Here are the terms in plain english.

When we briefed our legal team, this is what we wanted to say.

  1. Unless we have a direct and separate contract with you, our agreement is a rolling 30 day agreement.  Payment will be taken based on the size of your audience (the number of email addresses held in Websand).
  2. We expect you to adopt and use email best practice at all times.  That means be respectful with your email marketing, and always get people to opt in rather than opt out at the point of signup.  We follow the DMA code of conduct and we are registered with the ICO.
  3. Any emails that unsubscribes or bounce will be suppressed, and no longer included in any of your future marketing
  4. We don’t own your data.  Should you ever wish to leave, your data will be returned or destroyed (your decision on that one)
  5. We will monitor your data to ensure system performance.
  6. Finally, we are a business, so if you don’t pay, we will take it away. In that event, we will destroy your data.

 

They noted this down, and then they responded with the following…

Here’s the full legal version

These general terms of business (the “General Terms of Business”) apply to the delivery of services by Websand to a client pursuant to the agreement for the supply of services (“the Supply Terms”) to which these General Terms of Business are annexed.

  1. Definitions
    1. The meanings of the following words and phrases which are widely used in these General Terms of Business shall be as set out below:“Agreement” means the Supply Terms and these General Terms of Business together with any documents or other terms applicable to the Services (“Additional Terms”) to which specific contractual reference is made in the Supply Terms;“Websand” or “we” “us” or “our” means Websand Limited (incorporated in England and Wales as a limited liability company under the Companies Act 2006 with registered number 07313735);“Customer” and “you” (and derivatives) means the Customer (or Customers) identified in the Supply Terms and, in respect of any Customer that shall be a company, it shall be deemed to include any new holding company of the company;“Other Beneficiaries” means any and each person or organisation identified in the Supply Terms (other than you) as a beneficiary of the Services and any product thereof;“Renewal Date” means the business day, 30 days following the date of this Agreement and thereafter the anniversary of such date in each year of this Agreement;“Renewal Term” a month period (or lesser period in the event of termination under the provisions of clause 6) commencing on a Renewal Date and expiring on the business day prior to the next Renewal Date and each subsequent month thereafter;​“Services” means the on-line database tool service to be licensed to the Customer further specified in the Part I of the Agreement and provided through the Websand ‘instance’ together with such other services as we shall agree to provide during the term of this Agreement.

      Instance” means the software operated by the Websand.

