- Interpretation and Definitions
1.1 In this Agreement, the singular shall include the plural and vice versa, words indicating any one gender shall include the other genders, words indicating natural persons shall include juristic persons and bodies corporate and vice versa. The following definitions shall have the meanings respectively assigned to them here under, namely: “Agreement”: The Agreement contained in this document, schedules and annexure hereto.
1.1.1 “Software”: The Growth Mail Software, which enhances everyday email with graphic and additional text messages.
1.1.2 “Customer” the individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which accepts an offer from the Company for the supply of the Services.
1.1.3 “Company” Growth Track, a private limited company whose registered address is 33-35 Daws Lane, Mill Hill, London NW7 4SD and whose registered number is 07651138 (“Growth Track”).
1.1.4 “Party”: Growth Track and The Customer and “Parties” shall have a corresponding meaning.
1.1.5 “Hardware”: The computer hardware required to run the Software.
1.1.6 “Implementation”: The installation of the Hardware and/or Software in one physical location at one time.
1.1.7 “Month”: A month will have passed at midnight on the last day of any particular month.
1.1.8 “Everyday Email”: Email sent by The Customer’s staff on an everyday basis.
1.1.9 “License Year”: A License Year is initially 12 consecutive months from the end of the Initial Term Period and subsequently 12 consecutive months from the last day of each preceding License Year.
1.1.10 “Licensed Seat”: A unique email address identifying a sender of an email which is sent through the Software
1.1.11 “ASP Service”: The service where the Software will be run on a remote basis hosted at a third party Application Service Provider.
- Authorised Licensor
2.1 Growth Track warrants that it is the Authorised licensor of the Software and materials relating to the Software. Growth Track gives no warranties other than as expressly set out in this Agreement and excludes all other express or implied terms, conditions and warranties to the fullest extent permitted by law.
- Duration, Termination and Variation
3.1 This Agreement shall last for 12 calendar months (“Minimum Period”) and shall come into effect when the customer has signed up to this Agreement and shall remain in effect until terminated. Termination may not occur before the expiry of the Minimum Period.
3.2 At the end of the Minimum Period of this Agreement, it shall be automatically renewed and either party may cancel this agreement by providing the other party written notice of at least three (3) months prior to the end of the Minimum period. The three month notice period will deemed to have started from the last regular subscription payment date. During the notice period, the billing will be calculated based upon the user amounts from the date when the notice was given.
3.3 If either Party breaches any of the material provisions of this Agreement and/or fails to remedy that breach within thirty days after receipt of a written notice from the non-defaulting Party requiring it to remedy that breach, and the defaulting party is not able to remedy that breach, the non-defaulting Party shall be entitled, without prejudice to any remedies which it may otherwise have in terms of this Agreement or law, to terminate this Agreement without further notice to the defaulting Party.
- Growth Track’s Obligations
4.1 Growth Track agrees to deliver the Software to The Customer and hereby grants to The Customer a non-exclusive, non-transferable license to use the Software on The Customer’s network or through an ASP Service.
4.2 Growth Track warrants that it is the authorised distributor of the Software, and that it has the right to license the Use thereof.
4.3 Growth Track will, in conjunction with Growth Track’s partners, undertake the following:
4.3.1 Growth Track will install and set-up the Software on the Hardware.
4.3.2 If the Hardware to run the Software is supplied by Growth Track, Growth Track will supply the required Hardware to run the Software. If the relay hardware to run the Software is not supplied, The Customer will supply the required Hardware to run the Software as specified by Growth Track, which shall warrant that the Software is compatible with the Hardware specified. The Customer shall own the Hardware.
4.3.3 Growth Track will remotely set up the Software for The Customer. Growth Track will ensure the Software is working to The Customer’s satisfaction. Growth Track will supply a call help desk number and email address where The Customer can get assistance on Software and technical queries.
4.3.4 Growth Track will design inserts where applicable for use in the Software by using The Customer’s website and letterhead as a basis for the designs.
4.3.5 Providing the Customer gives Growth Track access to the Hardware, Growth Track will check the Software on working days for performance and identify potential problems, supplying feedback on the Software’s overall performance if required.
4.3.6 Growth Track will co-ordinate and implement Software upgrades in the form of new releases and bug fixes. This shall be included in the monthly/annual fee.
4.4 For any Software problems that may arise, Growth Track will acknowledge receipt and respond to the problem within two working days giving the expected date of rectification. Growth Track shall rectify problems in the following manner:
4.4.1 Minor, where the problem does not materially affect the use of the Software: Growth Track shall endeavour to correct such problems in future patches or releases of the Software.
4.4.2 Major, where all Everyday Email cannot be sent: Growth Track shall make possible for Everyday Email to bypass the Software as soon as possible once the problem has been reported.
