Last updated Monday 26 September 2016
Company name: Customer Thermometer LLP
Company registration number: OC357389
Place of registration: UK
Contact email address: email@example.com
1.1 In these Terms
“Additional Items” means any additional goods (including but not limited to software) and / or services that are provided by us in addition to the Service;
“Content” is defined in clause 4.9.2;
“Contract” means the order placed by you with us on these Terms and any other document agreed by us to be incorporated in a contract between us both;
“Customer Thermometer account” means your account of our Customer Thermometer service;
“the due date” means the repeat billing date;
“Email” means any electronic mail sent using our software, servers and/or system, from time to time, by us on your behalf under the Service, the Content of which is to be provided by you to us;
“List” is defined in clause 4.9.1;
“Recipient” means any person who you intend receive an Email to be sent under the Service;
“the Service” means our email customer feedback service, using our software and reporting systems through Customer Thermometer and any Additional Items that you have ordered from us, and we have agreed in writing to supply;
“the service fees” means the fees agreed between us both for the provision of the Service by us under the Contract;
“Transgression” shall mean any breach of contract, tort or other act of default, omission or statement by us in respect of which we are liable to you;
“Unlawful” is defined in clause 4.1.
“We” means Customer Thermometer LLP and reference to our consent authority or agreement means consent authority or agreement in writing signed by one of our Directors;
“You” means the person firm or company who uses the Service and includes, for the avoidance of doubt, any resellers of the Service;
1.2 Terms defined in our order form (or previously agreed in other applicable documents, which form part of the Contract) have the same meanings in these Terms.
- OUR SERVICE
2.1 We shall provide the Service (being Customer Thermometer), to you under to these Terms and the Service shall continue to be supplied, unless the Contract is terminated. No additions or modifications to these Terms shall be binding unless agreed in writing by us. In the event of any inconsistency between these Terms and any other document forming part of the Contract, these Terms shall prevail unless expressly referred to and varied with our written consent. The Contract is not intended to create a partnership or agency relationship between us both.
2.3 The delivery or receipt of Emails to any Recipient cannot be guaranteed and is dependent upon complete, full and accurate Lists from you (including but not limited to, up to date email addresses, upon suitable internet availability or connectivity by the Recipient and on various anti spam and junk mail policies adopted by the Recipient). Whilst we will provide the Service in accordance with the terms of the Contract, we make no representations or warranties whatsoever about the speed or proportion of Emails sent that will be delivered.
2.4 We may, at our sole discretion and upon notifying you in writing, assign, transfer, sub-contract or deal in any other manner with all or any of our rights under the Contract (or any part) to a third party.
2.5 We may, from time to time and without notice, change the Service in order to comply with any applicable statutory requirements and/or industry standard procedures, provided that such changes do not materially affect the nature, or scope of the Service or the service fees.
- OUR RIGHTS AND OBLIGATIONS
3.1 We shall provide the Service to you with reasonable skill and care and in a professional manner. All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law from the Contract and these Terms.
3.2 We shall provide you with a 24-hour contact service in order that you may notify us of any interruptions or any other problems with the Service. We shall use reasonable endeavors to respond to your notification of interruptions or other problems with the Service and to rectify any problems with reasonable diligence and within a reasonable timescale.
3.3 We shall use all reasonable endeavors to ensure that access to the Service will be available at an uptime level of 95%. For the avoidance of doubt the uptime availability level does not include downtime attributable to:
3.3.1 hardware or telecommunications failures;
3.3.2 interruptions to the flow of data to or from the internet;
3.3.3 changes, updates or repairs to the network or software which we use as a platform to provide the Service;
3.3.4 the effects of the failure or interruption of the Service by third parties;
3.3.5 factors outside our reasonable control;
3.3.6 your actions or omissions (including without limitation, breach of your obligations set out in the Contract) or those of any third parties (including but not limited to breaks in the continuity of the electricity supply or of the telecommunications linked to our server); and
3.3.7 interruptions to the Service resulting from any request by you.
3.4 If the Service is suspended or interrupted we shall use reasonable endeavors to restore the Service within a reasonable time period.
