Terms and Conditions

This agreement, which is made between MAIL MASTER and Customer (as defined hereafter), incorporates and is subject to these terms and conditions, as may be updated from time to time by MAIL MASTER.

 

1. Interpretation

1.1 Capitalised terms used in these terms and conditions shall have the meanings set out below:-

“Agreement”

means the contract formed between MAIL MASTER and Customer in accordance with clause 2, or by such other means as may be agreed between the Parties, and incorporating these Terms;

“Authorised Users”

those employees, agents and independent contractors of Customer who are authorised by Customer to use the Services and the Documentation, as further described in clause 9.2.2;

“Business Day”

a day other than a Saturday, Sunday or public holiday in England when banks in London are usually open for business;

“Confidential Information”

information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14;

“MAIL MASTER”

refers to MAIL MASTER Limited a company registered in England and Wales (company number 11509663) with a registered office address at 4 Nelson Crescent, Ramsgate, Kent CT11 9JF;

“Customer”

refers to MAIL MASTER’s counterparty as determined in accordance with clause 2;

“Customer Data”

the data inputted by Customer, Authorised Users, or MAIL MASTER on Customer’s behalf for the purpose of using the Services or facilitating use of the Services by Customer or Authorised Users;

“Data Protection Legislation”

means the Data Protection Act 2018 (UK), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing the Data Protection Directive 95/46/EC of 24 October 1995 or the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002 or the General Data Protection Regulation of 25 May 2018;

“Documentation”

the document(s) made available to Customer by MAIL MASTER online via www.mailxmaster.com or such other web address notified by MAIL MASTER to Customer from time to time which sets out a description of the Services and the user instructions for the Services;

“Insolvency Event”

each and any of the following in relation to a Party: (a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a Party; (ii) the appointment of a liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of a Party or any of its assets; (iii) the enforcement of any security over any assets of a Party; or (iv) the attachment, sequestration, distraining upon or execution over or affecting any material asset of a Party, which in any case is not withdrawn or dismissed as soon as reasonably practicable; (b) the Party is unable to pay its debts as they fall due or is insolvent, or the other Party perceives (acting reasonably) that to be the case; or (c) the Party enters into a composition or arrangement with any creditor, or its creditors or any class of them;

“Initial Subscription Term”

the period of one (1) calendar year immediately following the Registration Date;

“Intellectual Property Rights”

any and all patents, trademarks, business names, copyright, moral rights, database rights, rights in designs, rights in inventions, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting anywhere in the world and including all applications and rights to apply for any of them together with all or any associated goodwill;

“Normal Business Hours”

9.00 am to 5.00 pm local UK time, each Business Day;

“Party”

means either MAIL MASTER or Customer and “Parties” means both MAIL MASTER and Customer;

“Registration Date”

the date on which MAIL MASTER notifies Customer by email as having accepted the Registration Form;

“Registration Form”

the online registration form for the Services set out at www.mailxmaster.com to be completed and submitted to MAIL MASTER by Customer;

“Renewal Period”

the period described in clause 18.1;

“Services”

the provision of a web-based e-mail management database by MAIL MASTER to Customer under the Agreement via www.mailxmaster.com or any other website notified to Customer by MAIL MASTER from time to time, as more particularly described in the Documentation;

“Software”

the online software applications provided by MAIL MASTER as part of the Services;

“Subscription Date”

has the meaning set out at clause 6.1;

“Subscription Fees”

the subscription fees payable by Customer to MAIL MASTER for the Services during the Subscription Term, as published by MAIL MASTER at on the Website from time to time, and as calculated in accordance with clause 13 of these Terms;

“Subscription Term”

has the meaning given in clause 18.1 (being the Initial Subscription Term together with any subsequent Renewal Periods);

“Support Services”

means the technical support, software updates and enhancements provided by MAIL MASTER post launch of the software with the Customer;

“Terms”

these terms and conditions, as may be updated or amended from time to time by MAIL MASTER;

“Third Party Services”

means any services of a third party which are procured by MAIL MASTER in relation to the Services;

“Trial Period”

has the meaning set out at clause 5.1;

“Virus”

Any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

“Website”means the following website[s]: www.mailxmaster.com and all associated web pages and content of each, excluding any part of the Services or the Registration Form.

