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Discovery Design Limited Terms of Service forThe Discovery Email Marketing System
 
Discovery Design Limited (“Discovery”) has developed the Website (defined below) and offers the Services (defined below) through the Website which it makes available to subscribers via the internet on a usage based payment model to enable subscribers to use the Services for the purpose of email marketing and large scale email mail shots and other purposes as determined by the subscriber which comply with the terms and conditions set out below (“Terms”).
 
This document sets out the Terms on which Discovery provides you (“Account Holder”, “you”, “your”) with the Services (defined below) and access to www.discoveryemailmarketing.co.uk (the “Website”). Please read these Terms carefully. By clicking on “I accept”, you agree to be bound by these Terms, to take and pay for the Services as described in these Terms and in any associated documentation.
 
We suggest that you print and retain a copy of these Terms for your future reference.
 
1.DEFINITIONS
 
Account Holder
means an individual or company who has registered with Discovery to use the Service(s);
 
Agreement
has the meaning set out in clause 4.2;
 
Annual Email Limit
means that the Account Holder may send a maximum of 100,000 individual emails through their Email Campaigns to Approved Subscribers in any one calendar year (or such other figure as solely determined by Discovery and set out on the Website and specified within the Confirmation Email);
 
Approved Subscribers
means business email addresses and individual email addresses which have verifiably opted-in to marketing communications from the Account Holder, as amended by legislative or judicial ruling from time to time. For avoidance of doubt, it excludes all email addresses of individuals who have not directly provided such permission to the Account Holder; it will exclude all email addresses both individuals and businesses who have unsubscribed; and it will exclude all email addresses for which there have been bounce-back delivery failures; and will exclude all third party mailing lists.
 
Approved Subscriber Limit
means that the Account Holder may have a maximum of 10,000 Approved Subscriber email addresses in their database at any one time, as amended and updated from time to time;
 
Business Details
means business and company name, registered company number and place of registration (where relevant) and contact details, including postal and email address;
 
Confidential Information
means information or secrets relating to: corporate and marketing strategy, business development and plans, sales reports and research results, business methods and processes, technical information and know-how relating to the other party’s business and which is not in the public domain, including inventions, designs, techniques, database systems, formulae and ideas; business contacts, lists of customers and suppliers and details of contracts with them; and any document marked "confidential";
 
Confirmation Email
shall have the meaning set out in clause 3.3;
 
Content
means content in all formats submitted by Account Holder(s) to Discovery using the Services and which includes without limitation, text, audio files, visual files, videos, photos, comments or feedback;
 
Daily Email Limit
means that the Account Holder may send a maximum of 2000 individual emails through their Email Campaigns to Approved Subscribers in any one 24 hour period (or such other figure as solely determined by Discovery and set out on the Website and specified within the Confirmation Email);
 
Effective Date
means the date of the Confirmation Email;
 
Email Campaign(s)
means the Content which is owned by the Account Holder and through the use of the Services creates an email which is sent using the Services to the recipients designated by the Account Holder;
 
Excluded Business
means a business offering goods and services including, pornography, illegal products, gambling, dating and escort services, adult items, sex establishments, pharmaceutical and nutritional and herbal products, mortgages, loans, debt services, get rich schemes, home working, email and other marketing, email marketeers and associated services.
 
Hourly Email Limit
means that the Account Holder may send a maximum of 240 individual emails through their Email Campaigns to Approved Subscribers in any one 60 minute period;
 
Initial Subscription Term
means one year from Effective Date;
 
Monthly Email Limit
means that the Account Holder may send a maximum of 10,000 individual emails through their Email Campaigns to Approved Subscribers in any one calendar month (or such other figure as solely determined by Discovery and set out on the Website and specified within the Confirmation Email);
 
Normal Business Hours
means from 9:00am to 5:00pm on Monday to Friday, except for Bank Holidays in England and Wales;
 
Registration Form
means the online registration form for use of the Services and available on the Website;
 
Renewal Period
shall have the meaning set out in clause 4.1;
 
Subscription
means your use, order and payment for the Services, for the Subscription Term, as confirmed within the Confirmation Email and extended and amended from time to time;
 
Services
means the provision to the Account Holder by Discovery of access and use of certain features and functionalities of the Website which enable the Account Holder to send Email Campaigns to large scale mailing lists of Approved Subscribers;
 