3.5 You shall not use the Service for the purposes of spam, junk mail, unsolicited or unauthorized advertising.
3.6 If we, in our sole discretion, believe that:
3.6.1 the Service is being used for spam, junk mail, unsolicited or unauthorized advertising, or
3.6.2 you are breaching these terms in any other way,
then we may decide (in our sole discretion) to suspend or terminate the Service and no refund to you of any service fee or other payments will be made.
3.7 You agree to comply with our Anti-Spam policy, as published on our website from time to time.
3.8 We have the right, at our sole discretion, to remove the details of any Recipient from the List supplied by you (under clause 4.9.1 below), for whatever reason (including but not limited to, if we should receive any complaint from a Recipient in respect of any Email received by them).
3.9 We will make reasonable efforts to protect and backup data for you at least once every 24 hours.
3.10 We will not be liable for any lost, corrupted or destroyed data as a result of any suspension or interruption to the Service caused by our providing such a backup service or caused by the failure for whatever reason of any such backup service.
3.11 We do not guarantee the accuracy or regularity of the backup service. You are also responsible for taking your own backups (via CSV download) in connection with your use of the Service and you are solely responsible for an independent backup of data stored on your or any third party providers’ server and network. The retrieving of back up files by us may be charged as an Additional Item.
- YOUR OBLIGATIONS
4.1 You undertake that the Service shall not be used directly or indirectly for any Unlawful purpose and that the Content shall not be Unlawful. For the purpose of this Contract the term “Unlawful” means in breach of any law, or regulations in force, from time to time, in any jurisdiction and shall include but is not limited to: –
4.1.1 civil and criminal offences of copyright and trademark infringement;
4.1.2 transmission or display or posting of abusive, indecent, obscene or pornographic material;
4.1.3 commission of any criminal offence (including deliberate transmission of computer viruses) including, but not limited to, under the Computer Misuse Act 1990 or similar legislation in any country;
4.1.4 any transmission or display or posting of any material which is defamatory, libelous, offensive, abusive, or menacing character or which causes annoyance, inconvenience or needless anxiety to any other person;
4.1.5 transmission or display or posting of any material in breach of the Data Protection Act 1998 (or any replacement statute) dealing with data protection or similar legislation in any other country or of any material which is confidential or is a trade secret;
4.1.6 use of the service in any manner which is a violation or infringement of the rights of any one within the United Kingdom and elsewhere;
4.1.7 the use of the Service for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing “links” or “how to” information to such material; and
4.1.8 misleading information or a misrepresentation.
4.2 You accept that you are the data controller for the purposes of the Data Protection Act 1998 (or any replacement statute) in respect of any personal data about a Recipient that we process in the course of providing the Service. It is your obligation to ensure that consent by the Recipient has been provided to the use of their personal data and we are not liable or responsible for the accuracy or use of such personal data
4.3 You warrant that our processing of any of your personal data in accordance with this Agreement and your instructions under it will not infringe or breach any rights of any data subject or be other than in accordance with the Data Protection Act 1998 (or any replacement statute).
4.4 We do not accept and shall have no responsibility, or liability, for the Recipient’s personal data or the Content of the Emails sent using the Service or for sending them to Recipients in accordance with the terms of the Contract and you will indemnify us against all and any damages, claims, expenses, losses and costs that we may incur as a result of any breach of clause 4.1 to 4.3 above.
4.5 You will ensure that that the Content supplied to us complies with all laws, regulations and requirements, in place from time to time, of any country from which it can be accessed and you will indemnify us against all and any damages, claims, expenses, losses and costs that we may incur as a result of any breach of this clause by you.
4.6 We reserve the right to monitor any and all communications passing through the Server in connection with the Service, at all times.
4.7 If the Service is used for any Unlawful use we may suspend or terminate the Service immediately and at the same time as suspension or termination occurs we shall, if it is lawful to do so, notify you.
4.8 You shall comply with our policies which are in place from time to time in respect of the Service. You further agree to keep your password and other access details for use with the Service confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information. You are solely responsible for all activities that occur under your password or Customer Thermometer account. You shall notify us without undue delay if you believe that your password and other access details for use with the Service are no longer secret.
