RedEye Incorporated Terms and Conditions

The Behavioral Email and Email Marketing Services Agreement is presented below. RedEye Inc. reserves the right to change, modify, add or remove portions of these Terms and Conditions in its sole discretion at any time without prior notice. Please check these Terms and Conditions periodically for any modifications. If you have any questions, pertaining to these terms and conditions you can contact RedEye Inc at usinfo@redeye.com or by calling 1-800-291-1327.

BEHAVIOURAL EMAIL &
EMAIL MARKETING SERVICES AGREEMENT

1 THE SERVICES
1.1 RedEye shall perform the Services in accordance with and subject to the terms and conditions of this Agreement and shall use reasonable endeavors to meet or exceed the Service Levels (if applicable to the Services).
1.2 Unless otherwise agreed in writing, any timescale agreed by the parties for performance of the Services is an estimate only.
2 CLIENT OBLIGATIONS
2.1 The Client shall be responsible for the provision, operation and maintenance:
2.1.1 of the Client Websites; and
2.1.2 the Client’s information technology architecture. In particular the Client shall ensure that such architecture meets or exceeds any minimum specification required by RedEye from time to time and maintains all necessary communication links and sufficient bandwidth as is required to receive and enjoy the full benefit of the Services.
2.2 The Client shall comply with the obligations set out in Schedule 4.
3 FEES AND EXPENSES
3.1 If payment of an invoice is not made in full within 30 days of the due date, and there is no bona fide Disputed Charge, then without prejudice to any other right or remedy available to RedEye, RedEye shall have the right to (at its sole discretion):
3.1.1 suspend performance of the Services until such payment is received in full; or
3.1.2 terminate this Agreement in accordance with clause 9.2.1.
3.2 If the Client disputes the whole or part of an invoice (“Disputed Charge”), it shall notify RedEye in writing within 10 Business Days of receipt of the invoice of the Disputed Charge. If no such notice is received by RedEye within such period the relevant invoice shall be deemed correct and payable in accordance with this clause. Where only part of the invoice is a Disputed Charge, this shall not exclude the Client’s liability to pay any Fees or Expenses which are not part of the Disputed Charge by the due date.
4 DELAY DUE TO CLIENT CAUSE
4.1 If, as a result of any delay, act or omission by the Client (howsoever caused) which is not directly and wholly caused by RedEye or any of their agents (including the provision of any incorrect or inadequate Client Data), RedEye is prevented or delayed from performing any of its obligations under this Agreement (including performance of the Services):
4.1.1 the Client shall immediately advise RedEye as soon as it becomes aware of any developments that may delay or otherwise render it unable to perform a Client Obligation by any such target date;
4.1.2 the time for performance of RedEye’s Obligations will be extended by a reasonable period to reflect the effect of the delay, act or omission by the Client;
4.1.3 RedEye shall not be liable for any failure to meet the Service Levels or failure to perform its obligations under this Agreement consequent upon such delay, act or omissions;
4.1.4 the Client will be responsible for, and assumes the risk of delays resulting from, any issues or problems concerning the Client Data; and
4.1.5 RedEye shall be entitled to charge the Client on a time and materials basis for any additional time spent and materials used by RedEye with respect to any delays or extra work caused by such act or omission of the Client, in addition to the Fees and Expenses payable.
5 INTELLECTUAL PROPERTY
5.1 The Client and RedEye hereby acknowledge that:
5.1.1 the Client Data is the property of the Client and the Client owns all Intellectual Property which may subsist in the Client Data; and
5.1.2 the Client Data may not be used by RedEye for any purpose other than to the extent necessary to perform the Services and its other obligations under this Agreement during the Term.
5.2 Subject always to clause 5.1.1, as between RedEye and the Client all Intellectual Property created in the course of the Services which subsists now or at any time in the future shall without limitation vest in and be the absolute property of RedEye. To the extent that any Intellectual Property created in the course of the Services vests in the Client by operation of law or otherwise, the Client hereby assigns (by way of assignment of present and future rights) without payment all such Intellectual Property to RedEye with full title guarantee.
