Terms of Service
We’ve created these legal statements to be somewhat readable if there is anything you don’t understand or would like clarified please contact us!
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE OR USE OF THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR THE PRODUCTS.
1 About these Terms
1.1 We are SUNSHINE BLINK LIMITED, a limited company registered in England with registered address at 76a Creffield Road, London, England, W3 9PS and registered number 08015671 (referred to as “we“, “us” and “Upmail”).
1.2 We have developed certain software applications and platforms (the “Tool”) which we make available to subscribers via the internet on a periodic subscription basis for the purpose of creating tailored and engaging emails.
1.3 Please review these Terms carefully and make sure that you understand them before using the Tool. If you do not agree to these Terms, you must cease use of the Tool immediately
2. Acceptance of Terms
2.1 By either:
a) clicking or signing electronically, completing the Order Form and returning it by email, or signing the Order Form with an electronic or wet ink signature, to indicate acceptance of these Terms; or
b) by commencing use of the Tool, you agree to be bound by these Terms in their entirety.
3. Definitions and Interpretation
3.1 Capitalised terms not otherwise defined herein shall have the meanings given in the Order Form. The following capitalised terms shall have the meanings set out next to them:
Authorised Account means the email client operated by the Client (including without limitation any Gmail, Outlook, Salesforce or other provider accounts to which the Tool is “linked”) as further described herein;
Authorised User means a user of the Tool who has been issued with a username and password by Upmail and in respect of whom Fees are being paid by the Client;
Business Day means a day (other than a Saturday or Sunday) on which the banks are ordinarily open for business in the City of London;
Client Data means the data input by the Client, or Upmail on the Client’s behalf, for the purpose of using the Tool or facilitating the Client’s use of the Tool;
Confidential Information means the provisions of these Terms and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods or data, in all cases whether disclosed orally or in writing before or after the date of these Terms.
Documentation means such documents or content on Upmail’s website as may be made available to the Client by Upmail from time to time setting out a description of the Tool and any user instructions for the Tool;
Fees means the Licence Fees and any other fees (such as training fees) in each case as set out in the Order Form;
Frequency means the period in respect of which Licence Fees are payable as set out in the Order Form. This will generally be monthly, quarterly or annually in advance;
Intellectual Property Rights means any and all rights in and/or to patents (including supplementary protection certificates), rights to inventions, copyright and related rights, trademarks, service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Licence Fees means the fees payable in respect of the Authorised Users as set out in the Order Form;
Licence Period means the minimum term of the agreement constituted by these Terms and the Order Form, as set out in the Order Form;
Order Form means the order form to which these Terms are attached, and which together with the Terms forms a binding agreement between Upmail and the Client;
Pilot means a trial period during which the Client is granted the right to a permit a pre-agreed number of Authorised Users to use the Tool, the details of which are set out in the Order Form.
Processing Conditions: any restrictions or conditions with which Upmail is required to comply as set out in the Order Form;
Tool has the meaning given in clause 1.2.
4. Licences, Documentation and services
4.1 Where Upmail has permitted the Client to carry out a Pilot, Upmail shall permit the number of Authorised Users set out in the Order Form in respect of the Pilot to use the Tool during the Pilot. The Order Form shall set out whether a Licence Period automatically begins at the end of the Pilot unless the Client has notified Upmail that it does not wish to continue using the Tool. In the event that a Licence Period begins automatically, on or before the end of the Pilot, the Client shall pay the Licence Fees for the first period to Upmail and/or Upmail shall be permitted to take payment from the Client for such Fees using the payment method provided by the Client. To the extent that the Order Form does not provide for an automatic commencement of a Licence Period, Upmail may remove access to the Authorised Users of the Client at the end of the Pilot.
4.2 Subject to the remaining provisions of these Terms, Upmail hereby grants to the Client a non-exclusive, non-transferable right to permit the number of Authorised Users set out in the Order Form to use the Tool during the Licence Term solely in connection with the Client’s commercial business operations
4.3The Client may from time to time notify Upmail that an Authorised User has left the Client and request that the account associated with such Authorised User be transferred to a new person. Such transfer shall be effected by Upmail and shall not incur any additional Fees. The Client may request additional Authorised Users from time to time. Upmail shall implement any such request as soon as reasonably practicable and the increased number of Authorised Users shall apply for the remainder of the Licence Period. The Fees for the additional Authorised Users shall be at the rate set out in the Order Form pro-rated over the remainder of the Licence Period.
4.4 The rights provided under this clause 4 are granted to the Client only, and shall not be considered granted to any group company of the Client.
