In these Terms the capitalised terms set out below shall have the following meanings:
“Associated Company” means a company belonging to the same group as either party;
“Charges” means dotdigital’s charges for the Services as set out in the Service Agreement together with such other additional charges as may be agreed between the parties from time to time, including purchases made by the Client through the Software;
“Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to Messages in the countries in which the Client operates and/or in which recipients of Messages sent using the Services are located (including, without limitation, the Committee of Advertising Practice Code (CAP Code), Spamhaus best practice guides, DMA best practice guides, applicable guidelines published by the CTIA, the Mobile Marketing Association and also including, without limitation, any requirements or practices in relation to telemarketing such as a telephone preference service regime, ‘do not call’ regime) (as is relevant) as may be revised or adopted in relation to marketing best practice ;
“Data Processing Agreement” means the addendum to these Terms found at https://www.dotdigital.com/terms/data-processing-agreement/;
“Data Protection Laws” means: (a) in relation to the Client all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (and state where applicable) in which the Client signing a Service Agreement is located and all countries (and states where applicable) in which recipients of Messages sent via the Services are located, including but not limited to the CAN-SPAM Act 2003 and Canada’s anti-spam legislation (CASL) and, in Singapore, the Spam Control Act (Cap. 311A) and the ‘Do Not Call’ regime established by the Personal Data Protection Act (No 12 of 2012); (b) in relation to dotdigital all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (or state where applicable) in which the dotdigital entity signing a Service Agreement is located;
“dotdigital” means the dotdigital entity specified on a Service Agreement whose details are outlined below:
(a) dotdigital EMEA Limited, whose registered office is at No 1 London Bridge, London, SE1 9BG (registered in England and Wales under company number 03762341 and VAT number GB 945 651 305); or
(b) dotdigital, Inc., with its main office at Floor 18, 333 7th Avenue, New York, 10001, USA (registered in Delaware under file number 5207163); or
(c) dotdigital APAC Pty Ltd, with its main office at 60/2 O’Connell Street PARRAMATTA NSW 2150, Australia (registered in New South Wales under ACN 606 847 330);
(d) dotdigital B.V., whose registered office is at 15 Hoogoorddreef, Amsterdam 1101 BA, Netherlands (registered in Amsterdam under company number 75737264); or
(e) dotdigital SG Pte. Ltd., with its registered office at Level 17, Frasers Tower, 182 Cecil Street, 069547, Singapore (Singapore company registration no. 201837123N).
“Initial Term” means the fixed term, minimum term or initial term set out in the Service Agreement;
“Intellectual Property” means any and all patents, copyrights (including future copyrights), design rights, trade marks, Trade Mark, 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 dotdigital, or its Associated Companies;
“Material” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to dotdigital but for the avoidance of doubt does not include material belonging to the Client;
“Messages” means communications and content sent using the Services by Clients to recipients, including, but not limited to, emails and SMS.
“Permission-based Marketing Policy” means dotdigital’s permission-based marketing policy, available at https://dotdigital.com/terms/permission-based-marketing-policy/;
“Renewal Period” means twelve (12) months;
“Service Agreement” means the Service Agreement confirming the Level of Services you are purchasing and incorporating these Terms;
“Services” means the provision of the dotdigital data processing services and Software for use by the Client according to the Service Agreement whereby: (a) dotdigital provides the Software to manipulate the personal data collected; (b) dotdigital provides the facilities for the Client to send Messages to data subjects who have expressly consented to the Client sending them such Messages (except where otherwise agreed to by dotdigital); and (c) dotdigital provides facilities for the Client to export personal data together with such other services agreed between dotdigital and the Client from time to time or ancillary to the Services;
“Site” means dotdigital’s website at www.dotdigital.com;
“Software” means dotdigital’s data management and manipulation software;
“Trade Mark” means the ‘dotdigital’ unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of dotdigital or of any Associated Companies or third parties provided or used as a part of these Services or any application for registration anywhere in the World;
“Working Day” means Monday to Friday excluding statutory holidays in the country in which dotdigital is located; and
“Working Hours” means 9.00 to 18.00 on a Working Day in the time zone in which dotdigital is located.
Subject to clause 14, any reference in these terms to ‘writing’ or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.
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.
2. Supply of the Services
dotdigital uses third parties to host the dotdigital application servers for the provision of the Services. The Client hereby consents to dotdigital using data centres located in either the EU, the USA or Australia for the provision of the hosting services. A list of locations can be found at www.dotdigital.com/trust (as updated from time to time). Client account data is, by default, hosted at rest in the aforementioned data centre location that is local to the Client.
