Terms and Conditions of use

1. Definitions

"Agreement" means a contract for the supply by Xtremepush UK to the Customer of the Services incorporating these terms and conditions and the terms of any Service Offerings selected by the Customer.

"Campaign" means the campaign more fully described in the Service Agreement

"Customer" means the legal entity accepting Xtremepush UK's written or oral quotation for the supply of Services or whose order for Services is accepted by Xtremepush UK or the party otherwise commissioning the Services in each case as named in the Service Agreement.

"Customer Content" means the material that the Customer supplies to and authorises Xtremepush UK to transmit to the Customer's Recipients or which the Customer transmits directly to the Recipients.

"Contract Period" means the minimum period as described in the Service Agreement or Contract document.

"Products" means cloud based software owned by Xtremepush UK and licensed to the Customer. This product is titled Maxemail.

"Xtremepush UK" means Emailcenter UK t/a Xtremepush UK Limited, No 04254916, West Tithe, Pury Hill Business Park, Alderton Road, Towcester, Northants, NN12 7LS its sub-contractors, agents and licensors as the case may be.

"Normal Working Hours" means 9:00am to 5:30pm Monday to Friday excluding Bank Holidays and other public holidays.

"Price" means the charge for the Services.

"Service Agreement" means the document sent by Xtremepush UK to the Customer, detailing the Service Offerings and the Prices for the Services and containing, recording and evidencing contractual terms relating to the Agreement.

"Recipient" A single recipient as defined as one e-mail address in the e-mail list

"Service Offering(s)" means the service options offered by Xtremepush UK more fully detailed in the Service Agreement.

"Services" means the services to be performed by Xtremepush UK pursuant to the Service Offering selected by the Customer.

"Spam" means unsolicited email.

2. Services

2.1 Xtremepush UK shall supply and the Customer shall purchase the Services as principals only, with the intent and with the effect that no other party shall have any rights or obligations, or be entitled to sue or liable to be sued, under the Agreement.

2.2 The Services are supplied subject to the terms and conditions of this Agreement to the exclusion of any other terms and conditions of the Customer and any variations or amendments must be confirmed by Xtremepush UK in writing.

2.3 The supply of Services will start on the agreed date as shown on Xtremepush UK's Service Agreement.

2.4 Customers who have purchased a license for the Inbox Preview module (Optional) shall be also bound by the Litmus terms and conditions of use. See http://litmus.com/terms

3. The Service Offerings

3.1 Services are provided in accordance with the provisions contained in the Service Offering selected by the Customer, as shown on the Service Agreement.

3.2 Xtremepush UK will use reasonable endeavours to meet relevant transmission dates and times.

3.3 The Customer agrees that Xtremepush UK shall not be liable for any direct, indirect or consequential losses occurring as a result of Xtremepush UK's failure to meet relevant transmission dates and times except as set out below.

3.4 The Customer agrees that Xtremepush UK may include a disclaimer and notice of the services of Xtremepush UK with any customer material. Xtremepush UK will not implement without notifying the customer.

3.5 Xtremepush UK shall ensure that any personal data as defined by the Data Protection Act 2018 (DPA 2018) provided by the Customer to Xtremepush UK, or a third party processing the data on behalf of Xtremepush UK, is processed in accordance with the DPA 2018 the General Data Protection Regulation 2016/679 (GDPR).

4. Exceptions

4.1 Xtremepush UK shall be under no obligation to supply the Service where, in Xtremepush UK's reasonable opinion, the Customer Content constitutes Spam or where it contains pornographic, undesirable or offensive material or which may in any way affect the Recipient's rights or be contrary to any legislation or be contrary to the rules adopted by any internet service or web hosting provider used by Xtremepush UK.

4.2 The Services do not include the correction or avoidance of software defects or errors or the loading or re-loading of Customer's applications software or data or any reconfiguration of the Customers computers.

5. Customer's Obligations

5.1 The Customer shall provide and approve the Customer Content of the Campaign and may provide a list of the e-mail addresses of its recipients and shall provide Xtremepush UK with all reasonable facilities and information to enable Xtremepush UK to perform its duties.

5.2 The Customer shall not use the Services (and shall ensure that the Services are not used):

5.2.1 to send, receive, make available, copy, retransmit, broadcast or publish (whether directly or indirectly, and whether in cached, mirrored or proxy form or otherwise) any statements or material which:
(i) infringe any copyright, moral right, patent or other proprietary (including, without limitation, intellectual property) right of any person or entity, or

(ii) which infringe any applicable law, regulation or right of any person or entity including, without limitation, rights under contracts and of confidence, laws relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights, malicious falsehood, seditious libel and any equivalent or related laws in any territory in which they are (or may be) accessed or made available; or

(iii) are (or may, in places where they are accessible or made available) offensive, abusive, indecent, obscene, or menacing or which are likely to encourage or be capable of encouraging anything which is in any way unlawful, or to incite violence, sadism, cruelty, or racial hatred, or which promotes or facilitates prostitution, or which are likely to mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise; or

(iv) are contrary to the rules adopted by any internet service or web hosting provider used by Xtremepush UK.

