Service Agreement InTouch
THIS AGREEMENT is between ZUMEY LTD (“ZUMEY”), with registered office 71-75 Shelton Street, Covent Garden, WC2H 9JQ, United Kingdom, registered with Companies House for England and Wales under company number 8176627 and its customers subscribed to the "InTouch" product (the “CLIENT”).
This AGREEMENT sets forth the Terms and Conditions applicable to the creation, management, storing and supporting (the “SERVICES”) of the CLIENT’s email campaigns and related assets, such as distribution lists and campaign archives (the “ASSETS”) on ZUMEY’s servers and cloud infrastructure.
ZUMEY and CLIENT hereby agree to the following Terms and Conditions of Service:
1. Length of Service
CLIENT agrees to a twelve (12) month perpetual contract (“TERM”). The length of contract required is based on the type of service required by CLIENT and shall be determined by ZUMEY, though can be altered by mutual agreement between ZUMEY and CLIENT at or before the start of a TERM.
2. Service Start Date
The Service Start Date is the date on which the first campaign is send to the CLIENT’s distribution list or, in the case when no distribution list is defined, the date when setup work on supplying the SERVICE commences. All charges for the full TERM as outlined in paragraph 1a become payable on the Service Start Date.
3. Renewal of Service
This Agreement will automatically renew for a successive TERM unless cancelled in writing by CLIENT at least thirty (30) days prior to the end of TERM renewal date. Any remaining time left on the TERM is non-refundable. The Renewal Date is equal to the Service Start Date plus the Length of Service. Renewal prices are subject to change, however, any changes in price as well as revisions to these Terms and Conditions will be communicated by ZUMEY in writing to the CLIENT at least thirty (30) days prior to the Renewal Date.
4. Terms of Payment
Invoicing takes place on the Service Start Date for the full TERM unless otherwise agreed. Regardless of the payment frequency, customer agrees to remain liable for the payment of the full TERM price. Any ad-hoc charges accrued outside of the offering included in the initial quotation are invoiced monthly. Payment is due within thirty (30) days of invoice. Any CLIENTS in arrears of payment of over fourty-five (45) days from invoice date will have their ASSETS suspended. Any CLIENTS in arrears of payment of over one-hundred-twenty (120) days from invoice date may have their ASSETS permanently removed.
Reinstatement of ASSETS following a suspension will incur a fee of 15% of the full TERM price and reinstatement will not take place until receipt, in full, of both the amount the client is in arrears, plus the reinstatement fee. Once the ASSETS have been permanently removed, ZUMEY reserves the right to retain title and to SELL these customer ASSETS, including domain name(s) under our control, to recover outstanding debts partially or in full.
5. Confidential Information
Confidential information includes, but is not limited to, customer data, financial status, accounting data, contracts, records, software, practices, procedures, present and future business plans, prospects and marketing campaigns.
ZUMEY is willing to disclose confidential information to the CLIENT and the CLIENT is willing to disclose confidential information to ZUMEY. Both CLIENT and ZUMEY are willing to receive such confidential information for the purpose of the provision of the SERVICES under the Terms and Conditions of this Agreement.
ZUMEY and CLIENT agree that they will not disclose the other party’s Confidential Information in whole or in part, to any third party, or use any such Confidential Information other than for the provision of SERVICES under the Terms and Conditions of this Agreement.
Notwithstanding the foregoing, ZUMEY or CLIENT may disclose Confidential Information pursuant to the requirement of a governmental agency or pursuant to the requirements(s) by operation of law or court order.
The following information shall not be deemed Confidential Information and neither ZUMEY nor CLIENT shall have any obligation with respect to information which:
- is in the public domain at the time of disclosure or prior to the time of disclosure by the disclosing party, enters the public domain through no fault of the receiving party; or
- is rightfully received by the receiving party from a third party independent of the parties hereto, without restriction; or
- is presently known by the receiving party or is acquired or developed by the receiving party independent of the disclosures made by the disclosing party pursuant to this Agreement.
The Confidential Information shall at all times remain the property of the disclosing party. At any time at the receiving party’s option, or promptly upon the disclosing party’s request, the receiving party shall return to the disclosing party all copies of the Confidential Information received by it and no portion of the Confidential Information shall be retained in any form by the receiving party.
ZUMEY and CLIENT further agree that they will not disclose any information about the supplied SERVICES, pricing information, technical information or the existence of this Agreement, except with the express written consent of the other party.
6. Data Protection
Under UK and EC Directives, ZUMEY is a “Data Processor” in respect of the personal information the CLIENT may collect through the use of ZUMEY’s SERVICES. As a Data Processor, ZUMEY will only process or store data if the conditions for processing are met as set out by the UK Information Commissioner’s Office.
CLIENT understands and agrees that it is the sole responsibility of the CLIENT to ensure legal requirements are met and that CLIENT is duly registered as a “Data Controller” or the equivalent under the CLIENT’s local law.
Under this Agreement and only under the scope of the SERVICES listed under this agreement, ZUMEY has made provisions to ensure all ASSETS for CLIENTS residing within the EC are stored and processed within datacentres that either reside in Western-Europe or, if based in the US, are registered as an EU Safe Harbor as defined by the US Department of Commerce regarding the collection, use and retention of data from the EU.
As a Data Processor, ZUMEY will endeavour to have in place the best possible physical and logical security measures to prevent unauthorised access and loss of CLIENT’s ASSETS.
ZUMEY has satisfied itself that all third-party providers used by ZUMEY to deliver the SERVICE to the CLIENT are of reputable standing and have implemented the best possible physical and logical security measures to prevent unauthorised access and loss of CLIENT’s ASSETS. From time to time ZUMEY also checks that all third party providers based in the US are registered as an EU Safe Harbor.