5.3 The Client acknowledges that all Intellectual Property in the RedEye Property is, and shall remain, the property of RedEye. RedEye grants to Client a revocable, non-exclusive, worldwide licence to access and use the RedEye Property for the purpose of receiving the benefit of the Services during the Term only (the “Permitted Purpose”).
5.4 The Client shall be permitted to make such copies of the Reports and Documents as are necessary for the Permitted Purpose.
5.5 RedEye may delete:
5.5.1 at its discretion and without requiring the Client’s consent, all Raw Data that is at least 3 months old;
5.5.2 at its discretion and without requiring the Client’s consent, all Cookie Data generated by the Tracking Software that is at least 6 months old, where the relevant cookie has not been used to access the relevant Client Website during such period of time; and
5.5.3 save where the parties agree otherwise in writing, all summary data generated by the Reports that is at least 2 years old.
5.6 If the Client requests that specific data is kept for longer than the periods specified in clause 5.5, then the work required to be conducted to store and retain such data will be treated as a technical project and RedEye shall charge the Client for such work accordingly at its then current standard rates.
6 INTELLECTUAL PROPERTY INDEMNITIES
6.1 RedEye shall indemnify the Client against and defend any claim by a third party that the Services and/or the RedEye Property infringes that third party’s intellectual property rights. The Client shall immediately notify RedEye if it becomes aware of such a claim and provide such assistance to RedEye as RedEye may require in the defense or settlement of such claim at RedEye’s expense. RedEye shall have the sole right to conduct the defense of any such claim and all negotiations for settlement.
6.2 If any item of RedEye Property becomes, or in the reasonable opinion of RedEye is likely to become, the subject of an infringement of a third party’s Intellectual Property rights, RedEye may at its option and expense:
6.2.1 procure the right for the Client to continue to use the RedEye Property free from any liability for such infringement;
6.2.2 modify the RedEye Property so as to avoid the infringement; or
6.2.3 replace the infringing RedEye Property with other non-infringing items.
6.3 The Client shall indemnify and keep indemnified on demand RedEye against any loss, damage, expense, cost, liability or claim suffered by RedEye arising from or in connection with the use of the Client Data, Client logo(s) and/or the Client Website in accordance with this Agreement.
7 THIRD PARTY TECHNOLOGY
7.1 The Client acknowledges that RedEye may use Third Party Technology in the provision of the Services.
7.2 RedEye may:
7.2.1 enter into a licence directly with the third party supplier of Third Party Technology, in which event the Client undertakes not to undertake any action or omit to do anything which would cause a breach by RedEye of the terms of such licence; or
7.2.2 require the Client to enter into a licence with the third party supplier of Third Party Technology (“Third Party Licence”), provided that: (i) the Client agrees to (or has agreed as part of the Fees and Expenses to) the relevant licence fee; (ii) the Client shall procure that the Third Party Licence permits the Client to sub-licence the use of the Third Party Technology to RedEye on the same terms as the Client is permitted to use the same; and (iii) the Client sub-licences the use of the Third Party Technology to RedEye on the same terms as the Client is permitted to use the same upon entry into the Third Party Licence.
7.3 The Client warrants, represents and undertakes that the sub-licence of Third Party Technology by the Client to RedEye pursuant to clause 7.2.2 shall not breach the terms of the relevant Third Party Licence and shall indemnify and keep indemnified on demand RedEye against any loss, damage, expense, cost, liability or claim suffered by RedEye arising from or in connection with its use of Third Party Technology pursuant to such a sub-licence.
8 WARRANTIES
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
8.2 RedEye warrants that:
8.2.1 it shall perform the Services using reasonable care and skill and in accordance with good industry practice; and
8.2.2 it shall provide the Client with such information and assistance as the Client shall reasonably request within the scope of the Services during the Term.
