- Interpretation and Definitions
1.1 In these Terms: ‘data controller’, ‘data processor’, ‘data subject’, ‘personal data’ and ‘processing’ shall have the meanings ascribed to them in the Data Protection Act 1998 or such other legislation as may supersede this Act;
1.1.1 “Agreement” means the contract formed between you the client and Growth Track by your use of the services and agreement to pay the charges subject to these terms or as otherwise agreed in writing;
1.1.2 “Charges” means Growth Track’s charges for the services which shall be on a Monthly Plan basis, and as agreed between the parties and (a) set out on the attached schedule; or (b) specified at www.growthnews.co.uk together with such other additional charges as may be agreed between the parties from time to time;
1.1.3 “Client” is you, the legal entity to whom Growth Track is providing the Services pursuant to these Terms;
1.1.4 “Intellectual Property” means any and all patents, copyrights (including future copyrights), design rights, trademarks, service marks, domain names, trade secrets, know-how, database rights, and all other intellectual property rights, whether registered or unregistered, and including applications for any of the foregoing and all rights of a similar nature which may exist anywhere in the world and provided by or owned by Growth Track Limited in or arising out of the Growth Track business model, the Growth Track Material, the Growth Track Trade Mark or the provision of the Services;
1.1.5 “Material” means written documentation and content verbal, electronic and other information, 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;
1.1.6 “Services” means the provision of the Growth Track data processing services and Software whereby: (a) Growth Track provides the Software to manipulate the personal data collected; (b) Growth Track provides the facilities for the Client to send emails to data subjects who have expressly consented to the Client sending them such emails; and (c) Growth Track provides facilities for the Client to export the personal data together with such other services agreed between Growth Track and the Client from time to time or ancillary to the services detailed above;
1.1.7 “Site” means the Growth News website from which the Services can be accessed; “Software” means Growth Track’s data management and manipulation software which is made available for use by Growth Track to the Client over the internet as part of the Services;
1.1.8 “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”).
1.1.9 “Trade Mark” means the Growth Track unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of Growth Track or any 3rd parties provided or used as a part of these services or any application for registration anywhere in the world;
1.1.10 “Monthly Plan “means a fixed tariff pricing for the services where the Client may send up to a specified number of contacts for a fixed price as more particularly detailed on Growth Track’s site.
1.2 Any reference in these terms to ‘writing’ or related expressions includes a reference to email, communications via websites and comparable means of communication.
1.3 Except where the context requires otherwise: the singular includes the plural and vice versa; a reference to one gender includes all genders; and words denoting persons include firms and corporations and vice versa.
1.4 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term.
- Supply of Services
2.1 Subject to early termination and payment of the charges in accordance with this Agreement, Growth Track shall provide the Services to the Client for the duration of this Agreement.
2.2 Growth Track warrants that it will not disclose any personal data to any business, organisation or individual without the Client’s prior express consent, unless required or permitted by law.
2.3 Growth Track uses a third party to host the application servers and to provide communication services. Growth Track will use all reasonable endeavours to ensure the third party undertakes to provide its services to generally accepted industry standards. Growth Track does not warrant that the Services will be uninterrupted error, bug or virus free or that the delivery of emails will be without delay but will use all reasonable endeavours to maintain an uninterrupted service during core working hours (08.30 to 18.30, Monday to Friday UK local time excluding statutory holidays).
2.4 It may be necessary to temporarily suspend the services from time to time to carry out maintenance of equipment. Growth Track will provide the Client with as much notice a possible of temporary suspensions of the services and where possible any such planned suspensions will take place outside of core working hours in order to minimise disruption to the services provided to the Client. Services may also be suspended (in whole or in part) where Growth Track 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 .
2.6 Where the Site contains links to other sites and resources provided by third parties, these links are provided for the Client’s information only. Growth Track has no control over the availability or content of such other sites or resources, and accepts no responsibility or liability for them or for any loss or damage that may arise from the Client’s use of third party sites or Materials.
The delivery of emails to the recipient cannot be guaranteed and is dependent upon accurate and up to date email addresses, upon suitable internet availability and connectivity, on various anti-spam and junk mail policies adopted by the recipients’ email service providers as well as restrictions regarding the content, wording and graphics of an email. The basis of defining ‘spam’ or ‘junk’ mail is constantly changing. Whilst Growth Track will assist the Client with the provision of tools and up to date guidance on how to maximise the delivery rate of emails, Growth Track makes no representations or warranties whatsoever about the speed or proportion of emails sent that will be delivered.
