1 Basis of Contract
1.1 This is a contract between you and Numark registered in England and Wales (Company number 00129370), whose registered office is at Rivington Road, Whitehouse Industrial Estate, Preston Brook, Runcorn, Cheshire, WA7 3DJ ("we", "us" "our") for the provision by us of email accounts for use by Numark members (the "Service"). You must be a Numark member (or in accordance with condition 3.3, a member's employee or agent) to use the Service. This Contract will be governed by the terms and conditions set out below as amended or substituted from time to time, in accordance with those terms and conditions.
1.2 Where you are utilising the current IMS service provided through Numark, you will not be liable for any termination charges of that service.
1.3 Where you are currently utilising an email service provided through any other third party, you are responsible for checking your contractual obligations with your existing provider before registering for the Service. We will not be liable for and will not pay any termination or other charges levied on you by your existing provider.
2 Transferring to the Service
2.1 You may start using the Service as soon as you have finished the sign-up process and we have notified you that your e-mail account has been set up.
2.2 If you are an existing member and currently use IMS, your IMS account will remain active for a reasonable period to be specified by IMS and we will arrange with IMS for emails to be forwarded to your new account. There may be delays in forwarding such e-mails and you will therefore be responsible for ensuring that any such e-mails do not require immediate attention. We will not be liable for loss arising from any delays caused.
3 The Service
3.1 We will provide you with access via the NumarkNet webmail system and, where you have the facilities, by downloading using Outlook Express. Access and availability of the service may vary depending upon your location and the software and hardware being used to access the Service.
3.2 You are responsible under these Terms and Conditions for the use of the Service by yourself or any person you allow to use it. You will be registered as the primary user but you can nominate additional users subject to these Terms and Conditions.
3.3 We will provide you with one email account for use in your business.
3.4 Only you may use your account. Where we agree that you may set up additional member accounts that are dependent on your account (an "associated account"), these associated accounts will be subject to the Terms and Conditions applying to you and to your account. You are responsible for all activity that takes place with your service account or an associated account. You may not authorise any third party to access and/or use the service on your behalf except where we provide a mechanism for third parties to access the Service on your behalf. Any additional user must also provide a user name and password which must be different to yours.
3.5 You are responsible for the security and proper use of your service account password and you must not disclose your service account password to any third party. You are also responsible for the security and proper use of each additional user's account password and for all activities that occur under these usernames and passwords. If you know or suspect that your username or password or any username or password of your additional users has been compromised, or you suspect or become aware of any other breach of security, you must tell us immediately. In these circumstances, you must also ensure that any such username or password is changed as soon as possible.
3.6 If we believe that there has been, or is likely to be, a breach of security of your account, we reserve the right to and we may suspend the usernames and passwords in question and require that any or all of them are changed.
3.7 The holder of the service account has full control over any associated account. This control includes the right to end the Service, close or alter the associated account at any time, and, in some cases, to request and receive machine and service use information related to your associated account. Any associated account user will be deemed to have agreed to the use of their information in accordance with these Terms and Conditions.It is your responsibility to ensure that you have suitable policies in place with the associated account user in relation to the use of the account and to allow you access to the information generated through the account. We may decline a request for information where we believe that you have failed to ensure your right to access such information.
3.8 Where you and any associated account user may have access to other services, for example a calendar and address book ("additional services"). You and any additional user are responsible for backing up any data you have saved in the additional services.
