CPaaS Terms and Conditions

This page sets out the terms and conditions (“Agreement”) between the Client, whose details are set out on the Service Agreement (“Client/you”) and dotdigital, a trading name of Dynmark International Limited, whose registered address is at No.1 London Bridge, London, SE1 9BG with company registration 4343332 (“dotdigital”, “we”).

Definitions

This page sets out the terms and conditions (“Agreement”) between the Client, whose details are set out on the Service Agreement (“Client/you”) and Dotdigital, a trading name of Dynmark International Limited, whose registered address is at No.1 London Bridge, London, SE1 9BG with company registration 4343332 (“Dotdigital”, “we”).

Definitions
In this Agreement the capitalised terms set out below shall have the following meanings:

“Client Data” shall include: (a) content that You create in or upload to Dotdigital, including personally identifiable information relating to your Clients and the content of any messages to or from your Clients (“User Content”); and (b) data generated as a result of the use of the Services that is not in an aggregated form.
“Data Processing Agreement” means the addendum to these Terms found at to this Agreement at: https://dotdigital.com/terms/cpaas-data-processing-agreement/;
“Data Protection Laws” has the meaning given to it in the Data Processing Agreement;
“Service Agreement” means the Service Agreement confirming the Services you are purchasing and incorporating this Agreement;
“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 communications to recipients and to export personal data together with such other services agreed between Dotdigital and the Client from time to time or ancillary to the Services;
“Software” means Dotdigital’s data management and manipulation software;

1. The Services.

1.1 This Agreement sets forth the terms and conditions under which Dotdigital agrees to provide to the Client certain Services, as further set forth on a Service Agreement. This Agreement shall remain in effect unless terminated as provided for herein.
1.2 Applicable Service Agreement From time to time the Client may acquire services, add additional services/users or amend existing services. Such changes shall be documented in a Service Agreement. Each Service Agreement shall carry a unique sequential number. The Service Agreement with highest number shall prevail in the event of conflict with either the Agreement or a preceding Service Agreement.
1.3 License. Subject to the Client complying with the terms of this agreement Dotdigital grants to the Client a non-exclusive license to use the Software specified in a Service Agreement.
1.4 Documentation. The documentation for the Services (the “Documentation”) will describe the functions and features of the Services, including all subsequent revisions thereto. Documentation shall include the operating manuals, user instructions, technical literature and all other related materials made available to the Client. The documentation shall be available online here

2. License Limitations.

2.1 Dotdigital grants to the Client a non-exclusive licence for the Client to grant a sub-licence to its end users to use the Services only as part of the Client’s solution.
2.2 The Client shall respect the terms of the license set out in the open source repository.

3. Service Levels.

The following service level standards are provided:
3.1 Access to submit messages to Inbox platform and process them – 99.9% Availability
3.2 Access to submit messages to App Messaging platform and process them – 99.9% Availability
3.3 Access to submit messages to Dotdigital SMS platform and process them – 99.9% Availability
3.4 Additional Service Levels – shall be defined in a Service Agreement
3.5 “Availability” is measured on a calendar monthly basis – using the following formula: (hours in month – hours platform not available + any hours of Scheduled Downtime) divided by (hours in month).
3.6 Scheduled Downtime – shall mean any maintenance on a platform of which the Client is notified 72 hours in advance
3.7 Failure to meet service level standards. In the event Dotdigital does not meet a service level standard outlined in 3.1 to 3.3, Dotdigital may owe to Client a Service Credit. The value of the Service Credit shall be calculated as: (99.9% less Availability %) multiplied by (Applicable Revenue). Applicable Revenue is defined as the revenue attributed to the platform.
3.8 Client Obligation. The Client shall contact Dotdigital within 30 days of a failure to meet a service level standard in order to claim an applicable service level credit.

4. License Limitations.

4.1 Standard Support Email support is provided for all services via cpaas.ce@dotdigital.com during working hours, Monday to Friday (excluding public holidays in the United Kingdom). The usual response time is 1 working day. For out of hours queries, these should be raised to cpaas.support@dotdigital.com.
4.2 Additional Support. In the event of an additional support package being acquired by the Client, Dotdigital shall provide the support package(s) described in the relevant Service Agreement(s).