Although dotdigital does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of Messages will be without delay, dotdigital will provide the Services and maintain security measures in accordance with industry best practice. The Services will be available with 98% uptime in any calendar month, excluding scheduled maintenance and emergency maintenance. The Client’s sole remedy for any failure by dotdigital to meet the availability as stated herein shall be a service credit for the relevant calendar month calculated on the following basis:
It may be necessary for dotdigital to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services. dotdigital will use its reasonable endeavours to provide the Client with at least 48 hours’ notice of any temporary suspensions of the Services and to undertake any scheduled and planned maintenance or repair work outside of Working Hours in order to minimise disruption to the Services provided to the Client. Such communications will be made via status.dotdigital.com to which the Client may subscribe to automated alerts. However, dotdigital reserves the right to carry out urgent maintenance or repair work at any time where it would be unreasonable, in dotdigital’s opinion, to delay repairing the Services taking into account the interests of the Client. Services may also be suspended in whole or in part where dotdigital or any 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. Except for the service credit procedure contained in clause 2.3, dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.4.
dotdigital cannot guarantee the delivery of Messages to any recipient under the Services, as this is dependent upon accurate and up to date recipient contact information, suitable internet availability and connectivity, on various anti-spam and junk mail policies adopted by recipient service providers as well as restrictions regarding the content, wording and graphics of a Message. dotdigital will use reasonable endeavours to assist the Client with methods to maximise the delivery rate of Messages, however dotdigital makes no representations or warranties whatsoever about the speed or number of Messages sent that will be received by recipients. dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.5, except due to dotdigital’s error or omission causing any Messages not to be sent via the Services.
dotdigital will ensure that Clients will have access to dotdigital’s support team, where support may be provided by either email or phone.
3. Charges, Invoicing and Payment
The Client shall pay the Charges in accordance with these Terms, in the currency in which Charges are specified in the Service Agreement. Where Client pays the Charges in an alternative currency to that specified, Client shall also be responsible for the payment of currency conversion charges incurred by dotdigital.
After expiry of the Initial Term, dotdigital may alter the level of Charges or the payment terms by giving the Client 30 (thirty) days’ written notice. Within 30 (thirty) days of receiving such notice, the Client must notify dotdigital in writing if it does not accept the changes, otherwise the changes will be deemed accepted. If the Client gives notice of any objection as aforementioned the parties shall attempt to mutually agree the changes to be made to the Terms and if the parties cannot agree within 30 (thirty) days of the notice of objection being served, either party may terminate these Terms by giving the other 90 (ninety) days’ notice in writing. Note that unless agreed otherwise on a Service Agreement, changes relating to SMS charges may be amended on 14 (fourteen) days written notice to the Client.
All Charges quoted to the Client for the provision of the Services are exclusive of any applicable tax, for which the Client shall be additionally liable at the applicable rate from time to time. The Client shall pay all Charges without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, the Client shall, when making the payment to which the withholding or deduction relates, pay to dotdigital such additional amount as will ensure that dotdigital receives the same total amount that it would have received if no such withholding or deduction had been required.
dotdigital will invoice the Charges to the Client on a monthly basis on the last day of each calendar month.
No payment shall be deemed paid until dotdigital receives payment in cleared funds from the Client.
If the Client fails to pay dotdigital any Charges due pursuant to these Terms, then dotdigital shall be entitled to: (a) charge interest (both before and after any judgment) on the outstanding amount at the rate of 3% above the base rate of Barclays Bank plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full; and (b) recover from the Client any amount incurred by dotdigital utilising any third party debt agency due to the Client’s failure to pay any Charges due.
If the Client fails to pay any sums due to dotdigital and if 5 (five) days after being sent a payment reminder notice by dotdigital any sums remain unpaid, dotdigital reserves the right to:
(a) disable the account; and
(b) temporarily suspend the provision of the Services to the Client until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services will be reinstated.
In the event of an invoice being disputed by the Client for valid and reasonable grounds, dotdigital agrees to continued provision of the Services whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 12.1, provided that the undisputed portion of any relevant invoice is paid. If the Client disputes any portion of an invoice based upon usage of the Services, the Client accepts that dotdigital’s records of such usage are correct unless proven otherwise by an independent expert.
4. Data & Data Protection
Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Agreement.
