site;
Data Protection Act means the Data Protection Act1998 and In these Terms: 'data controller', 'data processor', 'data subject', 'personal data' and 'processing' shall have the meanings ascribed to them in this Act or its successive legislation;
Intellectual Property means any and all patents, copyrights (including future copyrights), design rights, trademarks, 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 are provided by or owned by Line in connection with the provision of the Services;
Library Templates means the library of pre-designed and pre-installed message and newsletter templates that Line makes available to the User as part of the Services.
Material means written documentation and content, verbal, electronic and other information, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form;
Pay As You Go means the option of paying for MarketU based on the number of emails sent by Line on behalf of the User as more particularly detailed at the Site;
Services means the provision of the Line data processing services and MarketU software whereby:
(a) Line provides the software to manipulate the personal data collected;
(b) Line provides the facilities for the User to send emails to data subjects who have expressly consented to the User sending them such emails; and
(c) Line provides facilities for the User to export Content and the personal data together with such other Services agreed between Line and the User from time to time or ancillary to the Services detailed above.
Site means the MarketU website at www.marketu.co.uk from which the Services can be accessed;
Software means the MarketU data management and manipulation software provided by Line which is made available for use by Line to the User over the Internet as part of the Services;
Top Up means a fixed tariff pricing for Services where the User may send up to a specified number of emails in addition to the User’s Contract Plan as more particularly detailed on the Site;
Trademark means the MarketU unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of Line or any third parties provided or used as a part of the Services or any application for registration anywhere in the world;
User is You, the legal entity to whom Line is providing the Services pursuant to these Terms.
1.2 Any reference to You or Your means that relating to the User and any reference to We, Us or Our means that relating to Line.
1.3 Any reference in these Terms to 'writing' or related expressions includes a reference to email, communications via websites and comparable means of communication.
1.4 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 Subject to early termination and payment of the Charges in accordance with this Agreement, Line shall provide the Services to the User for the duration of this Agreement.
2.2 Line will process information about the User in accordance with its Privacy Policy which is set out on the Site. By using the Site, the User consents to such processing and warrants that all data provided by the User is accurate.
2.3 Line will use all reasonable endeavours to ensure that the Services are delivered in a timely manner and are available for use in accordance with generally accepted industry standards for accessibility. Line does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay but will use all reasonable endeavours to maintain an uninterrupted service during core working hours (08.00 to 18.00 Monday to Friday UK local time but excluding bank holidays).
2.4 Where the Site contains links to other sites and resources provided by third parties, these links are provided for the User's information only. Line 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 User's use of third party sites or Materials.
2.5 The delivery of emails to the recipient cannot be guaranteed and is dependent upon several factors: accurate and up to date email addresses, suitable internet availability and connectivity; the various anti spam and junk mail policies adopted by the recipients' email service providers and; restrictions regarding the content, wording and graphics of an email. The basis of defining 'spam' or 'junk' mail is being constantly updated. Whilst Line will assist the User with the provision of tools and up to date guidance on how to maximise the delivery rate of emails, Line makes no representations or warranties whatsoever about the speed or proportion of emails sent that will be delivered.
2.6 Line will provide email and/or telephone support and advice in respect of the Services during the hours of 9 am - 5.00 pm (Monday to Friday but excluding bank holidays).
3 Charges
3.1 The User shall pay the Charges for the Services as set out in the Charges schedule or in accordance with the payment terms agreed with Line. Payment shall be made in pounds Sterling. Any contract plan credits unused in any given month will expire and are non-refundable.
3.2 All Charges quoted to the User for the provision of the Services are exclusive of Value Added Tax, for which the User shall be additionally liable at the at the rate and in the manner prescribed by law.
3.3 Line shall be entitled to invoice the User:
(a) in respect of the Services under an initial Contract Plan or under a Pay As You Go option, when this Agreement comes into force, and such invoice will be paid immediately;
(b) in respect of a second or subsequent Contract Plan not earlier than one month prior to the commencement of that Contract Plan or anniversary thereof and payment will be made within 14 days;
(c) in respect of all other Charges, in advance of the commencement of the Services to which those Charges relate, and such invoice will be paid immediately.
