Updated on 21st August 2014
These Terms of Service set out the terms and conditions upon which you may use the Taxi for Email Service and functionality FDU makes available through the Taxi for Email Service.
By signing up to or using the Taxi for Email Service, you agree to and accept these Terms of Service.
Please read these Terms of Service carefully and make sure you understand and agree to them before using the Taxi for Email Service. If you have any questions relating to these Terms of Service please contact FDU at firstname.lastname@example.org.
IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE PLEASE DO NOT USE THE TAXI FOR EMAIL SERVICE.
1. INFORMATION ABOUT FDU
1.1.The Taxi for Email Service is provided by Future Design Unit Limited (“FDU”), a company incorporated and registered in England and Wales under company number 07783258 whose registered office is at 503 Pill Box, 115 Coventry Road, Bethnal Green, London, E2 6GH. UK. FDU’s VAT number is GB192849854.
2.1. In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
2.1.1. “Account” means the Customer’s account on the Taxi for Email Service;
2.1.2. “Agreement” means the agreement between the Customer and FDU for the provision of the Taxi for Email Service and, if applicable, the Integration Services, comprising these Terms of Service and any terms agreed to during the Sign Up Process;
2.1.3. “Customer” means the person or organisation identified as the customer during the Sign Up Process;
2.1.4. “Customer Data” means any content or data transferred to any FDU equipment as a result of the use of the Taxi for Email Service;
2.1.5. “Commencement Date” means the date from which the Customer will receive access to the Taxi for Email Service, and, if applicable, the Integration Services, as set out during the Sign Up Process;
2.1.6. “Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
2.1.7. “Initial Term” means the period set out during the Sign Up Process that starts on the Commencement Date;
2.1.8. “Integration Services” means the services set out during the Sign Up Process relating to the integration of the Taxi for Email Service with the Customer’s IT systems and services;
2.1.9. “Renewal Term” means a period of time equivalent to the Initial Term that the Agreement will automatically extend for following the end of the Initial Term or any previous Renewal Term;
2.1.10. “Service Fees” means the amount set out during the Sign Up Process for the provision of the Taxi for Email Service and, if applicable, the Integration Services.
“Integration Services” means the services set out during the Sign Up Process relating to the integration of the Taxi for Email Service with the Customer’s IT systems and services;
2.1.11. “Sign Up Process” means the process (whether electronic or otherwise) by which the Customer signs up to use the Taxi for Email Service and, which amongst other things, identifies the Customer and sets out the Service Fees;
2.1.12. “Taxi for Email Service” means the email content management, design and production system product FDU makes available as a service through the Website;
2.1.13. “Term” means the Initial Term or any Renewal Term;
2.1.14. “Terms of Service” means these terms and conditions of service as amended from time to time;
2.1.15. “Trial” means a trial of the Taxi for Email Service for the Trial Period;
2.1.16. “Trial Period” means the Trial period set out in the Sign Up Process;
2.1.17. “User” means any person authorised by the Customer to access the Taxi for Email Service on behalf of the Customer;
2.1.18. “Virus” mean any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.1.19. “Website” means taxiforemail.com, emailcms.net and any subdomains.
3.1. FDU may offer a Trial of the Taxi for Email Service during the Trial Period. If a Trial Period has been agreed during the Sign Up Process, the Trial will start on the Commencement Date and will continue for the Trial Period. Following expiry of the Trial Period, the Agreement will automatically terminate unless otherwise agreed by the Customer and FDU as set out in writing or during the Sign Up Process.
3.2. Either party may terminate the agreement at any time during the Trial.
4.1. The Agreement shall start on the Commencement Date set out during the Sign Up Process and continue for the Initial Term. The Agreement shall automatically renew for a Renewal Term at the end of the Initial Term (and at the end of each Renewal Term).
4.2. The Customer may terminate this agreement at any time during the then current Term. If the Customer terminates before the end of the then current Term, the Customer shall not be entitled to any refund of any Services Fees paid to FDU for that Term.
