1. Subject matter of the Agreement
1.1 Sports New Media Limited, 74 Gloucester Place, London, W1U 6HL (hereinafter referred to as
“SNM”) offers eC-messenger (hereinafter referred to as the “Service”),
which is a software application that enables the organisation and
transmission of e-mails, newsletters, SMS/MMS and faxes as well as the
tracking of emails and newsletters when processing data on behalf of third
parties. SNM will make the Service available to the Client, to be accessed
via a telecommunications link, as well as storage capacity for application data
(Application Service Providing, “ASP”).
1.2 In addition to the provision of the Service, SNM also provides additional
services in the area of digital dialogue marketing. A detailed up-to-date list of
these services can be requested from SNM at any time.
2. Scope of General Terms and Conditions; offers; contract conclusion
2.1 These General Terms and Conditions shall apply to all services provided by
SNM in connection with the agreement on the provision of the Service.
2.2 Any general terms and conditions of the Client are excluded. SNM hereby
expressly rejects the applicability of any general terms of business of the
Client. This express rejection will extend to any general terms and conditions
received by SNM or any reference made by the Client to any such terms,
without SNM being required to reiterate this rejection in every such case.
Specifically, the provision of services or their acceptance shall not be
interpreted as SNM’s consent to any such terms. Any further express
inclusion of these General Terms and Conditions by reference will not be
necessary for follow-up business.
2.3 All offers made by SNM are subject to change, unless the relevant offer
states otherwise. Any and all agreements between SNM and the Client
must be made in writing. This shall also apply to any amendments to this
stipulation requiring written form.
3. Rights of use
3.1 The Client shall be granted a non-exclusive, non-sublicensable and non-
transferable licence for the Service, which is limited to the term of the relevant
agreement. The Client may use the Service only for its own commercial
activities and may only allow its own staff to use the Service. The Client shall
not permit any third parties to use the Service. The Client is not permitted to
create more copies of the Service than is necessary for ASP usage
(temporary storage in cache memory).
3.2 The Client shall be granted a non-exclusive, non-sublicensable and non-
transferable licence for email templates or other masters created by SNM
for the Client, which is limited to the term of the relevant agreement and to the
transmission via the Service. The transmission of any such templates or
masters via the Client’s own software or third-party software is not permitted.
4. Use of the Service
4.1 The Client shall use the Service solely in accordance with SNM’s
instructions, which are contained in the manual provided. This manual is
available in electronic form via the Service.
4.2 The Client warrants that every recipient, who is contacted by way of
advertising/newsletters transmitted via the Service, has validly and verifiably
consented to being sent the relevant advertising/newsletter. Furthermore, the
Client warrants that it will be able to submit the IP address and a time stamp
for each recipient’s electronic declaration of consent. Electronic
messages/faxes, which were sent, after the registration of a recipient, as an
invitation to receive advertising/newsletters or as a confirmation of the
consent to receiving advertising/newsletters (invitation/confirmation
messages), must be sent free of any advertising content.
4.3 The Client represents that it has complied and will continue to comply with all
applicable data protection provisions in respect of the collection, storage
and/or use of the personal data of recipients that are processed, stored
and/or used via the Service. The Client is legally responsible for the use of
the various functions of the Service (e.g. tracking/reporting).
4.4 The Client warrants that all advertising/newsletters transmitted via the Service
contain a link or another contact option via which recipients can revoke their
consent to being sent advertising/newsletters. The Client warrants that
recipients will not receive any further advertising/newsletters as from the third
working day following such revocation, at the latest.
4.5 The Client hereby undertakes to maintain an in-house list which contains all
contact data of recipients who have revoked their consent to being sent
advertising/newsletters or who have, in any other manner, expressed their
wish not to receive any advertising/newsletters from the Client. The Client
shall ensure that no communication is sent to any such contacts; this also
applies to invitation/confirmation messages. SNM is entitled, but not
required, to compare the recipients’ data with public no-contact-lists and to
disable the sending to members of these lists.
