Terms and Conditions

This is an agreement between:

1) Everything DM Ltd, of 8 Arlington Court, Whittle Way, Stevenage, Hertfordshire, SG1 2FS registered in England no 3244074 (hereafter referred to as "Everything DM") and

2) (hereafter referred to as "the dealer")

Purpose

Everything DM is the owner of the buyonline.marketingfile.com and Everything DM.com websites. Everything DM works with the UK's leading list owners who hold a number of proprietary databases of marketing information which Everything DM wishes to make available to the Citroën and DS dealer network via a managed marketing campaign service as outlined in the proposal in Appendix 2 - sourcing targeted prospect data, printing, posting and Email broadcast services (the "Services").

Definitions and interpretation

Confidential Information

All information of any nature received by either party relating to the business of the other party which is confidential and proprietary in nature regardless of whether or not it is marked as such.

Commencement Date

26/09/2018

Initial Period

The period of 12 months from the Commencement Date.

Everythingdm.com

The internet site owned by Everything DM currently having the address Everythingdm.com or as subsequently renamed

Sites

Everythingdm.com and Marketingfile.com and buyonline.marketingfile.com

Together with the Definitions contained in Appendix 2 Licence Agreement Standard Terms and Conditions
Pricing

Your engage campaign

In consideration of the provision by Everything DM of the Services, Everything DM shall charge The dealer the sum of £300 (excluding VAT) per month.

*The monthly fee quoted is based on the chosen campaigns and volumes and on one single sided OCR compliant colour letter template or one A5 OCR compliant postcard upload per month for the DM element and one email upload (supplied by the Citroën and DS dealer team). One email broadcast is included per month.

*The monthly fee quoted is broken down as follows:

Your engage campaign cost breakdown

Email campaign £83.50
DM campaign £216.50

Postal fulfilment costs are subject to change should Royal Mail increase the base rate cost of postage for OCR and or non OCR compliant mail. Should any increase be made, Everything DM will increase the cost of fulfilment by the same rate or by way of reducing the number of items delivered to maintain the agreed monthly fee.

Alterations to the outlined programme, for example changes to direct mail or email format i.e. letter to postcard, frequency or volume or additional templates will be subject to a price change.

Invoicing and Payment Terms

For the duration of the Initial Licence Period, Everything DM will collect, by way of Direct Debit on the 1st day of each month for the (monthly fee), the first such invoice to be dated the commencement date.

Any other charges (e.g. for ad-hoc additional prospect data) will be invoiced as they arise.

Obligations of the dealer

i. Fulfil its obligations set out in Appendix 1 on a reasonable efforts basis and in as timely a manner as possible.

ii. The dealer undertakes to not disclose any usernames and passwords provided to it by Everything DM to any third party without the prior written consent of Everything DM.

Obligations of Everything DM

i. Provide the Services set out in Appendix 1 on a reasonable efforts basis and in as timely a manner as possible.

ii. Provide prospect data and fulfilment services under its standard terms and conditions as fully set out in Appendix 2. Where there is any inconsistency between those standard terms and conditions and this Agreement, this Agreement takes precedence.

iii. To comply with the List Owners specific licence terms.

Intellectual Property Rights

a) All intellectual property rights, including copyright, database rights or any such other rights as are created by the Copyright and Rights in Databases Regulations 1997 and any subsequent re-enactment thereof relating to the Sites shall remain Everything DM's exclusive property.

b) All intellectual property rights, including copyright, database rights or any such other rights as are created by the Copyright and Rights in Databases Regulations 1997 and any subsequent re-enactment thereof relating to The dealer shall remain The dealer's exclusive property.

Trademarks etc

a) During the Term Everything DM may use trade marks, logos and other devices owned by The dealer on the Sites and on associated publicity material in accordance with The dealer's prior written instructions. Everything DM acknowledges that these trade marks, logos and other devices and all goodwill associated with them are the exclusive property of The dealer or its associated companies and undertakes to cease to use them on termination of this Agreement.

b) Everything DM will not use or authorise the use of any trade marks, logos and other devices owned by The dealer in any way which is prejudicial to the reputation or interests of The dealer.

c) During the Term The dealer may use the Everything DM name, logo, trade marks and other devices owned by Everything DM on publicity material in accordance with Everything DM's instructions. The dealer acknowledges that the Everything DM name, logo, trade marks and other devices and all goodwill associated with them are the exclusive property of Everything DM and undertakes to cease to use them on termination of this Agreement.

d) The dealer will not use or authorise the use of the Everything DM name, logo, trade marks and other devices owned by Everything DM in association with any other trademark or in any way which is prejudicial to the reputation or interests of Everything DM or to the status or protection of the Everything DM name, logo, trade marks and other devices.

