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Terms of service Print

These terms relate to the use of the CyanMailer web application and related services. For terms relating to general use of our website please click here. Hyperlink to Website terms page.

We like to keep things straight forward, so before we get to the legal stuff our lawyers say we have to have, here's a plain English breakdown of the key things you need to know when using CyanMailer services:

Your data remains yours at all times. We'll never disclose your data to third parties unless required by law or requested by you.

Unless otherwise arranged, we bill monthly based on the maximum number of active subscribers in your account during the previous month. Payments are collected by monthly standing order within 7 days of issue. Failure to pay on time will result in suspension of access until your invoice is paid.

We provide phone and email support during UK working days, from 9am - 5.30pm.

Managed services (such as alterations to or creation of email campaigns or use of the service on your behalf) are subject to additional charges which will be agreed with you before the work is undertaken.

We take permission very seriously. CyanMailer may only be used for permission-based data, without exception. Use of a purchased list or addresses obtained without permission will result in immediate termination of your account, without refund. We check all data uploaded to CyanMailer.

If you wish to cancel your account you can do so at any time with 30 days’ notice. Cancellations can only be made by sending an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it from the email address of the account administrator, for your security we will not accept verbal cancellation instructions. Cancellation will not be finalised until all outstanding invoices are paid. For annual contracts the full balance of the remaining contract period must be paid prior to cancellation.


The legal bit

Cyan Distribution Limited is incorporated and registered in England and Wales with company number 5650735 whose registered office is at Philpot House, Station Road, Rayleigh, Essex, SS6 7HH.

Use of the CyanMailer system constitutes complete and unconditional acceptance of the terms below.

The Client's attention is drawn in particular to clauses 3.4, 4, 6, 9 & 11.


Agreed terms

1. Interpretation 1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).

Agreement: the Client's agreement to use the Services provided by CyanMailer and to pay the Charges subject to these Conditions or as otherwise agreed in writing.

Charges: CyanMailer's charges for the Services as posted on CyanMailer's website from time to time or as agreed between the parties from time to time.

Client: the person, firm or company who purchases Services from CyanMailer pursuant to these Conditions.

Data: means the personal data provided to CyanMailer and updated from time to time by Client (which may include sensitive personal data).

Data Protection Legislation: all applicable data protection legislation and regulations.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Material: includes, in addition to a document in writing, the Data, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form.

Payment Day: means the day of the month upon which the Client enters into this Agreement and the same day each month for the duration of the Agreement.

Services: means the provision of the CyanMailer data storage services and Software, whereby (i) CyanMailer provides the Services, by which persons can give (and withdraw) notice of their interest in a business' products or services by mobile telephone or at the CyanMailer Site or another site and provide personal data, (ii) CyanMailer stores the Data, (iii) CyanMailer provides the Software to manipulate the data collected, (iv) CyanMailer provides the facilities for the Client to send e-mails and SMS text messages to the email addresses or mobile telephone numbers listed in their Data and sub-sets of the Data identified using the Software, (v) CyanMailer provides facilities for the Client to export the Data and such other services agreed between CyanMailer and the Client from time to time or ancillary to the services detailed above.

Site: means CyanMailer's web site from which the Services can be accessed.

SMS Credit: means a virtual non-refundable credit which the Client may redeem with CyanMailer on the day of purchase and the following 29 days in return for the sending by CyanMailer of one SMS text message to the mobile telephone number provided by Client. The cost to CyanMailer of obtaining SMS text messaging services may vary; after the expiry of the guaranteed value period of 30 days the number of SMS Credits required to be redeemed in return for the sending by CyanMailer of one SMS text message may be varied at CyanMailer's discretion.

Software: means CyanMailer's data management and manipulation software which is made available by CyanMailer for use to the Client over the Internet as part of the Services.

Subscriber: means each person for whom CyanMailer holds Data on for the Client.

Trademark: means the CyanMailer unregistered trade mark and logo and any future registration of any similar mark or application for registration anywhere in the world.

1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

1.4 Words in the singular shall include the plural and vice versa.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 A reference to writing or written includes faxes and e-mail.

1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.9 References to conditions and schedules are to the conditions and schedules of this Agreement.


