TERMS & CONDITIONS FOR ACCESS TO THE SERVICES
You are strongly advised to read these Terms and Conditions carefully. In particular, please note that the email Services are available to be used only for permission-based contact lists, and that you are not permitted to import or use any purchased lists, rented lists, or third-party lists of contacts.
1. Introduction and definitions
1.1 The services offered by the Provider through the Web-Based Application include any features, content, or applications offered or made available from time to time by the Provider and/or its licensors in connection with the Web-Based Application (collectively, the "Services").
The Services may be hosted inside or outside of the United Kingdom. The Provider reserves the right to use third parties to provide any or all of the Services, including to host applications servers, to store and back-up data, and to send electronic and print communications.
1.2 In these Terms and Conditions the following words and expressions shall, unless the context otherwise requires, bear the meanings set forth below: -
2.1 These Terms and Conditions set forth the legally binding terms for your use of the Services. By using the Services, and in consideration of the Provider providing the Services to you, you agree to be bound by these Terms and Conditions, whether you are a "Visitor" (which means that you have not subscribed for the Services) or you are a "Client" (which means that you have subscribed for the Services). The term "User" refers to a Visitor or a Client.
2.2 You are only authorised to use the Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to be legally bound by these Terms and Conditions.
Please read these Terms and Conditions carefully and save a copy.
2.3 If you do not agree with these Terms and Conditions, you should discontinue use of the Services immediately.
2.4 When you place your order for one of more of the Services it is an offer by you to enter into a legal contract with us. If you wish to become a Client, and make use of the Services available only to Clients, you will need to request to register for the Services ("Request"). The Provider is entitled to refuse any registration request placed by you. If your registration request is accepted, we will confirm acceptance to you by online electronic means ("Confirmation") to the email address you have given us. Upon receipt of our Confirmation, you will be able to login to the Services and will be presented with the Terms and Conditions. By selecting the "I accept these Terms and Conditions" option ("Acceptance") you agree to be legally bound by these Terms and Conditions as they may be modified and posted on our website from time to time. The acknowledgement that Services will be made available to you on acceptance of these Terms and Conditions constitutes performance of our services and you will have no right to cancel the contract once we have done this.
3. Use of the Services
3.1 These Terms and Conditions include the Provider's policy for acceptable use of the Services and content posted on the Website and your rights, obligations and restrictions regarding your use of the Services.
3.2 By using the Services, you represent and warrant that
3.4 When you complete the registration form to become a Client, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Client at any time or to disclose your password to any third party. You agree to notify the Provider immediately by emailing info@gibboo.com if you suspect any unauthorised use of your account or access to your password. You are solely responsible for any and all use of your account.
3.5 You undertake to fully comply with the provisions of the Data Protection Act 1998 (which is accessible at www.ico.gov.uk) under which you are the data controller in respect of any personal data that you use through the Services.
3.6 You undertake to fully comply with The Privacy and Electronic Communications (EC Directive) Regulations 2003 and guidelines produced by the Information Commissioner's Office from time to time, which is accessible at www.ico.gov.uk
3.7 You undertake that all marketing communications sent through the Services comply with the Committee of Advertising Practice ("CAP") Code which is accessible at www.cap.org.uk, the Direct Marketing Association Code of Practice, accessible at www.dma.org.uk and the best practice guides produced by www.spamhaus.org.
3.8 You must use only permission-based lists of contacts to which you send communications through the Services.
3.9 You may not use purchased, rented or third-party lists of contacts on the Services.
4. Modification to these Terms & Conditions
4.1 The Provider may modify these Terms and Conditions from time to time. Any modifications shall become effective upon the posting of the revised Terms and Conditions on the Provider's website, or by providing notice to the Client. You agree to be bound by any changes to these Terms and Conditions when you use the Services after any such modification has occurred. If you do not agree to be bound by them, you should not use the Services.
5. Availability of the Services
5.1 The Provider will endeavour to make the Services available but cannot guarantee that the Services will operate continuously or without interruptions or be error free and can accept no liability for its unavailability.
5.2 The Provider reserves the right to suspend the Services temporarily if the need arises, in order to carry out maintenance to the Web-Based Application. Wherever possible, such suspensions shall take place outside of working hours and the Client shall be notified in advance.
5.3 The Provider reserves the right to de-activate an account which has not been logged into for more than 150 days. Following notification to the Client, the Provider reserves the right to permanently remove the account and its data from the Services.
6. Information you provide
6.1 The following applies to any information you provide to us, for example, during any registration or subscription process.
7. Applicability of online materials
7.1 Our website and the Services are controlled and operated by us from our offices in the UK.
7.2 We have endeavoured to ensure that our website and the Services comply with UK laws. However, we make no representations that the materials on our website and the Services are appropriate or available for use in locations outside the UK. Those who visit our website from other locations do so on their own initiative and are responsible for compliance with all applicable laws. If use of our website and/or viewing of it, or use of any material or content on our website or services, or products offered through our website are contrary to or infringe any applicable law in your jurisdiction(s), you are not authorised to view or use our website and you must exit immediately.
7.3 The Provider makes no warranties, express or implied that making the Services available in any particular jurisdiction outside the UK is permitted under any applicable non-UK laws or Regulations. Accordingly, if making the Services or any part available in your jurisdiction or to you (by reason of nationality, residence or otherwise) is prohibited, the Services are not offered for subscription by you. You accept that if you are resident outside the UK, you must satisfy yourself that you are lawfully able to subscribe to the Services. The Provider accepts no liability, to the extent permitted by applicable law, for any costs, losses or damages resulting from or related to the access or attempted access of the trustees for citizens, residents or nationals of other countries.
