Legal

Terms of Business

Quick Mailing Limited Terms and conditions (June 2009 version)

All orders are subject to Quick Mailing™ Ltd’s Terms & Conditions 2009. If you cannot read these terms for any reason please call 020 7720 1166 or e-mail Rupert Saunders at This e-mail address is being protected from spambots. You need JavaScript enabled to view it and we will immediately forward a copy of our terms to you.

Please read these Conditions carefully. By accepting these Conditions you confirm that you have understood your obligations and responsibilities, both as agent for the customer listed in the Order Form and in a personal capacity.

1 DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

Advertisement	means all content, logos, branding and photographs used within a specified area in a Product;
Conditions	means the standard terms and conditions of sale set out herein, including any special terms and conditions agreed in writing by us;
Contract	means any contract for the sale of products and/or the supply of services between us and you into which these Conditions are incorporated;
Order Form	means any order form for the sale and/or supply of the Products completed by you into which these Conditions are incorporated;
Products	means the products and/or services which we shall supply in accordance with these Conditions, details of which are set out on the Order Form;
we	means Quick Mailing Limited, and “us” and “our” shall be construed accordingly;
you	means the customer whose details are set out on the Oder Form, together with any person or agent (the purchaser) who is authorised to bind you (and by submitting the Order Form on your behalf such person or agent warrants that they are duly authorised by you to do so), and “your” shall be construed accordingly.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.3 All rights expressly reserved by or granted to us by these Conditions shall be without prejudice to any other rights which we may have from time to time.

1.4 Unless expressly stated otherwise, where rights and decisions are to be exercised or made at our discretion, then we shall be under no duty or obligation to you to justify or provide a reason for the decision.

1.5 Unless expressly stated otherwise, where our prior written consent is required under these Conditions, then we shall be under no obligation not to unreasonably withhold or delay in giving that consent.

2 BASIS OF SALE

2.1 These Conditions shall apply to all Contracts for the sale of Products by us to you to the exclusion of all other terms and conditions including any terms or conditions which you may purport to apply under any Order Form, and no variation of these Conditions shall be binding unless agreed in writing by us.

2.2 These Conditions set out the entire agreement to the exclusion of all other terms and conditions, and become binding (subject only to your receipt of our acceptance of your Order Form) on the earliest of the date you:

2.2.1 sign a Contract incorporating these Conditions;

2.2.2 email confirmation;

2.2.3 confirm to us your acceptance of these Conditions by telephone call (which we will subsequently confirm to you in writing or by email);

2.2.4 supply us with any copy or artwork;

2.2.5 instruct us to do any work on your behalf; or

2.2.6 sign off or approval of any piece of artwork provided always that we have provided you with a copy of these Conditions before such date, and you have not notified us in writing that you do not accept the terms set out in these Conditions.

2.3 Where the Products form part of a composite order or are to be delivered by instalments, each part of the composite Order Form and instalment shall constitute a separate Contract. Each Order Form for Products shall constitute a separate Contract.

2.4 Failure by us to deliver any Product or instalment shall not entitle you to treat the Contract as repudiated.

3 ORDERS AND SPECIFICATIONS

3.1 No Order Form submitted by you shall be deemed to have been accepted by us unless and until you receive our order confirmation, and thereafter the Order Form shall be binding on you.

3.2 You shall be responsible for ensuring the accuracy of the terms of any Order Form submitted by you, and for giving us any necessary information relating to the Products within a sufficient time to enable us to perform the Contract in accordance with these Conditions.

3.3 If any material is to be prepared by us in accordance with a specification submitted by you, you shall indemnify us against all loss, damages, costs and expenses awarded against or incurred by us in connection with or paid or agreed to be paid by us in settlement of any claim for infringement of any patent, copyright, design right, trade mark or other intellectual property rights of any other person which results from our use of your specification.

3.4 We reserve the right to make changes in the specification or positioning of the Advertisement which are required as a result of your failure to give us full or timely instructions, or to conform with any applicable statutory or EU requirements.

3.5 Unless otherwise agreed in writing, your Contract shall be for the minimum period stated on the Order Form calculated from the date shown on the Order Form, providing that any Contract will automatically be renewed for successive one year periods until and unless we receive at least three months notice to terminate any Contract to expire on the anniversary of the original date of the Order Form.

