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Terms

1. DEFINITIONS
1.1 In these Conditions, the following expressions shall have the following meanings:
"Additional Items" means any goods and/ or services that are provided by the Company in addition to the Services;
"the Company" means EduPost - School Mail Manager and includes any subsidiary company of the Company and reference to the consent authority or agreement of the Company means consent authority or agreement in writing signed by a Director of the Company;
"Contract" means the order placed by the Customer with the Company on these terms and conditions and any other document or documents agreed by the Company to be incorporated in a Contract between the Company and the Customer;
"the Customer" means the person firm or company named below or defined overleaf as the customer;
"the due date" means the first day of each month;
"the Services" means the services or combination of services that the Customer has ordered from the Company;
"Transgression" shall mean any breach of contract, tort or other act of default, omission or statement of the Company its employees, agents or subcontractors in respect of which the Company is liable to the Customer;
"EduPost - School Mail Manager" means the Customer's personal email marketing account on the EduPost - School Mail Manager service.

1.2 Terms defined in the Schedule overleaf (or previously agreed in other applicable documents which forms part of the Contract) have the same meanings in these terms and conditions.

2. THE SERVICES
2.1 The Company shall provide the Services (being EduPost - School Mail Manager), to the Customer pursuant to these terms and conditions. No additions or modifications to or terms inconsistent with these terms and conditions shall be binding unless agreed in writing by the Company. In the event of any inconsistency between these terms and conditions and any other document forming part of the Contract, these terms and conditions shall be paramount unless expressly referred to and varied with the consent of the Company.

2.2 The Customer grants to the Company for the duration of this Agreement a licence to use the EduPost - School Mail Manager service.

3. COMPANY OBLIGATIONS
3.1 The Company shall provide the Services to the Customer with reasonable skill and care and in a professional manner.

3.2 The Company shall provide the Customer with a 24-hour contact service in order that it may notify the Company of any interruptions or any other problems with the Service. The Company shall use all reasonable endeavours to respond to the Customer's notification of interruptions or other problems and to rectify any problems with reasonable diligence.

3.3 The Company shall use all reasonable endeavours to ensure that access to the service is available at an uptime level of 95%. For the avoidance of doubt the uptime availability level does not include downtime attributable to hardware failures. However, the Company will not guarantee or be liable for any breaks in the continuity of the electricity supply or of the telecoms link to the Server that is provided by a third party.

3.4 If the Service is suspended or interrupted the Company shall use all reasonable endeavours to restore the Service with minimum delay.

3.5 EduPost - School Mail Manager is an email marketing solution that should be used for ‘opt in’ email marketing only. It should not be used for the purposes of ‘SPAM’ and evidence of the system being used for SPAM will result in accounts being suspended or terminated. If we receive an unreasonable level of complaints from people receiving unwanted emails from your account, this will result in accounts being suspended or terminated.

4. CUSTOMERS OBLIGATIONS
4.1 The Customer undertakes that the Service shall not be used directly or indirectly for any unlawful purpose. Unlawful purposes are deemed to include but are not limited to: -

4.1.1 civil and criminal offences of copyright and trademark infringement;
4.1.2 transmission or display or posting of indecent, obscene or pornographic material;
4.1.3 commission of any criminal offence (including deliberate transmission of computer viruses) under the Computer Misuse Act 1990 or similar legislation in any country;
4.1.4 any transmission or display or posting of any material which is defamatory, offensive, abusive, or menacing character or which causes annoyance, inconvenience or needless anxiety to any other person;
4.1.5 transmission or display or posting of any material in breach of the Data Protection Act 1998 (or any replacing statute) dealing with data protection or similar legislation in any other country or of any material which is confidential or is a trade secret;
4.1.6 use of the service in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere;
4.1.7 the use of the service for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing "links" or "how to" information to such material.

4.2 The Customer will indemnify the Company against all and any losses and costs that the Company may incur as a result of any breach of Clause 4.1 above.

4.3 The Customer will ensure that that the Website complies with the laws, regulations and requirements of any country from which it can be accessed.

4.4 If the Company has reasonable grounds for believing that there has been or that they may be a breach of this Agreement, and in particular a breach of Clause 4.1, the Company reserves the right to monitor any and all communications passing through the Server in connection with the Service.

4.5 If the service is used for any unlawful use the Company may suspend or terminate the Services immediately and at the same time as suspension or termination occurs the Company shall notify the Customer.

5. TERM AND PRICE
5.1 This Agreement will continue for the "Term" specified overleaf (or previously agreed in other applicable documents which forms part of the Contract) and thereafter it will continue until and unless either party terminates the Agreement by serving one month's written notice on the other party.

5.2 The fee for the Services shall remain in force for the duration of the Term. Thereafter the Company reserves the right to increase the service fee after providing the Customer with one month's written notice of the fee's increase.

5.3 The Customer shall pay the service fee by standing order or credit card payment on the due date.

5.4 The Company reserves the right to terminate the Contract immediately if the service fee is not received within 7 days of the due date.