Warranties

a) Each party warrants to the other that it is fully authorised to make this Agreement and that it has obtained all necessary authorities permits and licenses required in all applicable jurisdictions to enable it to perform its obligations and exercise its rights under this Agreement.

b) Everything DM warrant that prospect data has been obtained and appropriate consents given for The dealer to contact them, all in compliance with Data Protection Law, including the Privacy and Electronic Communications Act (2003) and The Data Protection Act (2018) which includes the General Data Protection Regulation (GDPR) which became law on 25th May 2018. Further details relating to the prospect data and it's use are detailed in the standard terms and conditions as fully set out in Appendix 2

Indemnity and Limitation of Liability

a) Each party shall indemnify the other and hold the other harmless against all and any losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the other (including legal expenses reasonably and properly incurred, but excluding loss of profits, goodwill or loss of business or any type of special, indirect or consequential loss) arising out of or connected with the breach or alleged breach of any of its warranties contained in this Agreement.

b) Notwithstanding sub clause (d) below neither party's liability to the other for (i) death or injury resulting from its own or that of its employees' agents or sub-contractors' negligence; (ii) or fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

(iv) any other liability which cannot be limited or excluded by applicable law shall be permitted.

c) Except in respect of claims made under sub clause (a) and subject to the provisions of sub clause (b) ) the aggregate maximum liability of either party to the other under this Agreement shall not exceed 100% of the total sums paid or payable to Everything DM in respect of the email or DM campaign giving rise to a claim under this clause by The dealer pursuant to this Agreement.

Confidentiality

a) If either party receives any Confidential Information it will exercise all reasonable care to prevent disclosure of or use, for any purpose unrelated to the performance of this agreement of any Confidential Information which it receives from the other party pursuant to and in accordance with the terms of this agreement. The receiving party will require its employees, agents, and representatives to similarly restrict use and disclosure of such Confidential Information, and will be responsible for assuring compliance with such confidentiality obligations by its employees, agents and representatives. The receiving party, however, shall not be required to keep confidential any Confidential Information which is or may become publicly available without fault on its part; is already in the receiving party's possession prior to receipt from the disclosing party; is disclosed by the disclosing party to third parties without similar restrictions; or is rightfully obtained by the receiving party from third parties without restriction; or is required to be disclosed by law or any regulation but only to the extent and for the purpose of such disclosure.

Term and Termination

a) This agreement shall remain in force from the Commencement Date for the Initial Period and shall remain in force for a minimum period of 12 months. 3 months notice is required in writing following the initial period should the dealer wish to terminate the agreement.

b) Either party may terminate this agreement at any time upon written notice where the other party
i. breaches this agreement and such breach is not remedied within thirty days of receipt of notice from the non defaulting party specifying the breach or
ii. threatens to cease or ceases business or becomes insolvent, commits any act of insolvency (or bankruptcy) or winding up (except for the purpose of amalgamation or reconstruction) or becomes subject to any proceeding under an insolvency law (and such proceeding has not been set aside within seven days).

c) Neither party shall be considered in default or liable under this Agreement if there is any delay or failure in the performance of its obligations under this Agreement by any reason beyond its reasonable control which shall include without limitation any act of government or state, civil commotion, epidemic, fire, flood, industrial action of staff other than its own, or war all to the extent beyond the reasonable control of the party whose performance is affected by such circumstances ("Force Majeure").

d) In the event of Force Majeure, the delaying party shall be entitled to an extension of time for so long as the Force Majeure circumstances persist provided that the delaying party shall promptly notify the other party of the Force Majeure and discuss with the other party possible action to be taken to overcome the delays and shall use all reasonable endeavours to overcome such delays. If the Force Majeure circumstance continues for more than one month, either party may give notice to the other immediately to terminate this Agreement.

e) Termination shall not release either party from any obligation or liability incurred prior to the date of termination and shall be without prejudice to the continuation of any provision hereof which expressly or by implication comes into or continues in force after the date of termination.

Jurisdiction

a) This agreement is subject to the laws of England and is to be governed exclusively by the courts of England and the parties agree to be bound by the decisions of those courts

Miscellaneous

a) All notices or consents given or to be given pursuant to any agreement shall be in writing and shall be deemed to be served two working days after having been sent, properly addressed, by first class post, to the receiving party at its business address stated overleaf or as last notified in writing to the other party or at the time of transmission if sent by facsimile message.

b) If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

c) This agreement contains the whole agreement between the parties relating to the subject matter of this agreement and no variation of this agreement shall be effective unless with the express written consent and agreement of an authorised director or the Secretary of The dealer and a Director or the Secretary of Everything DM.

d) No waiver by either party of any breach of any provision of this agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision.

e) Neither party may assign all or part of its rights and/or transfer or sub-contract the performance of all or part of obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

Appendix 1
The Dealer

The dealer will provide Everything DM with the necessary information: dealer name, address, email address, website address, contact telephone numbers enabling the creation of a new customer account

The dealer will inform Everything DM of any changes that are required to the submitted information at least 7 days before a scheduled completion date for a campaign. Any delay to the notification of changes will mean the campaign in process will not take any changes into effect.

Everything DM

Everything DM in conjunction with The Dealer will arrange the prospect data to be selected and set up each individual campaign, making the necessary personalisation changes and schedule the postage/broadcast for the agreed date/time.

Everything DM will use requested seed records for each dealership plus an additional set of seeds containing details for The dealer to ensure copies of each campaign are received by the relevant members of staff at The Dealer.

Everything DM will liaise with the dealer team at Citroën /DS to acquire the approved marketing creative in good time to ensure the campaigns are fulfilled on behalf of the dealer.

Everything DM will use the information provided by the dealer to personalise the marketing creative where necessary i.e first name, surname, job title, contact details.

