Terms and Conditions

BACKGROUND

(A)       Alkaline Solutions Limited trading as popcorn email marketing

(B)       Popcorn is a provider of email marketing and data processing services in particular the provision of marketing tools, management information, storage and support.

(C)       The Customer wishes to engage Popcorn to provide the Services, as set out in these Terms and Conditions.

 

AGREED TERMS

1.   Interpretation

1.1         The following definitions apply in this Agreement:

“Confidential Information” means any information whether communicated orally or in a document or other form which relates to the business of Popcorn including without limitation any information relating to products, customers, pricing, policies, methods, business plans and strategies, technical process and financial affairs in all cases whether expressly stated to be confidential or not

Contract” means the Payment Plan option for the payment of Services based on a fixed tariff pricing system as more particularly detailed on the Site. Customers who purchase Services on a Contract basis may send a specified number of emails for a fixed price, any further emails sent each month will be charged as an additional fee

“Customer” shall include you the individual and or partnership and or limited company or such other entity

Fees” means Popcorn’s Set-up Fee and Monthly Fees and/or Monthly Pay As You Go Fees for the Services as agreed between the parties and such other additional charges as may be agreed between the parties from time to time to include one off upgrade fees from time to time imposed by Popcorn for additional upgrades to the Service.

Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, Trade Mark, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Material” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to Popcorn but for the avoidance of doubt does not include material belonging to the Customer.

Monthly Fees” means Popcorn’s fees for the Services which will be charged on a monthly basis in accordance with the Payment Plan agreed between the parties.

Package” means the type of account and level of access granted to the Customer for the Use of the Services which is agreed between the parties and set out in the front page of this Agreement. There are four packages available details of which can be found on the “pricing, package types” section of the Site. They are:

(a) ”Small”

(b) ”Medium”

(c) ”Large”

(d) “Extra large

(e) ”Agency”

Pay As You Go” means the Payment Plan option for the payment of Services based on the number of emails sent by Popcorn on behalf of the Customer as more particularly detailed on the Site. “Payment Date” means the date on which Monthly Fees are due.

Payment Plan” means the pricing system agreed between the parties which will either be on a Contract or Pay As You Go basis.

Services” means Popcorn’s data processing services and provision of Software for use by the Customer in accordance with the access level specified in Package. Specifically:

(a) Popcorn provides the Software to manipulate the personal data collected;

(b) Popcorn provides the facilities for the Customer to send emails to data subjects who have expressly consented in writing to the Customer sending them such emails; and

(c) Popcorn provides facilities for the Customer to export personal data together with such other services agreed between Popcorn and the Customer from time to time or ancillary to the Services.

Set-up Fee” means the one off fee charged by Popcorn for the set-up of the Customers Professional and Enterprise Packages.

Site” means Popcorn’s website at www.popcornmail.co.uk

Software” means Popcorn’s data management and manipulation software.

Trade Mark” means Popcorn’s unregistered trade mark and logo and any future registration of either of these marks or any similar mark or branding of Popcorn or of any associated companies or third parties provided or used as a part of these Services or any application for registration anywhere in the world.

Use” means direct use of the Services for email marketing, as a survey tool, as a microsite builder and such other use as may be, in accordance with the Package, used by the Customer in accordance with this Agreement.

VAT” means value added tax chargeable under English law for the time being and any similar additional tax.

Working Hours” means 10.00 to 16.00, Monday to Friday UK local time excluding statutory holidays in England and Wales.

1.2         Except where the liability of a party would be increased as a result, a reference to a particular statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it.

1.3         Clause, schedule and paragraph headings shall not affect the interpretation of these Terms and Conditions.

1.4         Words in the singular shall include the plural and vice-versa.

1.5         A reference to one gender includes a reference to the other gender.

1.6         References to “party” shall mean the Customer or Popcorn and “parties” shall refer to both the Customer and Popcorn;

1.7         A reference to writing or written includes faxes and email;

2             Application of Terms

2.1         Popcorn shall provide the Services to the Customer for the duration of the Term in accordance with this Agreement.

2.2         Subject to any modification under clause 12 the provision of the Services by Popcorn and the Use of the Services by the Customer shall be in accordance with and subject to this Agreement to the exclusion of all other terms and conditions.

2.3         By entering into this Agreement each party warrants to the other that they have the power and authority to enter into these Terms and perform its obligations under these Terms.