Personal data is derived from data provided by the Client and is not checked or monitored by dotdigital. dotdigital has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, content or use of such personal data under this clause 4.2, provided that such use is in accordance with the instructions of the Client and dotdigital’s obligations set out in these Terms.
dotdigital has no responsibility or liability for the back-up of Client data and, although dotdigital makes daily back-ups, the Client remains responsible for making its own back-ups, particularly but not limited to when the Client adds a significant amount of data to the Services over a period of 24 hours.
dotdigital shall not use any Client data or materials except in connection with the provision of Services to the Client:
(a) as set out in these Terms; or
(b) as required by law, regulation or regulatory body or any court of competent jurisdiction.
The Client shall:
(a) ensure that it is appropriately registered with any applicable data protection authority
(b) take appropriate organisational and technical measures against unauthorised or unlawful processing;
(c) obtain where appropriate express, specific and informed consent when obtaining personal data from individuals;
(d) keep full records of Message recipients’ opt-in/opt-out choices regarding unsolicited Messages;
(e) ensure that it obtains all necessary consents from Message recipients in respect to transferring data to the hosting location specified at clause 2.2 herein these Terms.
In the event of any conflict between the Data Processing Agreement and these Terms, the provisions of the Data Processing Agreement shall take precedence.
The Client warrants that it shall not:
(a) use the Services in breach of dotdigital’s Permission Based Marketing Policy;
(b)forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Services;
(c) use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing or which infringes the Intellectual Property, proprietary or personal rights of any third party;
(d) misuse or attack the Site of Services via a denial-of-service attack or by introducing viruses, trojans, worms, logic bombs or other material which is technologically harmful or;
(e) 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.
The Client warrants that it shall:
(a) comply and ensure that its use of the Services complies with all Codes applicable to the country in which the Client is registered and recipients of Messages reside;
(b) provide all reasonable assistance required by dotdigital to enable dotdigital to comply with any requirements or conditions imposed by such Codes;
(c) provide, dotdigital, relevant authority, user group or regulator of the Codes with all information or material reasonably requested in order to carry out any investigation in connection with the Client’s use of the Services; and
(d) not use the Services to upload or send to records purchased, rented or acquired from a third party in any way.
dotdigital has no responsibility or liability whatsoever howsoever arising directly or indirectly to the Client for the content of any Messages sent using the Services or Messages being sent to recipients in breach of the Client of its obligations contained in this clause 5.2.
In relation to email Messages sent using the Services, Client warrants that:
(a) it will identify itself in every email according to applicable law, but at least with postal address, register number, phone number, email address data and tax registry, where applicable; and
(b) it will not use the 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 without notice and with immediate effect and no refund of Charges or other payments to dotdigital will be made. Unsolicited bulk email support services may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (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.
dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.3.
In relation to SMS Messages sent using the Services, Client warrants that
(a) it will not attempt to use Services to access or allow access to emergency services or impersonate any other entity; and
(b) if Client has purchased a short code, then Client will not change the use of that short code from the use stated in any documentation in relation to approval of the short code without first obtaining an amendment to any application for approval of the short code under the new use.
Further, should Client make use of a long telephone number(s), dotdigital reserves the right to reclaim any phone number from Client’s account if, in dotdigital’s reasonable opinion, Client does not send sufficient traffic over that phone number such that the phone number is underutilized. dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.4.
The Client shall indemnify dotdigital against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by dotdigital arising out of a breach of the obligations in 5.1 to 5.4 above. This indemnity shall not cover dotdigital to the extent that a claim under it results from dotdigital’s negligence or wilful misconduct.
dotdigital monitors Messages created by the Client. If dotdigital considers in its reasonable opinion that the Client is sending Messages in breach of clause 5.1 to 5.4 above, dotdigital may at its absolute discretion (taking into account the Client’s track record of use of the Services):
(a) suspend provision of Services;
(b) block Client’s access to the Services for such time as in each case is reasonable; and
(c) add any recipient contact details to its global suppression list (“GSL”). dotdigital will usually provide the Client with prior notice of any suspension, blocking or addition of an email to the GSL, unless immediate action is necessary in the circumstances. dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.5.
Where dotdigital suspends or blocks access to the Services pursuant to clause 5.5 above, a member of the dotdigital compliance team shall contact the Client to:
(a) inform the Client of the action taken or proposed action (where applicable) giving rise to the suspension;
(b) explain why the access to the Services is suspended or blocked;
(c) to inform the Client of the remedial actions that the Client needs to take to rectify the issues with the Client’s use of the Services;
(d) inform the Client of any applicable de-listing fee payable to dotdigital (if necessary and determined in dotdigital’s sole discretion); and
(e) to agree on the timescale for the Client to take the necessary remedial actions.
dotdigital shall only reactivate the Services once the Client has taken the remedial actions. If the Client fails to take the remedial actions within the timescale agreed, dotdigital reserves the right to terminate these Terms upon giving notice to the Client and the Client shall become immediately liable to pay all outstanding fees for remainder of the unexpired Term.
