The definitions and rules of interpretation in this clause apply in this Agreement.
"Customer", "You" or "Your" : you, who we agree to provide the Services for from time to time.
Fees : means the Fees payable by You to Ctrl Promo for the Services and the software.
Ctrl Promo, Our, Us or We : means Ctrl Promo, a company registered like Solo Trader in England.
Services : means the Web Service provided by Ctrl Promo to You under this Agreement together with other services as may be agreed from time to time;
Site : means ctrlpromo.com (or such other website as we may notify to you).
Software : means the Label Management System software provided by Ctrl Promo as part of the Services.
Your Data : means the data inputted by You, or Ctrl Promo on Your behalf for the purpose of using the Services or facilitating Your use of the Services.
Clause headings shall not affect the interpretation of this Agreement.
Words in the singular shall include the plural and vice versa
A reference to a statute or statutory provision is a reference to it as it is in force for the time being.
For all intents and purposes, Ctrl Promo. shall be considered a “processor” acting on behalf of You who shall be considered a “controller” pursuant to the terms of the European Unions General Data Protection Regulations (“GDPR”).
Use of the Site, the Software and the Services are provided to You subject always to these terms, conditions and any guidelines, rules or operating policies that Ctrl Promo may establish and post on the Site from time to time ("the Agreement") to the exclusion of any other term or condition. We may update this Agreement or discontinue or revise any or all other aspects of the Services at Our sole discretion and such changes shall become effective upon posting a revised Agreement on the Site..
Description of Services
The Ctrl Promo website enables You to send data (image, text, audio and other files via the internet (a "Campaign") to members of Your email mailing list ("Recipients") by use of a combined website and email system, and to monitor how Campaigns are viewed and used.
Ctrl Promo cannot guarantee that Promo email Campaigns will be received in a consistent style or form due to the number of different email platforms and variants. It is understood that Ctrl Promo makes no guarantee that HTML messages will be rendered properly on all recipients' e-mail programs or that Campaign templates will be rendered properly on all recipients' browsers.
Subject to (i) You purchasing the Services; (ii) clause 5.1; (iii) the restrictions set out in this clause 4; and (iv) the other terms and conditions of this Agreement, Ctrl Promo hereby grants to You a non-exclusive, non-transferable right to access the Software and use the Services solely for the purposes of distributing and promoting and managing Your Data and producing Campaigns.
You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (vi) causes damage or injury to any person or property and Ctrl Promo reserves the right, without liability to You, to disable Your access to any Service that breaches the provisions of this clause.
You shall not -
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/ (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software / Ctrl Promo system; or
access all or any part of the Services in order to build a product or service which competes with the Software or the Services; or
use the Services to provide services to third parties; or
subject to clause 17.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third parties except as authorised by Us
Charges and payment
You shall pay the Fees to Ctrl Promo for the Tools, Systems or Services you order.
All amounts and Fees stated or referred to in this Agreement are payable in UK Pounds Sterling (GBP) and:
Are non-cancellable and non-refundable unless Your account is terminated by Ctrl Promo for a reason other than breach of this Agreement or breach of any other contract you have with us or violation of any policy maintained by Us;
Are exclusive of value added tax, which shall be added to Ctrl Promo's invoice(s) at the appropriate rate unless You validly claim that they are not liable to pay UK VAT; and
Are subject to change at any time and you are responsible for reviewing our Site where the Fees are listed and remaining aware of the Fees charged by Ctrl Promo.
Payment for Services will be made via electronic transfer or other payment facility notified by Us to You.
Privacy and Security
You will at all times provide true, accurate, current, and complete information about Yourself and your business / company as required.
You are responsible for maintaining the security of Your account, passwords, and files, and for all users of your account and of the Services in your name. Ctrl Promo reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Ctrl Promo. Ctrl Promo may use this information and any technical information about your use of the Services to tailor its presentations to You, facilitate your movement through the Service, or communicate separately with You.