2. Application and duration of conditions

2.1 These Conditions shall apply to and be incorporated into the contract between us. As the application form is completed online by Client, Client will need to scroll through these Conditions online and will be asked to tick a box accepting these Conditions on the web page, this will constitute an acceptance by Client of these Conditions relating to the Services.

2.2 The Services supplied under this Agreement shall be provided by CyanMailer to the Client from the date Client signs up to the Services online.

2.3 The Client may request that the Services be varied but any such variation shall be subject to CyanMailer's prior written consent and the written agreement of both parties, which shall set out any new, or variation of, the Charges.

2.4 Unless the parties have agreed an annual or quarterly contract for the supply of the Services, the Services supplied under this Agreement shall continue to be supplied for successive one (1) month periods unless and until this Agreement is terminated by one of the parties giving to the other not less than one months' notice, unless this Agreement is terminated in accordance with condition 10.


3. Supply of services

3.1 Subject to earlier termination in accordance with these Conditions, CyanMailer shall provide the Services to the Client for the duration of this Agreement and will use its reasonable endeavours to provide the Services in a professional manner.

3.2 When Client requests the Services of CyanMailer, and clicks online to agree to these Conditions, the Client shall be allocated a free demo account and will be sent a link by email to validate their details and provide access to this account. The Client can then upload Data to CyanMailer. The first 1,000 emails sent by Client will be free of charge and any subsequent use shall incur the Charges set out on the Site from time to time or as otherwise agreed between the parties.

3.3 CyanMailer shall store Client's Data securely and Client should note that: CyanMailer does not buy, sell or rent any of Client's Data nor will CyanMailer disclose any Data to any business, organisation or individual without the Client's prior express consent.

3.4 CyanMailer uses a third party to host the application servers and to provide communication services. That third party undertakes to provide its services at or above industry standards. CyanMailer uses a separate third party to provide SMS text messaging services. Both third parties rely upon the services of other telecommunications operators. Accordingly, CyanMailer does not warrant that the Services will be uninterrupted or error free nor that the delivery or e-mails or SMS text messages will be without delay. CyanMailer will endeavour to ensure that any third parties involved in the supply of the Services take appropriate security measures to protect Data.

3.5 It may be necessary to temporarily suspend the Services from time to time to carry out maintenance of equipment; such suspensions will be limited. However, the Services may also be suspended (in whole or part) where CyanMailer or the third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.

3.6 CyanMailer may at any time without notifying the Client make any changes to the Services which are necessary to comply with any relevant statutory, regulatory or similar requirements which do not materially affect the nature or quality of the Services.

3.7 CyanMailer will provide e-mail support for the Services during its usual business hours free of charge. CyanMailer's speed of response and other modes of support will depend upon the package and Charges agreed with the Client.

3.8 CyanMailer reserves the right to gather, process and publish anonymous statistics on aggregate delivery and open rates and other campaign statistics. These statistics are produced on an aggregate basis across all clients, for the purposes of quality control and allowing clients to compare their performance across their particular industry. The gathering of these statistics will not require processing of any personal data.


4. Client's obligations

4.1 The Client shall ensure that it has suitable computer and communications equipment to utilise the Services from time to time; CyanMailer recommends that Client has, at minimum, a computer, Internet connection and a web browser with minimum specification of either (i) Internet Explorer 8 or above (for a PC), or (ii) Firefox 3 or above (for a MAC or PC). Any other web browsers shall be used at Client's own risk as they may not necessarily offer full functionality with CyanMailer's Software.

4.2 The Client shall obtain and maintain all necessary licences and consents and comply with all relevant legislation, including Data Legislation, in relation to the Services, before the date on which the Services are to start. The Client shall comply, and ensure that all of the Data and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, promulgated from time to time by regulators (collectively, "Codes") including, without limitation, those of the Mobile Marketing Association (available at www.mmaglobal.com). Hyperlink to mmaglobal site.

4.3 The Client shall procure that any subcontractors used by Client comply in all respects with the Codes as if they were the Client under this Agreement.

4.4 The Client shall ensure that where CyanMailer is advised in writing by a Regulator that the Client is or has been in breach of any Code, CyanMailer shall be entitled to act on any request or recommendation by the Regulator for access to be barred to such Services as the Regulator may specify for such periods as the Regulator specify. In these circumstances, the Client shall:

  • (a) provide all reasonable assistance to CyanMailer in connection with CyanMailer's compliance with any requirements or conditions which are at any time imposed by law or any Regulator which are applicable to or affect the Services; and
  • (b) provide the Regulator with such information or material relating to the Services or a future service as the Regulator may reasonably request in order to carry out any investigation in connection with (i) the Services or (ii) Client's relationship with a subcontractor.