8. Intellectual Property
8.1 All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) relating to the Services and the Web-Based Application and all content (including all applications) located on the website shall remain vested in the Provider and/or third parties including, without limitation, any licensors from whom the Provider has licensed such rights (as the case may be).
8.2 You may not sub-licence copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use the content in any way except as otherwise expressly permitted by law. You also agree not to adapt, alter or create a derivative work from any of the Services or Web-Based Application except as otherwise expressly permitted by law. Any other use of the Services or Web-Based Application requires the prior written permission of the Provider.
8.3 The names, images and logos identifying the Provider or third parties and their products and services are subject to copyright, design rights and trade marks of the Provider and/or third parties. Nothing contained in these Terms and Conditions shall be construed as conferring any licence or right to use any trade mark, design right or copyright of the Provider or any other third party.
8.4 You may not use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party.
8.5 You represent and warrant to us that you will not add or upload any material to the Services for the purposes of creating an email communication to any member of your contact list, or for any other purpose, unless you are the owner of all proprietary rights in that material (or have been given a valid licence from the owner of the proprietary rights in such material) and you have obtained releases for all related copyright, privacy and publicity rights.
9. Term
9.1 These Terms and Conditions shall remain in full force and effect while you use the Services or are a Client.
9.2 You may terminate your account with the Provider at any time, for any reason, by following the relevant instructions for 'termination of account' in the 'account settings' section of the Services website.
9.3 The Provider may terminate your account at any time, without cause or warning.
9.4 The Provider reserves the right to terminate the agreement in the event of a breach of these Terms and Conditions, applicable legislation, regulations, directions, codes of practice, and best practice guides.
10. Fees
10.1 You acknowledge that the Provider reserves the right to charge for the Services and/or to change any applicable fees from time to time in its discretion. If we terminate your account or use of any of the Services because you have breached these Terms and Conditions or other applicable Terms and Conditions you shall not be entitled to a refund of any unused portion of subscription fees.
10.2 Details of our prices for subscription to the Services and the procedures for payment are displayed on our website, or available on application.
10.3 Payment for the charged-for Services is to be paid to the Provider monthly, in advance, unless an alternative payment plan has been offered and opted for, or unless otherwise stated. Payment is to be made in one of the currencies offered on the Services, by means of a credit or debit card, to our payment processing services provider, unless otherwise notified.
10.4 All prices are quoted on the website exclusive of any Value Added Tax for which the Client is liable at the current applicable rate at the point of payment.
10.5 The price of any subscription is the price in force at the date and time of your order. We reserve the right to change the prices up until the date and time you place your order. We try to ensure that our prices displayed on our website are accurate but the price on your order will need to be validated by us as part of the acceptance procedure (see sub-clause 2.4). We will inform you if a subscription's correct price is higher than stated in your subscription request and you may indicate your acceptance of the stated price by selecting the 'proceed to payment' option.
10.6 If the relevant subscription period has elapsed since the previous payment was made, you will not be able to access the Services until payment of the accrued amount has been received by us. The accrued amount owed will take into account any price changes which have taken place during the relevant period.
10.7 Details of the amount owed will appear on the 'The Account/Pricing and Payment' page on the Services.
10.8 If you wish to upgrade your subscription plan before the full subscription period has elapsed, you will be charged the difference between the two subscription plans until the following due date.The higher subscription fee will then become due and will continue to apply.
10.9 The contact limit specified for a particular subscription plan is not able to be exceeded unless the appropriate subscription fee for the increased number of contacts is paid in advance. The difference between the subscription fees for the two price plans will be charged until the due date for the new subscription plan. The higher subscription fee will then become due and will continue to apply.
10.10 You may not circumvent the provisions of the contact limit specified in any price plan by deleting and replacing substantial numbers of contacts from your contact lists in order to create a new list of contacts to whom you send emails within 30 days. The Provider may in its sole discretion deactivate your account if it is found that you are violating this clause.
10.11 You undertake that all details you provide to us or to our payment processing services providers for the purpose of subscribing to the Services will be correct, that the credit card which you use is your own and that there are sufficient funds or credit card facilities to cover the cost of any subscription. We or our payment processing services providers reserve the right to obtain validation of your credit card details before providing you with any of the Services.
10.12 The Provider will make invoices available to the Client on the 'My Account' page on the due date each month. Access to the Services by the Client will not be possible until payment has been received by the Provider.
10.13 If payment is not received the Provider reserves the right to de-activate the account and re-activation will incur a re-activation fee payable by the Client. Notwithstanding any such de-activation of the account fees will continue to accrue on a monthly basis until the Client provides notice to terminate the account. These fees will remain outstanding after the account has been terminated until payment has been received from the Client. If the account is not re-activated within 150 days, the Provider reserves the right to delete all the data on or associated with the Client's account.
10.14 All fees payable under this Agreement are non-refundable.
11 Email sending and content posted or transmitted
11.1 The Client undertakes to fully comply with The Privacy and Electronic Communications (EC Directive) Regulations 2003 and guidelines produced by the Information Commissioner's Office from time to time, which is accessible at www.ico.gov.uk
11.2 The Client undertakes that all marketing communications sent through the Services comply with the Committee of Advertising Practice ("CAP") Code which is accessible at www.cap.org.uk, the Direct Marketing Association Code of Practice, accessible at www.dma.org.uk and the best practice guides produced by www.spamhaus.org.