4 Your rights and obligations
4.1 You will not, and will take all reasonable precautions to ensure that no other person (including any associated account user) uses the Service to:
4.1.1 engage in, facilitate or further unlawful or fraudulent conduct;
4.1.2 send patient records or data which could be associated with any patient;
4.1.3 send offensive, indecent, menacing, nuisance or hoax emails;
4.1.4 send viruses, worms, corrupted files, hoaxes, Trojan horses or any other items of a destructive or deceptive nature;
4.1.5 send Messages to another user after receiving a request to stop;
4.1.6 cause annoyance, inconvenience or needless anxiety;
4.1.7 act in a way that in our opinion harms us or our members, our suppliers, advertisers, and affiliates, or any customer of ours or of our members;
4.1.8 use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages ("spam");
4.1.9 send, distribute, or reply to mail-bombs; (mail-bombing is either sending copies of a single message to many users, or sending large or multiple files or messages to a single user with the intention of disrupting their email usage experience);
4.1.10 use false message headers or alter the headers of messages to conceal your email address or to prevent other users from responding to messages;
4.1.11 use any automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored, or "meta-searching");
4.1.12 use any unauthorised means to modify or reroute, or attempt to modify or reroute, the Service;
4.1.13 damage, disable, overburden, or impair the Service (or the network(s) connected to the service) or interfere with anyone's use and enjoyment of the Service; or
4.1.14 resell, assign or redistribute the Service, or any part of the Service.
4.2 In using the service, you will:
4.2.1 obey the law at all times;
4.2.2 obey the rules and codes of conduct relating to the use of email in relation to patient data;
4.2.3 obey any codes of conduct or other notices which we provide;
4.2.4 not send or forward on spam e-mails;
4.2.5 keep your service account password secret; and
4.2.6 promptly notify us if you learn of a security breach related to the Service.
4.3 You should empty and/or back up your account, as necessary, at regular intervals to avoid exceeding the data storage limits referred to below in condition 5.3.
4.4 You agree that a breach of any of the provisions in this clause will comprise a material breach of contract, which may lead to suspension of the Service or ending the Contract, in accordance with condition 7. You agree to indemnify and hold us harmless against any expense, loss or damages that we may suffer by reason of any breach by you of these terms and conditions.
5 Our rights and obligations
5.1 We will use our reasonable endeavours to provide the Service at all reasonable times. We shall try to ensure that scheduled maintenance takes place at times when the system is least in use though this may not always be possible or practical. We will endeavour to keep downtime to a minimum as a result of non-scheduled maintenance works. Our service relies on the use of facilities provided by third parties and so use and availability of the service will not always be within our control and we will not be liable for any withdrawal or unavailability of the service for any reason.
5.2 We may need to modify the content or format of any emails ("Messages") sent via the Service in order to transmit them.
5.3 We reserve the right to place limits on the use of the email accounts by you and anyone using any associated account and to amend those limits from time to time and on reasonable notice. There is an upper limit on the size of each mailbox account (250Mb). This will restrict the amount of Messages you are able to store in your mailbox account using the service and we will not be under any obligation to keep data in accounts beyond one calendar month.
5.4 We reserve the right to place limits on the size of each message you and any associated account holder can send using the Service and to amend those limits from time to time and on reasonable notice. There is an upper limit to the size of each Message which you can send using the Service. You must not exceed these usage limits. The current usage limits is 10mb per email.
5.5 Where the Service is being or has been used inappropriately as defined in condition 4.1, or we suspect that the Service is being or has been used inappropriately, we may contact the police or any regulatory authority and/or cooperate with the police or any regulatory or similar or relevant authority or body in connection with any suspected misuse.
5.6 We may access or subject to the provisions of the Data Protection Act 1998, disclose information about you, including the content of your communications, in order to:
5.6.1 comply with the law or respond to lawful requests or legal process;
5.6.2 protect the rights or property of Numark or our member, including the enforcement of our agreements or policies governing your use of the Service.
5.7 You have a right to know about the personal information we hold about you. You also have a right to have your data which is incorrect corrected or deleted. If you want to know what personal data we hold, please contact us at our registered office. We may make a charge for this in accordance with the Act.
5.8 Personal information collected through the Service may be stored and processed outside of the jurisdiction of England and Wales. By using the Service, you consent to any such transfer of information outside of England and Wales.