    2. Words and expressions defined in the Supply Terms shall, except where otherwise provided or expressly defined above, have the same meaning in these General Terms of Business and those provisions of the Agreement dealing with construction or interpretation shall, except where otherwise provided, apply as if expressly set out herein.
    3. The Supply Terms shall set out the Services to be delivered by us and associated matters. These General Terms of Business shall be subject to variation if required in the Supply Terms.
    4. The commencement of the Services is from the date you first instructed us to provide services to you. These General Terms of Business override any prior agreement or any terms and conditions or similar provisions contained or referred to in any correspondence between us or any course of dealing between us.  All future dealings between us shall be on these General Terms of Business unless otherwise expressly agreed by us in writing.
    5. Each term (or part of a term) in these General Terms of Business shall be construed separately.  If any part of these General Terms of Business is unenforceable or invalid, that shall not affect the validity or enforceability of any of the other General Terms of Business.
    6. Unless otherwise agreed in writing you alone will be our client and your subsidiaries, shareholders and directors will not be considered to be our client.
    7. We will only provide the Services to the directors of the Customer in their capacity as directors and not in their capacity as shareholders in the Customer.  We will not represent any other party in the matter unless we specifically agree to do so in writing.
    8. Unless otherwise agreed in writing by us, these General Terms of Business shall apply to the exclusion of any terms and conditions stipulated or referred to by the Customer or any inconsistent terms and conditions implied by law or trade custom or course of dealing.
    9. These General Terms of Business may not be varied, amended or extended except by each of us in writing.
  2. Our Charges
    1. We shall render invoices in respect of the Services comprising fees, expenses, disbursements, outlays and VAT thereon (where appropriate) (“our Charges”). Details of our Charges and any special payment terms are set out in the Supply Terms. Our Charges may differ from estimates or quotations, which shall be provisional only.
    2. In return for the delivery of the Services by us, you shall pay our Charges on presentation of our invoice or at such other time as may be specified in the Supply Terms.
    3. We reserve the right to charge interest at the rate of 12% per annum on outstanding balances (this rate applying after as well as before any court award or judgment in our favour in respect of outstanding balances).
    4. In the event you dispute our Charges, you shall promptly notify us as to the amount of such Charges you consider to be in dispute and pay the balance of any undisputed amount within such 30 day period.
    5. If any request for payment of our Charges is not met on time, or is not under dispute, we reserve the right to suspend or withdraw the Services from you or any person associated with you.  In such circumstances we accept no liability for the effects of any delays.
    6. The existence of any agreement between us and another person that our Charges will be paid by that other person will not absolve you from discharging all your obligations to us including payment of all our Charges.
  3. Operation of the Instance
    1. You shall:
      1. report to us any suspected faults in or infiltration of the Instance of which it becomes aware as soon as such suspected faults or infiltration comes to your attention.
      2. keep confidential and take all necessary steps to ensure the continued confidentiality of your account identification details, password, security encryption devices and other confidential information relating to the Instance or Websand and notify us forthwith in the event of any party other than those individuals specifically authorised by you (and notified in advance to us) obtaining your password or using your account identification details;
      3. keep confidential and take all necessary steps to ensure the continued confidentiality of the dealings conducted by it via the Instance (including, but not limited to, the identity of any of your employees or other users); and
      4. provide us with such information as we may request concerning your use of the Instance.
    2. We shall:
      1. in connection with its operation of the Instance, comply with the provisions of the Data Protection Act 1998.
      2. use all reasonable endeavours to ensure that the Instance shall remain secure and that information not generally available to a third party accessing the Instance shall remain confidential; and
      3. provide you with identification details, passwords and security encryption devices necessary to permit you to access the Instance for the purposes of the Service.
    3. We shall provide the Instance ‘as is’ and ‘as available’.  It is agreed that it is technically impossible to guarantee that the Instance will be uninterrupted, free from errors or that the Instance will be free from unauthorised users or ‘hackers’. For the avoidance of doubt, we provide no warranty that the services will be uninterrupted.
    4. Where downtime is anticipated, downtime will be agreed with you in advance.  In emergency situations, we reserve the right to take the following operational decisions affecting the Instance.  You will be informed of any such decisions taken without your prior agreement.
      1. Take the Instance off line without notice for essential maintenance, technical reasons or upgrades.
      2. Vary the technical specifications of the Instance (or any part of it) for operational reasons
      3. Remove any or all of the information which we reasonably believe is impairing the operation of the Instance
      4. Remove or amend any of all of the information which we reasonably believe is unlawful or has been placed on the Instance in breach of agreement.
    5. SERVICE LEVELS
      1. Call response times.  Any issues reported will be acknowledged within 2 working hours of reporting (working hours are Monday to Friday 8am to 6pm)
      2. Unless otherwise agreed, the Instance will be available for you a minimum of 99% per month.
  4. Limitation of liability
    1. We shall not be liable to you or to any person whether in contract, tort or otherwise for:
      1. any direct loss or damage suffered or incurred by you in relation to the Services provided by us unless, at the time that you used them, that loss was a reasonably foreseeable result of our negligence or failure to comply with these terms;