5.5 Any Additional Items must be paid for within 30 days of the date of the invoice.

5.6 If all or part of the price for the Contract or any Additional Items remain unpaid after the due date the Company shall be entitled to charge interest on any unpaid balance at 4% above Barclays Bank plc lending base rate for the time being, such interest being paid in full together with the unpaid balance.

6. TERMINATION
6.1 The Company shall be entitled to terminate the Contract forthwith and recover all losses or damage resulting to the Company (including but without limitation to loss of profit or other consequential loss) if:

6.1.1 the Customer has a bankruptcy petition presented against him, or a bankruptcy order is made, if the Customer makes or seeks to make any composition or arrangement with his or its creditors, if the Customer makes a proposal to his creditors for a voluntary arrangement or applies for an interim order, if an encumbrancer takes possession of any of the Customer's assets, or any of the Customer's assets are taken in execution or process of law, if a petition is presented or an order is made or a resolution is passed for the winding up of the Customer, if a petition is presented or an order is made for an administration order to be made in relation to the Customer, or if a receiver or administrative receiver is appointed over any of the Customer's assets; or
6.1.2 the Customer fails to make any payment owed to the Company on the due date as specified in Clause 5;
6.1.3 the Customer is in breach of any contract with the Company (including this Contract) and fails to remedy the same within seven working days of written notice requiring the same or immediately if the breach shall be not be capable of remedy.

6.2 Termination shall be without prejudice to the rights of any party accrued at the date of such termination.

6.3 Upon termination the account shall be deleted from the Server, unless agreed otherwise by the parties.

7. INTELLECTUAL PROPERTY
7.1 Copyright in all software that is supplied by the Company remains the property of the Company or that of its licensor.

7.2 The Customer shall indemnify and keep the Company indemnified from and against the consequences of the Company suffering any claims of infringements of copyrights, patents, trademarks, industrial designs or other property rights arising from the provision of the Services.

7.3 In the event that any such infringement occurs or may occur, the Customer may request the Company to modify and / or amend the account content or infringing part thereof so that the same becomes non-infringing and if the Company agrees to modify and / or amend the account content the Company shall be entitled to charge for the additional cost for making the modifications and /or amendments which shall be chargeable at the Company's then current hourly rate.

7.4 The Customer warrants that it has obtained (and for future use, will obtain) all necessary consents, approvals and licences from any third party who has intellectual property rights incorporated as part of the email communication, whether now or in the future.

8. PERFORMANCE AND FORCE MAJEURE
8.1 The Company shall take all reasonable steps to perform its obligations under the Contract. The Company shall not be liable for suspension or interruptions to the Service which shall not entitle the Customer to rescind the Contract.

8.2 Without prejudice to the generality of Clause 8.1, the Company shall have no liability for any delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of computer hardware or parts thereof, telecoms connections or power supply or any other cause or causes beyond the Company's reasonable control.

9. EXEMPTIONS AND EXCLUSIONS
9.1 The Company shall not be liable to the Customer for any loss, injury or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Contract, or the Services except as specified in Clause 9.3 or to the extent to which it is otherwise unlawful to exclude such liability.

9.2 Notwithstanding the generality of 9.1 above, the Company expressly excludes liability for consequential loss, indirect damages, or corruption to other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.

9.3 The Company accepts liability for death or personal injury to the extent that it results from the negligence of the Company, its agents or its employees or authorised representatives.

9.4 To the extent that the Company is held legally liable to the Customer for any single Transgression, the Company's liability for the same shall not exceed the value of the Contract. A number of Transgressions whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression.

10. NON-SOLICITATION OF STAFF
10.1 The Customer undertakes that it shall not during this Agreement and for a period of one-year following its expiry or termination employ or contract the services of any person who is or was employed or engaged by the Company in connection with the Contract.

11. WAIVER
11.1 Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Company's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Company's rights to take subsequent action.

12. NOTICES
12.1 Any notice required under the Contract shall be deemed served if sent by registered or recorded delivery post or by facsimile or e-mail addressed to the party for whom it is intended at such party's registered or main office or last known address and shall be deemed to have been served 48 hours after the date of posting or 12 hours after the time of transmission if by facsimile or e-mail.

13. LEGAL CONSTRUCTION, INTERPRETATION AND LIMITS OF THE CONTRACT
13.1 The Contract shall be governed in all respects by English Law and shall be subject to the jurisdiction of the English Courts. The text of this Contract and these terms and conditions written in the English language is the authentic text and any difficulties or uncertainties arising shall be solved solely by reference to that text.

13.2 Save for statement or representations confirmed in writing in this Contract, no oral statements of whatsoever nature and by whomsoever made shall form part of the Contract. In contracting with the Company the Customer acknowledges that he has not relied on any oral statements or representations made to him save those confirmed as aforesaid.

13.3 Clause headings are for convenience only and do not affect the construction of this document.