5. ACCESS TO THE TAXI FOR EMAIL SERVICE
5.1. FDU grants the Customer a non-exclusive, non-transferable, personal and non sub-licensable licence to permit Users to use the Taxi for Email Service and the Taxi for Email Service features for the purpose of monitoring and analysing content available to the Customer on the Taxi for Email Service and managing the Customer’s Account.
5.2. Where indicated in the Order Form, FDU will provide the Integration Services for the Customer.
5.3.The Customer must treat any username and password used to access the Taxi for Email Service or the Customer’s Account as Confidential Information, and it must not disclose it to any third party (other than to Users).
5.4. In relation to Users, the Customer shall ensure that the Customer shall procure that each User keeps secure and confidential any username and password provided to them for the User’s use of the Taxi for Email Service and shall not disclose such user name and password to any third party other than persons within the Customer’s organisation, company or business.
5.5. FDU may disable any username or password, at any time and at FDU’s sole discretion, if a User or the Customer has failed to comply with any of the provisions of the Agreement.
5.6. The Customer is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Users. Whenever applicable, FDU encourages the Customer to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Customer has any concerns about the login details for its Account or thinks they have been misused, please contact FDU at email@example.com.
5.7. The Customer must take reasonable precautions to prevent any unauthorised access to, or use of, the Taxi for Email Service and, in the event of any such unauthorised access or use, promptly notify FDU.
5.8. The Customer recognises that FDU is always innovating and finding ways to improve the Taxi for Email Service with new features and services. Therefore, the Customer agrees that the Taxi for Email Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Taxi for Email Service.
5.9. The Customer shall indemnify and defend FDU, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by a third party relating to the Customer’s use of the Taxi for Email Service (except to the extent caused by FDU’s negligence).
5.10. FDU grants the Client a non-exclusive, non-transferable, personal and non sub-licensable licence to (a) use templates accessible in the Taxi for Email Service to display the Customer Data in the email product that results from the Customer’s use of the Taxi for Email Service and (b) to customise such templates as permitted by the functionality in the Taxi for Email Service or as agreed between the Parties in writing from time to time.
6. CUSTOMER’S OBLIGATIONS
6.1. FDU may monitor the Customer’s use of the Taxi for Email Service to ensure quality, improve the Taxi for Email Service, and verify the Customer’s compliance with the Agreement.
6.2. The Customer:
6.2.1. must comply with all applicable laws and regulations with respect to its use of the Taxi for Email Service and its activities under the Agreement;
6.2.2. must use the Taxi for Email Service in accordance with the terms of the Agreement and shall be responsible for any actions and omissions in connection with the use of the Taxi for Email Service by any Users;
6.2.3. must obtain and shall maintain all necessary licences, consents, and permissions necessary for FDU to perform its obligations to the Customer under the terms of Agreement;
6.2.4. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by FDU from time to time;
6.2.5. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Taxi for Email Service.
6.2.6. must not use the Taxi for Email Service: (a) to access, store, distribute or transmit or prepare for distribution or transmission any Virus (b) to access, store, distribute or transmit or prepare for distribution or transmission any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (c) in a manner that is illegal or causes damage or injury to any person or property; (d) to infringe any copyright, database right or trademark of any person; (e) to transmit, send prepare for transmission or prepare for sending any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (‘spam’); (f) to interfere with or attempt to interfere with or compromise the Taxi for Email Service integrity or security.
6.3. The Customer agrees that failure to comply with this clause constitutes a material breach of the Agreement, and may result in our taking all or any of the following actions:
6.3.1. immediate, temporary or permanent withdrawal of any rights to use the Taxi for Email Service;
6.3.2. the issuing of a warning;
6.3.3. legal action against the Customer including proceedings for reimbursement of all costs and expenses (including, but not limited to, reasonable administrative and legal costs) incurred by us resulting from the breach; or
6.3.4. disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
6.4. The Customer acknowledges that the responses described in this clause are not limited, and we may take any other action we reasonably deem appropriate.
