Service Agreement

Conesso Terms and Conditions

1. Interpretation

1.1 The following definitions apply in these terms and conditions:

Acceptable Use Policy: Conesso's acceptable use policy, set out at Annex B of these terms and conditions;

Agreement: the service agreement signed by the Client which consists of the Service Confirmation Form and these terms and conditions;

Client: the business, firm or company who contracts with Conesso under the Agreement for the provision of the Services as detailed in the Service Confirmation Form;

Client Data: any data provided by the Client to Conesso or uploaded by the Client to the Software, including any personal data that Conesso processes on behalf of the Client via the Services;

Commencement Date: the date the Service Confirmation Form is signed by the Client;

Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;

Fees: the fees set out in the Service Confirmation Form together with such other additional charges as may be agreed between the parties from time to time;

Initial Term: 12 months from the commencement of the relevant Services;

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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: written documentation and content, 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 Conesso but excluding Client Data;

Payment Date: the date on which the Direct Debit is set to fall, or, where payment is made on delivery of invoice, 30 days from the date of invoice;

Security Incident: any unauthorised or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorised disclosure of or access to Client Data on systems managed or otherwise controlled by Conesso;

Sensitive Data: any personal data that falls within the definition of “special categories of data” as defined in the Data Protection Laws;

Service Confirmation Form: the order form above confirming the Services and the Fees;

Services: the services to be provided by Conesso, as detailed in the Service Confirmation Form;

Site: Conesso's website located at;

Software: Conesso's data management and manipulation software used to provide the Services;

Conesso: IDHL Intelligence Limited t/a Conesso a company registered in England (Company Number 14225124); and

Working Hours: 08.30 to 17.00, Monday to Friday UK local time, excluding bank holidays in England and Wales.

1.2 In these terms and conditions: headings are inserted for convenience only and shall not affect construction or interpretation; references to clauses are to the clauses of these terms and conditions; words denoting the singular shall include the plural and vice versa; any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; and use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive.

2. Application of Terms

2.1 Conesso shall provide the Services to the Client for the duration of the term (as detailed in clause 3.1 below) in accordance with the Agreement.

2.2 Use of the Services by the Client shall be upon and subject to the Agreement to the exclusion of all other terms and conditions that the Client seeks to impose or incorporate, or which otherwise are implied by trade, custom, practice or course of dealing. Should there be any conflict between these terms and conditions and the Service Confirmation Form, the Service Confirmation Form shall take precedence. Any terms defined in the Service Confirmation Form shall apply to these terms and conditions, unless otherwise stated.

2.3 By entering into the Agreement each party warrants to the other that they have the power and authority to enter into the Agreement.

3. Commencement and Duration

3.1 The Agreement shall come into force on the Commencement Date and shall continue for the period detailed in clause 3.2 below (unless terminated earlier in accordance with clause 12).

3.2 The Agreement shall automatically renew for a period equal to the Initial Term (Extended Term) at the end of the Initial Term and at the end of each Extended Term, unless the Client gives written notice to Conesso, no later than 30 days before the end of the Initial Term or any Extended Term to terminate this Agreement at the end of the Initial Term or any Extended Term as the case may be. If after the 30 day termination window but before the start of the relevant Extended Term, the Client gives written notice to Conesso to terminate this Agreement, the Client acknowledges that the Agreement shall renew but only for a 3 month period.

4. Supply of Services

4.1 Conesso will provide the Services using reasonable skill and care.

4.2 Conesso does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay.

4.3 Conesso's delivery of the Services is dependent upon:

a. the Client providing accurate and up to date email addresses;

b. the recipient of the relevant email having suitable internet availability and connectivity; and

c. various anti-spam and junk mail policies as well as restrictions regarding the content, wording and graphics of an email adopted by recipient email service providers used by Conesso from time to time.

4.4 Conesso will use reasonable endeavours to assist the Client with methods to maximise the delivery rate of emails, however Conesso makes no representations or warranties about the speed or number of emails sent that will be delivered to recipients.

4.5 Except as set out in the Agreement, the Services are provided by Conesso on an "as is" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement.

4.6 The Client shall be entirely responsible for compliance with all laws and regulations in force from time to time as may be applicable to the use of the Services and for the content of any emails sent using the Services.

4.7 The Client shall perform all acts, and do all such things, as Conesso may require from time to time, including accepting and entering into any end user licence agreement made available by any relevant third party relating to the Software or the Services.