4.5 The Client will keep its password and other access details for use with the Services 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 and treat it accordingly. The Client shall notify CyanMailer without delay if it believes that such information is no longer secret.

4.6 The Client shall take account of and promptly comply with all reasonable directions of CyanMailer in relation to its use of the Services. When considering the reasonableness of CyanMailer's directions account shall be taken of the rights of other clients of CyanMailer, potential damage to the reputation of CyanMailer or its services and any complaints received by CyanMailer from third parties.

4.7 The Client acknowledges that CyanMailer will monitor and record each account's usage of the Services, to include any campaigns sent or data processed, for the purposes of ensuring legal compliance and anti-spam measures.

4.8 If CyanMailer's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, CyanMailer shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.

4.9 The Client shall be liable to pay to CyanMailer, on demand, all reasonable costs, charges or losses sustained or incurred by CyanMailer (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to CyanMailer confirming such costs, charges and losses to the Client in writing. The Client shall indemnify CyanMailer against any losses, claims, fines, damages and expenses (including legal expenses) arising from any breach of this clause 4.

4.10 The Client shall not, without the prior written consent of CyanMailer, at any time from the date Client accepted these Conditions to the expiry of six months after the termination of this Agreement, solicit or entice away from CyanMailer or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of CyanMailer in the provision of the Services.


5. Charges and payment

5.1 Where the client chooses to pay monthly or has overage charges due, CyanMailer will invoice the Charges each month on the Payment Day for the month concerned. The invoice shall be sent to the Client by email, detailing the minimum payment in advance for the following month and any payments due over the minimum payment for the previous month. Annual payments will be invoiced by email on the anniversary of the agreement date as detailed on the Service Order Agreement.

5.2 All charges quoted to the Client shall be exclusive of VAT which CyanMailer shall add to its invoices at the appropriate rate;

5.3 The Client shall pay each invoice submitted to it by CyanMailer, in full and in cleared funds, within 7 days of the date of each invoice. Client shall make the payments in pounds Sterling and payments may be made by credit card, debit card, cheque or bank transfer. NO payment shall be deemed to have been made until CyanMailer has received cleared funds.

5.4 If the Client wishes to make use of the SMS text messaging part of the Services, it must purchase SMS Credits. The purchase price for an SMS Credit and any bulk purchase discounts will be shown on the Site from time to time.

5.5 Time for payment shall be of the essence of this Agreement. Without prejudice to any other right or remedy that it may have, if the Client fails to pay CyanMailer on the due date, CyanMailer may:

  • (a) charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Nat West Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and CyanMailer may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
  • (b) suspend all Services until payment has been made in full.

5.6 CyanMailer may alter the level of Charges or the Charges payment terms from time to time on not less than 30 days' written notice and shall notify Client of the changes to the Charges. If Client does not wish to accept the altered Charges, Client shall notify CyanMailer of this and shall terminate this Agreement on one (1) month's notice or as otherwise agreed with CyanMailer.

5.7 All sums payable to CyanMailer under this Agreement shall become due immediately on its termination, despite any other provision. This condition 5.7 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

5.8 CyanMailer may, without prejudice to any other rights it may have, set off any liability of the Client to CyanMailer Distribution Limited against any liability of CyanMailer Distribution Limited to the Client.

5.9 CyanMailer may, at its sole discretion, request a further pre-payment for services if the Client uploads data or sends emails in excess of their previously pre-paid allowance. Until such payment is made, further message delivery may be temporarily suspended.


6. Data, data protection and indemnity

6.1 It is a condition of this agreement that the Client complies with all applicable Data Protection Legislation (including, if located in the European Economic Area "EEA", any locally applicable legislation giving effect to EC Directive 95/46/EC, such as the provisions of the Data Protection Act 1998 or official guidance). In particular, the Client shall:

  • (a) take appropriate organisational and technical measures against unauthorised or unlawful processing;
  • (b) obtain express, specific and informed consent when obtaining sensitive personal data from Subscribers;
  • (c) if located or operating in the EEA, only transfer Data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant Subscribers; and



6.2 The Client shall indemnify CyanMailer against any loss, damage or expenses which may be incurred as a result of any breach of the Data Protection Legislation or from its use of any Data provided in the course of the Services (including in relation to any e-mails or SMS text message sent by the Client or at its instruction).

