DudobiMail Terms and Conditions
Designed to maintain security, integrity & performance
Dudobi, in return for the Charges (as defined below) from you, hereby undertakes to provide the Services upon the terms and conditions of this Agreement.
1. Definitions
“Charges” means the charges for the Services payable in accordance with clause 6.
“Commencement Date” means the date of this Agreement.
“Data” means Material or any other information collected from your Customers;
“Material” means any documents, or other materials, emails, lists of email addresses and any data or other information whether in electronic form or otherwise, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the website, sounds or any other record of any information in any form; provided to Dudobi by you in relation to your business;
“Services” means the email sending services to be provided by Dudobi, in accordance with your instructions. This includes the provision of the Dudobi data processing services and Software, whereby (a) Dudobi provides the Software to manipulate the personal data collected; (b) Dudobi provides the facilities for you to send emails to data subjects who have expressly consented to you sending them such emails; and (c) Dudobi provides facilities for you to export the personal data and such other services agreed between Dudobi and you from time to time or ancillary to the services detailed above;
“Software” means Dudobi’s data management and manipulation software which is made available for use by Dudobi to you over the internet as part of the Services.
2. Duration
2.1 This Agreement shall commence on the Commencement Date and shall (subject to clauses 10 and 13) continue on a monthly basis and thereafter until terminated by either party in accordance with clause 10.
3. Provision of the Services
3.1 Dudobi shall supply the Services to you with due skill and care and shall ensure that the Services are performed substantially by employees of Dudobi possessing suitable skills and experience.
3.2 Dudobi shall provide the Services to you in accordance with your instructions, but subject always to these terms, and in particular, subject to the payment of the Charges. Any changes or additions to the Services or these terms must be agreed in writing by Dudobi and you.
3.3 Dudobi shall comply with all relevant legislation in providing the Services and may, at any time, make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
3.4 Dudobi hosts the application servers and undertakes to provide its services at, or above industry standards. 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 in part, where Dudobi is obliged to comply with an order, instruction or request by government, a court or other competent authority or an emergency service organisation.
3.5 Dudobi shall use its best endeavours to provide the Services at such times as are agreed with you. However, Dudobi shall not be responsible for non-performance of the Services for reasons beyond its control. Where any non-performance is within Dudobi’s control, then Dudobi shall endeavour to remedy the situation.
4. Your Obligations
4.1 You shall at your own expense supply Dudobi with all necessary Material relating to the Services, within sufficient time to enable Dudobi to provide the Services in accordance with this Agreement.
4.2 You are the data controller and shall be fully responsible for the accuracy or content of your Material and Dudobi is not obliged to check the Material for legal conformity. You shall, at your own expense, retain duplicate copies of all Material and insure against its accidental loss or damage. Dudobi shall have no liability for any such loss or damage, however caused.
4.3 You shall ensure that sufficient systems are in place, whereby no emails are sent to recipients against their will. This can be done by using the relevant opt-in procedures recommended by the Direct Marketing Association. Furthermore, you must ensure that a link in any emails or other Material provided which allows recipients to opt-out of future emails, is functioning.
4.4 You must ensure that any recipient can easily contact you via each email sent, through a sender tag (i.e. via the sender domain). The sender tag should easily point to your imprint.
4.5 If any recipient opts out of receiving emails or other Material in future, then their status will automatically be changed to “held” within DudobiMail. You must either remove or set your status accordingly, so that the recipient’s details are removed from your lists and no further emails must be sent to them.
4.6 You must maintain a list of the addresses of recipients who have informed you that they no longer wish to receive any emails from you. This should include members of “no contact” lists. These recipients cannot be contacted by you, and you allow Dudobi to disable the sending of emails to such persons.
4.7 You shall obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of the Material, including but not limited to, competition laws, advertising laws, the Electronic Communications Regulations 2003 and data protection legislation.
4.8 Dudobi provides connectivity and stores and backs up data (including personal data) daily. Whilst Dudobi is obliged to back up the Materials at regular intervals, you must also make your own interim back ups of such Data, particularly if you add a significant amount of data over a short time period. Dudobi shall have no liability for any loss or damage, however caused arising from any loss of list data or Materials.
4.9 You are prohibited from:
4.9.1 sending unsolicited emails or other unauthorised material, or abusing the Services (including but not limited to ‘junk mail’ or ‘spam’);
4.9.2 using the Services in a way which is unlawful, indecent, libellous or invasive of a recipient’s privacy; or
4.9.3 using the Services in a manner which abuses the intellectual property rights of Dudobi, recipients or any third party.
4.10 If Dudobi’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of you, your agents, sub-contractors or employees, Dudobi shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
4.11 You shall not, without the prior written consent of Dudobi, at any time from the Commencement Date to the expiry of six months after the termination of this Agreement, solicit or entice away from Dudobi or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Dudobi in the provision of the Services.