5. Account Access

5.1 The Client will keep its passwords and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all members of staff are aware of the confidential nature of such information and treat it accordingly.

5.2 The Client shall notify Conesso immediately if it believes that the log in details for use of the Services are no longer secret.

5.3 The Client is solely responsible for all activities that occur under the Client's account.

5.4 The Client will not permit any person to access the Services for any unauthorised purpose.

6. Client's Obligations

6.1 The Client shall not:

a. use the Services in any way so as to bring the Services or Conesso into disrepute (in Conesso’s sole discretion);

b. use the Services to send unsolicited or unauthorised advertising, unsolicited bulk email support services, junk mail, spam, chain letters or pyramid schemes, offensive adult services, pornographic or discriminatory material or images;

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 or in any way contravenes the Acceptable Use Policy. Where Conesso deems the Client to have contravened the Acceptable Use Policy in any way, Conesso may, in its sole discretion, suspend the Client’s use of the Services and the Client acknowledges that it shall be liable to pay the Fees for the duration of the suspension;

e. use the Services in a manner which infringes the Intellectual Property Rights, proprietary or personal rights of any third party;

f. misuse the Site, Software or Services by introducing viruses or other material which is technologically harmful or interrupts, destroys or limits the functionality of the Site, Software or Services;

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

h. upload, post, email or otherwise transmit content that it does not have the right to transmit; and/or

i. use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material or engage in any kind of illegal activity.

6.2 For the avoidance of doubt, unsolicited bulk email support services described at clause 6.1(b) may include services provided to known spam operations listed on Register of Known Spam Operations, 'bullet-proof hosting' for spam service purposes, obfuscating or anonymising spam senders, selling or providing hosting for the sales or distribution of spamware or address lists.

6.3 Conesso does not monitor the content of emails created by the Client but may at its discretion immediately and without notice suspend the Client’s access to the Services for any period of time, and/or add any email addresses to its global suppression list if it considers that the Client is in breach of clause 6.1.

6.4 If Conesso suspends the Service in accordance with clause 6.3 no refund of the Fees paid by the Client will be made.

6.5 The Client agrees:

a. to comply, and to ensure that its use of the Services complies, in all respects, with all applicable legislation, regulations, directions, codes of practice, best practice guides (including the Direct Marketing Association (DMA) best practice guides, The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing

b. (CAP Code), the Spamhaus best practice guides) and other rules and guidelines, whether mandatory or otherwise (collectively known as the Codes); and

c. that where Conesso is aware or is notified that the Client is or has been in breach of any element of the Codes, Conesso may at its discretion immediately and without notice to the Client suspend the Service. If Conesso suspends the Service in accordance with this clause 6.5(b) no refund of the Fees paid by the Client will be made.

6.6 In the event of a breach by the Client of the Agreement, applicable legislation, regulations, directions, relevant codes of practice or best practice guides and other rules and guidelines, including the Codes, Conesso will review the circumstances leading to the breach and may in its absolute discretion either:

a. suspend the provision of Services and only reactivate the Services subject (at Conesso's sole discretion) to the Client 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; or

b. terminate the Agreement.

6.7 Without prejudice to its other rights in the Agreement Conesso reserves the right to immediately remove any item included in any emails forming part of the Services or any other item or material made available via the Services by the Client at any time and without notice, where the content is in Conesso's reasonable opinion a breach of the Agreement.

6.8 If the Client fails to take the remedial actions requested by Conesso within any required timescale, Conesso reserves the right to terminate the Agreement upon giving notice to the Client and the Client shall become immediately liable to pay all outstanding Fees due to Conesso including any fees due for the unexpired Initial Term (where applicable).

6.9 The Client is not permitted to conduct vulnerability scanning, or any form of penetration testing against the Services or application servers.

6.10 The Client shall make back-up copies of any data uploaded to the Software, Conesso shall not be responsible for the back-up of Client Data but shall endeavour to carry out back-ups as and when it deems necessary.

7. Fees and Payments

7.1 Payment for the Fees will be taken by Direct Debit, unless agreed otherwise by Conesso in writing. In the event of two failed attempts to collect any direct debit payment Conesso may cancel the direct debit mandate and the Client will be required to make payment by another method. Where it is agreed that payment is to be made via delivery of an invoice, your invoice will contain instructions for alternative payment methods, for which you must clear within 7 days of the date of the invoice.

7.2 Payment shall be made in pounds sterling. All Fees quoted to the Client for the provision of the Services are exclusive of any VAT, for which the Client shall be additionally liable at the applicable rate from time to time.