11.3 The Client undertakes to fully comply with the Data Protection Act 1998, which is accessible at www.ico.gov.uk
11.4 The Client must use only permission-based lists of contacts to which it sends communications through the Services.
11.5 The Client may not use purchased, rented or third-party lists of contacts on the Services.
11.6 The Provider reserves the right to investigate and take action against any User who, in the opinion of the Provider, violates the provisions above, including without limitation, removing any offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies.
11.7 The Client must ensure that all email communications sent through the Services make clear that they are marketing communications, do not contain any misleading information, and have a subject line which accurately reflects the content of the message.
11.8 The Client must not send private messages with a commercial purpose.
11.9 The Client is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. The Provider, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under these Terms and Conditions. The Provider may terminate the Client's use of the Services if the Provider determines that the level of spam complaints is higher than industry norms.
11.10 The Client is solely responsible for the content that you send through or post on any of the Services, and any material or information that you transmit in emails, and for your interactions with other Users. The Provider does not endorse and has no control over content posted by Users. Content is not necessarily reviewed by the Provider prior to posting and does not necessarily reflect the opinions or policies of the Provider. The Provider makes no warranties, express or implied, as to the content or to the accuracy and reliability of the content or any material or information that you transmit or which is transmitted on your behalf using the Services.
11.11 The Provider also accepts no responsibility or liability for the storage or back-up of any Client data or for any loss or damage incurred as a result of any data lost.
11.12 Except to the extent which cannot be excluded or limited by law or regulation in respect of the content of the Services, the Provider assumes no responsibility for monitoring its Services for inappropriate content or conduct. If at any time the Provider chooses, in its sole discretion, to monitor the Services, except as required by law or regulation, the Provider nonetheless assumes no responsibility for the content (other than the Provider content), no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the User submitting any such content.
11.13 The Provider may delete, or in pre-moderated areas of its Services refrain from posting, any content that in the opinion of Provider violates these Terms and Conditions or which may be offensive, illegal or violate the rights of any person or which may harm or threaten the safety of any person.
11.14 The Services make provision that any email sent through the Services contains the full name, address, email address of the sender, and a 'reply-to' address; if the sender is a company, the email will contain the full business name, company registration number and registered office address of the sender. The relevant details will be taken from the registration information provided by the Client, which must be accurate and valid. The email will further provide each recipient with the choice to opt-out or unsubscribe from all further emails from the sender and will also provide each recipient with the option to mark the email as 'spam'.
11.15 The Client undertakes to indemnify the Provider against any losses, claims, fines, damages, expenses (whether direct, indirect or consequential) arising as a result of any violation of these Terms and Conditions, or breach of legislation, regulation or directive.
11.16 If you display third-party advertisements on your account you confirm:
12. Content prohibited
The following is a partial list of the kind of content that is illegal or prohibited to post on or through the Services including, in particular, (without limitation) where such content is transmitted using the email service element of the Web-Based Application. The Provider reserves the right to investigate and take action against any User who, in the opinion of Provider, violates this provision, including (without limitation) removing the offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies. Prohibited content includes, but is not limited to, content that in the opinion of the Provider:
13. Prohibited activities
The following is a partial list of the kind of activities which are illegal or prohibited to be used on or through the Services. The Provider reserves the right to investigate and take action against any User who, in the opinion of the Provider, violates this provision, including without limitation, removing any offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies. Prohibited activities include but are not limited to an activity which, in the opinion of the Provider comprises:-
14. Limitation of liability
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
14.1 The Provider will endeavour to provide the Services with reasonable skill and care.
14.2 Except as set out in sub-clause 14.1, we exclude all express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the Services our website or any information or service provided through our website. The Services and all content and information contained in the Services are provided on an 'as is', 'as available' and 'with all faults' basis and you assume total responsibility and risk for your use of the Services content and information contained in the Services.
14.3 We accept no liability for any indirect or consequential loss or damage, or for any direct or indirect loss of data, profit, revenue or business in each case, however caused, even if foreseeable. In circumstances where you suffer loss or damage arising out of or in connection with the viewing, use or performance of the Services we accept no liability for this loss or damage (except where we have been negligent) whether due to inaccuracy, error or omission or any other cause and whether on the part of the Provider or our servants, agents or any other person or entity.
14.4 As stated in clause 11.10, we accept no responsibility or liability for the storage or back-up of any Client data or for any loss or damage as a result of any data lost.
14.5 We are not responsible for any incorrect or inaccurate content posted on the Services or in connection with the Services, whether caused by Users of the Services or by any of the equipment or programming associated with the Services.
14.6 Accounts or emails created by the Client or the Services may contain links to other websites although we are not responsible for any User generated links or linked-to content. The Provider is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by the Provider. Inclusion of any linked website through the Services does not imply approval or endorsement of the linked website by the Provider. When you access these third-party sites, you do so at your own risk.
14.7 The Provider takes no responsibility for third party advertisements which are posted through the Services, nor does it take any responsibility for the goods or services provided by its Users.
14.8 The Provider is not responsible for the conduct, whether online or offline, of any User of the Services.
14.9 The Provider assumes no responsibility for any error, omission, interruption, deletion, corruption, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, any User communication or any content. The Provider is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services.
14.10 Under no circumstances shall the Provider be responsible for any loss or damage resulting from use of the Services, attendance at an event organised through the Services, from any content posted through the Services, or from the conduct of any Users of the Services, whether online or offline.
14.11 The Provider expressly disclaims any warranty of fitness for a particular purpose or non-infringement. The Provider cannot guarantee and does not promise any specific results from use of the Services.
14.12 The Provider cannot guarantee delivery of emails to an intended recipient and makes no representations or warranties about the speed or proportion of emails which are delivered.
