Postworks
Terms and Conditions
These Terms and Conditions should be read alongside the latest Postworks Customer Pricing page.
Parties
(1)
Postworks Limited, a company incorporated in England and Wales (company number 09549192) with registered office at Unit 2, 94A Wycliffe Road, Northampton, United Kingdom, NN1 5JF (“us”, “our” or “we”).
(2)
The Customer being the business organisation specified by the Authorised Administrator during the sign up process for the Service on our Website (“you” or “your”),
(each a “party” and together the “parties”).
Background
(A)
Our Services are intended and suitable for business use only. You cannot use them if you are a consumer.
(B)
For your business, you wish to contract with us, as service provider, to provide the Services (as defined below) to support your trade, business, craft, or profession.
(C)
We agree to provide the Services to your business subject to the terms of the Agreement (as defined below), which includes these general terms and conditions (“Conditions”).
It is agreed that:
1 Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1
Definitions:
Agreement: the agreement between us and you for the supply of Services which is covered by the terms and conditions and documentation set out in clause 2.1 below.
Applicable Laws: any and all applicable United Kingdom (UK) laws, regulations, regulatory policy, order, guidance or industry code of practice, and statutes, directives and/or the requirements or notices of any government, regulatory authority or body of competent jurisdiction applicable to the Services or any party to this Agreement.
Anti-Money Laundering Regulations (AMLR): any Applicable Laws specifically intended to prevent, detect, or report criminal activity related to the concealment of unlawfully obtained funds, to the extent relevant to the use of our Services.
Authorised Administrator: a designated and authorised individual within your business appointed by you and approved by us to have IT and administration responsibilities in respect of the Company Software and the Services. The authorised individual will have the authority to bind the business, including (i) providing your business organisation and payment details, (ii) determining your use of the Company Software and Services, (iii) placing Orders and incurring Charges in respect of the Services (iv) authorising Authorised Users for use of the Company Software and the Services, (v) allocating tasks to Authorised Users in respect of the Company Software and the Services, and (vi) authorising Authorised Users to place Orders and incurring Charges in respect of the Services Your Authorised Administrator will also be an Authorised User.
Authorised User: each user who is authorised by the Authorised Administrator to (i) use the Company Software and the Services and (ii) to perform certain tasks as part of the Company Software and the Services which depending on the level of authorisation granted by the Authorised Administrator may include placing Orders and incurring Charges.
Basic File Manipulation: where required, the right granted by you to us to correct a postal address, alter the position of a postal address and add barcodes to enable us to provide the Send Services to you.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the stated prices on our Website that apply to the option of Services you have chosen and in force at the time that your Order is accepted by us or such prices as otherwise agreed between you and us in writing from time to time.
ClearSend®: the tracking service available to certain customers as part of our Send Services as further detailed in clause 4.
Commencement Date: the commencement date for this Agreement which takes immediate effect on the date on which you (through the Authorised Administrator) creates an online account on our Website.
Communication Items: means any item sent in any format by us on your behalf under the relevant Services, including Postal Items, Short Message Service (SMS) messages or Emails.
Company Software: means any software owned by or licensed to us and used by you in connection with the Services, including but not limited to: Postworks Portal™ (which can be accessed via app.postworks.co.uk, PostboxPrint™ (print driver), PostboxServer™, (offline/server software), application programming interface (API) keys, software development kits (SDKs) and integration libraries and/or any serviced email or SMS sending solution.
Conditions: these terms and conditions as amended by us from time to time in accordance with clause 17.12.
Contract Year: means a period of 12 months (or such shorter period if this Agreement is terminated earlier), commencing on the Commencement Date and/or each anniversary of the Commencement Date.
Controller: any person who falls under any definition of “Data Controller” or “controller” under the Data Protection Law.
Cut-Off Time means the time needed for Postal Items to be processed for despatch the same day, which is dependent on your chosen plan as set out on the Website.
Customer Services Agreement: the separate service agreement which may enter with you.
Data File: means the data file used in our Send Services and Email Services which will include comma-separated values (CSV), Excel or Extensible Markup Language (XML) formats or any other format as communicated by us in writing.
Data Processing Particulars: means the particulars set out in Schedule 1 to this Agreement.
Data Protection Law:
(i)
the Data Protection Act 2018 (DPA), the UK General Data Protection Regulation (GDPR), any other applicable law concerning the processing, control, protection and/or privacy relating to Personal Data and any subordinate or related legislation;
(ii)
any replacement to, addition to, or amendment of, any of the foregoing including any national laws or regulations constituting a replacement or successor data protection regime to that governed by GDPR; and
(iii)
any other applicable laws concerning the processing, control, protection and/or privacy relating to Personal Data which may come into force from time to time.
Data Subject: a living individual to whom the Personal Data relates and is processed under the Services.
Delivery Partner: means our chosen supplier to sort and deliver Postal Items under the Agreement.
Digital Reply Envelope (DRE): has the meaning set out in clause 4.9 below.
DPA: means the Data Protection Act 2018 as amended or replaced by any successor legislation from time to time.
Email Services: the email communication services which we agree to provide to you in respect of each Order we accept. These include populating a provided email template and/or a Portable Document Format (PDF) file for email attachment, and emailing the document(s) to the intended recipient using the email address you provide us with. Delivery of emails will be attempted using our chosen email service provider during the term of the Agreement.
Fastrack™ Service: has the meaning set out in clause 4.3 below.
GDPR: UK General Data Protection Regulation as defined within section 3(10) of the DPA.
Gold Item: a Postal Item which is not a Red Item or a Green Item.
Green Item: a Postal Item where the physical item contains value such as a passport, driving licence, certificate, cheque or cash.
Identification, Anti-Money Laundering (AML) and Know Your Customer (KYC) Verification Checks: processes used to confirm client identities, prevent money laundering, and ensure compliance with legal and regulatory requirements.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Megapak Postal Item: has the meaning set out in clause 4.5.1 below.
Non-Geographic Postcode: a postcode that does not identify a specific location but instead relates to a Post Office box or other assigned code or reference used for a specific purpose.
Notification: a notification from us to you regarding the Services either through (i) the Company Software (including any failure reports or other reports accessible via the Company Software), (ii) any alternative notification tools or software or (iii) any other means we may use to communicate with you from time to time.
Order: your instruction via the Company Software for us to fulfil the Services for you, which includes:
(i) in relation to the Send Services (including Fastrack™ Service), Email Services, SMS Services, the creation, uploading or transmission of a document or data from you, (in the specified format which includes PDFs, DOC, DOCX and data files) to your account by the Authorised Administrator or an Authorised User (as approved for the task by the Authorised Administrator) for the relevant Service; or
(ii) in relation to the Receive Services or Registered Office Services, an instruction from you on the Company Software by the Authorised Administrator or an Authorised User (where granted sufficient authority by the Authorised Administrator) to provide the relevant Service including for any Communication Items received to your Post Office (PO) Box or Suite Address.
Page Layout Guide: the specified guidance and instructions (contained in the link provided in clause 2.1 below) that you must follow and fully comply with, to meet our requirements for the layout format of your Postal Item.