Ctrl Promo's Obligations
Ctrl Promo undertakes that the Services will be performed substantially with reasonable skill and care other than to the extent of any non-conformance which is caused by use of the Services contrary to Ctrl Promo's instructions, or modification or alteration of the Services by any party other than Ctrl Promo or Ctrl Promo's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Ctrl Promo will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Ctrl Promo:
does not warrant that Your use of the Services or Tools will be uninterrupted or error-free or that the Services and/or the information obtained by You through the Services will meet Your requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
comply with all applicable laws and regulations with respect to the Services;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Ctrl Promo, Your contractors and agents to perform their obligations under this Agreement or any other Ctrl Promo contract, including without limitation the Services and Tools;
ensure that Your network and systems comply with the relevant specifications provided by Ctrl Promo from time to time; and
be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to Ctrl Promo's data centres, and we shall not be liable for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.
Restrictions and Responsibilities
Subject to any of your rights as may exist under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs the You will not, directly or indirectly;
reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any Software, documentation, or data related to the Services;
remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
You represent, covenant, and warrant that you will use the Services and Tools only in compliance with this Agreement, with any other signed Ctrl Promo contract and all applicable laws (including but not limited to policies and laws related to copyright, spamming, privacy, obscenity, or defamation).
You agree You will not:
access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party; or
upload, send, modify, distribute, or reproduce in any way any copyrighted material (audio, image or other files, text, trademarks, or other proprietary information) belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Ctrl Promo to terminate the accounts of Customers who infringe the copyright rights (mechanical or otherwise) of others upon receipt of prompt notification to Ctrl Promo by the copyright owner or the copyright owner's legal agent.
The seller imposes fair use policies and reserves the right to remove the use of any products or services if it feels a user has abused such policies. Clarification of the fair use policy can be obtained at any time by contacting firstname.lastname@example.org and all users or all services should fully understand the fair use policies before using any of the services or tools.
Ctrl Promo may monitor the content provided by You or Your use of the Services and may remove any such content or prohibit any use of the Services or Tools if it believes it may be (or is alleged to be) in violation of the foregoing.
It is Your responsibility to check your Ctrl Promo email Campaign for errors in copy, corrupted audio, graphics stream & download settings, and that the overall Campaign is working as required before sending. Ctrl Promo is not responsible for any errors generated by Your activities during Campaign creation.
You may not remove or export from the UK or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the UK or any other applicable country.
You shall own all rights, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
In the event of any loss or damage to Your Data, Your sole and exclusive remedy shall be for Ctrl Promo to use reasonable commercial endeavours to restore the lost or damaged Your Data from the latest back-up of such Your Data maintained by Ctrl Promo. Ctrl Promo shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
If Ctrl Promo processes any personal data on Your behalf when performing its obligations under this Agreement, the parties record their intention that You shall be the data controller and Ctrl Promo shall be a data processor and in any such case:
You acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where You and the Authorised Users are located in order to carry out the Services and Ctrl Promo's other obligations under this Agreement;
You shall ensure that You are entitled to transfer the relevant personal data to Ctrl Promo so that Ctrl Promo may lawfully use, process and transfer the personal data in accordance with this Agreement on Your behalf;
You shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
Ctrl Promo shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by You from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
Email and Permission Practices
You must follow the rules of the Privacy and Electronic Communications (EC Directive) Regulations 2003 & federal CAN-SPAM act (US) and any of Our applicable policies on Spam when sending e-mail through the Service to ensure that You do not carry out an act which damages Our reputation or status in any way.
Every email message sent in connection with the Services will contain the "unsubscribe" link or other mechanism that allows subscribers to remove themselves from your mailing list. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link.
You agree to import, access or otherwise use only permission-based email lists. The use of bought or gathered mailing lists, distribution lists, newsgroups, or spam email addresses are prohibited. The seller provides a promotional mailer system as a VIP Promotional Tool and not as a mass mailer system.