14.13 The Provider cannot guarantee that email communications will be rendered correctly or consistently on all recipients' email browser software.
15. General
15.1 We may, but you may not, assign any rights and/or transfer, sub-contract or delegate any obligations under these Terms and Conditions, and/or charge or deal in any other manner with these Terms and Conditions or any of our respective rights or obligations. Any purported assignment, transfer, sub-contracting, delegation, charging or dealing in contravention of this clause 15.1 shall be ineffective. These Terms and Conditions are personal to you and are entered into by you for your own benefit and not for the benefit of any third party.
15.2 These Terms and Conditions together with the privacy policy, any subscription request form and payment method instructions, if any, are the whole agreement between you and the Provider. You acknowledge that you have not entered into this agreement in reliance upon any statement, warranty or representation made by the Provider or any other person and you irrevocably and unconditionally waive any rights to claim damages and/or rescind these Terms and Conditions by reason of any misrepresentation (other than a fraudulent misrepresentation) that is not contained in the Terms and Conditions.
15.3 If any provision or term of these Terms and Conditions shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term or provision shall be divisible from the other Terms and Conditions and shall be deemed to be deleted from them.
15.4 Failure or delay by either party enforcing an obligation or exercising a right under these Terms and Conditions does not constitute a waiver of that right or remedy.
15.5 These Terms and Conditions do not confer any rights on any person or party (other than you and/or us) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16. Notices
16.1 All notices shall be given:
17. Choice of law and Jurisdiction
These Terms and Conditions shall be governed by and interpreted in accordance with English law and you irrevocably agree that the courts of England and Wales shall (subject to the following sentence) have exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with these Terms and Conditions. Nothing in this clause limits the right of the Provider to bring proceedings against you arising out of or in connection with these Terms and Conditions (a) in any other court of competent jurisdiction or (b) concurrently in more than one court of competent jurisdiction.
18. Indemnity
The Client undertakes to indemnify and hold the Provider, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, demand, claim, damages or legal proceedings brought or threatened, including expenses (whether direct, indirect or consequential) suffered or incurred arising out of your use of the Services in violation of these Terms and Conditions, and/or arising from your use of the Services and/or a breach of these Terms and Conditions.
I accept the above Terms and Conditions and agree to be legally bound by these Terms and Conditions as they may be modified from time to time.
You are strongly advised to read these Terms and Conditions carefully. In particular, please note that the email Services are available to be used only for permission-based contact lists, and that you are not permitted to import or use any purchased lists, rented lists, or third-party lists of contacts.
1. Introduction and definitions
1.1 The services offered by the Provider through the Web-Based Application include any features, content, or applications offered or made available from time to time by the Provider and/or its licensors in connection with the Web-Based Application (collectively, the "Services").
The Services may be hosted inside or outside of the United Kingdom. The Provider reserves the right to use third parties to provide any or all of the Services, including to host applications servers, to store and back-up data, and to send electronic and print communications.
1.2 In these Terms and Conditions the following words and expressions shall, unless the context otherwise requires, bear the meanings set forth below: -
- "The Provider" means Abcum-Effect Limited (company registered number 07076872) whose registered office is at Civvals, Marble Arch House (5th Floor), 66-68 Seymour Street, London W1H 5AF, United Kingdom, also referred to as "we", "us" and "our".
- "The Client" means the person or persons who subscribe for the Services, also referred to as "you" and "your".
- "Web-Based Application" means web-based business organiser and marketing tools operated by the Provider and/or third parties, and known as Gibboo, which enable the Client to create and manage contact lists; to create print campaigns; to export data; and to create, manage and send electronic messages up to the maximum allowed limit as specified in the payment plan taken out by the Client.
2.1 These Terms and Conditions set forth the legally binding terms for your use of the Services. By using the Services, and in consideration of the Provider providing the Services to you, you agree to be bound by these Terms and Conditions, whether you are a "Visitor" (which means that you have not subscribed for the Services) or you are a "Client" (which means that you have subscribed for the Services). The term "User" refers to a Visitor or a Client.
2.2 You are only authorised to use the Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to be legally bound by these Terms and Conditions.
Please read these Terms and Conditions carefully and save a copy.
2.3 If you do not agree with these Terms and Conditions, you should discontinue use of the Services immediately.
2.4 When you place your order for one of more of the Services it is an offer by you to enter into a legal contract with us. If you wish to become a Client, and make use of the Services available only to Clients, you will need to request to register for the Services ("Request"). The Provider is entitled to refuse any registration request placed by you. If your registration request is accepted, we will confirm acceptance to you by online electronic means ("Confirmation") to the email address you have given us. Upon receipt of our Confirmation, you will be able to login to the Services and will be presented with the Terms and Conditions. By selecting the "I accept these Terms and Conditions" option ("Acceptance") you agree to be legally bound by these Terms and Conditions as they may be modified and posted on our website from time to time. The acknowledgement that Services will be made available to you on acceptance of these Terms and Conditions constitutes performance of our services and you will have no right to cancel the contract once we have done this.
3. Use of the Services
3.1 These Terms and Conditions include the Provider's policy for acceptable use of the Services and content posted on the Website and your rights, obligations and restrictions regarding your use of the Services.
3.2 By using the Services, you represent and warrant that
- 3.2.1 all registration information you submit is truthful and accurate;
- 3.2.2 you will maintain the accuracy of such information (including your email address);
- 3.2.3 where registration as a Client is required in order to use a Service you are 18 years of age or older; and
- 3.2.4 your use of the Services does not violate any applicable law or regulation.