4 PRICE OF THE GOODS

4.1 The price of the Products shall be our quoted price from time to time.

4.2 We reserve the right, by giving notice to you at any time before delivery, to increase the price of the Products to reflect any increase in the cost to us which is due to any factor beyond our reasonable control,

4.3 Except as otherwise agreed in writing by us, all prices are given by us on an ex works basis, and where we agree to deliver the Products otherwise than at our premises, you will be liable to pay our charges for transport, packaging and insurance.

4.4 The price is exclusive of any applicable value added tax which you shall automatically be liable to pay to us.

4.5 If an Order Form is submitted by anyone other than a person authorised by you (i.e. the customer named on the Order Form), then such person agrees to personally indemnify us in respect of any non-payment by you of any sums due and payable to us as though such person was the principal debtor.

5 TERMS OF PAYMENT

5.1 By using our Products you guarantee payment of the price thereof. You hereby authorise us to charge your credit card account for any such amount as is necessary to equal such charges.

5.2 Unless expressly agreed by us in writing, we shall invoice you for the price of the Products at any time after acceptance of your Order Form.

5.3 You undertake and warrant to pay the price of the Products (without deduction or set off) within 14 days of the date of the invoice. The time of payment shall be of the essence of the Contract.

5.4 If you fail to make any payment on the due date then we reserve the right to:

5.4.1 cancel the Contract under which payment is due and any other Contract or suspend further deliveries to you;

5.4.2 appropriate any payment made by you to such of the Products as we may think fit; and

5.4.3 charge you interest (after as well as before any judgment) on the amount unpaid, at the rate of 4% per annum above National Westminster Bank plc base rate from time to time, until payment is made in full, accruing pro rata on a daily basis.

5.5 Where you fail to make any payment on the due date then the signatory of the Contract under which payment is due agrees to guarantee such payment.

5.6 Any discount we may offer for a series of Advertisements is offered on the basis that no Advertisement within that series shall be cancelled. If one or more Advertisements are cancelled, you shall be liable to pay us the full rack rate or rate card amount for each Advertisement not cancelled.

6 DELIVERY

6.1 You shall make all arrangements to take delivery of the Products whenever they are tendered for delivery.

6.2 Any dates quoted for delivery of the Products are approximate only and we shall not be liable for any delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed in writing by us. We may deliver the Products in advance of the quoted delivery date upon giving you reasonable notice.

6.3 If we fail to deliver the Products (or any instalment) for any reason other than any cause beyond our reasonable control or your fault, and we are accordingly liable to you, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest available market) of similar products to replace those not delivered over the price of the Products.

6.4 If you fail to take delivery of the Products or fail to give us adequate delivery instructions at the time stated for delivery then we reserve the right to:

6.4.1 store the Products until actual delivery and charge you for the reasonable costs (including insurance) of storage; or

6.4.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the Contract or charge you for any shortfall below the price under the Contract.

7 RISK AND PROPERTY

7.1 The risk in all artwork, photographs and specifications sent by you to us shall remain with you at all times.

7.2 Risk of damage to or loss of the Products shall pass to you:

7.2.1 in the case of Products to be delivered at our premises, at the time when we notify you that the Products are available for collection; or

7.2.2 in the case of Products to be delivered otherwise than at our premises, at the time of delivery.

7.3 Notwithstanding delivery and the passing of risk in the Products or any other provision of these Conditions, the legal and equitable title in the Products shall not pass to you until we have received in cleared funds payment in full of the price of the Products.

7.4 Until such time as the title in the Products passes to you, you shall hold the Products as our fiduciary agent and bailee, and shall keep the Products separate and properly stored, protected and insured and identified as our property, but you shall be entitled to resell or use the Products in the ordinary course of your business.

7.5 Until such time as the property in the Products passes to you (and provided the Products are still in existence and have not been resold) we shall be entitled at any time to require you to deliver up the Products to us and, if you fail to do so forthwith, to enter upon any premises where the Products are stored and repossess the Products.

8 WARRANTIES AND LIABILITY

8.1 SUBJECT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, AND EXCEPT WHERE THE PRODUCTS ARE SOLD TO A PERSON DEALING AS A CONSUMER (WITHIN THE MEANING OF THE UNFAIR CONTRACT TERMS ACT 1977), ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW.

