Inbox Insight Limited
General Conditions for the Supply of Services, 2018 Edition
Inbox Insight Limited
The Client’s attention is drawn to the limitations of liability contained in these Conditions and in particular to the provisions of Clauses 4, 5, 8.3, 8.5, 9, 13, 16, 20 and 21 below.
In these Conditions:
1.1 “Inbox Insight” means Inbox Insight Ltd (registered in England under number 7179598) whose registered office is at 1 Exchange Square, Jewry Street, Winchester, Hampshire, SO23 8FJ (“Inbox Insight”).
1.2 “Booking Form” means the booking form submitted by the Client outlining the services to be supplied by Inbox insight comprising (i) assistance from Inbox Insight drafting and settling an email advertisement and (ii) submitting that email to selected recipients in the Database and (iii) contacting recipients on the telephone.
1.3 “Business Day” means a day other than a day which is a Saturday, Sunday or a public holiday in either England or the country in which the Client is situated.
1.4 “Client” means a company, person, partnership, authority or other undertaking who orders or buys the Services.
1.5 “Clause” means a clause of these Conditions.
1.6 “Contract” means the contract for the supply of Services by Inbox Insight to the Client.
1.7 “Database” means the database comprising details of individuals whom Inbox Insight has assembled in order to provide email advertising campaign services to Clients.
1.8 “Deliverables” means all Documents and materials (including without limitation artwork and copy) that Inbox Insight agrees to provide to the Client as part of the Services.
1.9 “Fees” means Inbox Insight’s fees for the Services as indicated in Clause 7 and the Booking Form.
1.10 “Intellectual Property Rights” means patents, registered and unregistered trademarks, registered and unregistered designs, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world, confidential information, business names, brand names, copyright and rights in the nature of copyright and get up, know how, domain names, inventions, service marks, and database rights and like rights wherever situated in the world.
1.11 “Material for Publication” includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying copy or content in any form submitted to Inbox Insight by or on behalf of the Client for publication.
1.12 “Party” means Inbox Insight or the Client.
1.13 “Proposal” means the email or letter from Inbox Insight (if any) offering to undertake Services and describing itself as a “proposal”, and which email or letter does not form part of the Contract between the Parties.
1.14 “Services” means the services and materials to be provided by Inbox Insight under the Booking Form and any such further services as Inbox Insight agrees to provide to the Client.
1.15 “Subscriber” means an individual on the Database.
1.16 “Suitable” material means any material that is not any of the following: obscene, hateful, profane, defamatory, which contains racist terminology or images of pornography or which is intended to annoy, harass or intimidate another person; material which contains discriminatory remarks; material which is in breach of a third party’s Intellectual Property Right; or material which is otherwise antisocial in nature or is otherwise unlawful.
1.17 “Third Party” means a company, person, partnership, authority or other undertaking other than a Party.
1.18 “VAT” means value added tax chargeable under English law for the time being and any similar, additional or replacement tax.
1.19 In these Conditions:
a) the headings are for convenience only and shall not affect the interpretation of these Conditions;
b) the use of the plural shall include the singular and the use of the singular shall include the plural;
c) where the words include(s), including or in particular are used, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them;
d) references to the masculine, feminine or neuter genders shall include each and every gender;
e) references to any statutory provision includes a reference to that statute or statutory provision a from time to time amended, extended or re-enacted.
2 APPLICABILITY OF TERMS AND CONDITIONS
2.1 The provisions in these Conditions shall apply to any contract between Inbox Insight and the Client arising from any Proposal or Booking Form referring to these Conditions.
2.2 These Conditions shall prevail over any contract provisions which the Client may purport to apply whether in correspondence or under a purchase order, letter of intent, confirmation of order or similar document, including any implied from a course of dealing.
2.3 The copyright and other Intellectual Property Rights in a Proposal and the Booking Form shall at all times belong to Inbox Insight. The Client shall not make copies of a Proposal or the Booking Form save with the prior consent of Inbox Insight granted in writing or by e-mail. The Client shall treat the contents of a Proposal and the Booking Form as Confidential Information of Inbox Insight pursuant to the provisions of Clause 12 below.
2.4 To the extent of any conflict between the Booking Form and these Conditions, the Booking Form shall prevail.
3 APPOINTMENT AND DURATION
3.1 The Client hereby appoints Inbox Insight to provide the Services to the Client on and subject to the provisions of these Conditions. Any other services provided by Inbox Insight to the Client shall be provided subject to the provisions of these Conditions.
