1.1 The following definitions apply to this Agreement:
“Additional Services” means the services set out in Annex 1.
“Agreement”: the Engagement Order Form, the Order Forms, these Standard Terms, and documents to which the foregoing documents contain links.
“Authorised User”: the employee or independent contractor of the Customer who may access and use the Platform and the Services on the Customer’s behalf.
“Business Day”: any day which is not a Saturday, Sunday or public holiday in the UK.
“Contract Start”: the date of execution of the Engagement Order Form by both parties or as otherwise set out in the Engagement Order Form.
“Customer” means the corporate entity set out as such in the Engagement Order Form.
“Customer Content”: any materials and data provided to Mailtastic by the Customer, including the Signature Data, the Design Materials and Development Materials.
“Details of Processing” means the details of processing for the Mailtastic Service set out at https://www.mailtastic.com/processing.
“Engagement Order Form” means a document agreed and executed by both Parties and to which these Standard Terms are attached or linked.
“Fees”: the fee payable by the Customer for the Services, either as set out in an Order Form or, if no relevant fees are specified in an Order Form, at the rates set out in the Rate Card.
“Intellectual Property Rights”: all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
“Mailtastic”: means Mailtastic Ltd, Registered office: 12 Times Court Retreat Road, Richmond, England, TW9 1AF, Company number: 12616407.
“Order Form”: means the Engagement Order Form or any document agreed by both parties (email sufficient) setting out additional services ordered by the Customer.
“Licence”: the licence granted under clause 4.1.
“Platform": Mailtastic’s proprietary online software application known as the “Mailtastic Platform”, available at https://app.mailtastic.de/#/login including any non-customised on-premise software made available to the Customer for installation locally on Customer’s devices.
“Rate Card” means Mailtastic's rate card in force from time to time setting out details of those fees and charges payable in respect of the Platform, the Services and any ancillary products and/or services.
“Running Time”: means the period set out in the Engagement Order Form.
“Services": the services and products provided by Mailtastic under this Agreement, including the Support Service and Additional Services (where agreed in an Order Form) and any outputs of the same (including software).
“Signature Data” means the data provided to Mailtastic by the Customer to create the email signatures and personalise these to its users.
“Standard Terms” means these standard terms and conditions.
“Support Service” means the support to be provided by Mailtastic as set out in an Order Form.
“Term”: the period from the Contract Start until the termination of this Agreement in accordance with clause 11.
1.2 A “person” includes a natural person, corporate or unincorporated body.
1.3 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular and references to one gender are references to the other genders.
1.4 The words “include” and “including" (or similar) shall be deemed to have the words "without limitation" after them.
1.5 If there is any conflict between the terms of this Agreement, the following order of priority shall apply (unless where expressly stated otherwise in the Agreement):
1.5.1 Engagement Order Form;
1.5.2 Order Form(s) (where there are multiple Order Forms the most recent Order Form shall take precedence);
1.5.3 Annex 1 of the Standard Terms;1.5.4 Standard Terms (front-end without the Annexes);
2.1 Each Order Form shall contain the scope and specifications of Services and, once agreed shall form part of this Agreement. During the Term the parties may make additional services subject of this Agreement. Where Mailtastic offers additional services to the Customer and the Customer pays the relevant fees (or a part thereof), such payment shall be deemed as an acceptance of Mailtastic’s offer and the parties will be deemed to have agreed an Order Form on the terms proposed by Mailtastic’s offer.
2.2 Unless agreed otherwise in writing, any services, features, functionality or applications offered or made available from time to time by Mailtastic to the Customer shall be subject to this Agreement.
2.3 In consideration of the payment of the Fees, Mailtastic shall provide the Services for the Term.
2.4 The Customer shall ensure that its IT systems and settings are compatible for the Services and at a minimum comply with the Mailtastic System Requirements set out at https://mailtastic.com/mailtastic-system-requirements/ which may be updated from time to time.
2.5 Where Customer receives the Additional Services, as set out in an Order Form, the terms set out in Annex 1 for that Additional Service shall apply in addition to these Standard Terms.