Appendix 2
LICENCE AGREEMENT
DEFINITIONS
"Access Fee" An amount payable by You to Everything DM which allows you access to all Sites or a limited number thereof.
"Agent" A mailing house, fulfilment house, computer bureau or other agent working on your behalf.
"Client" Where You are an approved Everything DM reseller and You are acting on behalf of a third party in Your use of the Sites and / or Your licence of Data, that third party. If the third party is an individual person and if he/she is an employee and is using You in the performance of his/her job, also his/her employing organisation.
"Code" All or any part of the pages, scripts, controls and wizards which make up the Sites.
"Customer Data" Name and address information and/or telephone numbers and/or fax numbers and/or email addresses supplied by You to EDM to enable EDM to carry out the Services.
"Data" Name and address information and/or telephone numbers and/or fax numbers and/or Email Data or other items selected by You from the Sites, licenced by You and subsequently downloaded (whether directly or by e-mail) by You or in the case of name and addresses a Print And Post is carried out by EDM on Your behalf or in the case of Email Data an Email Broadcast is carried out by EDM on Your behalf. A small number of 'seed' or 'sleeper' entries may be included by EDM to allow EDM to monitor Your compliance with this Agreement.
"Deduplication" The removal of name and address information and/or telephone numbers and/or fax numbers and/or email addresses where these items are to be found in the Customer Data or in Your previous purchases from EDM.
"EDM", "Everything DM" Everything DM Ltd, 8 Arlington Court, Whittle Way, Arlington Business Park, STEVENAGE, SG1 2FS, UK.
"Email Broadcast" The sending of an email message to recipients whose email address is contained in the Email Data, or to recipients whose email address is contained in the Customer Data.
"Email Data" E-mail addresses selected by You from the Sites and licenced by You and subsequently either downloaded (whether directly or by e-mail) by You or used by EDM to carry out an Email Broadcast on Your behalf.
"Goneaway" A postal address, telephone number, fax number or email address to which a communication cannot be delivered because of a permanent error in the address, telephone number, fax number or email address. More fully:
i). A postal address is a Goneaway if it is an address to which an item mailed cannot be delivered by virtue of the intended company or organisation or intended residential recipient never having been or no longer being at the address, or where the address is incomplete. It is evidenced by i) You mailing an item to it and ii) the item being returned to You bearing a red Royal Mail 'We were unable to deliver this item because...' sticker marked as 'addressee has gone away' or 'addressee unknown' or 'address incomplete' and iii) EDM being unable to subsequently verify the address. A mailable address is not a Goneaway for any other reason (such as marked 'refused', 'do not mail me again', 'not interested' etc.). You will be asked to provide EDM with the returned mail;
ii). A telephone number is a Goneaway if i) You call it and ii) it is a dead line or it is a wrong number or it is a fax number (and not shared by a phone) or the Subscriber is no longer at the number. A telephone number is not a Goneaway for any other reason (such as no answer or number engaged, an answering machine or voicemail, Subscriber not interested or refuses to talk etc.). You will be asked to provide EDM with a call log or other evidence;
iii). An email address is a Goneaway if sending an email message to it results in a Hard Bounce. It is not a Goneaway for any other reason (such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall).
"Hard Bounce" The failed attempt during an Email Broadcast to send an email message to a recipient because the email recipient or the email domain does not exist. You will be asked to provide EDM with a list of those email addresses which resulted in Hard Bounces. Summarised delivery reports, comparisons against suppression files or the unwillingness of a broadcaster to carry out an Email Broadcast will not be accepted as evidence of Hard Bounces.
"Engage" A managed solution where the Client instructs EDM to licence data and execute their marketing message. All Data is licenced from the List Owner on a single use basis immediately prior to the campaign being fulfilled.
"List Owner" The owner or licensor of the Data.
"Print And Post" The printing and sending by mail of an item (such as, but not limited to, a letter or postcard) to recipients whose address is contained in the Data, or to recipients whose address is contained in the Customer Data.
"Services" Activities carried out by Everything DM including but not limited to the Deduplication of Data or Customer Data; the carrying out of Email Broadcasts; the carrying out of Print And Post Campaigns.
"Site" Any website owned or operated by Everything DM.
"Subscriber" In the case of a company or other organisation, the company or organisation whose name appears on the bill from the telecommunications service provider and not any individual employee of the company or organisation. In the case of a household, the person whose name appears on the bill from the telecommunications service provider.
"You", "Your" You, the individual person using the Sites, and if You are an employee and are using the Sites to perform Your job, also Your employing organisation.
"100% Delivery Guaranteed" Data where every postal and / or email record contained therein will be delivered or the cost of the record refunded as well as a contribution towards the cost of the mailing or Email Broadcast.
Section Headings are for convenience only, and do not form part of this Agreement.
