Spotler ‘Data Replenish’ Service Terms & Conditions
1. Application of Conditions
1.1 The Supplier (Spotler) shall supply, and the Client shall purchase the Replenished Contacts List and Services in accordance with the quotation which is subject to these Conditions.
2. Definitions and Interpretation
2.1 In these conditions: –
“Client” means the individual, firm, company, or other party who accepts a quotation or offer from the Supplier for the sale of Lists and supply of Services, or whose order for Lists and Services is accepted by the Supplier.
“Controller” shall have the meaning set out in the DPA before 25 May 2018, and thereafter the meaning set out in the GDPR and refer to the customer as the owner of the data.
“Data” means information comprising the contact name, email address and job title, but also any combination of additional information (but not limited to) postal address, telephone number, and qualifying information such as company size.
“Data Protection Laws” means any laws and regulations in any relevant jurisdiction relating to privacy or the use or processing of data relating to natural persons, including: (a) EU Directive 95/46/EC and 2002/58/EC (as amended by 2009/139/EC) and any legislation implementing or made pursuant to such directives, including (in the UK) the Data Protection Act 1998 (the “DPA”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) from 25 May 2018, EU Regulation 2016/679 (“GDPR”); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR; in each case, to the extent in force, and as such are updated, amended or replaced from time to time;
“DP Regulator” means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws.
“End-User” means any person to whom Client supplies (either directly or through a Broker) any Data.
“Enquiry” means any request, complaint, investigation, notice or communication from a Data Subject or a DP Regulator.
“Lists” means a selection of data which the Supplier is to supply in accordance with these Conditions.
“Order Date” means the date the order is placed by the Client which shall be set out on the quotation.
“Personal Data Breach” shall have the meaning set out in Article 4 of the GDPR.
“Processor” shall have the meaning set out in the DPA before 25 May 2018, and thereafter the meaning set out in the GDPR.
“Services” means the services set out in the quotation, specifically the supply of data services.
“Supplier” means Spotler Limited, Registered Office 3 The Billings, Walnut Tree Close, Guildford, GU1 4UL.
The terms “Data Subject”, “Personal Data” and “Processor” shall have the meaning set out in the DPA until 25 May 2018, and thereafter the meaning set out in the GDPR.
“Business Day” means a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
“Normal Business Hours” means 9.00 am to 5.30 pm local UK time, each Business Day.
“Software” means the third party or Supplier developed online software applications licensed by the Supplier as part of the Services in accordance with these Conditions.
3.0 Variation of conditions
3.1 These Conditions shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client unless accepted in writing by a senior employee of the Supplier.
3.2. All quotations must be agreed in writing by the client either via docusign or email. Quotations will not be accepted based on verbal instructions.
4.1 Quotations lapse after 30 days unless re-confirmed in writing by the Supplier.
4.2 List prices shall be those set out in the quotation.
5.1 Data supplied either as a data file or uploaded into Spotler into a group is for the sole use of the Client or the specified End-User. If the Client is supplying the Data to a Broker for onward supply to an End-User, Client shall procure that the Broker supplies the Data only to the specified End-User and that neither the Broker nor the End-User shall supply the Data to any other person. The Supplier may take legal action against any Client that unlawfully processes Data.
6.0 Supply and use of Data
6.1 Data files are uploaded directly into a group within the Spotler platform unless otherwise specified on the quotation. No liability is accepted by the Supplier for conversion of the Data to any format, other than that in which it was supplied. This may be exported from spotler as a csv file if required.
6.2 The Supplier uses all reasonable endeavours to ensure Lists are accurate and up to date. However, as Lists are compiled from a third-party provider, the Supplier cannot warrant that any of the records are 100% complete or accurate, neither are they built up from personal knowledge of any trade or profession or other body.
6.3 The Supplier does not accept liability for the outcome of the use of its Lists. In no event will the Supplier be liable for any loss of profit, revenue, goodwill, opportunity, business or other indirect or consequential loss of any kind in contract, tort (including negligence) or otherwise arising out of use of its Lists, save where such liability cannot be excluded by law.
6.4 The Supplier grants to the Client ownership of the Data and Lists in accordance with these Conditions to:
(a) access and view the Data and Lists.
(b) market its goods and services to the contacts within the Data and Lists.
(c) store the Data and Lists on the Client’s systems.
(d) use the Data and Lists in the manner permitted in the quotation.
7.0 Data Protection and Codes of Practice
7.1 As a Marketing Automation software platform recognised by the Direct Marketing Association (the “DMA”), the Supplier warrants and represents that it shall always uphold, in letter and spirit, the British Code of Advertising Practice, Sales Promotion and Direct Marketing (‘the CAP Code’). The Supplier’s acceptance of quotations from the Client is conditional upon the Client undertaking to work within the accepted practices in the UK as defined by GDPR, not limited to but specifically documenting the method chosen for processing the data (eg Legitimate interest) additionally working in line with the CAP Code and the Direct Marketing Code of Practice.