Payment in Advance: has the meaning set out in clause 11.7 below.
Payment in Arrears: has the meaning set out in clause 11.10 below.
PECR: means the Privacy and Electronic Communications Regulations 2002 (Statutory Instrument (SI) 2003 No. 2426) as amended.
Personal Data: any information which falls within the definition of “personal data” under any Data Protection Law.
Postal Items: means, the items of post we process for you in relation to Send Services and Receive Services.
Processing, Processed and Process: as defined under any Data Protection Law.
Receive Services: in respect of each Order that we accept, the services we provide to you, for opening, scanning and uploading to the Company Software or forwarding on to you of post items received by us.
Red Item: a Postal Item which contains advertising or marketing material (as determined in our reasonable opinion).
Registered Office Services: in respect of each Order that we accept, the provision of an address by us for you to use as the official registered office for legal and statutory correspondence, and/or an address provided by you for the use of receiving mail, and/or mail handling and forwarding services.
Royal Mail Postcode Address File: the file maintained by Royal Mail containing postal addresses across the United Kingdom for residential and business addresses.
SMS Services: in respect of each Order that we accept, the provision of SMS Services we provide to you and set out under clause 8, which includes the sender identification (ID), being your name, on the SMS message and reporting functionality on the Company Software.
Send Services: in respect of each Order that we accept, the print and post services we provide to you, where you electronically submitted an item for posting (as described on our Website) to us in the agreed format for posting (which means you fully complying with the Page Layout Guide). The print and post services include checking addresses against Royal Mail’s Postcode Address File and amending them where necessary; using the Basic File Manipulation to create a PDF; barcoding your PDFs amongst other things; printing your PDFs; and enveloping them for collection by our chosen Delivery Partner; and the use of any insert including a Digital Reply Envelope (DRE).
Services: collectively, the Send Services, Receive Services, Registered Office Services, Email Services, SMS Services and/or any other services that we may add from time to time, and which we may agree with you to provide in accordance with the Agreement.
Sub Processor: a third-party data processor engaged by us to carry out specific Processing activities on your behalf in relation to your Personal Data under our Services.
Suite Address: means a unique address assigned to you for use with our Receive and Registered Office Services that has been specifically provided by us in writing to you.
Template or Template File: means a letter or email template for use in Send Services or Email Services in the required format or any other format as communicated by us in writing.
Third Party Materials: means any materials and/or Intellectual Property Rights which are owned or licensed by a third party.
Website: https://www.postworks.co.uk/ (or as updated from time to time).
Your Default: has the meaning set out in clause 9.2.
1.2
Interpretation:
1.2.1
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3
A reference to writing or written includes email.
1.2.4
A reference to clause or schedule is a reference to those used and set out under these Conditions.
1.2.5
A reference to you or your in these Conditions and in respect of the Agreement shall include and be read to apply to your Authorised Users and/or your Authorised Administrator, when fulfilling responsibilities, obligations and/or duties on your behalf. As such you will remain responsible and liable for your Authorised Administrator’s and/or any and all of your Authorised Users’ acts, omissions, delays, failures and/or breaches under the Agreement.
2 How the Agreement is formed between you and us
2.1
Our Agreement with you is made up of:
2.1.1
these Conditions;
2.1.2
Royal Mail’s general terms and conditions (https://www.royalmail.com/terms-and-conditions) (“Royal Mail Terms and Conditions”); and
2.1.3
our Page Layout Guide (https://hubs.ly/H0v8tzq0),
which together set out the obligations, responsibilities and duties that each party owes to the other party. The Agreement sets out the entire understanding between you and us in respect of the Services.
2.2
You acknowledge and agree that:
2.2.1
the Services are only intended for business users and that you are entering into the Agreement in the course of your trade, business, craft, or profession;
2.2.2
each of the documents incorporated under clause 2.1 may be subject to update from time to time (including by us in accordance with clause 17.12), and your continued use of the Services constitutes your acceptance of the most recent and latest version of each such document in force and published from time to time;
2.2.3
these Conditions apply to the Agreement to the entire exclusion of all other terms and conditions that you may seek to impose or incorporate, or have implied by trade, custom, practice or course of dealing;
2.2.4
these Conditions shall take precedence over any other terms and conditions which are incorporated by reference within the Agreement (including the Royal Mail Terms and Conditions) and subject to clause 2.2.5;
2.2.5
in the event we and you specifically and expressly agree binding terms under any:
(a)
Customer Services Agreement (as may separately be entered into between you and us); or
(b)
written variation or supplement to these Conditions or the Agreement (including to any change to the contract duration, revised pricing, termination or notice periods) in accordance with clause 17.12,
and any specific terms under clause 2.2.5(a) and (b) give rise to conflict with any terms under these Conditions or the Agreement, then such specific terms under clause 2.2.5(a) and (b) will take precedent but only in so far as it reasonably overcomes such conflict or uncertainty. Where such conflict still remains, then we and you will each use our commercially reasonable endeavours to agree a written resolution (and variation) in accordance with clause 17.12.
2.3
Your Order constitutes an offer by you to purchase Services in accordance with these Conditions. You will not be able to revoke an Order once submitted, unless the Company Software functionality allows you to do so. Your Order will be accepted by us once we commence the Services to which the Order relates.
2.4
Please read these Conditions carefully and make sure that you understand them, before ordering any Services from us. Please note that before creating an account you will be asked to agree to these Conditions. If you refuse to accept these Conditions you will not be able to place an Order.
2.5
Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate and general idea of the types of services available and described in them (“Promotional Materials”). You acknowledge and accept that such Promotional Materials shall not form part of this Agreement nor have any binding contractual force.
3 Supply of Services – General
3.1
We shall supply the Services to you using reasonable care and skill in accordance with the Agreement.
3.2
We reserve the right to amend our Services from time to time if necessary to comply with Applicable Laws or if the amendment will not materially affect the nature or quality of the Services. We shall notify you in any such event.
3.3
We shall use commercially reasonable endeavours to meet any performance dates and delivery times specified on our Website or agreed to in any Order. You acknowledge and agree that any such dates and times provided shall be estimates only and time shall not be of the essence for performance of the Services.
4 Supply of Send Services
4.1
You will be able to see whether a Postal Item has been accepted via the Company Software. We reserve the right to reject or refuse to accept any Postal Item in accordance with clause 9.
4.2
All Postal Items are to be received from you by the Cut-Off Time if they are to be processed for despatch the same day, except where you have chosen our Fastrack™ Service as detailed in clause 4.3.
4.3
If you have selected our Fastrack™ Service, then Postal Items can be processed for despatch the same day if you have missed the Cut-Off Time, provided your Postal Items are uploaded by you before 4pm on a Business Day. Our Fastrack™ Service is chargeable, and you will be prompted to accept the additional charge for using it during the Order process (“Fastrack™ Service”).
4.4
If you have selected our Merge Postbox, then it is your responsibility to ensure that document Templates will be created by you fully in line with the Page Layout Guide (“Template File”) to ensure that our Company Software is able to access and carry out the required processing of your Templates. We will use these Templates (as named in the Data File) to merge the file data to create a print ready PDF or PDF(s). These print ready PDF or PDFs will then be accessible via our Postworks Portal when placing the relevant Order. You will remain entirely responsible for creating and then checking, testing updating and verifying the accuracy of the Templates you create on a regular basis during the term of the Agreement.
