TERMS OF SERVICE (5th March 2024)

1. Interpretation

1.1 This Agreement sets forth the terms and conditions for your use of the Salesfire software applications (“Services”) and are effective as of the date you accept to the terms of this Agreement by placing an Order with us.

1.2 This Agreement is between Salesfire Limited, a company registered in England & Wales with registration number 11614028 whose registered office is at 16-26 Albert Road, Middlesbrough, TS1 1QA (“we”, “us” or “Salesfire”) and the entity on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (“you", "your", "yours", or "Customer”).

1.3 The definitions and rules of interpretation set out in Schedule 1 shall apply to this Agreement.

1.4 In our Agreement:

1.4.1 Each Order entered into by the Customer and Salesfire shall form a separate agreement, incorporating these Terms and Conditions together with the Data Protection Addendum and the Acceptable Use Policy (“our Agreement”).

1.4.2 In the event of any conflict in respect of the provisions of our Agreement the following order of priority shall prevail (in descending order of priority):

(a) The Order;

(b) Data Protection Addendum;

(d) these Terms of Service.

Subject always to the order of priority between the documents, later versions of the documents shall prevail over earlier ones if there is any conflict or inconsistency between them.

2. Services

Pursuant to this Agreement, Salesfire shall provide the Services to you, with a reason able level of care and skill, on acceptance of an appropriately authorised Order, and will grant the Customer a non-exclusive, non-transferable right to permit the Customer and its Authorised Users to use the Services (solely for the Customer’s internal business operations) during the Term of this Agreement.

2.2 Salesfire shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for periods of maintenance (whether planned or unscheduled).

2.3 With respect to the provision of Marketing Communication Services (“MCS”), the Customer acknowledges that such services are inherently at risk of delays, interruptions, errors or other problems resulting from the use of the internet or public electronic communications networks used by the parties or third parties, and accepts that Salesfire shall have no liability for any such delays, interruptions, errors or other problems.

2.4 The warranties set out in Clause 6 are subject to the limitations set out in Clause 7, and shall not apply to the extent that any error in the Services arises as a result of:

(a) the acts or omissions of the recipient of any MCS Message;

(b) any act by any third party (including hacking or the introduction of any virus or malicious code);or

The Customer acknowledges that Salesfire has no liability or obligations (howsoever arising) in relation to the content of any MCS Message.

2.5 The Customer shall:

(a) ensure that it, and all Authorised Users, will comply with all applicable laws, rules and regulations relating to the use or receipt of the Services, including laws relating to privacy, data protection and the use of systems and communications.

(b) ensure that only Authorised Users use the Services and that such use is at all times in accordance with the our Agreement;

(d) be liable and solely responsible for the acts and omissions of the Authorised Users and for all use of the Services;

(e) procure that each Authorised User is aware of, and complies with the obligations and restrictions imposed on the Customer under our Agreement, including all obligations and restrictions relating to Confidential Information.

(f) provide in a timely manner, such information as Salesfire may reasonably require in order to provide the Services, and ensure that such information is accurate in all material respects.

2.6 The Customer warrants and represents that it, and all Authorised Users shall ensure that :

(a) their password for the Service is unique to them and not reused in any other context; and

(b) their password or access details for the Service are kept confidential and not shared with any third party.

2.7 The Customer shall (and shall ensure that all Authorised Users shall) at all times comply with the Acceptable Use Policy and all other provisions of our Agreement.

2.8 In addition to the provisions of Clause 8, Salesfire may terminate or suspend the Services immediately if we, in good faith, determine or have good grounds to believe that:

(a) You or your Authorised User has materially breached the Acceptable Use Policy;

(b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services;

(d) there is any use of the Services by you that threatens the security, integrity, or availability of the Services to other users; or

(e) that information in respect of the MCS Account is untrue, inaccurate, or incomplete.

You will remain responsible at all times for the Fees (as defined in clause 4 below).

3. Contract variations

3.1 Salesfire may update the documents set out in clause 1.4.2 above or other terms of this Agreement from time to time and will makes such updated documents available at www.salesfire.com/legal. Updated versions of this Agreement will supersede all prior versions.

