Terms & Conditions

1 Licence

1 This agreement together with the initial invoice you have received from us (the "Invoice") contains terms relating to your access to and use of the automated mailing system known as Aurora Marketing together with such documentation as we provide from time to time ("Documentation") (and together, the "Materials").

2 If we have agreed with you and stated in the Invoice that we will provide you with access to Aurora Marketing for evaluation purposes, we hereby grant you a personal, non-exclusive, non-transferable licence to access and use Aurora Marketing for the purpose of its testing and evaluation by you (the "Evaluation Purpose"), and references to the Evaluation Licence in this agreement are references to this licence.

3 The licence granted to you by clause 1.2 will last until the earlier of:

a 1 month from the date on which you first activate your account by accessing Aurora Marketing using the username and password we have supplied you with (the "Evaluation Period");

b the date you acquire a full licence from us (if this is earlier than the expiry of the Evaluation Period); or

c the termination of this agreement in accordance with clause 10.

4 If we have agreed to grant you a full licence to access and use Aurora Marketing, we hereby grant you a personal, non-exclusive, non-transferable licence to access and use Aurora Marketing to plan and run promotional campaigns on your behalf or on behalf of your clients (the "Purpose"), and references to the Full Licence in this agreement are references to this licence.

5 The licence granted to you by clause 1.4 is perpetual and will last until this agreement is terminated in accordance with clause 10.

6 You will comply with any additional restrictions or terms stipulated in the Invoice.

2 Users

1 We have provided you with a username and password that enables you to access and use the Materials. Each user name and password may only be used by one user at a time. If you would like to add additional users to your account then this will incur an extra charge and you should contact us for further information.

2 You must keep this username and password confidential and not disclose it to any third party (including, if you are in a group of companies, other companies within that group or to whom you are associated) without our written permission other than your employees on a need to know basis.

3 Copyright and other intellectual property rights

1 All title, ownership rights and intellectual property rights in and relating to the Materials and any copies of the Materials are owned by us and you will not have any such rights in relation to the Materials, or in any copies thereof.

2 You agree not to remove, suppress or modify any proprietary marking, including any trade mark or copyright notice, on or in the Materials.

4 Restrictions on your use of Aurora Marketing

1 You are allowed:

a during the Evaluation Period to use Aurora Marketing for the Evaluation Purpose;

b during the Full Licence Term to use Aurora Marketing for the Purpose.

You may not use Aurora Marketing for anything else.

2 You may not:

a loan, rent, lease or license the Materials or any copy;

b use the Materials to provide third party training, except for training your employees;

c use, copy, alter, reverse engineer or decompile the Materials except to the extent set out in this agreement or permitted by applicable law;

d disclose results of any program benchmark tests.

5 Warranty

1 It is a condition of this agreement that we are entitled to supply the Materials to you and to allow you to use them in accordance with the terms of this agreement.

2 Subject to clause 5.1, if you have an Evaluation Licence, because the Materials are being supplied for evaluation purposes only, the Materials are supplied on an 'as is' basis and we do not give or enter into any conditions, warranties or other terms with regard to the Materials.

3 If you have a Full Licence, we warrant that Aurora Marketing will for a period of 90 days after you first access it be free from any material defect which has an adverse effect on its use in accordance with this agreement.

4 If the warranty in 5.3 is breached, you must tell us as soon as possible. Before you are allowed to do anything else about it, you must give us a reasonable time to fix the problem. This will be done without any additional charge to you. If we are unable to do this within a reasonable time or we do not think that it is a sensible way to deal with the problem, then we may if we wish elect to terminate your access to Aurora Marketing and any Documentation and to refund to you all of the money which you have paid to us under this agreement. If we decide to do this, then this will be the only remedy you are allowed in relation to breach of the warranty concerned and we will not have any other liability in relation to them.

5 We will not be liable for breach of any warranties or other terms in this agreement to the extent the breach arises from:

a use of Aurora Marketing other than in accordance with normal operating procedures as described in the Documentation or as otherwise notified to you by us;

b any alterations to Aurora Marketing made by anyone other than us or someone authorised by us;

c any problem with the computer on which Aurora Marketing is installed, any equipment connected to that computer or any other Program which is installed on that computer;

d any abnormal or incorrect operating conditions;

e any other hardware or program being used with Aurora Marketing, unless this use has been approved by us.

6 In particular, no condition, warranty, representation or other term is given or entered into to the effect that Aurora Marketing or the Documentation will be of satisfactory (or any other) quality or that it will be fit for any particular purpose (whether that purpose is made known to us or not). Save as expressly provided in this agreement, no other warranties, undertakings, conditions or terms of any kind, express or implied, statutory or otherwise shall apply and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, satisfactory quality or fitness for purpose of Aurora Marketing or any part thereof are hereby excluded. Also, it is not a term of this agreement that your access and/ or use of Aurora Marketing will be uninterrupted or error-free.