- The Customer’s Obligations
5.1 The Customer must nominate a primary support contact who shall consolidate the customer queries.
5.2 Provide Growth Track with any information required about The Customer’s email systems and networks to ensure the successful implementation of the Software. The Customer will assist Growth Track in implementing the Software.
5.3 Where remote support is required, The Customer will enable Growth Track and its agent’s remote and on-site access to the Hardware and Software and information therein in order to perform the relevant support function.
5.4 Only the domains owned and used only by the customer may be sent through the Software. Additional domains, which The Customer sends through the Software, will be subject to Growth Track written approval.
5.5 The Customer is and will remain solely responsible for complying with all applicable laws, rules and regulations regarding the management and administration of its systems and/or data and its use or receipt of the benefit of the Services, including, but not limited to, by complying with all applicable data protection and privacy laws, rules and regulations, obtaining all requisite consents and/or acknowledgements from, and providing information to, all individuals in connection with the same. The Customer acknowledges and agrees that Growth Track’s responsibilities and liability do not extend to the internal management of The Customer’s systems and/or data and that Growth Track is merely a data-processor and does not control and is not responsible for the management or administration of The Customer’s systems and/or its data.
5.6 If the Customer fails to comply with the obligations set forth in Section 5, Growth Track shall notify The Customer thereof and reserves the right to suspend the Services until such failure is remedied. Notwithstanding the foregoing, the failure of the Customer to comply with the obligations set forth in this Section 5 is a material breach of this Contract.
- Fees and Payment
6.1 The Client shall pay the charges for the services as set out on the Growth Track website or in accordance with the payment terms agreed with Growth Track.
6.2.2 The charges are calculated monthly in advance on the 28th of each month based upon the number of senders (email addresses) that are registered in the Growth Mail system at that time.
6.2.3 It is the responsibility of the customer, to ensure that the amount of senders (email addresses) registered in the Growth Mail system are correct and up to date.
6.2.4 All prices are subject to VAT at the prevailing rate.
6.2.5 Growth Track shall have the right to increase the pricing annually from Start Date by an amount not exceeding the official CPI rate plus two percent.
6.3 Payment Terms:
6.3.1 The Customer shall pay the Once-Off Setup Fee, the software Cost and any other initial upfront fees.
6.3.2 The Customer shall pay further annual or monthly software fees and design fees; whichever may be due and payable.
6.3.3 Payment will be made by The Customer to Growth Track by direct debit, or in such other manner and form as agreed to in writing. All payments shall be made by The Customer punctually on the due date without deduction or set off of whatsoever nature.
6.3.4 In the event of late payment, Growth Track reserves the right to charge interest on such, compounded daily at the annual rate of 4% over the prevailing base lending rate from time to time of Growth Track’s bankers from the date when the payment became overdue until the date on which payment is received together with any interest which has accrued. Growth Track reserves the right to suspend the Services (of which it shall provide advance notice,) until The Customer pays all past due amounts payable under this Contract. If late payment exceeds 28 days, Growth Track reserves the right to cancel the the Services and The Customer will be liable for payment for the remainder of the contracted period. The Customer shall reimburse Growth Track for the reasonable costs of collection of unpaid past due amounts. The Customer will be responsible for any taxes (including VAT), duties, fees or surcharges that are imposed or authorised by regulatory and governmental entities in respect of the provision of the Services here under, and shall pay to or reimburse Growth Track for such amounts as are paid by Growth Track in respect of the same.
7.1 Any additional restrictions or notes attached hereto shall be binding and adhered to.
7.2 We shall send a branding strategy design brief whereupon receipt the customers branded email will be designed. We allow for two revisions and /or changes in the design process, after which an additional fee for any changes may be charged. If no feedback is received within 4 working days of submitting the designs to the customer, the assumption is that no further edits required. There are strictly no refunds on cancellations of creative designs.
7.3 A “powered by Growth Mail” logo will appear on all email branding.
7.4 Neither party may cede, assign and/or delegate this Agreement to another party without the prior written consent of the other party which may not be reasonably withheld.
7.5 In signing this Agreement, the Customer agrees to the terms and conditions as a Licensee in the Software License Agreement (as attached) for the use of the Software. The clauses 7, 8, 9, 10 and 11 of the attached Software License Agreement shall further apply to this Agreement.
7.6 This Contract, contains all the terms agreed between the parties regarding its subject matter and supersedes any prior Contract, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Contract except as expressly stated in this Contract. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Contract (unless such untrue statement was made fraudulently or was as to a fundamental matter including as to a matter fundamental to the other party’s ability to perform its obligations under this Contract) and that party’s only remedies shall be for breach of contract as provided in this Contract.