Emails that you send through the Service may generate abuse complaints from Recipients. We cannot share with you the email addresses of those who complain about your Campaign. You are responsible for ensuring that your Campaigns do not generate a number of abuse complaints in excess of industry norms. Ctrl Promo, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. If any of Your Campaigns are flagged as SPAM by any of Your Recipients, Ctrl Promo reserves the right to cancel Your account without notice.
In order to comply with Ctrl Promo's anti-spam policy, it is Your responsibility to make sure You have permission to send email to Recipients. Ctrl Promo, at its own discretion, may immediately disable your access without refund to the Services if Ctrl Promo believes in its sole discretion that you have violated any of the email and permission practices listed above.
You represent and warrant to us that You are, and will remain at all relevant times, compliant with all terms of the European Union’s General Data Protection Regulations (“GDPR”).
You consent to our communication with you via email in connection with the Services.
Third Party Providers
If You access the website content of, correspond with or purchase products or services from a third-party via a third-party website which has been accessed from any site maintained by Ctrl Promo, You do so solely at its own risk and Ctrl Promo makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, with any such third party.
You acknowledge and agree that Ctrl Promo and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant You any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
You acknowledge and agree that the Services and the Ctrl Promo company names and logos and all related product and service names, design marks and slogans, are the property of Ctrl Promo or its affiliates or suppliers (collectively, the "Marks"). You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Ctrl Promo. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in Ctrl Promo or its third party suppliers, as the case may be.
You shall defend, indemnify and hold harmless Ctrl Promo against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Services.
Limitation of Liability
Subject to the provisions of clause 14, this clause 15 sets out the entire financial liability of Ctrl Promo (including any liability for the acts or omissions of its employees, agents and sub-contractors) to You in respect of:
any breach of this Agreement;
any use made by You of the Services or any part of them; and
any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
Except as expressly and specifically provided in this Agreement:
You assume sole responsibility for results obtained from the use of the Services by You and for conclusions drawn from such use. Ctrl Promo shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Ctrl Promo by You in connection with the Services, or any actions taken by Ctrl Promo at Your direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services are provided to You on an "as is" basis.
Ctrl Promo shall have no liability to You under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control provided that You are notified of such an event and its expected duration.
In no event shall Ctrl Promo, its employees, agents and sub-contractors be liable to You for any alleged infringement of intellectual property rights, and you shall forever indemnify Us against any such infringement, to the extent that it is based on:
a modification of the Services by anyone other than Ctrl Promo; or
Your use of the Services in a manner contrary to the instructions given to You by Ctrl Promo; or
Your use of the Services after notice of the alleged or actual infringement from Ctrl Promo or any appropriate authority.
The foregoing states Your sole and exclusive rights and remedies, and Ctrl Promo's (including Ctrl Promo's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Nothing in this Agreement excludes the liability of Ctrl Promo:
for death or personal injury caused by Ctrl Promo's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 15.2 and clause 15.6:
Ctrl Promo shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
Ctrl Promo's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by You during the month immediately preceding the date on which the claim arose.
Ctrl Promo may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Ctrl Promo shall have no liability to you or any third party because of such termination. If Ctrl Promo terminates this Agreement because you violated the Anti-Spam policy, or the fair usage policy, no refund will be issued.
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate;
Ctrl Promo may destroy or otherwise dispose of any of Your Data in its possession unless Ctrl Promo receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to You of the then most recent back-up of Your Data. Ctrl Promo shall use reasonable commercial endeavours to deliver the back-up to You within 30 days of its receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Ctrl Promo in returning or disposing of Your Data; and
the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
You acknowledge and agree that in entering into this Agreement You have not relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) given by Ctrl Promo relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force and If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
You shall not, without the prior written consent of Ctrl Promo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement however Ctrl Promo may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties.
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under this Agreement shall be in writing and shall be sent by first class post to the registered address or the party or in the case of notice served by Ctrl Promo, to Your email address as notified to us from time to time.
This Agreement shall be governed by, and construed in accordance with, English law and the courts of England shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Service Agreement.