2.6 Mailtastic may change the Platform or Services, provided that such changes do not materially alter or disrupt the Customer’s enjoyment of the Services.
2.7 Unless stated otherwise in an Order Form, Mailtastic is not obligated to host or maintain the Platform after the Term.2.8 Mailtastic shall have no liability under this Agreement for any breach of this Agreement, if the claim relates to a modification of the Services by the Customer, Customer's use of the Services in a manner contrary to the instructions given by Mailtastic, or the Customer Content.
3. Authorised users
3.1 The Customer’s access to the Platform and the Services shall be limited to the Authorised Users, who will be allocated a username and password by Mailtastic.
3.2 With Mailtastic’s consent, the Customer may change or add to the individuals nominated as Authorised Users. In such case, Mailtastic shall issue a username and password to the new individual nominated as an Authorised User and (where applicable) disable the username and password of the individual no longer nominated as an Authorised User.
3.3 The Customer shall, and shall ensure that each Authorised User shall, keep its password confidential. Mailtastic shall not be liable for any losses or damage suffered by the Customer due to the disclosure of any passwords.3.4 The Customer shall not, and shall ensure that each Authorised Users shall not, use the Services or the Platform in a manner that may violate any applicable law or regulation.
4. Licence of the platform
4.1 Mailtastic hereby grants the Customer a licence to use the Platform. The Licence is granted for the Term, and is granted subject to the terms and conditions of this Agreement. The Licence is revocable, non-exclusive, non-transferable and non-sublicensable. The Licence is granted to the Customer and the subsidiary and/or holding company of the Customer, unless otherwise set out in this Agreement.
4.2 The Customer shall not use the Platform or the Services to:
4.2.1 provide, rent or sell services to third parties; or
4.2.2 build a product or service which competes with the Platform, the Services or Mailtastic;
4.2.3 undertake any activity which may lead to email-filtering or blacklisting or other measure being taken by third parties in respect of messages sent by or through the services offered by Mailtastic, or which may otherwise impact use of the Platform or Services by any other customer of Mailtastic.
4.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and the Services and shall notify Mailtastic promptly of any such unauthorised access or use.
4.4 If the Customer considers it necessary to decompile (as permitted under section 50B of the Copyright, Design and Patents Act 1988) any part of the Platform in order for the Customer to use the Platform in accordance with this Agreement, Customer must first provide written notice to the Mailtastic before attempting to decompile any part of the Platform. Such written notice shall set out in detail the information necessary to achieve the Customer’s use of the Platform in accordance with this Agreement. Customer must not attempt to decompile any part of the Platform until it has received Mailtastic’s written response to such notice.
5. Licence of customer content
5.1 The Customer hereby grants Mailtastic a royalty-free revocable, non-exclusive, transferable and sublicensable licence for the Term to use the Customer Content to the extent necessary to provide the Platform and the Services.
5.2 The Customer warrants that the Customer Content will:
5.2.1 be free from viruses, unlawful, defamatory, racist, inflammatory, obscene and other objectionable material; and5.2.2 not contain or include any malicious code or virus.
6. Charges and payment
6.1 The Customer shall pay the Fees.
6.2 Mailtastic shall invoice the Customer for the Fees.
6.3 All amounts in this Agreement exclude VAT and are payable in advance in pounds sterling.
6.4 The Customer shall pay all invoices within 14 days of the invoice date.
6.5 On the Contract Start all Fees shall be incurred but shall become due and payable as set out in this Agreement.
6.6 The Customer may request to upgrade its Services package at any time by providing notice to Mailtastic. Mailtastic may at its discretion agree to such request automatically through the Platform. Where Mailtastic does not agree automatically, a Services upgrade may be agreed by the parties in an Order Form.
6.7 If Customer’s use of the Platform and/or Services exceeds any usage restrictions in an Order Form, Mailtastic may charge additional fees either on a pro-rata basis or based on the Rate Card. Customer shall be invoiced for such usage by Mailtastic and Customer agrees to pay the additional fees.