6.3 CyanMailer shall, and any third parties it contracts with shall, comply with all relevant Data Protection Legislation in relation to its storage of Client's Data.

6.4 CyanMailer contracts with a third party to store the Data and back it up. Whilst that third party is obliged to carry out back-ups at regular intervals (at least daily), the Client is advised to make its own interim back-ups of all Data, particularly if it adds a significant amount of Data over a short time period. CyanMailer shall have no liability for any loss or damage, however caused, arising from any loss of Data.

6.5 CyanMailer has installed into the Software several procedures to help ensure compliance with relevant Data Protection Legislation, including the addition of unsubscription links in messages and the use of double opt-in techniques for data captured using CyanMailer provided web forms. It is, however, the Client's responsibility to ensure that their actions under this agreement are compliant with all Data Protection Legislation.

 


7. Intellectual property rights

7.1 As between the Client and CyanMailer, all Intellectual Property Rights and all other rights in the Site and the pre-existing Materials (which, for the avoidance of doubt, includes the Trade Mark) shall be owned by CyanMailer. Subject to condition 7.2, CyanMailer licenses all such rights as are necessary to use the Software and Trade Mark to the Client on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services. If this Agreement is terminated, this licence will automatically terminate.

7.2 The Client acknowledges that, where CyanMailer does not own any pre-existing Materials, the Client's use of rights in pre-existing Materials is conditional on CyanMailer Distribution Limited obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle CyanMailer Distribution Limited to license such rights to the Client. Use of the Software is on the following terms:

  • (a) "use" of the Software shall be restricted to use over the Internet and for the purpose of utilising the Services only;
  • (b) the Client shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or part except as permitted by law;
  • (c) the Client shall have no right to grant sub-licences of the Software; and
  • (d) the Client acknowledges that the Software will not be treated as goods within the meaning of the Sale of Goods Act 1979.

7.3 The Client undertakes not to do or permit to be done any act which would or might jeopardise or invalidate any registration of the Intellectual Property Rights, or application for registration, nor to do any act which might assist or give rise to an application to remove any of the Intellectual Property from an official register or which might prejudice the right or title of CyanMailer to the Intellectual Property.

7.4 The Client will not make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Intellectual Property Rights except under the terms of this Agreement, and acknowledges that nothing contained in this Agreement shall give the Client any right, title or interest in or to the Intellectual Property save as granted hereby.

7.5 All use of the Intellectual Property rights (including the Trade Mark) by the Client shall be for the benefit of CyanMailer and the goodwill accrued to the Client arising from its use of the Intellectual Property (including the Trade Mark) (but no greater or other goodwill) shall accrue to and be held in trust by the Client for CyanMailer which goodwill the Client agrees to assign to CyanMailer at its request and own cost at any time, whether during or after the term of this Agreement.

7.6 The Client shall direct any commercial enquiries to CyanMailer.

7.7 The Client shall use the Trade Mark in the form stipulated by CyanMailer from time to time and shall observe any reasonable directions given by CyanMailer as to colours and size of the representations of the Trade Mark and their manner and disposition on the Client's products, packaging, labels, wrappers and any accompanying leaflets, brochures or other material. The Client shall be responsible for ensuring that all other requirements relating to labelling, packaging, advertising, marketing and other such matters are complied with. The use of the Trade Mark by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by CyanMailer and the Client shall cease any use to the contrary as CyanMailer may require.

7.8 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its goods or use the Trade Mark as part of any corporate business or trading name or style.

7.9 The foregoing obligations as to Intellectual Property Rights shall remain in full force and effect notwithstanding any termination of the Agreement.

7.10 The Client shall as soon as it becomes aware thereof give CyanMailer in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of CyanMailer's rights in relation to the Intellectual Property Rights or to passing off.

7.11 If the Client becomes aware that any other person, firm or company alleges that the Trade Mark is invalid or that use of the Trade Mark infringes any rights of another party or that the Trade Mark is otherwise attacked or attackable the Client shall immediately give CyanMailer full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.

