This End User Services Agreement is a legal agreement between you, the licensed user ("You" or "End User") and Force24 Lead Nurturing LLP with offices at Office 2, Indigoblu, 14 Crown Point Road, Leeds, LS10 1EL ("Force24"). The Terms and Conditions set forth below govern Your use of Force24 Services (defined in Section 1 below). If You are an individual acting as a representative of, or are employed by a corporation or other legal entity that wishes to use Force24 Services, then You represent and agree to enter into this Agreement on behalf of such entity and that all provisions of this Agreement shall bind that entity as if it were named in this Agreement in place of You. By accepting this Agreement or by accessing any portion of the Force24 Services, You irrevocably agree to the terms of this Agreement, and You represent and warrant that You have all authority necessary to bind Yourself and that entity. If You do not agree with the terms of this Agreement, do not access the Force24 Services because accessing and using the Services means You have accepted these Terms and Conditions. This Agreement is effective on the date You access or use the Force24 Services.
These Terms and Conditions shall apply to Your use of Force24’s subscription services, all linked pages, content, products and offline components ("Service" or "Services") identified in one or more Force24 ordering documents signed by the parties, including any exhibits thereto ("Order" or "Orders"). These Terms and Conditions and all Orders (collectively referred to as the "Agreement") represent the parties’ entire understanding regarding the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control except with regard to renewal term pricing set forth in Section 6.1 below. All capitalised terms not defined herein shall have the meanings attributed in the Order.
2. Right to Use the Services
2.1 During the Subscription Term set forth in an Order and any renewal thereof, Force24 grants to You, a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by You or on Your behalf, and who are Your employees, agents or contractors ("Users"), to access and use the Services subject to the terms of the Agreement.
2.2 The Services are provided by Force24 from a data center facility to which Users have remote access via the Internet in conjunction with certain offline components provided by Force24 hereunder. Each Order defines specific Usage Rights, and You shall at all times ensure that Your use does not exceed its Usage Rights.
2.3 You shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, "Equipment"). You shall ensure that Equipment complies with all configurations and specifications set forth in Force24's published documentation.
3. Usage Restrictions and Representations
3.1 You shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Force24; or (iv) remove any proprietary notices or labels from the Services or Software. You shall use the Services and Software only for Your own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
3.2 You shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Force24's provision of the Services. You shall be responsible for maintaining the security of the Equipment and Your account access passwords. You and Force24 agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. You shall be liable for all acts and omissions of Your Users.
4.1 Force24 owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by You or any other party relating to the Services or Software shall be owned by Force24, and You shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Force24.
4.2 You own any data, information or material originated by You that You submit or compile in the course of using the Services ("Customer Data"). Force24 has no ownership rights in or to Customer Data. You shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data. Customer Data shall be deemed to be Your Confidential Information pursuant to Section 9 below.
5. Billing and Payment
5.1 You shall pay all fees set forth herein or in an Order. All fees are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on an Order. You shall pay all fees in British pound sterling or in such other currency as agreed to in writing by the parties.
5.2 All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
5.3 If at anytime Force24 determines that your account utilisation has exceeded our reasonable usage limit, as defined as being 10 data transactions per email sent. Force24 shall notify You and You shall either agree to reduce the account utilisation with 30 days of Force24’s notice. Force24 reserves the right to increase the system rental proportion of the agreement inline with the overage.
6. Term and Termination
6.1. The Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, shall remain in effect until all Services subscriptions granted in accordance with the Agreement have expired or been terminated. The Subscription Term shall automatically renew for additional period(s) equal to the duration of the initial Subscription Term unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of a Subscription Term. Fees applicable to each renewal Subscription Term shall not increase over the pricing for Services in the immediately preceding Subscription Term.
6.2. In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order or the Agreement for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. Force24 may immediately suspend Your password, account, and access to the Services if (i) You fail to make payment due within ten business days after Force24 has provided You with notice of such failure; or (ii) You violate Section 2.1, 3, or 9 of these Terms and Conditions. Any suspension by Force24 of the Services under the preceding sentence shall not relieve You of Your payment obligations under the Agreement. If Force24 terminates an Order or the Agreement for Your material breach, all fees owing hereunder are immediately due and payable.