4.5 The Client agrees that the Tool requires and has permission to access the Authorised Account, including access to all the Client Data registered with such Authorised Account. In the event that the Client restricts access to its Authorised Account in any way at any time, the Tool may not function as contemplated by these Terms and the operation and effectiveness of the Tool may be impaired.
4.6 The Client acknowledges and agrees that Upmail may aggregate in an anonymised format any performance information generated by Upmail pursuant to the Client’s use of the Tool. The Client hereby grants Upmail a royalty-free, perpetual licence to use, disclose, sell and aggregate with the data of other customers such data.
4.7 Unless otherwise agreed in the Order Form, Upmail shall deliver to the Client on the Commencement Date (i) the Tool by way of login and password information for access to the Tool, and (ii) one copy of the Documentation in legible eye readable printed form and/or on USB or other format as the Client may reasonably request.
4.8 Where set out in the Order Form, Upmail, or its third parties, will provide the Support Services and/or Other Services, including any integration activities for the Tool with the Client’s systems or software, customisations, configurations or branding as set out in the Order Form. Other Services shall incur Service Fees.
5.1 In consideration of the provision of the Tool and (if applicable) any Support Services or Other Services, the Client shall pay the Fees in accordance with the provisions of this clause 5. All Fees shall be payable in pounds sterling (£). Fees shall be non-refundable unless stated to the contrary in these Terms. The Client shall pay all invoices to a bank account nominated in writing by Upmail or by credit card through Upmail’s website.
5.2 Upmail shall invoice the Client at the beginning of the Licence Period or in accordance with the Frequency for the particular Fee. All invoices shall be paid on 14-day terms unless otherwise stated in the Order Form. In the event that any invoice is not paid within 30 days of its due date for payment, Upmail may in its sole and absolute suspend the Client’s access to the Tool and / or terminate the agreement constituted by these Terms and the Order Form pursuant to clause 12.
5.3 If the Client fails to pay any amount properly due and payable by it under these Terms, Upmail shall have the right to charge interest on the overdue amount at the rate of four (4) per cent per annum above the base rate for the time being of the Bank of England accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment.
5.4 All sums payable under these Terms are exclusive of VAT, sales or any similar tax, import or customs duties which will be paid additionally by the Client to Upmail at the then prevailing rate.
5.5 Fees shall be payable in respect of each Authorised User.
6 Warranties and acknowledgements
6.1 Upmail warrants that during the Licence Term the Tool will, when properly used on an Authorised Account and using an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation and that the Documentation correctly describes the operation of the Tool in all material respects. The warranty herein does not apply: (a) if the defect or fault in the Tool results from the Client having altered or modified the Tool; or (b) if the defect or fault in the Tool results from the Client having used the Tool in breach of the terms of these Terms.
6.2 Upmail does not warrant that the Client’s use of the Tool will be uninterrupted or error-free; or that the Tool, Documentation and/or the information obtained by the Client through the Tool will meet the Client’s requirements. Upmail is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Tool and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7 Client Undertakings
7.1 The Client undertakes not to access, store, distribute or transmit any virus, or any material during the course of its use of the Tools that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive, and Upmail reserves the right to disable the Client’s access to any material that breaches the provisions of this clause.
7.2 Except to the extent expressly permitted under these Terms, the Client undertakes not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, reverse compile, disassemble or reverse engineer all or any portion of the Tool (other than reports and summaries generated via the Tool, which the Client shall be entitled to share with its customers provided that the logo and branding of Upmail is clearly visible).
7.3 The Client undertakes not to access all or any part of the Tool and Documentation in order to build a product or service which competes with the Tool, or to resell the Tool.
7.4 The Client shall comply with all applicable laws and regulations with respect to its use of the Tool and Documentation as well as the terms of service applicable to the provider of any Authorised Account.
8 Data protection
8.1 The Client warrants to Upmail that any personal data contained in Client Data provided to the Upmail is provided subject to a valid processing condition and that where consent is the processing condition, such consent has been given in a clear unambiguous format in compliance with the General Data Protection Regulation (EU) 2016/679).
8.2 In the event that Upmail processes any personal data on the Client’s behalf when performing its obligations under these Terms, the parties record their intention that the Client shall be the data controller and Upmail shall be a data processor.
8.3 The parties agree that:
a) personal data may be transferred or stored outside the EEA or the country where the Client is located and the Client shall ensure that the Client is entitled to transfer the relevant personal data to Upmail so that Upmail may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf; and
b) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9 Intellectual Property Rights
9.1 The Client acknowledges and agrees that all Intellectual Property Rights in the Tool and the Documentation shall remain the property of Upmail. Nothing in these Terms shall have the effect of granting any Intellectual Property Rights in the Tool and/or the Documentation to the Client.