6.1 We give no express warranties, guarantees or conditions as to the suitability or availability of the Service. We exclude insofar as the law allows any implied warranties including but not limited to fitness for a particular purpose.
7 Limitation of liability
7.1 Subject to condition 7.4, our total liability to you will be limited to recovery of your direct losses only and will not exceed an amount equivalent to one year's service payments.
7.2 We have no liability (whether in contract negligence or otherwise) for any loss not reasonably foreseeable by us when the Contract commences, nor for any loss of opportunity, goodwill, reputation, business, revenue, profit, or savings you expected to make, wasted expenditure, data being lost or corrupted, loss or damage incurred by you as a result of third party claims, any third party conduct, viruses or other disabling features that affect your access to or use of the Service, your software or hardware, incompatibility between the Service and other services, software and hardware, delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort.
7.3 We have no liability for any indirect, special or consequential loss or damage howsoever caused.
7.4 Nothing in this Contract will exclude or limit our liability for death or personal injury caused by our (or our agent's or sub contractor's) negligence, our liability for fraud or fraudulent misrepresentation or any of other liabilities that cannot be restricted by law.
8 Matters beyond our reasonable control
8.1 If and to the extent to which we are prevented, hindered or delayed from or in performing any of our obligations under the Contract by an event beyond our reasonable control (a "Force Majeure Event") we will not be deemed to be in breach of the Contract, or otherwise be liable to you, by reason of any delay in performance, or non-performance, of any of our obligations under the Contract.
8.2 We will as soon as reasonable practicable notify you of the extent of the Force Majeure Event and to the extent that such delay or non-performance is due to any Force Majeure Event of which we have notified you, and the time for performance of that obligation will be extended or postponed appropriately.
8.3 We will use our reasonable endeavours to prevent, overcome, avoid, minimise and mitigate the effects of the Force Majeure Event on the performance of our obligations under the Contract and as soon as reasonably possible after the end of the Force Majeure Event, we will notify you that the Force Majeure Event has ended and will resume performance of our obligations under the Contract.
9.1 Interpreting the Contract
9.1.1 Nothing in these Terms and Conditions affect your statutory rights where you are deemed to be acting as a consumer.
9.1.2 Unless otherwise stated in these Terms and Conditions, these Terms and Conditions constitute the entire understanding between you and us in relation to the subject matter and supersede all prior representations, communications, negotiations and understandings concerning the subject matter. You have not relied on any warranty or representation except as expressly set out in these Terms and Conditions.
9.1.3 These Terms and Conditions may be varied by us in accordance with condition 5.
9.1.4 Clause headings are for reference only and will not be construed to be part of the Contract.
9.1.5 If any provision of these Terms and Conditions (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
9.1.6 If any invalid, unenforceable or illegal provision of these Terms and Conditions would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
9.2.1 We may assign or novate this Contract, in whole or in part, at any time with or without notice to you.
9.2.2 You may not assign or novate this Contract, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Service or any part of the Service save as set out in these Terms and Conditions.
9.3 Third Parties
Subject to condition 9.2.1, a person who is not a party to this contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
9.4.1 We will give you notice that is required under the Contract, in accordance with these Terms and Conditions either via email to your account or by publication on our website. We may also send notices to your last known address as retained in our records.
9.4.2 Unless otherwise stated, if you wish to give us any notice that is required under these Terms and Conditions, any such notice must be sent in writing to our registered office.
9.4.3 Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the Service. If you do not consent to receive any notices electronically, you must stop using the Service. All other notices will be deemed given two days after posting on our website or if sent by post two days after posting.
9.5.1 Neither we nor you will be considered to have waived any right under this Contract because of failure or delay in exercising that right.
9.6 Governing law and jurisdiction
9.6.1 The Contract and any matter arising from or in connection with it will be governed by and construed in accordance with English law.
9.6.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the English courts over any claim or matter arising from or in connection with the Contract or the legal relationships established by or in connection with these Terms and Conditions.