3.4 When you complete the registration form to become a Client, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another Client at any time or to disclose your password to any third party. You agree to notify the Provider immediately by emailing info@gibboo.com if you suspect any unauthorised use of your account or access to your password. You are solely responsible for any and all use of your account.
3.5 You undertake to fully comply with the provisions of the Data Protection Act 1998 (which is accessible at www.ico.gov.uk) under which you are the data controller in respect of any personal data that you use through the Services.
3.6 You undertake to fully comply with The Privacy and Electronic Communications (EC Directive) Regulations 2003 and guidelines produced by the Information Commissioner's Office from time to time, which is accessible at www.ico.gov.uk
3.7 You undertake that all marketing communications sent through the Services comply with the Committee of Advertising Practice ("CAP") Code which is accessible at www.cap.org.uk, the Direct Marketing Association Code of Practice, accessible at www.dma.org.uk and the best practice guides produced by www.spamhaus.org.
3.8 You must use only permission-based lists of contacts to which you send communications through the Services.
3.9 You may not use purchased, rented or third-party lists of contacts on the Services.
4. Modification to these Terms & Conditions
4.1 The Provider may modify these Terms and Conditions from time to time. Any modifications shall become effective upon the posting of the revised Terms and Conditions on the Provider's website, or by providing notice to the Client. You agree to be bound by any changes to these Terms and Conditions when you use the Services after any such modification has occurred. If you do not agree to be bound by them, you should not use the Services.
5. Availability of the Services
5.1 The Provider will endeavour to make the Services available but cannot guarantee that the Services will operate continuously or without interruptions or be error free and can accept no liability for its unavailability.
5.2 The Provider reserves the right to suspend the Services temporarily if the need arises, in order to carry out maintenance to the Web-Based Application. Wherever possible, such suspensions shall take place outside of working hours and the Client shall be notified in advance.
5.3 The Provider reserves the right to de-activate an account which has not been logged into for more than 150 days. Following notification to the Client, the Provider reserves the right to permanently remove the account and its data from the Services.
6. Information you provide
6.1 The following applies to any information you provide to us, for example, during any registration or subscription process.
- 6.1.1 You authorise us to use, store or otherwise process any personal information which relates to and/or identifies you, including, but not limited to, your name and address, to the extent reasonably necessary to provide the Services which are available through our website by us, our partners, successors (including the purchaser of the whole or part of our business), associates, sub-contractors or other third parties.
- 6.1.2 If you obtain or choose to buy services through our website then we may collect information about your buying behaviour and if you send us personal correspondence such as emails or letters or post reviews of other messages on the bulletin boards or in the chat areas then we may collect this information into a file specific to you (together, the various purposes set out in this paragraph and in our privacy policy shall be known as 'the Purposes'). All such information collected by us shall be referred to in these Terms and Conditions as 'Personal Information'.
- 6.1.3 You must ensure that the Personal Information you provide is accurate and complete and that all registration details (where applicable) contain your or your company's correct name, address and other requested details. For more information about how we deal with your Personal Information, please read our Privacy Policy.
7. Applicability of online materials
7.1 Our website and the Services are controlled and operated by us from our offices in the UK.
7.2 We have endeavoured to ensure that our website and the Services comply with UK laws. However, we make no representations that the materials on our website and the Services are appropriate or available for use in locations outside the UK. Those who visit our website from other locations do so on their own initiative and are responsible for compliance with all applicable laws. If use of our website and/or viewing of it, or use of any material or content on our website or services, or products offered through our website are contrary to or infringe any applicable law in your jurisdiction(s), you are not authorised to view or use our website and you must exit immediately.
7.3 The Provider makes no warranties, express or implied that making the Services available in any particular jurisdiction outside the UK is permitted under any applicable non-UK laws or Regulations. Accordingly, if making the Services or any part available in your jurisdiction or to you (by reason of nationality, residence or otherwise) is prohibited, the Services are not offered for subscription by you. You accept that if you are resident outside the UK, you must satisfy yourself that you are lawfully able to subscribe to the Services. The Provider accepts no liability, to the extent permitted by applicable law, for any costs, losses or damages resulting from or related to the access or attempted access of the trustees for citizens, residents or nationals of other countries.
8. Intellectual Property
8.1 All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) relating to the Services and the Web-Based Application and all content (including all applications) located on the website shall remain vested in the Provider and/or third parties including, without limitation, any licensors from whom the Provider has licensed such rights (as the case may be).
8.2 You may not sub-licence copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use the content in any way except as otherwise expressly permitted by law. You also agree not to adapt, alter or create a derivative work from any of the Services or Web-Based Application except as otherwise expressly permitted by law. Any other use of the Services or Web-Based Application requires the prior written permission of the Provider.
8.3 The names, images and logos identifying the Provider or third parties and their products and services are subject to copyright, design rights and trade marks of the Provider and/or third parties. Nothing contained in these Terms and Conditions shall be construed as conferring any licence or right to use any trade mark, design right or copyright of the Provider or any other third party.
8.4 You may not use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party.
8.5 You represent and warrant to us that you will not add or upload any material to the Services for the purposes of creating an email communication to any member of your contact list, or for any other purpose, unless you are the owner of all proprietary rights in that material (or have been given a valid licence from the owner of the proprietary rights in such material) and you have obtained releases for all related copyright, privacy and publicity rights.
9. Term
9.1 These Terms and Conditions shall remain in full force and effect while you use the Services or are a Client.
9.2 You may terminate your account with the Provider at any time, for any reason, by following the relevant instructions for 'termination of account' in the 'account settings' section of the Services website.