7. IMPORTANT NOTE ON INTELLECTUAL PROPERTY RIGHTS
7.1.FDU is the owner of or the licensee of all intellectual property rights in the Taxi for Email Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
7.2. The Customer will not, when using the Taxi for Email Service, except as may be allowed by any applicable law which is incapable of exclusion by FDU:
7.2.1. and to the extent expressly permitted under these Terms of Service attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Taxi for Email Service in any form or media or by any means; or
7.2.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Taxi for Email Service; or
7.2.3. access all or any part of the Taxi for Email Service in order to build a product or service which competes with the Taxi for Email Service or use or attempt to use the Taxi for Email Service to directly compete with FDU.
7.3. The Customer grants FDU a licence to access, download and use the Customer Data for the purpose of analysing the Customer Data in accordance with the Taxi for Email Service functionality, displaying the results of such analysis to Users, developing, testing, improving and altering the functionality of the Taxi for Email Service and producing anonymised or anonymised and aggregated statistical reports and research. Otherwise, FDU claims no rights in the Customer Data. The Customer shall maintain a backup of Customer Data and FDU shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.
8.1. FDU may use the Customer’s name, logo and related trade marks in any of FDU’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Taxi for Email Service and alongside any testimonials that the Customer has agreed to give. The Customer grants FDU such rights as are necessary to use its name, logo, related trademarks and testimonial for the purpose of this clause 8.1.
8.2. The Customer acknowledges that FDU may prepare written overviews of the impact of the Taxi for Email Service on the Customer’s business (“Case Studies”). The Customer agrees that FDU may publish such Case Studies with the Customer’s consent (such consent not to be unreasonably refused) as part of its marketing materials. The Customer may request reasonable amendments to Case Studies. Any consent to be given to Case Studies or requests for amendments to Case Studies prepared by FDU shall not be unreasonably delayed by the Customer. FDU and the Customer agree that the Case Studies may consist of (but not limited to) information identifying the Customer, the dates and timeframes for the provision of the Taxi for Email Service, the dates and timeframes for the achievement of relevant outcomes using the Taxi for Email Service, the description of the outcomes achieved using the Taxi for Email Service and metrics relating to those outcomes. No information which in the Customer’s reasonable opinion is commercially sensitive to its business shall be included in published Case Studies. The Customer agrees to provide a reasonable level of assistance to FDU in preparation of Case Studies, if requested to do so by FDU.
8.3. The Customer agrees to provide regular feedback to FDU in relation to its use of the Taxi for Email Service. Such feedback may be in the form of a telephone or face to face meeting or the completion of a written survey or questionnaire as reasonably agreed between FDU and the Customer. Unless agreed otherwise, the Customer shall be required to spend no more than 1 hour participating in the provision of such feedback every 3 months from the Commencement Date (or once during the Term if shorter than 3 months). The Customer is under no obligation to respond to any question put to it by FDU during FDU’s collection of feedback. By submitting feedback, the Customer acknowledges that FDU may use and allow others to use this feedback in the Taxi for Email Service or otherwise without any restriction.
9. DATA PROTECTION
9.1. FDU does not claim ownership in the Customer Data.
9.2. If FDU processes any Personal Data as a result of hosting the Customer Data or as a result of the Customer’s use of the Taxi for Email Service, the Customer agrees that FDU does so as Data Processor and that the Customer is the Data Controller in relation to such Personal Data.
9.3. FDU and the Customer agree that, in relation to such Personal Data:
9.3.1. FDU will process the Personal Data only in accordance with the terms of the Agreement and any lawful written instructions reasonably given to FDU by the Customer from time to time; and
9.3.2. FDU will both have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
9.4.For the purposes of this clause 9, the terms “Personal Data”, “Data Processor” and “Data Controller” shall have the same meaning as set out in the Data Protection Act 1998.