2.7 Your Growth News account includes certain data storage – for lists, email campaigns and content, and response tracking information. We may choose to set limits on how much information may be stored, and may change those limits at any time. Should we impose any such limits, we will provide you with reasonable advance notice of such limits, and, when possible, offer you the option to either obtain more storage at an additional cost or maintain a lower level of storage without incurring additional costs. Growth News is not responsible for the loss of any data in the event that you fail to request either more storage space or a transfer of existing data to another location and data is lost due to a change in limits or by your exceeding the existing limits.
- Fees and Payment
3.1 The Client shall pay the charges for the services as set out on the Growth News website or in accordance with the payment terms agreed with Growth Track.
3.2 Growth Track may alter the level of charges or the payment terms from time to time on not less than 30 days’ notice by email or notification on the website. Within 30 days of receiving such notice the Client may notify Growth Track in writing that it wishes to terminate this Agreement with effect from the date of any proposed change in the charges. Growth Track may then either terminate this Agreement or withdraw its notice of the proposed changes to the charges and/or the payment terms in which latter case the Agreement will not terminate as a result of the Client’s notice. If no such notice is received from the Client, the Client shall be deemed to have accepted the changes proposed by Growth Track.
3.3 All charges quoted to the Client for the provision of the Services are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.4 The Client shall pay the Once-Off Setup Fee, the software cost and any other initial upfront fees.
3.5 Growth Track will invoice the charges on a monthly basis.
3.6 All prices are subject to VAT at the prevailing rate.
3.7 Payment will be made by The Client to Growth Track by direct debit monthly in advance on or around the 1st of the month, or in such other manner and form as agreed to in writing. All payments shall be made by The Client punctually on the due date without deduction or set off of whatsoever nature.
3.8 No payment shall be deemed to have been made until Growth Track has received such payment in cleared funds.
3.9 If the Client fails to pay Growth Track any charges due pursuant to this Agreement, then without limiting any other rights it may have or its rights under the Late Payments of Commercial Debts (Interest) Act 1998, Growth Track shall be entitled to charge interest (both before and after any judgement) on the outstanding amount at the rate of 4% above the base rate of Growth Track’s bankers from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full.
3.9.1 If the Client fails to pay any sums due within 14 days (subject to any separate agreement in writing between the parties from time to time) of the date of each invoice, Growth Track retains the right to disable the account and suspend the provision of the Services until such time as any outstanding invoices have been settled in full in cleared funds.
3.10 In the event of an invoice being disputed by the Client for valid and reasonable grounds Growth Track may agree to continued provision of the Services for a further 14 days whilst discussions take place to resolve the basis of the dispute. Where there have been previous unfounded disputes over invoices with the Client, Growth Track may at its discretion suspend the Services to the Client without allowing any 14 day extension for resolution of the dispute. If the Client disputes any portion of an invoice based upon usage of the Services, Growth Track’s records of such usage shall be presumed to be accurate unless proved otherwise by an independent expert.
3.11 Growth Track reserves the right carry out credit checks on Clients, and initially to provide a restricted service limiting the initial send volumes of emails based on the results of such credit checks. Growth Track also reserves the right to apply lower limits to Clients or to request payments of charges in advance during the provision of the Services if a Client’s credit rating reduces.
3.12 In the event of a breach of clause 5.2 Growth Track will immediately suspend the service to the client. Any amounts due up to the point of suspension will remain due and payable as if no suspension had occurred.
- Data, Data Protection and Indemnity
4.1 The Client is the data controller in respect of any personal data that Growth Track processes in the course of providing Services. The personal data is derived from that provided by the Client and is not checked or monitored by Growth Track and, accordingly, Growth Track has no liability or responsibility for the accuracy, contents or use of such personal data.
4.2 Growth Track uses a third party to store data (including personal data) and to back it up. That third party shall be contracted to provide storage and back up services to an acceptable industry standard. However, Growth Track has no responsibility or liability for the storage or back up of client data and although third party back-ups shall be carried out at regular intervals (at least daily), the Client has full responsibility to make its own back-up of such data if required, particularly if it adds a significant amount of data over a short time period. Growth Track shall have no liability for any loss or damage, however caused, arising from any loss of data.