6.8 Mailtastic shall invoice the Customer for the Fees on or about the Contract Start and the beginning of each Renewal Term, or otherwise in accordance with any payment dates set out in an Order Form. In addition to any other rights or remedies of Mailtastic, if the Customer fails to make any payments in accordance with this Agreement:
6.8.1 interest shall accrue on such due amounts at an annual rate equal to 9% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment;
6.8.2 Mailtastic may immediately suspend, pause or cancel the provision of any Services until the outstanding payments are made; and
6.8.3 Mailtastic may implement any debt recovery process it sees fit, including engaging third party debt collectors and providing them, with sufficient information to pursue the debt. The Customer shall be responsible for the costs incurred in respect of such debt recovery (including legal fees). Customer shall be invoiced for such costs and Customer agrees to pay these costs.6.9 Mailtastic shall be entitled to increase the Fees by up to 10 percent on each anniversary of the Contract Start.
7. Proprietary rights
7.1 Mailtastic and/or its licensors own all Intellectual Property Rights in the Platform and the Services. Mailtastic does not grant the Customer any Intellectual Property Rights in respect of the Platform or the Services or any related content or materials unless expressly provided in this Agreement.
7.2 So far as Mailtastic is aware, Mailtastic warrants that the Customer’s use of the Platform, or the Services in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party.
7.3 The Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. The Customer does not grant Mailtastic any Intellectual Property Rights in respect of the Customer Content or any related content or materials unless expressly provided in this Agreement.7.4 The Customer warrants that Mailtastic’s use of the Customer Content in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party.
8.1 In this clause 8 “Confidential Information” means any information that is clearly labelled or identified as confidential or ought to reasonably be treated as being confidential including information related to the Services and the Platform. Confidential Information excludes any information which:
8.1.1 is or becomes publicly known other than through a breach of this Agreement or other obligation of confidentiality;
8.1.2 was in the receiving party’s lawful possession before the disclosure;
8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
8.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or
8.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to an equivalent duty of confidentiality. Neither party shall use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
8.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of this Agreement.
8.4 This clause 8 shall survive termination of this Agreement for a period of 5 years.
9. Limitation of liability
9.1 This clause 9 sets out Mailtastic's entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
9.1.1 arising under or in connection with this Agreement;
9.1.2 in respect of any of Customer’s input to or use of the Platform, or the Services or any part of them; and
9.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for its use of the Platform and the Services for the results of, or conclusions drawn from, such use.
9.3 The Platform and the Services are provided "as is" to the fullest extent permissible pursuant to applicable law. Mailtastic disclaims all warranties and conditions express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Platform, and the Services, their use and the results of such use. Mailtastic specifically disclaims any warranty:
9.3.1 that the Platform or the Services or their availability shall be uninterrupted or error-free;
9.3.2 that defects shall be corrected;
9.3.3 that use of the Platform or the Services will be compatible with all third party email, authentication, encryption, automation or other technnologies;
9.3.4 that there are no viruses or other harmful components;
9.3.5 that the security methods employed shall be sufficient; or
9.3.6 regarding results, correctness, accuracy, or reliability.
9.4 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
9.5 Nothing in this Agreement excludes the liability of Mailtastic:
9.5.1 for death or personal injury caused by Mailtastic’s negligence;
9.5.2 for fraud or fraudulent misrepresentation; or
9.5.3 any statutory liability not capable of limitation.
9.6 Subject to clause 9.5, Mailtastic shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), 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.
9.7 Subject to clause 9.5, Mailtastic’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the lower of (i) the total monies actually received by Mailtastic from the Customer under this Agreement during the 12 months preceding the date on which the claim arose and (ii) £6,000.
10. Data protection
10.1 If the Customer provides any Personal Data (including as part of the Signature Data) to Mailtastic, the Customer shall ensure that it is entitled to do so and that Mailtastic may lawfully process that Personal Data as envisaged under this Agreement and may transmit that personal data outside of the European Economic Area (EEA). The Customer will ensure that all necessary and appropriate consents and notices are in place to enable lawful processing of such Personal Data by Mailtastic.