7.3 Conesso may at its reasonable discretion, alter the level of Fees or change or modify the payment terms under the Agreement upon giving the Client 30 days' notice of the same either by email or notification on the Site.

7.4 Within 14 days of receiving such notice, the Client may notify Conesso in writing that it wishes to terminate the Agreement on 3 full calendar months’ notice with no change to the Fees or payment terms during such notice period. Conesso may then either:

a. accept the notice of termination from the Client;

b. make amendments to the proposed charge; or

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

7.5 The Client shall be deemed to have accepted the changes proposed under clause 7.3 by Conesso if notice is not received in accordance with clause 7.4.

7.6 Subject to any variation agreed in writing between the parties from time to time, the Fees and any additional sums payable shall be paid by the Client to Conesso on the Payment Date.

7.7 Payment of the Fees shall be made by direct debit by the Client to the bank account nominated by Conesso from time to time. The Client shall set up a direct debit mandate for payment of the Fees which must be completed and returned to Conesso on signing the Agreement.

7.8 Conesso reserves the right to accept payment of Fees by cheque or bank transfer.

7.9 If the Client fails to pay any sums due by the Payment Date, Conesso shall notify the Client and reserves the right to immediately disable the account and temporarily suspend the provision of the Services to the Client until such time as any outstanding invoices have been settled in full, whereupon the Services will be reinstated or terminated (at Conesso's sole discretion).

7.10 Conesso reserves the right to carry out credit checks on the Client and by signing the Agreement the Client expressly consents to such credit checks. Credit checks may be carried out without notice from time to time.

7.11 Conesso reserves the right to suspend Services or to provide a restricted Service limiting the send volumes of emails based on the results of any credit checks carried out. Conesso also reserves the right to apply a limit on Fees incurred by the Client and/or to request payments of Fees in advance during the provision of the Services if a Client's credit rating worsens. Such restricted Service and Fee limitations will be notified to the Client in writing and shall continue until such time as Conesso may elect.

7.12 All amounts due by the Client to Conesso shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Data Protection

8.1 Each party undertakes to comply with its obligations under the Data Protection Laws. The Client is the data controller in respect of any personal data that Conesso processes in the course of providing the Services, further details of which are set out at Annex A of these terms and conditions.

8.2 Conesso shall process Client Data only in accordance with the Client’s documented lawful instructions as set out in this clause 8, as necessary to comply with applicable law, or as otherwise agreed in writing. The parties agree that the Agreement sets out the Client’s complete and final instructions to Conesso in relation to the processing of Client Data, and processing outside the scope of these instructions (if any) shall require prior written agreement between the parties.

8.3 The Client will not provide (or cause to be provided) any Sensitive Data to Conesso for processing under the Agreement.

8.4 The Client represents and warrants that:

a. it has complied, and will continue to comply, with all applicable laws, including the Data Protection Laws, in respect of its processing of Client Data and any processing instructions it issues to Conesso; and

b. it has provided, and will continue to provide, all notices and has obtained, and will continue to obtain, all consents and rights necessary under the Data Protection Laws for Conesso to process Client Data for the purposes described in the Agreement. The Client shall have sole responsibility for the accuracy, quality, and legality of Client Data and the means by which the Client acquired the Client Data. Without prejudice to the generality of the foregoing, the Client agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Service, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.

8.5 The Client will ensure that Conesso's processing of the Client Data in accordance with the Client’s instructions will not cause Conesso to violate any applicable law, regulation, or rule, including, without limitation, the Data Protection Laws. Conesso shall promptly notify the Client in writing, unless prohibited from doing so by the Data Protection Laws, if it becomes aware or believes that any data processing instruction from the Client violates the Data Protection Laws.

8.6 The Client agrees that Conesso may engage sub-processors to process Client Data on the Client's behalf. The sub-processors currently engaged by Conesso and authorised by the Client are available on request.

8.7 Conesso shall enter into a written agreement with each sub-processor containing data protection obligations that provide a similar level of protection for Client Data as those in the Agreement, to the extent applicable to the nature of the service provided by such sub-processor; and shall remain responsible for such sub-processor’s compliance with the obligations of the Agreement.

8.8 Conesso shall implement and maintain appropriate technical and organisational security measures to protect against any security breach taking into account the state of technological development and the cost of implementing any measures.

8.9 Conesso shall ensure that any person who is authorised by Conesso to process Client Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality.

