When we say ‘we’, ‘us’ or ‘our’ in these Terms, we mean Acme Graphics Limited, trading as Acme Ecards, a UK limited company (Company No. 4924894; VAT Number 731623946) and in doing so, we include all of our employees, officers, contractors and others connected with the operation of the Platform. When we refer to ‘you’, we mean you, the person or entity using or applying for use of our Platform which, in respect of your obligations, includes any associated or affiliated companies.
1. Eligibility & Authority
a. If you are an individual, you represent and confirm that you are at least 18 years of age.
b. You represent that you are authorised and/or legally entitled to enter into the Agreement and that in doing so you will not breach any law or any obligation to any third party.
c. If you are applying on behalf of a company, partnership or other organisation, you represent and warrant that you have the appropriate authority to make the application and to create legal obligations on behalf of that organisation.
2. Agreement and Term
a. Any application made by you will be subject to acceptance by us at our discretion. The Agreement will be formed only once we accept your application by e-mail confirmation.
b. The Agreement will start when we confirm acceptance of your application and it will run until or unless it is terminated (‘Term’).
c. Where you subscribe for the Services on an annual basis, the Agreement will automatically renew for a further period of 12 months at the end of any annual term (each, a ‘Renewal’) unless you provide us with written notice of termination at least 30 days prior to the expiry of the current term.
d. Please note that if our Agreement with you is terminated for any reason, we will delete or destroy all information relating to your account, including any data or emails associated with your account. We may also do so if your account remains unused or inactive for a period of 12 months or more.
3. Price, Payment & Credit Cards
a. You agree to pay the charges set out on our Pricing Page (‘Charges’). Payment shall be in the currency agreed in your order and must be in full, net of all expenses (such as bank charges) and inclusive of VAT (if applicable). You may not set-off, withhold, deduct or counterclaim any amount against the Charges.
b. Provision of and/or access to the Platform is conditional upon you paying all Charges in full.
c. The Charges may vary from time to time and you will be obliged to pay the Charges which apply at the time of your order. Changes in our Charges will be posted on the Pricing Page and shall be effective immediately
d. Annual Charges are payable in full upon commencement of the Agreement or upon any Renewal. Any other Charges are payable in advance.
e. Any annual Charges paid for Services, are non-refundable unless (i) we terminate the Agreement for convenience (i.e. not owing to your fault), or (ii) you terminate the Agreement owing to our default, in which case you will be entitled to a refund of the unused part of the relevant Charge.
f. Where required, you will provide us with valid credit card details for payment. You warrant and represent that you are authorised to use and charge the credit card and you hereby authorise us to bill all Charges to the credit card.
4. Our Obligations
a. We will provide the Services with reasonable care and skill.
b. We will use all reasonable endeavours to meet any performance dates agreed in writing, but any such dates shall be estimates only. Time shall not be of the essence for performance of the Agreement.
c. We shall have the right to make any changes to the Platform which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Platform, and we shall notify you of any such changes.
5. Your Obligations
a. You agree, on your own behalf and on behalf of everyone using the Platform via your account, that you will:
i. provide us with all co-operation and assistance reasonably required in relation to the provision of the Platform;
ii. provide us with all data and other information reasonably required in relation to the Platform and ensure that all information provided is true, accurate, complete and not misleading in any material respect;
iii. comply with all applicable laws and regulations with respect to your activities under this Agreement and ensure that your use of the Platform (including any related software) does not infringe any third party rights (including intellectual property rights);
iv. carry out your responsibilities under this Agreement in a timely and efficient manner and notify us immediately of any breaches or suspected breaches of the Agreement; and
v. keep up to date all information regarding your account, including billing and contact details and credit card information.
b. You will keep all account information, including user name(s) and passwords(s), (‘Account Details’) secure and strictly confidential and will employ reasonable security processes in your use of the Platform. You will be liable for all activities and/or transactions carried out using your Account Details. You agree to notify us immediately if you become aware of any unauthorised use of the Platform.
c. You acknowledge that our ability to provide the Platform depends on you satisfactorily complying with your obligations and that should you fail to comply we will not be liable in any way for any delay, loss or damage, cost increase or other consequences arising from such failure or from our reliance on, or actions based upon, information or materials provided by you..
d. In the event of any delay in your provision of assistance or information, we may adjust any timetable or delivery schedule as reasonably necessary.