1. GENERAL TERMS
1.1 You agree that in the event of Your failure to comply with any term or condition of this Agreement, EDM may at its sole discretion terminate this Agreement without further notice to you and with immediate effect and may terminate any licences created by this Agreement. You also agree that in the event of such termination you will not be entitled to any refund of amounts paid to EDM under this Agreement, and that You will be liable to EDM for payment for any benefit derived by you from this Agreement up to the date of such termination.
1.2 You agree to accept responsibility for Your actions while using the Sites, including the selection of Data, the purchase, download, manipulation, printing and use of the Data and all results from such use.
1.3 You warrant that You will exercise all reasonable precautions to prevent others under Your control from violating any term of this Agreement.
1.4 You may not assign, transfer or sub-license Your rights and obligations under this Agreement to any other party.
1.5 You warrant that You will comply with the Data Protection Act 2018 and any subsequent amendments or legislation that implements the EU Directive 95/46/EC (and the Privacy and Electronic Communications Regulations 2003 and any related regulations) and any guidance issued by the Information Commissioner relating thereto including but not limited to complying with Your obligations in respect of any personal data which You may supply to or receive from the other party. In particular (but without limitation) You warrant to EDM and List Owner that you shall at all times (i) maintain the confidentiality and integrity of any personal data received from or on behalf of EDM or List Owner; (ii) implement and maintain appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data in accordance with all appropriate Data Protection legislation; and (iii) not transfer any personal data received from or on behalf of EDM or List Owner outside the European Economic Area. You shall ensure that any uses to which the Data is put comply with the Codes of Practice of the appropriate advisory bodies including without limitation the Direct Marketing Association. You shall be responsible for obtaining and applying to the Data any necessary suppression files including, where appropriate, the Mail Preference Service, the Telephone Preference Service and / or the Email Preference Service suppression files, including immediately suppressing any records EDM advise should be removed.
1.6 Deduplication is provided by EDM on a efforts basis only. Deduplication is an inexact science as the same company/address may be expressed or spelt differently in different databases. EDM use "fuzzy matching" to assign a unique Royal Mail Address Key to each household address and each company/address combination so that where possible such addresses are considered as the same and the duplicate removed. However a small number of "not-quite-duplicates" may exist and these will not be removed - this is unavoidable and You accept that no replacement Data or refund will given in this case. In a limited number of circumstances (e.g. a postcode changes or a building changes to multi-occupancy) the Royal Mail Address Key may change over time, in which case EDM are unable to recognise such addresses as being the same and are unable to remove the duplicate - this is unavoidable and You accept that no replacement Data or refund will be given in this case.
1.7 You understand that EDM and List Owner reserve the right, subject to reasonable prior notice, to audit for compliance with the terms of this Agreement. Such right of audit shall include (without limitation) the right to audit any relevant database or computer files maintained by You and Your Agent and Your Client to ensure that the use of the Data by You and Your Agent and Your Client complies with the provisions of this Agreement. You and Your Agent and Your Client shall allow access during normal working hours and to all relevant records to allow for such audit to be completed.
1.8 The List Owner shall be entitled to enforce any term of this Agreement either directly as principal or as a third party (as applicable).
1.9 Other than the List Owner, this Agreement does not create any rights under the Contracts (Rights of Third Parties) Act 1999 which are enforceable by any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
1.10 EDM may at its sole discretion use the services of sub-contractors to fulfil its obligations under this Agreement.
2. SITE AVAILABILITY
2.1 EDM endeavours to make the Sites available at all times on a efforts basis.
2.2 You accept that from time to time the Sites may not be available due to circumstances outside the control of EDM or to allow maintenance or upgrades to be carried out by EDM. In the event that access to the Sites has been granted by EDM through the payment by You of an Access Fee, You accept that no refund of all or any part of the Access Fee shall be due as a result of Site non-availability howsoever caused.
3. DATA USAGE AND YOUR RIGHTS TO THE DATA
3.1 Your rights to the Data are strictly and specifically governed by the terms of this Agreement.
3.2 Either no list has been selected or a single use licence is not available for this Data.
3.3 Either no list has been selected or a multiple use licence is not available for this Data.
3.2 Data (other than Email Data) for single use may be used once only within a set period of months (detailed below) from the date of this Agreement and only for the purposes allowed by this Agreement, provided that You may use the Data subsequently in respect only of those individuals and/or businesses which become Your bona fide customers as a result of your marketing activity carried out using the Data and in accordance with this Agreement.