      2. indirect or consequential loss or damage (including but not limited to loss of profit, business, revenue, goodwill or anticipated savings);
      3. any liability arising as a result of any term implied by common law or statute, order, regulation or any other enactment.
    2. Nothing in these General Terms of Business shall exclude:-
      1. Our liability for death or personal injury arising from our negligence or that of our servants, agents or employees;
      2. any other liability which we are prohibited from excluding by law
    3. In the particular circumstances of the Services set out in the Supply Terms the aggregate liability to you and to Other Beneficiaries of each and all Websand persons, in contact tort or otherwise, for any loss or damage suffered by you (or by any such other party) arising from or in connection with the Services, however the loss or damage is caused, including our negligence but not our fraud or other deliberate breach of duty shall be limited to the amount specified in the Supply Terms, or if no amount is specified there, to £250,000.
    4. We will not be liable (whether in contract, tort or otherwise) in respect of all and any claims brought by you against us to the extent that the matter giving rise to such claim is remediable and such matters shall have been remedied to your reasonable satisfaction within the period of 60 days following the date of service of notice by you on us of such claim.
    5. Notwithstanding our duties and responsibilities in relation to the Services, we expressly exclude, and, you shall retain, responsibility and accountability for:
      1. the management, conduct and operation of your business and your affairs;
      2. Making any decision affecting the Services, any product of the Services, your interests or your affairs
      3. the delivery, achievement or realization of any benefits directly or indirectly related to the Services.
      4. the production and input of all input data (including without client and marketing data) unless the production of such input data is specifically undertaken by us as part of the Services.
    6. And you agree to indemnify and hold us and (as applicable) our affiliates, officers, directors, agents, and employees, harmless from any losses arising as a result of the responsibilities outlined in this paragraph.
    7. Any advice, option, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
    8. Except as expressly set out in this Agreement, we make no warranties or representations either express or implied in relation to the whole or part of the Instance, including (but not limited to) implied terms, warranties or conditions of title, usability, condition, non-infringement of intellectual property rights, completeness, accuracy, satisfactory quality or fitness for a particular purpose thereof or that the Instance will be uninterrupted or error free, that it will meet any particular criteria of performance or quality. All such warranties, terms and undertakings (whether express or implied, statutory or otherwise) in respect of the availability and operation of the Instance are hereby expressly excluded.
    9. We do not accept any liability in connection with the operation of any external website or resource which you many access when using the Instance. Your rights and obligations in relation to the operation of the relevant resource or website shall be governed by the terms and conditions of the relevant data provider.
    10. You agree to indemnify and hold Websand and (as applicable) its, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement (including any documents incorporated by reference), or your violation of any law or the rights of a third party.
  5. Circumstances beyond our control
    1. Neither party shall be in breach of their contractual obligations nor shall either party incur any liability if and to the extent that we may become unable to carry out all or any of our obligations under the Agreement as a result of any event or matter beyond our reasonable control.  By way of illustration and not of limitation, the following are considered as events beyond our reasonable control: strike, lock-out or other industrial dispute, public disorder, riot, revolution, mobilisation, hostilities, war (whether or not formally declared), epidemic, fire, earthquake, storm, flood and other acts of God, official regulations, orders, requirements or acts of government, governmental or administrative authority, transport difficulties, working difficulties, machine breakdowns, failure of supplies or other causes whether similar or not.
    2. In the event of any such occurrence affecting one of us, then that one shall be obliged to notify as soon as is reasonably practicable the other, who shall have the option of suspending or terminating the operation of the Agreement.
  6. Term and Termination
    1. The Services shall be provided by us to you from the date of this Agreement, and shall (subject to clauses 6.2 and 6.3) continue to be supplied for an initial period of 30 days and as a rolling monthly renewal term thereafter unless and until this Agreement is terminated by one of the parties giving to the other not less than 30 days prior notice in writing to the other at any time.
    2. We reserve the right to terminate the Agreement immediately on written notice if:
      1. You commit any serious breach of the Agreement or fail to remedy to our satisfaction, within 7 days of receiving a written request to do so, any other breach of this Agreement:
      2. You commit any breach of any license granted by us or any third party in connection with the Services.
      3. You fail promptly to pay our invoices or any requested monies on account or if you fail to give us instructions as reasonably requested.
      4. in the event that you, or any of your senior employees or staff, acting in an official capacity do anything or act which might reasonably be deemed to bring us or our products or business into disrepute or to damage in any way our he public standing, goodwill, name or reputation.
      5. in the event that you, or any of your senior employees or staff, acting in an official capacity do anything or act which is unlawful or unethical.
    3. This agreement shall terminate immediately without notice if:
      1. You suspend or cease trading or indicate that you intend to cease trading or become unable to pay your debts as they fall due; or
      2. You have a receiver or liquidator appointed, or pass an effective resolution for winding up (except for the purpose of amalgamation, reconstruction or reorganization) or a court makes an order to that effect or a similar event occurs; or