 

1.2 In these Terms, unless the context otherwise requires:

 

1.2.1 each gender includes the others and the singular includes the plural and vice versa;

1.2.2 references to clauses are to conditions of these Terms;

1.2.3 general words are not limited by example;

1.2.4 the terms “include(s)” or “including” shall be construed without limitation as to the generality of the preceding words;

1.2.5 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;

1.2.6 the headings are for convenience only and shall not affect the interpretation of the Agreement;

1.2.7 references to legislation:

(a) include any secondary or subordinate legislation made under or pursuant to that legislation; and

(b) exclude any re-enactment or modification of that legislation made on or after the date of the Agreement to the extent they make either Party’s obligations more onerous; and

1.2.8 writing includes manuscript, telexes, facsimiles, e-mails, electronic communications delivered by the Services or Software and other permanent forms.

 

2. Agreement

By notifying MAIL MASTER in writing of its acceptance of these Terms, Customer makes an offer to MAIL MASTER in respect of the Services which MAIL MASTER make generally available, which, if MAIL MASTER notifies Customer it has accepted such offer, will constitute a binding Agreement.

 

3. Services

3.1 Subject to the terms of the Agreement, and payment of the Subscription Fees by Customer, MAIL MASTER shall provide the Services and make available the Documentation to Customer in accordance with the terms of the Agreement.

3.2 MAIL MASTER shall use commercially reasonable endeavours to ensure that access to the Services of Customer and Authorised Users is not interrupted by any event within MAIL MASTER’s control, and to make the Services available 24 hours a day, seven days a week, except for:

3.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that MAIL MASTER has used reasonable endeavours to give Customer at least two (2) Normal Business Hours’ notice in advance.

3.3 MAIL MASTER will, as part of the Services and at no additional cost to Customer, provide Customer with MAIL MASTER’s standard customer support services in accordance with MAIL MASTER’s support policies as published on the Website at the time that the Services are provided. MAIL MASTER may amend such policies in its sole and absolute discretion from time to time.

4. Registration Information

4.1 In registering for the Services, on either a trial basis (in accordance with clause 5) or a subscription basis (in accordance with clause 6), Customer agrees to provide accurate and up to date information as required to complete the Registration Form or as otherwise required by MAIL MASTER, and to keep MAIL MASTER informed of any changes to this information.

5. Trial Period

5.1 Subject always to MAIL MASTER’s discretion, Customer may be entitled to register for the Services on a trial basis. In order to qualify for a “Trial Period”, Customer will need to complete the Registration Form. The Trial Period will run for a period of up to three (3) calendar months from the Registration Date. Customer shall be entitled to a maximum of one (1) Trial Period.

5.2 These Terms shall apply to the provision of the Services during the Trial Period in the same way as they would apply during the Subscription Term. In consideration for the grant of the Trial Period, Customer agrees to be bound by these Terms for the duration of the Trial Period.

5.3 If Customer wishes to cancel its registration prior to the expiry of the Trial Period, Customer must provide notice in writing to MAIL MASTER at info@mailxmaster.com.

 

6. Subscription

6.1 If Customer wishes to continue using the Services at the expiry of the Trial Period detailed in clause 5 (or such earlier time on written request from either MAIL MASTER or Customer), Customer shall be required to provide to MAIL MASTER valid up-to-date and complete payment details in such form as MAIL MASTER may require and will be considered to have “Subscribed”.  Receipt of requisite payment details shall be considered to mark the “Subscription Date”.

6.2 If Customer fails to provide acceptable payment details in accordance with clause 6.1 and 6.2 within twenty-eight (28) days of the expiry of a Trial Period, MAIL MASTER may at its sole discretion cancel Customer’s registered account. If Customer wishes to reactivate its account within the three (3) months following expiry of the Trial Period, MAIL MASTER may at its sole discretion reactivate Customer’s account on written request.