4.9 You agree to undertake the following, from time to time, in relation to the Service:
4.9.1 the supply, in a timely manner, to us with full and accurate details (including but not limited to, names and email addresses) of all Recipients of the Emails (the “List”);
4.9.2 to supply, in a timely manner, the content, images, designs and any other information you reasonably require to be sent by us in the Emails (the “Content”); and
4.9.3 to instruct us as to when the Emails are to be sent to the Recipients.
4.10 Any date given by us to you about the Service and in particular the sending of Emails to Recipients shall be conditional upon our receiving from you the List, Content and any other information for any Emails in a final form from you, within any timescales specified by us (from time to time). Any delay in your providing such List, Content and any other information will result in our receiving an equivalent extension of time to estimated dates given for sending such Emails.
4.11 Where you submit the Content to us under clause 4.9.2, you:
4.11.1 warrant that such Content is your own original work and that you have the right to make it available to us for the purpose of the Service and that the Content is and will continue to remain accurate, comprehensive and up-to-date and is not Unlawful;
4.11.2 indemnify us against all legal fees, damages, claims and other expenses that may be incurred by us as a result of your breaching clause 4.11.1;
4.11.3 agree to waive any moral rights in the Content for the purposes of its submission to Recipients as an Email; and
4.11.4 acknowledge and agree that such Content may be copied or downloaded by any Recipients.
4.12 Where you submit Content to us (including without limitation any text or graphics) you are required by such submission to grant to us a perpetual, royalty-free, non-exclusive, sub-licensable right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and exercise all copyright and publicity rights with respect to any such work worldwide.
4.13 You accept that you are responsible for dealing with and responding appropriately to any complaints of whatever nature made by any Recipient to us and we do not accept and shall have no responsibility, or liability, for any such complaints made.
- TERM AND PRICE
5.1 This Contract will continue for an initial term of 1 month
(the “Term”) (or as otherwise previously specified in our order form or any other applicable documents which forms part of the Contract) and, subject to clause 6.1, the Contract will then continue until and unless either party terminates the Contract by serving one month’s written notice on the other party.
5.2 The service fee for the Service shall remain in force for the duration of the Term. After that time we reserve the right at our sole discretion to increase the service fee after providing you with one month’s written notice of the fee’s increase, from time to time.
5.3 You shall pay the service fee by recurring credit or debit card payment on the due date as set out in writing by us from time to time. If your subscription fails for any reason, then we reserve the right to charge an administration fee.
5.4 Time for payment shall be of the essence for the Contract. We reserve the right to suspend the Service or terminate the Contract and Service immediately if the service fee is not received within 7 days of the due date. Any amounts due up to the point of suspension or termination will remain due and payable as if no suspension or termination had occurred.
5.5 If all or part of the price or service fee for the Contract or any Additional Items remain unpaid after the due date we shall be entitled to charge interest on any unpaid balance at 4% above Barclays Bank plc lending base rate for the time being, such interest being paid in full together with the unpaid balance.
5.6 Unless otherwise expressly stated by us, all prices or service fee given by us to you under the Contract shall be exclusive of VAT.
6.1 We shall be entitled to terminate the Contract forthwith and recover all losses or damage resulting to us (including but without limitation to loss of profit or other consequential loss) if:
6.1.1 You have a bankruptcy petition presented against you, or a bankruptcy order is made, if you make or seek to make any composition or arrangement with your creditors, if you make a proposal to your creditors for a voluntary arrangement or apply for an interim order, if an encumbrancer takes possession of any of your assets, or any of your assets are taken in execution or process of law, if a petition is presented or an order is made or a resolution is passed for your winding up, if a petition is presented or an order is made for an administration order to be made in relation to you, or if a receiver or administrative receiver is appointed over any of your assets (or any analogous event occurs to you in any jurisdiction); or
6.1.2 you fail to make any payment owed to us on the due date as specified in Clause 5;
6.1.3 you are in breach of any contract with us (including this Contract) and fail to remedy it within seven working days of written notice requiring it or immediately if the breach shall be not be capable of remedy.