4.5
Each Postal Item may only contain 100 pages (single sided), or 200 pages (if double sided is selected). If an item contains more pages than this, this Postal Item may be processed using our Megapak Postal Item service. You acknowledge and agree that:
4.5.1
our Megapak Postal Items service covers Postal Items that are 101 – 1500 pages (single-sided) or 201 – 3000 pages (if double sided is selected), being a “Megapak Postal Item”. Where your Postal Items exceed the applicable upper limit then your Postal Item will be rejected. Where your Postal Item is rejected, you will receive a Notification that it has been rejected and have the option to rectify and resubmit the Postal Item;
4.5.2
we will automatically select the type of enclosure used for your Postal Item and this will be at our sole discretion; and
4.5.3
we will send Megapak Postal Items using ClearSend® Signature.
You acknowledge that it is your responsibility to check your Notifications (including rejections).
4.6
We shall use a Delivery Partner to deliver all Postal Items. You acknowledge and agree that as soon as we handover or transfer your Postal Items into the custody of our Delivery Partner, our obligations to you shall be fulfilled and we shall cease to have any responsibility or liability to you in respect of the Postal Items.
4.7
Where any Postal Item is lost or materially damaged by the Delivery Partner in transit and you wish to reasonably raise a claim, then at our sole discretion, we may offer reasonable assistance to you in making such claim against the relevant Delivery Partner. Any claim you may wish to make will need to be submitted to us using our Claims Form, between 5 days and 40 days (depending on the delivery service used) after the relevant Postal Item was lost or materially damaged in transit. Should they accept your claim, we will, at our sole discretion, resend the Postal Item free of charge (where possible), or refund the postage element of the cost associated with that Postal Item.
4.8
We will not be responsible for any decision made by the Delivery Partner concerning such claim under clause 4.7. Where the Delivery Partner rejects your claim and you still require a replacement copy of such Postal Item to be delivered, you will place another Order and we will resend such copy of the Postal Item at a further charge, which you will be required to pay us.
4.9
If you have selected our Digital Reply Envelope (“DRE”) service, then Postal Items will be sent out with our business returned response envelope included. You will only use these returned response envelopes when sending items back to us. All your items placed in the returned response envelopes and received by us will be scanned and made available to you via the Company Software subject to clause 4.10 below.
4.10
You will be responsible for ensuring that every Digital Reply Envelope response you send back to us includes any page from the original Send Services Postal Item, to enable us to scan and process such items to make them available to you via your account. If the Digital Reply Envelope response does not include this page from the Send Services Postal Item, you acknowledge and accept that we will then not be able to scan or process the items or make them available to your account.
4.11
If we have made our ClearSend® service available to you, then we will share tracking information with you when we receive it from the Delivery Partner. You acknowledge and agree that we provide such tracking information to you in good faith and entirely on an ‘as is’ basis only. We offer such ‘as is’ information to enable you to track your Postal Items through our Delivery Partner’s network via our ClearSend® service. You accept that we will not be responsible or liable to you in respect of such tracking information or for the completeness, accuracy, reliability and/or availability of it, as it remains subject to whatever is sent by the Delivery Partner.
4.12
If further trackability is required, we can make our ClearSend®Trace or ClearSend®Signature services available to you. You will then be able to select these services from the Postworks’ portal.
4.12.1
ClearSend® Trace will:
(a)
Add tracking to the item;
(b)
Provide you with the tracking number; and
(c)
Provide confirmation when the Postal Item is delivered.
4.12.2
ClearSend® Signature will:
(a)
Add tracking to the item;
(b)
Provide you with the tracking number; and
(c)
Provide confirmation when the Postal Item is delivered and a signature as evidence of delivery.
4.13
We may change our Delivery Partners from time to time. We will notify you two weeks in advance if we decide to make any such change.
5 Supply of Receive Services
5.1
Prior to commencing the supply of the Receive Services, we are required to undertake Identification, AML and KYC Verification Checks.
5.2
We will provide you with a PO Box or Suite Address as part of the Receive Services. It is your responsibility to arrange redirection or update your address for your mail as appropriate. You acknowledge and agree that:
5.2.1
you will not use such address without written permission by us, without completing AML and KYC checks, and;
5.2.2
if you fail to meet any of the provisions of this clause 5, without limiting our other rights or remedies, we shall:
(a)
return any post to the sender and not be held liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay in performing any of our obligations as a result;
(b)
report the incorrect use of our Registered Office address to authorities including His Majesty’s Revenue and Customs (HMRC), Companies House or in some circumstances the National Crime Agency (NCA) without further notice to you should the law require it; and
(c)
be entitled to charge for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
5.2.3
you will cease all use of the PO Box or Suite Address following termination as described in clause 15 below.
5.3
We will open your post on receipt and scan and make it available to you via the Company Software and your account.
5.4
We will be unable to differentiate between private, personal or otherwise confidential post you may receive, and your normal post. You give us authority to open and upload all such Postal Items in accordance with clause 5.3 and to forward on any Postal Items in accordance with clause 5.5.
5.5
We will sort, process and hold original Postal Items you have received under the Receive Service as follows:
5.5.1
Red Items – we will identify the Red Items and shred these on receipt without scanning them;
5.5.2
Gold Items – we will identify the Gold Items and retain these for 60 days only from the date of scan;
5.5.3
Green Items – we will identify the Green Items and scan and send these items promptly to you.
If you require any specific Gold Item to be sent on to you as an original (in paper form), it will be your responsibility to notify in writing us as soon as is practicable and no later than 53 days from the date it was first made available to you in your account. You will need to notify us using the “Request Original” function on the Company Software. We will then forward any such items to the address we have on file for you. All payments will be raised in accordance with clause 11.
5.6
It shall be your responsibility to ensure that the forwarding address we have for you is kept up to date at all times.
5.7
Any post that we may reasonably deem to be marketing material will not be forwarded or scanned. This includes, but is not limited to, magazines, leaflets, flyers and postcards. You acknowledge and agree that we will not be held responsible or liable for deciding (i) not to process or forward such documents or (ii) to destroy these documents.
5.8
Should we receive any parcels or post which cannot be made available via our Company Software, we shall redirect this to the address we keep on file for you, and all costs incurred in such shall be passed to you including a handling fee.
5.9
We will endeavour to ensure that all parcels received are handled with consideration however we cannot guarantee or compensate for Postal Items lost or damaged in transit (except as set out under clause 4.7 above). Under no circumstances shall we be liable for loss of, stolen, lost, damaged, late or otherwise misdirected or mishandled Postal Items. We reserve the right to return or dispose of restricted/excluded Postal Items, or otherwise to pass on to the police or other relevant authorities at our discretion or otherwise where we are required to do so by any Applicable Laws.
6 Supply of Registered Office Services
6.1
Prior to our appointment as your registered office address, we are required to undertake Identification, AML and KYC Verification Checks.