6. Email Obligations & Exclusions
a. You recognise and accept that the internet carries inherent risks and that we cannot promise that the Services or your use of the Platform will be interrupted, error-free or immune from security risks. You accept that internet servers, equipment and telecommunications links are susceptible to crashes, downtime and security issues from time to time. We will endeavour to maintain a continuous and uninterrupted link with the internet but we cannot provide any warranty in that respect.
b. Delivery of emails is similarly dependent upon many factors, including internet access, up to date email addresses, firewalls, spam filters and so on and we therefore cannot guarantee the delivery of emails to any recipient or that there will not be delays in delivery, even if you provide us with the correct email address.
c. You shall ensure that email marketing (including the sending of business Ecards) is carried out by you in a good, responsible way in accordance with best industry practice. You agree to comply fully with all relevant laws and legislation in relation to email marketing, including compliance with the EU General Data Protection Regulation (GDPR), the Information Commissioners Office, The Privacy and Electronic Communications (EC Directive) Regulations and all relevant guidelines and codes of practice of the Direct Marketing Association, Committee of Advertising Practice and ASA. You must ensure that all recipients of Corporate Ecards that you send via email have opted in, and you must give email recipients the power to manage and control their receipt of emails from you and to unsubscribe from further emails at any stage.
d. You agree that we may monitor emails sent by you, or via your account, in order to determine your compliance and to manage the Platform for the benefit of all our clients. However, we have no responsibility for the content of any emails sent by you or via your account.
e. We are not responsible for unauthorised access to your data or the unauthorised use of the Platform unless the unauthorized access or use results from our failure to meet our reasonable security obligations.
f. We are not responsible for maintaining backup copies of any of your data. You agree to keep backup copies of your data and to maintain regular backups to protect against data loss, corruption or other damage.
g. Your use of the Platform is subject to usage and/or volume limits. If you exceed those limits, your use of the Platform may be suspended. We shall notify you if your usage limits are exceeded and advise the cost of obtaining increased limits. We are entitled to monitor your use of the Platform and to throttle or block unacceptable or excessive usage.
7. Content and Ownership of Rights
a. Provided you comply with these Terms and pay all Charges, we grant you a non-exclusive, non-transferable, revocable right for the Term to use the Platform, including all software relating to the Platform, for legitimate email marketing campaigns.
b. Title to and all rights in the Platform, including intellectual property rights and rights in data, are exclusively owned by us or our licensors and you shall obtain no rights in the same, save from the limited rights set out in this clause 7.
c. You represent and undertake that, except as may be permitted under applicable laws or expressly agreed by us, that you will not:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or any related or associated documentation in any form or media or by any means; or
ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software comprised in the Platform; or
iii. access all or any part of the Platform in order to build a product or service which competes with the Platform; or
iv. use the Platform to provide services to third parties; or
v. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform (or any part thereof) available to any third party; or
vi. attempt to obtain, or assist third parties in obtaining, access to the Platform, other than via an agreement with us.
d. You represent and warrant that you, or your licensors, own all rights in any content you provide (‘Your Content’), that you have the right to use it and that its use in connection with the Platform will not infringe any third party rights, including intellectual property rights. Where you make any customisations to our Content (‘Customisations’), you are responsible for those Customisations and you will own the rights to them, to the extent they arise.
e. Where we agree to create any content specifically for you in the course of the Services (‘Bespoke Content’), we shall grant you an exclusive licence to use the Bespoke Content on the Platform on a single or one-off basis, on condition that you pay all applicable Charges. We retain all intellectual property rights in Bespoke Content unless otherwise agreed in writing.
f. Where the Platform contains links to third party websites or content, you use them at your own risk. We are not responsible for third party sites or the content or services available via those sites and do not accept any liability or responsibility for any loss or damage you suffer through accessing or using third party sites.
g. All trademarks used in relation to the Platform, including the mark ‘ecardmint’ and our associated logo, are owned by us and you may use them only with our express consent and in accordance with any guidelines or requirements provided by us.
8. Data Protection
a. You are the data controller in respect of any personal data (including email addresses) you provide to us for use in relation to the Services (‘Service Data’). You are fully responsible for obtaining all necessary data subject consents and for ensuring compliance with respect to the Service Data you provide to us, including ensuring that we are legally entitled to use it for the Services.
b. We will not check or verify the Service Data and we will rely wholly on you to comply with your legal requirements, including (where applicable) compliance with the Data Protection Act 1998 and any equivalent or similar EEA legislation. Consequently, we have no liability or responsibility for the accuracy, contents or use of any Service Data.
c. We are data processors in relation to the Service Data and we agree to use any Service Data only for the purposes of the provision of the Services. We will not disclose the Service Data to anyone without your consent unless required by law.
d. We shall process the Service Data as required for the provision of the Services and we shall have in place reasonably appropriate technical and organisational measures against accidental or unlawful destruction or loss of data. We shall process the Service Data in accordance with your instructions in order to fulfil our obligations under the Agreement.