5. Changes to the Services
The parties shall from time to time meet to review the manner in which the Services are being provided by Dudobi hereunder in accordance with the Services agreed with you. In the event that you wish to alter the Services, including the number of emails to be sent as part of the Services, then you shall make a written submission to Dudobi setting out your requirements.
6. Charges
6.1 Subject to any special terms agreed, you shall pay Dudobi’s standard Charges and any additional sums which are agreed between Dudobi and you for the provision of the Services or which, in Dudobi’s sole discretion, are required as a result of your instructions or lack of instructions, the inaccuracy of any Material or any other cause attributable to you.
6.2 Dudobi shall be entitled to vary its Charges from time to time by giving not less than one (1) months’ notice to you.
6.3 All charges quoted to you for the provision of the Services are exclusive of any Value Added Tax, for which you shall be additionally liable at the applicable rate from time to time.
6.4 Dudobi shall be entitled to invoice you quarterly from the beginning of each month in which the Services are provided, or at other times agreed with you.
6.5 If the total number of emails sent from your account exceeds the amount allocated (as set out in Schedule 1) in any one month for a period greater than one month, then you will be liable to Dudobi for an “Additional email send” charge for these extra emails as set out on the Fees page for that month. These overages will be invoiced quarterly for the preceding months.
6.6 Dudobi’s standard Charges and any additional sums payable shall be paid by you (together with any applicable Value Added Tax, and without any set off or other deduction) within 30 days of the date of Dudobi’s invoice. Time for payment shall be of the essence of this Agreement.
6.7 Without prejudice to any other right or remedy that you may have, if you fail to pay Dudobi on the due date, Dudobi may:
6.7.1 charge you interest in respect of the late payment of any sums due under these terms (as well after as before judgment) at the rate of eight per cent (8%) per annum above the base rate from time to time of the Bank of England from the due date until payment (in accordance with The Late Payment of Commercial Debts (Interest) Act 1998); and/or
6.7.2 suspend all Services/disable the account until payment has been made in full; or
6.7.3 terminate this Agreement in accordance with clause 10.
7. Warranties and Indemnities
7.1 You warrant that you are permitted to collect, process and use any Material, including but not limited to recipients’ personal details in accordance with relevant data protection legislation and pass them to Dudobi for the purpose of the Services. You further warrant that you have obtained the consent of recipients’ required, in order for Dudobi to perform the Services lawfully.
7.3 You warrant that any Material and its use by Dudobi for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and you shall indemnify Dudobi against any loss, damages, costs, expenses or other claims arising from any such infringement.
7.4 You shall be liable to pay to Dudobi, on demand, all reasonable costs, charges or losses sustained or incurred by Dudobi (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 your fraud, negligence, failure to perform or delay in the performance of any of your obligations under this Agreement.
8. Limitation of liability
8.1 The following provisions set out Dudobi’s entire liability (including any liability for the acts and omissions of its employees, agents or sub contractors) to you in respect of:
8.1.1 any breach of its contractual obligations arising under this agreement; and
8.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement
AND YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
8.2 Any act or omission on the part of Dudobi or its employees, agents or sub contractors falling within clause 8.1 above shall for the purposes of this clause 8 be known as an ‘Event of Default’.
8.3 Each party’s liability to the other for death or personal injury shall not be limited.
8.4 Subject to clause 8.3 above, Dudobi’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to 1 month’s charges immediately preceding the date of the Event of Default.
8.5 Subject to clause 8.3 above, Dudobi shall not be liable to you in respect of any Event of Default for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Dudobi had been advised of the possibility of you incurring the same.
8.7 You hereby agree to afford Dudobi not less than 30 days in which to remedy any Event of Default hereunder.
8.8 Except in the case of an Event of Default arising under clause 8.3 above, Dudobi shall have no liability to you in respect of any Event of Default unless you shall have served notice of the same upon Dudobi within one month of the date you became aware of the circumstances giving rise to the Event of Default or the date when you ought reasonably to have become so aware.
8.10 Dudobi shall not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of Dudobi’s obligations in relation to the Services, if the delay or failure was due to you or any cause beyond Dudobi’s reasonable control.
9. Intellectual Property Rights
9.1 The copyright and all other intellectual property rights in the Material shall belong to you. You hereby grant a licence to Dudobi to use the Materials and any trade marks owned by you, for the purpose of providing the Services.
9.2 Unless specifically agreed to the contrary in writing, all documents, email addresses and materials of any sort supplied by one party to the other in connection with the Agreement shall remain the property of the author and shall be returned to the author at their request.