6.1.1
We will require all company and personal details as requested and full transparency. You shall notify us of any material changes to the business or its directors and persons with significant control within 10 Business Days of any change.
6.1.2
Data records relating to AMLR will be held securely for a period of 5 years following the end of the provision of services, at which point they will be securely destroyed unless we are required to retain them for a longer period under Applicable Laws.
6.2
Upon commencement of the Services, we shall provide you with a designated address which must be used on all post to identify your business. Upon receipt of any post to your designated registered office address this shall be treated in the same way as our Receive Services as detailed in clause 5. You acknowledge and agree that:
6.2.1
where any Postal Items are not marked clearly, we reserve the right to open the mail to determine who it is intended for; and
6.2.2
in the event that we are not able to identify who the intended recipient is, we reserve the right to return the mail to the original sender.
6.3
You may only begin to use the designated registered office address upon our confirmation by email of such, and upon termination you must immediately remove all references to such and update through Companies House to a new address. If you do not remove such reference in time, we reserve the right, without prejudice to our other rights and remedies available, to charge you on a daily basis for each day plus a handling fee associated with resolving this matter, including but not limited to notifying Companies House.
6.4
You must only use the designated registered office address for the business name and for the purposes as agreed with us, and shall not use it for Driver and Vehicle Licensing Agency (DVLA) registration, export documentation or as serviced offices or for any other trading names. You acknowledge and accept that we reserve the right in our sole discretion and/or where required to do so under Applicable Laws to notify the relevant authority of such misuse of our Services.
6.5
We reserve the right to charge a fee of £100 for dishonourable visits, including, but not limited to, enforcement visits to your registered office address.
7 Supply of Email Services
7.1
You will be required to (i) upload a Data File or File(s), (ii) a Template File, (iii) an email address in a predefined field on the Company Software for the direct recipient (but excluding email copy recipients or email blind recipients), (iv) a from email address, and (v) an optional reply-to email address (“Email Data”), as directed by us. This Email Data will then be converted by us into the appropriate format(s).
7.2
Where an email address is present within the Email Data, the email body will be sent to that email address.
7.3
Where an email cannot be sent in line with the instructions given in the Email Data, the Customer may choose to:
7.3.1
amend and update the Email Data and resubmit this on the Company Software; or
7.3.2
send a Postal Item instead under our Send Services.
7.4
We reserve the right to delay, throttle or refuse the supply of Email Services to comply with Applicable Laws or in response to high bounce or complaint rates or protect deliverability.
7.5
Notwithstanding the exercise of our commercially reasonable endeavours to deliver the Services, you acknowledge and accept that the performance of our Services will be subject to third party services, such as the provision of broadband and network infrastructure services. As such, we do not warrant or guarantee the delivery of any email or its placement in any particular folder, including the inbox.
8 Supply of SMS Services
8.1
You will be required to upload a CSV/Excel/XML file or file(s) which include a text field specifying the (i) SMS template, (ii) mobile phone number including country code, and (iii) sender ID (“SMS Data”), as directed by us. This SMS Data will then be converted by us into the appropriate format(s).
8.2
For each SMS message, you will be limited to 160 Global System for Mobile Communications (GSM) 03.38 characters or 70 characters if your message contains Unicode or Unicode Transformation Format 8-bit (UTF-8) characters. Where your message exceeds the applicable limit, then where any additional SMS messages are needed to transmit your entire original message, then you will be charged (and be required to pay us) for the initial and each additional SMS message required.
8.3
We reserve the right to delay, throttle or refuse the supply of SMS Services to comply with any Applicable Laws, or in response to high bounce or complaint rates or protect deliverability.
8.4
Notwithstanding the exercise of our commercially reasonable endeavours, to deliver the Services, you acknowledge and accept that the performance of our Services will be subject to third party services, such as the provision of broadband and network infrastructure services. As such we do not warrant or guarantee the delivery of any SMS message.
8.5
SMS Data must include an accurate mobile phone number including a country code. If no country code is provided, we will assume the UK country code (+44). If there is no accurate mobile phone number you may be charged but your Communication Items will not be sent.
8.6
Our Charges for SMS Services are based on a per country basis with such Charges specified on our Website.
8.7
We will not provide SMS Services to the following countries; Cuba, Iran, North Korea, Sudan and Syria, and any other country indicated on the Company Software from time to time. If an SMS message is attempted to be sent to one of these countries, your Communication Items will not be sent but you may still be charged.
8.8
Please note, some countries may not support the Sender ID as defined by you. If an SMS message is attempted to be sent to one of these countries, your Communication Items will not be sent but you may still be charged.
9 Your obligations
9.1
You shall, during the term of the Agreement:
9.1.1
make payment of all due and payable invoices in full before or on the due date;
9.1.2
cooperate with us, acting reasonably and in good faith and in all matters relating to the Services, including by;
(a)
making any technical or Domain Name System (DNS) changes we reasonably require (including Sender Policy Framework (SPF), DomainKeys Identified Mail (DKIM), and Domain-based Message Authentication, Reporting and Conformance (DMARC)) and keeping them in place. Failure to maintain these DNS settings may result in the suspension of the Email Services we provide, until we are satisfied you have made the required changes and will maintain them, and you may be charged for any attempt during this period;
(b)
for Email Services, giving access and permission for us to send emails from your domain;
(c)
for Receive Services, if required, arranging and paying for the redirection of your post to any PO Box or Suite Address we provide, ensuring this redirection is maintained during the Agreement and cancelled immediately when it ends;
(d)
for Receive Services, ensuring the accuracy of any address details you provide to third parties (such as Companies House, letterheads, or websites), and understand that we may refuse Postal Items that are incorrectly addressed or cannot be matched to the address we issued, or which we reasonably consider to be prohibited, dangerous, suspicious or contrary to Applicable Laws; and
(e)
for Receive Services, providing a suitable forwarding address for any original or unopened Postal Items you ask us to send to you. Forwarding will take place once per week using a trackable service and will be chargeable;
9.1.3
providing us with such information and materials (and/or any updates to them) in a timely manner and as we may reasonably require in order to supply the Services. Further you shall ensure that such information shall be complete and accurate in all material respects;
9.1.4
obtaining and maintaining all necessary licences, permissions and consents which may be required for the Services. You will ensure that all such licences, permissions and/or consents shall be in place before the date on which the Services are to start and remain in force for the duration of relevant Services;
9.1.5
complying with all Applicable Laws and shall be responsible for such compliance by your Authorised Users and your Authorised Administrator when any or all of them perform your responsibilities, obligations and/or duties under the Agreement;
9.1.6
ensuring that all Orders, Communication Items, Templates, data lists, recipient lists, and other information provided to us are clear, complete, accurate, and approved before sending or submission to us and that they will comply with the Page Layout Guide and any our requirements as notified to you from time to time under the Agreement;
9.1.7
checking and amending any errors carefully before submitting an Order. This will remain your responsibility. You will not be able to recall Communication Items once processing has started or your designated recall window has passed.