Omnis - 1 Month

D&B UK - 12 Months

Emailmovers - 12 Months

Experian - Business Marketing - 6 Months

Intelligent Data Group - 6 Months

Oscar Data - 1 Month

The Schools Marketing Company - 6 Months

3.3 Data (other than Email Data) for multiple use may be used a number times within a set period of months (detailed below) from the date of this Agreement and only for the purposes allowed by this Agreement, provided that You may use the Data subsequently in respect only of those individuals and/or businesses which become Your bona fide customers as a result of your marketing activity carried out using the Data and in accordance with this Agreement.

Omnis - 3 uses within a 12 month period

D&B UK - Unlimited uses within a 12 month period

Emailmovers - Unlimited uses within a 12 month period

Experian - Business Marketing - Unlimited uses within a 12 month period

Intelligent Data Group - Unlimited uses within a 12 month period

Oscar Data - Unlimited uses within a 12 month period

The Schools Marketing Company - Unlimited uses within a 12 month period

3.4 The Data comprises proprietary information intellectual property rights in which are owned by the List Owner or others. You acknowledge and agree that the Data is proprietary to List Owner and comprises (a) works of original authorship (b) confidential and trade secret information and (c) information that has been created, developed and maintained by List Owner at great expense of time and money, such that misappropriation or unauthorised use by others for commercial gain would unfairly harm List Owner. You agree that You will not commit or permit any act or omission by Your agents, employees, or any third party that would impair List Owners copyright, database rights or other proprietary and intellectual rights in the Data.
3.5 You may not use, copy, modify or transfer the Data or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this Agreement.
3.6 Upon purchase the Data is licensed non-exclusively for Your use only. If You are a company, use by or on behalf of any holding company, sister company or subsidiary company is specifically excluded.
3.7 You may not resell or transfer or disclose or permit the use of the Data to or by any 3rd party, except to your Agent or where You are an approved Everything DM reseller to Your Client. Where You are an approved Everything DM reseller and Your purchase of Data is for and on behalf of a Client, the Data may be held by You solely on behalf of that sole Client only and You may not use the Data on behalf of any other Clients or third parties. You undertake to use all reasonable endeavours to ensure that Your Agent or Client complies with the terms of this Agreement as if it were a party hereto and You hereby indemnify the List Owner against any loss or claim (i) arising from this Agreement as a result of any act or omission on the part of Your Agent or Client; and (ii) arising from any failure by You, Your Agent or Client to comply with the terms of this Agreement.
3.8 You agree not to use the Data in any way other than for mailing, phoning or faxing or Email Broadcasting (to the extent permitted by this Agreement) for marketing and promotional purposes relating to Your business or that of Your Client.
3.9 You will be asked to provide EDM with a copy of your mailing piece / telephone script / email message ("Marketing Communication") for approval prior to making Your purchase. If so, You agree that You will not modify Your Marketing Communication without the further approval of EDM.
3.10 You may make a single copy of the Data in machine readable or printed form for backup purposes and in support of Your own use of the Data or that of your Client. This data must be deleted no later than 28 days after the initial licence date.
3.11 You agree to indemnify EDM and the List Owner in respect of any claim arising from use of the Data made by You or Your Agent or Client and/or arising from the material dispatched using the Data by You or Your Agent or Client, including but not limited to defamation, obscenity or infringement of others' rights.
3.12 You agree to indemnify EDM and the List Owner in respect of all costs, claims, demands or expenses incurred or suffered by them as a result of any unauthorised copying, re-use, re-sale, disclosure or any other unauthorised use of the Data while in Your possession or the possession of Your Agent or Client.
3.13 In the event that payment made by You for the Data by cheque or credit card or otherwise is subsequently reversed by You or by Your bank or by Your card issuer or otherwise, all and any rights You and/or Your Agent and/or Your Client may have in the Data shall immediately cease. The full amount for Data and related services remains due to EDM and EDM reserves the right to use all and any applicable legal remedies to recover payment from you as well as any additional costs incurred by EDM in so doing.
3.14 In the event that You purchase Data or Services against account facilities provided by EDM and the invoice for the purchase of this Data and Services issued to You by EDM remains unsettled more than 30 days past its due date, all and any rights You and/or Your Agent and/or Your Client may have in the Data and any related Services shall immediately cease. Payment for the full amount remains due to EDM and EDM reserves the right to use all and any applicable legal remedies to recover payment from you as well as any additional costs incurred by EDM in so doing.
3.15 Where the Data is used in contravention of the provisions of this agreement You shall pay to EDM a sum equivalent to five (5) times the value of the single use charges on each occasion that the Data is so used and You expressly agree and acknowledge that Your use of any subset of the Data shall be confirmation of Your use of the whole of the Data and that the provisions of this clause 3.15 shall operate by way of liquidated damages and are a genuine pre-estimate of EDM's loss in such circumstances.
3.16 Upon expiry or termination of the licence period permitted by this agreement, You and Your Agent and Your Client shall within 7 days delete or destroy all originals and copies of the Data save for those individuals and/or businesses which become Your bona-fide customers.
3.17 Any third party services used to fulfil this transaction will be covered by the Terms and Conditions of the originating service vendor. Any statements that conflict with EDM Terms and Conditions will be superseeded by EDMs Terms and Conditions.
4. EMAIL DATA
4.1 Where available, Email Data licenced for single use may be used once only within a one month period from the date of this Agreement and only for the purposes allowed by this Agreement, provided that You may use the Data subsequently in respect only of those individuals and/or businesses which become Your bona fide customers as a result of your marketing activity carried out using the Data and in accordance with this Agreement.
4.2 Where available and where an Email Broadcast is carried out by EDM, Email Data licenced for multiple use may be used twice only within a two month period from the date of this Agreement. Where an Email Broadcast is carried out by EDM the first use shall be within a one month period from the date of this Agreement and the same Email Content only shall be rebroadcast by EDM to those recipients who have not unsubscribed from the first broadcast.
