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 emailGenerator
emailBroadcaster
Short Burst Ltd. Terms and Conditions of Use for the Email Generator (“Generator Conditions”)
1. Definitions
In these Generator Conditions the following words shall have the meanings attributed to them below:
“Shortburst” means Short Burst Ltd, a private limited company which has its registered office at Broughton Manor, Broughton, Milton Keynes, Buckinghamshire MK10 9AA;
“Client” means the client subscribing to the Service;
“Fees” means the fees payable by the Client to Shortburst for the Service, as set out here;
“Product” means an email newsletter or other similar communication tool created by use of the Service;
“Service” means the email Generator service provided via the Site;
“Site” means the website of Shortburst located at www.shortburst.co.uk;
“Start Date” means the first date when the Client subscribes to the Service.
2. Email Generator Service
2.1. Shortburst offers the Service to its Clients which can be used to create a range of text documents such as newsletters and product information sheets. A demonstration and full explanation of the Service can be accessed here.
2.2. Shortburst shall be entitled at any time without notifying the Client to make changes to the Service which are necessary to comply with any applicable security or statutory requirements and shall determine the manner in which the Service is provided.
2.3. Shortburst shall provide the Service to the Client as soon as possible after receipt of a request from the Client and until the Client notifies Shortburst that the Service is no longer required under the provisions of clause 7 subject to the provisions of these Generator Conditions.
2.4. Shortburst shall not be responsible for any failure to provide the Service, or the unavailability of the Site, as a result of circumstances beyond its reasonable control, notwithstanding that the Client accepts that it shall still be responsible for payment of Fees.
2.5. Any and all intellectual property (including but not limited to trade marks, copyright, design rights, ideas, concepts, know-how, techniques, templates and images) used in the generation of any email via the Service or obtained or developed during the execution of the Service will be owned exclusively by Shortburst.
2.6. Shortburst grants to the Client a non-exclusive right and licence (with no right to sub-license) to copy, cache, store, use, distribute, display, communicate and transmit any Product solely for the purposes of promoting the Client’s business provided that the Client ensures that Shortburst’s trade marks and copyright materials are displayed in accordance with any reasonable guidelines issued by Shortburst from time to time, the goodwill relating to any such use accruing to and vesting in Shortburst.
2.7. Any and all text used in the creation of any Product via the Service shall be owned exclusively by the Client.
2.8. The Client agrees and accepts that:
2.8.1. Shortburst shall not be liable for any failure to provide the Service (or any part thereof) as a result of any event outside Shortburst’s control (including but not limited to the lack of availability of Internet or other relevant connectivity) and/or the Client's failure to comply with these Generator Conditions and/or to follow the instructions for use of the Service;
2.8.2. if any quota or part of the Service which is to be used within any period of time is not used within that period of time then in each case the Client shall still be responsible for full payment of Fees as if the Service had been properly and fully provided (and, for the avoidance of doubt, Shortburst shall not be liable for providing any unused part of the Service and such unused part of the Service may not be carried over to any subsequent period).
3. Processing of Information
3.1. The Site has security measures in place to protect the loss, misuse, destruction and alteration of information. However, the Client accepts that whenever it releases data online that information can be collected and used by people that the Client may not know. While Shortburst makes all reasonable commercial efforts to protect Clients’ information, it cannot guarantee the security of any information online. Shortburst shall not be liable in respect of (and disclaims all liability in relation to) any information submitted to the Site which becomes available to third parties other than as intended by Shortburst and/or the Client. In case of concern the Client may contact Shortburst to discuss the possibility of delivering data other than via the Internet.
3.2. If any of the Client’s information changes (for example e-mail address) the Client will inform Shortburst of the correct details by amending the relevant details on the Client’s registration part of the Site.