3.2 The Contract shall continue until the Services are completed unless the Contract is terminated earlier in accordance with Clause 15.
3.3 Nothing in these Conditions or any Contract shall be interpreted as requiring either of the Parties to enter into any future Booking Form.
3.4 A Booking Form shall become binding only when an acknowledgment of the signed Booking Form has been sent by email by Inbox Insight to the Client.
3.5 For the avoidance of doubt the entry into every booking form shall be regarded as a new contract between Inbox Insight and the Client.
4 INBOX INSIGHT’S OBLIGATIONS, PUBLICATION
4.1 Inbox Insight shall provide the Services with the reasonable skill and care equivalent to that which may reasonably be expected of consultants providing services of a similar scope, type, nature and complexity to the Services.
4.2 Inbox Insight shall in its absolute discretion be entitled to restrict the publication of any Material for Publication which it deems unsuitable for publication. Notwithstanding the same the failure to exercise such right shall not detract from the Client’s responsibilities in respect of all Material for Publication.
4.3 In particular it is the Client’s sole responsibility to ensure that all Material for Publication is Suitable for publication.
4.4 The Client shall be responsible to compensate Inbox Insight fully and effectually from and against and in respect of all costs, claims, liabilities and demands relating to or arising from any failure by the Client (i) to ensure that the Material for Publication is not Suitable for publication and also in respect of any loss, damage, expense or injury sustained by any Third Party howsoever caused where such loss, damage, expense or injury arises out of a claim that the Material for Publication by Inbox Insight on the Client’s behalf is not Suitable for publication or (ii) to comply with any of the Client’s obligations set out in Clause 5 below.
5 CLIENT’S OBLIGATIONS
5.1 The Client shall provide in a timely manner any Material for Publication, calculation, determination, facilities, assistance, information, specifications, materials, comment, approval and access to personnel and facilities (i) as may be specified in this Contract or (ii) which Inbox Insight may reasonably require for the performance of the Services (the “Client Provided Information”). The Client shall ensure that the Client Provided Information is accurate in all material respects, unambiguous, legible and that it meets the Client’s requirements. The Client shall pay Inbox Insight any additional charges arising from errors or delays in providing the Client Provided Information.
5.2 Without prejudice to the provisions of Clause 5.1 above, any Material for Publication, copy, content, logo and supporting materials must be settled and received by Inbox Insight no less than three clear Business Days before any agreed publication date, in order for Inbox Insight to meet that publication date.
5.3 Inbox Insight shall not be liable for any loss, damages, costs or expenses incurred or suffered by a Subscriber arising (directly or indirectly) from any inaccuracy, ambiguity or illegibility of the Client Provided Information. The same shall be true irrespective of any review of the Client Provided Information by Inbox Insight, which review is undertaken solely for the benefit of Inbox Insight.
5.4 The Client shall be responsible for obtaining and maintaining all necessary licences and consents as may be required for the performance of the Services, unless and to the extent (if any) Inbox Insight has indicated to the contrary in the Booking Form. This obligation shall not apply to data protection legislation as it applies to the Database and its use.
5.5 For the avoidance of doubt, the Client is solely responsible for the content and accuracy of any information or the quality or performance of any good and services provided to Subscribers (including without limitation for the quality of the Material for Publication). Without prejudice to the previous sentence, where the Client is an agency working for a third party principal, the agency shall in addition procure that its principal accepts responsibility for that content, accuracy, quality and performance.
5.6 The Client shall promptly inform Inbox Insight of any email the receipt of which is rejected and in any event shall inform Inbox Insight within 72 hours of becoming aware of such rejection.
6 CHANGED OR ADDITIONAL SERVICES
Either Party may request a change to the scope or execution of the Services. Inbox Insight has no obligation to perform any changed or additional services unless and until the Parties have agreed (in writing or by e-mail) the necessary variations to the Fees, the Services, and any other relevant terms of the Contract to take account of the change and the Contract has been varied in accordance with Clause 17. Notwithstanding the previous sentence and of Clause 17 below, where Inbox Insight does undertake any variation at the written or verbal request of the Client, the Client shall be liable to pay for that variation in accordance with Inbox Insight’s standard charges for time, materials and services from time to time prevailing.
7.1 The fees will be as specified in the Booking Form. All Fees are payable in the currency specified in the Booking Form.
7.2 Inbox Insight shall notify the Client of any significant changes to any estimates of the fees previously provided by Inbox Insight.
