Terms and Conditions of Usage

Terms and Conditions for the use of the Email Engine Email Marketing Service August 2003

Definitions

Email Engine (referred to as "the Service") is an email marketing service operated by ML Solutions ("the Company", "Us" and "We") and accessed via the online control panel at www.mtmanager.com hereinafter referred to as "the Site."
You ("the Customer", "You") agree to be bound by these terms ("the Terms") in your sign-up and ongoing use of the service.
If you do not agree with the Terms, then you should cease using the Service immediately and notify the Company in writing.

Acceptance of these Terms

The Conditions set out the only terms on which the Company are prepared to allow you to utilise the Service.
The Conditions shall apply to all Contracts and by using the Service you accept this in full. All other terms and conditions (other than those which are agreed explicitly in writing between us) are excluded to the fullest extent permitted by law. The Company reserve the right to review and revise the Conditions from time to time without prior notice and, by using the Services subsequent to any revision of these Conditions, you agree to be bound by such changes. Please review the following link on a regular basis for changes. If you wish to review the terms prior to logging in, you should contact us by email at support@emailengine.co.uk

Registration

Where appropriate, you agree to provide the Company with such information about yourself as prompted by the registration form and ensure that it is at all times true, current, accurate and complete.
If it is not or we reasonably suspect it is not true, current, accurate and complete then we shall be entitled to terminate the Contract or suspend the Service until such time as we determine that it is true and accurate.

The Service

The Services shall be as described in the Site and such other material as the Company provide to you from time to time. We reserve the right at any time and from time to time to amend, improve, correct, discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice and you agree that the Company shall not be liable to you or to any third party for any such modification, suspension or discontinuance. We will restore the Service as soon as reasonably practicable after temporary suspension.

Client Obligations

The Client agrees that it shall:
i) immediately notify the Company if it becomes aware or suspicious of any unauthorised use of the Service
ii) not use the Services for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights of any third party or which encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English, Scottish or UK law or regulation, the laws or regulations of the Clients country or any other place where the results of such purpose or such material can be accessed;
iii) not use the Service for the publication, linking to, issue or display of any material which in the absolute discretion of the Company may harm the Company or any of its clients or bring the Company into disrepute or may call into question any action taken by the Company on the Customer's behalf;
iv) not use the Service in breach of good and reasonable internet practices as the Company sees fit;
v) ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1984 and 1998
vi) not provide any technical or other information obtained from the Company and/or relating to the Services or the Contract to any person, company, firm or government which the Client knows or ought reasonably be aware may directly or indirectly lead to a breach of any English, Scottish or UK law or regulation
vii) not, in breach of good internet use practice, use any service provided by any third party (including without limit an Internet website and/or email) for the publication, linking to, issue or display of any material which refers to an Internet website maintained by the Company or any other services offered by the Company from time to time;
viii) ensure that all material or data hosted or stored by the Company on any list operated by the Client from time to time or communicated through such list or using the Service is checked for viruses and other harmful code;
ix) keep back ups as far as is reasonable and practicable of all data hosted by the Company on any list operated by the Customer from time to time;
x) promptly notify the Company of any change to its communication address and the Client acknowledges that the Company shall not be liable for any costs, damages or loss which the Client may suffer or incur as a result of failure to notify such changes to the Company
xi) not reverse engineer, de-code or in any way disassemble any software provided by the Company in relation to the provision of the Services.
xii) have a basic knowledge of how the Internet and related email services function and what types of use are and are not acceptable and reasonable to the common user.
xiii) acknowledge that the Company shall have no obligation to: a) manipulate any material which the Client wishes and/or does post on any website it operates or any communication which it issues or sends in connection with any of the Services; or b) validate or vet such material for usability, legality, content or correctness or c) verify that any material or information posted, stored or sent through the Service complies in full or in part to the terms specified herein.

Unsolicited Email, commonly referred to as "Spam"