10. CONFIDENTIAL INFORMATION
10.1. Each party may be given access to Confidential Information from 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:
10.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2. was in the other party’s lawful possession before the disclosure;
10.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
10.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by it or its employees or agents in violation of the terms of the Agreement.
10.4. Each party shall take a back-up of its own Confidential Information and shall not be responsible to the other for any loss, destruction, alteration or disclosure of Confidential Information.
11. PRICE AND PAYMENT
11.1. The Customer will pay the Service Fees set out during the Sign Up Process as agreed between the parties. The Service Fees are payable in advance. The Customer agrees that the Service Fees are non-refundable.
11.2. Unless alternative payment is agreed during the Sign Up Process, the Customer will provide to FDU valid, up-to-date and complete credit or debit card details and it hereby authorises FDU to bill such credit or debit card for the Service Fees as set out in the Sign Up Process.
11.3. If FDU has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies available to FDU:
11.3.1. FDU may, without liability to the Customer, suspend or temporarily disable all or part of its access to the Taxi for Email Service and FDU shall be under no obligation to provide any access to the Taxi for Email Service while the invoice(s) concerned remain unpaid; and
11.3.2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
11.4. All amounts and fees stated or referred to in the Agreement:
11.4.1. are payable in the currency specified in the Sign Up Process or otherwise stipulated by FDU; and
11.4.2. are exclusive of value added tax (“VAT”) unless otherwise expressly stated, which shall be paid at the same time as payment of the Service Fees. FDU shall send the Customer a VAT invoice if FDU is requested to do so.
11.5. Unless otherwise agreed in writing, FDU may increase the Service Fees upon 30 days’ notice in writing to the Customer, such increase to take affect from the commencement date of the Renewal Term following the expiry of the notice. If the Customer is unhappy with the increase, the Customer may terminate the Agreement with FDU by providing a minimum of 30 days’ notice, such notice not to expire until the end of the Term. During the notice period the Services Fees will not increase. Any such Service Fees increase shall not occur more than once per calendar year.
12.1. Where the Customer has paid for access to the Taxi for Email Service, we will use commercially reasonable endeavours to make the Taxi for Email Service available with an uptime rate of 99%, except for:
12.1.1. planned maintenance for which 24 hours’ notice will be given; or
12.1.2. unscheduled maintenance during normal business hours (UK time) or otherwise, for which we will use reasonable endeavours to give the Customer advance notice.
12.2. Where the Customer has paid for access to the Taxi for Email Service, FDU will, as part of the Taxi for Email Service, use reasonable endeavours to provide a level of support that is appropriate to the nature of any issues requiring support during normal business hours (UK time). Support for Customers using the Taxi for Email Service for free will be provided entirely at FDU’s option and discretion.
12.3. The Customer acknowledges that elements of the Taxi for Email Service are dependent on access to various third party services and APIs. The Customer agrees that FDU is not responsible for the non- availability or interruption to the Taxi for Email Service caused by any such non availability of any such third party services or APIs.
13. SUSPENSION AND TERMINATION
13.1. If the Customer fails to pay any sum due to FDU and such sum remains outstanding for a further 14 days following notice requiring such sum to be paid FDU may terminate the Agreement with the Customer immediately by notice and without any liability for FDU to the Customer.
13.2. FDU may terminate the Agreement with 30 days’ notice in writing.
13.3. FDU may terminate the Agreement by notice with immediate effect, or such notice as FDU may elect to give, if the Customer:
13.3.1. is in breach of applicable law; or
13.3.2. infringes FDU’s intellectual property rights in the Taxi for Email Service.
13.4. Either party may terminate the Agreement at any time on written notice to the other if the other:
13.4.1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
13.4.2. is unable to pay its debts (within the meaning of section 123
of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
13.5. On termination of the Agreement for any reason all licences granted under the Agreement shall immediately terminate and the Customer’s right to access and use the Taxi for Email Service will end.