3.4 Line are not obliged to provide the Services relating to Charges which We have invoiced You for until You have paid those Charges.
3.5 Line will perform verification checks on all payment (including credit or debit) card details when initially supplied by the User for payment of the Services. Services may not be accessible for up to 72 hours following provision of payment card details to allow these verification checks to be completed.
3.6 Line may conduct standard credit reference checks on Users and reserve the right to provide a restricted Service initially limiting the send volumes of emails based on the results of such credit checks. Line also reserves the right to apply lower limits to Users or to request payments of Charges in advance during the provision of the Services if a User's credit rating reduces.
3.7 All sums not paid when due will accrue interest from the date due until the date paid at the applicable statutory rate set out under current Late Payment legislation.
3.8 If Line holds payment (including credit or debit) card details which the User has previously supplied for the purposes of paying the Charges, the User hereby authorises Line to use those details to apply any relevant Charges at 3.3 above when due.
3.9 No payment shall be deemed to have been made until Line has received such payment in cleared funds.
3.10 In the event of an invoice being disputed by the User for valid and reasonable grounds Line will normally agree to continued provision of the Services for a further 14 days whilst discussions take place to resolve the basis of the dispute. Where there have been previous unfounded disputes over invoices Line may at Our discretion suspend the Services to the User without allowing the 14 day extension for resolution of the dispute.
3.11 In the event of a breach of clause 5.2 Line will immediately suspend the Service to the User. Any amounts due up to the point of suspension will remain due and payable as if no suspension had occurred.
4 Data, Data Protection & Indemnity
4.1 The User acknowledges that You are the data controller and Line is the data processor in respect of any personal data that Line processes in the course of providing the Services. The personal data is derived from that provided by the User and is not checked or monitored by Line and, accordingly, Line has no liability or responsibility for the accuracy, contents or use of such personal data.
4.2 The User warrants, represents and undertakes that Line’s processing of the personal data in accordance with this Agreement and the User’s instructions under it will not infringe or breach any rights of any data subject or be other than in accordance with the Data Protection Act.
4.3 The User will provide in a timely manner any request by Line for verification of the opt-in details of a data subject.
4.4 Line will put in place and maintain a reasonable level of security, taking into account electronic security technology from time to time, to prevent and/or detect any breach of external security of the Services. For the avoidance of doubt, Line will not be responsible for breaches of Our internal security resulting from or in any way connected with the User’s acts or omissions or the acts or omissions of the User’s employees, agents, representatives and/or subcontractors.
4.5 Line will carry out regular data backups of all User data stored on Our hosting servers. However, Line has no responsibility or liability for the storage or backup of User data and the User has full responsibility to make Your own backup of such data if required, particularly if the User has added a significant amount of data over a short time period. Line shall have no liability for any loss or damage, however caused, arising from any loss of data.
4.6 The User shall fully indemnify and keep indemnified Line against any losses, claims, fines, damage or expenses (including reasonable legal and professional expenses) (whether direct, indirect or consequential) arising as a result of or in connection with any breach of this clause 4 and/or any applicable data protection legislation.
5 User's Obligations & Indemnity
5.1 The User will not use the Services for the purpose of sending unsolicited bulk email communications (as may generally be referred to as spam or junk mail or otherwise) of any kind.
5.2 The User will not use the Services (or any part of them) for illegal or immoral purposes and will not do any act or omit to do any act which in anyway disrupts or interferes with or is likely to disrupt or interfere with Line’s provision of the Services to other users.
5.3 The User will not use the Services to send email communications advertising or promoting email lists or services supporting unsolicited bulk email.
5.4 The User will ensure that the Content transmitted using the Services is not contrary to and/or does not infringe any applicable laws, rules, regulations, by-laws, codes of practice and/or third party rights. Without prejudice to the generality of the foregoing, the User will ensure that no part of the Content is or could be interpreted as being obscene, indecent, libelous, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, discriminatory, menacing, blasphemous, or infringe or breach any intellectual property rights, or be otherwise illegal or contrary to or in breach of any law or third party right.
