EDM Terms and Conditions (External Audience)
1. EDM Services
1.1 These Terms and Conditions govern the supply of EDM Services by EBOSS to recipients nominated by you. We shall provide the EDM Services agreed with you in a Statement of Work.
1.2 You shall supply us with the contact details for recipients in a format specified by us, and acknowledge that we will rely upon the contact details you supply and shall have no responsibility for the accuracy of those contact details.
1.3 You shall supply us with all other Content and Data needed to enable us to provide the Services. We shall not be responsible for ensuring that you comply with any Intellectual Property Rights, privacy or other laws relating to the Content and Data supplied by you. Such compliance will be your sole responsibility.
2.1 By providing Content and Data to us to perform the Services, you automatically grant, and you represent and warrant that you have the right to grant, to EBOSS a non-exclusive, royalty-free right to use, copy, perform, display and distribute such Content and Data as a part of the Services.
3. Client obligations
3.1 You must:
- ensure that Content and Data that you provide is up-to-date, accurate, and not misleading or deceptive;
- follow our reasonable and documented directions about the use of our Services; and
- not, whether directly or indirectly, do anything which will or might lead you to defeat the provisions or intent of these Terms.
4. Data Processing Agreement
4.1 The Parties agree to adopt and be bound by the terms of the Data Processing Agreement attached as Schedule 1 to these Terms. The Parties shall comply with the terms contained in the Data Processing Agreement.
5.1 We are committed to our policy of protecting the privacy and confidential nature of your Content and Data.
5.2 We will not divulge or communicate or otherwise disclose any of your Content and Data, in whole or part to any third party or make use of any of your Content and Data without your prior written consent.
5.3 You warrant and confirm that:
- You are responsible for ensuring that the Services comply with all relevant privacy obligations and requirements under the Privacy Act 1993 (and if your Content and Data includes any Personal Information of residents within the European Economic Area, the General Data Protection Regulation (EU) );
- You have obtained proper authorisation from all relevant individuals to collect, hold, and use Personal Information (including by us) for the purposes and uses set out in these Terms; and
- You understand and agree that, while we will take all reasonable steps to maintain the confidentiality of any Personal Information in our possession, we are not responsible for your obligations, activities or actions in connection with the Personal Information.
6. No Spamming
6.1 You acknowledge and agree that EBOSS merely provides Services and is not the sender or originator of any communication from the Services.
6.2 You warrant and confirm that you either have an ongoing business or personal relationship with or have obtained consents to send emails (including the Services) to all intended EDM recipients. You further warrant that your use of the Services will not violate any spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited messages.
7. Other Prohibited Uses
7.1 You agree not to transmit through the Services any pornographic, obscene, offensive, threatening, harassing, hate-oriented, harmful, racist, or otherwise objectionable material or content.
7.2 You warrant that your Content and Data is not fraudulent, libelous, defamatory or otherwise unlawful in any respect, and does not infringe the Intellectual Property Rights, confidentiality rights, privacy rights, property rights or any other legal rights of any Person.
7.3 You shall provide any Content and Data that attempts to hide your identity or represents you as someone else. Any attempt by you to use the Services to transmit, publish or distribute material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group is strictly forbidden.
7.4 You agree not to upload or distribute in any way (including through the Services) any files that contain viruses, corrupted files or any similar software or programs that may damage the operation of anyone else's computer or the Services.
8. Intellectual Property
8.1 Title, ownership, rights, and all Intellectual Property Rights in any material provided or made available by us (including but not limited to our software, data, graphics, design, layout, processes, compilations, templates and documentation that is incorporated into the Services) shall remain at all times with us or our licensors.
8.2 You agree that you will not, at any time, in any way question or dispute the ownership by us of these Intellectual Property Rights.
Title, ownership, rights and Intellectual Property Rights in your Content and Data shall remain at all times with you or your licensors.
8.3 You are responsible for obtaining all necessary permissions, authorisations, licences and consents in relation to the use of any textual, graphical, audio or other materials (including software) in your Content and Data, in relation to which a third party owns any Intellectual Property Rights.
9. Client Acknowledgement
9.1 You acknowledge and agree that, in the course of providing the Services, we may use tools including cookies, online data tools (include analytics) and IP addresses for functionality and reporting. These help us to understand how users engage with our Services on websites, campaigns, devices, and other platforms. We may collect data and metadata in the course of providing the Services (“EBOSS Data”), and use that for our usual business activities. EBOSS Data includes data as to the usage and performance of the Services, but expressly excludes your Content and Data. You agree that we are authorised to collect and use EBOSS Data, and that EBOSS Data is our property.