8.2 Where the Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976, as amended) your statutory rights are not affected hereby.

8.3 Where any valid claim in respect of any of the Products or Advertisement which is based on any defect in the quantity or condition of the Products or Advertisement or their failure to meet specification is notified to us in accordance with these Conditions, we shall be obliged to repair or replace the Products (or the part in question) or amend the Advertisements free of charge, but we shall have no further liability to you. We will return Products after examination if they are found not to be defective.

8.4 EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, WE SHALL NOT BE LIABLE TO YOU BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW OR UNDER THE EXPRESS TERMS OF THE CONTRACT, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT OR OTHERWISE), COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION WHATSOEVER (WHETHER CAUSED BY OUR NEGLIGENCE OR OUR EMPLOYEES, AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE SUPPLY OF THE PRODUCTS OR THEIR USE OR RESALE BY YOU, AND OUR ENTIRE LIABILITY IN CONNECTION WITH THE CONTRACT SHALL NOT EXCEED 120% OF THE PRICE OF THE PRODUCTS, EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS.

8.5 You will indemnify us in full against any and all claims, losses or damage suffered or incurred by us (including but not limited to loss of profit) arising from your breach of the Conditions or any Contract.

9 ADVERTISING REGULATIONS

You undertake and warrant to comply with the Trade Descriptions Act 1968, the British Codes of Advertising and Sales Promotion (as amended) and any additional regulations or guidelines published from time to time to the extent that they apply to the Products and the Advertisement, and you shall indemnify us in respect of any and all claims arising from your failure to comply therewith.

10 TERMINATION OF A CONTRACT

10.1 No Contract may be cancelled by you except with our prior written consent and on terms that you shall indemnify us in full against all loss (including loss of profit for the minimum period specified on the Order Form), costs (including the cost of all labour and material used), damages, charges and expenses incurred by us as a result of cancellation.

10.2 We may cancel any Contract or suspend any further deliveries under any Contract at any time at our discretion:

10.2.1 upon 10 days’ written notice to you;

10.2.2 immediately upon you breaching the terms of these Conditions or any Contract

10.2.3 immediately in accordance with Clause 5.4.1; or

10.2.4 immediately upon you make any voluntary arrangement, becoming bankrupt, insolvent or committing any other act of bankruptcy.

10.3 Upon termination of any Contract where the Products have been delivered but have not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10.4 Unless we have terminated a Contract in accordance with Clause 10.2.2 we shall refund to you 120% of any monies paid for undelivered Products, but we shall have no further liability to you.

11 RETURN OF THE GOODS

11.1 Any claim by you which is based on any defect in the quality of condition of the Products or Advertisement or their failure to correspond with specification shall be notified to us within ten days of receipt of a voucher copy of the Product or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discover of the defect or failure. If delivery is not refused, and you do not notify us accordingly, you shall be deemed to have accepted the Products and we shall have no liability for such defect or failure, and you shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.

11.2 Products returned in accordance with Clause 11.1 must be accompanied by written notification which must state the nature of the fault of each item and the invoice number in relation to the purchase of each item.

11.3 All transportation charges relating to the return of Products will be borne by you unless otherwise agreed in writing, and the risk in the Products shall remain with you until the Products are received by us and any Products so returned are despatched by you at your own risk.

11.4 You shall not be entitled to reject part only of the Products delivered in accordance with these Conditions.

11.5 Any claims against us for Products not credited or replaced will only be considered where you can provide proof of delivery to us. We will not provide cash refunds.

12 GENERAL

12.1 We will not liable to you or deemed to be in breach of contract by reason of delay or failure to perform any of our obligations if the delay or failure to due to act cause beyond our reasonable control.

12.2 These Conditions do not purport to confer a benefit on any third party nor will any Contract unless otherwise expressly stated.

12.3 Any notice required or permitted to be given by either party to the other under these Conditions or any Contract shall be in writing addressed to the other’s principal place of business.

12.4 No waiver by us of any breach of these Conditions or any Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.5 If any provision of these Conditions or any Contracts held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the remainder shall not be affected.