5.2.2 to cause annoyance, inconvenience, or needless anxiety.

5.2.3 in a manner which occupies communications capacity or bandwidth frivolously, vexatiously or in a manner which is intended to or may inhibit any other person's use thereof (including, without limitation, by use of facilities intended to or which have the effect of substantially filling the communications capacity of communications networks).

5.2.4 to send Spam. The Customer must have explicit permission from all destination addresses before sending an email in any quantity. The Customer may not assume that he has been granted permission by passive actions such as the posting of an article to a web site or a visit made to Customer's web site. Where the Customer has acquired explicit permission, either on a web site or through some other relationship the Customer should keep a record of this permission and must cease sending email when requested to stop.

5.3 You are solely and fully responsible for the content of communications sent by you or on your behalf through our platform.

5.4 The Customer undertakes to use and include in each message Xtremepush UK's Unsubscribe or Redirected Unsubscribe or a correct and appropriate method for the recipient to opt out of further communication.

5.5 Customers shall be responsible for complying with all their customer applicable regulatory requirements.

5.6 Except for Customers using the Product(s) directly, the Customer shall check and validate the content of their message on receipt of a test e-mail and will authorise acceptance and give permission to start the Campaign by issuing authorisation by e-mail.

5.7 You may not submit through our Services any social security number, passport number, driver's license number, or similar identifier, credit card or debit card number, employment, financial or health information, or any other information which may be subject to specific data privacy and security laws, without our prior written approval.

6. Price and payment

6.1 Payment shall be made in full (without deduction by way of set off or counterclaim) on or before the date contained in the Service Agreement or, if agreed at the time of order, within 30 days of the date of Invoice.

6.2 The Price of the Services shall be Xtremepush UK's quoted price, or where no Price has been quoted (or a quoted Price is no longer valid), the price listed in Xtremepush UK's published price list current at the date of the Customer's order and in any case as shown on the Service Agreement.

6.3 All Prices quoted in writing are valid for 30 days. Oral quotations are valid only to the end of the business day upon which they are given.

6.4 The Price and any additional charges payable under the Agreement are exclusive of all sales taxes including Value Added Tax.

6.5 Time for payment is of the essence. Xtremepush UK reserves the right to charge interest on sums more than 7 days overdue on a day to day basis, as well after as before any judgment, from the date or last date for payment thereof to the date of actual payment (both days inclusive) at the rate of 2% above the base rate of Barclays Plc from time to time in force, compounded quarterly. Such interest shall be paid on demand. Until payment has been made in full Xtremepush UK shall have a lien on all data results and material of the Customer in its possession.

6.6 Email Credit Price. The agreed price per email credit is defined in the Service Agreement, this will be defined as Cost per Email Credit or CPM rate (Cost per thousand email credits)

6.7 Email Credit. This is defined as an email with a total size of up to 100 Kilobytes (including attachments - applies to transactional emails only). Emails above 100 Kilobytes can be transmitted by agreement, these will use additional email credits.

Email credits are used in whole numbers. Ie. A single 101KB triggered/transactional email counts as 2 credits; email campaigns are calculated cumulatively, so the same 101KB email sent to 100 recipients would use 101 email credits.

6.8 SMS Credit Price. The agreed price per SMS credit is defined in the Service Agreement, this will be defined as Cost per SMS.

6.9 SMS Credit. This is defined as an SMS message with a total character count of 160 GSM 03.38 7-bit alphabet characters. SMS credits are used in whole numbers, based on the number of characters in the SMS message, i.e. a single SMS message containing 161 characters will be split into 2 SMS messages and will be charged at 2 SMS credits and so on. Where an SMS message is split into two or more parts, other considerations contribute to the allowable message size per part, for example message part headers. Character outside of the GSM 03.38 7-bit alphabet will also reduce the allowable character count per part.

7. Support

7.1 Xtremepush UK provides telephone and email support for the Services. This support is available to Customers during Normal Working Hours and is chargeable at Xtremepush UK's standard rate from time to time.

8. Warranty

8.1 Xtremepush UK does not give any warranty as to the response to any Campaign or that the Campaign is fit for any particular purpose and this is in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade, usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.

8.2 The Customer warrants that the Customer Content shall not infringe any third party's intellectual property rights or the right of publicity or privacy of any third party or violate any laws nor contain defamatory trade libellous, threatening, unlawful, harassing material, pornographic or obscene material or violate any laws regarding unfair competition, anti discrimination, false advertising or consumer protection, nor shall it contain any viruses or any other similar, harmful or deleterious programming routines.