4.6 The Client warrants that all advertising/newsletters transmitted via the Service
contain contact information in accordance with section 6 of the Electronic
Commerce (EC Directive) Regulations 2002 to identify the sender and that
neither the sender nor the commercial nature of the message is concealed or
hidden.
4.7 The Client represents that it has complied with the obligations under
Clauses 4.2 to 4.6 above with regard to recipients, who will be sent
advertising/newsletters via the Service, for at least one (1) year before the
Client commenced using the Service and that said recipients had been
contacted on a regular basis during this period (at least every two (2)
months). The Client ensures that addresses which are permanently
deactivated (so-called hard bounces) are deleted. Any such addresses must
be deleted after the second hard bounce.
4.8 The Client undertakes to refrain from violating any laws and regulations
and from infringing upon any rights of any third parties when using the
Service. In particular, the Client shall not:
- transmit, store, link or reference in any other way any contents that are of
a pornographic nature, violate any laws for the protection of young
people, are sexually suggestive (whether implicitly or explicitly), glorify
violence, are of a threatening, offensive, harassing, defamatory,
fraudulent, vulgar, obscene, hate-mongering or politically extreme (left or
right-wing) nature, violate personal rights or privacy or instigate or abet
the commission of illegal acts;
- transmit, store, link or reference in any other way contents that infringe
any third-party rights, including but not limited to trademarks, copyrights,
patents, models, designs and business secrets; and
- transmit, store, link or reference in any other way harmful programs
(such as viruses).
4.9 The Client is legally responsible for all electronic messages/faxes sent
using the Service, including their contents. SNM is not required to verify
whether the transmission and/or the contents to be transmitted are legal.
The Client warrants to hold the licences and permits required for the
products or services advertised via the Service.
4.10 SNM shall not be obligated to perform the contractual services if the
Client violates statutory provisions or its obligations under these General
Terms and Conditions when using the Service. If the Client is in breach or
is suspected to be in breach of statutory provisions or its obligations under
these Terms and Conditions, SNM is entitled to block the Client’s access
to the Service in whole or in part. A legitimate blocking does not affect the
payment obligations of the Client.
4.11 The Client shall indemnify SNM, upon first request, against any and all
losses, damages and costs, including the cost of legal representation (e.g.
lawyer’s fees) that are incurred by SNM as a consequence of the Client
having violated statutory provisions and/or these General Terms and
Conditions, either wilfully or negligently. This right to indemnification also
applies to any expenses incurred in the defence against third-party claims,
including claims of the competent supervisory authorities.
5. Performance of services by SNM
5.1 SNM collects, processes and uses personal data on behalf and at the
instructions of the Client. SNM has designed its internal organisation in
such a way as to meet the specific requirements of data protection. In
particular, SNM takes technical and organisational measures for the
appropriate protection of the Client’s data from misuse and loss. The
Client instructs SNM to take all organisational and technical measures
required to ensure the efficient processing of personal data under the
agreement. SNM undertakes to keep all Client data as confidential and
not to disclose any such data to third parties. SNM undertakes to commit
its staff and, where applicable, third parties via whom the orders are
processed to confidentiality and data secrecy. The Client continues to be
data owner of all address data including any associated recipient profiles.
The Client may request the return of the address data at any time; SNM
will treat any such address data with the utmost confidentiality. The Client
can access the address data via the Service at any time.
5.2 SNM’s setup service is deemed to have been performed when the
system made available to the Client has been accepted by the Client in
accordance with the contractual provisions, the manual has been provided
and the Client has been given access to the system for the term of the
agreement (if applicable, after crediting the Client’s data transfer account).
5.3 The Client is obligated to check within five (5) working days after
performance whether all services provided by SNM have been
performed correctly and to notify SNM of any complaints in writing.
Where the Client fails to so notify SNM on time and in compliance with
formal requirements, the service performed will be deemed to have been
performed in accordance with the contract.
5.4 Where SNM is prevented from performing its contractual services by
events of force majeure, or other circumstances that are not attributable to
SNM, SNM will be under no performance obligation for the duration of
any such event or circumstance.