7.3 Save as expressly stated otherwise by Inbox Insight in writing, fees are quoted by Inbox Insight exclusive of Value Added Tax, which Inbox Insight shall add to the invoice (and which the Client shall be liable to pay for) at the appropriate prevailing rate.
8.1 In consideration of the provision of the Services by Inbox Insight, the Client shall pay to Inbox Insight the Fees.
8.2 Inbox Insight shall be entitled to invoice the Client for payment and to submit an invoice to the Client on commencement of the relevant campaign by Inbox Insight, save to the extent indicated to the contrary in the Booking Form.
8.3 Where any acceptance of Deliverables is to be undertaken by the Client then:
a) the Client shall raise any query regarding a Deliverable within three Business Days unless a contrary period is explicitly stated in the Booking Form;
b) where the Client fails to raise any queries within the time period indicated in Clause 8.3(a), Inbox Insight may deem acceptance of the relevant Deliverable to have occurred and proceed with the Services and raise any invoice accordingly;
c) the Client shall in any event not unreasonably withhold or delay any acceptance of a Deliverable;
d) where there has been any acceptance of a Deliverable on behalf of the Client that acceptance shall be taken as unconditional acceptance of that Deliverable on behalf of the Client; and
8.4 The Client shall pay Inbox Insight’s invoice in full within thirty (30) days of the date of Inbox Insight’s invoice.
8.5 All sums payable under the Contract shall be paid by the Client in full without deduction, withholding, set-off or counterclaim save as may be required by law.
8.6 Payment is not dependent upon the number or proportion of responses unless a guaranteed number of leads has been explicitly agreed in the Booking Form.
8.7 For the avoidance of doubt, where the Client is an agency working for a third party principal, payment shall be due form the agent irrespective of any payment being withheld or delayed to the agent by the agent’s principal.
8.8 If Inbox Insight does not receive a payment or part of a payment from the Client by the due date, then without prejudice to Inbox Insight’s other rights or remedies:
(a) Inbox Insight shall be entitled to charge the Client simple interest on any sums paid late pursuant to the Contract from the due date until the date of payment. Such interest shall be calculated on a daily basis at the rate of three per cent (3%) above the base lending rate of Barclays Bank plc from time to time prevailing, as well after as before any judgment;
(b) Inbox Insight shall have the right to suspend performance of the Services until the Client pays all monies due; and
(c) Inbox Insight shall be entitled to require payment in full in advance for all other monies due under the Contract before performing the remainder of the Services.
Any estimate or indication by Inbox Insight as to the number of man days or time required by Inbox Insight to undertake a specific task and any date for delivery shall be construed as being an estimate only. Inbox Insight shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature suffered or incurred by the Client where such estimate or indication is incorrect.
10 PROPERTY IN DELIVERABLES
Notwithstanding delivery and the passing of risk in the Deliverables, the property in (including without limitation any copyright in) the Deliverables shall not pass to the Client until Inbox Insight has received payment in full for the Deliverables.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 The Client acknowledges and agrees that all Intellectual Property Rights in the Services, the Deliverables and the Database (including without limitation database rights in the Database) shall vest in and shall be and remain the sole and exclusive property of Inbox Insight.
11.2 Any access to the Database by the Client, whether or not permitted by Inbox Insight shall not give the Client any continuing right of access to the Database. The Client shall not attempt to recreate the whole or any part of the Database from any access to the Database which the Client may have or from the responses which the Client may receive to any mailshot sent using the Database.
12.1 Each Party agrees with the other in respect of all information of the other Party of a confidential nature disclosed pursuant to the Contract or discovered further to the operation of these Conditions (which includes without limitation in the case of information belonging to Inbox Insight information as to the operation of the business of Inbox Insight and information relating to the structure of the Database) (the “Confidential Information”):
a) to use its reasonable endeavours to keep the Confidential Information in strict confidence and secrecy;
b) not to use the Confidential Information save for complying with its obligations under the Contract;
c) not to disclose the same to a Third Party;
d) to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who reasonably need the same in the performance of their duties as envisaged by these Conditions and in such circumstances to ensure that such employees and others are aware of the confidential nature of the Confidential Information, and to use its reasonable endeavours to enforce that duty of confidence in respect of those employees and others;
provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under the Contract) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
12.2 This obligation of confidentiality shall survive any termination of the Contract.
13 LIABILITY AND INSURANCE
13.1 Save as expressly provided in these Conditions or in any individual Contract, all terms, conditions and warranties implied by statute, common law or otherwise howsoever arising are excluded to the fullest extent permitted by law. The Client is solely responsible for satisfying itself and others as to the suitability of the Services for any particular purpose and the Client acknowledges that it is relying solely on the Client’s own skill and judgment and not Inbox Insight’s in determining such suitability. Inbox Insight’s only warranty is that the Services shall be supplied with reasonable skill and care as more particularly provided for in Clause 4.1 above.