4.3 It is a condition of this Agreement that the Client complies with all applicable data protection and communications legislation (including without limitation, if located in the European Economic Area “EEA”, any locally applicable legislation giving effect to EC Directive 95/46/EC and EC Directive 2002/58/EC such as the provisions of the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003). In particular, the Client shall:
(a) If located or operating in the EEA, ensure that it is appropriately registered;
(b) Take appropriate organisational and technical measures against unauthorised or unlawful processing;
(c) Obtain appropriate express, specific and informed consent when obtaining the personal data from data subjects;
(d) Keep full records of its client’s opt- in/opt-out choices regarding unsolicited emails;
(e) If located or operating in the EEA, only transfer personal data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant data subject; (f) with reasonable written notice provide Growth Track with documentary evidence of compliance with this clause
4.3 and should such written evidence not be available shall permit Growth Track to appoint an appropriate professional organisation to conduct a compliance audit. The client shall grant the appointed professional reasonable access only to those premises and systems necessary for the purpose of this audit upon being given reasonable notice.
4.4 The Client shall fully indemnify and keep indemnified Growth Track against any losses, claims, fines, damage or expenses (including reasonable legal and professional expenses) (whether direct, indirect or consequential) arising as a result of or in connection with any breach of this clause 4 and/or any applicable data protection legislation. Growth Track shall not use the Client data or materials except for the provision of Services as set out in this Agreement or as required by law, regulation or regulatory body or any court of competent jurisdiction. Growth Track shall at all times comply with its obligations under the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
- Clients Obligations and Indemnity
All marketing communications in the UK are governed by the Committee of Advertising Practice (CAP) Code, which is enforced by the Advertising Standards authority. Full details of which can be found at www.cap.org.uk. The general principles of this code are that the content of any marketing email should be:
Legal, Decent, Honest, Truthful. Prepared with a sense of responsibility to consumers and society. In line with the principles of fair competition.
Some specific sections of the code, which may be relevant to email marketing include:
Marketers, publishers and owners of other media should ensure that marketing communications are designed and presented in such a way that it is clear that they are marketing communications. Unsolicited e-mail marketing communications should be clearly identifiable as marketing communications without the need to open them. E-mail and mobile marketing communications should contain the full name and a valid address (e.g. an email address) of the marketers to which recipients can send opt-out requests. Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or Implied, that are capable of objective substantiation. The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication.
Marketing communications should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency.
E-mail and mobile marketing communications should contain the full business name, and address of the sender and must provide a valid mechanism for the recipients request to be unsubscribed. Allowing recipients of your emails to choose to stop receiving those emails is required by law. In order to ensure strict compliance, we require that you use the opt-out link and process provided with your email account and templates. You will in no way attempt to circumvent Growth News’s opt-out process. Furthermore, you understand that some recipients may choose to ask you to opt them out instead of using the opt-out link provided. In such cases, you agree to unsubscribe any such recipient manually, by changing the member’s mailing status to “opt-out” using the tools provided inside your Growth News account, and to make sure any such subscriber has been opted out prior to your next mailing being sent, and within ten (10) business days from the opt-out request, in lieu of any mailings being sent, as required by law.
5.1 It is a condition of the provision of these Services that the Client agrees to follow the CAP code in all marketing communications and that the reputation, goodwill and brand of Growth Track and all Growth Track Limited brands are fully preserved and protected and, the Client shall not:
(a) Use the Services in any way so as to bring the Services or Growth Track into disrepute; or
(b) use the Services to send unsolicited or unauthorised advertising, promotional material, ‘junk mail’, ‘spam’, ‘chain letters or pyramid Schemes, offensive adult services, pornographic material, pornographic images, communications promoting email address data lists or any other form of solicitation to any data subjects or third party; or
(c) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Growth Track Services;
(d) use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortuous, indecent, obscene, libellous, menacing or invasive of another person’s privacy; or
(e) use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects; or
(f) misuse the Site by introducing viruses, Trojans, worms, logic bombs or other material which is technologically harmful; or (g) attempt to gain unauthorised access to the Site or Services, the server on which the Site or Services are stored or any server, computer or database connected to the Site or Services; or
(h) Attack the Site or Services via a denial-of-service attack or a distributed denial-of service attack.