12.6 These Conditions and all Contracts are personal to the parties and you may not assign or transfer these Conditions or any Contract without our prior written agreement.

These Conditions shall be governed by the laws of England, and you agree to submit to the exclusive jurisdiction of the English courts.

System Terms and conditions

Quick Mailing™ Terms of Emarketing System Use

YOU MUST BE 18 OR OLDER AND LEGALLY ABLE TO BE BOUND BY A CONTRACT AS A CONDITION TO RECEIVING THE ABILITY TO USE QUICKMAILING™.

1 DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

Software	means the Quick Mailing™ software product(s) and any related materials provided by us to you whose use is licensed to you under this Agreement;
we	means Quick Mailing Limited, and “us” and “our” shall be construed accordingly;
Website	means the website accessible to you at www.quickmailing.co.uk;
you	means the customer whose details are set out above, together with any person or agent (the purchaser) who is authorised to bind you (and by submitting the order on your behalf such person or agent warrants that they are duly authorised by you to do so), and “your” shall be construed accordingly.

1.2 The headings in this Agreement are for convenience only and shall not affect their interpretation.

1.3 All rights expressly reserved by or granted to us by this Agreement shall be without prejudice to any other rights which we may have from time to time.

1.5 Unless expressly stated otherwise, where our prior written consent is required in this Agreement, then we shall be under no obligation not to unreasonably withhold or delay in giving that consent.

1.6 You must follow the terms and conditions of our Terms of Use. The Terms of Use is incorporated by reference into this document as if fully set forth herein. Please review the Terms of Use frequently as we may update the contents of the Terms of Use at any time. By accepting this contract, you agree to follow the terms and conditions of the Terms of Use and you agree to regularly review the Terms of Use to see if the Terms of Use has been modified, changed or updated. We will not contact you if we modify or change the Terms of Use.

1.7 Where there is any conflict between this Agreement and the Terms of Use, the latter shall prevail.

2 THE SOFTWARE

Subject to payment of the prices set out above, we shall:

2.1 permit you to log on to the Website and access the Software;

2.2 host the Website and the Software; [and

2.3 install standard updated releases, version enhancements and modules of the Software onto the Website and provide you with access to the same.]

3 INTELLECTUAL PROPERTY

3.1 All content on the Website, including the logo, articles, other text and graphics are the intellectual property of QuickMailing.co.uk and their supplier and protected trademark, trade dress, patent, copyright and other laws.

3.2 You may not reverse engineer, decompile, or disassemble any software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

3.3 We grants you a limited, non-exclusive licence to log on to the Website and access the Software for your own internal use on any computer system owned, leased or controlled by you or any member of your corporate group where you are a corporate entity, which includes any majority-owned subsidiaries, any parent company having a majority interest in you and such parent’s majority-owned subsidiaries during the term of this Agreement in conjunction with your normal business activities.

3.4 You may not use, copy, modify or transfer the Software or any copy, in whole or in part, including any print-out of all or part of any database, except as expressly provided for in this licence. If you transfer possession of any copy of the Software to another party except as expressly provided above, your licence is automatically terminated.

3.5 The Software is licensed only to you. You may not rent, lease, sub-licence, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis.

3.6 You may not vary, delete or obscure any notices of ownership rights or any product identification or restrictions on or in the Software.

4 GENERAL TERMS AND CONDITIONS

4.1 We may modify the terms and conditions of this Agreement at any time. Any modification will not in anyway compromise the privacy of your account's confidential information stored using our service.

4.2 We will notify you of any material changes to this agreement by posting a notice on our web site and in the application for a reasonable period of time after such changes are made, that this agreement has been updated, and by changing the "Updated" date at the bottom of this agreement.

4.3 Your further use of the Software or any tool or service that we provide to you subsequent to a change or modification of this Agreement is your express indication to us that you agree to be bound by any change or modification in this Agreement.

5 YOUR OBLIGATIONS

5.1 You must provide correct and complete personal and business information as requested by us in the Software registration process.

5.2 You are responsible for the security of your password and user ID and shall be liable for any action carried out under your account, whether with your knowledge or otherwise.

5.3 You are responsible for all fees required for your license to use the Software and any and all other products, services and tools that we offer which you subscribe to.