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 dotdigital immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities resulting from use of the Client’s password or account. The Client will not permit any person to access the Services for any unauthorised purpose that would constitute a breach of these Terms.
Without prejudice to its other rights in these Terms dotdigital reserves the right to prevent the sending of any Messages 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, where the content is in dotdigital’s reasonable opinion a breach of these Terms. dotdigital accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.8.
The Client is not permitted to conduct vulnerability scanning, or any form penetration testing against the dotdigital Services or application servers. dotdigital shall provide Client with the results of dotdigital’s own penetration tests upon written request.
6. Ownership & Use of the Intellectual Property Rights
dotdigital warrants that to the best of its knowledge:
(a) dotdigital is the proprietor of the Intellectual Property and Materials supplied during the course of providing the Services; and
(b) the Intellectual Property and Materials provided by dotdigital do not infringe the intellectual property rights of any third-party.
Subject to the Client’s compliance with the rest of this Clause 6, dotdigital shall indemnify the Client against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Client arising from a breach of clause 6.1. This indemnity shall not cover the Client to the extent that a claim under it results from use of Client’s intellectual property.
dotdigital hereby grants to the Client a personal, non-exclusive and non-transferable licence to use the Intellectual Property and/or Materials for the duration of these Terms strictly in accordance with these Terms only. The Client shall not be entitled to use the Intellectual Property and/or Materials for any other purpose than the use of the Services, including, without limitation, that the Client shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works, modify, sell, rent, lease, transfer, assign, sub-licence, make any representations, warranties or guarantees with regard to the Intellectual Property and/or Materials in whole or part except as permitted by law.
The Client shall only use the Intellectual Property and/or Materials or any dotdigital branding in the form stipulated by dotdigital from time to time and shall observe all directions given by dotdigital 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 materials.
The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its Services or use the Trade Mark as part of any corporate business or trading name or style. dotdigital may use the Client’s trade marks for publicity purposes only in a form and manner approved by the Client in writing in advance. dotdigital may not refer to the Client in dotdigital’s marketing and advertising communications, without first obtaining consent.
If the Client becomes aware that any other person, firm or company alleges that the Intellectual Property and/or Materials is invalid or that use of the Intellectual Property and/or Materials infringes any rights of another party or that the Intellectual Property and/or Materials is otherwise attacked or attackable the Client shall as soon as reasonably possible give dotdigital full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
dotdigital shall have the conduct of all proceedings relating to the Intellectual Property and/or Materials 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 but shall reasonably assist dotdigital upon dotdigital’s reasonable request. dotdigital agrees to reimburse the Client’s reasonable expenses incurred in complying with clauses 6.6 and 6.7.
Subject to clause 7.2, neither party shall disclose at any time during the Term or for a period of ten (10) years after termination, to any third party any information relating to the other party including information relating to:
(a) Intellectual Property, intellectual property, software, the Software, materials, 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, customers and potential customers or personal data relating to customers, 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 these Terms (collectively, “Confidential Information”).
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 these Terms; 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;
(d) is authorised in advance for release by the disclosing party; or
(e) may be required to be disclosed under applicable legislation or the order of a Court or other competent authority.
The parties shall ensure that any Confidential Information which it receives from the other shall be held with the same degree of care as that party’s own Confidential Information.
8. Limitation of Liability and Indemnity
This clause 8 sets out the entire financial liability of either party to the other (including any liability for the acts or omissions of a party’s employees, agents, consultants, and subcontractors) in respect of:
(a) any breach of these Terms;
(b) any use of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Terms.
Other than where expressly stated, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.
Nothing in these Terms limits or excludes the liability of either party:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;
(c) for any indemnities provided under these Terms; or
(d) for any other liability which cannot be excluded by applicable law.
Subject to clauses 8.2, 8.3, and where expressly stated:
(a) neither party shall be liable to the other under these Terms for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution arising in connection with the performance, or contemplated performance, of these Terms shall be limited to the Charges paid or payable under the Initial Term or then-current Renewal Term, in total in respect of any single claim or series of connected claims brought by either party under these Terms.