8.3 It is the Client’s responsibility to ensure that the Services are suitable for its needs. Except as expressly set forth in this Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law and, in particular, RedEye expressly disclaims any warranties that use of the Services or any part thereof will result in any economic advantage, increase in profits or reduction in costs. RedEye expressly disclaims all warranties that (i) the Services or any part thereof will be error-free, (ii) the Services will operate without interruption or will be compatible with any other software or hardware, or (iii) information and material located or obtained through use of the Services are timely, accurate, relevant or complete. The services will be furnished as-is and except for the warranties expressly set forth in this agreement, there are no warranties, express, implied or statutory, by operation of law or otherwise, regarding or relating to the services or any other materials, goods or services furnished to client hereunder or in connection herewith. RedEye specifically disclaims all implied warranties, including without limitation those of merchantability and fitness for a particular purpose. No representation or other affirmation of fact, including but not limited to statements regarding suitability for use or performance of products, whether made by RedEye employees or otherwise, which is not contained in this agreement, shall be deemed to be a warranty by RedEye for any purpose or give rise to any liability of REdEye whatsoever.
8.4 The Client warrants, represents and undertakes that:
8.4.1 it shall provide RedEye with such information (including the Client Data) and assistance as RedEye shall reasonably request during the Term;
8.4.2 it has all rights and permissions necessary to allow RedEye to use any information provided by the Client to RedEye under this Agreement (including the Client Data) and that such information is materially complete and accurate;
8.4.3 it will comply with all relevant Data Protection Legislation and privacy legislation; and
8.4.4 that it is the legal owner of each Client Website.
9 TERMINATION
9.1 Either party may terminate this Agreement immediately on written notice:
9.1.1 if the other is in material breach of any provisions of this Agreement and, in the case of any such breach capable of remedy, has failed to remedy the breach within 30 days of receipt of written notice to do so; or
9.1.2 if the other takes any action to appoint or suffers the appointment of a receiver, administrator, administrative receiver, trustee or similar officer over it or all or a material part of its revenues and assets, or has a winding-up or administration order made in relation to it (other than for the purposes of solvent reconstruction or amalgamation), or a meeting is convened or a petition presented with a view to any such eventuality, or if anything analogous to such an insolvency event occurs in relation to it under any applicable law.
9.2 RedEye may terminate this Agreement immediately upon providing written notice to the Client where:
9.2.1 the Client fails to make payment of any amount when due under this Agreement, and the same is not remedied within 30 days of the due date;
9.2.2 the Client is receiving ASP email services and RedEye reasonably believes that the Client is or has been within the preceding 12 months, directly or indirectly, a sender of spam or engaged in activities associated or otherwise connected with sending spam;
9.2.3 the Services are being used by, or are intended to be used by, directly or indirectly, the Client to send or undertake activities associated or otherwise connected with, spam; or
9.3 The termination or expiry of this Agreement by either party for any reason shall be without prejudice to the accrued rights and liabilities of the parties on the date of such expiry or termination.
9.4 Notwithstanding any provision of this Agreement to the contrary, the provisions of clauses 2, 3, 5, 7, 9.5, 10, 11, and 17 (inclusive) and any other clauses which expressly or impliedly survive expiry or termination of this Agreement for any reason whatsoever shall survive such termination, and shall continue in full force and effect after expiry or termination.
9.5 Upon termination of this Agreement for whatever reason;
9.5.1 any and all sums payable to RedEye under this Agreement for Services actually performed shall become due forthwith;
9.5.2 both parties shall return or destroy (as requested) the other party’s Confidential Information, materials, documents, data and information (regardless of the format in which such information is held) disclosed or provided to it under this Agreement;
9.5.3 RedEye shall supply within a reasonable period of time, upon request by the Client, the Raw Data in a log file format, provided that RedEye shall charge the Client on a time and materials basis for the supply of such Raw Data. For the avoidance of doubt, RedEye shall be entitled to destroy all data created by it in the performance of the Services; and
9.5.4 RedEye shall delete the Database and take such actions as are within RedEye’s control to cease to collect data from the Tracking Software.
9.6 Neither the Client nor any of its affiliates or group members shall during the Term and for a period of 12 months thereafter solicit the services of any of RedEye’s employees either as principal, agent, employee, independent contractor or in any other form of employment or engagement.
10 LIMITATION OF LIABILITY
10.1 Nothing in this Agreement shall limit the liability of either party for death or personal injury resulting from its negligence or for fraudulent misrepresentation or for any liability which cannot be excluded by law.