3.3. Shortburst has the right, at its sole discretion, to decline to publish or omit, suspend, remove or change the position of any information whatsoever for any reason without notice and may suspend the Service if Shortburst considers in its absolute discretion that providing the Service many incur a legal liability for the Client, other clients, a third party, or Shortburst and Shortburst may refuse to publish, withdraw, or require to be amended any material, which is, in the opinion of Shortburst, illegal, immoral, obscene, offensive or otherwise prejudicial to the interests of Shortburst or the Client or other users of the Service, or to avoid infringing a third party's rights or any statutory or regulatory requirements.
4. Client's Obligations
4.1. The information and text submitted by the Client to be used within the Product generated by the Service is solely the Client’s responsibility, and is submitted with its full knowledge and acceptance that the internet is not a secure medium. Shortburst is not responsible for drafting text, or any other Client communications and merely provides the electronic means to enable Clients to present information. Shortburst does not process any of the data transmitted by Clients, and accepts no liability whatsoever for the content or impact of the same.
4.2. At the Client’s request assistance may be offered to the Client provided that Shortburst reserves the right to charge an hourly rate as agreed by and between the parties and the Client agrees, acknowledges and accepts by indicating its acquiescence to these Generator Conditions that Shortburst provides the Service as a mere conduit for the facilitation of information presentation.
4.3. The Client hereby undertakes and warrants to Shortburst that:
4.3.1. the Client will indemnify Shortburst against all indirect and/or direct costs, claims, damages, losses, expenses and liabilities suffered or incurred by Shortburst as a result of this undertaking and warranty being breached;
4.3.2. any information supplied by the Client to Shortburst is accurate, complete and true;
4.3.3. in respect of any information that contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any data by which any living person is or can be identified, the Client has obtained the express authority of such living person to make use of such name, representation and/or data;
4.3.4. all information and or material supplied by the Client using the Service is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to the same as may be appropriate;
4.3.5. no material transmitted via the Service contains any data, image or other material that:
(a) is offensive, obscene or indecent;
(b) is defamatory, threatening, or racially, ethnically, or otherwise objectionable;
(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
(d) infringes the rights (including but not limited to the intellectual property rights) of another person;
(e) is designed or likely to cause disruption to any computer system or to any network;
(f) is illegal or designed or likely to induce an illegal act.
4.4. The Client acknowledges that:
4.4.1. Shortburst may accept instructions in relation to the Service from any of the following persons:
(a) any person to whom the Client provides passwords or who the Client allows to make use of the Service;
(b) legally authorised proxy, personnel, or other representative(s) of the Client identified in writing by the Client as constituting the same;
4.4.2. the Client will procure that it (and any authorised proxy, personnel, or other of its legal representatives) will keep confidential and not disclose to any person any passwords used by them in relation to the Service;
4.4.3. the Client will be responsible for, and shall indemnify Shortburst in respect of all use and misuse of, all passwords and shall be responsible for all acts and omissions of any person using passwords as if they were acts or omissions of the Client;
4.4.4. Shortburst shall not be responsible for any breach of these Generator Conditions, any delay in performance of the Service, or defect or error in the Service which arises as a result of Shortburst accepting instructions from the Client or any Client-authorised or apparently Client-authorised person/third party using such passwords.
4.5. The Client shall:
4.5.1. abide by any and all applicable rules, regulations, legislation, codes, laws, and or governmental authority in any jurisdiction that may be relevant to its activities in relation to the Service and/or these Generator Conditions;
4.5.2. indemnify Shortburst against all indirect and/or direct costs, claims, damages, loss, expenses and liabilities incurred by Shortburst arising out of any breach of this Clause 4.5.