5.5 Line sample monitors the Content and may (at Our option):
(a) delay transmission of and/or remove Content from the Services;
(b) restrict or suspend User access to the Services;
(c) terminate the Services and this Agreement
where We have reason to believe that there is or has been a breach of clause 5.1,5.2, 5.3 or 5.4 above.
5.6 The User will provide all reasonable assistance to Line to enable the proper and effective provision of the Services.
5.7 In the event that the Services are restricted or terminated under 5.5 or 5.6 above, no refund will be made of any Charges paid.
5.8 The User will keep the 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 User shall notify Line immediately if You believe that such information is no longer secret. The User is solely responsible for all activities that occur under the User's password or account and shall ensure that all Your personnel who have access to the Services have been made fully aware of and agree to abide by the terms and conditions relating to the Services prior to their use.
5.9 The User will indemnify Line from delays in the supply of the Services caused by and/or resulting directly or indirectly from Your failure to fulfil any of Your obligations hereunder.
5.10 The User acknowledges that Line’s obligations under these Terms is dependent upon Your full and timely co-operation with Us as well as the accuracy and completeness of any information and data You and/or Your agents, subcontractors and/or representatives provide Us.
5.11 Line does not accept and shall have no responsibility or liability for the Content or for transmitting the Content in accordance with this Agreement and the User agrees to indemnify fully and keep indemnified Line against any losses, claims, fines, damages and expenses (including reasonable legal and professional expenses) of whatsoever nature (whether direct, indirect or consequential) arising as a result of or in connection with any breach by the User of any of these Terms and/or any applicable legislation.
6 Templates and Licences
6.1 The User may use the Library Templates solely for the purposes of adding Content to the Library Templates in order that Line can provide the Services. Usage of the Library Templates is restricted to the period that this Agreement is in force.
6.2 The User is not entitled to:
(a) change or otherwise modify any Library Template.
(b) reverse engineer or decompile (if compiled) any Library template.
(c) use any Library Template other than with the Services unless otherwise agreed in writing by Line.
(d) remove from any Library Template any logos, Trademark or copyright notices or other text and/or images belonging to or supplied by Us or Our licensors.
6.3 The Library Templates contain Intellectual Property belonging to Line and/or Our licensors and the User has no right to use such Intellectual Property save to the extent set out in this clause 6.
6.4 The User acknowledges and Line warrants that We are the proprietor or licensee of the Intellectual Property in the Services and Material with full rights to sub-license where applicable.
6.5 The User is hereby granted a personal, non-exclusive and non-transferable licence to use the Software, Material and the Trademark for the duration of this Agreement for Your own business purposes and strictly on these Terms.
6.6 Use of the Material is on the following terms:
(a) use shall be restricted to use over the internet and for the purpose of utilising the Services only;
(b) the User shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works or modify the Material in whole or part except as permitted by law;
(c) the User shall have no right to sell, rent, lease, transfer, assign or sub-licence the Material to any third party;
(d) the User shall have no right to make any representations, warranties or guarantees with regard to the Material or Line; and
6.7 The User shall only use the Trademark MarketU in the form supplied or stipulated by Line from time to time and shall observe all directions given by Line as to visual representation of such Trademark.
6.8 The User shall inform Line as soon as You become aware of any use or proposed use by any other person, firm or company of a trade name, trademark or promotion which amounts to or might amount to either infringement of Line or Our licensor’s rights in relation to the Intellectual Property or to passing off.
6.9 If the User becomes aware that any other person, firm or company alleges that the Trademark MarketU is invalid or that use of the Trademark infringes any rights of another party or that the Trademark is otherwise attacked or attackable the User shall inform Line as soon as reasonably possible of the full facts known to You of the matter.
6.10 The User shall provide such assistance, other than financial assistance, as may be necessary to enable Line and/or Our licensors to defend the Trademark MarketU or Intellectual Property infringements.
6.11 Line shall have the conduct of all proceedings relating to the Intellectual Property and shall in Our 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 User shall not be entitled to bring any action relating to the Intellectual Property in Your own name.