10.2 Subject to clause 10.1, neither party shall be liable for any negligence or other tortious loss, any actual or alleged indirect or consequential loss howsoever arising suffered by the other, or for any of the following losses or damage, whether such loss is direct or indirect: loss of revenue, profits or anticipated profits (with the exception of monies owed to by the Client to RedEye under this Agreement), loss of savings, loss of business or opportunity, loss of goodwill or reputation, loss of operating time or loss of use, loss of, damage to or corruption of data, or any sort of economic loss not aforementioned.
10.3 Subject to clause 10.1 and without prejudice to clause 10.2, the aggregate liability of RedEye (including liability for all damages, costs and expenses) with respect to all claims (including connected claims arising from the same event or series of events) arising from or in connection with this Agreement shall be limited to an amount not exceeding the total Fees paid by the Client to RedEye in the first 12 months of the Term.
10.4 Without prejudice to the above, in no event shall RedEye be liable for any losses or damages arising or caused as a result of any third party tools or software used as part of or in the performance of the Services.
11 CONFIDENTIALITY
11.1 Each party shall use the Confidential Information of the other party disclosed to it (by whoever disclosed) only for the proper performance of its duties under this Agreement and shall not without the disclosing party’s written consent disclose or permit the disclosure of the Confidential Information except in confidence for the proper performance of its duties under this Agreement to those of its employees, officers and professional advisers who need to have access to it.
11.2 Each party shall take all reasonable precautions (and at least as great as those it takes to safeguard its own confidential information) to safeguard every part of the Confidential Information.
11.3 The provisions of clause 11.1 shall not apply to Confidential Information that:
11.3.1 the receiving party can prove was know to the receiving party or was in its possession before that information was acquired from the disclosing party;
11.3.2 is in or enters the public domain through no wrongful default of the receiving party, or any person on its behalf;
11.3.3 the receiving party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence; or
11.3.4 is required to be disclosed by any applicable law or by order of any Court of competent jurisdiction of any government body or regulatory body provided that the receiving party shall use all reasonable endeavours to: (i) give the other party as much written notice of the disclosure as it can to enable the other party to seek a protective order or other action protecting such information from disclosure; and (ii) to furnish only that portion of information that it is legally obliged to disclose.
11.4 Within three days of receipt of a request to do so made at any time and in the event this Agreement is terminated, the receiving party shall promptly return or destroy (at the option of the disclosing party) all Confidential Information of the disclosing party.
12 DATA PROTECTION
Each party warrants, represents and undertakes that it is currently in compliance with, and shall continue to comply with, all relevant provisions of applicable law with respect to the processing of data in the performance of its obligations under this Agreement.
13 AGENTS AND SUB-CONTRACTORS
13.1 RedEye shall be entitled to use third party agents and sub-contractors in the course of providing some or all of the Services. RedEye acknowledges that Client may use third party agents, professional advisers and consultants in the course of marketing its business. Each party shall co-operate with such third parties in accordance with any reasonable written instructions provided by the other party from time to time.
13.2 Notwithstanding clause 13.1, each party shall be and remain liable to the other party for compliance with its obligations under this Agreement.
14 NOTICES
14.1 Any notice to be given hereunder shall be delivered by hand or sent by recorded delivery post (or equivalent) to the party to be served at that party’s address appearing in this Agreement or to such other address as that party shall notify in writing to the other party. A notice shall be effective upon receipt and shall be deemed to have been received on the day of delivery.
14.2 Any notice given under this Agreement shall not be validly served if sent by email or text messaging via mobile phone.
15 FORCE MAJEURE
15.1 Neither party shall be liable to the other party for any delay or non-performance of its obligations under this Agreement to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control.
15.2 Such delay or failure such not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for 90 days or more, the party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate this Agreement by giving 14 days written notice of such termination to the other party.
16 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17 GENERAL
17.1 Entire Agreement
17.1.1 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
17.1.2 Each party acknowledges to the other that it has not been induced to enter into this Agreement by nor has it relied upon any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in this Agreement. Accordingly, each of the Parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of this Agreement shall be for breach of contract under the terms of this Agreement. Nothing in this Agreement shall exclude liability for fraud or fraudulent misrepresentation.