8.10 The Client is responsible for reviewing the information made available by Conesso relating to data security and making an independent determination as to whether the Service meets the Client’s requirements and legal obligations under the Data Protection Laws.

8.11 Upon becoming aware of a Security Incident, Conesso shall:

a. notify the Client without undue delay, and where feasible, in any event no later than 48 hours from becoming aware of the Security Incident;

b. provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by the Client; and

c. promptly take reasonable steps to contain and investigate any Security Incident. Conesso's notification of or response to a Security Incident under this clause 8 shall not be construed as an acknowledgment by Conesso of any fault or liability with respect to the Security Incident.

8.12 Notwithstanding the above, the Client agrees that except as provided by this clause 8, the Client is responsible for its secure use of the Service, including securing its account authentication credentials, protecting the security of Client Data when in transit to and from the Service, and taking any appropriate steps to securely encrypt or backup any Client Data uploaded to the Service.

8.13 Conesso shall make available to the Client all information reasonably necessary to demonstrate compliance with this clause 8 on reasonable notice and allow for and contribute to audits, including supervised inspections by the Client on reasonable written notice in order to assess compliance with this clause 8, not more than once in any 12 month period.

8.14 Conesso shall not transfer any personal data outside of the UK and the EU unless the prior written consent of the Client has been obtained and Conesso complies with its obligations under the Data Protection Laws by ensuring appropriate safeguards are in place and providing an adequate level of protection to any personal data that is transferred.

8.15 Upon termination of the Agreement, Conesso shall delete all Client Data (including copies) in its possession or control, except that this requirement shall not apply to the extent Conesso is required by applicable law to retain some or all of the Client Data, or to Client Data it has archived on back-up systems, which Conesso shall securely isolate, protect from any further processing and eventually delete in accordance with Conesso's deletion policies.

8.16 Conesso shall, taking into account the nature of the processing, provide reasonable additional assistance to the Client to the extent possible to enable the Client to comply with its data protection obligations with respect to data subject rights under the Data Protection Laws. If any such request is made to Conesso directly, Conesso shall not respond to such communication directly except as appropriate (for example, to direct the data subject to contact the Client) or legally required, without the Client's prior authorisation. If Conesso is required to respond to such a request, Conesso shall promptly notify the Client and provide the Client with a copy of the request unless Conesso is legally prohibited from doing so.

9. Intellectual Property Rights

9.1 In consideration for payment of the Fees by the Client in accordance with the Agreement, Conesso hereby grants to the Client a non-exclusive and non-transferable licence to make use of the Services solely for the purposes for which the Service in question is intended; and access and use the Software in support of the Client’s authorised use of the Services and in connection with the operation and administration of the Agreement, in each case, in accordance with the terms and conditions of the Agreement.

9.2 For the avoidance of doubt, other than the limited licences granted under the Agreement the Client shall not acquire any right or title in or to any Intellectual Property Rights in or capable of subsisting in any Service and/or the Software.

9.3 The Client shall not use or attempt to use any Service and/or the Software:

a. in any way which disrupts, restricts or interferes with the provision of any Services and/or the Software and/or availability to and use by other users authorised by Conesso;

b. access or attempt to access any part of a Service and/or the Software which the Client is not authorised to access; and/or

c. reverse engineer, decompile, copy, distribute, disseminate, sub-licence, modify, translate, scan and/or adapt any software or other code or script which forms part of or is accessible via any Service and/or the Software save to the limited extent that the Client is permitted to do so as a matter of law without the possibility of lawful exclusion.

9.4 The licences granted to the Client under the Agreement are personal to the Client and other than those individual employees of the Client who the Client authorises from time to time to access and use any Service and/or the Software on its behalf (and for whose acts and omissions the Client shall be vicariously liable) the Client shall not permit any other person to access and use the Service, whether or not in return for payment.

9.5 The Client represents and warrants that it either owns or has permission to use all of the material, content, data, and information (including personal information of any third party) it submits to Conesso in the course of using the Service (Content) and that the receipt and use of the Content by Conesso and its subcontractors shall not infringe any rights, including Intellectual Property Rights, of any third party.

9.6 Conesso may at any time refer to the Client in Conesso's marketing and advertising communications.

9.7 If the Client becomes aware that any other person, firm or company alleges that the Intellectual Property Rights in the Services and/or Software are invalid or that use of the same infringes any rights of another party the Client shall as soon as reasonably possible give Conesso full particulars in writing and shall make no comment or admission to any third party in respect thereof.