5. Liability
5.1. Shortburst will not be liable (whether in contract, tort or otherwise) for:
5.1.1. any loss of any copy, text, artwork, photographs, data or other information or materials that the Client uses in the course of its use of the Service and the Client shall be responsible for retaining in its possession sufficient quality and quantity of such materials for whatsoever purposes it may require;
5.1.2. any mistakes or errors whatsoever that arise during the course of publication of any material or any loss of information or data or any damage thereto;
5.1.3. any direct and/or indirect loss of profit, loss of revenue or contracts, or any other direct or indirect, special, economic or consequential loss (whether caused by the negligence of Shortburst, its employees or agents or otherwise);
5.1.4. any direct and/or indirect cost, expense, loss (including loss of profit), damage or liability howsoever caused (including without limitation as a result of any hardware failure, provision or use of software, virus, deletion, corruption, loss or removal of data);
5.1.5. any direct and/or indirect loss or damage whatsoever (including loss of profits) howsoever caused arising out of the suitability, inaccuracy or the wrongful disclosure of confidential information by the Client;
5.1.6. charges incurred in asserting any aspect of these Generator Conditions against the Client (including, without limitation, legal fees and disbursements reasonably incurred by Shortburst);
5.1.7. any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from the Site; (b) any content on the Site; (c) the unavailability of the Site, or any part thereof; (d) use of the Site or the content; or (e) the Client’s use of any equipment or software in connection with the Site; and/or
5.1.8. any special, direct, indirect, incidental, punitive or consequential damages of any kind whatsoever (including, without limitation, lawyers’ fees) in any way due to, resulting from, or arising in connection with the use of or inability to use the Site and/or the Service.
5.2. In no event shall Shortburst’s liability to the Client in relation to the Client’s use of the Site and/or the Service exceed the amount of Fees received by Shortburst from the Client within the calendar year prior to the relevant liability arising.
5.3. Nothing in these Generator Conditions will restrict or exclude Shortburst’s liability for death or personal injury caused by its own negligence.
5.4. The Client agrees and acknowledges that, save as expressly provided in these Generator Conditions, no condition, warranty or representation of any kind is, has been, or will be, given by or on behalf of Shortburst in respect of or in connection with the Service and accordingly the Client confirms that it has not, in agreeing to these Generator Conditions, relied upon any condition, warranty or representation by Shortburst or any person on its behalf, express or implied, whether arising by law or otherwise, in relation to or in connection with the Service. The benefit of any such condition, warranty or representation by Shortburst is hereby irrevocably and unconditionally waived by the Client.
6. Payment Provisions
6.1. Shortburst will invoice the Client for Fees subject to clause 6.2 below.
6.2. All sums due in respect of Fees are exclusive of any value added tax or other applicable sales or other tax or levy, for which the Client shall be solely and additionally liable.
6.3. If the Client fails to pay any amount owing to Shortburst when due then Shortburst reserves the right to charge interest (after as well as before judgment) on that amount at the rate of 4% per annum above the base rate of HSBC (without prejudice to Shortburst’s other rights under these Generator Conditions). Such interest shall accrue from the due date until payment is made in full and shall be compounded monthly.
7. Term and Termination
7.1. The term of this Agreement shall be a minimum of one calendar year from the Start Date and shall continue thereafter indefinitely unless cancelled by the Client or Shortburst with no less than one (1) month’s written notice (“Term”).
7.2. Subject to the provisions of these Generator Conditions, the Service shall be available for the Term unless otherwise requested by the Client and agreed in writing by Shortburst or notified in writing by Shortburst to the Client.
7.3. Either party may, at its sole discretion, at any time serve notice of termination in writing to the other party (the "Defaulting Party") if:
7.3.1. the Defaulting Party fails to pay to the other party any amount when due; or
7.3.2. the Defaulting Party is in breach of these Generator Conditions and fails to remedy such breach within fourteen (14) days of notice from the other party requiring it to be remedied.
7.4. Upon termination the availability of the Service may be immediately ceased and the full amount of any Fees owing to Shortburst by the Client in respect of any Services shall become payable with immediate effect.
7.5. Within three calendar months of receipt of a request in writing from the Client, Shortburst shall, to the extent practically and technically possible without disrupting Services to other clients, remove from Shortburst’s servers any information that the Client requests should be removed by Shortburst and which the Client is unable to remove without assistance from Shortburst.