9. Right of Suspension
a. Without prejudice to any other right, power or remedy available to us, we reserve the right to limit or suspend the use of the Platform:
i. if we consider it reasonably necessary to protect your or our interests, or the interests of any third party (including our customers) and/or to protect the security or operation of our systems or network or those of our customers;
ii. if you breach any of the terms of the Agreement (including the Acceptable Use Policy) or if we reasonably believe you have so breached or are about to breach;
iii. if you fail to pay any Charges when due;
iv. if you fail to cooperate with us regarding any suspected or actual breach of the terms of this Agreement; or
v. if required to do so by law or further to a request from any regulatory or governmental authority.
b. We may also temporarily suspend all or any part of the Platform for the purpose of repair, maintenance or improvement. We shall endeavour to keep any such suspensions to a minimum.
c. We shall not be liable for any suspension of the Platform under the above circumstances and you shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension.
a. You agree to defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Platform and/or your breach or non-compliance with the terms of this Agreement, including any claims relating to infringement of third party intellectual property rights or other third party losses relating to your use of the Platform. You agree to indemnify and hold us harmless from and against any and all costs, damages and expenses arising or connected with any claims that the use of Your Content or the Customisations infringes third party rights, including intellectual property rights.
b. If we become aware of any claim relating to the aforementioned indemnity, we shall give you prompt notice of the claim and provide you (at your cost) with reasonable co-operation in the defence and settlement of the claim. You shall have the sole authority to defend or settle the claim, save that you will obtain our prior written consent before settling any claim where it may have any implication, financial or otherwise, for us.
a. This clause sets out our entire financial liability (including any liability for the acts or omissions of our employees, officers, agents and sub-contractors) to you in respect of (a) any breach of this Agreement; (b) any use made by you of the Platform or any part of it and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
b. Except as expressly and specifically provided in this Agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. You agree that your sole and exclusive remedy for any breaches of this Agreement or any liability relating to the Platform shall be against us and you expressly waive any rights against any agents, suppliers or other intermediaries involved in the Platform.
c. Nothing in this Agreement excludes or seeks to limit liability (a) for death or personal injury caused by our negligence; (b) for fraud or fraudulent misrepresentation, or (c) which we may not exclude or limit under applicable law.
d. Subject to clauses 11b and 11c:
i. we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (I) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, in each case whether direct or indirect, or (II) for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and
ii. our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the greater of £1,500 or the total Charges paid or payable for the Services during the 12 months immediately preceding the date on which the claim arose.
a. Without prejudice to any other rights we may have, including any rights set out in this Agreement, we may terminate this Agreement immediately and without liability if:
i. you fail to pay any amount due within 5 days of its due date;
ii. you breach the terms of the Acceptable Use Policy; or
iii. you provide to us any false, misleading or otherwise inaccurate information.
b. Without prejudice to any other rights or remedies, either you or we may terminate this Agreement without liability if:
i. the other commits a material breach of any of the terms of this Agreement which is not remediable or which (if remediable) fails to be remedied within 30 days of that party being notified in writing of the breach; or
ii. the other party is or may be (in the reasonable opinion of the other party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business; or
iii. the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
c. On termination of this Agreement for any reason:
i. all licences and other permissions granted under this Agreement shall immediately terminate;
ii. each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
iii. you shall pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by us for the performance of the Services up to and including date of termination;
iv. we shall return any documents, materials or other information in our possession or control which contain or record any of your confidential information, or at your request we shall destroy such documents, materials or other information (and if recorded or stored electronically, permanently erasing from any electronic media on which it is stored);
v. we may destroy or otherwise dispose of any of your data in our possession unless we receive from you a written request for a copy of any relevant data. If you terminate the Agreement, the said request must be made at the time of your notice of termination and if we terminate you must make the request within 5 days of receipt of our notice of termination. If you make such a request within the said timelines, we shall use reasonable commercial endeavours to deliver a copy of the relevant data as soon as practicable, provided that (i) you have, at that time, paid all Charges outstanding at and resulting from termination (whether or not due at the date of termination); and (ii) you will be responsible for all reasonable expenses incurred by us in providing the copy of the said data; and
vi. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13. Force majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 2 months, either party may terminate this Agreement by written notice to the other.
a. You may not assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of your rights and obligations under this Agreement without our prior written agreement.
b. We may at any time assign, novate, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without your consent.
16. Entire agreement
This Agreement contains the whole agreement between you and us and supersedes and replaces any prior written or oral agreements, representations or understandings between us. We each confirm that we have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by us in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same of the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
18. Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between you and us other than the contractual relationship expressly provided for in this Agreement. Neither of us shall have, nor represent that it has, any authority to make any commitments on the other’s behalf.
19. Further assurance
We each agree, at the request and expense of the other, that we shall execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vica versa;
- words importing persons include firms, companies and corporations and visa versa;
- any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses and paragraphs of this Agreement are not to affect the interpretation;
- where the word ‘including’ is used in this Agreement it shall be understood as meaning ‘included without limitation’.
a. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or e-mail, to the address of the relevant party, or to the relevant facsimile number, or such other address or facsimile number as that party may from time to time notify to the other party in accordance with this clause.
b. Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the relevant facsimile number and confirming that all pages were successfully transmitted), or next working day after sending (in the case of e-mail).
23. Law and jurisdiction
This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with English law. The Parties agree that the English Courts shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Agreement and irrevocably submit to the jurisdiction of such court.
24. Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.