5. Representations and Warranties.

5.1 Mutual. Both the Client and Dotdigital represent and warrant that:

5.1.1 it is a business duly incorporated, validly existing, and in good standing under the laws of its country or state of incorporation;
5.1.2 it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
5.1.3 the execution, delivery, and performance of this Agreement has been duly authorised by it;
5.1.4 it shall comply with all applicable laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement.

5.2 By Dotdigital. Dotdigital represents and warrants that:

5.2.1 it is in the business of providing the Services;
5.2.2 the Services are fit for the ordinary purposes for which they will be used;
5.2.3 the Services and any other work performed by Dotdigital hereunder shall not infringe upon any copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any 3rd party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or IPR that would conflict with its obligations under this Agreement;
5.2.4 the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Service Agreement and the Documentation.

5.3 By Client. You represent and warrant that you have the right to create and/or upload the User Content and the right to use all materials of which it is comprised.

6. Client Data.

6.1 Ownership. Client Data is and shall remain the sole and exclusive property of Client and all right, title, and interest in the same is reserved by the Client. This Section shall survive the termination of this Agreement.
6.2 Dotdigital Use of Client Data. Dotdigital is provided a limited license to Client Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Client Data only to the extent necessary in the providing of the Services. Dotdigital shall:

6.2.1 keep and maintain Client Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorised access, use, disclosure, or loss;
6.2.2 use and disclose Client Data solely and exclusively for the purpose of providing the Services, such use being in accordance with this Agreement and applicable Service Agreements; and,
6.2.3 not use, sell, rent, transfer, distribute, or otherwise disclose or make available Client Data for Dotdigital’s own purposes or for the benefit of anyone other than the Client without Client’s prior written consent. This Section shall survive the termination of this Agreement.
6.3 Data Protection Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Addendum. For the purposes of this Agreement, the Client is the Data Controller and Dotdigital is the Data Processor in respect of any Personal Data, each as defined under Data Protection Laws. The Client acknowledges that Dotdigital is reliant on the Client for direction as to the extent to which Dotdigital is entitled to use and process the Personal Data.
6.4 Dotdigital collected Personally Identifiable Data Dotdigital may collect personally identifiable data from employees and/or authorised users of the Client. This will include information to register an account on Dotdigital and/or create users on the account. Dotdigital shall be Data Controller for this data. Dotdigital will only use this data for the purpose of providing the Services.

7. Confidential Information.

Confidential Information means all information (however recorded or preserved) disclosed by a party to the other party, concerning all information that would be regarded as confidential by a reasonable business person.

7.1 Each party shall keep the other party’s Confidential Information confidential (except to the extent that such Confidential Information is required to be disclosed by law) and shall not use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement.
7.2 The provisions of this clause 7 shall survive for a period of five (5) years from expiry or termination of this Agreement.

8. Fees & Billing.

Fees & Billing. The Client shall be responsible for and shall pay to Dotdigital the fees as further described in a Service Agreement, subject to the terms and conditions contained in this Agreement and such Service Agreement.

8.1 Payment Terms Unless otherwise provided for under a Service Agreement, invoices shall be payable within thirty (30) days of the invoice date.
8.2 Billing Procedures. Unless otherwise provided for under a Service Agreement, Dotdigital shall send an electronic invoice to the Client. No paper copy shall be provided.
8.3 Notice of Price Change. The prices to be paid by the Client to Dotdigital for the Services are the prices as set out in a Service Agreement (and as amended from time to time by the Supplier on 14 days written notice to the Client)
8.4 Taxes. The Charges are exclusive of any applicable sales tax, VAT or other applicable taxes, which shall be added to the sum in question.
8.5 Non-binding Terms. Any terms and conditions included in a Client purchase order or a Dotdigital invoice, as the case may be, shall be deemed to be solely for the convenience of the respective party, and no such term or condition shall be binding upon the parties.
8.6 Termination of Services. Dotdigital shall not suspend any part of the Services where the Client is reasonably disputing any amount due to Dotdigital. Dotdigital may suspend any part of the services where a valid invoice remains unpaid (40) days after the date of invoice.
8.7 Credits. Any agreed credits to the Client shall be netted off the next invoice raised by the Dotdigital.