17.2 Assignment
The Client may not novate, assign or otherwise transfer (in whole or in part) this Agreement except with the prior written consent of RedEye. RedEye may assign, novate or otherwise dispose of any or all of its rights and obligations under this Agreement.
17.3 Waivers and Remedies
17.3.1 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to and not exclusive of any other rights or remedies under this Agreement or provided by law and may be waived only in writing and specifically.
17.3.2 Delay in exercising, partial exercise or non-exercise of any right under this Agreement is not a waiver of that or any other right nor shall it preclude any further exercise of that right or any other right under this Agreement.
17.4 Severance
If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction, or in any other jurisdiction, of any other provision of this Agreement.
17.5 No Partnership / Agency
Nothing in this Agreement (or any of the arrangements contemplated hereby) is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
17.6 Dispute Resolution
17.6.1 All disputes, questions or differences between the parties arising under or in connection with this Agreement (a “Dispute”) shall be referred to the parties’ respective representatives. The respective representatives shall meet as soon as possible (and in any event within 14 Business Days of the Dispute being notified in writing by one party to the other) and shall use their reasonable endeavours to resolve such Dispute in good faith.
17.6.2 If either party does not wish to continue to use the process set out in clause 17.6.1 to resolve the Dispute it may, upon written notice to the other party, proceed to litigation in accordance with clause 17.7.
17.6.3 Save where otherwise required by law, each party shall keep confidential all discussions and negotiations relating to any Dispute.
17.7 Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the English law and each party hereby irrevocable submits to the exclusive jurisdiction of the English courts.

SCHEDULE 1
INTERPRETATION
1 INTERPRETATION
1.1 In this Agreement, the following words and expressions shall have the following meanings unless the context otherwise requires:
“Behavioral Email Services” means the behavioral email services described as such in Part 1 of Schedule 2;
“Business Day” means Monday to Friday each week, excluding designated UK/US federal holidays;
“Business Hours” means 9.00 a.m. to 5.00 p.m. on a Business Day;
“Client Data” means data (including without limitation Personal Data) concerning the Client’s customers and (if different) users of the Client Websites;
“Client Website” means a website owned by the Client in relation to which RedEye provides the Services;
“Commencement Date” means the date of this Agreement;
“Confidential Information” means all information disclosed by or on behalf of a party (in whatever medium including in written, oral, visual or electronic form) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information and Client Data;
“Configuration Brief” means the written bespoke configuration brief provided by RedEye to the Client regarding the configuration of the Tracking Software on the Client Websites;
“Consultancy Services” means the consultancy services (if any) described as such in Part 1 of Schedule 2;
“Cookie Data” means all Raw Data that allows the identification of an individual device’s use of a Client Website;
“Database” means the database of information (including without limitation, Client Data) generated and managed by RedEye for the purpose of providing the Services;
“Data Interface” means a web-based data interface allowing access to the Database;
“Data Protection Legislation” means the Data Protection Act 1998, the Directive on Privacy and Electronic Communications (2002/58/EC), the EU Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000 and all other applicable law in the UK or EU relating to the processing of personal data and privacy;
“Documents” means the user guides, training materials and other supporting documents supplied by RedEye concerning the Online Tools and the Reports;
“Email Marketing Services” means the email marketing services described as such in Part 1 of Schedule 2;
“Expenses” means such expenses as are incurred by RedEye in accordance with Schedule 3;
“Fees” means the fees set out in Schedule 3;
“Helpdesk Maintenance and Support Services” means the helpdesk maintenance and support services described as such in Part 1 of Schedule 2;
“Intellectual Property” means all inventions, patents, utility models, designs (both registered or unregistered), database rights, copyright and trade marks (both registered and unregistered), together with all rights to the grant of any applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature;
“Online Tools” means the Data Interface and any additional web-based online software tool detailed in Schedule 2;
“Parameter Guide” means the standard parameter guide provided by RedEye to the Client regarding the configuration of the Tracking Software on the Client Websites;
“Personal Data” bears the meaning given in the Data Protection Act 1998;
“Raw Data” means all data generated by the Tracking Software;
“Ready for Service” means installed, configured and functioning in accordance with this Agreement and the Configuration Brief or the Parameter Guide, as applicable;
“RedEye Property” means collectively the Online Tools, the Tracking Software (if any), the Reports, the Configuration Brief (if any), the Parameter Guide (if any), the Documents and the Database;
“Report” means a report (including a ‘Media Mix’ report) available to the Client through the Data Interface;
“Services” means the services set out in Part 1 of Schedule 2 and “Service” shall be construed accordingly;
“Service Levels” means the minimum service availability levels as set out in Schedule 4;
“Term” has the meaning given to it in clause 2.1;
“Third Party Technology” means technology of a third party used in the provision of the Services; and
“Tracking Software” means software in the form of cookies and web-tags.