4.3 Where available and where an Email Broadcast is carried out by You, Email Data licenced for multiple use may be used the same number of times in the same time period as other Data (see 3.3 above). Email Data for multiple use may be used only for the purposes allowed by this Agreement, provided that You may use the Data subsequently in respect only of those individuals and/or businesses which become Your bona fide customers as a result of your marketing activity carried out using the Data and in accordance with this Agreement.
4.4 E-mail addresses are prone to frequent change, as well as being unreachable for a number of technical and other reasons (such as, but not limited to, account disabled, mailbox full, limit on message size, anti-spam policy, firewall). A much higher percentage of undeliverable e-mail is to be expected than for mail, phone or fax. Where hard bounces exceed the relevant percentage of the Email Data, replacement Email Data or a refund will be provided in accordance with 10.1 for hard bounces above this level only. You accept that no replacement Email Data or refund will be given for undeliverable e-mail addresses in the Data for any other reason for non-delivery, or for hard bounces below this level.
4.5 EDM will where necessary provide suppression files which should be removed immediately from any original copies and backups held under this agreement. A Data Destruction Declaration will be provided with any supression file.
5. EMAIL BROADCASTS
5.1 All text, data, images and other content and/or materials provided by You or on Your behalf by third parties to EDM for the purpose of an Email Broadcast are and shall remain Your exclusive property ("Email Content"). You shall procure, at Your own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Email Content by EDM as required in connection with any Email Broadcast by EDM and You warrant that all materials including Email Content delivered by You to EDM in connection with any Email Broadcast shall not infringe any copyright, patent, trade secret or other proprietary right held by any third party. You are responsible for ensuring the legality of all text, data and images including scripts, hyperlinks and linked web content, and for ensuring the accuracy and completeness of all information contained therein prior to any Email Broadcast of Email Content by You or EDM or any third party.
5.2 You warrant that in any Email Broadcast by You or EDM or any third party the Email Content shall not be libelous, obscene, slanderous, false, misleading, defamatory, unethical, pornographic, or illegal, or infringe any third party rights or contain a virus, worm, Trojan, or time bomb or any other malicious code or script, or any downloadable executable software. You or any third party acting on Your behalf will not take any action that could cause EDM or List Owner to be blacklisted by an internet service provider or e-mail provider, and You will cooperate with EDM or List Owner as reasonably necessary if EDM or List Owner is so listed as a result of Your actions.
5.3 Everything DM will not be liable in any event, including liability for negligence (except for personal injury or death), to You or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages arising from any decision by a third party broadcaster acting as a sub-contractor to EDM to refuse to carry out an Email Broadcast because of the Email Content, although EDM will at its sole discretion use its endeavours to find an alternative broadcaster.
5.4 Any Email Broadcast shall include the header and footer along with the unsubscribe mechanism provided by EDM. All unsubscribes shall be removed from the data source file by EDM and the List Owner. The relevant suppression file will be provided to any customer affected.
6. SMS BROADCASTS
6.1 EDM do not permit or undertake the broadcast of SMS messages under this agreement.
7. USE OF TEMPLATES
7.1 The designs, layouts and static text and images of templates provided to you by EDM shall remain the exclusive property of EDM. You shall procure, at Your own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit Your use of any text and images uploaded by You into these templates.
7.2 You warrant that any text or image added by You to a template shall not be libelous, obscene, slanderous, false, misleading, defamatory, unethical, pornographic, or illegal, or infringe any third party rights or contain a virus, worm, Trojan, or time bomb or any other malicious code or script, or any downloadable executable software.
7.3 Unsubscribe messages and mechanisms as per 5.4.
8. PRINT AND POST
8.1 All text, data, images and other content and/or materials provided by You or on Your behalf by third parties to EDM for the purpose of Print and Post campaign are and shall remain Your exclusive property ("Mail Content"). You shall procure, at Your own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Mail Content by EDM as required in connection with any Print and Post campaign by EDM and You warrant that all materials including Mail Content delivered by You to EDM in connection with any Print and Post campaign shall not infringe any copyright, patent, trade secret or other proprietary right held by any third party. You are responsible for ensuring the legality of all text, data and images, and for ensuring the accuracy and completeness of all information contained therein prior to the printing and mailing of a Print and Post campaign by EDM.
8.2 After acceptance by You of a proof copy of Your campaign provided to You electronically or by other means, You shall be liable for the whole cost of the campaign. Should You wish to delay or cancel the execution of a campaign, EDM will endeavour on a best efforts basis to accomodate this.
8.3 Everything DM will not be liable in any event, including liability for negligence (except for personal injury or death), to You or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages arising from any delay in printing or postal delivery howsoever caused.
9. LIST OWNER'S SPECIFIC LICENCE TERMS
9.1 If any conflict arises between any other term of this Agreement and the List Owner's specific licence terms in this section 9, the List Owner's specific licence terms shall prevail.
9.2 The Data is owned at all times by the List Owner and copyright and intellectual property rights in the Data shall at all times remain vested in the List Owner.
9.3 The List Owner reserves the right to require You to cease or modify use of Email Data where the List Owner discovers that the E-mail Content is in the List Owners reasonable opinion inappropriate or You have misled the List Owner about the E-mail Content.
9.4 The List Owner's has the following specific licence terms for Data Brokered by EDM
9.4.1 If Licencing data from Omnis Data Ltd. the following terms apply
a. You may not use the Data for sales / marketing of M.B.I. (Mechanical Breakdown Insurance) or other extended warranty automotive and related insurance products (gap, vehicle, keys, tyres, MOT).
b. You may not use the Data for sales / marketing of adult products / offshore products or services / pay day lending products or services.
c. You may not use the Data for sales / marketing of 'cash for gold' activities or similar products or services.