9.3 The Provider may terminate your account at any time, without cause or warning.
9.4 The Provider reserves the right to terminate the agreement in the event of a breach of these Terms and Conditions, applicable legislation, regulations, directions, codes of practice, and best practice guides.
10. Fees
10.1 You acknowledge that the Provider reserves the right to charge for the Services and/or to change any applicable fees from time to time in its discretion. If we terminate your account or use of any of the Services because you have breached these Terms and Conditions or other applicable Terms and Conditions you shall not be entitled to a refund of any unused portion of subscription fees.
10.2 Details of our prices for subscription to the Services and the procedures for payment are displayed on our website, or available on application.
10.3 Payment for the charged-for Services is to be paid to the Provider monthly, in advance, unless an alternative payment plan has been offered and opted for, or unless otherwise stated. Payment is to be made in one of the currencies offered on the Services, by means of a credit or debit card, to our payment processing services provider, unless otherwise notified.
10.4 All prices are quoted on the website exclusive of any Value Added Tax for which the Client is liable at the current applicable rate at the point of payment.
10.5 The price of any subscription is the price in force at the date and time of your order. We reserve the right to change the prices up until the date and time you place your order. We try to ensure that our prices displayed on our website are accurate but the price on your order will need to be validated by us as part of the acceptance procedure (see sub-clause 2.4). We will inform you if a subscription's correct price is higher than stated in your subscription request and you may indicate your acceptance of the stated price by selecting the 'proceed to payment' option.
10.6 If the relevant subscription period has elapsed since the previous payment was made, you will not be able to access the Services until payment of the accrued amount has been received by us. The accrued amount owed will take into account any price changes which have taken place during the relevant period.
10.7 Details of the amount owed will appear on the 'The Account/Pricing and Payment' page on the Services.
10.8 If you wish to upgrade your subscription plan before the full subscription period has elapsed, you will be charged the difference between the two subscription plans until the following due date.The higher subscription fee will then become due and will continue to apply.
10.9 The contact limit specified for a particular subscription plan is not able to be exceeded unless the appropriate subscription fee for the increased number of contacts is paid in advance. The difference between the subscription fees for the two price plans will be charged until the due date for the new subscription plan. The higher subscription fee will then become due and will continue to apply.
10.10 You may not circumvent the provisions of the contact limit specified in any price plan by deleting and replacing substantial numbers of contacts from your contact lists in order to create a new list of contacts to whom you send emails within 30 days. The Provider may in its sole discretion deactivate your account if it is found that you are violating this clause.
10.11 You undertake that all details you provide to us or to our payment processing services providers for the purpose of subscribing to the Services will be correct, that the credit card which you use is your own and that there are sufficient funds or credit card facilities to cover the cost of any subscription. We or our payment processing services providers reserve the right to obtain validation of your credit card details before providing you with any of the Services.
10.12 The Provider will make invoices available to the Client on the 'My Account' page on the due date each month. Access to the Services by the Client will not be possible until payment has been received by the Provider.
10.13 If payment is not received the Provider reserves the right to de-activate the account and re-activation will incur a re-activation fee payable by the Client. Notwithstanding any such de-activation of the account fees will continue to accrue on a monthly basis until the Client provides notice to terminate the account. These fees will remain outstanding after the account has been terminated until payment has been received from the Client. If the account is not re-activated within 150 days, the Provider reserves the right to delete all the data on or associated with the Client's account.
10.14 All fees payable under this Agreement are non-refundable.
11 Email sending and content posted or transmitted
11.1 The Client undertakes to fully comply with The Privacy and Electronic Communications (EC Directive) Regulations 2003 and guidelines produced by the Information Commissioner's Office from time to time, which is accessible at www.ico.gov.uk
11.2 The Client undertakes that all marketing communications sent through the Services comply with the Committee of Advertising Practice ("CAP") Code which is accessible at www.cap.org.uk, the Direct Marketing Association Code of Practice, accessible at www.dma.org.uk and the best practice guides produced by www.spamhaus.org.
11.3 The Client undertakes to fully comply with the Data Protection Act 1998, which is accessible at www.ico.gov.uk
11.4 The Client must use only permission-based lists of contacts to which it sends communications through the Services.
11.5 The Client may not use purchased, rented or third-party lists of contacts on the Services.
11.6 The Provider reserves the right to investigate and take action against any User who, in the opinion of the Provider, violates the provisions above, including without limitation, removing any offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies.
11.7 The Client must ensure that all email communications sent through the Services make clear that they are marketing communications, do not contain any misleading information, and have a subject line which accurately reflects the content of the message.
11.8 The Client must not send private messages with a commercial purpose.
11.9 The Client is solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. The Provider, in its sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under these Terms and Conditions. The Provider may terminate the Client's use of the Services if the Provider determines that the level of spam complaints is higher than industry norms.
11.10 The Client is solely responsible for the content that you send through or post on any of the Services, and any material or information that you transmit in emails, and for your interactions with other Users. The Provider does not endorse and has no control over content posted by Users. Content is not necessarily reviewed by the Provider prior to posting and does not necessarily reflect the opinions or policies of the Provider. The Provider makes no warranties, express or implied, as to the content or to the accuracy and reliability of the content or any material or information that you transmit or which is transmitted on your behalf using the Services.
11.11 The Provider also accepts no responsibility or liability for the storage or back-up of any Client data or for any loss or damage incurred as a result of any data lost.