1.2 In this Agreement, save where the context requires otherwise:
1.2.1 words importing the singular only shall include the plural and vice versa;
1.2.2 words importing the whole shall be treated as including a reference to any part;
1.2.3 reference to this Agreement or to any other document is a reference to this Agreement or to that other document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time as permitted by the provisions of this Agreement; and
1.2.4 reference to any legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept, state of affairs or thing shall in respect of any jurisdiction other than England be deemed to include that which most closely approximates in that jurisdiction to the English legal term.
1.3 Any phrase in this Agreement introduced by the term “include”, “including”, “in particular” or similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.
1.4 Headings used in this Agreement are for reference only and shall not affect its construction or interpretation. Any reference to a clause, sub-clause or schedule shall mean a clause, sub-clause or schedule to this Agreement.

SCHEDULE 2
THE SERVICES, TRAINING AND REPORTS

Part 1

The Services

1 EMAIL MARKETING SERVICES
1.1 In respect of Email Marketing Services, RedEye does not guarantee full inbox placement or deliverability. RedEye shall assist clients in achieving full inbox placement but is not responsible for factors out of its control. RedEye Consultancy Services used to overcome deliverability issues will be chargeable on a day rate basis.
1.2 RedEye shall provide the Client with username and password protected access to the Online Tools and Reports and supply Documents to the Client from time to time, as necessary for the performance of the Services.
2 BEHAVIORAL EMAIL SERVICES
2.1 RedEye shall supply the Client with Tracking Software for use in conjunction with the Client Websites and shall supply the Client with either:
2.1.1 the Configuration Brief, drawn up in consultation with the Client; or
2.1.2 the Parameter Guide.
2.2 Client acknowledges and agrees that it is the Client’s responsibility to ensure that the Tracking Software supplied by RedEye is Ready for Service and remains Ready for Service thereafter.
2.3 Once the Tracking Software is Ready for Service pursuant to clause 2.2 above RedEye shall undertake its standard tests in respect of the Tracking Software and its interaction with the Database.
2.4 If the Client is provided with access to the “LogChecker” Online Tool by RedEye, such tool shall only be used for verification of the Tracking Software and the Client shall not use such Online Tool for any other purpose.

3 SUPPORT AND MAINTENANCE SERVICES
3.1 If the Client suspects that there is a defect in the RedEye Property or in the RedEye information technology architecture (including servers, other hardware and operating system software supporting but excluding the Online Tools, the Tracking Software, the Reports, and the Database) that affects the RedEye Property, Client shall promptly notify the same to RedEye via its named account representative.
3.2 Where a defect is notified to RedEye, or RedEye becomes aware of the same, RedEye shall, at its sole discretion:
3.2.1 in respect of the Online Tools, use reasonable endeavours to rectify such defect by means of:
3.2.1.1 providing a temporary workaround for the Client; and
3.2.1.2 where legally permitted to do so, the addition of a coded patch or fix to the relevant software used by RedEye or the repair or replacement of any relevant hardware (and, in the case of the Tracking Software only, RedEye shall promptly thereafter supply such revised Tracking Software to the Client); or
3.2.1.3 referring the matter to the relevant third party supplier(s)of the relevant software or hardware used by RedEye for resolution in accordance with applicable service levels agreed between RedEye and such third party (and, in the case of the Tracking Software only, RedEye shall promptly following resolution of the defect supply such revised Tracking Software to the Client).
3.2.2 in respect of the Configuration Brief (if any), Parameter Guide (if any) or any Document, at its sole discretion, amend and re-issue the same, or provide a supplementary document detailing the appropriate correction, in each case to the Client.