7.6. The Client shall be responsible for all reasonable direct and/or indirect costs, claims, damages, losses, expenses and liabilities incurred by Shortburst arising out of the Client's breach of its obligations under these Generator Conditions (including, without limitation, on a solicitor and own client basis, any legal fees and disbursements reasonably incurred by Shortburst).
8. General
8.1. All notices to the Client shall be made to the email address submitted to the Site, and notices to Shortburst shall be made to notices@shortburst.co.uk.
8.2. The Client shall not be entitled to assign its agreement with Shortburst nor any or all of its rights and obligations hereunder without prior written consent of Shortburst which can be withheld without cause.
8.3. If any provision of these Generator Conditions shall be invalid or unenforceable, it shall not affect any other provision, which shall remain in full force and effect.
8.4. These Generator Conditions together with the details of Service and Fees, constitute the entire agreement between the Client and Shortburst in respect of the Services provided by Shortburst to the Client.
8.5. Any waiver by Shortburst of any breach of, or any default under, any provision of these Generator Conditions by the Client will not be deemed to be a waiver of any subsequent breach or default and will in no way affect the other terms and conditions.
8.6. Failure or delay by Shortburst in enforcing or partially enforcing any provision of these Generator Conditions will not be construed as a waiver of any of its rights under these Generator Conditions.
8.7. The parties to these Generator Conditions do not intend that any term hereof will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
8.8. Shortburst shall not be liable for any breach or act or omission transpiring by reason of a force majeure event, including but not limited to natural disasters, industrial disputes, civil disruptions, sabotage, explosions, accidents, telecommunications and utilities failures, software or systems malfunction, terrorists acts, and governmental acts.
8.9. Shortburst reserves the right to change any part of these Generator Conditions and if it exercises the right to do so it will post the changes on the Site and send an email to the email address supplied by the Client. Continued use of the Service after changes have been posted on the Site and/or notified by email will signify that you agree to any such changes.
8.10. No variation or alteration to these Generator Conditions or any representations about the Service shall have any effect unless expressly agreed and confirmed in writing by a director of Shortburst or as set out in clause 8.9.
8.11. References to any statute or statutory provision shall, unless the context otherwise requires be construed as a reference to that statute or statutory provision as from time-to-time amended, consolidated, modified, extended, re-enacted or replaced.
8.12. Words importing persons include individuals, bodies corporate and unincorporated and clause headings will not affect their construction.
9. Law
9.1. These Generator Conditions and any contract into which these Generator Conditions are incorporated shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of English courts.
THIS VERSION OF THE GENERATOR CONDITIONS REPLACES ANY AND ALL PREVIOUS TERMS AND CONDITIONS, and constitutes version 1.0 dated 12th September 2006.
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Short Burst Ltd. Terms and Conditions of Use for the Email Broadcaster (“Broadcaster Conditions”)
1. Definitions
In these Broadcaster Conditions the following words shall have the meanings attributed to them below:
“Shortburst” means Short Burst Ltd, a private limited company which has its registered office at Broughton Manor, Broughton, Milton Keynes, Buckinghamshire MK10 9AA;
“Client” means the client subscribing to the Service;
“Fees” means the fees payable by the Client to Shortburst for the Service, as set out here;
“Service” means the email Broadcaster service provided via the Site;
“Site” means the website of Shortburst located at www.shortburst.co.uk;
“Start Date” means the first date when the Client subscribes to the Service.
2. Email Broadcaster Service
2.1. Shortburst offers the Service to its Clients which can be used to send a range of text documents such as newsletters and product information sheets. A demonstration and full explanation of the Service can be accessed here.
2.2. Shortburst shall be entitled at any time without notifying the Client to make changes to the Service which are necessary to comply with any applicable security or statutory requirements and shall determine the manner in which the Service is provided.
