Terms & Conditions
Terms & Conditions
--------------------------
End User Licence Agreement
--------------------------
This is a legal agreement between you ('the Licensee') and Commercexchange Ltd. for the grant by Commercexchange Ltd. to you of a licence of the the software software upon the terms and conditions of this Agreement
By being issued with a login and password or by accessing the software via a login and password you are agreeing to be bound by the terms of this agreement and limited warranty. If you do not agree to the terms of this agreement, promptly notify Commercexchange Ltd., in which case access will be withdrawn.
Grant of Licence
----------------
In consideration of the full payment by the Licensee to Commercexchange Ltd. of the licence fee including transmission fee, in accordance with Commercexchange Ltd. standard terms of trading and the Licensee hereby agreeing to comply with the terms and conditions of this Licence and the limited warranty specified in the Limited Warranty clause, Commercexchange Ltd. hereby grants to the Licensee a non-exclusive and non-transferable licence ('Licence') to use the the software computer software program ('the Software') and where appropriate the instruction manuals, user guides and other information to be made available by Commercexchange Ltd. at its discretion, in either printed or machine-readable form to the Licensee ('Documentation') and to possess and refer to the Documentation upon the terms and conditions of this Agreement.
Licence Terms
-------------
Commercexchange Ltd. grants to you a non-exclusive licence to use the software subject to the following terms:
1. You agree to pay the transmission charges, published from time to time.
2. You may not modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the software.
3. You may not rent, lease, grant a security interest in, or otherwise transfer rights to the software, nor remove any proprietary notices or labels on the software.
4. You may not permit other individuals to use the software, except under the terms of this agreement.
5. You may use the software to transmit HTML emails not exceeding 200kb in size to email addresses.
6. You agree to accept responsibility for and indemnify Commercexchange Ltd. against any spam complaints and/or blacklistings resulting from your use of the software.
7. You agree to opt in to receive mailings from Commercexchange Ltd. and its partners from time to time.
8. You agree to abide by the data hygiene rules as specified by DMA (Direct Marketing Association) Best Practice, in relation to house files and rented lists uploaded to the software.
9. You agree that you are fully responsible for any uploaded HTML files and related images and the testing thereof prior to transmission, as well as any complaints which arise due to these files.
10. You agree that under EC law every email delivered must contain an option to unsubscribe, and that this will be automatically appended and processed by the Software.
11. Commercexchange Ltd. cannot be held responsible for any faults that arise with the transmission and/or functionality of the mail due to errors with the uploaded HTML code, unless that code has been created and supplied by Commercexchange Ltd.. It is the Licensee?s responsibility to ensure that all testing is completed to a satisfactory level prior to transmission.
Acceptable Use
--------------
1. You must not use the software to transmit material that is unlawful, dishonest, pornographic or otherwise offensive.
2. You must not use the software to send unsolicited mail, i.e. you must not transmit email to any recipient that has not explicitly agreed to receive mail from you (opted in).
3. You must not use the software to store email addresses of persons or organisations that have not explicitly agreed to receive mail from you.
4. You must immediately remove from the software, the email addresses of any persons or organisations that have withdrawn consent to receive mail from you.
5. You must not use the software for the purposes of mail bombing, service denial attacks or any other form of nuisance or menace.
6. You must not request removal, attempt to remove or advise resolvability of the automatically appended EC Directive required unsubscribe option.
7. You must adhere to the DMA (Direct Marketing Association) Best Practice guidelines, in relation to house files and rented lists:
House Files ?
? Customers and prospects that have provided positive consent to the receipt of email marketing by you.
? Existing customers from whom you have obtained the email address for, in the course of the sales of a product or service and notified the individual at the point of data capture that you would like to send the individual direct marketing emails marketing your own ?similar products or services?. The individual must have been given the opportunity of opting out of this and declined to do so.
Rented Lists ?
? The data supplier must have obtained positive consent of individuals to send direct marketing emails for the types of product and service you wish to promote.
? It is your responsibility to be satisfied as to the circumstances in which the email addresses came into the possession of the data supplier.
? The data suppliers name should appear in the ?From? box of the email as the sender of the mail or if that is not appropriate, include the information somewhere with the body of the mail.
Pricing and pricing policy
--------------------------
1. Once booked, transmissions are not refundable, but may be rescheduled for up to six months beyond the initially agreed transmission date.
2. Customers in the UK pay the Sterling price to which VAT is added at the rate prevailing at the date of invoice calculation.
3. Overseas customers will be billed the price shown in Sterling.
4. Bulletins larger than 100kb will be charged at a higher rate.
5. Where use of the system results in spam complaints and/or blacklistings, Commercexchange Ltd. retains the option to charge the Licensee for the costs of resolving such complaints and removing such blacklistings.
----------------------------------------------------
Commercexchange Ltd. Warranty and Liability
----------------------------------------------------
Limited Warranty
----------------
Commercexchange Ltd. warrants that the Software will perform substantially in accordance with the accompanying product descriptions in the Documentation, provided that the Software is properly used on a computer and with an operating system for which it was designed.
Customer Remedies
-----------------
Commercexchange Ltd. entire liability and the Licensee's exclusive remedy shall be as a correction or replacement of the Software that does not meet the Commercexchange Ltd. Warranty. The Limited Warranty is void if failure of the Software has resulted from accident, abuse or misapplication.
No Other Warranties
-------------------
To the maximum extent permitted by applicable law, Commercexchange Ltd. disclaims all other warranties, either express or implied (whether by statute, common law, trade usage, course of dealing or otherwise) including but not limited to implied warranties of merchantability and fitness for any particular purpose with respect to the Software and Documentation.