10. Confidentiality

10.1 Each party may be given access to Confidential Information by the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

a. is or becomes publicly known other than through any act or omission of the receiving party;

b. was in the other party's lawful possession before the disclosure;

c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

d. is independently developed by the receiving party without any reference to any Confidential Information of the disclosing party.

10.2 Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party (other than to its corporate group, employees, sub-contractors, agents, representatives and professional advisors), or use the other's Confidential Information for any purpose other than the implementation of the Agreement.

10.3 Each party shall take reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Conesso's Confidential Information.

11. Maintenance

11.1 It may be necessary for Conesso to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services and/or Software.

11.2 Conesso will use its reasonable endeavours to provide the Client with at least 48 hours' notice of temporary suspensions of the Services and will aim to carry out any scheduled and planned maintenance or repair work outside of Working Hours in order to minimise disruption to the Services provided to the Client.

11.3 Conesso reserves the right to carry out urgent maintenance or repair work at any time and without notice.

11.4 Services may also be suspended in whole or in part where Conesso or any third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority.

12. Suspension and Termination

12.1 Conesso may suspend or terminate (at its absolute discretion) the Agreement (and Services) forthwith on giving written notice if the Client:

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 to do;

b. if, in the reasonable opinion of Conesso, the Client's use of the Software or continued provision of the Services damages, or threatens, to damage the security or stability of any services provided by Conesso or its licensors to other clients or damages the reputation and goodwill of Conesso or its licensors;

c. becomes insolvent, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend or cease trading, wind up or dissolve the Client other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease trading;

d. commits multiple infringements of the Agreement;

e. fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or

f. there is a change of control or ownership of the Client.

12.2 The period during which Conesso may suspend the Services in accordance with the Agreement will continue until the earlier of the circumstances giving rise to Conesso right to suspend the Services ceases to subsist or until the Agreement is terminated.

12.3 In the event that Conesso suspends or terminates the provision of Services to the Client under clause 12 the Client will continue to be obliged to pay any Fees owing or that arise during the period when the Service is suspended.

12.4 Conesso may immediately and without notice suspend the provision of Services to the Client if the Client's account remains inactive for a period of 12 months or more.

12.5 Upon termination of the Agreement for whatever reason:

a. there shall be no refund of any element of the Fees to the Client;

b. all unpaid Fees shall become immediately due to Conesso;

c. the Client shall return or (at Conesso’s request) destroy any Confidential Information and other property or materials of Conesso then in its possession or control, and certify in writing to Conesso that this has been done;

d. all rights and licences of the Client under the Agreement shall terminate on the termination date; and

e. the Client shall immediately cease using the Software and the Services.

12.6 Where the provision of Services, or access to the Software, to the Client has been suspended for any reason, Conesso reserves the right to charge an administration fee for reconnection or any resumption of the provision of the Services, or access to the Software, as applicable.

12.7 Termination of the Agreement on whatever basis shall be without prejudice to any rights or obligations of Conesso which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of the Agreement, whether expressly or by implication, is to continue in or come into force following termination.

13. Modification

13.1 Conesso may at its reasonable discretion, change or modify the Agreement or Services upon giving the Client 30 days' notice of the same either by email or notification on the Site or such other period of time where agreed with the Client in writing.

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

a. accept the notice of termination from the Client;

b. make amendments to the proposed charge; or

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

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

14. Limitation of Liability

14.1 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.

14.2 Nothing in the Agreement limits or excludes the liability of either party:

a. for death or personal injury resulting from negligence;

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

c. any other liability that cannot be excluded or limited by law.

14.3 Subject to clause 14.2:

a. Conesso shall not be liable to the Client for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

b. Conesso’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with the performance, or contemplated performance, of the Agreement shall be limited to 125% of the total charges paid to Conesso by the Client under the Agreement in the 12 months prior to when the applicable breach occurred.

14.4 The Client shall indemnify Conesso against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Conesso arising out of or in connection with:

a. the content that the Client submits, posts or transmits via the Software or the Services;

b. the Client's use or misuse of the Software or Services;

c. the use/misuse by any third party, employee or person (without limitation) for whom the Client is responsible; or

d. the Client's violation or breach of the Agreement in any way.

15. Force Majeure

15.1 Neither party shall be responsible to the other in circumstances where some or all of its obligations (except for the obligation for the payment of Fees) under the Agreement cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an act of God, change in legislation, fire, explosion, flood, pandemic, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, third party hacking, viruses, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities, unavailability of internet, default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security).