9.1.8
ensuring that all Communication Items contain a correct and accurate address, including phone number, email address or postal address. In particular, you will ensure for Send Services that:
(a)
all Postal Items contain a correct and accurate address, according to the Royal Mail Postcode Address File; and
(b)
all documents will comply with our Page Layout Guide or any other written guidance we provide you;
9.1.9
be responsible for the content of all Communication Items, and ensure that such content you create and provide to us comply with clause 9.1.5;
9.1.10
ensure that you have permission and/or the correct legitimate purposes to use any Personal Data for the purposes of the Services in accordance with clause 9.1.5 above and clause 13 below;
9.1.11
keep all user accounts, login details (including passwords), and API credentials confidential and secure, and notify us promptly of any suspected compromise by you or any of your Authorised Users and/or your Authorised Administrator on your behalf; and
9.1.12
be responsible for ensuring your network infrastructure, systems and broadband are of sufficient standard and resilience to receive and access our Services.
9.2
If our performance of any of our obligations under this Agreement is prevented or delayed by any act. omission or delay by you or failure by you to perform any relevant obligation under this Agreement (“Your Default”) then:
9.2.1
without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us without liability from the performance of any of our obligations in each case to the extent and for the same period that Your Default prevents or delays our performance of, or ability to perform, any of our obligations. You acknowledge and accept that any:
(a)
suspension of Services by us shall not affect or relieve you of your obligation to pay for Services that we have already performed or irreversibly processed in accordance with the terms of the Agreement; and
(b)
where Your Defaults are repeated and/or remain unresolved despite us having restarted the Services following such suspension, then this may result in the termination of your account. Where we do elect to terminate your account and this Agreement for either of these reasons, we will notify you and confirm that it will be with immediate effect. We shall also issue you with a final invoice for all sums then falling due and payable by you in respect of the Services, up and including the date of such termination;
9.2.2
we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Your Default; and
9.2.3
you shall reimburse us promptly and on written demand for all costs or losses sustained or incurred by us under this Agreement arising directly or indirectly from Your Default, together with any and all unpaid invoices for the Services, including those under clause 9.2.1 above.
10 Discretion to refuse items
10.1
You shall comply with prohibitions, restrictions, obligations, duties, responsibilities and/or any specific requirements under all Applicable Laws and as may be prohibited or restricted under the Royal Mail Terms and Conditions in respect of your Communication Items, which you provide to us and require us to open and deal with under the Services.
10.2
We reserve the right to reject any Communication Item or refuse to open any received item that we reasonably consider or reasonably suspect may be in breach of clause 10.1 which shall include:
10.2.1
pornographic images or messaging;
10.2.2
promotion of illegal activities;
10.2.3
religious or political material that is unlawful, extremist, hateful, or reasonably considered harmful;
10.2.4
hate mail or Communication Items deemed to be sent because of hostility or prejudice based on a protected characteristic as defined under Applicable Laws;
10.2.5
any other type of imagery or messaging that we reasonably deem to be offensive to groups or individuals; or
10.2.6
Communication Items containing material developed for the purpose of promoting or carrying out any fraudulent, illegal or criminal activity.
10.3
You will indemnify and keep us indemnified against any loss or damage suffered and/or costs and/or liability incurred (including any fines imposed upon us by a regulator or otherwise under any Applicable Laws) as a result of you being in breach of this clause 10.
10.4
You will indemnify us in respect of all costs, losses, expenses and liabilities which we suffer or incur in connection with our performance of the Services under this Agreement (including taking your instructions and/or processing any Communication Item, or communicating with any recipient of a Communication Item on your behalf), where such costs and losses arise as a result of you not complying with all Applicable Laws.
11 Charges and payment
11.1
The Charges shall be our stated prices in force at the time that your Order is accepted as set out on our Website or the Company Software and as amended by us from time to time in accordance with clause 11.2. If we discover an error in the Charges, we will inform you as soon as possible and give you the option of confirming your Order at the correct price or cancelling it.
11.2
We reserve the right to increase the Charges from time to time and it is your responsibility to check the Charges that will apply to any Order that you place, and to ensure that you accept the then-current Charges when you place that Order. Updated Charges will be displayed on our Website or otherwise notified to you in writing.
11.3
Once you have placed an Order, we reserve the right to change the postage class to 1st Class where an item has been addressed to a Non-Geographic Postcode.
11.4
Once you have placed an Order, we reserve the right to apply a surcharge for Postal Items that do not contain a correct and accurate address, according to the Royal Mail Postcode Address File. The surcharge shall be our stated prices in force at the time that your Order is accepted as set out on our Website or within a Customer Services Agreement and as amended by us from time to time.
11.5
A promotional credit may be applied to your account at our sole discretion. This promotional credit is non-refundable, non-exchangeable and has no cash value. Where the promotional credit has not been spent within the first 30 calendar days then we reserve the right to remove it after 30 calendar days.
11.6
We may offer you one of two payments options for our Services – Payment in Advance in accordance with clause 11.7 or a Payment in Arrears in accordance with clause 11.10.
11.7
Payment in Advance. Where we have agreed with you for Payment in Advance, you will pay us in respect of any Services which you order from us on or before the date on which you order the Services. If you choose to do so, you may make a lump sum advance payment in respect of a volume of Services for which you intend to place an order in the future (with that lump sum to be allocated against Services which you order from us from time to time) being “Payment in Advance”.
11.8
Where you have made Payment in Advance:
11.8.1
we will only process your Order for Send Services, Email Services or SMS Services, or you will only be able to view your Postal Items for Receive Services or Registered Office Services, if you have made sufficient Payment in Advance to meet the Charges in full. You hereby irrevocably and unconditionally authorise us to allocate any Payment in Advance against any order for Services which you have placed with us;
11.8.2
if your Agreement with us ends for any reason and any amount of any Payment in Advance has not been allocated against an order for Services which you have placed with us, we will make reasonable efforts to contact you in order to arrange for a refund of that unallocated amount. It remains your responsibility to ensure that we have your correct and up-to-date contact details at all times. We will make arrangements for any refunds to be transferred to you (save that, any associated bank charges may be deducted from the refunded amount transferred) via the original payment method; and
11.8.3
where we are providing Receive Services, you will remain liable to pay the PO Box rental, the monthly fee and any other fixed charges including during any period of suspension and until the end of the agreed term of Receive Services. Any Payment in Advance may be allocated by us to such fees accordingly.
11.9
Where we are obliged to process a refund, we may apply an administrative charge. We will not arrange for a refund in accordance with clause 11.8.2 above, if:
11.9.1
the amount of the unallocated Payment in Advance is equal to or less than the administrative charge; or
11.9.2
we have made reasonable efforts to pay you the money but have been unable to do so, and at least 12 months have passed since we told you of the final amount that we owe you and have tried unsuccessfully to return to you.
11.10
Payment in Arrears. If we assess you are eligible, we may allow you to pay for the Services after we have provided them to you by means of Direct Debit (being “Payment in Arrears”). We reserve the right to refuse or withdraw the right for you to make Payment in Arrears (and to require Payment in Advance instead) at any time without consultation with or explanation to you.
11.11
Where we have agreed that you can make Payment in Arrears, we shall invoice you weekly in arrears.