9.3 You shall indemnify and hold harmless Dudobi against all losses, claims, damages, costs and expenses (including legal and professional fees) of whatsoever nature (whether direct, indirect or consequential) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the use of the Materials by Dudobi pursuant to this Agreement infringes any intellectual property right of the said third party.
10. Termination
10.1 This agreement may be terminated:
10.1.1 by either party giving not less than 1 months’ notice in writing to the other;
10.1.2 forthwith by Dudobi if you fail to pay any of the Charges by the due date and payment has not been made within 7 days of a written notice to you requesting you to do so;
10.1.3 forthwith by either party if the other commits any material breach of any term of this Agreement (other than one falling under clause 10.1.2. above) and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request by the other party to remedy the same;
10.1.4 forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or 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, administrative receiver, administrator or liquidator or similar officer is appointed in respect of all or any part 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 other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
11. Effect of termination
11.1 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law.
11.2 Upon the termination of this Agreement for whatever reason:
11.2.1 Dudobi shall return all copies of any Materials and other related documentation and list data/email addresses to you or Dudobi may destroy the Materials at your request, or in the absence of such a request, at Dudobi’s discretion;
11.2.2 without limitation to the foregoing, Dudobi shall take all such steps as shall be necessary to agree with you a plan for the orderly hand over of the Services to you (or your nominee) such that the Services can be carried on with the minimum of interruption and inconvenience to you;
11.2.3 upon the termination of this Agreement for whatever reason, all outstanding Charges shall remain due and payable by you to Dudobi in accordance with the terms of this Agreement.
12. Data Protection and Confidentiality
12.1 You are the data controller in respect of any personal data or other Materials that Dudobi processes in the provision of the Services. The personal data is derived from that provided by you and is not checked or monitored by Dudobi and, accordingly, Dudobi cannot be held liable or responsible for the accuracy, contents or use of such personal data. You own any personal data stored within DudobiMail.
12.2 Dudobi and you hereby undertake to the other to:
12.2.1 keep confidential all information (written or oral), Material, email addresses or other personal data of recipients and information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement (‘the Information’); and
12.2.2 use the Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third party.
12.3 The provisions of clause 12.2 above shall not apply to the whole or any part of the Information to the extent that it is trivial or obvious; already in the other’s possession on the date of its disclosure; or in the public domain other than as a result of a breach of this clause.
12.4 For the purposes of Dudobi’s undertaking under clause 12.2 above, the Information shall be deemed to include all of your Materials and data under the care and control of Dudobi.
12.5 Each party undertakes to the other to make all relevant employees, agents and sub contractors aware of the confidentiality of the Information and the provisions of this clause 12 and without limitation to the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub contractors with the provisions of this clause 12.
13. Force Majeure
13.1 Neither party shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control, including but not limited to fires, explosions, floods, accidents, strikes (of its own or other employees), insurrection, riots, delays in transportation, failure of public power supplies, failure of communication facilities, or failure or interruption of services supplied by a third party (an ‘Event of Force Majeure’).
13.2 Each of the parties agrees to give notice to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3 If a default due to an Event of Force Majeure shall continue for more than 4 weeks, then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
14. Waiver
14.1 No waiver of any term or condition of this Agreement will be effective unless made in writing. Any waiver by either party of a breach of any part of the Agreement shall not be considered as a waiver of any subsequent breach of the same or of any other term or condition.
15. Notices
15.1 Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be sent by electronic mail to the address, as notified by each party to the other from time to time.
16. Invalidity and Severability
16.1 If any provision of this Agreement shall be found at any time to be invalid or unenforceable such invalidity or unenforceability shall in no way prejudice or affect the other provisions of this Agreement which shall remain in full force and effect.
17. Entire Agreement
17.1 Dudobi shall not be liable to you for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements and undertakings confirmed by a duly authorised representative of Dudobi in writing or expressly incorporated or referred to in this Agreement.
18. Assignment
18.1 Neither party shall be entitled to assign this Agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
19. Disputes
19.1 All disputes or differences which shall at any time hereafter arise between Dudobi and you in respect of the construction or effect of this Agreement or the rights, duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be discussed between the parties in good faith. If a resolution cannot be reached within 30 days, then the matter shall be referred to such independent third party (the ‘Third Party’) as Dudobi and you shall jointly nominate.
19.2 If Dudobi and you shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event, then the Third Party shall be nominated at the request of either Dudobi or you by the President for the time being of the Direct Marketing Association.
19.3 The Third Party (whether appointed under clause 19.1 or 19.2 above) shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Dudobi and you.
20. Rights of Third Parties
20.1 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
21. Law and jurisdiction
21.1 This Agreement shall in all respects operate and be construed in accordance with the Laws of England and Wales and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.