7. Customer Data

7.1 Customer shall own all right(s), title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

7.2 Customer shall maintain procedures to facilitate reconstruction of any lost Customer Data and is responsible for carrying out all necessary back up procedures for its own benefit to ensure that Customer Data integrity is maintained in the event of loss of Customer Data for any reason. Customer agrees that it will not be liable under any circumstances for any consequences arising from lost or corrupted Customer Data which would not have been lost if such procedures had been maintained.

7.3 Without prejudice to clause 7.2, MAIL MASTER will use its reasonable endeavours to ensure that Customer Data is maintained securely and backed up in accordance with Appendix section 3.0 during the term of the Agreement. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy with respect to MAIL MASTER shall be that MAIL MASTER uses reasonable endeavours to restore the lost or damaged Customer Data from the latest available back up of such data that MAIL MASTER maintains. MAIL MASTER shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by MAIL MASTER to perform services related to data maintenance and back-up).

7.4 Where Customer Data has been deleted or removed by Customer, or by MAIL MASTER in accordance with Customer’s instructions, it shall be at MAIL MASTER’s absolute discretion as to whether it will provide any service for the recovery of this Customer Data.

8. Data Protection

If MAIL MASTER processes any personal data on Customer’s behalf when performing its obligations under the Agreement, the Parties record their intention that Customer shall be the data controller and MAIL MASTER shall be a data processor and in any such case:

8.1 Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Customer and the Authorised Users are located in order to carry out the Services and MAIL MASTER’s other obligations under the Agreement;

8.2 Customer shall ensure that it is entitled to transfer the relevant personal data to MAIL MASTER so that MAIL MASTER may lawfully use, process and transfer the personal data in accordance with the Agreement on Customer’s behalf;

8.3 Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable Data Protection Legislation;

8.4 MAIL MASTER shall process the personal data only in accordance with the terms of the Agreement and any lawful instructions reasonably given by Customer from time to time; and

8.5 Each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

9. Authorised Users

9.1 Subject to Customer fulfilling its obligations under the Agreement, including paying any Subscription Fees due in accordance with the Agreement, MAIL MASTER hereby grants to Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the term of the Agreement solely for Customer’s internal business operations.

 

9.2 In relation to the Authorised Users, Customer undertakes that:

9.2.1 each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential. Any such password used by an Authorised User in accordance with this clause 10.2.1 shall be created in accordance with any policies or guidelines published by MAIL MASTER from time to time;

9.2.2 it shall maintain a written, up to date list of current Authorised Users and provide such list to MAIL MASTER within five (5) Business Days of its written request at any time or times;

9.2.3 it shall permit MAIL MASTER to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at MAIL MASTER’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business; and

9.2.4 if any of the audits referred to in clause 9.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to MAIL MASTER’s other rights, Customer shall promptly disable such passwords and MAIL MASTER shall not issue any new passwords to any such individual.

9.3 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

9.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

9.3.2 facilitates illegal activity;

9.3.3 depicts sexually explicit images;

9.3.4 promotes unlawful violence;

9.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

9.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property, and MAIL MASTER reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.

9.4 Customer shall not:

9.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:

(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

9.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

9.4.3 use the Services and/or Documentation to provide services to third parties; or

9.4.4 subject to clause 25.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

9.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 1.2.

9.5 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify MAIL MASTER.

9.6 The rights provided under this clause 9. are granted to Customer only and shall not be considered granted to any subsidiary or holding company of Customer.

10. MAIL MASTER’s Obligations

10.1 MAIL MASTER undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

10.2 MAIL MASTER shall use reasonable endeavours to provide the Operational Services in accordance with the service levels detailed in the appendix.