9. Liability

9.1 Xtremepush UK shall not be liable for any loss or damage sustained or incurred by the Customer or any third party resulting from any distribution of the Customer Content of any material supplied to Xtremepush UK, unless it is caused by the negligence or wilful misconduct of Xtremepush UK, its employees, agent or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Xtremepush UK in providing the relevant Services and then only to the extent not excluded by the Agreement.

9.2 The Customer shall indemnify Xtremepush UK and keep Xtremepush UK indemnified against any loss of or damage caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations.

9.3 The Customer shall indemnify Xtremepush UK and keep Xtremepush UK indemnified against any costs, claims, losses and direct damages which Xtremepush UK may suffer as a result of the Customer sending Spam to Recipients, including but not limited to losses incurred as a result of a server being blocked because of this Spam.

9.4 Xtremepush UK shall not be liable for any loss sustained by the Customer arising from a server being unavailable to Xtremepush UK for any reason (including but not limited to server or ISP services being unavailable to Xtremepush UK as a result of another customer sending Spam to Recipients).

9.5 The liability of Xtremepush UK under sub-clause 9.1, in respect of each event or series of connected events shall not exceed the Price.

9.6 Notwithstanding anything else contained in the Agreement, Xtremepush UK shall not be liable to the Customer for loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

9.7 For the SMS Module, We expressly do not guarantee that electronic communications sent by you through our platform are received properly and on time by the end-user. You acknowledge in this respect that the Maxemail platform only operates as a conduit for the transmission of electronic communications. Our Services do not extend to the actual delivery and receipt of electronic communications, but are limited to the proper functioning of our platform.

10. Force Majeure

10.1 Neither party shall be liable for any delay in performance caused by circumstances beyond its reasonable control (including but not limited to server or ISP services being unavailable to Xtremepush UK) and the party in delay shall be entitled to a reasonable extension of time to rectify any delay in performance.

11. Intellectual Property Rights

11.1 Each party will indemnify the other against all costs, claims, demands, expenses and liabilities arising out of or in connection with any claim emanating from distribution of the material supplied by the Customer or which infringes the intellectual property rights (including without limitation any patent, copyright, registered design, design right or trade mark) or the goodwill, marketing methods, style of business or customer lists of the Customer or any third party.

12. Confidentiality

12.1 The parties to this agreement will at all times keep confidential information whether it is marked "confidential" or the equivalent or has the necessary quality of confidence about it or not, and acquired in consequence of this agreement, except for information to which they may be entitled or bound to disclose under compulsion of law or where requested by regulatory agencies or to their professional advisers where reasonably necessary for the performance of their professional services and except for information which is already in the public domain other than by breach of this Agreement.

13. Termination

13.1 The Agreement may be terminated forthwith by written notice from either party if;

(i) the other commits any material breach of any of the terms of the Agreement and, if capable of remedy, shall have failed within 30 days after the service of a request in writing from the other party to do so, to remedy the breach (such notice to detail the breach and to contain a warning of such party's intention to terminate); or

(ii) the other becomes insolvent or bankrupt or is otherwise unable to pay its debts as they fall due; or

(iii) the Agreement may be terminated at any time after the end of the contract period a minimum of 30 days after the service of a request in writing from the Customer.

13.2 The Agreement may be terminated forthwith by written notice from Xtremepush UK if the Customer fails to pay any sum due and such sums remain unpaid for 14 days after written notice from Xtremepush UK that such sum has not been paid.

14. Entire Agreement

14.1 The Agreement supersedes all prior agreement, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.

14.2 The Customer warrants to Xtremepush UK that it has not been induced to enter into the Agreement by any prior oral representation (whether innocently or negligently made) except as specifically contained in the Service Agreement.

15. Assignment

15.1 Xtremepush UK may sub-contract all or any of its obligations under the Agreement to a competent third party. Except for this, neither party shall assign or otherwise transfer any of its rights or obligations.

16. Notices

16.1 All notices must be in writing and sent to the address of the recipient set out in the Agreement or the recipient's registered office or such other address as the recipient may designate.

16.2 Any such notice may be delivered personally or by email and shall be deemed to have been served if by hand or email when delivered.

16.3 Any notice concerning the validity or existence of the Agreement must be delivered personally or sent by email.

17. Severance

17.1 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provisions in question shall not be affected.

18. Third Parties

18.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this Clause 18 does not affect any right or remedy of a third party which exists or is available apart from that Act.

19. Law and Jurisdiction

19.1 The Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the jurisdiction of the English Courts.

Emailcenter UK t/a Xtremepush, Co-Space Elder House, 590-598 Elder Gate, Milton Keynes, MK9 1LR
Email: [email protected] | Tel: +44(0)1327 811884 | www.xtremepush.com
Registered in England 4254916

Revision 20 - July 2024