13.2 Inbox Insight’s charges to the Client are determined on the basis of the exclusions from and limitations of liability contained in these Conditions. The Client expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the possibility that the amount of damages awardable to the Client for a breach by Inbox Insight of the Contract may be disproportionately greater than the monies payable for the Services.
13.3 The following provisions in this Clause 13 set out Inbox Insight’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Client in respect of:
a) a breach of Inbox Insight’s contractual obligations;
b) a tortious act or omission for which Inbox Insight is liable;
c) an action arising out of a misrepresentation made by or on behalf of Inbox Insight;
arising in connection with the performance or contemplated performance of this Contract or out of an act done or omission made as a consequence of the entry into by Inbox Insight of this Contract.
13.4 The total liability which Inbox Insight shall owe to the Client and in respect of all claims howsoever arising pursuant to this Agreement shall not exceed an amount equal to five hundred thousand pounds (£500,000).
13.5 Without prejudice to the operation of Clause 13.4, where a breach of security by Inbox Insight occurs for which breach Inbox Insight is liable to compensate more than two customers, Inbox Insight’s total liability to the Customer in respect of all claims howsoever arising pursuant to this Agreement out of that breach of security shall not exceed an amount equal to £*.
13.6 Inbox Insight shall in no circumstances be liable to the Client for any pure economic loss, loss of profit, loss of business and like loss. Inbox Insight shall in no circumstances be liable to the Client for any indirect loss.
13.7 The Client shall only be entitled to bring a claim against Inbox Insight where the Client issues legal proceedings against Inbox Insight within the period of twenty four (24) months commencing on the date upon which the Deliverables or the Services in respect of which a claim is being made were delivered by Inbox Insight.
13.8 The exclusions from and limitations of liability referred to in this Agreement do not apply so as to exclude or limit Inbox Insight’s liability for:
a) death or personal injury resulting from the negligence of Inbox Insight, its servants or agents;
b) damage for which Inbox Insight is liable to the Client under Part I of the Consumer Protection Act 1987 and where the Client acts as a consumer pursuant to that Act; or
c) breach of Inbox Insight’s implied undertaking as to title or the warranty as to quiet possession implied by law or statute;
save that nothing in this Clause 13 shall confer a right or remedy upon the Client to which the Client would not otherwise be entitled.
13.9 The exclusions from and limitations of liability set out in this Clause 13 shall be considered severably. The validity or unenforceability of any one part of this Clause 13 shall not affect the validity or enforceability of any other part of this Clause 13.
13.10 The provisions of this Clause 13 shall survive the termination of this Contract.
14 DATA PROTECTION
14.2 The Client shall comply with all applicable data protection laws. Without limitation, the Client shall seek the appropriate justification for processing the data of Subscribers who respond to the Material for Publication. Where the Client is an agency working for a third party principal, the agency shall in addition procure that the third party principal shall (i) comply with all applicable data protection laws and (ii) obtain the appropriate justification for processing the data of Subscribers who respond to the Material for Publication.
15 SUSPENSION AND TERMINATION
15.1 For the purposes of this Clause 15, a “Termination Event” means where:
a) the Client makes any voluntary arrangement with its creditors or (being an individual (or in the case of a partnership, any partner) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or has an administrator or administrative receiver appointed over the whole or any part of its assets; or
b) an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Client; or
c) the Client ceases, or threatens to cease, to carry on business; or
d) any event takes place in any jurisdiction other than England which is analogous to any of the above provisions of this Clause 15.1; or
e) the Client is in breach of any material provision of this Contract (including any late or non-payment of any sums payable hereunder) and fails to remedy such breach within thirty (30) days of a notice from Inbox Insight indicating the breach and requiring the Client to remedy the same.
15.2 Where a Termination Event occurs then, without prejudice to any other right or remedy available to Inbox Insight, Inbox Insight shall be entitled to suspend any further deliveries or the provision of any Services under the Contract.
15.3 Where a Termination Event occurs and if any Deliverables have been delivered but not paid for, the price for those Deliverables and any Service connected with them shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15.4 At any time after a Termination Event occurs and whether the Deliverables have been delivered or not, Inbox Insight may, without prejudice to any other right or remedy, terminate the Contract with immediate effect by written notice so to do.