10.3 The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to MAIL MASTER’s instructions, or modification or alteration of the Services by any party other than MAIL MASTER or its duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, MAIL MASTER will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 10.1. Notwithstanding the foregoing, MAIL MASTER:

10.2.1 does not warrant that Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements; and

10.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.4 The Agreement shall not prevent MAIL MASTER from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

11. Customer’s Obligations

Customer shall:

11.1 provide MAIL MASTER with:

11.1.1 all necessary co-operation and information in relation to the Agreement; and

11.1.2 all necessary access to such information as may be required by MAIL MASTER; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

11.2 comply with all applicable laws and regulations with respect to its activities under the Agreement;

11.3 carry out all of its other responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as may be required by MAIL MASTER, MAIL MASTER may adjust any agreed timetable or delivery schedule as reasonably necessary;

11.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

11.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for MAIL MASTER, its contractors and agents to perform the obligations under the Agreement, including without limitation the Services;

11.6 ensure that Customer’s network and systems comply with the relevant specifications provided by MAIL MASTER from time to time; and

11.7 be solely responsible for procuring and maintaining Customer’s network connections and telecommunications links from its systems to MAIL MASTER’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.

12. Charges and Payment

12.1 Subject to the remainder of this clause 12, the Subscription Fees payable shall be calculated on the basis of the plan type (“Plan Fees”) and any additional storage ordered (“Data Fees”).

12.2 With the exception of the Trial Period, Subscription Fees are payable annually or monthly in advance. Customer may choose to pay annually or monthly at time of subscription. Invoicing arrangements for the annual and monthly payment options are as follows:

12.2.1 Annual Payment: MAIL MASTER shall invoice Customer for the Initial Subscription Period within seven (7) days of the Subscription Date.

12.2.2 Monthly Payment: MAIL MASTER shall invoice Customer for one (1) month plus the period between the Registration Date and the Subscription Date within seven (7) days of the Subscription Date. Subsequent monthly invoices will be sent on the first working day of every month.

12.3 All Subscription Fees shall be paid within twenty-eight (28) days of date of invoice, without set-off in respect of any of MAIL MASTER’s liability.

12.4 If payment cannot be made within the period set out at clause 12.2, MAIL MASTER may at its option either suspend the Services until payment is received, plus any interest charged by MAIL MASTER, or terminate the Services without further notice to Customer.

12.5 Plan Fees for the Initial Subscription Period and subsequent Renewal Periods shall be fixed for the duration of the term. MAIL MASTER shall inform Customer, in writing, of any proposed change to Plan Fees no less than one (1) calendar month prior to the next Renewal Date. If Customer requires additional data storage capacity during a Subscription Period, (depending on whether customer pays annually or monthly), additional Data Fees will be applied as follows:

12.5.1 Annual Payment: MAIL MASTER shall invoice Customer the additional Data Fees for the period from the date the extra storage capacity is added to the next renewal Date within seven (7) days of the additional storage being added. Subscription Fees for Renewal shall include both Plan and Data Fees.

12.5.2 Monthly Payment: MAIL MASTER shall add the additional Data Fees for the period from the date the extra storage capacity is added to the next scheduled invoice.

12.6 If Customer objects to a proposed change of Subscription Fees, Customer has the right to terminate the Agreement by notice to MAIL MASTER at info@mailxmaster.com such termination to take effect on the date of the proposed change or ten (10) Business Days following the date the notice of termination is sent, whichever is the later.

12.7 If Customer fails to pay any sum due and payable under the Agreement by the due date, statutory interest from time to time shall accrue on the unpaid amount from the due date to the date of actual payment (after as well as before judgment).

13. Proprietary Rights

Customer acknowledges and agrees that MAIL MASTER and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

14. Confidentiality

14.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the Agreement. A Party’s Confidential Information shall not be deemed to include information that:

14.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;

14.1.2 was in the other Party’s lawful possession before the disclosure;

14.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

14.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence; or

14.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

14.2 Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

14.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

14.4 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

14.5 Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitutes MAIL MASTER’s Confidential Information.

14.6 MAIL MASTER acknowledges that the Customer Data is Customer’s Confidential Information.

14.7 This clause 14. shall survive termination of the Agreement, however arising.

14.8 Neither Party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

15. Indemnity

15.1 Except in relation to any amounts due pursuant to clause 16.3, Customer shall defend, indemnify and hold MAIL MASTER, its officers, directors and employees harmless against allegations, claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer’s or any Authorised User’s use of the Services and/or Documentation, including Intellectual Property Rights claims.