      3. distress or execution is levied against your property
    4. Upon termination of the Agreement:
      1. the Customer shall (for the avoidance of doubt) cease to have further access to the Instance; and
      2. we shall be entitled to retain any advance payments made by the you in respect of Charges.
      3. Customer data provided to Websand shall be returned to you in unprocessed form.  All communication history and business rules applied by the system shall be retained by Websand.
    5. Termination or suspension under clauses 6.1, 6.2 and 6.3 shall be without prejudice to any rights that may have accrued to either of us before termination or suspension and all sums  due to us shall become payable in full when termination or suspension takes effect.
    6. The following terms of these General Terms of Business shall survive expiry or termination of the Agreement 4.1, 4.2, 4.3, 4.3, 4.5, 4.6, 3.3, 4.7, 4.8, 4.9, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 8.1, 8.2, 8.3, 8.4, 10, 11, 13, 14, 15 and 16
  7. Confidentiality
    1. We may acquire sensitive information regarding your business and your affairs in the course of delivering the Services (“Confidential Information”).
    2. In relation to confidential information we shall adhere to the confidentiality restrictions imposed on us by any authority in the United Kingdom with whose requirements we are bound to comply, as well as any obligations imposed on us by English law.
    3. We shall be entitled to comply with any requirement of English law or with any authority in the United Kingdom with whose requirements we are bound to comply to disclose Confidential Information.
    4. This clause shall not apply when Confidential Information properly enters the public domain.
    5. This clause shall not prohibit our disclosure of Confidential Information where we wish to disclose it to our insurers or advisers, in which event we may do so in confidence only.
    6. All reports prepared by us are strictly confidential and are issued on the understanding that they are for the use of the addressees only and are not to be discussed with, or shown to, any other party without our prior written consent.
  8. Ownership and Use
    1. We shall retain ownership of the copyright and all other intellectual property rights (including, but not limited to, any patent, trade mark, service mark, domain name, trade name or copyright and any application for registration or protection of any of the same anywhere in the world) in the product of the Services the Instance and the software upon which it is based (“the Software”). Without prejudice to the generality of the forgoing, you shall not:
      1. use, copy or transfer the Software (or any part of it) except as permitted by this Agreement; or
      2. alter, adapt, merge, modify or translate the Software (or any part of it) in any way for any purpose; or
      3. reverse-engineer, disassemble or decompile the Software (or any part of it).
    2. Without prejudice to the generality of clause 8.1, we shall own the copyright in the design and layout of the Instance. All goodwill arising in connection with the Instance shall belong to us.
    3. For the purposes of delivering services to you or other clients, we shall be entitled to use, develop and share knowledge, experience and skills of general application gained through performing the Services.
    4. Any product of the Services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only, and that, save as may be required by law or by a competent regulatory body (in which case you shall inform us in advance), it shall not be copied, referred to our disclosed, in whole (save for your own internal purposes) or in part without our prior written consent. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the Services to your legal and other professional advisers for the purposes of your seeking advice in relation to the Services, provided that when doing so you inform them that to the fullest extent permitted by law, we accept no liability or responsibility to them in connection with the Services.
  9. Data Protection
    1. Where necessary to enable us to deliver the Services, for such purposes we shall have your authority to process personal data on your behalf in accordance with this clause. When we do so, we shall take appropriate technical and organizational measures designed to protect against unauthorized use of personal data and against accidental loss or destruction of, or damage to personal data. In particular we shall act only on your instructions and comply with the seventh principle in Part 1 of Schedule 1 of the Data Protection Act 1998.
    2. If you do not wish to receive information about us and our services, please notify us and we will ensure that your name is removed from our database for this purpose.
    3. Websand takes no ownership of the Customer data provided or imported into the Websand platform. The data provided remains the property of the client and will be provided back to the client in the format it was supplied or destroyed (as directed).
    4. For the avoidance of doubt, Websand does own the value added to the data in respect to the business rules applied to the data from usage of the platform.  This refers to communication history information, and status application within the Websand platform.
  10. Entire Agreement   The Agreement sets out the entire understanding between the parties in connection with the services and supersedes any prior arrangements, understandings, agreements, statements or representations (unless made fraudulently) relating to the Services. In the event of any inconsistency between the Engagement Letter and any other elements of the Agreement, the Engagement Letter shall prevail. In the event of any inconsistency with these General Terms of Business and Additional Terms that may apply, the Additional Terms shall apply.
  11. Third Party Rights   The Agreement shall not create or give rise to, nor shall it be intended to create or give rise to, any third party rights. No third party shall have any right to enforce or rely on any provision of the Agreement which does or may confer any right or benefit on any third party, directly or indirectly, expressly or impliedly. The application of any legislation giving or conferring on third parties contractual or other rights in connection with the Agreement shall be excluded.
  12. Law & Jurisdiction   Any Agreement shall be subject to and shall be governed by English law and all disputes arising out of or in connection with the Agreement or any related matters shall be subject to the exclusive jurisdiction of the English courts.