6.12 The foregoing obligations as to Intellectual Property rights shall remain in full force and effect notwithstanding any termination of this Agreement.
6.13 The User undertakes to indemnify and keep indemnified Line and Our licensors against all losses, claims, fines, damages and expenses (including reasonable legal and professional expenses) of whatsoever nature (whether direct, indirect or consequential) arising as a result of or in connection with any infringement by the User of Line's rights or the rights of Our licensors in respect of any Intellectual Property.
7 Confidentiality
7.1 Subject to clause 7.2, the recipient will not use the discloser’s Confidential Information other than for the purposes of this Agreement and will keep in confidence and not disclose the discloser’s Confidential Information other than to those persons to whom the Confidential Information needs to be disclosed in order to fulfil such purposes.
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;
(b) is in the possession of the recipient without restriction in relation to disclosure before the date of its receipt in connection with this Agreement; or
(c) is obtained from a third party who is lawfully authorised to disclose such information and is provided to the recipient without any obligation of confidentiality; or
(d) is authorised in advance for release by the discloser.
7.3 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
8 Warranties and Liability
8.1 Line will perform the Services using reasonable care and skill. Subject to Clause 2 in the event that Line fail to comply with this warranty the User’s sole and exclusive remedy will be that We will either (at Our option) re-perform the relevant part of the Services within a reasonable time or refund to You such of the charges as are applicable to the relevant Services.
8.2 All conditions, warranties or terms which are not expressly set out in this Agreement and which might otherwise 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 and fitness for purpose.
8.3 Nothing in this Agreement shall limit or exclude either party's liability for death or personal injury howsoever caused or for fraud.
8.4 Line shall have no liability to the User for any loss, damage, costs, expenses or other claims for compensation arising from any Material which is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form.
8.5 Without prejudice to clause 8.3 and save as expressly provided in these Terms, Line shall not be liable to the User by reason of any representation (unless fraudulent), or any duty at common law (including negligence), or under the express terms of this Agreement, for:
(a) loss of profit;
(b) loss of revenue;
(c) loss of savings or anticipated savings;
(d) loss of data;
(e) loss of use of software or data;
(f) loss or waste of management or staff time; and/or
(g) any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Line, Our servants or agents or otherwise) in each case which arises out of or in connection with the provision of the Services or their use by the User.
8.6 Without prejudice to clause 8, the entire liability of Line under or in connection with this Agreement shall not exceed the amount of the Charges received by Line from the User in the 12 month period immediately preceding the act or omission in respect of which any claim by the User is brought under this Agreement.
9 Force Majeure
9.1 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 this Agreement 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, failure of communication facilities, default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security), obtain materials or supplies and, in all cases, the inability to do so except at increased prices (whether or not due to such causes). However, if such circumstances persist for more than 28 days, the non-defaulting party may terminate this Agreement and all Charges due to Line up to the date of termination shall become due.
10 Suspension and Termination
10.1 Line may suspend the provision of Services to the User if Your account remains inactive for a period in excess of 12 months.
10.2 It may be necessary to temporarily suspend the Services from time to time to carry out maintenance of equipment. Line will provide the User with as much notice a possible of temporary suspensions of the Services and where possible any such planned suspensions will take place outside of core working hours in order to minimise disruption to the Services provided to the User.
10.3 Services may also be suspended (in whole or in part) where Line is obliged to comply with an order, instruction or request of any competent administrative authority or an emergency service organisation.
10.4 Line may suspend or terminate (at Line''s reasonable discretion) this Agreement (and Services) forthwith on giving written notice if:
(a) notwithstanding sub-clause (b) below, the User breaches Your obligations under clauses 4.2, 4.3 or 5.1 to 5.4 inclusive above; or
(b) the User commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice so to do; or
(c) the User becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or Your directors or shareholders pass a resolution to suspend trading, wind up or dissolve the User other than for the purposes of amalgamation or reconstruction or You cease, or threaten to cease, trading.
10.5 The period during which Line may suspend the Services will continue until the circumstances giving rise to Our right to suspend the Services ceases to subsist or until this Agreement is terminated in accordance with these Terms.