15.2 Customer shall defend, indemnify and hold MAIL MASTER, its officers, directors and employees harmless against allegations, claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim or allegation that MAIL MASTER’s use of the Customer Data infringes any Intellectual Property Right.

15.3 MAIL MASTER shall defend Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the date of the Agreement, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:

15.3.1 MAIL MASTER is given prompt notice of any such claim;

15.3.2 Customer provides reasonable co-operation to MAIL MASTER in the defence and settlement of such claim, at MAIL MASTER’s expense; and

15.3.3 MAIL MASTER is given sole authority to defend or settle the claim.

15.4 In the defence or settlement of any claim, MAIL MASTER may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two (2) Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.

15.5 In no event shall MAIL MASTER, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on:

15.5.1 a modification of the Services or Documentation by anyone other than MAIL MASTER; or

15.5.2 Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by MAIL MASTER; or

15.5.3 Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from MAIL MASTER or any appropriate authority.

15.6 The foregoing and clause 17.4.3 state Customer’s sole and exclusive rights and remedies, and MAIL MASTER’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

16. Disclaimers

16.1 Customer acknowledges that the Services are not endorsed by any professional or regulatory bodies, nor are they designed to fulfil criteria required by any professional or regulatory bodies. Customer is responsible for ensuring it meets any requirements of any professional or regulatory body which it may be subject to.

16.2 MAIL MASTER does not warrant that the website and any Software used to provide the Services to Customer will be compatible with Customer’s computer and Customer is responsible for making all arrangements necessary for it to have access to the Services.

16.3 MAIL MASTER does not warrant that the Services will be available continuously and accordingly Customer’s access to the Services may from time to time be interrupted or contain errors.

16.4 Customer assumes sole responsibility for results obtained from its use of the Services by it and any Authorised User, and for conclusions drawn from such use.

16.5 Customer is responsible for all loss or damage caused by a Virus, distributed denial-of-service attack, or other technologically harmful material that may infect its computer equipment, computer programs, data or other proprietary material due to its use, or the use of any Authorised User, of the Services and/or the Software.

16.6 Any warranties given by MAIL MASTER shall be subject to Customer using the Services and/or Software in compliance with this Agreement, and MAIL MASTER shall not be liable under this Agreement for, or required to remedy, any problem arising from any defect or error wholly caused by third party software used in connection with the Services and/or Software.

17. Limitation of Liability

17.1 This clause 17 sets out MAIL MASTER’s entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer:

17.1.1 arising under or in connection with the Agreement;

17.1.2 in respect of any use made by Customer of the Services and Documentation or any part of them; and

17.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

17.2 Except as expressly and specifically provided in the Agreement:

17.2.1 Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. MAIL MASTER shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to MAIL MASTER by Customer in connection with the Services, or any actions taken by MAIL MASTER at Customer’s direction;

17.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and

17.2.3 the Services and the Documentation are provided to Customer on an “as is” basis.

17.3 Nothing in the Agreement excludes MAIL MASTER’s liability:

17.3.1 for death or personal injury caused by its negligence; or

17.3.2 for fraud or fraudulent misrepresentation.

17.4 Subject to clause 17.2 and clause 17.3:

17.4.1 MAIL MASTER shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement;

17.4.2 to the extent any breach of this Agreement is caused by a Third Party Service, MAIL MASTER’s liability to Customer shall be limited to a proportion of such amount as MAIL MASTER actually recovers from the provider of such Third Party Service, where the proportion reflects Customer as a percentage of the total number of MAIL MASTER customers impacted by the Third Party Service; and

17.4.3 MAIL MASTER’s total aggregate liability in contract (including in respect of the indemnity at clause 15.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to fifteen thousand pounds sterling (£15,000).