2.4         The Customer herein agrees to complete the online bank mandate for the purpose of payment of the Monthly Fees pursuant to this agreement with such party as Popcorn may from time to time determine (on the basis that these fees may be payable to a third party, for examplePayPal).

2.5         The Customer will comply with all additional rules and obligations that Popcorn may from time to time require the Customer to comply with for the provision of the Services.2

3.   Scope of the Agreement

3.1         The Customer will be liable to pay the Fees for the Initial Term and/or Renewal Term even if the Agreement is terminated prior to the expiry of the Initial Term or Renewal Term in accordance with this Agreement save for termination in accordance with clause 7

3.2          Without prejudice to its other rights in the Agreement Popcorn reserves the right to immediately remove any item (including data) included in any emails forming part of the Services or any other item or material made available via the Services by the Customer at any time and without notice, where the content is in Popcorn’s reasonable opinion a breach of the Agreement. Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause

3.2         Popcorn shall not be responsible for the content of any emails sent by the Customer to a third party for the purposes of the Services.

4.   Supply of Services

4.1.        Popcorn shall provide the Services with such reasonable care and skill as may reasonably be expected from a company experienced in the provision of services of the type, scope and complexity of the Services.

4.2.        Popcorn may from time to time use third parties based anywhere in the world to host the Popcorn application servers for the provision of the Services. Popcorn shall not be liable for any breaches of this Agreement as a result of an act or omission of such a third party.

4.3.        Whilst Popcorn will use all reasonable endeavours to ensure that the Services are uninterrupted during Working Hours, Popcorn does not warrant that the Services will be uninterrupted, error, bug or virus free and/or that the delivery of emails will be without delay.

4.4.        Popcorn shall not be responsible for the failure of the delivery of emails howsoever incurred including, but not limited to, failure of delivery due to an incorrect email address, due to anti-spam filters and/or due to any other issues with the recipient’s email inbox.

4.5.        Whilst Popcorn will use all reasonable endeavours to assist the Customer with methods to maximise the delivery rate of emails, Popcorn makes no representations and/or warranties whatsoever about the speed or number of emails sent that will be delivered to recipients.  Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 4 including any breach of laws which relates to any unsolicited emails anywhere in the world.

4.6.        Popcorn will process information about the Customer in accordance with clause 8. By using the Site, the Customer consents to such processing and warrants that all data provided by the Customer is true, accurate and up-to-date notwithstanding anything else herein contained, the Service contains a spam checker to highlight key words and phrases which may be caught by spam filters but cannot guarantee that these will work for every email which is used pursuant to the Services.

4.7.        Where the Site contains links to other sites and resources provided by third parties, these links are provided for the Customer’s information only. Popcorn shall not be responsible or liable for the availability or content of such other sites or resources and accepts no responsibility or liability for any loss or damage that may arise from the Customer’s use of third party sites or Materials.

4.8.        Popcorn cannot guarantee that the Site and the system upon which it operates is impenetrable to hacking by third parties and as such the Customer acknowledges that Popcorn is not liable for any loss, damage or costs as a result of the same.

4.9.        The Customer acknowledges that:

(a)        where websites are copied for the purposes of a loading page and email templates then the Customer has the authority of the third party and such authority will extend to Popcorn and to the extent that the Customer does not have such authority then the Customer shall indemnify Popcorn for any loss or damage incurred howsoever.

(b)        any prospects provided by the Service should not be used by the Customer for the purpose of pressure sales.

(c)        an events page can only provide a link to PayPal and as such, Popcorn are not responsible for financial transactions which may be undertaken by PayPal or any other third party financier.

(d)        social media pushing can only be done in accordance with such conditions that such third party social media providers impose and with the consent of account holders.

(e)        upon termination of this Agreement howsoever, Popcorn will stop collecting data for the provision of the Service.

(f)        any data provided may be archived after six months at which point in time there can be no access to such data by the Customer.