2.3. Shortburst shall provide the Service to the Client as soon as possible after receipt of a request from the Client and until the Client notifies Shortburst that the Service is no longer required under the provisions of clause 7 subject to the provisions of these Broadcaster Conditions.
2.4. Shortburst shall not be responsible for any failure to provide the Service, or the unavailability of the Site, as a result of circumstances beyond its reasonable control, notwithstanding that the Client accepts that it shall still be responsible for payment of Fees.
2.5. Any and all intellectual property (including but not limited to trade marks, copyright, design rights, ideas, concepts, know-how, techniques, templates and images) used in the sending of any email via the Service or obtained or developed during the execution of the Service will be owned exclusively by Shortburst.
2.6. Shortburst grants to the Client a non-exclusive right and licence (with no right to sub-license) to use the Service solely for the purposes of promoting the Client’s business provided that the Client ensures that Shortburst’s trade marks and copyright materials are displayed in accordance with any reasonable guidelines issued by Shortburst from time to time, the goodwill relating to any such use accruing to and vesting in Shortburst.
2.7. The Client agrees and accepts that:
2.7.1. Shortburst shall not be liable for any failure to provide the Service (or any part thereof) as a result of any event outside Shortburst’s control (including but not limited to the lack of availability of Internet or other relevant connectivity) and/or the Client's failure to comply with these Broadcaster Conditions and/or to follow the instructions for use of the Service;
2.7.2. if any quota or part of the Service which is to be used within any period of time is not used within that period of time then in each case the Client shall still be responsible for full payment of Fees as if the Service had been properly and fully provided (and, for the avoidance of doubt, Shortburst shall not be liable for providing any unused part of the Service and such unused part of the Service may not be carried over to any subsequent period).
3. Processing of Information
3.1 For the purposes of this clause, the terms "Personal Data", "Data", "Data Controller", "Data Processor", "Data Subject" and "Processing" shall have the meanings given to them in the Data Protection Act 1998, and the term "Protected Data" shall mean "any Personal Data provided by the Client and collected, kept, accessed, used or processed by Shortburst in the course of providing the Service".
3.2 The Client hereby appoints Shortburst as Data Processor and as agent of the Client in relation to the Protected Data.
3.3 Shortburst:
3.3.1 will process the Protected Data on behalf of the Client only in compliance with the Client’s instructions and these Broadcaster Conditions.
3.3.2 will process the Protected Data in accordance with the laws of United Kingdom including, but not limited to, the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Regulation of Investigatory Powers Act 2000, and any other applicable data protection, privacy or similar laws, including all laws of Member States of the European Union implementing Directive 95/46/EC, that apply in relation to the Protected Data;
3.3.3 will ensure that the Protected Data is easily identifiable from any other data;
3.3.4 will not disclose the Protected Data to a third party unless otherwise agreed with the Client in advance or obliged to do so under any statutory requirement;
3.3.5 will not transfer the Protected Data to any country outside the European Economic Area, without the prior written consent of the Client;
3.3.6 will, on request by the Client, promptly provide to the Client all information which the Client requires in order for the Client to comply with:
(a) requests from Data Subjects in relation to the processing of their Personal Data; and
(b) requests from the Information Commissioner or any other appropriate regulatory authority including but, not limited to, any regulatory authority with powers under the Regulation of Investigatory Powers Act 2000;
3.3.7 will abide by the guidance of the Information Commissioner or any other appropriate regulatory authority with regard to the processing of the Protected Data; and
3.3.8 will, if requested by the Client, promptly return or destroy the Protected Data (including all copies of it) as soon as practicable.
3.4 Shortburst warrants that it has and shall maintain for as long as it continues to process any Protected Data, appropriate technical and organisational measures, processes and procedures in place to safeguard against any unauthorised or unlawful access, loss, destruction, corruption, theft, use, processing or disclosure of the Protected Data.