3.3 In order for the Client to benefit from the Helpdesk Support and Maintenance Services, the Client shall, promptly:
3.3.1 on request, provide RedEye with a documented example of the defect in question;
3.3.2 undertake such tests or acts as RedEye directs to assist in establishing the nature of such defect; and
3.3.3 RedEye shall, in consultation with the Client, use reasonable endeavours to determine the nature of such defect and the urgency with which a remedy is needed, and proceed to implement such remedy in accordance with any relevant agreed timescale, including by provision of telephone advice to the Client.
3.4 It is acknowledged by the Client that Helpdesk Support and Maintenance Services shall not be provided:
3.4.1 in respect of any Client Data, the Tracking Software, the Reports or the Database;
3.4.2 where the Client is in breach of this Agreement;
3.4.3 where any defect is directly or indirectly caused by:
3.4.3.1 any modification, adjustment, or repair to, or neglect, misuse or abuse of or wilful or accidental damage to the Online Tools or Tracking Software by any party other than RedEye, its permitted agents or any party acting in accordance with RedEye’s instructions;
3.4.3.2 any damage to, defect in, failure, fluctuation, intermittent operation, or inadequacy of, or malicious attack or action in respect of, the Client Website;
3.4.3.3 the Client failing to comply with the Configuration Brief or the Parameter Guide, the Documents or any supplementary instructions provided by RedEye;
3.4.3.4 any Force Majeure Event;
3.4.3.5 the Client’s negligence or error; or
3.4.3.6 the Client Data.

SCHEDULE 3
SERVICE LEVELS
1 Red Eye shall ensure that all Client Data is regularly backed-up off-site with the same frequency as that RedEye applies to other data of a similar nature that it holds.
2 The Database will normally be updated by RedEye with relevant data every 24 hours. From time-to-time routine maintenance and circumstances beyond RedEye’s control may extend this period. Where possible the Client will be notified in advance and in any event such routine maintenance will be performed at times which RedEye reasonably considers to least impact the Client.
3 Access to Reports and related data shall be available to the Client:
3.1 on each Business Day the Client will be able to access the data collected in the Database the previous day, by 9am; and
3.2 in most instances the Client will be able to access the Reports outside of Business Hours, however such access is not guaranteed or supported by RedEye.
The Client should notify any failure to access a Report to their account management representative. Provided such notice is given by 4.30pm on a Business Day, RedEye will use reasonable endeavours to either correct the failure or provide an estimate of when it will be resolved within 1 hour.

SCHEDULE 4
CLIENT OBLIGATIONS
1 The Client shall:
1.1 keep any username(s) and password(s) and other security details supplied to the Client secure and confidential and use reasonable endeavours to ensure that its employees and agents do likewise;
1.2 not access all or any part of the Services in order to build a product or service which competes with or duplicates the functionality of the Services or provide the Services (or any part thereof) to any third party;
1.3 ensure that there are in place all necessary licences and permissions needed to allow RedEye and its employees, consultants and sub-contractors to access and use all premises, facilities, computer systems, materials, information and other items as may be appropriate for the performance of the Services in connection with this Agreement;
1.4 not sell, lease, license, sublicense, distribute or otherwise provide the RedEye Property, in whole or in part, to any third party nor reproduce, modify or create derivative works of or from the RedEye Property;
1.5 not attempt to obtain, or assist third parties in obtaining access to the Services or any Third Party Technology other than as permitted under this Agreement. The Client shall use reasonable endeavours to prevent any such unauthorised access and shall notify RedEye promptly of any unauthorised access;
1.6 not defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Online Tools or Tracking Software, including without limitation any such mechanism used to restrict or control the functionality of the Online Tools or Tracking Software;
1.7 not store, distribute or transmit any viruses, or any material through the Services that is menacing, unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination, or any other illegal activities;
1.8 ensure that in the course of the Services it complies with all applicable laws and regulations and industry best practice; and
1.9 provide RedEye with all relevant Client Data in its possession requested by RedEye that is required to populate the Database in whole or in part, in such electronic format(s) as RedEye shall require.