10.6 In the event Line suspend Services under this section, the User will continue to be obliged to pay any Charges owing or that arise during the period when the Service is suspended.
10.7 The term of any Contract Plan agreement is a minimum of 12 months and payment for the full twelve month term will be due even if the User terminates the Agreement prior to the expiry of the full term. If the User wishes to cancel a Contract Plan at least one month's notice must be given prior to the contract anniversary. Thereafter, the Contract Plan may be cancelled at anytime by providing 30 days written notice. The User may upgrade the Contract Plan to a higher level plan at any time and the minimum 12 month contract period will run from the date of the initial Contract Plan purchase. The User may only downgrade the Contract Plan to a lower level plan on the anniversary date of the Contract Plan. Top Ups may be purchased at any time and, as with the Pay As You Go option, have no minimum contract period and no expiry period other than as provided for under clause 10.1.
10.8 Line may at Our reasonable discretion, change or modify the Terms or Services upon giving the User 30 days' notice of the same either by email or notification on the website. Within 14 days of receiving such notice the User may notify Line in writing that You wish to terminate this Agreement with effect from the date of any proposed change to the Terms or Services and Line may then choose to alter the Terms or Service or withdraw the notice. If no such notice is received, the User shall be deemed to have accepted the changes made by Line.
10.9 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under this Agreement 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 this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including the warranties and indemnities contained in this Agreement.
10.10 The waiver by either party of any breach or failure to enforce any of these Terms at any time will not in any way affect, limit or waive either party's rights thereafter to enforce and compel strict compliance with every Term of this Agreement.
11 Effects of termination
11.1 Upon termination of this Agreement for whatever reason:
(a) there shall be no refund of any element of the Charges;
(b) all unpaid Charges shall become immediately due (including on a pro rata basis where part of a periodic charge which is charged in arrears is due);
(c) Line will be under no obligation to retain any data (including personal data); and
(d) the User shall cease using the Trademark, Intellectual Property, any Line branding and the Material.
12 Transfer and Subcontracting
12.1 This Agreement will be binding upon and inure to the benefit of the successors and assignees of Line and the User. Line may assign Our rights or obligations hereunder at any time.
12.2 Line is entitled to subcontract any or all of Our obligations under this Agreement.
13 Communication & Notices
13.1 Valid notices may be sent by email by either party The User hereby undertakes to have, and keep Line informed of, a valid and regularly monitored contact email address for the duration of this Agreement. The User will be deemed to have accepted notices sent to this contact email address and Line may act on that basis. Unless otherwise notified to the User Line's contact email address is info@linebsl.com
13.2 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 this agreement may be given in writing by post or by email.
13.3 Any such notice shall be deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) if sent by email or facsimile, 1 normal working day;
(c) If sent by post within the United Kingdom, 2 normal working days after posting; and
(d) if sent by airmail 5 normal working days after posting;
where normal working days are any day other than Saturday, Sunday or bank holidays
14 Entire Agreement
14.1 Each party warrants to the other that they have the power and authority to enter into this Agreement and perform its obligations under this Agreement.
14.2 This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and all prior agreements with respect thereto are superseded. No amendment or modification hereof will be binding unless in writing and duly executed by both parties.
15 Third Parties
15.1 Save for any holding company, subsidiary or associated company of Line and any proprietor of the Intellectual Property, a person who is not party to this Agreement shall have no rights (under the Contracts (Rights of Third Parties) Act 1999) or otherwise to enforce any term of this Agreement and the provisions of that Act are hereby expressly excluded. For the purposes of this clause, the words "subsidiary" and "holding company" have the meanings given to them by Part 38 of the Companies Act 2006.
16 Disputes, Governing Law and Jurisdiction
16.1 In the event of any dispute arising between the parties in connection with this Agreement, senior representatives of the parties shall, within 10 days of written notice being given by either party to the other, meet in good faith at a reasonable venue within 15 miles of Bristol in an effort to resolve the dispute.
16.2 This Agreement and these Terms are subject to the laws of England Wales. The parties submit to the exclusive jurisdiction of the Courts of England and Wales in the event that a dispute between them cannot be settled by other means of resolution.