Growth Track monitors the content of emails created by the Client and may at its discretion suspend the service if it believes that the Client is in breach of clause 5.1.
5.2 For avoidance of doubt it is an express condition of this agreement that the client will not use the Growth Track service to send email communications advertising or promoting email lists or services supporting unsolicited bulk email. Any Client who uses the Services to promote or advertise email lists or services supporting unsolicited bulk email will have their account disabled with immediate effect and no refund of licence fees or other payments to Growth Track will be made. Unsolicited bulk email support services may include but are not limited to: Services providing service to known spam operations listed on ROKSO, services providing ‘bullet -proof hosting’ for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy. We at Growth Track firmly believe that email marketing must be built upon a foundation of good practice and permission.
We also believe that the subscriber must be given the means to control the frequency, which businesses communicate with them and must be given clear and unambiguous means to unsubscribe from further emails. We therefore make it a condition of this Agreement that the Client agrees:
(a) to comply, and to ensure that all its use of the Services complies, in all respects, with all applicable legislation, regulations, directions, codes of practice, best practice guides (including, without limitation, the DMA best practice guides, The Committee of Advertising Practice Code, the Spamhaus best practice guides) and other rules and guidelines, mandatory or otherwise, promulgated from time to time by governments, regulators and/or email User Groups acknowledged both UK and worldwide (collectively, Codes);
(b) that where Growth Track is notified that a Client is or has been in breach of any Codes, Growth Track shall be entitled to act on any request or recommendation for access to be barred to such Services and for such periods in each case as are reasonable;
(c) to provide all reasonable assistance to Growth Track in connection with Growth Track’s compliance with any requirements or conditions which are at any time imposed by law or any regulator or appropriate User Group which are applicable to or affect the Services; and
(d) To provide, Growth Track, relevant authority, User Group or regulator with such information or material relating to the Services or a future service as it may reasonably request in order to carry out any investigation in connection with the Services.
In the event of a breach of applicable legislation, regulations, directions, codes of practice, best practice guides and other rules and guidelines Growth Track will review the circumstances leading to the breach and may in its absolute discretion (taking account of the clients track record of using the services) either terminate the agreement or reactivate the services subject to the client providing documentary evidence the breach was caused inadvertently and while acting in good faith and that appropriate steps have been taken to prevent any further reoccurrences.
5.3 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 Growth Track immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities that occur under the Client’s password or account.
5.4 Growth Track does not accept and shall have no responsibility or liability for the content of any emails sent using the Services or for sending them to the recipients in accordance with this Agreement and the Client agrees to indemnify fully and keep indemnified Growth Track against any losses, claims, fines, damages and expenses (including reasonable legal and professional expenses) of whatsoever nature (whether direct, indirect or consequential) arising as a result of or in connection with any breach by the Client of this clause 5 and/or any applicable legislation.
5.5 Without prejudice to its other rights in this Agreement Growth Track reserves the right to remove any item placed on the Site or included in any emails forming part of the Services or any other item or material made available via the Services by the Client at any time and without notice.
5.6 You agree to send emails using the Growth News Service only to those recipients who have a clear relationship with you and/or your company or who have expressly indicated their desire to receive emails from you.
Specifically, to receive emails from you, a recipient must meet one of the following criteria:
(a) He or she has opted in to receive your emails, using a form that clearly indicates that by submitting his or her email address he or she will receive emails from you;
(b) He or she has a clear relationship with you, as (i) a member who pays dues to belong to your company, (ii) a subscriber who pays a subscription fee to gain access to your company’s services, or (iii) a customer who has purchased a good or service from you within the past eighteen months, in the course of which you have obtained that customer’s email address.
If any recipient, regardless of his or her prior opt-in status or relationship to you, has indicated a desire not to receive emails from you – either during or prior to your use of Growth News – you may not use the Growth News Service to email that recipient.
5.7 By using the Growth News Service to send emails to a recipient, you are representing to Growth News that you have obtained permission to email that recipient. You must be able to provide evidence as to the origin of any email address with respect to how it was acquired and how permission was obtained. You agree to fulfil any requests for permission evidence by Growth News to the best of your ability and in a timely manner, and you understand that any addresses for which you are unable to provide adequate information in a timely manner will be disallowed, along with the rest of the list(s) in which that address resides, should we deem it necessary and appropriate to disallow the entire list.