3.5 The Site has security measures in place to protect the loss, misuse, destruction and alteration of data. However, the Client accepts that whenever it releases data online that data can be collected and used by people that the Client may not know. While Shortburst makes all reasonable commercial efforts to protect Clients’ data, it cannot guarantee the security of any information online. Shortburst shall not be liable in respect of (and disclaims all liability in relation to) any data submitted to the Site which becomes available to third parties other than as intended by Shortburst and/or the Client. In case of concern the Client may contact Shortburst to discuss the possibility of delivering data other than via the Internet (eg on CD / DVD).
3.6 If any of the Client’s information changes (for example e-mail address) the Client will inform Shortburst of the correct details by amending the relevant details on the Client’s registration part of the Site. [DC to add option for clients to amend their own details.]
3.7 Shortburst has the right, at its sole discretion, to decline to publish or omit, suspend, remove or change the position of any information whatsoever for any reason without notice and may suspend the Service if Shortburst considers in its absolute discretion that providing the Service many incur a legal liability for the Client, other clients, a third party, or Shortburst and Shortburst may refuse to publish, withdraw, or require to be amended any material, which is, in the opinion of Shortburst, illegal, immoral, obscene, offensive or otherwise prejudicial to the interests of Shortburst or the Client or other users of the Service, or to avoid infringing a third party's rights or any statutory or regulatory requirements.
3.8 Shortburst shall not sell, disclose nor use any data provided by the Client for any other purpose without the prior consent of the Client, such consent to be granted at the Client’s sole discretion.
3.9 Shortburst undertakes not to retain copies of the data provided by the Client following the expiry or termination of this Agreement without the prior written consent of the Client; and to take reasonable precautions to preserve the security and integrity of the data provided by the Client; and to prevent any corruption or loss of the data provided by the Client.
4. Client's Obligations
4.1. The information and text submitted by the Client to be distributed by the Service is solely the Client’s responsibility, and is submitted with its full knowledge and acceptance that the Internet is not a secure medium. Shortburst is not responsible for drafting text, or any other Client communications and merely provides the electronic means to enable Clients to present information. Shortburst does not process any of the data transmitted by Clients, and accepts no liability whatsoever for the content or impact of the same.
4.2. The Client hereby undertakes and warrants to Shortburst that:
4.2.1. the Client will indemnify Shortburst against all indirect and/or direct costs, claims, damages, losses, expenses and liabilities suffered or incurred by Shortburst as a result of this undertaking and warranty being breached;
4.2.2. any information supplied by the Client to Shortburst is accurate, complete and true;
4.2.3. in respect of any information that contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any data by which any living person is or can be identified, the Client has obtained the express authority of such living person to make use of such name, representation and/or data;
4.2.4. all information and or material supplied by the Client using the Service is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to the same as may be appropriate;
4.2.5. no material transmitted via the Service contains any data, image or other material that:
(a) is offensive, obscene or indecent;
(b) is defamatory, threatening, or racially, ethnically, or otherwise objectionable;
(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
(d) infringes the rights (including but not limited to the intellectual property rights) of another person;
(e) is designed or likely to cause disruption to any computer system or to any network;
(f) is illegal or designed or likely to induce an illegal act.
4.3. The Client acknowledges that:
4.3.1. Shortburst may accept instructions in relation to the Service from any of the following persons:
(a) any person to whom the Client provides passwords or who the Client allows to make use of the Service;
(b) legally authorised proxy, personnel, or other representative(s) of the Client identified in writing by the Client as constituting the same;
4.3.2. the Client will procure that it (and any authorised proxy, personnel, or other of its legal representatives) will keep confidential and not disclose to any person any passwords used by them in relation to the Service;
4.3.3. the Client will be responsible for, and shall indemnify Shortburst in respect of all use and misuse of, all passwords and shall be responsible for all acts and omissions of any person using passwords as if they were acts or omissions of the Client;
4.3.4. Shortburst shall not be responsible for any breach of these Broadcaster Conditions, any delay in performance of the Service, or defect or error in the Service which arises as a result of Shortburst accepting instructions from the Client or any Client-authorised or apparently Client-authorised person/third party using such passwords.