3.2 Notice of any material changes in the terms of this Agreement will be given by e-mail to the address provided in the Order Form. Following such notice, your continued use of the Services on or after the date the updated version of this Agreement is effective and binding, and constitutes your acceptance of the updated version of this Agreement.

3.3 The Customer acknowledges that Salesfire shall be entitled to modify the features and functionality of the Services. Salesfire shall use reasonable endeavours to ensure that any such modification does not materially adversely effect the use of the Service by it’s customers generally.

4. Fees & credits

4.1 The Fees expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described in the Order Form, including any VAT which may be applicable to the Fees.

4.2 Subject to the provisions of Clause 4.7 below, the Fees as stated in the Order Form shall not be increased for the initial Term of this Agreement.

4.3 Salesfire will be entitled to increase the Fees for any renewed Term in line with, but not by more than, any increase in the Customer Prices Index (“CPI”) for the relevant period.

4.4 MCS Message fees are charged on a per send basis, reflected as MCS Credits on the MCS Customer Account.

4.5 MCS Credits shall be utilised and incurred for each MCS Message sent whether or not such message is received by the intended recipient of such message.

4.6 In the event the MCS Customer Account is comprised or subject of a security breach, the Customer shall be liable for the Fees incurred for all MCS messages submitted unless the Customer can demonstrate that such compromise or security breach was the fault or responsibility of Salesfire.

4.7 Salesfire may:

(a) In any given month, if the Page Views associated with a Customer’s site significantly exceed the number of Page Views stated on the Order Form, increase the charge for that month to reflect the additional Fees which are appropriate to that higher level of Page Views. Any such increase in Fees will be collected by Direct Debit.

(b) Increase the MCS Fees at any time to reflect an increase in the costs incurred by Salesfire from the network provider or telecommunications carrier.

(c) Increase the MCS Fees relating to International messages immediately, and may apply such increases retrospectively, should the Customer send volumes of traffic to high cost destinations not specified at the time of Order.

4.8 To the extent our Agreement terminates or expires the Customer shall not be entitled to a refund or discount of Fees paid for any parts of any month during which the Services cease to be provided.

4.9 Any MCS Credit allowance included as part of a monthly package shall expire at the end of the relevant month.

4.10 Any Additional MCS Credits purchased must be used within thirty days of the date of purchase.

4.11 Any MCS Customer Account balance shall expire if the Customer has not used the Service for 12 months, at which point Salesfire shall be entitled to close the MCS Customer Account.

4.12 It is the Customer’s responsibility to ensure that they have sufficient MCS Credits for the transmission of Messages, and Salesfire accepts no liability in the event the Customer has insufficient credit to meet the Customer’s requirements.

4.13 The Customer will be liable for any Communications Surcharges, costs, fines or penalties that are imposed on Salesfire by any government or regulatory body or telecommunications provider as a result of your use of the Service.

5. Ownership, customer data, and confidentiality

5.1 Salesfire exclusively owns and reserves all right, title, and interest in and to the Services, Salesfire's Confidential Information, Service Usage Data, and any feedback or suggestions you provide regarding the Services.

5.2 You exclusively own and reserve all right, title, and interest in and to the Customer Services, your Confidential Information, and Customer Data, subject to Salesfire’s rights to process Customer Data in accordance with this Agreement.

5.3 You grant Salesfire the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the Data Protection Addendum. You are responsible for the quality and integrity of Customer Data.

5.4 For the avoidance of doubt, Salesfire shall be entitled to use the Service Usage Data for its own business purposes subject always to relevant Data Protection legislation.

5.5 Except as otherwise authorised by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under this Agreement and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to Receiving Party's respective employees, legal advisors, and/or auditors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfil its obligations under this Agreement. Receiving Party will be responsible for its Representatives’ compliance with this clause 5.5. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this clause 5.5. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.

5.6 Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party written notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.

5.7 The Customer grants Salesfire the right to use and display its name, logo, and a description of your use case(s) on Salesfire’s website, and in marketing and promotional materials, subject to your standard trademark usage guidelines that you expressly provide to Salesfire.

5.8 Salesfire may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or Salesfire’s operations and for the further development and improvement of the Services, provided at all times such activities comply with the Data Protection Addendum.