9. Proprietary Rights.

9.1 Intellectual Property Rights (“IPR”) shall mean all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
9.2 Dotdigital IPR. The Client acknowledges that IPR in the Services and the Documentation shall remain the sole and exclusive property of Dotdigital.
9.3 Dotdigital shall indemnify the Client against claims made against the Client for infringement of a third party’s IPR (including reasonable legal costs) arising out of the Client’s use of the Services and solely in relation to Dotdigital’s IPR in the Services and Documentation, provided that: (a) the Client provides Dotdigital with prompt notice in writing of any such claim or possible claim; (b) the Client provides reasonable co-operation to Dotdigital; and (c) Dotdigital is given sole authority to defend or settle the claim. Dotdigital shall have no liability if the alleged infringement is based on: (a) a modification of the Services by anyone other than Dotdigital; (b) the Client’s use of the Services in a manner contrary to this agreement, Policy or Law, or (c) the Client’s use of the Services in combination with software or components not supplied or approved in writing by Dotdigital.
9.4 Client IPR. You retain ownership of your Client Data and all IPR subsisting therein.
9.5 The provisions of this Section shall survive the termination of this Agreement.

10. Indemnification and Limitation of Liability.

10.1 This clause 10 sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of this agreement; (b) any use made by the Client of the Services; (c) any representation statement or tortuous act or omissions (including negligence) arising under or in connection with this agreement, or (d) any other liability to the other whatsoever.
10.2 Nothing in this agreement limits or excludes the liability of either party for: (a) death or personal injury resulting from negligence; (b) any damage or liability incurred as a result of fraud or fraudulent misrepresentation, or (c) any other liability which is incapable of being excluded or limited by law.
10.3 Neither party shall have any liability to the other for: loss of profits or anticipated savings; loss of revenue; loss or damage to reputation or goodwill; wasted management or other staff time; for any other indirect, special and/or consequential loss or damage.
10.4 Notwithstanding the foregoing, in no event (except where expressly stated otherwise) shall either party’s liability to the other arising out of or related to this agreement, including liability for negligence, will exceed the value of fees paid in the preceding 12 months.
10.5 You shall indemnify Dotdigital against claims made against Dotdigital in connection with User Content You have sent to your Clients, including, without limitation, content sent to Clients who have not provided permission for such contact under applicable Data Protection Laws.

11. Term and Termination; Renewals.

11.1 Term. This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein. Unless this Agreement or a Service Agreement is terminated earlier in accordance with the terms set forth herein, the term of a Service Agreement (the “Initial Term“) shall commence on the Start Date and continue until the End Date. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, a Service Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term“) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then-current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.
11.2 Termination for Convenience. Without limiting the right of a party to terminate this Agreement or a Service Agreement as provided for in this Agreement, a party may terminate this Agreement for convenience upon prior written notice to the other party provided that there is no Service Agreement then in effect.
11.3 Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement or a Service Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non breaching party may terminate this Agreement or a Service Agreement for cause as of a date specified in such notice.
11.4 Payments upon Termination. Upon the termination of this Agreement or a Service Agreement, the Client shall pay to Dotdigital all undisputed amounts due and payable hereunder, if any, and Dotdigital shall pay to Client all amounts due and payable hereunder, such as Service Credits and prepaid fees, if any.
11.5 Renewals. Should the Services continue beyond the then-current Term, the Services Fees for the Renewal Term may be increased no more than ten percent (10%) on an annualised basis.

12. General.

12.1 Governing Law; This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
12.2 Compliance with Laws; Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
12.3 Force Majeure; Neither party shall be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligation under this Agreement occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes (excluding labour disputes of either party) of whatever nature , failure of or disruption to telecommunications networks and any other reason beyond the control of either party
12.4 No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
12.5 Notices. A notice relating to this Agreement will be valid if:

12.5.1 Notice to Dotdigital from the Client is received at email address: legal@dotdigital.com
12.5.2 Notice to Client from Dotdigital is received at email address specified on a Service Agreement.
12.5.3 If a notice is given on a non-business day, that notice shall instead be deemed to be given on the next business day
12.6 Assignment of agreement. Neither party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
12.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
12.8 Entire Agreement. This Agreement and its attached Schedules and Service Agreements constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Client and Dotdigital as to the subject matter hereof. This Agreement may only be amended in writing signed by the parties.