4.4. The Client shall:
4.4.1. abide by any and all applicable rules, regulations, legislation, codes, laws, and or governmental authority in any jurisdiction that may be relevant to its activities in relation to the Service and/or these Broadcaster Conditions;
4.4.2. indemnify Shortburst against all indirect and/or direct costs, claims, damages, loss, expenses and liabilities incurred by Shortburst arising out of any breach of this Clause 4.
5. Liability
5.1. Shortburst will not be liable (whether in contract, tort or otherwise) for:
5.1.1. any loss of any copy, text, artwork, photographs, data or other information or materials that the Client uses in the course of its use of the Service and the Client shall be responsible for retaining in its possession sufficient quality and quantity of such materials and copies of such data for whatsoever purposes it may require;
5.1.2. any mistakes or errors whatsoever that arise during the course of publication of any material or any loss of information or data or any damage thereto;
5.1.3. any direct and/or indirect loss of profit, loss of revenue or contracts, or any other direct or indirect, special, economic or consequential loss (whether caused by the negligence of Shortburst, its employees or agents or otherwise);
5.1.4. any direct and/or indirect cost, expense, loss (including loss of profit), damage or liability howsoever caused (including without limitation as a result of any hardware failure, provision or use of software, virus, deletion, corruption, loss or removal of data);
5.1.5. any direct and/or indirect loss or damage whatsoever (including loss of profits) howsoever caused arising out of the suitability, inaccuracy or the wrongful disclosure of confidential information by the Client;
5.1.6. charges incurred in asserting any aspect of these Broadcaster Conditions against the Client (including, without limitation, legal fees and disbursements reasonably incurred by Shortburst);
5.1.7. any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from the Site; (b) any content on the Site; (c) the unavailability of the Site, or any part thereof; (d) use of the Site or the content; or (e) the Client’s use of any equipment or software in connection with the Site; and/or
5.1.8. any special, direct, indirect, incidental, punitive or consequential damages of any kind whatsoever (including, without limitation, lawyers’ fees) in any way due to, resulting from, or arising in connection with the use of or inability to use the Site and/or the Service.
5.2. In no event shall Shortburst’s liability to the Client in relation to the Client’s use of the Site and/or the Service exceed the amount of Fees received by Shortburst from the Client within the calendar year prior to the relevant liability arising.
5.3. Nothing in these Broadcaster Conditions will restrict or exclude Shortburst’s liability for death or personal injury caused by its own negligence.
5.4. The Client agrees and acknowledges that, save as expressly provided in these Broadcaster Conditions, no condition, warranty or representation of any kind is, has been, or will be, given by or on behalf of Shortburst in respect of or in connection with the Service and accordingly the Client confirms that it has not, in agreeing to these Broadcaster Conditions, relied upon any condition, warranty or representation by Shortburst or any person on its behalf, express or implied, whether arising by law or otherwise, in relation to or in connection with the Service. The benefit of any such condition, warranty or representation by Shortburst is hereby irrevocably and unconditionally waived by the Client.
6. Payment Provisions
6.1. Shortburst will invoice the Client for Fees subject to clause 6.2 below.
6.2. All sums due in respect of Fees are exclusive of any value added tax or other applicable sales or other tax or levy, for which the Client shall be solely and additionally liable.
6.3. If the Client fails to pay any amount owing to Shortburst when due then Shortburst reserves the right to charge interest (after as well as before judgment) on that amount at the rate of 4% per annum above the base rate of HSBC (without prejudice to Shortburst’s other rights under these Broadcaster Conditions). Such interest shall accrue from the due date until payment is made in full and shall be compounded monthly.
7. Term and Termination
7.1. The term of this Agreement shall be a minimum of one calendar year from the Start Date and shall continue thereafter indefinitely unless cancelled by the Client or Shortburst with no less than one (1) month’s written notice (“Term”). [Link and tie in to new fees page.]