Commercexchange Ltd. does not warrant any source or object codes contained in the Software. Commercexchange Ltd. does not warrant that the Software is error free, virus free, will operate without interruption, will be compatible with particular equipment and/or software configurations, or will meet your requirements or expectations. You are granted no remedies against Commercexchange Ltd. in connection with your use of the Software. You agree to indemnify and hold Commercexchange Ltd. and its affiliates, directors, officers, agents, and employees harmless against any and all liability, costs, damages, and actions arising in connection with your use of the Software.
No Liabilities for Consequential Damages
----------------------------------------
To the maximum extent permitted by applicable law, Commercexchange Ltd. and its suppliers shall not be liable for any other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information or other financial or consequential loss, except personal injury or death resulting from Commercexchange Ltd. negligence) arising out of the use of or inability to use the Software or Documentation, even if Commercexchange Ltd. has been advised of the possibility of such damages.
Source Code
-----------
Unless authorised in writing by Commercexchange Ltd., nothing contained herein shall entitle the Licensee to access any source code. The Licensee shall indemnify Commercexchange Ltd. in full against any breach of this clause.
Property in the Software and Documentation
------------------------------------------
The Software and the Documentation contain proprietary information of Commercexchange Ltd. and all copyright, trademarks and other intellectual property rights in the Software and the Documentation are the exclusive property of Commercexchange Ltd..
The Licensee shall take all such steps as shall be necessary or appropriate to protect Commercexchange Ltd. copyright and proprietary information in the Software and the Documentation and without prejudice to the generality of the foregoing shall not rent, lease, sub-licence, loan, copy (except as expressly provided in this Agreement), modify, adapt, merge, translate, reverse engineer, decompile, disassemble or create derivative works based on the whole or any part of the Software or the Documentation.
If the Licensee sells, disposes of, or otherwise loses control of the processor on which the Software is running then the Licensee shall ensure that the Software is removed or deleted before the sale or disposition.
Title and Copyright
-------------------
It is an express condition of this Licence that Commercexchange Ltd. retains title and ownership of the Software and any new version or new releases provided under any warranty or otherwise and all subsequent copies from the Software and the Documentation regardless of the form or media. No title or rights of ownership, copyright or other intellectual property in the Software and the Documentation have been or are hereby, or will be transferred to the Licensee.
The Licensee shall not delete, remove or alter any proprietary marks on the Software and the Documentation.
Transfer Restrictions
---------------------
The Licensee shall not assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Software and the Documentation, nor use on behalf of or make available the same to any third party but the Licensee may transfer the Software and the Documentation and this licence on a permanent basis to another person provided such transferee has agreed to be bound by the terms and conditions of this Licence and Limited Warranty and the Licensee contemporaneously transfers all copies of the Software Materials to that transferee or will destroy all copies of the Software and the Documentation and provided that the transferor notifies Commercexchange Ltd. of the name and address of the transferee within 7 days of the transfer.
-----------
Termination
-----------
By the Licensee
---------------
The Licence is effective until terminated by the Licensee, unless agreed otherwise by separate contract, by notification in writing to Commercexchange Ltd. and by ceasing to access or use the Software and destroying the Documentation together with all copies.
You may terminate this Software Product Licence at any time unless agreed otherwise by separate contract. In addition, without prejudice to any other rights, this Agreement and the licence granted hereunder will terminate automatically if you fail to comply with the terms and conditions described herein. Upon termination, you must destroy all copies of the Software and Documentation. Your obligations to pay accrued charges and fees shall survive any termination of this Agreement.
By Commercexchange Ltd.
--------------------------------
The Licence will terminate if:
1. If payments by the Licensee are not received when due to Commercexchange Ltd..
2. There is any failure by the Licensee to comply with the Acceptable Use Policy defined herein.
3. There is any failure by the Licensee to comply with all other terms of this Agreement.
4. If Commercexchange Ltd. can demonstrate that its commercial interests may be harmed by the Licensee's continued use of the software.
Upon termination, the Licensee agrees to destroy all Software and Documentation, including any Software on the hard disk of any computer under its control.
Termination shall be without prejudice to any accrued rights and outstanding obligations of the parties to each other. The obligations under Title and Copyright and Transfer Restrictions clauses shall survive the termination of this Agreement.
--------
Security
--------
You are responsible for all use of your accounts and the confidentiality of your passwords. Should you feel that your password has become compromised you should contact us immediately. Commercexchange Ltd. will suspend the account or change access permission upon notification that your password has been stolen, lost, or otherwise compromised.
You are solely responsible for the maintenance, integrity and security of the data you store on the the software system.
Commercexchange Ltd. does not undertake to provide you with any special Internet security other than the password protection of FTP or Telnet access to your files. In agreeing to these terms and conditions you accept that this level of security may well not be appropriate for confidential and private information. In the case of such information you are solely responsible for ensuring that the data is suitably protected, for example by encryption, digital signatures and so on.
----------
Amendments
----------
No amendment to this Agreement is valid unless signed by an authorised signatory of Commercexchange Ltd. and the Licensee.
BY USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT'S TERMS AND CONDITIONS. YOU ALSO AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN AND ANY OTHER COMMUNICATION BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
If you do not agree with the terms and conditions of this AGREEMENT or do not understand any of them you should notify Commercexchange Ltd. immediately.
--------------------
Law and Jurisdiction
--------------------
This Agreement shall be governed and construed in accordance with English Law and the parties shall submit to the non-exclusive jurisdiction of the English Courts.
Any rights not expressly granted herein are reserved.
All Trademarks acknowledged.
-------------
Force Majeure
-------------
Commercexchange Ltd.'s performance under this agreement is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour disputes, inability to obtain necessary supplies and the like.