7.7 A Reasonable Usage policy is applicable with regards to the number of emails and amount of email traffic that The Customer may send without incurring additional bandwidth charges. The Customer may not use the Software for any use that could blacklist the ASP service as a SPAM or unsolicited mail-generator. Where such usage is detected, Growth Track may restrict The Customer’s usage with immediate effect until such time that the situation is rectified.
Software Licence Agreement
1.1 Growth Track agrees to license the Software to the Licensee/Customer under a non-exclusive, non-transferable, non-sublicense agreement. This Agreement sets out the terms and conditions between the Licensee and Growth Track for the use of the Software. The Support and Services Agreement will govern the supply and support of the Software. The Software may only be used with a valid Support and Services Agreement with an authorised Growth Track Partner.
1.2 The Software is a software application, which includes numerous modules and which is used by numerous users. All additional modules or applications supplied by Growth Track will be considered as part of the Software for the purpose of this Agreement.
- Duration and Termination
2.1 This Agreement shall remain enforced while the Licensee uses the Software or while the Licensee has a valid Support and Services Agreement.
2.2 If the Licensee is in material breach of this Agreement or if the Support and Services Agreement is terminated, the Licensee shall cease to use the Software with immediate effect, shall remove all copies of the Software from its computers and return or destroy all material and documentation relating to the Software.
2.3 Termination shall not prejudice any rights of either party which have arisen before the termination date. Terms of this Agreement shall continue after termination if by their nature they are intended to continue after that date. Growth Track may terminate this Agreement immediately if the Licensee does not pay the relevant License charges by the due dates.
- Confidentiality and Ownership
3.1 Neither of the parties shall disclose any aspect of this Agreement or the Support and Services Agreement or any information of a proprietary or confidential nature to another party other than as may be required by law. All material and proprietary information regarding the Software will be treated as confidential and owned by Growth Track. The Licensee is specifically prohibited from disclosing any information regarding the Software to parties that may be considered as competitors to Growth Track or who may wish to develop any part of the software. The Licensee will not be involved in any endeavour or relationship to attempt to replicate any part of the Growth Track functionality, or re engineer, dissemble or decompile the Software. Any modification and/or developments to the Software made by the Customer shall be the property of Growth Track unless agreed to in writing by both parties. This clause is severable from this Agreement and will remain in effect for twelve months after termination of this Agreement.
3.2 All title, copyright and other intellectual property rights related to the Software and its documentation shall remain vested in Growth Track. No copies may be made without the prior written consent of Growth Track. Growth Track will provide additional documentation at its discretion and at an agreed to price for the Licensee.
- Warranty and Performance
4.1 Growth Track warrants that the Software will perform the functions specified in the documentation at the time of purchase and as revised from time to time. Upon written notification from the Licensee and where the problem can be replicated, Growth Track will use reasonable commercial efforts to correct the problem. Growth Track does not warrant that the Software will be error free. This warranty shall not apply if the problem has been caused by unauthorised amendment to the Software or by incorrect use by the Licensee (including but not limiting to non-standard implementations and any changes that are not part of the standard shipped version of the Software) or where the Licensee does not have a valid up to date version of the Software or for minor errors that do not materially affect the Software.
4.2 The Customer agrees that it is responsible for ensuring that the Software and Services are suitable for its particular requirements and acknowledges that Growth Track is not in any way liable or responsible for ensuring that the Software or Services are appropriate for use in connection with the Customer’s System. All warranties of fitness for purpose are excluded.
4.3 Growth Track takes no responsibility for any representations made by any other entity supporting the Software regarding the Software.
4.4 Except as expressly set forth in this Agreement, no other warranty, express or implied, is made with respect to the Software, including without limitation any implied warranty of merchant-ability, fitness for a particular purpose, quality, non-infringement of third party rights and those arising from a course of dealing or usage of trade.
- Indemnity and Limitation of Liability
5.1 The Licensee is responsible for any use made of the Software. Although the Licensee may cancel this agreement with due cause, Growth Track or any of its agents shall not be liable to the Licensee for any use of, or the inability to use the Software, implied warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising from a course of dealing or usage of trade.
5.2 Growth Track indemnifies the Customer against any claim founded on the ground that the use of the Software infringes a patent, copyright or other third person proprietary rights provided the Customer notifies Growth Track promptly in writing of the claim, offers Growth Track the exclusive control of the defence and settlement thereof, and provides all reasonable assistance in connection therewith.
5.3 Growth Track or any of its agents shall not be liable for any direct or indirect damages, injury, costs, costs of defending any such claim, loss of profits, expenses, claims, loss (including but not limited to loss of data, loss of processing time, costs of re-inputting or restoring data), interruption of business, and/or purchase of substitute goods, arising from or in connection with the use of or inability to use the Software or documentation.
5.4 Growth Track shall not be liable for any failure of performance by any other entity supporting the Software.
5.5 The total liability of Growth Track in respect of any events or connected events shall be limited to the equivalent of the previous month’s worth of license fees paid to Growth Track.