13.6. FDU shall use reasonable endeavours to permit the Customer to download any Customer Data from the Taxi for Email Service for a period of 15 days after the expiry or termination (howsoever caused) of the Agreement.
13.7. 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.
14. LIMITED WARRANTY
14.1. FDU undertakes to support the Taxi for Email Service as specified in clause 12.1 and will provide the Integration Services (if any are to be provided) with reasonable skill and care. Otherwise, the Taxi for Email Service is provided on an “AS IS” basis and FDU gives no representations, warranties, conditions or other terms of any kind
in respect of the Taxi for Email Service, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability fitness for a particular purpose or non-
14.2. Except as expressly and specifically provided for in the Agreement:
14.2.1. The Customer assumes sole responsibility for any results obtained from the use of the Taxi for Email Service and for any decisions or actions taken arising from such use and it relies on the results obtained from the Taxi for Email Service at its own risk;
14.2.2. All representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
14.2.3. FDU will not be responsible for any interruptions, delays, failures or non-availability affecting the Taxi for Email Service or the performance of the Taxi for Email Service which are caused by third party services or errors or bugs in software, hardware or the internet on which FDU relies to provide the Taxi for Email Service and the Customer acknowledges that FDU does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
15. FDU’S LIABILITY
15.1. Subject to clause 15.1, FDU will not be liable for losses that result from FDU’s failure to comply with the Agreement, in tort (including negligence) or otherwise in conditions that fall into the following categories: loss of income or revenue; loss of business; loss of profits; loss of anticipated savings; loss of data; waste of management or office time; or any indirect, consequential or special damages, costs or expenses.
15.2. Nothing in the Agreement excludes or limits FDU’s liability for death or personal injury caused by FDU’s negligence or for fraud or fraudulent misrepresentation.
15.3. FDU’s total 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 in all circumstances be limited to the Service Fees paid by the Customer in the 6 months prior to the event giving rise to the claim or, in the case of an event in the Trial Period giving rise to a claim, £1.
16. WRITTEN COMMUNICATIONS
16.1. Applicable laws may require that some of the information or communications FDU send to the Customer should be in writing. When using the Taxi for Email Service, the Customer accepts that communication with FDU will be mainly electronic. FDU will contact the Customer by e-mail or provide the Customer with information by posting notices on the Taxi for Email Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that FDU provides to the Customer electronically comply with any legal requirement that such communications be in writing.
17.1. All notices given by the Customer to FDU must be given to hello@ taxiforemail.com. FDU may give notice to the Customer at either the e-mail or postal address the Customer provides to FDU, or any other way FDU deems appropriate. Notice will be deemed received and properly served immediately when posted on the Taxi for Email Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
18. TRANSFER OF RIGHTS AND OBLIGATIONS
18.1. The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Customer’s rights or obligations arising under the Agreement, without FDU’s prior written consent.
19. EVENTS OUTSIDE FDU’S CONTROL
19.1. No party shall be liable to the other for any delay or non- performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 19 shall excuse the Customer from any payment obligations under the Agreement.
20.1. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
21.1. If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
22. FDU’S RIGHT TO VARY THE TERMS OF SERVICE
22.1. FDU has the right to revise and amend these Terms of Service from time to time to reflect changes in market conditions affecting FDU’s business.
22.2. The Customer will be subject to the Terms of Service in force at the time that it makes use of the Taxi for Email Service, or if FDU notifies the Customer of changes to these Terms of Service and it continues to use the Taxi for Email Service the Customer will be subject to those changes.
22.3. FDU will use reasonable endeavours to notify the Customer of any material changes to these Terms of Service by email or by the placement of a notice on the Taxi for Email Service.
23. THIRD PARTY RIGHTS
23.1. A person who is not party to the Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
24. LAW AND JURISDICTION
24.1. The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.