5.            Customer’s Obligations

5.1         The Customer shall not:

(a)          use the Services in any way so as to bring the Services or Popcorn into disrepute;

(b)          use the Services to send unsolicited or unauthorised advertising, unsolicited bulk email support services, promotional material, junk mail, spam, chain letters or pyramid schemes, offensive adult services, pornographic material, pornographic images, discriminatory material, communications promoting email address data lists and/or any other form of solicitation to any data subjects and/or third party. For the avoidance of doubt, unsolicited bulk email support services as described in this clause 5.1(b) may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (ROKSO), services providing ‘bullet-proof hosting’ for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy;

(c)          forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Services;

(d)          use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person’s privacy;

(e)          use the Services in a manner which infringes the intellectual property rights, proprietary and/or personal rights of any third party, including data subjects;

(f)           misuse the Site by introducing viruses, trojans, worms, logic bombs and/or other similar material;

(g)          attempt to gain unauthorised access to the Site or Services, the server on which the Site or Services are stored and/or any server, computer or database connected to the Site or Services; and/or

(h)          attack the Site or Services via a denial-of-service attack or a distributed or malicious denial-of service attack.

5.2         Popcorn may at its sole discretion and at any time immediately and without notice to the Customer suspend the Service if it considers that the Customer is in breach of clause 5.1. If Popcorn suspends the Service in accordance with this clause 5.2 no refund of the Fees paid by the Customer will be made. Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.2.

5.3         The Customer must provide the recipient of any marketing email sent using the Services the means to control the frequency which businesses communicate with them as well as clear and unambiguous means to unsubscribe from further emails.

5.4         The Customer shall preserve and protect the reputation, goodwill and brand of Popcorn and/or of any associated companies for the purposes of the Services. Nothing in this Agreement shall allow the Customer to use the name and or brand and or logo of Popcorn in anyway whatsoever.

5.5         The Customer shall:

(a)             comply, and ensure that its Use of the Services complies, in all respects, with all applicable legislation, regulations, directions, codes of practice, best practice guides (including, without limitation, the Direct Marketing Association (“DMA”) best practice guidelines, the CAP Code, the Spamhaus best practice guides) and other rules and guidelines, mandatory or otherwise (collectively known as the “Codes”). Where Popcorn is aware or is notified that a Customer is or has been in breach of any Codes, Popcorn may at its sole discretion immediately and without notice to the Customer suspend the Service. If Popcorn suspends the Service in accordance with this clause 5.5(a) no refund of the Fees paid by the Customer will be made. Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.5(a);

(b)             provide all reasonable assistance to Popcorn to comply with any requirements or conditions which are at any time imposed by law or any regulator or appropriate user group which are applicable to or affect the Services; and

(c)             to provide Popcorn, any relevant authority, user group and/or regulator with such information or material relating to the Services or a future service as it may reasonably request in order to carry out any investigation in connection with the Services.

5.6         In the event of a breach by the Customer of applicable legislation, regulations, directions, codes, codes of practice, best practice guides and/or other rules or guidelines Popcorn will review the circumstances leading to the breach and may in its absolute discretion either:

(a)             suspend the provision of Services;

(b)             terminate the provision of Services; or

(c)             reactivate the Services subject to the Customer providing documentary evidence that the breach was caused inadvertently and while acting in good faith and that appropriate steps have been taken to prevent any further reoccurrences.

Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.6.

5.7         The Customer shall keep its password and other access details for Use with the Services confidential and restricted to those members of staff who are required to know such details and shall ensure all members of staff are aware of the confidential nature of such information and treat it accordingly. The Customer shall notify Popcorn immediately if it suspects that such details have been disclosed to a third party.

5.8         The Customer is solely responsible for all activities that occur under the Customer’s password or account.

5.9         The Customer shall not permit any person to access the Services for any unauthorised purpose that would constitute a breach of this Agreement.

5.10     Only the Customer (and not any associate of the Customer) is at any time during the term of this Agreement is authorised to use the Services.

6.            Fees and Payments

6.1         The Customer shall pay the Fees for the Services to Popcorn in accordance with this clause 6 and clause 11.2 any other payment terms agreed in writing with Popcorn. Payment shall be made in Pound Sterling.

6.2         All Fees quoted to the Customer for the provision of the Services are exclusive of any value added tax (“VAT”), for which the Customer shall be additionally liable at the applicable rate from time to time.

6.3         Popcorn may at its sole discretion, alter the level of Fees and/or change or modify the payment terms under the Agreement upon giving the Customer 30 days’ notice by email or by notification on the Site.

6.4         Payment of the Fees from the Customer to Popcorn shall be made by direct debit. The Customer shall set up a direct debit mandate for payment of the Fees online.