7.12 CyanMailer shall have the conduct of all proceedings relating to the Intellectual Property Rights and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property Rights or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property Rights. The Client shall not be entitled to bring any action relating to the Intellectual Property Rights in its own name but shall assist CyanMailer in any such actions if requested.


8. Confidentiality and CyanMailer's property

8.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, trade secrets, processes or initiatives which are of a confidential nature and have been disclosed to the Client by CyanMailer, its employees, affiliates or sub-contractors and any other confidential information concerning CyanMailer's business or its products which the Client may obtain unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client's obligations to CyanMailer, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.

8.2 The restrictions at clause 8.1 shall not apply in respect of any disclosure to:

  • (a) their own employees which need to know the confidential information and which are bound by similar confidentiality restrictions; or
  • (b) to either parties' legal advisors, a court, governmental body or applicable regulatory body; or
  • (c) organisations providing hosting and communications services to either party where such disclosure is incidental to the services provided and where those organisations are bound by similar confidentiality restrictions

For the avoidance of doubt, neither party shall disclose at any stage to any third party any confidential, business or future plans of the other party, including but not limited to the commercial terms of the Agreement unless a public disclosure, press statement or similar release or any advertising, publicity or promotional document has been specifically agreed to by a duly authorised representative of CyanMailer.

8.3 This condition 8 shall survive termination of this Agreement, however arising.

 

9. Limitation of liability - the customer's attention is particularly drawn to the provisions of this condition

9.1 This condition 9 sets out the entire financial liability of CyanMailer (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

  • (a) any breach of this Agreement;
  • (b) any use made by the Client of the Services, or any part of them; and
  • (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

9.3 Nothing in these Conditions limits or excludes the liability of CyanMailer:

  • (a) for death or personal injury resulting from negligence; or
  • (b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by CyanMailer; or
  • (c) for any liability incurred by the Client as a result of any breach by CyanMailer of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.

9.4 Subject to condition 9.2 and condition 9.3

  • (a) CyanMailer shall not be liable for: loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
  • (b) CyanMailer's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Charges paid for the Services in the preceding 12 months.


10. Termination

10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other on giving the other not less than one (1) month's written notice or immediately on giving notice to the other if:

  • (a) the other party commits a material breach of any of the Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
  • (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
  • (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
  • (d) a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
  • (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
  • (f) the other party ceases, or threatens to cease, to trade; or
  • (g) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
  • (h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

10.2 CyanMailer shall have the right to either suspend or terminate this Agreement with immediate effect if it should be discovered, through third party complaints or through CyanMailer's internal monitoring procedures, if Client is sending any SPAM messages through the Services. If CyanMailer suspends a Client's account then Client will have to rectify any damage caused, either to CyanMailer's reputation or to a third party, and will have to commit to not sending any further SPAM through the Services. If CyanMailer terminates a Client's account under this clause 10.2, CyanMailer's decision will be final.

10.3 On termination of this Agreement for any reason:

  • (a) the Client shall immediately pay to CyanMailer all of CyanMailer's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, CyanMailer may submit an invoice, which shall be payable immediately on receipt; if paying an annual contract by monthly installments the full remaining balance of the annual contract amount will become immediately due;
  • (b) the Client's password for its account shall immediately become ineffective; and
  • (c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

 

11. Force majeure CyanMailer shall have no liability to the Client if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of CyanMailer or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

12. Variation No variation of this Agreement or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.


13. Waiver

13.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

13.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.


14. Severance

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

14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

 

15. Statuts of pre-contractual statements Each of the parties acknowledges and agrees that, in entering into this 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 these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.


16. Assignment

16.1 The Client shall not, without the prior written consent of CyanMailer, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16.2 CyanMailer 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 this Agreement.


17. No partnership or agency

Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and

neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

18. Rights of third parties This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

 

19. Notices Notice given under this Agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in this Agreement (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery, or sent by email. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 19 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted. If a notice is sent by email, it must be backed up by notice sent by first class post and shall be deemed received when the party serving notice receives confirmation by email from the other party that the notice has been received.


20. Governing law and jurisdiction

20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.

This agreement has been entered into on the date stated at the beginning of it.