18. Term and Termination

18.1 The Agreement shall, unless otherwise terminated as provided in this clause 18, commence on the Registration Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods of one (1) calendar year (each a “Renewal Period”), unless:

18.1.1 either Party notifies the other party of termination, in writing, at least one (1) calendar month before the end of any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Renewal Period; or

18.1.2 otherwise terminated in accordance with the provisions of the Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

18.2 MAIL MASTER may terminate the Agreement where Customer fails to pay the Subscription Fees in accordance with clause 12.2.

18.3 Either Party may at any time, by notice to the other, terminate the Agreement as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.

18.4 If Customer would like to terminate the Agreement, Customer is required to:

18.4.1 e-mail MAIL MASTER at info@mailxmaster.com stating that Customer wishes to terminate the Agreement; and

18.4.2 cancel any future payments of Subscription Fees made under the Agreement. MAIL MASTER will cancel Customer’s registration with effect from the end of the Initial Subscription Term or next Renewal Period as relevant.

18.5 On termination of the Agreement for any reason:

18.5.1 all licences granted under the Agreement shall immediately terminate;

18.5.2 each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;

18.5.3 MAIL MASTER may destroy or otherwise dispose of any of the Customer Data in its possession unless MAIL MASTER receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data. MAIL MASTER shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by MAIL MASTER in returning or disposing of Customer Data; and

18.5.4 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

19. Force Majeure

MAIL MASTER shall not be liable to Customer for any delay or non-performance of MAIL MASTER’s obligations under the Agreement arising from any cause or causes beyond MAIL MASTER’s reasonable control.

20. Variation

No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

21. Waiver

No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

22. Rights and Remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

23. Severance

23.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

24. Entire Agreement

24.1 The Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

24.2 Each of the Parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

25. Assignment

25.1 Customer shall not, without MAIL MASTER’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

25.2 MAIL MASTER may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

26. No Partnership or Agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

27. Third Party Rights

The Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

28. Notices

28.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in the Agreement, or such other address as may have been notified by that Party for such purposes, or sent by fax to the other Party’s fax number as set out in the Agreement.

28.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

29. Governing Law

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

30. Jurisdiction

Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

APPENDIX

SERVICE LEVELS

1. Support Service Levels

MAIL MASTER shall use reasonable endeavours to provide the Support Services to the Customer in accordance with section 1 of the Appendix.

1.1 In consideration for the payment by the Customer of the Fees as set out in the Agreement, MAIL MASTER shall provide Support Services in respect of the Software only, including any maintenance releases and new versions of the Software.

1.2 The Customer shall pay all costs (at MAIL MASTER’s then prevailing rates) and reasonable expenses incurred by the Customer for work carried out by MAIL MASTER in connection with any fault which is not covered by the Terms.

1.3 The Support Services shall comprise of a web-based support portal to register support tickets or a telephone help desk to provide first-line technical support to users of the Software. The web-based support portal is available 24 hours and the telephone help desk is available 9:00am to 5:00pm Monday to Friday excluding public holidays or company closures as communicated to the Customer in advance.

1.4 It is not anticipated that any on-site support will be provided to the Customer. If on-site support is requested by the Customer in any month, MAIL MASTER may provide this at its option at the then applicable charging rates of MAIL MASTER. The Customer shall reimburse any travel or subsistence expenses incurred by MAIL MASTER where such expenses are incurred wholly and exclusively for the purpose of providing on-site support, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.

1.5 MAIL MASTER shall only provide Support Services for the most current release of the Software and any updates to that release.

1.6 The Support Services must be reported by the Customer to MAIL MASTER using the following procedure:

1.6.1 Issues are reported via our web-based ticketing system.

1.6.2 Tickets reported with priority 1 or 2 will trigger actions from the date and time of register within the normal business hours as outlined in Appendix 1.3, or from 9am the following normal business day. The Customer must supply all relevant information to MAIL MASTER to enable it to provide the support for the problem being reported.

1.7 MAIL MASTER will use its reasonable endeavours, in coordination with the Customer, to assign the correct priority rating to any problem reported to MAIL MASTER by the Customer. MAIL MASTER will then use its reasonable endeavours to perform the activities detailed below;

Priority

Situation

Action

Timeframe

1. The Software cannot be used. Critical impact on Customer’s production environment. Situation requires immediate resolution.