ZUMEY will cooperate and comply with any valid request from recognised EU Data Protection Authorities, though cannot guarantee that US-based third party will also comply and cooperate.
7. Proprietary Software
The CLIENT understands and agrees that their ASSETS do not include the underlying infrastructure and software code which enables their ASSETS purpose. At any time CLIENT may request a backup copy of the data which comprises their ASSETS; however, this data may be supplied by ZUMEY in a raw format which may not necessarily be human-readable.
CLIENT further agrees to not decompose, disassemble, decode or reverse engineer any ZUMEY program, code or technology delivered to CLIENT or any portion thereof.
All access to the CLIENT’s ASSETS by CLIENT will be limited to a user-level access through a permissions-based User Interface. Under no circumstances will CLIENT be allowed administrative access to the servers, direct or indirect, hosting their ASSETS.
ZUMEY will exercise no control whatsoever over the content of the information being delivered through the SERVICE. All content must conform to our Acceptable Usage Policy (AUP). Customers with any content that violates our AUP will have their SERVICES suspended immediately and without prior notice.
ZUMEY makes no warranties or representations of any kind, whether expressed or implied for the SERVICES it is providing. ZUMEY also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by CLIENT, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of CLIENT. Use of any information obtained by way of ZUMEY is at CLIENT’s own risk, and ZUMEY specifically denies any responsibility for the accuracy or quality of information obtained through its services.
Connection speed represents the speed of an end-to-end connection. ZUMEY does not represent guarantees of speed or availability of end-to-end connections. ZUMEY expressly limits its damages to CLIENT for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. ZUMEY specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
Due to the nature of email, ZUMEY cannot guarantee the deliverability of email campaigns to all addresses on CLIENT’s distribution list. It is the sole responsibility of the CLIENT to ensure the email addresses supplied on any distribution list are valid email addresses. ZUMEY can supply, upon request by CLIENT, a report detailing delivered emails versus opened emails but no actual readership count can be assumed from the total delivered emails.
ZUMEY will provide expertise to design campaigns in such a way that deliverability is maximised, but CLIENT understands and agrees that ZUMEY cannot control if emails are delivered and subsequently moved to a spam folder.
ZUMEY will provide expertise to design campaigns in such a way that readability is maximised in most email clients, but CLIENT understands and agrees that ZUMEY cannot control if emails do not appear as designed in less popular or standards-aware email clients.
11. Anti-Spam and Abuse
ZUMEY may request from CLIENT proof that all email addresses on the distribution list are no older than twelve (12) months, permission to send a campaign to each address has been obtained explicitly by CLIENT or through a relevant commercial transaction and that the list has not been purchased or rented. Failure to provide this proof may result in ZUMEY’s refusal to use the distribution list.
ZUMEY may refuse to (re-)send a campaign to any address on a distribution list which has opted out from receiving any more emails from CLIENT or to any address which is or appears as a role-based email address.
ZUMEY endeavours to comply with EC Privacy Directives and local directives, including the US CAN-SPAM Act. In order to ensure compliance, ZUMEY explicitly has the right, at its sole discretion, to refuse to distribute any email campaign that is or may be non-compliant. ZUMEY will provide CLIENT with the expertise to help prevent reports of spam or reports of abuse from a recipient; however, the CLIENT is still solely responsible the contents of the campaign, the distribution list and therefore for any claims that arise out of such a report.
12. Limited Liability
CLIENT expressly agrees that use of ZUMEY for the provision of SERVICES is at CLIENT’s sole risk. Neither ZUMEY, its employees, affiliates, agents, third party information providers, merchants licensers or the like, warrant that ZUMEY’s SERVICES will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the SERVICES provided by ZUMEY.
Under no circumstances, including negligence, shall ZUMEY, its offices, agents or anyone else involved in creating, producing or distributing ZUMEY’s SERVICES be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use ZUMEY’s SERVICES or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to ZUMEY’s records, programs or services.
CLIENT shall indemnify and hold ZUMEY, it’s officers, employees, directors and representatives harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against ZUMEY directly or indirectly arising from or in connection with CLIENT’s marketing or support services of the product or services or the unauthorized representation of the product and services or any breach of this Agreement by CLIENT.
Notwithstanding the above, CLIENT’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate amount which Customer paid during a single TERM of this contract.
13. Trademarks and Copyrighted Material
CLIENT warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with the SERVICE. Equally, ZUMEY warrants that the appropriate licenses for any material used on behalf of the CLIENT as part of any design have been obtained.
Any material for which ZUMEY obtained a license on behalf of the client will remain licensed to ZUMEY. Payment of the appropriate fee by CLIENT grants CLIENT a non-exclusive, non-transferrable right to use the material as part of the SERVICE.
14. Transfer of Agreement
CLIENT may not assign nor transfer this Agreement, in whole or in part without the prior written consent of ZUMEY. In the event that CLIENT contemplates whole or partial sale of its business, including an ownership change or change in jurisdiction, CLIENT shall notify ZUMEY in writing no less than sixty (60) days prior to the effective date of the transfer or change.
ZUMEY or CLIENT may terminate this Agreement:
- at either party’s sole discretion upon failure of the other party to comply with any provisions of the Agreement upon receipt of written notice from the terminating party of said failure, or;
- upon mutual consent in writing and clearly indicating a Service Termination Date, Termination Payment Conditions and ASSETS transfer agreement, duly signed by both ZUMEY and CLIENT, or;
- as outlined in paragraph 3 of this Agreement by cancelling the renewal of a successive TERM.
Termination of this Agreement does not waiver either party’s rights or obligations under paragraphs 4, 5, 6, 7 and 10.
16. Applicable Law
If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom of Great Britain. Exclusive jurisdiction and venue shall be in the British Superior Court. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power.