5.8 You may not use the Growth News Service in conjunction with email lists or addresses that have been purchased, rented or otherwise obtained from a third party, or which have been collected using a script or other harvesting method, or which have been obtained without the email address owner’s knowledge. Sending emails to any address or list obtained using one or more of these methods will result in the termination of your Growth News account, immediately and without notice. We may also restrict access to your account, immediately and without notice, should we have reason to suspect that email addresses being added or imported into your Growth News account fail to meet the permission criteria set forth in this Agreement.
Should any mailing sent through your Growth News account receive an unreasonable number of complaints from Internet Service Providers or email watchdog groups (with Growth News having the right to determine what qualifies as unreasonable), we reserve the right to suspend or terminate your account immediately. Furthermore, you will be responsible for paying all charges for use of the Service and any fines incurred by Growth News as a direct result of one of your mailings, in cases where clear and direct evidence is presented to Growth News by the fining company.
- Ownership and Use Of Intellectual Property Rights
6.1 The Client acknowledges and Growth Track warrants that is the proprietor of the Intellectual Property in the Services and Materials.
6.2 Growth Track hereby grants to the Client a personal, non-exclusive and non-transferable licence to use the Materials and the Trade Mark for the duration of this Agreement for its own business purposes and strictly on these Terms.
6.3 Use of the Materials is on the following terms:
(a) “Use” of the Materials 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, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works or modify the Materials in whole or part except as permitted by law;
(c) The Client shall have no right to sell, rent, lease, transfer, assign or sub-licence the Materials to any third party;
(d) The Client shall have no right to make any representations, warranties or guarantees with regard to the Materials or Growth Track; and
(e) The Client acknowledges that the Materials will not be treated as goods within the meaning of the Sale of Goods Act 1979.
6.4 The Client undertakes not knowingly to do or permit to be done any act which would or might jeopardise, affect or invalidate any registration of the Intellectual Property, or application for such 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 Growth Track to the Intellectual Property.
6.5 All use of the Intellectual Property by the Client shall be for the benefit of Growth Track and any goodwill which may accrue to the Client from its use of the Intellectual Property or the Materials shall be assigned to Growth Track at its request at any time whether during or after the term of this Agreement.
Growth News owns all logos, graphics, software, algorithms, functionality, content (other than content owned by you or any third party), pages and features and processes that comprise the Growth News Service. You agree not to copy, modify, re-package, reverse-engineer, disassemble, modify or otherwise use the Growth News Service or its components in ways not explicitly allowed by this Agreement, without prior written consent from us. You also agree not to remove any proprietary notices or labels from the Growth News Service.
6.6 The Client shall only use the Trade Mark or any Growth Track branding in the form stipulated by Growth Track from time to time and shall observe all directions given by Growth Track as to colours and size and representations of the Trade Mark and branding 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.
6.7 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 Growth Track and the Client shall cease any use to the contrary as Growth Track may require.
6.8 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.
6.9 The foregoing obligations as to Intellectual Property rights shall remain in full force and effect notwithstanding any termination of this Agreement.
6.10 The Client shall as soon as it becomes aware thereof give Growth Track 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 Growth Track’s rights in relation to the Intellectual Property or to passing off.
6.11 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 as soon as reasonably possible give Growth Track full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
6.12 Growth Track shall have the conduct of all proceedings relating to the Intellectual Property 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 or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Client shall not be entitled to bring any action relating to the Intellectual Property in its own name.
6.13 The Client undertakes to indemnify and keep indemnified Growth Track against all losses, claims, fines, damages and expenses (including reasonable legal and professional expenses) of whatsoever nature (whether direct, indirect or consequential) arising as a result of or in connection with any infringement by the Client of Growth Track’s rights in respect of any Intellectual Property.
7.1 Subject to clause 7.2, neither party shall disclose at any time to any third party any information relating to the other party including information relating to: (a) Intellectual Property, software (including the Software), materials (including the Materials), products, systems, operations, processes, plans or intentions, product information, know-how and market opportunities; and (b) business, identity and affairs and the business, identity and affairs of its directors, officers, employees, clients and potential clients, suppliers, agents, or subcontractors and the like, which comes into the possession of the other party as a result of or in connection with the performance of this Agreement. Any bespoke amendments to these Terms agreed separately with the Client are also confidential.