5.4 Your email campaigns may not generate abuse complaints that, in our sole discretion, exceed industry norms. If so instructed by a posted guideline or rule, you may not issue more email per day than our per diem limitation.

5.5 We will cancel your account without prior notice if we determine that you are in violation of any of the terms and conditions of this Agreement.

5.6 You agree to keep us informed of your valid email address at all times. In the event that we should make any modification of this agreement, we will send you an email addressed to the email address that you have provided us. Once we send an email notifying you of a change or modification to this agreement, you agree to be bound by any such change or modification, regardless of whether you have changed your email address or actually received the email notification.

6 GENERAL EMAIL RULES AND GUIDELINES

6.1 The Software has been developed to enable you to communicate with email subscribers that have opted-in (i.e. expressly given their permission) to receive information from your company. You may not use the Software for the purpose of sending unsolicited email, or "Spam." The Software respects anti-Spam laws and asks you to act accordingly.

6.2 You may not use the Software for purposes of breaking any law.

6.3 You must follow any posted guidelines regarding content and commercial activity limitations.

6.4 All email addresses that you use must be solely derived from permission based lists. The Software may not be used to send emails to individuals that have not opted-in to receive information via email from your company.

6.5 All e-mail messages sent out must comply with all relevant laws applicable to the jurisdiction of the receiver and all content must not violate any applicable law, code, or regulation, whether criminal or civil in nature.

6.6 All e-mail messages must comply with the following:

6.6.1 Message must originate from a valid from address (the Software takes steps to verify this).

6.6.2 Your company name, address, city, postcode and phone number must be clearly included.

6.6.3 Unsubscribe must be clearly visible (the Software will place an unsubscribe link in the e-mail).

6.6.4 An unsubscribed e-mail address should not receive any further e-mails. You must maintain a record of all unsubscribe requests, including the day you removed the address from the subscription list. You must provide us with a copy of such records upon our request.

6.7 The Software gives its users all the tools necessary to build and maintain an opt-in email list. The Software also allows you to import existing lists of email addresses. The email addresses that are imported must have opted in to receive messages from your company. These features make it easy for users to build and use lists of opt-in subscribers and eliminate the need to send unsolicited emails.

6.8 In the event that a complaint is received or an instance reported of an unsolicited email message sent by your company using the Software, we will investigate claims of unsolicited email messages sent using the service. If we determine that a user is employing the service to send emails to recipients who have not opted in or recipients that have unsubscribed on a prior occasion, the account will be immediately terminated.

7 SPECIAL EMAIL PROVISIONS

7.1 Adding New Members: You will use a "single opt-in" or "double opt-in" (signup plus confirmation) subscription method for all new list members. For the purpose of this Agreement, a "double opt-in" method shall mean that when you add a new member's email address to the list, that email address shall not be activated unless and until the new member receives a single confirmation e-mail from you requesting the member's consent to be added to the list, and the Software receives from the new member a confirmation action (such as a confirming e-mail from the new member's email address) approving such action. The confirmation e-mail sent by you to new members may not include advertising or calls-to-action other than an appeal to confirm the member's subscription.

7.2 Importing Members: You may only import members previously obtained directly by you using the "single opt-in" or "double opt-in" (recommended) procedures described above. You may not import opt-out members directly into your list under any circumstances. YOU MAY NOT IMPORT MEMBERS FROM CO-REGISTERED OR PURCHASED SOURCES, REGARDLESS OF THE CONFIRMATION STATUS OF SAID MEMBERS.

7.3 One-Time Mailings: You may not use the Software for one-time mailings to a list of members after which you substantially delete the membership and create a new list. Your membership must be a static, permanent list to which you add or delete new members and/or members subscribe or unsubscribe themselves in the ordinary course.

7.4 Content: Some content (both subject and body content) cannot be sent through the Software under any circumstances. This includes the following but is not limited to:

7.4.1 gambling;

7.4.2 betting;

7.4.3 lead sales;

7.4.4 pornography/adult content;

7.4.5 pharmaceutical;

7.4.6 promotion or sale of products or services that are deemed unlawful within the United States or any other applicable jurisdiction;

7.4.7 work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings

7.4.8 any content that is illegal; and

7.4.9 any content that is defamatory, abusive, threatening or otherwise violates the rights of any person or entity.

If you are unsure about how this applies to your email content, please contact us before using the service.

8 USER GUIDE ELEMENTS

8.1 The Software is an opt-in email marketing system.

8.2 When using the Software you must ensure that the following criteria is met for outgoing messages:

8.2.1 the “from” address is a valid email address;

8.2.2 your full contact information including mailing address and phone number is included in the message;

8.2.3 an unsubscribe link is clearly viewable in your message; and

8.2.4 you must review and abide by all Can-Spam requirements.

8.3 You must also agree to follow standard Internet etiquette for email and applicable laws which offer the following usage provisions:

8.3.1 you must not harvest email addresses;

8.3.2 you may only send out emails to those individuals that have given you explicit permission to email them; and

8.3.3 you must fully comply with any unsubscribe requests. Full compliance means that you do not ever email this the address unless the email address owner provides permission and rescinds the unsubscribe request.

9 ARBITRATION

9.1 This Agreement will be governed by and construed in accordance with the internal laws of the State of California excluding that body of laws known as choice of law or conflict of laws.

9.2 Subject to the provisions of this Section all disputes, controversies or claims arising out of or relating to this Agreement will be resolved through mandatory binding arbitration conducted in Sacramento, California before J.A.M.S./ENDISPUTE or its successor ("JAMS") pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et seq. (the "Act"); and this Agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.'s Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration (the "JAMS Rules"), subject to the provisions of this Section.

9.3 The terms set forth in this Agreement will control in the event of any inconsistency between such terms and the JAMS Rules.

9.4 The parties will cooperate with JAMS and with each other in promptly selecting a single arbitrator from JAMS's panel of neutrals. If the parties fail to so select an arbitrator within thirty (30) days following the date of either party's notice of demand to conduct arbitration, then JAMS will appoint an arbitrator in accordance with the JAMS Rules.

9.5 The award of the arbitrator will be in writing and will set forth findings of fact and conclusions of law. Judgment on the arbitrator's award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof.

9.6 If for any reason JAMS or its successor no longer is in business, then the arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association.

9.7 The arbitrator's fees will be shared equally by the parties and each party will bear its own costs and attorneys' fees. All papers, documents, or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties.

9.8 The arbitrator chosen in accordance with these provisions will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or the provisions of this Agreement. Notwithstanding the foregoing, nothing in this Clause 9 shall prevent either party from applying for and obtaining from a court a temporary restraining order and/or other injunctive relief.

9.9 Any and all disputes regarding the content presented on this site must be resolved through arbitration as set forth in this Clause 9.

10 NONDISCLOSURE

10.1 Each party shall retain in confidence all proprietary and confidential information transmitted to the other that the disclosing party has identified in writing, or orally and then subsequently identified in writing, as being proprietary and/or confidential, and will make no use of such information except under the terms and during the term of this Agreement.

10.2 During the term of this Agreement, and after the termination of this Agreement, we will use all reasonable precautions and take all necessary steps to prevent your distribution lists from being acquired by unauthorized persons. We will not share (unless required by law), sell or otherwise distribute the confidential information in your account.

10.3 You agree to use all reasonable precautions and take all necessary steps to prevent our confidential information, data, scripts, object code, source code, programs, business plans, business models, business concepts, communications and any and all further confidential information from being acquired by unauthorised persons, and to take appropriate action, by instruction, agreement, or otherwise, with regard to all persons permitted access to our owned confidential information and data, in order to ensure our confidential information and data are protected.

10.4 You shall not disclose any of our confidential information to any person for any purpose other than as provided in this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that:

10.4.1 it has rightfully received from another party prior to its receipt from the disclosing party;

10.4.2 the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence;

10.4.3 enters the public domain or becomes generally known to the public by some action other than breach of this Agreement by the receiving party;

10.4.4 it is legally required to disclose to any governmental and/or regulatory authority; or

10.4.5 is independently developed by the receiving party.

10.5 Each party shall safeguard proprietary and confidential information disclosed by the other using the same degree of care it uses to safeguard its own proprietary and confidential information but, in no event, shall use less than a reasonable degree of care.

10.6 Each party's obligation under this paragraph shall extend for a period of three (3) years following termination or expiration of this Agreement.