If any third party makes a claim, or notifies an intention to make a claim, against either party which may reasonably be considered likely to give rise to a liability under any indemnity provided under these Terms (a “Claim”), the indemnifying party shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, specifying the nature of the Claim in reasonable detail; and
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnifying party (such consent not to be unreasonably withheld), provided that the indemnifying party may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the claiming party.
Nothing in this clause shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 8.
9. Force Majeure
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 these Terms 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, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Site, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities, unavailability of the internet. However, if such circumstances persist for more than 14 (fourteen) days, the non-defaulting party may terminate these Terms and all Charges due to dotdigital up to the date of termination shall become immediately due and payable.
10. Term, Suspension and Termination
dotdigital shall provide the Services set out in the Service Agreement and (where applicable) as purchased by the Client through the Software to the Client for the Initial Term. For the avoidance of doubt, any purchases made through the Software shall run coterminous with those set out in a Service Agreement. Upon expiry of the Initial Term, the Service Agreement and these Terms shall automatically renew for successive Renewal Periods, unless a party terminates:
(a) by giving at least 30 (thirty) days’ notice prior to expiry of the Initial Term or any Renewal Period via the cancellation form available here (or as otherwise may be directed by dotdigital); or
(b) in accordance with clauses 10.3 or 10.4 below.
dotdigital may immediately and without notice suspend the provision of Services to the Client if the Client’s account remains inactive for a period of 13 months or more.
Either party may terminate these Terms on giving written notice if:
(a) either party commits a material breach of these Terms and (if capable of remedy) the breaching party fails to remedy the breach within 14 (fourteen) days after being required by written notice so to do; or
(b) either party 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 that party other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease trading. For the avoidance of doubt, neither party may terminate a Service Agreement for convenience unless in accordance with 11.1 below.
The period during which dotdigital may suspend the Services under these Terms will continue until the circumstances giving rise to dotdigital’s right to suspend the Services ceases to subsist or until these Terms are terminated by either party. In the event that dotdigital suspends the provision of Services to the Client, the Client will continue to be obliged to pay all Charges owing or due for the period when the Service is suspended.
Any termination of these Terms for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under these Terms 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 these Terms which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in these Terms.
11. Effects of termination
Where a Service Agreement is terminated by either party before the end of the Initial Term or then-current Renewal Term (except where terminated by the Client due to a material breach of these Terms by dotdigital), all remaining Charges for the Initial Term or then-current Renewal Term (as applicable) shall be immediately payable.
Following termination: (a) dotdigital shall have no obligation to retain any Client data. If the Client wishes to export any data, it should do so prior to the effective date of termination. Where the Client requires dotdigital to export any data on its behalf a charge may be applied for this additional service; (b) the Client shall immediately cease using the Intellectual Property and the Materials; and (c) any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.
In the event of any dispute between the parties to these Terms the parties shall within 10 (ten) days of a written request from a party to the other, meet in a good faith effort to resolve the dispute without recourse to proceedings. If the dispute is not resolved as a result of such meeting, any party may (at such meeting or within 14 (fourteen) days from its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor (the “Neutral Adviser”). If the parties are unable to agree on the appointment of a Neutral Adviser or the Neutral Adviser is unable or unwilling to act, either party may within fourteen days from the date of the proposal to appoint a Neutral Advisor or within 14 (fourteen) days of notice to any party that he or she is unable or unwilling to act, apply to appoint a Neutral Adviser. The parties shall within 14 (fourteen) days of the appointment of the Neutral Adviser meet with him or her in order to agree a programme for the exchange of any relevant information and the structure to be adopted for the negotiations. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings. If the parties accept the Neutral Adviser’s recommendations or otherwise reach agreement on the resolution of the disputes, such agreement shall be set down in writing and, when signed by their duly authorized representative, shall be binding on the parties. Failing agreement, either of the parties may invite the Neutral Adviser to provide a non-binding opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings commenced pursuant to the terms of these Terms without the prior written consent of the parties.
Neither party shall assign the whole or any part of these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld, however dotdigital shall be entitled to assign these Terms to any entity that purchases the shares or assets of that party as the result of a merger, takeover or similar event, unless such acquiring entity is a competitor of the non-assigning party.
14. Communication & Notices
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 these Terms may be given in writing by post or by email. Where such notice is given by email it shall be sent to the registered email address provided to dotdigital by the Client.