7.2 The provisions of clause 7.1 shall not apply to any information which
(a) Is in or enters the public domain other than by a breach of clause 7.1; or
(b) Is in the possession of the receiving party without restriction in relation to disclosure before the date of its receipt in connection with this Agreement; or
(c) Is obtained from a third party who is lawfully authorised to disclose such information and is provided to the receiving party without any obligation of confidentiality; or
(d) Is authorised in advance for release by the disclosing party.
7.3 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
- Warranties and Liabilities
8.1 Growth Track warrants to the Client that the Services will be provided using reasonable care and skill.
8.2 Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury howsoever caused or for fraud.
8.3 Growth Track shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Material, which is incomplete, incorrect, inaccurate, and illegible, out of sequence or in the wrong form.
8.4 Without prejudice to clause 8.2 and save as expressly provided in these Terms, Growth Track shall not be liable to the Client by reason of any representation (unless fraudulent), or any duty at common law (including negligence), or under the express terms of this Agreement, for:
(a) Loss of profit;
(b) Loss of revenue;
(c) Loss of savings or anticipated savings;
(d) Loss of data;
(e) Loss of use of software or data;
(f) Loss or waste of management or staff time; and/or
(g) Any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Growth Track, its servants or agents or otherwise) in each case which arise out of or in connection with the provision of the Services or their use by the Client.
8.5 Without prejudice to clause 8.2, the entire liability of Growth Track under or in connection with this Agreement shall not exceed the amount of the charges received by Growth Track from the Client in the 12 month period immediately preceding the act or omission in respect of which any claim by the Client is brought under this Agreement.
8.6 The entire risk as to use and performance of the Services and Materials or the information therein or derived there from is with the Client. Accordingly, Growth Track does not warrant that the Services or Materials will meet the Client’s requirements. Except as expressly stated in this Agreement, the Services and Materials are provided on an “AS IS” basis only. Accordingly and to the maximum extent permitted by applicable law, Growth Track hereby disclaims all warranties and conditions, whether express, implied or statutory, regarding the Services and Materials, including, but not limited to, any warranty of merchantability, satisfactory quality or fitness for a particular purpose.
8.7 Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liability. Accordingly, some of the exclusions of warranties and/or the limitations and exclusions of liability may not apply to the Client.
- Force Majeure
9.1 Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of charges) under this Agreement cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, failure of communication facilities, default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security), obtain materials or supplies and, in all cases, the inability to do so except at increased prices (whether or not due to such causes). However, if such circumstances persist for more than 28 days, the non -defaulting party may terminate this Agreement and all charges due to Growth Track up to the date of termination shall become due.
- Duration, Suspension and Termination
10.1 Growth Track may suspend the provision of Services in accordance with the provisions of clause 3.9 and 3.10 above.
10.2 Growth Track may suspend the provision of Services to the Client if its account remains inactive for a period of 13 months or more.
10.3 Growth Track may suspend the Services (or any part thereof) at any time without notice if in the reasonable opinion of Growth Track the use of the Services by the Client damages, or threatens, to damage the security or stability of the Site, Software, and/or services provided by Growth Track to other clients, or damages the reputation and goodwill of Growth Track due to the actions of the Client, and this shall include any use of the email services by the Client.
10.4 Growth Track may suspend or terminate (at Growth Track’s reasonable discretion) this Agreement (and Services) forthwith on giving written notice if:
(a) Notwithstanding sub-clause
(b) Below, the Client breaches its obligations under clauses 4.3, 4.4 or 5.1 to 5.4 inclusive; or
(c) if the Client commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice so to do; or
(d) if the Client becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend trading, wind up or dissolve the Client other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading.
(e) 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.
10.5 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under this Agreement and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including the warranties and indemnities contained in this Agreement.
10.6 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.
10.7 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.
10.8 The period during which we may suspend the Services will continue until the circumstances giving rise to our right to suspend the Services ceases to subsist or until this Agreement is terminated in accordance with these terms.
10.9 In the event we take action under this section, you will continue to be obliged to pay any charges owing or that arise during the period when the Service is suspended.