5.5 SNM is entitled to use sub-contractors.
5.6 Irrespective of the term of the contract, SNM shall be entitled to delete
charts contained in, as well as attachments to, messages transmitted
using the Service six (6) months after transmission.
5.7 SNM is entitled to delete/destroy any information provided by the Client
for the purposes of performing the contractual services after termination of
the contract. The Client is responsible for compliance with any statutory
retention periods that apply to the Client under commercial and/or tax law
in particular.
6. Payment conditions
6.1 All remuneration is subject to the legal applicable VAT. Payments are due
immediately after invoicing, with no deductions. SNM is entitled to charge
interest according to legally regulated amounts if a delay in payment occurs.
The claim to other damages remains unaffected.
6.2 The transmission volume on which remuneration is based is commensurate
with all transmission transactions originated by the Client using the Service,
including bounces, system messages and replies.
6.3 The Client can offset claims arising from this contract only against undisputed
or legally determined claims arising from this contract.
6.4 SNM is entitled, despite contradictory terms from the client, to offset
existing older debts with incoming payments first. The client will be informed
of the type of settlement selected. If costs and interest have already been
incurred, SNM has the right to apply the payment first to offset these costs,
then to offset the interest and lastly to offset the primary service.
6.5 If the client is in payment arrears or if an application is made to open
bankruptcy proceedings against it, then SNM can withhold further services
and submit an invoice for all services already provided. In this case, SNM is
entitled to make any commitment to further services subject to the pre-
payment of all existing orders, even if they have already been contractually
agreed. This does not affect pecuniary claims and the enforcement of further
claims for damages.
7. Warranties
7.1 Any technical data, specifications and descriptions of services in the
documentation are solely used to describe the nature of the services but not
as a warranty as to quality.
7.2 Any statements made by SNM with regard to the services shall only be
deemed to be a warranty as to quality if they are made in writing and are
expressly and literally labelled as “warranty”.
8. Availability
8.1 The availability of the service is defined as follows:
Maximum availability (A = 100%) is defined as 365 days x 24 hours minus the
time for scheduled and communicated maintenance sessions (maximum of
12 months x 8 hours). SNM guarantees minimum availability of 95% as an
annual average, calculated in accordance with the formula: (A) minus
downtime (DT) divided by (A). Downtime beyond SNM’s control will not be
included in the calculation.
Definitions:
- Availability of the Service: 100% of the service is comprised as follows: 50%
web availability (including DirectRequest), 25% mailing availability and 25%
interface availability (FTP, SOAP, Mail-in).
- Downtime (DT): The time required to restore the Service, measured from
the time of notification to the time when the service has been restored. Any
periods required for the removal of disruptions or problems, during which
the service is nevertheless available, are not considered downtime.
- Scheduled and communicated maintenance times: The times for which
SNM schedules infrastructure maintenance sessions (which are
communicated to the Client) to ensure the trouble-free operation of the
service.
- Downtime beyond SNM’s control: Times during which the service is not
available due to disruptions of or problems with internet traffic, force
majeure, disruptions caused by components outside eCirce’s responsibility
and misuse or abuse of the Service by users.
8.2 In the unlikely event that the availability of the service falls below minimum
availability, SNM will compensate the Client. Said compensation will be
such that a reduced rate will be used for charging the services provided
during the billing period following the reporting period in which the minimum
availability level was not reached. For each 0.1%, by which the availability
level ascertained fell short of the minimum availability level, SNM will
reduce the applicable charging rate by 10%. Any such reduction will be
limited to 40%.
9. Liability
9.1 Subject to statutory provisions, SNM shall be fully liable for any damage
resulting from death or injury to body or health caused by wilful intent or
negligence on the part of SNM, its legal representatives or its vicarious
agents.
9.2 Subject to statutory provisions, SNM shall only be liable for any other
damage within the following limits:
SNM shall be fully liable for any damage resulting from wilful intent or
negligence on the part of SNM itself, its legal representatives or its vicarious
agents and for any damage caused by breach of a warranty.