Any such notice shall be deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) if sent by post:
(i) within the United Kingdom, 2 (two) Working Days after posting;
(ii) if sent to any other country 5 (five) Working Days after posting; provided that if deemed receipt occurs before 9am or after 5pm on a Working Day then the notice shall be deemed to have been given on the next Working Day; or
(c) if sent by email, 5pm on that Working Day (or the following Working Day if not sent on a Working Day).
Except where otherwise expressly stated herein, these Terms constitute the entire agreement between the parties relating to the subject matter of these Terms and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of these Terms. In the event of any conflict between these Terms and the terms contained in the Service Agreement, the Service Agreement shall prevail.
dotdigital may at its reasonable discretion, change or modify the Terms or Services to comply with a change in any applicable law upon giving the Client 30 (thirty) days’ notice of the same either by email or notification on the website. Within a further 14 (fourteen) days from the expiry of such 30 (thirty) days’ notice, the Client may notify dotdigital in writing that it wishes to terminate these Terms with effect from the date of any proposed change to the Terms or Services. dotdigital may then choose to either accept the notice of termination from the Client, alter the Terms or Service or withdraw its notice to the Client. If no such notice is received from the Client, the Client shall be deemed to have accepted the changes made by dotdigital.
Each party warrants to the other that it has the power and authority:
(a) to enter into these Terms; and
(b) to perform its obligations under these Terms.
These Terms shall not be deemed to create any partnership or employment relationship between the parties.
Nothing contained in these Terms is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.
No act, failure or delay to act, or acquiescence by dotdigital or the Client in exercising any of its rights under these Terms shall be deemed to be a waiver of that right or in any way prejudice any right of dotdigital or the client under these Terms, and no waiver by dotdigital of any breach of these Terms 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 these Terms shall be valid only if in writing and signed by or on behalf of dotdigital 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 these Terms.
If any provision of these Terms 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 these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms.
16. Jurisdiction and Applicable Law
Each party agrees to these Terms being subject to the applicable law of the country or state as specified below, without regard to choice of law or conflict of law rules, and the courts specified below shall have exclusive jurisdiction to determine any disputes arising under these Terms:
(a) for Clients signing a Service Agreement with dotdigital EMEA Limited – the laws of England & Wales shall govern these Terms and the courts of England & Wales shall have exclusive jurisdiction; or
(b) for Clients signing a Service Agreement with dotdigital B.V. – the laws of the Netherlands shall govern these Terms and the courts of Amsterdam shall have exclusive jurisdiction; or
(c) for Clients signing a Service Agreement with dotdigital, Inc.– the laws of the state of New York shall govern these Terms and the courts of New York shall have exclusive jurisdiction; or
(d) for Clients signing a Service Agreement with dotdigital APAC Pty Ltd – the laws of New South Wales, Australia shall govern these Terms and the courts of New South Wales, Australia shall have exclusive jurisdiction; or
(e) for Clients signing a Service Agreement with dotdigital SG Pte. Ltd. – the laws of Singapore shall govern these Terms and the courts of Singapore shall have exclusive jurisdiction.
17. Compliance & Export Restrictions
Modern Slavery. dotdigital undertakes and represents that:
a) neither dotdigital nor any of its officers, employees, agents or subcontractors has:
(i) committed an offence under the Modern Slavery Act 2015 (an “MSA Offence“); or
(ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(iii) is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
b) it shall comply with the Modern Slavery Act 2015 and dotdigital’s Modern Slavery Policy (as applicable);
c) it shall notify the Client immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of dotdigital’s obligations under clause 17.1(b). Any such notice shall set out full details of the circumstances concerning the breach or potential breach of dotdigital’s obligations.
Bribery. For the purposes of this clauses, means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010. dotdigital shall ensure that it and each person referred to in (a) to (c) below (inclusive) does not, by any act or omission, place Client in breach of any Bribery Laws. dotdigital shall comply with all applicable Bribery Laws in connection with the performance of the Services, ensure that it has in place adequate procedures to prevent any breach of this clause 17.2 and ensure that:
(a) all of dotdigital’s personnel and all direct and indirect subcontractors of dotdigital;
(b) all others associated with dotdigital; and
(c) each person employed by or acting for or on behalf of any of those persons referred to in (a) and (b) above), involved in performing the Services or with these Terms so comply.
Without limitation to the above, dotdigital shall not in connection with the performance of the Services and/or these Terms make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
dotdigital shall immediately notify the Client as soon as it becomes aware of a breach of any of the requirements in this clause 17.2.
Export Restrictions. The Services, content, and other technology that dotdigital makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied party list. The Client shall not permit users to access or use any Service or content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.