11.12 Except to the extent which cannot be excluded or limited by law or regulation in respect of the content of the Services, the Provider assumes no responsibility for monitoring its Services for inappropriate content or conduct. If at any time the Provider chooses, in its sole discretion, to monitor the Services, except as required by law or regulation, the Provider nonetheless assumes no responsibility for the content (other than the Provider content), no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the User submitting any such content.
11.13 The Provider may delete, or in pre-moderated areas of its Services refrain from posting, any content that in the opinion of Provider violates these Terms and Conditions or which may be offensive, illegal or violate the rights of any person or which may harm or threaten the safety of any person.
11.14 The Services make provision that any email sent through the Services contains the full name, address, email address of the sender, and a 'reply-to' address; if the sender is a company, the email will contain the full business name, company registration number and registered office address of the sender. The relevant details will be taken from the registration information provided by the Client, which must be accurate and valid. The email will further provide each recipient with the choice to opt-out or unsubscribe from all further emails from the sender and will also provide each recipient with the option to mark the email as 'spam'.
11.15 The Client undertakes to indemnify the Provider against any losses, claims, fines, damages, expenses (whether direct, indirect or consequential) arising as a result of any violation of these Terms and Conditions, or breach of legislation, regulation or directive.
11.16 If you display third-party advertisements on your account you confirm:
- 11.16.1 that you have obtained a positive indication of all recipients' consent to receive such direct marketing material; and
- 11.16.2 that you fully comply with The Privacy and Electronic Communications Regulations 2003 and the guidelines produced by the Information Commissioner’s Office from time to time; and
- 11.16.3 that the Provider is fully indemnified against all debts, liabilities, claims, proceedings, costs, demands and expenses in respect thereof.
12. Content prohibited
The following is a partial list of the kind of content that is illegal or prohibited to post on or through the Services including, in particular, (without limitation) where such content is transmitted using the email service element of the Web-Based Application. The Provider reserves the right to investigate and take action against any User who, in the opinion of Provider, violates this provision, including (without limitation) removing the offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies. Prohibited content includes, but is not limited to, content that in the opinion of the Provider:
- 12.1 is offensive;
- 12.2 promotes racism, terrorism, hatred or physical harm of any kind against any group or individual or links to websites that promote the same;
- 12.3 harasses or advocates harassment of another person;
- 12.4 exploits people in a sexual or violent manner;
- 12.5 contains pornography, violence, or offensive subject matter or contains a link to an adult website;
- 12.6 solicits personal information from anyone under 18;
- 12.7 provides any telephone numbers, street addresses, last names, email addresses or other contact or identifying details of any private individual;
- 12.8 provides any telephone numbers, street addresses, email addresses or other contact details of any public figure;
- 12.9 promotes information that you know or have reason to believe is false or misleading or promotes illegal activities or conduct that is objectionable, abusive, threatening, obscene, defamatory or libellous;
- 12.10 promotes an illegal or unauthorised copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files or file sharing;
- 12.11 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spamming," or "spimming";
- 12.12 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- 12.13 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
- 12.14 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
- 12.15 provides, sells or offers products, services or content frequently associated with unsolicited bulk email, also known as spam, such as pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses with offers promoting "get rich quick", "build your wealth" and "financial independence" schemes;
- 12.16 provides, sells or offers products, services or content related to credit or finance management, stock and trading tips, and mortgage finance offers;
- 12.17 involves contests, contests for money, contests for money's worth, gambling, sweepstakes, barter, or pyramid schemes; or
- 12.18 promotes or advertise email lists or services supporting unsolicted bulk email.
13. Prohibited activities
The following is a partial list of the kind of activities which are illegal or prohibited to be used on or through the Services. The Provider reserves the right to investigate and take action against any User who, in the opinion of the Provider, violates this provision, including without limitation, removing any offending communication from the Services, preventing access to the Services and/or terminating the account of such violators and/or reporting to law enforcement authorities or regulatory bodies. Prohibited activities include but are not limited to an activity which, in the opinion of the Provider comprises:-
- 13.1 using the Services in a manner inconsistent with any and all applicable laws and regulations;
- 13.2 criminal activity or any tortuous act or civil wrong, pornography, incitement to racial hatred, incitement to terrorism, fraud, posting obscene material, drug dealing, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, trade mark infringement, breach of confidence or theft of trade secrets;
- 13.3 the transmission of any chain letters or junk email;
- 13.4 using any information obtained from the Services in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent;
- 13.5 attempting to impersonate another Client or person;
- 13.6 using the account, username, or password of another Client at any time or disclosing your password to any third party or permitting any third party to access your account;
- 13.7 selling or otherwise transferring your account;
- 13.8 using any information obtained from the Services in order to harass, abuse, or harm another person;
- 13.9 modifying, accessing or making available data stored on a computer device which you have accessed through our network, when either the owner of the data, computer or device has taken steps to prevent you from doing this or the owner has expressed a wish that you do not do this;
- 13.10 making available or uploading files that contain software or other material, data or information not owned or licensed to you or collecting information about others (eg names/addresses) without their prior consent;
- 13.11 making available, uploading and distributing by any means any material or files that contain any viruses, bugs, corrupt data, "Trojan horses", "worms" or any other harmful software;
- 13.12 falsifying the true ownership of software or other material or information contained in files made available via the Services; or
- 13.13 obtaining or attempting to obtain unauthorised access, through whatever means, to the Services, other services or computer systems or areas of ours which are identified as restricted.