You may not send email with an invalid "From:" or "Reply-to:" address. All messages sent to your list must contain valid email addresses and you must be responsive to all replies from members of your list, including unsubscribe requests where received manually.
All list messages must include unsubscribe instructions in order that members can unsubscribe themselves from such list.
You may not refuse or ignore manual unsubscribe requests from members of your list. List owners should respond to member requests for manual removal from the list with courtesy and timeliness. You may not use the Company for one-time mailings to a list of members after which you substantially delete the membership and create a new list. Your membership must be an essentially static, permanent list to which you add or delete new members and/or members subscribe or unsubscribe themselves in the ordinary manner.
You may not, and explicitly agree not to use the Services to send unsolicited email ("spam"), be this commercial or non-commercial. Your email will be considered unsolicited if your membership addresses are not 100% opt-in by your email list members. If your email addresses came from retrieving addresses from web pages, a purchased email list, another mailing list (even with the approval of the list owner), or were compiled by any other method other than direct subscription from your email list members themselves, for the purposes of this Agreement, those emails will be considered unsolicited email ("spam"). If the Company receive any complaint or registered concern that the Customer is sending unsolicited commercial or non-commercial email ("spamming"), in addition to other rights that the Company may have under this Agreement or under applicable law, we may, at its sole discretion, suspend your service pending a reconfirmation of your entire email list membership. There is no reduction or refund of fees during period of suspension. This reconfirmation may be carried out by the Company in any reasonable manner it determines, at its sole discretion, including without limit, sending an email to all of your list members requiring confirmation of their wish to continue their subscription to such list.
If The Company determines in its sole discretion that you have been spamming, in addition to any other rights under this Agreement or under applicable law, (i) The Company may bring an action in any court of competent jurisdiction to enjoin such activity, it being understood that such activity may cause irreparable harm to the Company which may not be fully compensable by monetary damages and (ii) the Company may recover from the Customer monetary losses caused to The Company by such activity in an amount equal to (a) £400 for each such item of unsolicited email which Client has sent to each separate and identifiable email address in violation of this Rule, which amount the parties agree is a fair and reasonable estimate of the Company's losses which would be occasioned by such violation; or (b) if the Company can establish a greater amount of monetary loss, the amount of such actual monetary loss suffered as a result of such violation including, but not limited to, any damage or loss (including legal fees) resulting from any claim made against the Company as a result of Client's conduct in violation of this Rule.
In addition to the foregoing, Client shall be responsible for costs incurred by the Company in bringing such actions, including any legal, court and associated fees.

Payment

The price and all other amounts due under the Contract shall be paid by the Client by the due date and in the currency as specified in the Company's invoice. Payment shall only be deemed received by the Compan upon receipt of cleared funds. Payment shall be made in full without any abatement, set off or deduction on any goods. Where you authorise payment to be made by credit or debit card then such authority shall be deemed as authority to the Company to take all that the Client owes under or in connection with the Contract. It is of the essence of the Contract that the Contract price and all other amounts due from the Client under the Contract are paid on time. You shall be responsible for any and all expenses incurred by the Company in recovering overdue amounts and shall pay interest on them (before and after judgment) at annual rate of 5% above the base lending rate of the Bank of England calculated daily until payment is made in full. Failure to settle all amounts within 14 days of the due date may result in withholding of further Services and/or suspension of existing Services.

Intellectual Property Rights ("IPRs")

All IPRs relating to the Services provided by the Company are and shall remain the property of the Company. All rights in the design and arrangement of the Site, text and graphics and all software compilations, underlying source code, and all other material on the Site are reserved to of the Company UK or its licensors. Except as expressly provided below, nothing contained in these term of use or on the Site shall be construed as conferring any license or right, by implication, estoppel or otherwise, under copyright or other IPRs. the Company and all other names, images, pictures, logos and icons identifying the Company or its services are trade marks of the Company UK in the UK and other countries. Other product and company names mentioned on this Site may be trade marks of their respective owners and in such cases, the copyright is fully respected and acknowledged.

Indemnity

The Client agrees to fully indemnify and keep the Company, its subsidiaries, affiliates, officers, partners, employees and agents fully indemnified from and against all demands, actions, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever arising from your breach of the Contract, your use or misuse of the Services, any claims by third parties as to ownership or other rights arising in any way by the Client infringing (whether innocently or knowingly) third party rights (including without limit intellectual property rights).

Disclaimer

Nothing in the Contract or these Conditions shall exclude or limit the liability of the Company for death or personal injury resulting from its negligence or fraudulent misrepresentation nor affect the statutory rights of consumers. To the fullest extent permitted by law the Site and its contents is provided by the Company on an "as is" and "as available" basis and no representations or warranties (expressed or implied) of any kind are made (and they are expressly disclaimed) with respect to the Services, the Site or its contents including, without limit, warranties of merchantability and fitness for a particular purpose. Further, the Company does not represent or warrant that: (i) the Services will meet your requirements; (ii) the Services will be uninterrupted, timely, secure, or error-free; (iii) any results obtained from using the Services will be accurate, complete or current. You acknowledge that the allocation of risk in this contract reflects the price paid for the Services and that it is not within the control of the Company how or for what purposes the Services are used. If any exclusion in this license is held to be invalid and the Company becomes liable for loss or damage that may lawfully be limited then such liability shall be limited to the amount paid by you for the Services. the Company shall have no liability to the Client for any loss arising from any material, data or instructions supplied whether digitally or otherwise by the Client or on its behalf which is incomplete, inaccurate, illegible, out of sequence or in the wrong form or arising from late arrival or non-arrival or any other fault by the Client or on its behalf. the Company is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Client whether or not beyond the Services already supplied. the Company reserves the right to raise additional charges for any work so arising. If any Services are or become unavailable then the Company will use reasonable endeavours to repair and reinstate the service within 24 hours of detection depending on the severity of the failure. If failure is caused by the Client or any agent of the Client to whom access to Servers was given then the Client shall pay all costs to reinstate and/or repair the Server. Where such unavailability is due to the negligent failure of the Company to deal with circumstances within its control and is for more than a total of 24 hours in any 30 day period or for any 6 consecutive hour period then the Company will at its discretion either pay to you compensation limited to a refund of the fee paid by you for the unavailable Services or provide you with a credit up to the same amount. Neither the Company nor anyone else who has been involved in the creation, production or supply of the Services shall be liable to the Client or any other person for any loss in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof by reason of or in connection with the Contract or the Services for any: (i) economic loss of any kind whatsoever, or (ii) loss of profit, business contracts, revenues or anticipated savings, or (iii) damage to the Client's reputation or goodwill, or (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever, and the Client shall indemnify the Company from and against any claim which may be made against the Company in respect thereof. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for consequential or incidental damages and therefore the above may not apply to you. If the Company is prevented or delayed in or from performing any of its obligations under the Conditions or the Contract due to circumstances beyond its control such as but not limited to governmental acts, war, riots, strikes or trade disputes (including by and with our own employees), technical failure, general availability of the Internet, power failure, communications failure, weather, flood, fire or explosion, natural or local emergency the Company shall not be liable for this.