6.2 Termination shall be without prejudice to the rights of either party accrued at the date of such termination.
6.3 Upon termination:
6.3.1 the account may be deleted from our server, unless agreed otherwise by the parties;
6.3.2 all service fees shall immediately become due and payable to us; and
6.3.3 we shall be under no obligation to retain any data (including the Lists) and, provided always that we comply with the requirements of the Data Protection Act 1998 (or any replacement statute), may delete such data as we deem appropriate.
- INTELLECTUAL PROPERTY
7.1 Copyright in all software that is supplied or used by us remains either our property or that of our licensor.
7.2 You shall indemnify and keep us indemnified from and against the consequences of our suffering any claims of infringements of copyrights, patents, trademarks, industrial designs, database rights or other property rights arising from the provision of the Service.
7.3 In the event that any such infringement occurs or may occur, you may request us to modify and / or amend the account content or infringing part so that it becomes non-infringing and if we agree to modify and / or amend the account content we shall be entitled to charge for the additional cost for making the modifications and /or amendments which shall be chargeable at our then current hourly rate.
7.4 You warrant that you have obtained (and for future use, will obtain) all necessary consents, approvals and licences from any third party who has intellectual property rights incorporated as part of the Email, whether now or in the future.
- PERFORMANCE AND FORCE MAJEURE
8.1 We shall take all reasonable steps to perform our obligations under the Contract. We shall not be liable for suspension or interruptions to the Service which shall not entitle you to rescind the Contract, subject to clause 3.4.
8.2 Without prejudice to the generality of Clause 8.1, we shall have no liability for any delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of computer hardware, software, viruses, hackers, errors, interruptions, bugs, telecoms connections or power supply or any other cause or causes beyond our control.
- EXEMPTIONS AND EXCLUSIONS
9.1 We shall not be liable to you for any loss, injury or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Contract, or the Service (including, without limitation, arising out of or in connection with any misuse of data by an unauthorized third party) except as specified in Clause 9.3 or to the extent to which it is otherwise unlawful to exclude such liability.
9.2 Notwithstanding the generality of 9.1 above, we expressly exclude liability for consequential loss, indirect damages, or corruption to other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.
9.3 We accept liability for death or personal injury to the extent that it results from our negligence.
9.4 To the extent that we are held legally liable to you for any single Transgression, our liability for it shall not exceed the value of the Contract. A number of Transgressions whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression.
- NON-SOLICITATION OF STAFF
10.1 You undertake that you shall not during this Agreement and for a period of one-year following its expiry or termination employ or contract the services of any person who is or was employed or engaged by us in connection with the Contract.
11.1 Failure or neglect by us to enforce at any time any of these provisions shall not be construed nor shall be deemed to be a waiver of our rights nor in any way affect the validity of the whole or any part of this Agreement nor prejudice our rights to take subsequent action.
Any notice required under the Contract shall be deemed served if sent by registered or recorded delivery post or by facsimile or e-mail addressed to the party for whom it is intended at such party’s registered or main office or last known address and shall be deemed to have been served 48 hours after the date of posting or 12 hours after the time of transmission if by e-mail.
- LEGAL CONSTRUCTION, INTERPRETATION AND LIMITS OF THE CONTRACT
13.1 The Contract shall be governed by English Law and shall be subject to the jurisdiction of the English Courts. The text of this Contract and these Terms written in the English language is the authentic text and any difficulties or uncertainties arising shall be solved solely by reference to that text.
13.2 Save for statement or representations confirmed in writing in this Contract, no oral statements of whatsoever nature and by whomsoever made shall form part of the Contract. In contracting with us you acknowledge that you have not relied on any oral statements or representations made to you save those confirmed as described above.
13.3 Clause headings are for convenience only and do not affect the construction of this document.
13.4 The Contract and the documents referred to in it constitute the entire agreement and understanding of the parties in respect of its subject matter and supersedes and extinguishes any previous agreement, understanding, undertaking, representation, warranty and arrangement between them relating to the Service, save that nothing in the Contract shall operate to limit or exclude any liability for fraud.