10.2 The terms: “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”; “process” and “processing” have the meanings ascribed to them in the GDPR; “GDPR” means the European General Data Protection Regulation (2016/679); “UK GDPR” means the retained version pf the GDPR in the UK by virtue of section 3 of the European Union (Withdrawal) Act of 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019; “Sub-Processor” means any entity or person (excluding an employee of Mailtastic) appointed by or on behalf of Mailtastic to process Personal Data to provide the Services. References to articles of the GDPR shall mean those articles, and also any corresponding articles of the UK GDPR, where the UK GDPR is applicable to the processing activities carried out under this Agreement.
10.3 The Parties acknowledge that, for the purposes of the GDPR, where Mailtastic is providing the Services to the Customer, Customer is the Controller and Mailtastic is the Processor.
10.4 The Customer hereby instructs Mailtastic to process Personal Data as reasonably necessary for undertaking the Services. The details of the processing are as set out in the Details of Processing.
10.5 Mailtastic shall, in relation to any Personal Data processed to provide the Services:
10.5.1 only process such Personal Data on Customer’s documented instructions including in respect to transfers of such Personal Data to a country outside of the EEA, unless processing is required by applicable laws;
10.5.2 take reasonable steps to ensure the reliability of its employees who have access to such Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
10.5.3 take all measures required pursuant to Article 32 of the GDPR;
10.5.4 taking into account the nature of the processing and the information available to Mailtastic, shall assist Customer by implementing appropriate technical and organisational measures, insofar as this is reasonably possible, for the fulfilment of the Customer’s obligations: (i) to respond to requests to exercise Data Subject rights under the GDPR; and (ii) pursuant to Articles 32 to 36 of the GDPR;
10.5.5 at the written direction of the Customer, delete or return such Personal Data to Customer at the end of the Term unless Mailtastic is required by law to retain it;
10.5.6 make available to the Customer information strictly necessary to demonstrate Mailtastic’s compliance with the obligations set out in this Clause 10.6, including to allow for and contribute to reasonable audits (at the Customer’s sole cost), conducted by the Customer or an auditor designated by the Customer; and
10.5.7 inform the Customer if, in its opinion, the Customer’s instruction infringes the GDPR.
10.6 Customer hereby grants a general authorisation to Mailtastic to engage Sub-processors. A list of Mailtastic's Subprocessors is available at https://www.mailtastic.com/free-subprocessors, which may be updated from time to time. Mailtastic shall inform the Customer of any intended changes concerning the addition or replacement of Sub-processors.
10.7 With respect to each Sub-processor, Mailtastic shall ensure that the arrangement between Mailtastic and Sub-processor, is governed by a contract including:
10.7.1 terms which offer at least the same level of protection for Personal Data as those set out in clause 10.6; and
10.7.2 terms which meet the requirements of Article 28(3) of the GDPR.
10.8 Customer shall be solely responsible for compliance with the EU Privacy and Electronic Communications Directive 2002/58/EC (as amended, replaced, or superseded from time to time) including national laws implementing such EC Directive, and the UK Privacy and Electronic Communications (EC Directive) Regulations 2003. The Customer warrants, represents and undertakes that it has obtained all necessary and appropriate consents and notices are in place to enable Mailtastic to provide the Services to Customer in compliance with these laws.10.9 Customer shall indemnify Mailtastic against all liabilities, costs, expenses, damages and losses suffered or incurred (including reasonable legal fees) arising out of a breach by Customer of clause 10.
11. Term and Termination
11.1 This Agreement shall commence on the Contract Start and subsist until its expiry or termination in accordance with this clause 11
11.2 The Running Time shall commence on the Contract Start.
11.3 Upon expiration of the Running Time, this Agreement shall automatically renew for successive periods each equal to the Running Time unless a different period is set out in an Order Form (a “Renewal Term”).
11.4 During the Running Time and any Renewal Term, either party may terminate this Agreement:
11.4.1 where the length of the Running Time is shorter than 12 months, on at least 2 weeks’ written notice to the other party, such notice to expire at the end of the Running Time or any Renewal Term then in effect; or
11.4.2 where the length of the Running Time is equal to or longer than 12 months, on at least 3 months' written notice to the other party, such notice to expire at the end of the Running Time or any Renewal Term then in effect.
11.5 This Agreement can be terminated immediately:
11.5.1 by either party if the other party is in material breach of this Agreement, and if remediable, fails to remedy such breach within 30 days of a written request to do so; or
11.5.2 by either party if the other party ceases trading (or threatens to cease trading); is subject to an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); is the subject of a bankruptcy petition or order; becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts; or
11.5.3 by Mailtastic, if the Customer objects to a change in Sub-processors or objects to a change of contract notice by Mailtastic (in accordance with clause 19.4).
11.6 On termination of this Agreement for any reason:
11.6.1 all licences granted under this Agreement shall immediately terminate;
11.6.2 Customer may no longer use the Platform, the Services or any output therefrom;
11.6.3 Mailtastic does not have to store any Customer-related content (including signatures and banners) and may delete these immediately at Mailtastic's sole discretion; and
11.6.4 the Customer shall immediately uninstall and destroy or return to the Mailtastic (at the Mailtastic´s option) all copies of the Platform (or any part thereof) then in its possession, custody or control.
11.7 Where Mailtastic terminates this Agreement pursuant to clause 5, Mailtastic may retain all fees paid by the Customer.
11.8 The accrued rights and remedies of the parties, and clauses 1, 7, 8, 9, 11.6, 13, 15, 16, 18, 19 and 20, shall survive termination of this Agreement for any reason.
12. Force majeure
Mailtastic shall not be in breach of this Agreement nor liable for any failure or delay to perform its obligations under this Agreement, if that failure or delay is a result of a Force Majeure Event (whether or not reasonably foreseeable at the time of entering into this Agreement) making it impractical for Mailtastic to perform its obligations. Force Majeure Event means an event beyond the reasonable control of Mailtastic including but not limited to strikes; lock-outs, or other industrial disputes (whether involving the workforce of or any other party); internet outages; communications outages; failure of a utility service or transport network; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order or World Health Organisation rule, decision, regulation, guidance, recommendation, or direction; accident; breakdown of plant or machinery; fire; flood; storm; disease; epidemic; pandemic; or default of suppliers or subcontractors.
Mailtastic may refer to the Customer (including use of Customer’s Logos, Trade Marks and other branding) as its customer on its websites, in its marketing materials and in negotiations with third party’s, unless notified otherwise by the Customer.14. Waiver
A waiver of any right under this Agreement is only effective if it is in writing.
If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.
16. Entire agreement
This Agreement constitutes the whole agreement between the parties and supersedes any previous agreement between them.17. Assignment
The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Mailtastic.
18. Third party rights
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.
19. Notices and Changes
19.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by email, by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in an Order Form (or such other address as may have been notified).
19.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivered outside business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 2 Business Days after posting. A notice provided by email shall be deemed to have been received at the time of transmission (or if transmitted outside business hours, at 9 am on the first Business Day following transmission).
19.3 Mailtastic may revise and amend the Annexes to this Agreement by notice from time to time to reflect changes in the options available in relation to the Services and changes in laws and regulatory requirements.
19.4 Subject to clause 19.3, Mailtastic may change the terms of the Agreement on 14 days’ notice to the Customer. Customer may object to the change in writing within the 14 day notice period. If the Customer objects, the right of termination in accordance with clause 11.5.3 shall apply.
20. Governing law and jurisdiction
This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.
1. Design services
1.1 The Design Services shall consist of Mailtastic designing email signatures and/or signature banners for the Customer (including, where agreed, transferring an existing signature into a HTML signature, signature adaptations and/or signature customisations). The details of the Design Services (which may include number of design drafts, number of graphics, number correction loops, size, resolution and format) shall be set out in the relevant Order Form.
1.2 The Fees due to Mailtastic for the Design Services shall be set out in the relevant Order Form and payable by the Customer in accordance with clause 6 (unless agreed otherwise in the Order Form).
1.3 The Customer shall:
1.3.1 provide to Mailtastic the materials it wishes to be included in the design (“Design Materials”); and1.3.2 ensure that the Design Materials comply with Mailtastic’s technical requirements and have a sufficient quality and resolution.
1.4 Mailtastic may charge additional fees at the rate set out in the Rate Card, where the Customer requests:
1.4.1 additional design drafts beyond the agreed amount; and/or
1.4.2 additional changes following the agreed number of correction loops. For the avoidance of doubt, one correction loop consists of the Customer requesting reasonable changes to a design and Mailtastic incorporating those changes and delivering the design to the Customer.
1.5 Mailtastic shall create email signatures and/or signatures banners based on the approved Design concept.
1.6 The email signatures shall be made available to the Customer through Customer’s Platform account.
1.7 Mailtastic hereby grants Customer a non-transferable, non-exclusive and non-sublicensable license to use the designed email signatures and/or signature banners as part of its email signature and/or email banners.
2. Development services
2.1 The Development Services shall consist of Mailtastic developing and delivering customised software for the integration of the Platform with the Customer's IT systems (the “Software”). The specification for the Development Services shall be set out in the relevant Order Form.
2.2 The Fees due to Mailtastic for the Development Services shall be set out in the relevant Order Form and payable by the Customer in accordance with clause 6 (unless agreed otherwise in the Order Form).
2.3 The Customer shall (at its own cost):
2.3.1 actively consult with Mailtastic regarding the project progress and individual development steps;
2.3.2 provide any materials (including data, pictures and text) (“Development Materials”), support and assistance as reasonably requested by Mailtastic;
2.3.3 provide feedback to any work results that Mailtastic provides to it for review;
2.3.4 make available skilled staff with sufficient expertise.
2.4 The Customer shall comply with paragraphs 2.3.1 to 2.3.3 within 5 Business Days of a relevant Mailtastic request. The Customer shall respond to all other requests by Mailtastic within 2 Business Days.
2.5 Subject to clause 9.5, and notwithstanding any other provision of this Agreement, Mailtastic shall have no liability for failure to perform the Development Services if it is prevented, hindered or delayed in doing so due to Customer’s breach of paragraph 2.3 and/or 2.4.
2.6 In the case a breach by Customer of paragraph 2.3 and/or 2.4. Mailtastic may:
2.6.1 adjust the Fees and charge overruns at the rate set out in the Rate Card; or
2.6.2 down tools and stop development immediately.
2.7 Following the provision of the Software to the Customer by Mailtastic, the Customer shall conduct acceptance tests.
2.8 Acceptance tests shall be agreed in the relevant Order Form. Where acceptance tests have not been agreed and scheduled under an Order Form, Customer and Mailtastic shall agree reasonable acceptance tests upon delivery of the Software or Customer may, at its option, agree to waive acceptance tests and accept the Software without tests.
2.9 The acceptance or rejection of Software shall be determined according to this paragraph 2.6:
2.9.1 Acceptance of the Software shall occur when it has passed the relevant acceptance tests (if any) and meets the specification in the Order Form, and Customer provides Mailtastic with a written acceptance notice (“Acceptance Notice”).
2.9.2 In the event that any acceptance tests are not passed due to material failures that cause the relevant tests to be failed (“Defects”), Customer shall notify Mailtastic in writing providing its detailed reasons for not approving the Software (“Correction Notice”).
2.9.3 On receipt of a Correction Notice, Mailtastic shall investigate and remedy the applicable Software in accordance with the Correction Notice, and deliver to Customer revised Software for retesting.
2.10 In the event that Customer fails to deliver an Acceptance Notice or Correction Notice within 5 Business Days of receipt of the Software, the Software shall be deemed accepted by the Customer.
2.11 In the event that Customer uses the Software in a live commercial environment (other than for the purposes of beta testing internally), the Software shall be deemed accepted by the Customer.
2.12 Mailtastic hereby grants the Customer a non-transferable and non-sublicensable licence to use the Software to integrate the Customer’s IT systems with the Platform. Uses for any other purpose are prohibited. All Intellectual Property Rights of Mailtastic that are not expressly licensed or assigned in this Agreement are reserved and retained by Mailtastic. Except as expressly provided in this Agreement, no other assignments or licenses of Intellectual Property Rights are granted whatsoever, whether expressly or by implication or by estoppel, by any party hereto.
2.13 Customer will not, and will not attempt to, change, reverse engineer or create derivative works of the Software.
2.14 Mailtastic may use third party products and open source materials for the purposes of the Software. Where Customer requires a licence of any third party products in order to use the Software, Mailtastic shall grant to (where permitted) or procure for Customer a non-exclusive licence or sub-licence (as applicable) to use the third party products for the purposes set out in paragraph 2.9. Any additional licence fees shall be identified in the Order Form and payable by the Customer in addition to the Fees.
3. Consulting services
3.1 The consulting services shall consist of Mailtastic consulting the Client in regard to the integration of Mailtastic's services with the Customer's services and in regards to marketing. The details of the Consulting Services shall be set out in the relevant Order Form.
3.2 The Fees due to Mailtastic for the Consulting Services shall be set out in the relevant Order Form and payable by the Customer in accordance with clause 6 (unless agreed otherwise in the Order Form).
3.3 Mailtastic shall not be liable for any loss suffered by the Customer relating to the Customer’s action or non-action on the basis of any advice, recommendation or approval of Mailtastic, it being acknowledged and agreed by the Customer that Mailtastic’s Consulting Services provided under this Agreement are consulting only and all decision-making regarding the Customer, including without limitation whether or not to follow any advice by Mailtastic, is solely the responsibility of the Customer.
4. Mailtastic Target
4.1 The Mailtastic Target service enables the Customer to conduct recipient-based marketing campaigns through the Platform where the Customer can select tailored marketing material for the email signature based on the destination domain and/or the recipient. Mailtastic Target (by implementing email signature tags) also enables the Customer to determine whether a particular email signature campaign banner has been viewed or clicked on by a recipient or category of recipients.
4.2 Customer shall be solely responsible for ensuring that Customer and Mailtastic on Customer’s behalf are entitled to use domain tracking in respect of the domains and contacts that Customer imports to the Platform. The Customer will ensure that all necessary and appropriate consents and notices are in place to enable lawful domain tracking.
4.3 Customer is able to turn off domain tracking at its discretion at any time via its Mailtastic account settings.
4.5 Where the Customer is receiving the Mailtastic Target service, Customer instructs Mailtastic to process the data set out in the Details of Processing under “Mailtastic with rerouting” in order to provide the Mailtastic Target service.
5. Integration with third-party Marketing-Automation und CRM systems
5.1 The Integration service allows Customer to integrate their account with a third-party marketing automation and CRM system (“CRM-Account”) with the Platform and access Mailtastic’s services via the CRM-account.
5.2 Where the Customer is receiving the Integration service, Customer instructs Mailtatic to transmit Personal Data (including Signature Data) between the Platform and the CRM-Account for the Customer to receive Mailtastic’s other Services (such as Mailtastic Target). The Customer hereby provides express permission for Mailtastic to access the CRM-Account and data held within (“CRM-Data”).
5.3 Customer acknowledges and agrees that the third-party provider of the relevant third-party marketing automation and CRM system (“CRM-Provider”) and Mailtastic are acting as a Processor for the Customer and neither the CRM-Provider nor Mailtastic is engaging each other as a subprocessor.
5.4 Customer shall be solely responsible for ensuring that Customer and Mailtastic on Customer’s behalf are entitled to transmit and use the CRM-Data for the purpose of the Services, including without limitation to conduct domain tracking.
5.5 Customer shall be solely responsible for the use of its CRM-account and its compliance with the CRM-Provider’s applicable terms of service and acceptable use policy.