6. Representations, warranties, and disclaimer

6.1 Each party represents and warrants that it has validly accepted or entered into this Agreement and has the legal power to do so.

6.2 Each party warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this clause 6.2.

6.3 You represent and warrant that you have provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to Salesfire for processing.

6.4 Salesfire represents and warrants that the Services perform materially in accordance with this Agreement. Your exclusive remedy for a breach of this clause 6.4 will be, at Salesfire’s option, to (a) remediate any material non-conformity or (b) refund you the Fees paid for the time period during which the affected Services do not comply with this Section 6.4.

6.5 Without limiting a party’s express warranties and obligations hereunder, and except as expressly provided herein, the services are provided “as is,” and neither party makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement to the fullest extent permitted by law. Salesfire additionally disclaims all warranties related to telecommunications providers. You acknowledge the internet and telecommunications providers’ networks are inherently insecure and that Salesfire will have no liability for any changes to, interception of, or loss of customer data while in transit via the internet or a telecommunications provider’s network. Salesfire makes no warranties and will have no liability for Customer Services, or third party services whatsoever.

7. Limitation of liability

7.1 In no event will either party have any liability arising out of or related to this agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, cover, lost data, business interruption, or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages or if a party’s remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

7.2 In no event will the aggregate liability of either party arising out of or related to this agreement exceed the amounts paid or payable by you hereunder for the services giving rise to the liability during the twelve (12) month period preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.

7.3 Notwithstanding anything to the contrary in Clause 7.1 and Clause 7.2, the limitations do not apply to (a) your breach of the Customer responsibilities set out in Clause 2 or (b) your breach of the provisions of Clause 4.

8. Term, termination, and survival

8.1 This Agreement will, unless terminated as provided in this Clause 8, commence on the Effective Date and continue in full force and effect for its Term.

8.2 After the initial Term, this Agreement shall be renewed automatically for successive Terms of equivalent length unless either party notifies the other in writing, at least 30 days prior to the end of any relevant Term, of its intention to terminate the Agreement.

8.3 Salesfire may terminate this Agreement immediately at any time by giving notice in writing if the Customer fails to pay any amount due under the Agreement on the due date and such amount remains unpaid within 10 working days after being notified that the payment is overdue.

8.4 Either party may terminate the Agreement immediately at any time by giving notice in writing if the other party:

(a) commits a material breach of this Agreement which is not capable of remedy;

(b) stops or threatens to stop carrying on all or a significant part of its business;

(c) is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;

(d) becomes subject of a company voluntary arrangement under the Insolvency Act 1986;

(e) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

(f) has a resolution passed for its winding up;

(g) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding up or administration order is made against it;

(h) is subject to any procedure for taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;

(i) has a freezing order made against it;or

(j) is subject to any event or circumstance analogous to clauses 8.3 (b) to 8.3 (i) in any jurisdiction.

8.5 Upon termination of this Agreement, the Customer shall stop using the Service and pay any Fees due to Salesfire.

8.6 Termination of this Agreement (for any reason) shall not affect the provisions of clauses 5, 6,7 or 10 which shall survive the Agreement.

9. Freedom of information

9.1 Salesfire acknowledges that the Customer may be subject to the requirements of the Freedom of Information Act 2000 (FIA) and/or the Environmental Information Regulations 2004 (EIR), and will endeavour to assist and cooperate with the Customer to enable the Customer to comply with its obligations in respect of those requirements.

9.2 Where Salesfire receives a request for information (under the meaning of the above acts) then it shall:

(a) inform the Customer of its receipt as soon as possible; and

(b) provide a copy of the request to the Customer together with all relevant information it considers relevant to the request within 10 working days.

9.3 Salesfire shall not respond directly to the request unless expressly authorised to do so by the Customer in writing.

9.4 The Customer is ultimately responsible for determining in its absolute discretion whether any information should be disclosed and/or whether any exemptions apply to the disclosure of information.

10. Force majeure

10.1 Salesfire shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations, or carrying on its business, by a Force Majeure, provided that the Customer is notified of such event and its expected duration.

11. General

11.1 This Agreement (including any supporting Schedules, documents and policies referenced therein) constitutes the entire agreement between the parties and supersedes all previous agreements for the Services, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.