Subscription Fee
means the fees payable by the Account Holder to Discovery for the Services, as set out on the Website and more specifically confirmed in the Confirmation Email;
 
Subscription Term
shall have the meaning set out in clause 4.1;
 
Technical Support
means support offered by Discovery to Account Holders via email and/or telephone during Normal Business Hours to assist in the Account Holder’s use of the Services;
 
Technical Support Credits
means units of Technical Support which are purchased from Discovery which is allocated to the Account Holder which can be exchanged for Technical Support as further set out in clause 6.6;
 
Weekly Email Limit
means that the Account Holder may send a maximum of 5000 individual emails through their Email Campaigns to Approved Subscribers in any one 7 day consecutive period starting from the effective date (or such other figure as solely determined by Discovery and set out on the Website and specified within the Confirmation Email).
 
Virus
means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
 
Website
means the website operated from the domain name www.discoveryemailmarketing.co.uk together with any associated domains and sub-domains owned and managed by Discovery Design Limited.
 
2. THE WEBSITE
The Website is owned and managed by Discovery Design Limited a company registered in England and Wales with the company registration number 03556279 and having its registered address at Bank Chambers, 5 Kensington, Cockton Hill Road, Bishop Auckland, County Durham, DL14 6HX.
 
3. ACCOUNT HOLDER STATUS
3.1. By using the Services as an Account Holder you warrant that:
3.1.1.You are legally capable of entering into binding contracts;
3.1.2. In the case of individuals, you are at least 18 years old; and
3.1.3.You will be not using the Services in pursuance of an Excluded Business.
3.2. In order to use the Account Holder Services you shall be required to register with Discovery by completing the online registration form which is available on the Website (“Registration Form”). Discovery may conduct verification and security procedures in respect of the information you provide in your registration, and you hereby consent to Discovery undertaking such activities.
3.3.Discovery shall send you a confirmation email to confirm your registration and username as an Account Holder to the Website (“Confirmation Email”). You agree to keep such information, including your username and password, confidential and secure.
 
4. COMMENCEMENT AND TERM OF THE CONTRACT BETWEEN ACCOUNT HOLDER AND DISCOVERY
4.1. Your contract with Discovery shall commence on the date of the Confirmation Email (the
“Effective Date”) and continue for one calendar year (the “Subscription Term”).
4.2. Your contract with Discovery shall consist of the Registration Form together with these Terms (as amended by Discovery from time to time) (the “Agreement”).
 
5. TERMINATION OF THE CONTRACT BETWEEN ACCOUNT HOLDER AND DISCOVERY
5.1. The Agreement shall automatically terminate on the one year anniversary of the Effective Date. 
5.2. Discovery may terminate this Agreement at any time upon no less than 30 days written notice.
5.3. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement immediately upon written notice without liability to the other if:
5.3.1. The other party commits a material breach of any of the terms of this Agreement and (if such breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;
5.3.2. An order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
5.3.3.An order is made for the appointment of an administrator to manage the affairs, business, and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of the other party, or a notice of intention to appoint an administrator is given to the other party or its directors; or
5.3.4. A receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if nay person takes possession of or sells the other party’s assets; or
5.3.5. The other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
5.3.6.The other party ceases, or threatens or cease, to trade; or
5.3.7. The other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
5.4. On termination of this Agreement for any reason:
5.4.1.The Account Holder’s licence to use the Website, as granted at clause 11.2, shall immediately terminate;
5.4.2.The Account Holder shall (where appropriate) return and make no further use of the Website and any other equipment, property, documentation and other items (and all copies of them) belonging to Discovery, save as granted in the licence at clause 11.2;
5.4.3.Discovery may destroy or otherwise dispose of any of the Account Holder Content in its possession immediately upon the effective date of the termination of this Agreement; 
5.4.4. In the even of a termination pursuant to clauses 5.3.2 to 5.3.7, Discovery shall, within 60 days of the termination date, refund to the Account Holder on a pro-rata basis, using the details provided to Discovery, such Subscription Fees which have been paid in advance and relate to the period post-termination, save that in all cases Discovery shall retain 20% of these pro-rata unused Subscription Fees or £50 whichever is the higher. 
5.4.5. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
 