15.2 If such circumstances described in clause 15.1 persist for more than 60 days, the non-defaulting party may terminate the Agreement and all Fees due to Conesso up to the date of termination shall become immediately due and payable.

16. General

16.1 Each right or remedy of Conesso under the Agreement is without prejudice to any other right or remedy of Conesso whether under the Agreement or not.

16.2 No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.3 Conesso may at its reasonable discretion assign, subcontract, transfer or deal in any other manner with all or any of its rights under the Agreement or any part thereof to a third party.

16.4 The Client may not assign, sub-contract, sub-licence or otherwise transfer any rights or obligations under the Agreement or any part thereof without the prior written consent of Conesso.

16.5 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable, and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.

16.6 Failure or delay by Conesso in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.

16.7 Any waiver by Conesso of any breach of, or any default under, any provision of the Agreement by the Client shall not be deemed a waiver of any subsequent breach or default, and shall in no way affect the other terms of the Agreement.

16.8 The parties to the Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

16.9 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and each party hereby irrevocably submits to the jurisdiction of the English Courts.

16.10 Except where otherwise expressly stated herein, the Agreement (and any document referred to in it) constitutes the entire agreement between the parties relating to the subject matter of the Agreement and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of the Agreement.

16.11 The Agreement shall not be deemed to create any partnership or employment relationship between the parties.

17.1 Notices

17.1 All notices between the parties under the Agreement shall be in writing and sent by pre-paid first class post to the party’s registered office or by email. Notices shall be deemed to have been served / received:

a. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

b. if sent by email on a working day prior to 5.00 p.m., at the time of transmission and otherwise on the next working day. Any notice sent to Conesso via email must be sent to

Annex A – Details of Data Processing

Subject matter: The subject matter of the data processing under the Agreement is the Client Data.

Duration of processing: Conesso will process Client Data as outlined in clause 8.15 of the terms and conditions above.

Purpose of processing: Conesso shall only process Client Data for the permitted purposes, which shall include: (i) processing as necessary to provide the Services in accordance with the Agreement; (ii) processing initiated by the Client in its use of the Services; and (iii) processing to comply with any other reasonable instructions provided by the Client (e.g., via email or support tickets) that are consistent with the terms of the Agreement.

Nature of the processing: Conesso provides an email service, automation and marketing platform and other related services, as more particularly described in the Service Confirmation Form.

Categories of data subjects: a person the Client may contact through the Services e.g. anyone on the Client’s distribution list or about whom the Client has given Conesso information.

Types of Client Data: the Client may upload, submit or otherwise provide certain personal data to the Services, the extent of which is typically determined and controlled by the Client in its sole discretion, and may include the following types of personal data:

a. Identification and contact data of the Client’s employees (name, address, title, contact details, username); financial information (credit card details, account details, payment information); employment details (employer, job title, geographic location, area of responsibility); and

b. Identification and contact data of the Client’s contacts which may include customers, targets and employees (name, date of birth, gender, occupation or other demographic information, address, contact details, including email address); personal interests or preferences (including purchase history, marketing preferences and publicly available social media profile information); IT information (IP addresses, usage data, cookies data, online navigation data, location data, browser data); financial information (credit card details, account details, payment information).

Sensitive Data: Conesso requests that the Client does not upload any Sensitive Data to the Platform, nor does it intentionally, collect or process any Sensitive Data in connection with the provision of the Services.

Annex B – Acceptable Use Policy

The Client must comply with the laws and regulations applicable to bulk or commercial email in any jurisdiction in which it operates. In addition, the Client’s bulk or commercial email must meet the following requirements. The Client must:

  • have a privacy policy posted for each domain associated with the mailing;
  • have the means to track anonymous complaints;
  • not use purchased or rented third party lists of email addresses;
  • not obscure the source of your e-mail in any manner;
  • post an email address for complaints in a conspicuous place on any website associated with the email, and promptly respond to messages sent to that address;
  • ensure its intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure, and produce the evidence of such consent within 72 hours of receipt of a request by the recipient or Conesso;
  • use reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
  • include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
  • to the extent required by law, give the recipient of any marketing email a clear and unambiguous means to unsubscribe from further emails; and
  • honour revocations of consent and notify recipients of the same.

The above requirements apply to distribution lists created by third parties to the same extent as if the Client created the list.

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