d. You may not use the Data for sales / marketing of 'payment protection insurance (PPI) mis-selling' claims or similar products or services.
e. Any e-mail Broadcast must be carried out by EDM or other third party agreed in writing by EDM and List Owner. Email Data may not be downloaded by You. E-mail Content may be prefixed or suffixed by EDM with an appropriate opt-out mechanism.
9.4.2 If Licencing data from D&B UK the following terms apply
a. The Data is owned at all times by D&B UK or its licensors and copyright in the Data shall at all times remain vested in D&B UK or its licensors (as appropriate).
b. Where You procure the use of Email Data to send e-mails, You must ensure that the recipient is given a simple means to opt-out of receiving further communications and You must forward to the List Owner at s&msgbr@dnb.com the details of any recipients who do exercise their right to opt-out, including any comments that may be made by such recipients in an excel or comma separated format.
9.4.3 If Licencing data from Emailmovers the following terms apply
a. You must prefix your E-mail Content prior to Broadcast with 'Your information has been provided by www.5mins.co.uk'.
b. You must suffix your E-mail Content prior to Broadcast with 'This email has been sent to you in accordance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 governing electronic advertising to 'Corporate Bodies'. If you no longer want to receive newsletters from [insert Your Company Name] click here, or to be removed from all future mailings from www.5mins.co.uk please email deletions@5mins.co.uk with your full contact details'.
9.4.4 If Licencing data from Experian - Business Marketing the following terms apply
a. You acknowledge that the Information may contain data licensed to Experian by third parties (in respect of data licensed by each such third party a ''Third Party Database'') and that the List Owner is contractually restricted from sub-licensing the whole or substantially the whole of any Third Party Database in one single selection of records or in several selections to a single sub-licensee either alone or together with its affiliates. The List Owner reserves the right (without incurring any liability to You) to withhold performance of the Services and/or the provision of any Data to You to the extent that the List Owner reasonably considers this to be necessary in order to comply with this restriction and/or any other obligation of the List Owner to any such licensor of a Third Party database.
b. For Data purchased from Experian's 'Credit Ready' lists, the following applies: 'Credit Ready' is a [systemised] screening service that is intended to be used for marketing purposes only. For the avoidance of doubt, Experian Limited disclaims all implied or express conditions and gives no representations or warranties in relation to the use of 'Credit Ready' for any other purposes (including but not limited to for risk management purposes).
c. For Email Data, You must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via email. You must screen email-marketing lists against in-house suppression files prior to each email marketing campaign. You must not send marketing communications to business email addresses for goods or services that the recipient would only purchase in an individual capacity.
d. For Email Data, You must provide to the email recipient a simple mechanism by which to unsubscribe / opt out of receiving further email marketing messages from You.
9.4.5 If Licencing data from Intelligent Data Group the following terms apply
a. For Email Data, You must operate and maintain an in-house suppression file, listing recipients who have indicated that they do not wish to receive further commercial communications via email. You must screen email - marketing lists against in-house suppression files prior to each email marketing campaign. You must not send marketing communications to business email addresses for goods or service that the recipient would only purchase in an individual capacity.
b. For Email Data, You must provide to the email recipient a simple mechanism by which to unsubscribe / opt out of receiving further email marketing messages from You and all such opt-outs should be provided back to List Owner by email to unsubscribe@intelligentds.co.uk
c. The List Owner reserves the right to require You to cease or modify use of the Email Data where the List Owner discovers that the Email Content is in the List Owners reasonable opinion inappropriate or You have misled the List Owner about the Email Content.
9.4.6 If Licencing data from Oscar Data the following terms apply
a. Only reasonable attempts should be made by You/Your Client to promote Your/Your Client's services/products, repeated calls/faxes and/or any undue pressure being made to any recipient(s) will result in the usage license being cancelled.
b. All messages should make the content of the e-mail clear in the subject line.
c. All message should carry a signature, giving full contact details of the sender/sender's organisation
d. All messages should carry a clear and unambiguous opportunity for recipients to 'opt-out' (not receive any further emails) from future electronic communication
e. You/Your Client should maintain a 'stop list' of contacts that have chosen to opt-out from Your/Your Client’s list. The stop list should be kept and updated directly either by You/Your Client or by Your Agent.
9.4.7 If Licencing data from RGA UK Ltd the following terms apply
a. Where You procure the use of Email Data to send e-mails, You must ensure that the recipient is given a simple means to opt-out of receiving further communications and You must forward to the List Owner at unsubMF@rgaukltd.co.uk the details of any recipients who do exercise their right to opt-out, including any comments that may be made by such recipients in an excel or comma separated format.
9.4.7 If Licencing data from The Schools Marketing Company the following terms apply
a. Where You procure the use of Email Data to send e-mails, You must ensure that the recipient is given a simple means to opt-out of receiving further communications and You must forward to the List Owner at info@schoolsmarketingcompany.co.uk the details of any recipients who do exercise their right to opt-out, including any comments that may be made by such recipients in an excel or comma separated format.
10. DATA QUALITY, COMPLETENESS AND REFUNDS
10.1 You accept that the Data may contain a number of Goneaways and that unless the level of Goneaways exceeds the relevant percentage of the Data (see 10.5) You accept that no replacement Data or refund shall be due in respect of these goneaways. If the level of Goneaways exceeds the relevant percentage or if any other fault arises in the Data, EDM and / or List Owner shall have the right to remedy such fault where possible by re-supplying all or the relevant percentage of the Data. In the event that You do not advise EDM of any defect in the Data within ninety (90) days from the date of receipt thereof in the case of Goneaways or thirty (30) days from the date of receipt thereof in all other cases, You shall be deemed to have accepted the Data.