11.2 Each party acknowledges that it has not entered in our Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

11.3 Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed).

11.4 Any notice given by a party under this Agreement shall be in writing and send to the address or email address set out in the Order or notified to the other party.

11.5 The parties are independent contractor and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.

11.6 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision or this Agreement shall not be affected.

11.7 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable.

11.8 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

11.9 Any person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.

11.10 This Agreement and any dispute or claim arising out of, or in connection with it, it subject matter or formation shall be governed by, and construed in accordance with the laws of England and Wales.

11.11 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement.

SCHEDULE 1

Definitions & interpretation

“Acceptable Use Policy” means certain terms relating to the use of the Services set forth therein, the current version of which is available at www.salesfire.co.uk/legal/acceptable-use-policy/.

“Authorised User” means, the users authorised by the Customer to use the Service in accordance with this Agreement, and thereby to issue communications to their Contacts.

“Communications Surcharges” means any applicable carrier or telecommunication provider fees or surcharges which arise as a result of your use of the Services.

“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including, without limitation, this Agreement, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, inventions, and financial, technical, or other business information and materials of Disclosing Party and its affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of this Agreement or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

“Contacts” means the individuals who have provided their personal details, and have confirmed that they wish to receive marketing communications from the Customer.

“Customer Data” means data and other information (excluding Service Usage Data) made available by you to Salesfire in connection with your use of the Services under this Agreement.

“Customer Services” means any software application, communication, or other products and services provided by you and used in connection with your use of the Services under this Agreement. If applicable, Customer Services includes sources from which you choose to retrieve Customer Data and destinations to which you choose to transmit Customer Data using the Services.

“Data Protection Addendum” means the personal data processing-related terms for the Services, the current version of which is available at www.salesfire.com/legal/data-protection-addendum.

“Effective Date” means the date of completion of the Order Form.

“End User” means a data subject who has requested or consented to receive marketing communications from the Customer.

“Fees” means any subscription fee, MCS Credit fee or other amount payable to Salesfire under this Agreement.

“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement (noting that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks or delays or problems associated with any such networks or the internet. Examples of Force Majeure include but are not limited to strikes, lock-outs or other industrial disputes (whether involving Salesfire’s staff or of any other third party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire,flood, storm or default of suppliers or sub-contractors,

“Intellectual Property Rights” – means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, domain names and similar rights and, in each case whether registered or not.

“Marketing Communication Service (“MCS”)” – means the Salesfire software application for the management of personalised marketing communications.

“MCS Account” means the accounting record opened with by us, using the details you have provided, showing the purchase and utilisation of Credits by which we are able to track the MCS messages issued by you to your Contacts.

“MCS Credits” means the purchases, credited to your Account, by which your transmission of SMS or Whatsapp messages to Contacts are priced.

“MCS Message” means any E-mail, SMS or Whatsapp message sent by the Customer to its Contacts via Salesfire’s MCS application.

“Order” means the request for Services, subject to the terms of this Agreement, made by completion of the order document between you and Salesfire.

“Services” means the Salesfire software provided by us, as applicable, that (a) you use, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) you order under an Order Form. Services excludes any Customer Services and Third Party Services (as defined below).

“Service Usage Data” means any data that is derived from the use of the Services that does not directly or indirectly identify the Customer or an End User, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, or any natural person.

“SMS” means Short Message Service, commonly known as a text, by which text only messages of up to 160 characters may be sent from phone to phone. Each SMS is a set of systemised textual and numeric characters (text) of up to 160 characters when using the GSM alphabet. Some symbols constitute more than one character (such as the € symbol) and if you add a carriage return or a line break this is a character too. If the message text exceeds 160 characters this will be charged as more than one SMS.

“Term” means a period of 12 months from the Effective Date, or other such period stated on the Order Form, which may be automatically renewed in accordance with Clause 8.

“Third Party Services” means any products, services, or software components that are purchased by you from Salesfire, but provided, or otherwise made available, by a third party (i.e. a party other than Salesfire).

Any capitalized term not defined in this Schedule 1 will have the meaning provided in this Agreement.

Last Updated 05/03/2024