7.2. Subject to the provisions of these Broadcaster Conditions, the Service shall be available for the Term unless otherwise requested by the Client and agreed in writing by Shortburst or notified in writing by Shortburst to the Client.
7.3. Either party may, at its sole discretion, at any time serve notice of termination in writing to the other party (the "Defaulting Party") if:
7.3.1. the Defaulting Party fails to pay to the other party any amount when due; or
7.3.2. the Defaulting Party is in breach of these Broadcaster Conditions and fails to remedy such breach within fourteen (14) days of notice from the other party requiring it to be remedied.
7.4. Upon termination the availability of the Service may be immediately ceased and the full amount of any Fees owing to Shortburst by the Client in respect of any Services shall become payable with immediate effect.
7.5. Within three calendar months of receipt of a request in writing from the Client, Shortburst shall, to the extent practically and technically possible without disrupting Services to other clients, remove from Shortburst’s servers any information that the Client requests should be removed by Shortburst and which the Client is unable to remove without assistance from Shortburst.
7.6. The Client shall be responsible for all reasonable direct and/or indirect costs, claims, damages, losses, expenses and liabilities incurred by Shortburst arising out of the Client's breach of its obligations under these Broadcaster Conditions (including, without limitation, on a solicitor and own client basis, any legal fees and disbursements reasonably incurred by Shortburst).
8. General
8.1. All notices to the Client shall be made to the email address submitted to the Site, and notices to Shortburst shall be made to notices@shortburst.co.uk.
8.2. The Client shall not be entitled to assign its agreement with Shortburst nor any or all of its rights and obligations hereunder without prior written consent of Shortburst which can be withheld without cause.
8.3. If any provision of these Broadcaster Conditions shall be invalid or unenforceable, it shall not affect any other provision, which shall remain in full force and effect.
8.4. These Broadcaster Conditions together with the details of Service and Fees, constitute the entire agreement between the Client and Shortburst in respect of the Services provided by Shortburst to the Client.
8.5. Any waiver by Shortburst of any breach of, or any default under, any provision of these Broadcaster Conditions by the Client will not be deemed to be a waiver of any subsequent breach or default and will in no way affect the other terms and conditions.
8.6. Failure or delay by Shortburst in enforcing or partially enforcing any provision of these Broadcaster Conditions will not be construed as a waiver of any of its rights under these Broadcaster Conditions.
8.7. The parties to these Broadcaster Conditions do not intend that any term hereof will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
8.8. Shortburst shall not be liable for any breach or act or omission transpiring by reason of a force majeure event, including but not limited to natural disasters, industrial disputes, civil disruptions, sabotage, explosions, accidents, telecommunications and utilities failures, software or systems malfunction, terrorists acts, and governmental acts.
8.9. Shortburst reserves the right to change any part of these Broadcaster Conditions and if it exercises the right to do so it will post the changes on the Site and send an email to the email address supplied by the Client. Continued use of the Service after changes have been posted on the Site and/or notified by email will signify that you agree to any such changes.
8.10. No variation or alteration to these Broadcaster Conditions or any representations about the Service shall have any effect unless expressly agreed and confirmed in writing by a director of Shortburst or as set out in clause 8.9.
8.11. References to any statute or statutory provision shall, unless the context otherwise requires be construed as a reference to that statute or statutory provision as from time-to-time amended, consolidated, modified, extended, re-enacted or replaced.
8.12. Words importing persons include individuals, bodies corporate and unincorporated and clause headings will not affect their construction.
9. Law
9.1. These Broadcaster Conditions and any contract into which these Broadcaster Conditions are incorporated shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of English courts.
THIS VERSION OF THE BROADCASTER CONDITIONS REPLACES ANY AND ALL PREVIOUS TERMS AND CONDITIONS, and constitutes version 1.0 dated 12th September 2006.
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