10.2 Where Data contains name elements (such as salutation, forename, initials, surname) You accept that not all elements will necessarily be present for each record and that no replacement Data or refund will be given for incompleteness of the Data in this instance. You also accept in the case of business data that a named contact may comprise an individual name or job title or both and that job holders are subject to frequent change and that no replacement Data or refund will be given for incorrect or missing contact names or job titles.
10.3 Replacement Data or a refund will be given for the proportion of the purchase price represented by mail, phone, fax and/or email Goneaways subject to You following the procedure indicated in 10.6 - 10.10, provided You have mailed/phoned/faxed/emailed a reasonable number of records (see 10.4) and the Goneaways fall within the relevant definition and the level of Goneaways exceeds the relevant percentage of the Data (see 10.5) and if you have purchased the Data against account facilities provided by EDM you have settled the invoice relating to the Data within the agreed account settlement period.
10.4 If the Data and contact method is not 100% Delivery Guaranteed (see 10.5), before You can make a claim for replacement Data or a refund for Goneaways, You must mail or phone or fax or email (as the case may be) a minimum of 250 records or 20% of the total number of records in the Data whichever is the greater. In the event that there are less than 250 records in the Data, You must mail or phone or fax (as the case may be) all the records in the Data.
10.5 The Data is not 100% Delivery Guaranteed.
For this Data, the percentages of records which must qualify as Goneaways before replacement Data or refund for Goneaways will be given are:
  Addresses: 6%
  Fax Numbers: 10%
  Telephone Numbers: 10%
  Email addresses: 20%
10.6 For 100% Delivery Guaranteed Email Data, the Email Broadcast to Email Data must be carried out within 15 days of purchase of the Email Data and all Hard Bounces must be returned to Everything DM within 7 days of the Email Broadcast for verification. EDM will then refund the data cost of the Hard Bounce. In addition, EDM will pay You a further 10p for B2B emails or 5p for B2C emails per Hard Bounce for records purchased at the price of the smallest volume priceband (e.g. the 1 record price) ("the Base Price"). For records purchased at prices other than the Base Price (e.g. where greater volume pricing has been applied, or where a discount or commission has been given), EDM will give You a pro-rata amount per item (e.g. if the B2B price paid represents a 20% discount to the Base Price, the additional amount will be 10p less 20% = 8p). For records purchased for multiple use, this additional amount per Hard Bounce will only be paid for the first Hard Bounce for each email address.
10.7 For 100% Delivery Guaranteed postal Data, Your mailing must be sent within 30 days of purchase of the Data and Goneaways returned to Everything DM for verification within 90 days of purchase of the Data. EDM will then refund the data cost of the Goneaway and will pay You an additional 50p per Goneaway for records purchased at the price of the smallest volume priceband (e.g. the 1 record price) ("the Base Price"). For records purchased at prices other than the Base Price (e.g. where greater volume pricing has been applied, or where a discount or commission has been given), EDM will give You a pro-rata amount per item (e.g. if the price paid represents a 20% discount to the Base Price, the additional amount will be 50p less 20% = 40p). For records purchased for multiple use, this additional amount per Goneaway will only be paid for the first Goneaway for each address mailed.
10.8 Other claims for replacement Data or refund for Goneaways must be made with supporting documentation (e.g. returned envelopes, call records, fax logs) within 90 days of date of purchase.
10.9 Replacement Data or refund will not be given where supporting documentation is not provided.
10.10 Supporting documentation, which must include the invoice number of the purchase, should be sent to Customer Support, Everything DM Ltd, 8 Arlington Court, Whittle Way, Arlington Business Park, Stevenage, SG1 2FS, UK. Only one claim may be made for each purchase. A separate claim must be made for each purchase. For further assistance, You should contact the Everything DM Customer Support team on +44 (0)1462 437555.
10.11 If You think You are due replacement Data or refund for any reason which is not related to goneaways, You should contact the Everything DM Customer Support team on +44 (0)1462 437555. Any credit card handling fees will not be refunded unless the reason for the refund is due to error on our part. In the event that You are provided a Data Destruction Declaration by EDM, no refund will be given until this has been signed by You and returned to EDM.
10.12 Until and unless a refund has been agreed by EDM, payment for the full amount remains due to EDM and EDM reserves the right to use all and any applicable legal remedies to recover payment from You as well as any additional costs incurred by EDM in so doing.
11. EXCLUSION OF LIABILITY
11.1 To the extent permitted by law, EDM and the List Owner do not make and hereby disclaim any warranty, express or implied. EDM and the List Owner do not guarantee or warrant the correctness, completeness, currentness, or satisfactory quality and fitness for a particular purpose of the Data.
11.2 Neither EDM nor the List Owner will be liable in any event, including liability for negligence (except for personal injury or death), to You or others for any loss or damages, lost revenue or profits,or any indirect or consequential loss or damages resulting from problems caused by the interaction of the Code or Data with Your computer, operating system, other software or data, or from Your use of or inability to use the Code or Data or Sites.
11.3 Neither EDM nor the List Owner will be liable in any event, including liability for negligence (except for personal injury or death), to You or others for any loss or damages, lost revenue or profits, or any indirect or consequential loss or damages resulting from the non-availability of the Site.
11.4 In the event of any claim upheld against EDM or the List Owner, EDM or the List Owner will not be liable to You or others in excess of the Access Fee or the purchase price of the Data.
12. JURISDICTION
12.1 This Agreement is governed by English Law and You agree to submit to the exclusive jurisdiction of the English Courts in respect of any dispute arising.
12.2 All notices shall be given in writing to persons at the locations specified in this Agreement or such other address as either party may designate by notice to the other. Notice sent by post shall be deemed to be delivered seventy-two (72) hours after posting.
12.3 This Agreement contains the entire understanding between the parties hereto and supersedes all previous agreements between the parties. No other terms or conditions (including any written, given verbally or attached to any purchase order form, document or correspondence) shall be included or implied unless agreed upon in writing signed by an authorised officer or representative of each of the parties to this Agreement providing that nothing in this clause shall be deemed to exclude either party's liability for fraudulent misrepresentation.
END OF LICENCE AGREEMENT