11.12
You shall pay each invoice submitted by us under this Agreement:
11.12.1
within 14 days of the date of the invoice by Direct Debit or in accordance with any credit terms agreed by us and confirmed in writing to you; and
11.12.2
in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence.
11.13
All amounts payable by you under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
11.14
If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies under clause 15, we will have the right to suspend our Services and you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause 11.14 will accrue each day at 8% a year above the Bank of England’s base rate from time to time. We will also charge for any costs we incur in attempting to recover any outstanding debt on a full indemnity basis.
11.15
All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12 Intellectual property rights and use of our Company Software
12.1
All Intellectual Property Rights in, or arising out of, or in connection with, the Services and the Company Software (other than Intellectual Property Rights in any materials provided by you) shall be owned by us (or where licensed-in, by our licensor) only. You shall retain ownership of the content of your correspondence or messages (including emails, SMS messages and Postal Items).
12.2
Nothing in these Conditions or under the Agreement shall give you any ownership of any aspect of our Services, Company Software, materials, outputs and/or otherwise or any rights beyond the limited licence expressly set out in this clause 12 or elsewhere in these Conditions.
12.3
The Company Software is provided to you on an “as is” basis and as such we do not provide any warranties that it will work with your IT systems and environments, meet your requirements or be uninterrupted in availability and when providing the Services. It remains your entire responsibility to satisfy yourself that the Company Software will be compatible with all your IT systems and environments and that it meets your needs.
12.4
We grant to you (and your Authorised Users and your Authorised Administrator) a fully paid-up, worldwide, non-exclusive, royalty-free and revocable licence during the term of the Agreement to use the Company Software for the purpose of receiving and using the Services and strictly for your internal business purposes only. You (including your Authorised Users and your Authorised Administrator) shall not sub-license, assign or otherwise transfer the rights granted in this clause 12.4.
12.5
By installing, accessing and/or using any Company Software, you, your Authorised Users and your Authorised Administrator for and on behalf of you (together “Users”) will be subject to, and shall comply with, these Conditions and the Agreement. If you do not agree to this Condition, then you must not install or otherwise access or use the Company Software.
12.6
The licences we grant to the Users to permit the installation, access and/or use any Company Software shall be subject to the following conditions during the term of the Agreement:
12.6.1
the licences shall be personal to you and granted on a per-company or individual organisation basis only. As such, the licences shall not extend to any third-party users including in your parent or subsidiary companies, affiliates, those within your group or any joint venture arrangement, or to your partners or otherwise. They will each need to sign up and pay separately for their own licences;
12.6.2
the number of licences will be limited to the User limits specified on your chosen plan. One licence will be granted to one User on a per user only basis. A licence cannot be shared between one or more Users;
12.6.3
all Users shall be bound by these Conditions and the Agreement and as such each and every User who installs, accesses and uses the Company Software shall do in accordance with these Conditions and the Agreement;
12.6.4
all Users shall follow and comply with your internal security policies and shall take all commercially reasonable steps to protect access to the Company Software, including not sharing login details, using strong passwords, removing access for leavers (via your Authorised Administrator) and keeping local systems secure. You shall remain responsible for all activities carried out by each User through the Company Software and/or in connection with the Agreement, whether such activity is authorised or unauthorised. This will apply equally to any acts, omissions and/or failures by Users which results in your non-compliance with Applicable Laws and/or non-performance of your required obligations, responsibilities and/or duties under the Agreement;
12.6.5
API keys shall only be available where specified on your chosen plan (as defined on our Website). Subject always to clause 12.6.1, API keys shall only be used by the Users. You will be responsible for ensuring that all API keys will be kept safely, remain confidential and stored securely, never hard-coded in public repositories, and shall not be transmitted or logged in plain text;
12.6.6
you remain responsible for the dissemination of the API keys we have assigned to you. You understand that mis-sharing or incorrectly disclosing these keys may give a third party unwanted access to your account and any Services enabled for on your account; and
12.6.7
Users may install the print driver on multiple company devices subject to clause 12.6.1, subject to Users not exceeding the specified User limit chosen for your plan.
12.7
You represent, warrant and undertake (as an ongoing obligation during the term of the Agreement) that Users shall not:
12.7.1
reverse-engineer, decompile, disassemble, extract source code, copy or modify any Company Software;
12.7.2
resell, redistribute or provide the Company Software to third parties;
12.7.3
bypass technical protections or security controls;
12.7.4
impersonate or hold themselves out as us or remove any of our branding or interfere with or seek to licence out our Intellectual Property Rights (including in our Company Software) or attempt to white-label the Company Software except where we have given written consent to do so under separate contractual terms;
12.7.5
use the API keys in a way that generates excessive load, unlawful content or high bounce/complaint rates. You acknowledge that we may throttle API calls where necessary to comply with the law, protect systems, or maintain deliverability.
12.8
Each User (subject to the User limit in your plan) will be given their own separate login to the Company Software on a one log in per user basis only. A User shall not be permitted to share or disclose its login details with any other User. Log-in details remain confidential at all times.
12.9
Your Authorised Administrator will be given additional authority, permissions and responsibilities for and on your behalf, including providing us with any instructions needed or liaising with us to action certain things we may require to enable us to deliver the Services to you. You shall notify us immediately in writing, where you wish us to revoke, transfer (to another User) or reinstate such authority provided to your Authorised Administrator. You and your Authorised Administrator (on your behalf) shall ensure that any Authorised User who leaves your employment has their access to the Company Software removed immediately. You via your Authorised Administrator (on your behalf) will use all commercially reasonable endeavours to do all things necessary to avoid or prevent any unauthorised access to or use of our Company Software. In the event of or where you suspect any such unauthorised access or use (whether likely or actual), you will via your Authorised Administrator notify us immediately. You will via your Authorised Administrator carry out any remedial actions we reasonably require to resolve or remedy such unauthorised access or use.
12.10
You undertake that you (via your Authorised Administrator) will not allow any one login to be used by more than one User (as applicable), as described in clause 12.6, and confirm that you will (via your Authorised Administrator) use all commercially reasonable endeavours to ensure that each User keeps their login details confidential. You (via your Authorised Administrator) will also ensure that any password chosen is strong and secure in accordance with cyber-security best practice. We will be entitled to carry out regular checks to ensure that only permitted users have access to the software. If we discover, or are informed, that login details have been shared, we reserve the right to adjust our Charges accordingly from the date we suspect (acting reasonably) that this has occurred. If such sharing persists, then we also reserve the right to suspend the Services and/or terminate the Agreement (in our sole discretion).
12.11
You (via your Authorised Administrator) will be responsible for ensuring that all Users will not access, store, distribute or transmit any viruses, or any material during the course of using our Company Software, that is or could be considered to:
12.11.1
be unlawful, discriminatory, harmful, threatening, defamatory, obscene, harassing or offensive;
12.11.2
promote illegal activity;
12.11.3
pornographic or depict sexually explicit images;
12.11.4
promote unlawful violence; or
12.11.5
cause or potentially cause damage or injury to any person or property,
and we reserve the right, without liability to us, to suspend access and/or remove any material that breaches the provision of this clause 12.