MAIL MASTER shall immediately undertake all activities necessary to arrive at a solution and will continue doing this, until an acceptable solution or workaround is available, or until it is clear that further investigation possibly including third parties, is required.

First response to report within two hours. Effort to provide workaround within one day. Commercially reasonable efforts to provide solution within three business days.

2. The Software is working, but under severe restrictions; a workaround is available, but situation requires short term solution.

The Company shall immediately undertake all required actions to analyse the problem and to provide a solution (or recommend one, if the restricted operation is due to factors outside of the Company’s control).

First response within one business day. Commercially reasonable efforts to provide solution within five business days.

3. The Software is operational under moderate restrictions.

The Company undertakes actions towards resolution as soon as practical.

Response, suggested course of resolution and expected time to completion of the solution will be communicated within 5 business days.

 

2. Hosting Services

The Software is hosted on a Amazon Web Services (AWS) platform that offers 99.9% uptime and whilst MAIL MASTER intends that the Software should be available 24 hours a day, seven days a week, it is possible that on occasions the Software may be unavailable to permit maintenance or other development activity to take place.

If for any reason MAIL MASTER has to interrupt the Software for longer periods than MAIL MASTER would normally expect, MAIL MASTER will use reasonable endeavours to publish in advance details of such activity via Email.

The AWS database(s), hosting and data processing services are located in the eu-west-2 region (London) across 3 Availability Zones (data centres). Each Availability Zone runs on its own physically distinct, independent infrastructure, and common points of failures are not shared across Availability Zones. Additionally, they are physically separate, such that even extremely uncommon disasters such as fires, tornados or flooding would only affect a single Availability Zone.

3. Backups

As part of the Backup & Recovery strategy the Mail Master client database is backed up on a rolling 7-day cycle, plus an additional hourly based cycle, with point-in-time retrieval. The Mail Master system files, documents and client related data uploaded within Mail Master are available across multiple servers/zones as required for the services Disaster Recovery process.

4. Software and Services

Services: As described in the Proposal

5. Data Processing and Security

a) In addition to the information provided elsewhere in the Agreement, the Parties wish to document the following information in relation to the data processing activities:

The data processing performed by the Data Processor on behalf of the Data Controller relates to the provision of cloud hosted software products, as described in the Proposal, which may also include locally installed software components and mobile applications.

The data processing activity consists of providing facilities to enter, store (on third party infrastructure) and extract data which may include personal data.

The categories of personal data potentially involved are:

User account data / full names / profiles

Email / email history / archive

Phone numbers

Leave and absence data (potentially sensitive / 'special categories' of personal data)

Expense sheets

Timesheets and other pay related data

Recruitment data (CV's, interviews, offers) (potentially sensitive / 'special categories' of personal data)

Human resources data (remuneration, benefits, project rates, proof of eligibility, highly sensitive / 'special categories' of personal data such as ethnic origin, religious beliefs and trade union membership; performance reviews) (potentially sensitive / 'special categories' of personal data), photos of staff

Contact information / customer relationship management (CRM) data (including sole traders)

Personal data added via free-form text boxes (potentially sensitive / 'special categories' of personal data)

The data subjects are:

clients and prospective clients (service recipients)

any other individuals that the clients enter into the software in the course of their business

The duration of the data processing activities is in accordance with the Renewal Period (see clause 15.1).

b) Description of security measures

The Data Processor has implemented the following security measures:

Encryption of data in transit

Encryption of data at rest

Network, VM and Service Firewalls

Role-based security

Virtual Private Cloud

Private Subnets

Security Enhanced Operating System

Highly Secure Database

Privacy by design software architecture

‘Need to know’ security protocols

c) Appointed sub-processors

The Data Processor has appointed the following sub-processors:

There are currently no appointed sub-processors.

v1.0 - May 2020

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Mail Master Ltd

4 Nelson Crescent

Ramsgate

CT11 9JF

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