7.2 The Supplier warrants, represents and undertakes that all Data and Lists has been fairly and lawfully obtained in accordance with all applicable Data Protection Laws.
7.3 The Client agrees to notify the Supplier within 14 days of receipt of any request received by the Client for the suppression of a deceased name or disputed data that can be identified as being included in the Data supplied by the Supplier.
7.4 The Client warrants those items to be mailed to the Data or Lists provided by the Supplier shall contain nothing which infringes copyright or is defamatory, obscene, indecent, or otherwise illegal or unlawful or contradictory to the CAP Code.
7.5 Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws and shall make such information available to any DP Regulator on request.
7.13 The Controller shall only process the Data or Lists or cause the Data or Lists to be processed by a third-party Processor when that Processor and processing is located within the European Union or in a territory that provides an adequate level of protection under GDPR.
8.1 In consideration for the receipt of the Services, the Client shall pay to the Supplier the fees as set out in the quotation.
8.2 30-day credit terms are offered subject to status otherwise pre-payment may be required.
8.3 The client must give 30 days’ notice should they wish to terminate the agreement between the client and the supplier. The data already provided to the supplier from the client is the client’s property, and after the 30-day notice period no further data will be provided to the supplier
9.1 Nothing in these Conditions shall limit or exclude either party’s liability for any liability which cannot be limited or excluded by applicable law.
9.2 Subject to clause 11.1, neither party shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with these Conditions. Subject to clause 11.1, the Client’s total liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise arising under or in connection with these Conditions shall be limited to the total charges paid by the Client under these Conditions.
9.3 The Supplier shall be under no liability for any discrepancy or shortage on delivery or non-delivery of Lists unless the Client notifies the Supplier in writing:
- a) of any discrepancy or shortage on delivery within 7 days of receipt of Lists.
- b) of non-delivery within 7 days of confirmation by the Supplier that the Lists have been dispatched. The Supplier’s liability is limited to replacement of the Lists supplied.
9.4 It is the Client’s responsibility to ensure that its online account details are up-to-date and current. This includes but is not limited to deleting the details of personnel who have moved from the Client’s employ.
10.1 The Supplier shall charge the amount of Value Added Tax due on the invoice and shall include that amount on the quotation and invoice.
11.0 Governing Law and Jurisdiction
11.1 These Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed and construed in accordance with the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or their subject matter or formation.
12.1 Force Majeure. Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate these Conditions by giving 5 days’ written notice to the affected party.
12.2 Confidentiality. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party. Each party may disclose the other party’s confidential information to its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Conditions and as may be required by law.
12.3 Announcements. The Supplier shall not make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of these Conditions, or the relationship between the parties, without the prior written consent of the Client, except as required by law.
12.4 Entire Agreement. These Conditions and the quotation constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
12.5 Variation. No variation of these Conditions shall be effective unless it is in writing and signed by the parties.
12.6 Third party rights. These Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to any term of these Conditions.
13.0 Email Definitions and Interpretation
13.1 ‘Unsubscribes’ means an email recipient chooses to opt out of any further communications and there is no liability on the supplier to guarantee any level or percentage of unsubscribes.
13.2 ‘Undeliverable’ means the email address hard bounces and cannot be delivered to again.
14.0 Supply and use of Email Data
14.1 If the Client wishes the Supplier to exclude a list of email addresses from the email Data field the Client must request this prior to the Order Date.
15.0 Email Warranty and Obligations
15.1 The Supplier is not responsible or liable for email addresses that prove to be undeliverable as we are only providing leads with a quality of HIGH or HIGH+ which means they have 97% chance of deliverability.
15.2 The Supplier’s obligations shall not apply where the Client decides to use a method of delivery that has not been approved in writing by us. Unapproved methods of delivery include use of an SMTP (Single Message Transfer Protocol) email client such as Outlook, Netscape and Lotus, and delivery platforms that do not accept third party lists.
15.3 Where the Client procures the use of the email Data to send emails, the Client must ensure that the recipient is given a simple means to opt-out of receiving further communications.
15.4 The undertaking and conditions also extend to the End-User.
16.0 NOTIFICATION OF SECURITY OR DATA BREACH
16.1 The Supplier shall notify the Client without undue delay if it becomes aware of any actual, threatened, or potential security breach that affects the Client, the Services or the Client Data.
16.2 As part of the notification under clause 25.1, the Supplier shall set out
(a) the nature and extent of the security breach; and
(b) any steps the Client needs to take as a result of a security breach including circulating the information provided under clause 25.2(a) to any persons on the Client’s email distribution list including End Users and/or Intermediaries.
16.3 The Supplier’s notification of or response to a security breach will not be construed as an acknowledgement by the Supplier of any fault or liability with respect to such breach.
17.0 SUPPLIER’S OBLIGATIONS
17.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
17.2 The Supplier warrants that it:
(a) has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions; and
(b) shall comply with all applicable laws and regulations with respect to its activities under these Conditions.