10.9.1 Where the provision of Services to the Client has been suspended Growth Track reserves the right to charge a £30.00 (thirty pounds) administration fee for reconnection or any resumption of the provision of the Services.
- Effects of Termination
11.1 Upon termination of this Agreement for whatever reason: (a) there shall be no refund of any element of the charges; (b) all unpaid charges shall become immediately due (including on a pro rata basis where part of a periodic charge which is charged in arrears is due); (c) Growth Track will be under no obligation to retain any data (including personal data); and (d) the Client shall cease using the Trade Marks, any Growth Track branding and the Materials.
12.1 In the event of any dispute arising between the parties in connection with this Agreement, senior representatives of the parties shall, within 10 days of written notice being given by either party to the other, meet in good faith at a reasonable venue within 15 miles of Central London in an effort to resolve.
12.2 Any proceedings relating to any dispute shall take place in England and shall be conducted in the English language.
- Transfer and Subcontracting
13.1 Growth Track may at its reasonable discretion and upon reasonable prior notice to the Client assign, transfer, sub- contract or deal in any other manner with all or any of its rights under this Agreement or any part thereof to a third party. If after two months the Client can demonstrate with specific examples that the standard of the Services is materially and consistently worse than prior to such assignment the Client may terminate this Agreement on providing one month’s written notice.
13.2 The Client may not assign, sub-contract, sub-licence or otherwise transfer any rights or obligations under this Agreement or any part thereof without the prior consent in writing of Growth Track.
- Communication and Notices
14.1 Valid notices may be sent by email by either Party, The Client hereby undertakes to have, and keep Growth Track informed of, a valid and regularly monitored contact email address for the duration of this Agreement. The Client will be deemed to have accepted notices sent to this contact email address and Growth Track may act on that basis. Unless otherwise notified to the client Growth Track’s contact email address is firstname.lastname@example.org
14.2 Notices or proceedings relating to a dispute shall be given by post addressed to the other party at its registered office or principal place of business as may at the relevant time have been notified. Other notices required to be given by either party to the other under the terms of this agreement may be given in writing by post or by email.
14.3 Any such notice shall be deemed to have been received:
(a) if delivered personally, at the time of delivery, If sent by post within the United Kingdom, 2 Business Days after posting; and
(b) If sent by airmail 5 Business Days after posting; providing that if deemed receipt occurs before 9am or after 5pm on a Business Day then the notice shall be deemed to have been given on the next Business Day. For the purposes of this clause on a “Business Day” means any day which is not a Saturday, Sunday or a public holiday in England and/or the place to which the notice is sent.
15.1 The Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of this Agreement Nothing in this clause 15.1 or any other provision in this Agreement shall operate to exclude or limit either party’s liability for fraud.
15.2 Growth Track may at its reasonable discretion, change or modify the Terms or Services upon giving the Client 30 days’ notice of the same either by email or notification on the website. Within 14 days of receiving such notice the Client may notify Growth Track in writing that it wishes to terminate this Agreement with effect from the date of any proposed change to the Terms or Services and Growth Track may then choose to alter the Terms or Service or withdraw the notice. If no such notice is received, the Client shall be deemed to have accepted the changes made by Growth Track.
15.3 Each party warrants to the other that they have the power and authority to enter into this Agreement and perform its obligations under this Agreement.
15.4 The Agreement shall not be deemed to create any partnership or employment relationship between the parties.
15.5 Save for any holding company, subsidiary or associated company of Growth Track and any proprietor of the Intellectual Property, a person who is not party to this Agreement shall have no rights (under the Contracts (Rights of Third Parties) Act 1999) or otherwise to enforce any term of this Agreement and the provisions of that Act are hereby expressly excluded. For the purposes of this clause, the words “subsidiary” and “holding company” have the meanings given to them by section 736 of the Companies Act 1985 (as amended).
15.6 No act, failure or delay to act, or acquiescence by Growth Track or the client in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right or in any way prejudice any right of Growth Track or the client under this Agreement, and no waiver by Growth Track of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation whether partly or wholly of any of the terms or conditions of this Agreement shall be valid only if in writing and signed by or on behalf of Growth Track and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of this Agreement.
15.7 If any provision of this Agreement is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
15.8 This Agreement and these terms are subject to the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.