Confidentiality

All confidential information of either party or of any of its customers disclosed to or discovered by the other as a result of the provision of the Services shall be regarded as disclosed in confidence and shall only be used in connection with the performance of its obligations under the Contract and not be passed on to third party and/or in any way be made use of at any time either during or after the termination of the Contract save with consent of the other or which comes into the public domain (otherwise than through the unauthorised disclosure by the other). The Client shall promptly notify the Company if it becomes aware of a breach of confidence in relation to the Services and/or the Contract and shall give the Company all reasonable assistance in connection with any proceedings the Company may institute against a third party at the Company' expense.

Privacy

For quality control purposes your telephone conversations with the Company staff may be recorded from time to time. The information you provide to us will be stored on computer. We are committed to protecting your privacy. We and any of our associated companies may use the information you provide us to provide a more personalised service and to tell you about changes in our and their service or any new services which we think that you will find valuable. If you object to any of these uses at any time, then please inform us by writing to the Company at the address set out in the "Contact Us" section at the Site.
We may also use such information where and to the extent of any requirement to comply with any applicable law, legal process or to enforce any of these Conditions. We will not monitor, edit or disclose the contents of any private communications transmitted via the Servers unless required to do so by law or in the good faith belief that such action is necessary to conform or comply with applicable law, to protect and defend the rights and/or property of the Company or to protect the personal safety of any of our clients or the public.

Termination

The Contract may be terminated: i) immediately by the Company if the Client fails to pay any sums due hereunder within 14 days of their due date; ii) immediately by either party to the other if the other commits any material breach of any of these terms and which (in the case of a breach capable of being remedied) has not been remedied within a reasonable time period as may be specified in a formal request in writing or by electronic email to remedy the same; iii) immediately by written notice from the Company if the Client commits any material breach of any these conditions which may impact the Services or Servers of the Company or the ability of the Company to provide the services; iv) immediately by either party if the other shall convene a meeting with its creditors or if a proposal shall be made for a voluntary arrangement within part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme of arrangement with (or the assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee receiver or administrative receiver or similar officer is appointed in respect of all or any of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or any other steps are taken for the winding up or the making of an administrative order (otherwise than for the purposes of a solvent amalgamation or reconstruction). In the event that the Company is entitled to terminate the Contract for any reason then it shall in the alternative at its sole discretion be entitled to suspend the Services for such period as the Company shall determine. Upon termination or expiry of the Contract all amounts payable by the Client to the Company shall become immediately due and the Company shall be entitled to immediately cease the provision of the Services.

Foreign Jurisdictions

The Site may contain references or cross references to services that are not available in every country. We do not represent that all Services and content , materials and services on the Site are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Your access to the content, materials and services on the Site from such locations is at your own initiative and we are not responsible for your compliance with local laws or other applicable laws. You will not access the foregoing if prohibited by law. You are fully responsible for ensuring that your use of the Service is permitted in the location from which you access the Service. You are additionally responsible for ensuring that material, including text, reference and imagery, which is distributed through the service is permissible and acceptable in any country, state, province or region, as far as is reasonably practicable. Compliance with this does not restrict liability under any other Terms of this contract.

Miscellaneous

Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver. Any notice or other communication to be given by a party under this Agreement must be in writing and must be given by delivery at or sending by first class post or by email or facsimile transmission to the last known postal, email address or relevant telecommunications number of the other party. Notices shall be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it shall be sufficient to show it was despatched. A notice shall have been effect from the sooner of its actual or deemed receipt by the addressee. Any termination of this Agreement shall be without prejudice to any other rights or remedies which a party may be entitled to hereunder or at law and shall not effect any previous rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into continue in force upon or after such termination. If any provision of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the provision shall be deemed to be severable from the remaining provisions and shall not affect their validity or enforceability. Your use of this Site and the Contract will be governed by English, Scottish or UK Law and will be deemed to have occurred and been made in Scotland. If you have any disputes with us or any other aspect of the Site then these will be exclusively resolved in the English, Scottish or UK Courts. The Client shall not share, re-sell or attempt to share or re-sell the Services, transfer or attempt to transfer this Contract or permit any third party to use and/or access any of the Services for any purpose, without prior consent of the Company.