6. DISCOVERY’S SERVICES AND OBLIGATIONS TO ACCOUNT HOLDER
6.1. Discovery shall, during the Subscription Term, provide the Services to the Account Holder on and subject to the terms of this Agreement.
6.2. Discovery shall provide the Services via the Website and shall use its own servers to maintain and host the Services and the Content.
6.3. Discovery may dispatch the Email Campaigns in one or more batches as it reasonably determines necessary to help ensure that the Email Campaigns are not deemed to be spam, or, would or would be likely to cause damage to the email server.
6.4. Discovery shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance performed outside Normal Business Hours and of which Discovery shall use commercially reasonable endeavours to notify you giving no less than 6 hours notice on the Website. From time to time the Website may experience unexpected technical difficulties and/or failure, in such circumstances, Technical Support may be temporarily unavailable, Discovery shall not be obligated to notify you, but, shall use its commercially reasonable endeavours to return the Website to normal service. 
6.5. Discovery will, as part of the Account Holder Services, provide the Account Holder with a specified number of Technical Support Credits as detailed in the Confirmation Email.
6.6. Technical Support Credits are redeemable solely by the named Account Holder for Technical Support. Discovery’s standard Technical Support will be delivered during Normal Business Hours. Discovery may amend the Technical Support in its sole and absolute discretion from time to time.
6.7 Technical Support Credits are non-refundable, however, in the event that you have unused Technical Support Credits at the end of the Subscription Term, you may at the absolute discretion of Discovery use such Technical Support Credits in the subsequent Subscription Term. 
6.8. Discovery undertakes that the Services will be performed substantially in accordance with the description of services set out on the Website and in the Registration Form and with reasonable skill and care.
6.9. The obligation set out at 6.8 shall not apply to the extent that any non-conformance is caused by use of the Services by the Account Holder in a manner which is contrary to Discovery’s instructions or modification or alteration of the Services by any party other than Discovery or its authorised contractor(s) or agent(s).
6.10.Discovery:
6.10.1.Does not warrant that the Account Holder’s use of the Services will be uninterrupted or error-free; nor that the Services, Website and/or the information obtained by the Account Holder through the Services will meet the Account Holder’s requirements;
6.10.2.Is not responsible for any delays, delivery failures, or any other loss or damage arising from the transfer of data over communications networks and facilities, including the internet, and the Account Holder acknowledges that the Services and Website may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.10.3. Does not include back-ups as part of the Services provided to Account Holders and does not guarantee to provide back-ups in the event of any loss or damage to any Account Holder information, content of and/or Email Campaigns, database of email addresses and Groups or copies of their Email Campaigns, which is the sole responsibility of the Account Holder as outlined in 7.6.8. and 7.6.9.
6.11.Discovery may retain on its servers a copy of all Account Holder Content and/or Email Campaigns for a period of up to one year, save for as set out in clause 5.4.3.
6.12 Discovery may contact the Account Holder from time to time using the private message facility within the Account Holder user area and/or by email, such messages shall be in relation to Discovery’s services, including but not limited to the Account Holder’s Email Campaigns, Technical Support Credits, imminent end of the Subscription Term and/or special offers.
6.13.This Agreement shall not prevent Discovery from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
 