5.6 For any claims made by any third party against either Party, arising as a result of the provision of the Software or Services, both Parties agrees to indemnify the other for any loss, damage and/or expenses (including legal expenses) howsoever arising.
5.7 All limitations of liability in this Agreement referring to Growth Track refer similarly to any of the Growth Track agents or partners and for the supply of any services and products related to the Software (including but not limited to any other entity supporting the Software).
- Anti-Virus and Spam Precautions
6.1 Growth Track shall virus-check the Software before being released to the Licensee. The Licensee shall not use the Software for any illegal acts and indemnifies Growth Track against any action taken by a third party due to any illegal use of the Software.
6.2 If the Service includes an email security component, The Customer understands and acknowledges that Growth Track cannot guarantee that all spam and all viruses will be eliminated and that legitimate email will not be occasionally quarantined as spam, and that the above warranties do not include any such promises. Further, if the Service includes a spooling component, spooling is provided only up to the level selected by The Customer, and if such spooling level is exceeded, messages may bounce back to the sender.
6.3 Growth Mail is not a bulk email tool and a reasonable usage policy is applicable with regards to the number of emails and amount of email traffic that The Customer may send without incurring additional bandwidth charges. The Customer may not use the Software for any use that could blacklist the ASP service as a SPAM or unsolicited mail generator. Where such usage is detected, Growth Track may restrict The Customer’s usage with immediate effect until such time that the situation is rectified.
- Force Majeure
7.1 No party will be liable for failure to perform its obligations in this Agreement if such failure results from circumstances beyond the party’s reasonable control, provided that the affected party takes all reasonable steps to avoid such circumstances and to reduce their impact. Such relief from liability shall commence on the date on which the impediment comes into existence and shall terminate upon the date upon which such impediment ceases to exist.
8.1 No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall be deemed to be a waiver, or shall prejudice any right of that party under this Agreement.
- Governing Law and Arbitration
9.1 This Agreement shall be subject to and construed and interpreted in accordance with the Laws of England. Any dispute or difference in connection with this Agreement may be referred to arbitration to by written agreement of both parties, which arbitration will be conducted according to the Laws of England. Otherwise it shall be subject to the jurisdiction of the Courts of England for the settlement of all disputes arising out of this Agreement.
10.1 All information obtained by either Party in relation to this Agreement shall be treated on a strictly confidential basis, and shall not be disclosed to any other party except as agreed to or required to by law. Both Parties shall restrict access to such information to duly authorised personnel only. Growth Track may publicise the fact that the customer uses the Software.
10.2 It is both Parties obligation to ensure that their respective employees, agents or related parties adhere to the terms and conditions of this Agreement.
11.1 The Licensee shall not solicit or entice away or endeavour to solicit or entice away from Growth Track or its agents any individual who is employed, contracted or consulting for Growth Track or its agents. In the case of a breach, the Licensee will pay Growth Track twelve times the previous monthly salary plus commission earned. This clause is severable from this Agreement and will remain in effect for twelve months after termination of this Agreement.
11.2 All parties will assist in verifying the Software is being used within the terms of this Agreement and the Customer/Licensee shall keep confidential any benchmark test results of the Software. Growth Track shall have the right, upon reasonable prior notice, to audit the use of the Software and related material and to inspect records related to any copies of the Software, or portions thereof, made.
11.3 Wording imparting the singular shall include the plural and vice versa. The terms and conditions of this Agreement may only be varied by written agreement between the two parties. The terms and conditions of this Agreement shall supersede all other Agreements between the parties relating to the Software.
11.4 No variation of this Agreement and no other agreement which has the effect of varying any provision of this Agreement shall be of any force or effect unless recorded in writing and signed by both Parties.
11.5 The parties choose as their domicile the address set forth in Schedule A for all matters arising out of or in connection with this agreement or the termination thereof. All notices, requests, consents and other communications which are required or permitted here under shall be in writing, and shall be delivered by post, sent by facsimile or electronic mail (with confirmation of receipt) at the addresses provided by the parties.
11.6 If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, all other provisions in this Agreement shall be severable and enforceable from the invalid, illegal or unenforceable provision.
11.7 Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties.
11.8 The services shall be operational for 99% of the time in any given month during the term of a service agreement, meaning that the outage percentage shall not be more than 1%. An outage means that branding fails to be applied in accordance with The Customers configuration selection. Outage does not include service suspension for reasons outside of Growth Track’s sphere of control.
11.9 From time to time, Growth Track performs scheduled maintenance. In all cases where maintenance will be performed, Growth Track shall use all reasonable attempts to ensure that scheduled maintenance that affects the availability of the services for more than 30 minutes is performed between the hours of 12.00am and 5.00am local time in the UK.