6 Indemnity

1 We shall indemnify you against any loss or damage resulting from any claim that your use of Aurora Marketing in accordance with the terms of this agreement infringes the intellectual property rights of any third party provided that:

a you notify us immediately you become aware of any such claim;

b you make no admissions or other prejudicial statement in respect of such claim and comply with all reasonable instructions relating to the claim given by us; and

c if we request, you allow us to take over conduct of the claim. In such an event, we will consult with you on the conduct of the action;

and this shall be your exclusive remedy in relation to any such claim.

2 We shall have no liability to indemnify you under this clause if the claim in respect of which indemnity is sought results from:

a any breach of your obligations under this agreement;

b your alteration, adaptation, disassembly or reverse engineering of Aurora Marketing whether in accordance with this agreement or otherwise; or

c the combination or use of Aurora Marketing with any other software, hardware or goods not supplied or recommended in writing by us.

7 Exclusions and limitations

1 Our liability for:

a death or personal injury caused by our negligence or the negligence of our employees or agents;

b under Part I of the Consumer Protection Act 1987;

c for breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;

d for fraudulent misrepresentation;

is not excluded or limited by this agreement, even if any other term of this agreement would otherwise suggest that this might be the case.

2 Subject to clause 7.1, we do not accept any liability under or in relation to this agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:

a loss of profits;

b loss of sales;

c loss of revenue;

d loss of any software or data;

e loss of use of hardware, software or data;

f loss or waste of management or staff time; or

g indirect, consequential or special loss.

For the purposes of this clause the term "loss" includes a partial loss or reduction in value as well as complete or total loss.

3 If you have an Evaluation Licence, our total aggregate liability under this agreement and in relation to anything which we have done or not done in connection with this agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall not in aggregate exceed the sum (if any) which you are paying for use of Aurora Marketing.

4 If you have a Full Licence, our total aggregate liability under this agreement and in relation to anything which we have done or not done in connection with this agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to:

a an amount equal to 125% of the total amount paid or payable by you under this agreement; or

b if the amount referred to in (a) cannot be calculated accurately at the time the relevant liability is to be assessed, or if it is less than £25,000, to £25,000.

8 Fees

1 If you have an Evaluation Licence, access to use Aurora Marketing and the associated Documentation are provided to you free of charge.

2 During the Evaluation Period we will also provide you with a limited number of complimentary SMS or email credits (the "Free Credits"). The Free Credits will allow you to evaluate the email and SMS capabilities of Aurora Marketing by enabling you to send a limited number of free email and SMS messages as part of a live or test campaign. If further email or SMS credits are required (for example, if you wish to conduct a large campaign using Aurora Marketing for the Evaluation Purpose) you should contact your Account Manager at Aurora Marketing.

3 If you have a Full ASP Licence then you agree to pay the following charges:

a an initial fee for the costs of setting you up with access to Aurora Marketing (the "Set-up Charge");

b a monthly fee for providing you with access to Aurora Marketing (the "Monthly Charge"); which will be calculated according to the type of account you require for Aurora Marketing and as described in the Invoice; and

c any other charges you may incur by purchasing additional email or SMS credits from us as agreed between us (the "Additional Charges"); on the terms set out in this clause 8.

4 If you have a Aurora Marketing Unlimited License then you agree to pay the following charges:

a an initial fee for the costs of setting Aurora Marketing (the "Set-up Charge");

b a one-off fee for the license to use the Aurora Marketing software (the "Software Charge");

c a monthly fee for providing you with technical support and software upgrades for Aurora Marketing (the "Software Support Charge"); and

d any other charges you may incur when renting dedicated server capacity from us (the "Server Rental Charges")

5 The invoice we send you for any of the above charges will correspond to the order form we ask you to sign and return. Aurora Marketing will also carry out a Quality Assurance process to ensure you fully understand and accept any signed order form you return.

6 The on-going Monthly Charge is based on the type of account that you have with us as described in detail in the Order form and Invoice. You may at any time request an extension or variation to your account. If we agree to such extension or variation we will send you an invoice and/or an order form describing the new products and services and setting out your new monthly charge and all references to "Invoice" in this agreement shall thereafter be to such new invoice.

7 You will be invoiced for any Additional Charges as and when they are incurred by you.

8 You must pay our invoices strictly within the period indicated and agreed on the order form you sign

9 If you are late in paying any invoices then we may suspend your access to and use of Aurora Marketing until you have settled such invoices in full.

10 If you are late in paying any invoices, then we may charge interest on all unpaid amounts. Interest will be payable from the date of the invoice until the date of payment and will continue to be payable even if we obtain a judgement from a court in relation to any claim for payment of the invoice. The rate of interest will be 8% per month above the base rate for the time being of HSBC Bank Plc.

11 The amounts specified do not include VAT or any other taxes on supplies unless expressly stated otherwise and you must pay these to us as well as the amounts concerned.