10.1 Payment for the Services will be made by you in accordance with the requirements set out in the Statement of Work.
10.2 Subject to any alternative arrangement set out in a formally agreed Statement of Work, default interest will accrue on overdue fees and expenses a daily basis at the rate of 2.5% per month from the due date until the date when payment is actually made, and shall be due on demand.
11.1 You agree to release, indemnify and keep EBOSS, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers, suppliers and employees indemnified from and against all actions, claims, costs (including legal costs and expenses on a solicitor and client basis) losses, proceedings, damages, liabilities, or demands suffered or incurred to any Person arising out of or in connection with:
- your failure to comply with these Terms;
- any Content and Data or other material, data or information you provide for us to supply the Services; or
- recovery of any amounts owed by you in relation to or arising from the Services.
12. Exclusion and Limitation of Liability
12.1 To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included.
12.2 In all cases, for all damages, losses, costs and expenses under whatever causes of action, whether in contract, tort (including negligence) or otherwise, our liability to you and your sole remedy will be limited to (in our discretion) either:
- Supplying the Services again; or
- Refund of the amount paid for the Services giving rise to the claim.
12.3 You acknowledge that you are obtaining the Services for business purposes only, and that the Consumer Guarantees Act 1993 shall not apply.
13.1 We will use use third-party communications suppliers to provide the Services. Third-party communications services may not be reliable, confidential or continuously available. Electronically transmitted information cannot be guaranteed to be secure or error free. We have no responsibility for third-party communications services, and do not warrant that any Content and Data you submit for the Services will be protected against loss, misuse or alteration by third parties.
13.2 Whilst we will endeavour to deliver the Services on the nominated publication or supply date, this is dependent on factors beyond our control (e.g. your timely supply of the information needed in advance to prepare the EDM, and the availability and performance of third-party communications suppliers). We therefore do not warrant that we will publish, post or deliver the Services within a certain time, and we have no liability for non-attainment of any nominated publication or supply date.
14. Governing Law
14.1 The laws of New Zealand apply to these Terms and our supply of the Services. You agree to submit to the exclusive jurisdiction of the New Zealand Courts. Any dispute arising in relation to these Terms will be resolved in accordance with New Zealand law.
15.1 These Terms (together with the Statement of Work and the Data Protection Agreement) supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitute the entire agreement between you and EBOSS relating to the Services.
15.2 If any of these Terms are held to be invalid, unenforceable or illegal for any reason, the remaining Terms shall nevertheless continue in full force.
15.3 The Parties acknowledge that they are not partners, joint-venturers, fiduciaries or agents of the other.
15.4 No failure or delay by EBOSS to exercise any power, remedy or right in relation to these Terms shall:
- prejudice, limit or affect or operate as a waiver of that power, remedy or right; or
- be deemed to waive any default or breach of any obligation, liability or agreement by you.
15.5 Headings, marginal notes and the table of contents (if any) are included for convenience only and shall not affect the interpretation of these Terms.
15.6 In these Terms:
- means the Person that engages us to provide the Services;
- Content and Data
- means the content and data (including recipient contact details and any other Personal Information) provided by you for the provision of the Services;
- means electronic direct mail;
- Intellectual Property Rights
- means all rights conferred under statute, common law and equity in and in relation to inventions, designs, trademarks, trade names, logos, CAD files, PDF Detail Drawings, technical product literature layouts, confidential information and copyright and any other right granted by operation of law which confers protection on any written, artistic or other work created by intellectual effort and all associated intangible assets created as a by-product (including market position, brands, tradenames) in relation to any work;
- means you and us;
- means and includes any natural person, company, corporation, firm, partnership, joint venture, society, organisation or other group or association of persons (whether incorporated or not), trust, state or agency of state, statutory or regulatory body, local authority, government or governmental or semi-governmental body or agency (in each case whether or not having separate legal personality);
- Personal Information
- means information about an identifiable individual, as further defined in the Privacy Act 1993;
- means the EDM services to be supplied by us, as set out in the Statement of Work;
- Statement of Work
- means the statement of work, engagement letter or proposal which describes the Services;
- means these terms and conditions;
- we, us, our, EBOSS
- means Quad Concepts Limited and its agents, successors and permitted assigns;
- you, your or yours
- means the Client and its agents, successors and permitted assigns.