6.5         Subject to any variation agreed in writing between the Customer and Popcorn from time to time, the Fees and any additional sums payable shall be paid by the Customer (without deduction or set-off) to Popcorn on the Payment Date.

6.6         If the Customer fails to pay Popcorn any Fees due on the Payment Date, then Popcorn shall be entitled to charge interest on the outstanding amount at the rate of 5% above the base rate of HSBC Bank Plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full.

6.8         If the Customer fails to pay any sums due on the Payment Date, Popcorn shall notify the Customer and shall have the right to immediately disable the account and temporarily suspend the provision of the Services without notice to the Customer until such time as any outstanding invoices have been settled in full, whereupon the Services will be reinstated.

6.8         Popcorn reserves the right to carry out credit checks on the Customer and the Customer by agreeing to the terms of this Agreement expressly consents to such credit checks. Credit checks may be carried out from time to time without notice to the Customer.

6.9         Popcorn reserves the right to suspend the Service and/or to provide a restricted Service limiting the send volumes of emails and/or terminate this Agreement based on the results of any credit checks carried out.

6.10     Notwithstanding anything else contained in this Agreement even if the Customer fails to utilise the Services, the Customer shall still be liable for payment of the Fess under this Agreement until the Agreement is terminated.

7.            Data, Data Protection and Indemnity

7.1.        The Customer is the data controller in respect of any personal data that Popcorn processes in the course of providing Services. The personal data is derived from data provided by the Customer and is not checked or monitored by Popcorn and, accordingly, Popcorn has no liability or responsibility howsoever arising directly or indirectly to the Customer for the accuracy, contents or use of such personal data under this clause 7.1.

7.2.        Popcorn has no responsibility or liability for the storage or back up of Customer data and the Customer shall remain entirely responsible for making its own back-up of such data if required, particularly but not limited to when the Customer adds a significant amount of data over a short time period. Popcorn shall incur no liability whatsoever to the Customer for any loss or damage, however caused, arising from any loss of data under this clause 7.2.

7.3.        The Customer shall comply with all applicable data protection and communications legislation including, but not limited to, the Date Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.

8.            Intellectual Property Rights

All Intellectual Property Rights shall remain the ownership of Popcorn and/or its licensors, as appropriate. The Customer acknowledges that it shall have no licence, right, title or interest in any of the Intellectual Property Rights of Popcorn, except as expressly set out in this Agreement. This Clause shall survive termination or expiry of the Agreement.

9.  Confidentiality

9.1         The Customer agrees to keep all Confidential Information confidential, to disclose it only to its employees that need to know it and to use it exclusively for the purposes contemplated by this Agreement. This clause shall not apply to information that the customer can prove:

a)            is in the public domain otherwise than by the Customer’s breach;

b)            it already had in its possession prior to obtaining the information directly or indirectly from Popcorn; or

b)            a third party subsequently disclosed to the Customer free of restrictions on disclosure and use.

This clause 9.1 shall survive for five (5) years from when the Customer acquired that Confidential Information from Popcorn.

9.2         The Customer may disclose Confidential Information if required to do so by law, regulation or rules of a regulatory authority, but only to the extent of the relevant requirement. The Customer shall immediately inform Popcorn in writing of the requirement and will co-operate with Popcorn in the disclosure.

10.         Maintenance

10.1     Popcorn may be required at its sole discretion from time to time to temporarily suspend the Services in whole or in part to carry out maintenance of the Services.

10.2     If such suspension of the Services under clause 10.1 is required, Popcorn will use its reasonable endeavours to provide the Customer with at least 24 hours’ notice of such a suspension and will aim to carry out any scheduled and planned maintenance and/or repair work outside of Working Hours in order to minimise disruption to the Services.

10.3     Popcorn shall have the right to carry out urgent maintenance or repair work at any time without giving prior notice to the Customer, even if such urgent maintenance shall result in temporary suspension of the Services.

10.4     The Service may also be suspended in whole or in part where Popcorn or any third party host is obliged to comply with an order, instruction or request of government, a court or other competent authority. Popcorn accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 10.

11.         Termination

11.1     Popcorn may immediately terminate this Agreement without giving notice to the Customer if the Customer:

(a)        commits any material breach of the Agreement and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice from Popcorn to do so;

(b)        commits an act of bankruptcy or goes into or is put into liquidation (other than solely for the purposes of a reconstruction or amalgamation) or if a receiver or administrator is appointed over all or part of the Customer’s assets or the Customer suffers seizure of any of its property for non-payment of monies owing.