9.2 The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Tool or the Documentation.
9.3 All Intellectual Property Rights in the Client Data shall remain the property of the Client and, for the avoidance of any doubt, the Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
10.1 The Client shall defend, indemnify and hold harmless Upmail 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 the Client’s use of the Tool and/or Documentation and/or Upmail’s use of the Client Data as contemplated by these Terms, provided that: (a) the Client is given prompt notice of any such claim; (b) Upmail provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and (c) the Client is given sole authority to defend or settle the claim.
10.2 In no event shall Upmail, its officers, employees, agents and sub-contractors be liable to the Client to the extent that any alleged infringement is based on: (a) a modification of the Tool or Documentation by anyone other than Upmail; or (b) the Client’s use of the Tool or Documentation in a manner contrary to the instructions given to the Client by Upmail; or (c) the Client’s use of the Tool or Documentation after notice of the alleged or actual infringement from Upmail or any appropriate authority.
11 Limitation of Liability
11.1 Nothing in these Terms shall exclude or limit either party’s liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other matter that cannot be limited or excluded by law. Upmail shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, misrepresentation or otherwise in connection with these Terms for any indirect, special or consequential loss or damage, howsoever arising.
11.2 Subject to clause 11.1 above, Upmail’s total aggregate liability arising out of or in connection with these Terms shall in no event exceed an amount equivalent to one hundred per cent (100%) of the Fees paid or payable by the Client in the 3 months immediately preceding the date on which the claim arose
12 Duration and Termination
12.1 The agreement constituted by these Terms and the Order Form shall come into force on the Commencement Date and shall continue for the Licence Term, renewing thereafter for successive periods of equal duration to the initial Licence Term (each, a “Renewal Period”)(subject to the Client’s payment to Upmail of all applicable Fees in respect of each such Renewal Period), unless and until terminated by either party giving the other no less than 30 days’ prior written notice, such notice not to expire earlier than the end of the initial Licence Term or, in the event of a Renewal Period, the end of the relevant Renewal Period.
12.2 Each party shall be entitled to terminate these Terms immediately upon giving notice in writing to the other party if
a) the other party commits a material breach of any of the terms of these Terms and, where such a breach is capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
b) the other party becomes or is reasonably likely to become insolvent, enters into bankruptcy, individual voluntary arrangement, liquidation, winding up, receivership or administrative receivership, administration, a corporate voluntary arrangement or compromises any debts with creditors.
12.3 The termination/expiry of these Terms shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination/expiry.
12.4 Upon termination or expiry of these Terms for whatever reason and without affecting any other rights or remedies of any party the Client’ right to use the Tool shall immediately cease and Upmail shall be permitted to delete any Client Data and any other data generated by the Tool in respect of the Client.
13.1 Each party shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties under these Terms and shall not use nor disclose the same save for the purposes of the proper performance of these Terms or with the prior written consent of the other party. The Client acknowledges that details of the Tool constitutes Upmail’s Confidential Information. The parties may disclose Confidential Information to an employee, consultant or agent to the extent necessary for the performance of these Terms.
13.2 The obligations of confidentiality in this Clause 13 do not extend to any Confidential Information which the party that wishes to disclose or use can show (i) is or becomes generally available to the public other than as a result of a breach of the obligations of confidentiality under these Terms, (ii) was in its written records prior to the date of these Terms and not subject to any confidentiality obligations, (iii) was or is disclosed to it by a third party entitled to do so, (iv) the parties agree in writing is not Confidential Information or may be disclosed or (v) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
14.1 The agreement constituted by these Terms is personal to the Client. The Client shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under these Terms without the prior written consent of Upmail. Upmail may assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under these Terms at any time without the prior written consent of the Client
14.2 Upmail shall have no liability to the Client under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Upmail or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration
14.3 No person who is not a party to these Terms shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of these Terms
14.4 These Terms and the Order Form contains the entire agreement between the parties in relation to their subject matter and supersedes any prior arrangement, understanding written or oral agreements between the parties in relation to such subject matter
14.5 If at any time any part of these Terms is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, such part shall be deemed omitted from these Terms and remainder of these Terms shall remain in effect
14.6 No purported alteration or variation of these Terms shall be effective unless it is in writing signed by a duly authorised representative of each of the parties.
14.7 Any notices sent under these Terms must be in writing. Notice by email is deemed to be in writing
14.8 These Terms and any issues, disputes or claims arising out of or in connection with them (whether contractual or non-contractual) shall be governed by, and construed in accordance with, English law
14.9 All disputes or claims arising out of or relating to these Terms shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.