9 Confidentiality

1 Without affecting clause 2.2, you will keep confidential any information which we supply to you (which will include the Materials). This will not apply to any information which:

a is available to the public other than because of any breach of this agreement;

b is, when it is supplied, already known to you in circumstances in which you are not prevented from disclosing it to others;

c is independently obtained by you in circumstances were you are not prevented from disclosing it to others;

d is trivial or obvious; or

e is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure.

10 Termination

1 This agreement will commence on the date that you first activate your account by accessing Aurora Marketing using the username and password we have supplied you with and will terminate in accordance with this clause 10.

2 If you have an Evaluation Licence, then this agreement, your licence to use Aurora Marketing, and your access to Aurora Marketing will automatically terminate:

a. on the expiry of the Evaluation Period; or

b. if you breach any term of this agreement.

3 If you have a Full Licence, then:

a we may terminate this agreement (and your licence to use Aurora Marketing) if:

i you breach any term of this agreement and it is not possible to remedy that breach; or

ii you breach any term of this agreement and it is possible to remedy the breach, but you fail to do so within 7 days of being asked to do so.

for the purposes of this clause, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party in the position it would have been in if the breach had never occurred; and

b either we or you may terminate this agreement on 24 hours written notice to the other. If you terminate this agreement, we will invoice you for the products and service you have already used or would have used up to the beginning of your next assigned billing period.

4 If you have an Evaluation Licence or a Full Licence then either we or you may terminate this agreement if:

a the other becomes or is deemed insolvent;

b any distress or execution is levied on any of the other's property or assets;

c the other makes or offers to make any arrangement or composition with creditors;

d any resolution or petition to wind up the other's business (other than for the purpose of amalgamation or reconstruction) is passed or presented or if a receiver or administrative receiver of the other's undertaking, property or assets is appointed or a petition presented for the appointment of an administrator; or

e the other is subject to any proceedings which are equivalent or substantially similar to any of the proceedings under sub-clause (a), (b), (c) or (d) under any applicable jurisdiction.

5 We may terminate this agreement and your access to Aurora Marketing immediately and without notice if you use or communicate any confidential information protected under clause 9 without our prior written consent, or if we suspect that you are in breach of clause 2.2.

6 Apart from any other rights which we might have, if we become aware of an actual or suspected breach of this agreement we may suspend performance of any of its obligations or exercise of any of your rights under this agreement until we have had an opportunity to investigate such breach and if requested you remedy the breach to our reasonable satisfaction.

11 Consequences of termination

1 If you have an Evaluation Licence, then:

a on expiry of the Evaluation Period or the termination of this agreement for whatever reason then your access will automatically be revoked; and

b if you wish to use Aurora Marketing after the Evaluation Period is complete then such use shall be on terms negotiated at the time. Until such terms are agreed in writing by us, any continued use of Aurora Marketing by you shall be treated as being under and in accordance with the terms of this agreement.

2 If you have a Full Licence, then:

a on expiry of the Full Licence Term Period or the termination of this agreement for whatever reason your access will automatically be revoked.

b if you wish to continue to use Aurora Marketing after the Full Licence Term is complete then such use shall be on terms negotiated at the time. Until such terms are agreed in writing by us, any continued use of Aurora Marketing by you shall be treated as being under and in accordance with the terms of this agreement.

3 Termination of this agreement will not affect any accrued rights or liabilities that either we or you may have by the time termination takes effect.

12 General

1 You may only sub-license the use of Aurora Marketing to your customers if:

a we give you prior written permission to do so;

b the sub-licence contains terms that are substantially the same as the terms relating to the Full Licence contained in this agreement and grants us direct rights as a third party.

2 If you sub-licence the use of the Software to a customer in accordance with clause 12.1 above, then you acknowledge that you are responsible for such customers use of Aurora Marketing and you shall indemnify us against all demands, claims, legal action, damages, costs (including, without limitation, legal costs), loss, interest or expenses arising out of any misuse or negligent use of Aurora Marketing by Customer.

3 You may not assign any of your rights or obligations under this agreement.

4 We may assign this agreement or any of our rights or obligations under this agreement to someone else.

5 We will not be liable to you for any breach of this agreement which arises because of any circumstances which we cannot reasonably be expected to control.

6 All notices and consents relating to this agreement must be in writing. All variations to this agreement must be agreed, set out in writing and signed on behalf of both you and us before they take effect.

7 This agreement sets out all of the terms that have been agreed between us in relation to the subjects covered by it. Subject to clause 7.1 no other representations or terms shall apply or form part of this agreement.

8 Where this agreement refers to any person, this includes reference to legal as well as natural persons (so, for example, a limited company is a person for the purposes of this agreement).

9 No term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement.

10 If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement, or this agreement as a whole.

11 This agreement is governed by English law and both parties submit to the exclusive jurisdiction of the English Court, but we may apply to any court of competent jurisdiction for emergency or interim relief, or for the purpose of recovering any debt owed by you to us and you hereby agree to submit in such event to such court.