11.2     Upon termination of the Agreement for whatever reason:

(a)        the Customer shall not be entitled to any refund of the Fees to the Customer (save for termination in accordance with clause 11);

(b)        all unpaid Fees shall become immediately due by the Customer to Popcorn;

(c)        Popcorn will be under no obligation to retain any data (including but not limited to personal data);

(d)        the Customer shall immediately cease using the Intellectual Property Rights and the Materials.

(e)        there is no right to use any data which has been provided under the Service once the Customer has failed to pay Fees due under this Agreement and the Customer herein agrees that it is his responsibility to maintain a back-up of all information and data which has been provided to and or inputted in as part of the Service as such information will not be available to the Customer upon termination of this Agreement.

12.         Modification

12.1     Popcorn may at its reasonable discretion, change or modify the Agreement or Services upon giving the Customer 30 days’ notice of the same either by email or notification on the website and without prejudice to the generality of the foregoing, the Customer can upgrade the level of Services subject to the agreement of Popcorn.

12.2     Within 14 days of receiving such notice, the Customer may notify Popcorn in writing that it wishes to terminate the Agreement with effect from the date of any proposed change to the Agreement or Services. Popcorn may then either:

(a)        accept the notice of termination from the Customer;

(b)        make amendments to the proposed charge; or

(c)        withdraw its notice to the Customer. In such case the Agreement will continue on the original terms agreed between the parties.

If no such notice is received from the Customer, then the Customer shall be deemed to have accepted the changes proposed by Popcorn.

13.         Limitation of Liability and Indemnity

13.1     This clause 13 sets out the entire financial liability of Popcorn to the Customer (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) in respect of any:

(a)        breach of the Agreement;

(b)        any use of the Services or any part of them; and/or

(c)        any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

13.2     Subject to clause 13.3 other than where expressly stated, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

13.3     Nothing in the Agreement limits or excludes the liability of Popcorn:

(a)        for death or personal injury resulting from negligence; or

(b)        for any damage or liability incurred as a result of fraud or fraudulent misrepresentation.

13.4     Notwithstanding anything else contained in this Agreement, the entire liability of Popcorn is limited to the Monthly Fee due in the month in which a claim is made by the Customer.

13.5     Popcorn shall not be liable in any way to the Customer for any liability caused as a result of the Site being hacked by a third party.

14.         Force Majeure

14.1       Neither party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control. These are circumstances such as, but not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, fire, flood, lightning or other weather of exceptional severity, subsidence, explosion or industrial disputes, failure by a third party to host the Service and the Site on behalf of Popcorn. This clause 14.1 does not apply to the Customer’s obligation to pay Popcorn under clause 5.

14.2       If either party is affected by circumstances beyond its reasonable control in accordance with clause 14.1, it shall notify the other party and shall use reasonable endeavours to overcome the effects. If those effects continue for more than three (3) months, the parties shall enter into a discussion to agree, in good faith, the best way forward.

15.         Notices

Any notices will be deemed effective where served by Popcorn via email.

16.         General

16.1       A delay in enforcing rights under this Agreement shall not be a waiver, as any waiver must be expressly granted in writing.

16.2       The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it.

16.3       The termination or expiry of this Agreement shall be without prejudice to the rights of either party, which have accrued prior to termination or expiry. Clauses that are expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall so survive.

16.4       This Agreement contains the entire agreement and supersedes all other agreements and understandings between the parties with respect to its subject matter. Any terms proposed by the Customer that are not written in these Terms and Conditions shall be invalid.

16.5       Subject to Clause 13, each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly written in this Agreement, and that its only remedy can be for breach of contract.

16.6       Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties.

16.7       This Agreement is not intended to be for the benefit of and shall not be exercisable by, any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself trustee of the rights under it for the benefit of any third party.

16.8       Popcorn may transfer or assign its rights and obligations to any of its Associated Companies and may sub-contract any of its obligations. Otherwise, neither party may transfer, assign, sub-licence or subcontract any rights, licences or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed.

16.9       English law shall govern the validity, construction and performance of this Agreement and the parties submit to the exclusive jurisdiction of the English courts.