12.12
You grant us a fully paid-up, non-exclusive, royalty-free, worldwide non-transferable licence to use, copy, modify, manipulate, process. store, print, and pass on to our Delivery Partners any materials provided by you (including Third Party Materials) to us for the term of the Agreement and for the purpose of providing the Services to you.
12.13
You warrant, represent and undertake to us (as a continuing obligation for the term of this Agreement) that none of the materials (including Third Party Materials) you provide to us and which we use in good faith in carrying out the Services will infringe the rights of any third party.
12.14
You shall indemnify us and keep us indemnified (on a full indemnity basis) from and against all and any costs, expenses, liabilities, damages and losses suffered or incurred by us as a result of our use of any materials provided by you (including any Third Party Materials) which infringes the Intellectual Property Rights of a third party.
12.15
Unless otherwise agreed in writing to the contrary, we will have the right to use your company name and logo in our marketing materials, on our Website and for other promotional purposes, and you grant us a fully paid-up, non-exclusive, royalty-free, worldwide, non-transferable licence to do so.
12.16
Where PostboxServer™ or any offline component is installed on an environment managed by you, then you will:
12.16.1
be responsible for securing the environment;
12.16.2
ensure that local data retention complies with all Applicable Laws, these Conditions and the Agreement;
12.16.3
install updates when provided, in a timely and complete manner and accordingly to instructions given; and
12.16.4
maintain anti-virus, patching, and physical security.
12.17
You acknowledge and agree that we shall bear no responsibility for system performance in your self-managed environment. That remains entirely your responsibility. Further, if you do not meet the required security standards, then we reserve the right (in our sole discretion) to reasonably refuse to offer you any support. We may also require audits and/or log reviews to be provided, in the case of any breach by you.
12.18
We may release updates or patches to our Company Software from time to time. All Users will be required to install them when requested to do so and in a timely manner, to ensure that we can provide and you can receive the Services as required. Users shall not be permitted to unduly delay or refuse to install any updates or patches released.
12.19
You will be responsible via your Authorised Administrator to ensure that all Users install all such updates and patches as required and in a timely manner, and that all Users continue to use the latest version of the Company Software then in operation. This is important as older versions of the Company Software may cease to function as required for the Services. Further, we will not guarantee that we will be able to provide support where such updates and patches have not been installed.
12.20
We do not warrant or guarantee that we will be able to provide continued support for any discontinued, outdated, incompatible or unsupported versions of the Company Software. As such, it will remain your responsibility (via your Authorised Administrator) to ensure that all Users will install all such upgrades and patches required and when requested by us to do so. We shall have no responsibility or liability to you for any loss arising for any Users use of such discontinued, outdated, incompatible or unsupported versions of the Company Software.
12.21
We reserve the right to suspend or terminate Users access to the Company Software where:
12.21.1
a User breaches the terms of the Agreement and, in particular, misuses any aspect of the Company Software;
12.21.2
there is a security breach, Intellectual Property Rights infringement or any User’s action gives rise to a regulatory concern under the Applicable Laws and/or where any User fails to provide any reasonable or required information requested by us to alleviate or address any such concerns raised under this clause 12.21;
12.21.3
you fail to pay your invoices by the due date; and
12.21.4
an API or print driver use by a User poses operational or legal risk.
13 Data protection and data processing
13.1
The parties acknowledge and agree that for the purposes of the Data Protection Law, you are the Data Controller and we are the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Law).
13.2
The parties acknowledge and agree that we will process Personal Data on your behalf and under your written instructions in order to provide the Services (the Purpose) only, and that this may include Processing which takes place outside the UK or European Economic Area (EEA) as set out in Schedule 1.
13.3
Both parties shall comply with all applicable requirements of Data Protection Law (you as Data Controller and us as Data Processor) and also with our privacy policy (https://www.postworks.co.uk/privacy-policy/) at all times during the Term of this Agreement. This clause 13 is in addition to, and does not relieve, remove or replace, either party’s obligations under Data Protection Law.
13.4
You shall indemnify and keep us indemnified against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with:
13.4.1
any breach by you of your obligations under this clause 13; or
13.4.2
any breach by us of this clause 13 which arises out of us providing the Services in accordance with your instructions.
13.5
Unless instructed otherwise by you in writing, in providing the Services to you, we shall only Process Personal Data in accordance with the Data Processing Particulars and to the extent strictly necessary for the Purpose and not for any other purpose.
13.6
Without prejudice to the generality of clause 13.1, you will ensure, in accordance with the Data Protection Law, that you have all necessary and appropriate consents and/or a lawful basis and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of the Agreement.
13.7
Without prejudice to the generality of clause 13.1, we shall in connection with the performance by us of our obligations under the Agreement:
13.7.1
Process Personal Data that you provide us only on your documented instructions unless we are otherwise required to do so by any Applicable Laws to which we are subject. In such a case, we shall inform you of that legal requirement before Processing such Personal Data, unless that law prohibits such information, including on important grounds of public interest;
13.7.2
ensure that all our personnel who have access to and/or Process Personal Data shall keep the Personal Data confidential;
13.7.3
taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including (as appropriate):
(a)
the pseudonymisation and encryption of Personal Data;
(b)
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c)
the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
(d)
a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
13.7.4
in assessing the appropriate level of security referred to in clause 13.7.3 of this Agreement, take account in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed;
13.7.5
where we intend to engage a new or replacement Sub Processor, inform you in writing not less than two weeks before the intended change. Where you notify us immediately and no later than three (3) days of being notified of any objection to us using that new Sub Processor, we will cease to provide the Services to you. If you do not object to such notified change within three (3) days of being notified by us, we will continue to perform the Services, including with such Sub Processor engaged, in fulfilment of our obligations under this Agreement;
13.7.6
use all our commercially reasonable endeavours to ensure that our contracts with Sub Processors adopt the same data protection obligations as set out in this Agreement and according to Applicable Laws (including the Data Protection Law), as well as including their implementation of appropriate technical and organisational measures. Where any Sub Processor fails to fulfil its data protection obligations under this Agreement, we shall remain fully responsible for such failure;
13.7.7
shall assist you (at your cost) in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of Processing and the information available to us;
13.7.8
notify you without undue delay on becoming aware of any Personal Data breach by us or our Sub Processor in respect of any Personal Data and provide you with any reasonable assistance you reasonably require for addressing any such breach (at our cost);
13.7.9
at your choice, delete or return all the Personal Data to you after the end of the provision of Services relating to the Processing (or at any point in time whilst such Processing is taking place), and delete existing copies unless any Applicable Laws requires us to retain and store a copy of any specific Personal Data;
13.7.10
make available to you all information necessary to demonstrate compliance with the obligations laid down under the Data Protection Law. You acknowledge and agree that our provision of International Organization for Standardization (ISO) certification and other data protection certifications shall be sufficient to demonstrate compliance, although this does not impact your rights regarding audits and inspections under the Data Protection Law. You acknowledge that any of our reasonable costs attributable to any audit or inspections shall be borne by you; and
13.7.11
in accordance with clause 13.7.1, 13.7.2 and 13.8, immediately inform you if, in our opinion, any written instruction you provide to us as your Data Processor infringes the Data Protection Law or other any other Applicable Laws. We shall not Process such instructions until we have agreed on the appropriate course of action arising from such instructions.