7. ACCOUNT HOLDER’S OBLIGATIONS
7.1. The Account Holder shall use the Services in accordance with the Agreement.
7.2. The Account Holder shall use the Services in accordance with any given limits and restrictions by Discovery, including but not limited to:
7.2.1.The Account Holder shall maintain a mailing list of no more than the Approved Subscriber Limit;
7.2.2.The Account Holder shall ensure that its Email Campaign(s) adhere to the Hourly, Daily,
Weekly and Annual Email Limits; and
7.2.3.The Account Holder shall ensure that Email Campaign(s) adhere to the maximum permissible file format upload as described on the Website.  
7.3. The Account Holder shall not attempt to, or, access the Discovery proprietary software through which the Services are offered save for as expressly permitted in this Agreement.
7.4. The Account Holder shall notify and keep notified Discovery of its Business Details. 
7.5. The Account Holder acknowledges and agrees that Discovery will automatically include the Business Details in each Email Campaign. Attempts to amend Business Details in excess of one (1) time during the Subscription Term shall be subject to verification and approval by Discovery, such changes must be notified to Discovery through Technical Support.  
7.6. The Account Holder shall:
7.6.1. Provide Discovery with any and all necessary co-operation in relation to this Agreement;
7.6.2. Provide Discovery with necessary access to such information as may be required by Discovery in order to render the Services;
7.6.3.Comply with all applicable laws and regulations with respect to its activities under this Agreement, including for the avoidance of doubt, any applicable rules, terms and conditions, regulations, of internet service providers, independent or governmental marketing and/or internet regulatory or advisory bodies relating to spam, Viruses, hacking, and/or blacklisting; 
7.6.4.Carry out all other Account Holder responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Account Holder’s provision of such assistance as agreed by the parties, Discovery may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.6.5.Obtain and shall maintain all necessary licences, consents and permission necessary for Discovery, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
7.6.6.Ensure that its network and systems comply with the relevant specifications provided by Discovery from time to time; and
7.6.7.Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Discovery’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Account Holder’s network connections or telecommunications links or caused by the internet.
7.6.8. Be solely and exclusively responsible for keeping its own back-ups on its own PCs, CDs, DVDs and external back-up devices of its Account Holder information, content of and/or Email Campaigns and database of email addresses and Groups and to always send itself copies of its Email Campaigns and to also keep back-ups of these;
7.6.9. Be solely and exclusively responsible for the remedy in the event of any loss or damage to Account Holder information, content of and/or Email Campaigns, database of email addresses and Groups or copies of its Email Campaigns within the Discovery Email Marketing System for whatsoever reason, by manually restoring at the sole expense of the Account Holder such information as can be restored to the system, specifically Account Holder information and its database of email addresses and Groups, without any liability whatsoever by Discovery arising from any such loss or damage.
7.7. The Account Holder shall not:
7.7.1.Attempt to remove or modify its Business Details from any Email Campaign.
7.7.2.at any time use the Services and/or the Website with the purpose of impersonating another Account Holder or legal or natural person, including for the avoidance of doubt making it appear that Content is from or endorsed by another legal or natural person;
7.7.3.use third party owned or developed email address lists in connection with the Services;
7.7.4.do anything which shall or is likely to impair, interfere with, damage, or cause harm or distress to any persons using the Services and/or the Website or in respect of the network, including, without limitation, the sending of Email Campaigns to any person who has previously unsubscribed from the Account Holder’s mailing list or from which email address the Account Holder has previously received a non-delivery permanent failure message; 
7.7.5.do anything that shall or is likely to infringe any intellectual property rights or other proprietary rights of any third parties;
7.7.6.abuse or misuse the Services and the Website including but not limited to posting or sending Content which contains Viruses or other programmes that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
7.7.7. access Content belonging to other Account Holders or other material through Discovery’s servers by means of any robot, spider, scraper or other technical means,
the above list is not exhaustive. Discovery reserves the right to temporarily or permanently remove Content or Email Campaign(s) or to suspend or terminate (with or without notice) the account of any Account Holder who in our sole judgment is in breach of the terms and conditions of the Agreement.
7.8. The Account Holder shall ensure that all Content submitted to the Email Campaign(s) by the Account Holder:
7.8.1. complies with all applicable laws and regulations with respect to its activities under this Agreement, including for the avoidance of doubt, any applicable rules, terms and conditions, regulations, of internet service providers, independent or governmental marketing and/or internet regulatory or advisory bodies relating to spam, Viruses, hacking, and/or blacklisting; 
7.8.2. does not infringe any intellectual property rights or other proprietary rights of any third party;
7.8.3. is not reasonably deemed to be offensive, illegal, inappropriate or in any way, for example by:
7.8.3.1. promoting racism, bigotry, hatred or physical harm of any kind against any group or individual;
7.8.3.2. harassing or advocating harassment of another person;
7.8.3.3. displaying pornographic or sexually explicit material;
7.8.3.4. promoting any conduct that is abusive, threatening, obscene, defamatory or libellous;
7.8.3.5. promoting any illegal activities;
7.8.3.6.providing instructional information about illegal activities, including violating someone else’s privacy or providing or creating computer Viruses;
7.8.3.7.promoting or containing information that you know or believe to be inaccurate, false or misleading;
7.8.3.8.engaging in the promotion of contests, sweepstakes and pyramid schemes, without our prior written consent;
7.8.3.9.exploiting people in a sexual or violent manner;
7.8.3.10.invading or violate any third party’s right to privacy; and/or
7.8.3.11.transmitting “junk mail”, or “chain letters”, “pyramid schemes” or unsolicited bulk e-mailing, messaging or “spamming”.
7.9. Account Holder shall comply with all instructions provided by Discovery from time to time in respect of its use of the Services and the Website.
7.10.Discovery does not monitor or moderate the Services, nor does it vet, review or edit any of the Content submitted for the purposes of publication on the Website to ascertain whether it may result in any liability to any third party. Consequently, Discovery shall not be liable for any of the Content uploaded on the Website.
7.11.Discovery takes any breach of this clause 7 seriously and therefore, reserves the right to take any action that it deems necessary. This may include, without limitation, the removal or deletion of the Content submitted by you, and, suspension or termination of your use of the Services and/or access to the Website. In certain circumstances, Discovery may choose to instigate legal proceedings if it has been brought to Discovery’s notice that there is or may have been illegal use of the Services or the Website. You shall promptly notify Discovery if you are aware of any or any suspected breaches of this clause 7.
 
8. ADDITIONAL SUBSCRIPTIONS
8.1. Subject to clause 8.2, the Account Holder may, from time to time during any
Subscription Term, purchase additional Services such as additional Technical Support Credits as more particularly detailed on the Website, in excess of those set out in the Confirmation Email and Discovery shall create and grant the Account Holder access to such additional Services in accordance with the provisions of this Agreement.
8.2. If the Account Holder wishes to purchase additional Services, the Account Holder shall notify Discovery by purchasing these online via the Account Holder’s user area. Discovery will evaluate such request for additional Services and notify the Account Holder of its approval or disapproval (such approval not to be unreasonably withheld).
 
9. PAYMENT TERMS
9.1. The Account Holder shall pay the Subscription Fees to Discovery for the Services in accordance with this clause 9 and the Confirmation Email.
9.2. Discovery shall provide details of the Services and Subscription Fees on the Website.
9.3. Discovery shall use its reasonable endeavours to maintain the accuracy of the details of the Services and Subscription Fees on the Website. However, inaccuracies may arise from time to time, in the event of such inaccuracy, Discovery shall have the right to rectify the inaccuracy in the Confirmation Email.
9.4. The Account Holder shall provide to Discovery on the Registration Form, valid, up-to-date and complete credit card details or approved purchase order information acceptable to Discovery and any other relevant, valid, up-to-date and complete contact and billing details and, if the Account Holder provides its credit card details to Discovery, the Account Holder hereby authorises Discovery to take payment from such credit card.
9.5. If Discovery has not received payment within 30 days after the due date, and without
prejudice to any other rights and remedies that Discovery may have:
9.5.1 Discovery may, without liability to the Account Holder, disable the Account Holder’s password,
account and access to all or part of the Services and Discovery shall be under no obligation to provide any or all of the Services while the invoice(s) remain unpaid; and
9.5.2. Interest shall accrue on such due amounts at an annual rate equal to 3% over the then
current base lending rate of Barclays Plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment. 
9.6. All amounts and fees stated or referred to in this Agreement are non-cancellable and non-refundable.
9.7. If, at any time whilst using the Services, the Account Holder exceeds the Daily, Weekly or Annual Email Limit as set out above and/or in the Confirmation Email, then Discovery may charge the Account Holder, and if so charged the Account Holder shall pay either, at Discovery’s election, Discovery’s current excess email fees, or the fee for such additional Email Credits as Discovery deems reasonable. 
9.8 If, at any time whilst using the Services, the Account Holder exceeds their Technical Support Credits  then Discovery may charge the Account Holder, and if so charged the Account Holder shall pay the fee for such additional Technical Support Credits as Discovery deems reasonable. 
9.9. Discovery shall be entitled to increase the Subscription Fees, fees payable in respect of any additional Services purchased pursuant to clause 8.
 
10. DATA PROTECTION AND PRIVACY POLICY
Discovery complies with the Data Protection Act 1998 and all other successor legislation and regulation in the performance of its obligations set out under this Agreement. Please click here http://www.discoveryemailmarketing.co.uk/action/cms/privacy/ to view Discovery’s Privacy Policy.
 
11. INTELLECTUAL PROPERTY RIGHTS
11.1.Discovery and its licensors own all rights in the intellectual property rights relating to the Services and the Website. These works are protected by copyright laws and treaties around the world. All such rights are reserved.
11.2.Discovery hereby grants to you, as an Account Holder, a non-exclusive, non-transferable, non-sub-licensable, licence under which you may use the Website to view, alter, comment on, copy, download, print, link to, tweet, email, or otherwise communicate the Content of your Email Campaign(s) solely for the purpose of promoting or marketing your business, subject to the terms of this Agreement. For avoidance of doubt, this licence is granted subject to the obligations of confidentiality set out at clause 12.
11.3.All intellectual property rights relating to the Content submitted by you shall remain with you and/or your licensors.
11.4.You hereby grant to Discovery a perpetual, transferable, sub-licensable licence under which Discovery may use Content created by you for its commercial purposes, such use shall include:
11.4.1.Providing you with the Services;
11.4.2.uploading and publishing your Content; and
11.4.3. promoting and marketing the Services and Website.
 
12.CONFIDENTIALITY
12.1.Each of Discovery or Account Holder may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s
Confidential Information shall not be deemed to include information that:
12.1.1. Is or becomes publicly known other than through any act or omission of the receiving
party;
12.1.2. Was in the other party’s lawful possession before the disclosure;
12.1.3. Is independently developed by the receiving party, which independent development
can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2.Each party shall hold the other’s Confidential Information in confidence and, unless required by law not make the other’s Confidential Information available to any unauthorised third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
12.3.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 or agents in violation of the terms of this Agreement.
12.4.Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5.This clause 12 shall survive termination of this Agreement, however arising.
 
13. WARRANTIES AND LIMITATION OF LIABILITIES
13.1.All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.
13.2.Account Holder acknowledges and agrees that the Account Holder shall have Complete control over its Email Campaigns, including any Content in those spaces, and that Discovery shall have no involvement in or control over the Content and therefore no liability in respect of the Content in the Account Holder’s Email Campaigns.  
13.3.Account Holder hereby releases Discovery from any and all liabilities arising from any dispute or complaint from another Account Holder arising out or in connection with Account Holder Content.
13.4.Account Holder shall indemnify Discovery immediately on demand and without limit against all direct losses, liabilities, costs and expenses (including but not limited to legal costs) arising from or incurred by reason of any breach of the terms of this Agreement by the Account Holder.
13.5.Subject to clause 13.7, the maximum aggregate liability of Discovery arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the total Subscription Fee paid by Account Holder to Discovery for the twelve (12) months preceding the event giving rise to liability.
13.6.In no event shall Discovery be liable for:
13.6.1. any loss of profits, loss of business, loss of anticipated savings, loss of data, business interruption, loss of use, loss of contracts, loss of goodwill and reputation (whether direct or indirect), waste of management time;
13.6.2. any loss caused through the inclusion, transmission, or effect of a Virus; 
13.6.3. any indirect, special or consequential losses of any nature whatsoever;
13.6.4. any dispute arising between the Account Holder and any other Account Holder in connection with the Content and/or Email Campaign(s) whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss.
13.7.For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit the liability of either party for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
13.8.The parties accept that the limitations and exclusions set out in this Agreement and in particular under clause 13 are reasonable having regard to all the circumstances.
13.9.This clause 13 shall survive the termination of this Agreement for whatever cause.
 
14. GENERAL
14.1.If Discovery fails at any time to insist upon strict performance of its obligations under this Agreement, or if it fails to exercise any of the rights or remedies to which it is entitled to under this Agreement, this will not constitute a waiver of any such rights or remedies and shall not relieve you from complying with such obligations.
14.2.A waiver by Discovery of any default shall not constitute a waiver of any subsequent default.
14.3.No waiver by Discovery of any of this Agreement shall be effective unless it is expressly stated to
be a waiver and is communicated to you in writing.
14.4.All notification and communication to Discovery should be sent to the contact details made available to you on the Website.
14.5.If any of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, the remaining conditions and provisions shall continue to be valid to the fullest extent permitted by law.
14.6.This Agreement represents the entire agreement between you and Discovery in respect of your use of the Website and shall supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.7.You acknowledge that in entering into this Agreement, you have not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between us except as expressly set out in this Agreement.
14.8.Discovery shall have no liability to the Account Holder under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14.9. Discovery reserves the right to modify this Agreement at any time. Any changes Discovery may make to this document in the future will be notified and made available to you using the Website.
14.10. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction in the event of any dispute arising out of this Agreement.