15.5 Any termination of the Contract shall be without prejudice to the antecedent rights and remedies of the Parties.
15.6 On termination of the Contract the following Clauses shall survive and continue in full force and effect: Clauses 1, 2, 3, 4.2, 4.3, 4.4, 5, 7, 8, 9, 10, 11, 12, 13, 14.2, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26.
16 FORCE MAJEURE
16.1 In this Clause 16, “Force Majeure Event” means an event beyond the reasonable control of the Party claiming the benefit of this Clause (including its sub-contractors) including act of God, war, riot, civil commotion, compliance with a law or governmental order, rule, regulation or direction, fire, flood, storm, strike or other industrial action (including strike or other industrial action by the employees of the Party claiming the benefit of this Clause), failure by any statutory undertaking, utility company, internet service provider, local authority or like body to provide services, any failure, shortage or significant price increase of power, fuel, raw material or transport.
16.2 A Party shall not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract to the extent that the same arises from a Force Majeure Event.
16.3 The Party claiming the benefit of this Clause 16 shall:
a) give the other Party notice as soon as reasonably practicable of the said Force Majeure Event; and
b) use and continue to use its reasonable endeavours to overcome the said Force Majeure Event and to minimise the effect of the Force Majeure Event.
All variations to the Deliverable or the Services or to be supplied pursuant to the Contract or these Conditions shall be valid only if made in writing and signed by both Parties or recorded by exchange of e-mail. Notwithstanding the previous sentence, where Inbox Insight acts on a request for such a variation which is made orally or by e-mail by or on behalf of the Client, Inbox Insight shall be entitled to levy a reasonable and proper charge for the work done in respect of that variation.
Save in respect of a waiver granted in writing, the failure of Inbox Insight at any time to enforce a provision of this Contract shall not be deemed a waiver of such provision or of any other provision of this Contract or of Inbox Insight’s right thereafter to enforce that or any other provision of this Contract.
If a provision in this Contract is determined by a Court or tribunal of a competent jurisdiction to be wholly or partly unenforceable for any reason:
a) such unenforceability shall not affect the rest of this Contract; and
b) the parties shall in good faith amend and if necessary novate this Contract to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.
20 ENTIRE AGREEMENT
20.1 These Conditions and the Booking Form constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of these Conditions, a Proposal or the Booking Form.
20.2 The Client acknowledges that in entering into the Contract, it has not relied upon any representation made by or on behalf of Inbox Insight (including without limitation any made in a Proposal but not repeated in the Contract) save to the extent that any such representation is set forth in writing and expressly included in the Contract. Nevertheless nothing in the Contract shall be taken to exclude Inbox Insight’s liability for a fraudulent misrepresentation made by Inbox Insight.
All descriptions, illustrations and information contained in Inbox Insight’s catalogues, price lists, web site, circulation figures, advertising matter and other publications (including without limitation in any Proposal) shall be regarded as approximate only and are to present merely a general idea of the services described in them and shall not form part of the Contract or be deemed to import any warranty regarding the Services. Furthermore, any time estimated by Inbox Insight for the generation of leads from Subscribers shall be regarded as an approximation only, save to the extent that the contrary is explicitly stated in the Booking Form.
The Client shall not be entitled to assign the benefit or burden of the whole or any part of the Contract without the prior written consent of Inbox Insight. Inbox Insight may sub-contract the performance of its obligations as it sees fit, provided always that Inbox Insight shall remain responsible for the acts and omissions of its subcontractors.
Nothing in these Conditions shall create any joint venture, agency or partnership between Inbox Insight and the Client.
24 THIRD PARTY RIGHTS
A person who is not a Party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Contract.
25.1 Any notice to be given pursuant to these Conditions shall be in writing and may be served and if so served shall be sufficiently served if:
(a) sent by pre-paid first class post or express air mail post; or
(b) delivered by hand; or
(c) sent by e-mail;
and shall in the case of delivery by first class post be deemed to have been delivered two Business Days after the letter was posted, in the case of delivery by express air mail class post be deemed to have been delivered five Business Days after the letter was posted, in the case of delivery by e-mail the day after the error free e-mail transmission was made or if delivered by hand on the day of delivery.
25.2 The address for notices for each Party is as set out in these Conditions or as may be notified by a Party from time to time.
26 PROPER LAW
The Contract shall be construed and take effect in accordance with the laws of England. The Parties hereby accept the non-exclusive jurisdiction of the English Courts in connection with any dispute relating to the formation, construction or performance of the Contract or any related tortious claim.