13.8
As the Data Controller, you will be responsible for:
13.8.1
ensuring that, in accordance with the Data Protection Laws, all Personal Data shared by you with us to Process as part of the Services has a lawful basis for doing so and that all Personal Data, including addresses you provide us are up to date, complete and accurate;
13.8.2
providing us with clear and documented instructions, including those contained within Orders, templates, data files, system configuration; and when using the Company Software; and
13.8.3
managing all Data Subject obligations and communication, unless you and we otherwise agreed in writing.
13.9
Our liability to you for any breach by us of our obligations under this clause 13 will be subject to clause 14.3, unless otherwise provided for under Applicable Laws.
14 Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1
Nothing in this Agreement shall limit or exclude either party’s liability for:
14.1.1
death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
14.1.2
fraud or fraudulent misrepresentation; or
14.1.3
any other liability which cannot be limited or excluded by all Applicable Laws.
14.2
Subject to clause 14.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under, or in connection with, the Agreement for:
14.2.1
loss of profits;
14.2.2
loss of sales or business;
14.2.3
loss of agreements or contracts;
14.2.4
loss of anticipated savings;
14.2.5
loss of use or corruption of software, data or information (subject to clause 13);
14.2.6
loss of or damage to goodwill; and
14.2.7
any indirect, special or consequential loss.
14.3
Subject to clause 14.1 our total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement in any Contract Year shall be limited to the lower of £3 million and the amount of the Charges actually paid by you to us in that Contract Year.
14.4
All other conditions or warranties, whether express or implied, including those under Applicable Laws are, to the fullest extent permitted by such under Applicable Laws, excluded from this Agreement.
15 Termination
15.1
Without affecting any other right or remedy available to it, either party may terminate the Agreement for Send Services, Email Services or SMS Services by giving the other party one (1) month’s written notice.
15.2
Without affecting any other right or remedy available to it, either party may terminate the Agreement for Receive Services or Registered Office Services by giving the other party three (3) months’ written notice.
15.3
Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
15.3.1
the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
15.3.2
you fail to comply with reasonable requests for information relating to Anti-Money Laundering Regulations or other regulatory requirements under the relevant Applicable Laws;
15.3.3
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
15.3.4
the other party suspends, or threatens to suspend, or ceases, or threatens to cease, to carry on all or a substantial part of its business; or
15.3.5
the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Agreement (including the payment of outstanding invoices) has been placed in jeopardy.
15.4
Without affecting any other right or remedy available to it, we may terminate the Agreement with immediate effect by giving written notice to you if you fail to pay any amount due under the Agreement on the due date for payment.
15.5
Without affecting any other right or remedy available to us, we may suspend the supply of Services under the Agreement or any other contract between us and you if you fail to pay any amount due under the Agreement on the due date for payment, you become subject to any of the events listed in clause 15.3.2 to clause 15.3.4, or we reasonably believe that you are about to become subject to any of them.
16 Consequences of termination
16.1
On termination of the Agreement:
16.1.1
you shall immediately pay to us all of your unpaid invoices that are due and payable and any accrued interest in accordance with clause 11.14 and, in respect of Services supplied or where a minimum term has yet to expire, but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
16.1.2
we shall, where you have made Payment in Advance, process any refunds in accordance with clause 11.9; and
16.1.3
the licenses we granted to all User to install, access and use the Company Software and any User account shall immediately terminate, and all Users shall be required to immediately cease accessing and using the Company Software and their account. We will de-activate all Users log in credentials at the end of the day of such termination.
16.2
Where you require the ability to have continued access and usage of data or information from the Company Software and our Services following termination of this Agreement, you are responsible for downloading such data or information from the Company Software prior to the date of termination of this Agreement.
16.3
Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages or losses under an indemnity in respect of any breach of the Agreement which existed at or before the date of termination.
16.4
Any provision of the Agreement that expressly, or by implication, is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
16.5
We have no obligation to process nor will be held liable for any Communication Items received after termination.
17 General
17.1
Testing and Improvements. We will sometimes use your templates or Communication Items for internal testing to improve the performance and deliverability of the Services and/or analyse and solve readability, performance and deliverability issues presented by the data submitted by the Customer. We will conduct all of this testing internally within the Company Software. You can opt out of our internal testing by emailing opt-out@postworks.co.uk. However, by opting out you will limit our testing and thereby the improvements we can make to the Services. You acknowledge and agree that any Intellectual Property Rights arising through testing and improvements will be solely owned by us.
17.2
Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
17.3
Assignment and other dealings
17.3.1
We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner with any, or all, of its rights and obligations under the Agreement.
17.3.2
You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Agreement without our prior written consent.
17.4
Confidentiality
17.4.1
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 17.4.2.
17.4.2
Each party may disclose the other party’s confidential information:
(a)
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 17.4; and
(b)
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.4.3
Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
17.5
Entire agreement
17.5.1
The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations including in the Promotion Materials), and understandings between them, whether written or oral, relating to its subject matter.
17.5.2
Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation (including the Promotion Materials), assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
17.6
Waiver
17.6.1
A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
17.6.2
A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.7
Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to, or deletion of, a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
17.8
Notices
17.8.1
Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be sent by email or delivered by hand or by pre-paid 1st Class post or other next Business Day delivery service at the address for that party which is set out in the Agreement;
17.8.2
A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt; or if sent by email or pre-paid 1st Class post or other next working day delivery service, at 9.00am on the second Business Day after it is sent; and
17.8.3
This clause shall not apply to the service of any proceedings or other documents in any legal action.
17.9
Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
17.10
Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with, it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
17.11
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with, the Agreement or its subject matter or formation.
17.12
Changes to the Agreement. We may change the Agreement (including these Conditions) from time to time. This may be necessary, for example, if the Applicable Laws changes, or if we change our business in a way that affects our processes. We will send notice to you (via the Authorised Administrator) of any such changes through the Postworks Portal or email, with the exception of any changes to the Royal Mail Terms and Conditions which take effect automatically without notice. It will remain your responsibility (through the Authorised Administrator) to monitor the Postworks Portal regularly in order to keep up to date (and doing so will, ultimately, be your responsibility). Following our notice to you of any changes to the Agreement, your continued use of the Services constitutes your acceptance of the most recent and latest version of each such document in force and published from time to time.
Schedule 1: Data Processing Particulars in respect of Relevant Personal Data
| Subject matter of the Processing: | Provision of Services to Process Personal Data on your behalf in accordance with this Agreement. |
| Nature: | The nature of the Processing means any operation or set of operations which is performed on Personal Data or sets of Personal Data (whether or not by automated means) such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
| Purpose (s) of Processing and identity of the Controllers: | described at clause 13 of this Agreement. |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
Recipient name Sender name Any Personal Data contained within the Communication Items |
| Period for which Personal Data will be retained: | Subject to clause 13.7 of this Agreement, