Email Terms & Conditions of Business
“The Client” means the person, company or other body placing an order with Nyx Digital Limited.
“Nyx Digital” means Nyx Digital Limited (Company No 05964462) of Pine House, Stow on the Wold, Cheltenham, Gloucestershire GL54 1AF.
“Proposal” means the fees and description of services provided to the Client by Nyx Digital prior to the Client’s Order.
“Order” means the order placed by the Client by signing the Insertion Order presented for the supply of services as detailed in the Proposal or Insertion Order.
“Client IO” or “Client Order” means the Campaign Worksheet, Order or Insertion Order, which sets forth all of the details regarding the specific requirements of the Advert or Campaign and the fees/commission payable to Nyx Digital, including any amendments, deletions or additions that are agreed, signed and accepted by the Client and Nyx Digital.
“Supplier Order” or “Supplier IO” is the order confirmation including details of the Campaign, terms and conditions of the Supplier and the fees payable to the Supplier, along with any amendments, deletions or additions that the Supplier sends for acceptance to Nyx Digital on behalf of the Client.
“Campaign(s)” means the agreed details, selections, fields, volume, type, means, timescale and fees stated in the Order both between the Client and Nyx Digital and between the Supplier and Nyx Digital.
“Lead(s)” means any action or activity taken by a consumer as a result of the Campaign for which the Client is to compensate Nyx Digital by a payment as set in the IO. Leads may include without limitation, downloads, click throughs, purchases of Client’s products or services, responses, registrations, entry of data, the providing of consumer of their personal or other information and any other action related to the Ad and/or Campaign.
“Publisher” means any company working for either Nyx Digital or Supplier in generating Leads for the Client.
“Confidential Information” includes, without limitation, the terms of the IO and these terms and conditions (including pricing) and information regarding the Client, Supplier and Nyx Digital, information existing or contemplated on Nyx Digital Services, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Service or any information that is marked as confidential or should reasonably be treated as confidential. Confidential Information excludes information that is already in the public domain or a party can show that it has independently created or received the information from a party that is not bound by confidentiality.
“IO” means the Insertion Order signed and accepted between the relevant parties.
“Party” shall mean a party to the agreement and Parties shall refer to them collectively.
(a) All email broadcasting services are carried out subject to these conditions and these conditions shall be the sole terms and conditions applicable. Terms and Conditions on the Client’s order form or other similar document shall not be binding on Nyx Digital and the placing of the Order by the Client shall indicate unqualified acceptance of these conditions.
(b) No representative, agent or other person has Nyx Digital’s authority to vary, amend or waive any of these conditions on Nyx Digital’s behalf and no amendment or addition to any of these conditions shall be deemed to have been accepted unless accepted in writing by a director of Nyx Digital.
(c) No Order which has been accepted by Nyx Digital may be cancelled by the Client except with Nyx Digital’s prior written agreement.
(d) A database de-dupe may take up to 10 working days.
(e) Where requested, Nyx Digital may assist the Client with its Creative’s for the Campaign, provided always that the Client is ultimately responsible to ensure compliance of its Creatives, Nyx Digital accepts no liability whatsoever in relation to any mistakes or other errors or non compliance of the content of such Creative.
(f) Nyx Digital reserves the right to refuse or cancel without any liability whatsoever (i) any Creative or Campaign that does not meet the requirements of the IO, (ii) any Creative or required assets in order to place the Campaign live which has not been delivered to Nyx Digital within 48 hours of the proposed go live date of the Campaign, (iii) any Campaign/Creative that Nyx Digital (in its reasonable opinion) deems inappropriate (i.e. for example due to the use of defamatory language, is illegal/unlawful or has or could potentially link to have images that are indecent/offending), (iv) any Campaign (including publishing any image(s) or photograph(s)) that the Nyx Digital in its sole discretion considers a breach of privacy laws and rights or a breach of law generally, or any third party intellectual property rights, (v) any request or Campaign that may directly or indirectly in anyway whatsoever compete with the business of the Supplier, (v) or where a Supplier or Client fails any credit checks carried out by Nyx Digital, Nyx Digital has concerns in relation to the unreliability of software and hardware or, payment terms, pricing and performance or other related matters are not satisfied by either Client or Supplier.
(g) These Terms and Conditions supersede all prior agreements, arrangements and undertakings between the parties and together with the acceptance of Order constitute the entire agreement between the Parties relating to its subject matter, these terms and conditions represents the entire understanding between Nyx Digital, the Client and Supplier.
(h) Nothing in this Agreement shall create a partnership or joint venture between the parties and save as expressly provided in this Agreement, neither Party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other Party.
(i) If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
(j) A 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 term of this agreement.
(k) No waiver, modification or addition to this agreement shall be valid unless signed by all Parties.
(l) Any notice required to be given by a Party to the other may be sent by either email or recorded delivery to the most recent email address, fax number or address notified to the other Party, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.
(a) The Client acknowledges and agrees that Nyx Digital’s ability to provide the services is dependant on the full and timely co-operation of the Client.
(b) The Client agrees to provide Nyx Digital with an email creative as a single HTML file with all images in either; JPG, GIF or PNG format. Clients should not provide separate CSS files or host any image resources themselves. The Client understands that an administration charge of £750 may be applicable, at Nyx Digital’s discretion, if the email does not meet the required specifications.
(c) The Client understands that Nyx Digital is not at liberty to broadcast or schedule any email campaign, regardless of prior written or spoken agreements, without written approval of a test email sent to the Client.
(d) The Client understands that email campaign broadcast scheduling will only take place on a Monday or Thursday during the office hours of 9am to 5pm. If the client requires broadcast scheduling to take place outside of these hours an administration fee of £250 may be payable at Nyx Digital’s discretion.
(e) The Client understands that each email campaign is different and Nyx Digital cannot take any responsibility for the amount of emails delivered or opened or the amount of clicks through to the Client’s website or sales generated. Any such figures referred to in The Proposal are guidelines only.
(f) The Client agrees to pay for the Order in advance of services rendered on a proforma basis unless agreed in writing by a Director of Nyx Digital.
(g) The client grants Nyx Digital a non-exclusive, royalty free, worldwide right and licence to market the Campaign by all means including online and offline mediums or as may be agreed in the relevant IO.
(h) The Client grants Nyx Digital a non-exclusive, royalty free, worldwide right and licence to market the Campaign by all means including online and offline mediums or as may be agreed in the relevant IO.
(i) Client agrees to use its best endeavours to ensure that its marketing materials conform to the advertising industry’s best practices, including standards set by the Advertising Standards Agency or other relevant regulatory or quasi-legal body.
(j) The Client agrees that the content of its Campaign materials shall not breach any laws and accepts that it is the Client’s responsibility at all times to ensure that its Campaigns material conform with all relevant regulatory requirements.
(k) The Client shall indemnify and hold Nyx Digital harmless from any losses, costs or damages resulting from any claims arising out of or in connection with the Campaign as a result of breach of (i) and (j) above.
(l) All material required for the Campaign must be provided to Nyx Digital within the agreed timeframes, failure of which will result in delays on the Campaign live date and any agreed numbers of impressions and/or Leads. Nyx Digital and/or Supplier shall not be held liable for delays or failure to of the Campaign launch where the delay has been a result of the Client’s failure to provide relevant materials or make relevant changes to the Campaign materials within the agreed timescales.
(m) It is the Client’s responsibility to check all details of the IO including, these terms and conditions and/or terms of that of the Supplier. A signature is classed as acceptance of the IO and therefore these terms and conditions.
(n) The Client is required to give a minimum of 30 days’ notice to cancel any campaign that has already been agreed and an IO signed.
(o) The Client agrees to use the Confidential Information solely for the purpose(s) contemplated by the IO and these terms and conditions, and shall refrain from disclosing Confidential Information to any third party, unless (i) any disclosure is necessary and permitted in connection with the receiving Client performance of its obligations or exercise of its rights under any IO or the Agreement or any other agreement between the Parties; (ii) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice affording the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorised use or disclosure; or (iii) any disclosure is made with the consent of the disclosing Party.
(p) The Client is wholly responsible for the content of each Creative submitted to Nyx Digital and should therefore carefully review all elements of the Creative before it is sent to Nyx Digital. Nyx Digital shall not have any duty to review the Creative’s provided by the Client, or to ensure that it complies with relevant laws or the requirements of the IO. Nyx Digital’s obligations are limited to the onward transmission of the Creative’s to the Supplier for setup of the Campaign. Any failure by the Client to ensure compliance with all relevant laws and the terms of the IO shall be the sole responsibility of the Client, and any delays in the launch of the Campaign as a result shall be the responsibility of the Client and may be subject to any restrictions/penalties that are set in the relevant IO.
(a) Supplier agrees to use its best endeavours to ensure that the accepted material/data/advertising conforms to best practices of the media and data industry, including but not limited to the Advertising Standards Agency codes or advertising and the Data Protection and Privacy Regulations at all times.
(b) The Supplier shall not make any amendments to any Creative’s, without the express authorisation of Nyx Digital and/Client.
(c) The Supplier agrees to indemnify and hold Nyx Digital harmless from any losses, costs or damages resulting from any claims arising or in connection with the Campaign for breach of (a) and (b) above.
(d) It is the Supplier responsibility to check all details of the IO including, these terms and conditions and or terms of that of the Client. A signature is classed as acceptance of the IO and therefore these terms and conditions.