- 13.14 attempting to interfere with the proper working of the Services and, in particular, attempting to circumvent security, tamper with, hack into, or otherwise disrupt any computer system, server, website, router or any other internet connected device;
- 13.15 accepting payment or anything of value from a third person in exchange for you performing any commercial activity through the Services on behalf of that person, such as (save for third party advertisements complying with the provisions of clause 11.16) displaying an advertisement on your account, or placing commercial content on your account, or sending private messages with a commercial purpose;
- 13.16 sending emails through the Services to contacts who have not given their permission to received emails from the Client;
- 13.17 sending emails through the Services to contacts whose addresses have been acquired through purchasing or renting;
- 13.18 sending emails through the Services to contacts whose addresses have been acquired through a third-party;
- 13.19 selling or renting your contact lists.
14. Limitation of liability
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
14.1 The Provider will endeavour to provide the Services with reasonable skill and care.
14.2 Except as set out in sub-clause 14.1, we exclude all express or implied terms, conditions, warranties, representations or endorsements whatsoever with regard to the Services our website or any information or service provided through our website. The Services and all content and information contained in the Services are provided on an 'as is', 'as available' and 'with all faults' basis and you assume total responsibility and risk for your use of the Services content and information contained in the Services.
14.3 We accept no liability for any indirect or consequential loss or damage, or for any direct or indirect loss of data, profit, revenue or business in each case, however caused, even if foreseeable. In circumstances where you suffer loss or damage arising out of or in connection with the viewing, use or performance of the Services we accept no liability for this loss or damage (except where we have been negligent) whether due to inaccuracy, error or omission or any other cause and whether on the part of the Provider or our servants, agents or any other person or entity.
14.4 As stated in clause 11.10, we accept no responsibility or liability for the storage or back-up of any Client data or for any loss or damage as a result of any data lost.
14.5 We are not responsible for any incorrect or inaccurate content posted on the Services or in connection with the Services, whether caused by Users of the Services or by any of the equipment or programming associated with the Services.
14.6 Accounts or emails created by the Client or the Services may contain links to other websites although we are not responsible for any User generated links or linked-to content. The Provider is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by the Provider. Inclusion of any linked website through the Services does not imply approval or endorsement of the linked website by the Provider. When you access these third-party sites, you do so at your own risk.
14.7 The Provider takes no responsibility for third party advertisements which are posted through the Services, nor does it take any responsibility for the goods or services provided by its Users.
14.8 The Provider is not responsible for the conduct, whether online or offline, of any User of the Services.
14.9 The Provider assumes no responsibility for any error, omission, interruption, deletion, corruption, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, any User communication or any content. The Provider is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services.
14.10 Under no circumstances shall the Provider be responsible for any loss or damage resulting from use of the Services, attendance at an event organised through the Services, from any content posted through the Services, or from the conduct of any Users of the Services, whether online or offline.
14.11 The Provider expressly disclaims any warranty of fitness for a particular purpose or non-infringement. The Provider cannot guarantee and does not promise any specific results from use of the Services.
14.12 The Provider cannot guarantee delivery of emails to an intended recipient and makes no representations or warranties about the speed or proportion of emails which are delivered.
14.13 The Provider cannot guarantee that email communications will be rendered correctly or consistently on all recipients' email browser software.
15. General
15.1 We may, but you may not, assign any rights and/or transfer, sub-contract or delegate any obligations under these Terms and Conditions, and/or charge or deal in any other manner with these Terms and Conditions or any of our respective rights or obligations. Any purported assignment, transfer, sub-contracting, delegation, charging or dealing in contravention of this clause 15.1 shall be ineffective. These Terms and Conditions are personal to you and are entered into by you for your own benefit and not for the benefit of any third party.
15.2 These Terms and Conditions together with the privacy policy, any subscription request form and payment method instructions, if any, are the whole agreement between you and the Provider. You acknowledge that you have not entered into this agreement in reliance upon any statement, warranty or representation made by the Provider or any other person and you irrevocably and unconditionally waive any rights to claim damages and/or rescind these Terms and Conditions by reason of any misrepresentation (other than a fraudulent misrepresentation) that is not contained in the Terms and Conditions.
15.3 If any provision or term of these Terms and Conditions shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term or provision shall be divisible from the other Terms and Conditions and shall be deemed to be deleted from them.
15.4 Failure or delay by either party enforcing an obligation or exercising a right under these Terms and Conditions does not constitute a waiver of that right or remedy.
15.5 These Terms and Conditions do not confer any rights on any person or party (other than you and/or us) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16. Notices
16.1 All notices shall be given:
- 16.1.1 to us following the instructions in the 'The Account/Account Details' section of the Services/website, or by post to Abcum-Effect Limited at ;
- 16.1.2 to you at both the email address you provide during any registration process and on the 'Support' section of your account on the Services/website.
- 16.2 Notice will be deemed received when an email is received in full (or else on the next business day if it is received on a weekend or a public holiday in the place of receipt) or 3 days after the date of posting.
17. Choice of law and Jurisdiction
These Terms and Conditions shall be governed by and interpreted in accordance with English law and you irrevocably agree that the courts of England and Wales shall (subject to the following sentence) have exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with these Terms and Conditions. Nothing in this clause limits the right of the Provider to bring proceedings against you arising out of or in connection with these Terms and Conditions (a) in any other court of competent jurisdiction or (b) concurrently in more than one court of competent jurisdiction.
18. Indemnity
The Client undertakes to indemnify and hold the Provider, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, demand, claim, damages or legal proceedings brought or threatened, including expenses (whether direct, indirect or consequential) suffered or incurred arising out of your use of the Services in violation of these Terms and Conditions, and/or arising from your use of the Services and/or a breach of these Terms and Conditions.
I accept the above Terms and Conditions and agree to be legally bound by these Terms and Conditions as they may be modified from time to time.