6.3. Upon any termination or expiration of an Order or the Agreement, Your right to access and use the Services shall terminate. Notwithstanding the foregoing, at Your request if received within 30 days of termination, Force24 will permit You to access the Services solely to the extent necessary for You to retrieve a file of Customer Data then in Force24's possession. You acknowledge and agree that Force24 has no obligation to retain Customer Data and that Force24 will irretrievably delete and destroy Customer Data after 30 days following the termination of the Agreement. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability
7. Representations, Disclaimer of Warranties, Indemnities
7.1. Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Force24 warrants to You that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. You must notify Force24 of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.
7.2. For breach of the express warranty set forth above, Your exclusive remedy shall be the re-performance of the deficient Services. If Force24 cannot re-perform such deficient Services as warranted, You shall be entitled to recover a pro-rata portion of the fees paid to Force24 for such deficient Services, and such refund shall be Force24's entire liability.
7.3. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Force24's reasonable control, but Force24 shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
7.4. Except for the express warranties set forth herein, Force24 and its third party providers hereby disclaim all express or implied warranties with regard to the services, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement and quality. Force24 and its third party providers make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy, or completeness of the services or the results you may obtain from using the services. Without limiting the generality of the foregoing, Force24 and its third party providers do not represent or warrant that a) the operation or use of the services will be timely, uninterrupted or error-free; or (b) the quality of the services will meet your requirements. You acknowledge that neither Force24 nor its third party providers controls the transfer of data over communications facilities, including the internet and that services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Force24 is not responsible for any delays, delivery failures or damage resulting from such problems. Except where expressly provided otherwise by Force24, the services are provided to you on an ‘as is’ basis.
8. Limitation of Liability
8.1. Except for each party’s confidentiality obligations, bodily injury or death, neither party or its third party licensors shall be liable under any contract, negligence, strict liability or other theory; (a) for error or interruption of use, inaccuracy or cost of procurement of substitute goods, service or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond it’s reasonable control, even if such party has been advised of the possibility of such loss or damage; or (d) for any amounts that, together with amounts associated with all other claims, exceed the lesser of £200,00 or the fees paid by you in the proceeding 12 months. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
9. Confidential Information
9.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Your login identifiers and credentials for Accounts and the nature and performance of Your marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 6.3, and, upon Your request, Force24 shall certify to such destruction in writing.
10. Statistical Information
Notwithstanding anything else in the Agreement or otherwise, Force24 may monitor Your use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Your Confidential Information. Force24 retains all intellectual property rights in such information.
10.1. Activity Ownership - All activity information collected by the Force24 system pertaining to an outbound communication sent by the Force24 system, specifically relating to email opens, Email, Direct mail and SMS returned information, click engagement information, unsubscribe requests and web tracking history shall remain the property of Force24 and in accordance with all data protection laws Force24 shall not disclose any confidential information to any third party relating to the users personal contact information. Upon termination of the service the activity will be held within the Force24 system for statistical and aggregation purposes and made available to You for a maximum of 30 days. Force24 may at some point in the future utilise such information to enrich the service provided to other clients holding access to identical contact records.
Force24 may give notice applicable to Force24's general Services customer base by means of a general notice on the Services portal, and notices specific to You by electronic mail to Your e-mail address on record in Force24's account information or by written communication sent by first class mail or pre-paid post to Your address on record in Force24's account information. If You have a dispute with Force24, wish to provide a notice under the Agreement, or become subject to insolvency or other similar legal proceedings, You shall promptly send written notice to Force24 at Office 2, Indigoblu, 14 Crown Point Road, Leeds, LS10 1EL.
12. Force Majeure
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services provided.
13. General provisions
13.1. The Agreement and all Order(s), represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order by fax or electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement. The Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
13.2. No joint venture, partnership, employment, or agency relationship exists between Force24 and You as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.Exhibit A