(e) Supplier agrees to use the Confidential Information solely for the purpose(s) contemplated by the IO and these terms and conditions, and shall refrain from disclosing Confidential Information to any third party, unless (i) any disclosure is necessary and permitted in connection with the receiving Client performance of its obligations or exercise of its rights under any IO or the Agreement or any other agreement between the Parties; (ii) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice affording the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorised use or disclosure; or (iii) any disclosure is made with the consent of the disclosing Party.
Nyx Digital Obligations
(a) Nyx Digital agrees to upload email creatives, provided by the Client, to its broadcast platform and send test emails to the client, as within three working days from taking receipt of the email creative.
(b) Nyx Digital agrees to send email creatives, supplied by the Client, to the demographic and amount of recipients agreed in the Order and containing the header, footer and subject line to a schedule agreed with the Client in the Proposal or in writing after the Order has been placed.
(c) Nyx Digital confirms that all email addresses provided by them have agreed to be contacted on behalf of third parties and have been verified.
(d) Nyx Digital Limited agrees to provide full analytics for any email marketing campaign upon request.
(e) In some circumstances, Nyx Digital will act in the capacity of broker for the Client and buyer for the Supplier. Whereby Nyx Digital shall broker the Client’s Campaign(s) to its Suppliers. Nyx Digital will supply and purchase Leads for the Client via email campaigns, lead generation campaigns, affiliate networks campaigns both online or offline (as agreed with the Client) through its Suppliers, and as such Nyx Digital will not be held responsible for any losses, costs or damages resulting from any claims arising or in connection with the Campaign as a result of breach/default by the Supplier, where such breach/default was not a result of any act or omission on the part of Nyx Digital.
(f) The Parties agree that payment of Commissions is dependent upon the Client providing such cleared funds to Nyx Digital for onward transmission to the Supplier and therefore Nyx Digital shall only be liable for payment of Commissions to the Supplier to the extent that Nyx Digital has received such cleared funds from the Client. The Supplier hereby releases Nyx Digital and its affiliate from any claim for Commissions if Nyx Digital has not received such funds from the Client. Accordingly, Nyx Digital shall not be liable for failure to pay any credits which are agreed as owing to the Client where the Supplier has failed to release such credit back to Nyx Digital for onward transmission to the Client. In each of the instances described in this clause, Nyx Digital shall provide all its assistance (including assistance in any legal action brought against the defaulting pay) in recovering any payments due to either party including releasing the name, address and contact person of the Supplier/Client - whichever the case may, be to the Party affected by the nonpayment.
(g) Nyx Digital agrees to use the Confidential Information solely for the purpose(s) contemplated by the IO and these terms and conditions, and shall refrain from disclosing Confidential Information to any third party, unless (i) any disclosure is necessary and permitted in connection with the receiving Client performance of its obligations or exercise of its rights under any IO or the Agreement or any other agreement between the Parties; (ii) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice affording the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorised use or disclosure; or (iii) any disclosure is made with the consent of the disclosing Party.
(a) Client will pay Nyx Digital the agreed amount and on the terms stated within the relevant IO.
(b) Nyx Digital shall pay the Supplier the agreed amount and on the terms stated in the relevant IO.
(c) Overdue amounts will be subjected to late payment charge of 8% per month or part thereafter from the date payment is due to the date Nyx Digital receives payment.
(d) In circumstances whereby Nyx Digital acts as a Broker between the Supplier and Client, payment for Commissions to the Supplier is always dependent upon the Client first providing such cleared funds to Nyx Digital and vice versa.
Warranties & Limitation of Liability
(a) Nyx Digital neither warrants, undertakes, represents, nor is it a term or condition of any sale or agreement for any supply of data, that the data is accurate, complete or fit for purpose or that any information contained therein is accurate or complete.
(b) Both Supplier and Client shall indemnify and hold Nyx Digital harmless from and against any and all claims, losses, damages, expenses (including reasonable legal fees) or liability (including but not limited to those arising from technical malfunctions, computer errors, loss of data) arising or in association directly or indirectly with any act or omission or an infringement of any third party intellectual property rights.
(c) No Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. Nothing in this clause shall limit the liability of a Party for which liability cannot be limited.
(d) Nyx Digital’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the agreement shall be limited to the total Commissions actually received to Nyx Digital over a 6 months period before the alleged breach.
(e) No party shall be liable to the other for any failure of performance or any delay in performance that is caused by any event or circumstance beyond our control (including but are not limited to act of God, act of governmental authority, or due to war or terrorism, the outbreak or escalation of hostilities, riot, civil commotion, or other similar cause beyond the reasonable control of the party so affected at the time such causes arise).
Law & Jurisdiction
(a) This agreement shall be governed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.