SNM shall also be liable for damage that is to be typically expected for the
relevant type of contract and results from ordinary negligence if a material
contractual obligation has been breached.
Liability is excluded for all other cases of ordinary negligence.
9.3 The liability for data loss is limited to the typical costs of recovery that would
have been incurred had back-up copies been created at appropriate intervals.
9.4 All claims for damages vis-à-vis SNM will lapse one (1) year after the
commencement of the regular statutory limitation period.
9.5 To the extent that SNM’s liability has been excluded, this shall also apply to
the personal liability of any employees, representatives, agents, sub-
contractors and other staff of SNM.
9.6 Where the services are not performed to the required standard and this
shortcoming impairs their fitness for their purpose, the Client shall be entitled
to fault-free subsequent performance. SNM reserves the right to choose
the type of subsequent performance. Specifically, this shall apply to cases
where SNM failed to perform the service, in whole or in part, due to
technical disruptions. The Client shall only be entitled to a reduction in
remuneration if the service cannot be performed subsequently or if a
subsequent performance would be unacceptably for the Client. The Client
may request that SNM perform the service subsequently within a
reasonable period of time. Where the service has not been performed
subsequently within the period set for this purpose, the Client may
demand a refund of the pro-rated remuneration that reflects the share of
the service that was improperly performed.
9.7 Where SNM fails to perform the service, or fails to perform the service
properly, because the required Client information was received
incomplete, with a delay, was of poor quality or was not received at all,
SNM shall be entitled to full remuneration, unless SNM has failed,
either wilfully or negligently, to utilise any resources that were released as
a result of the non-performance or faulty performance for other purposes
until the point in time originally scheduled for performance.
9.8 SNM shall not be liable for the operability of telephone lines or the
internet, power cuts or the failure of any servers beyond SNM’s control.
10. Termination
10.1 The contract cannot be terminated during its agreed term.
10.2 The Client has the right to terminate the contract with immediate effect if
electronic messages and/or faxes cannot be transmitted for a period
exceeding 48 hours due to technical problems on the part of SNM. This
is the only case where the Client will be entitled to a pro-rated refund of
payments made to SNM for the advance crediting of the data transfer
account, with this refund corresponding to the unused portion of the data
transfer volume.
10.3 SNM has the right to terminate the contract with immediate effect if the
Client fails to comply with its obligations under Clause 4 hereof or its
payment obligations or fails to comply with any such obligations on time. In
this case, the Client shall not be entitled to any refund of payments made
to SNM.
10.4 Where the contract ends through the lapse of time, the Client must use up
any existing data transfer balances. Upon expiry of the contract term, any
data transfer balance not used will automatically expire without refund.
10.5 Notices of termination must be given in writing. Email does not satisfy the
written form requirement.
11. Confidentiality, privacy/data protection
11.1 The Client is hereby notified that SNM stores the Client’s data in
machine-readable form and processes such data electronically for
contractual purposes. The Client hereby agrees to such storage. To the
extent that SNM uses any third parties for the performance of services,
SNM shall be entitled to make the relevant data available to such third
parties if and when required.
11.2 The content of this agreement and any other confidential information must
be treated as strictly confidential by the parties and may only be disclosed
to any third parties where this is mandated by law. Information that was
demonstrably known to the Client and/or SNM at the commencement of
their contract negotiations or that entered into the public domain either
before or after conclusion of the contract, without wrongful act on the part
of the Client or SNM, are not deemed to be confidential information.
12. Miscellaneous
12.1 The exclusive legal venue for all disputes arising from or in connection
with the contractual relationship and place of performance shall be
London.
12.2 English law shall apply. The application of the United Nations Convention
on Contracts for the International Sale of Goods is expressly excluded.
12.3 If any provision hereof is or becomes invalid or unenforceable, in whole or
in part, the remaining provisions shall remain in full force and effect. In
such cases, the invalid or unenforceable provisions shall be replaced with
valid and enforceable provisions that come as close as possible to the
economic result of the original provision in the light of the purpose and the
intention of this agreement.
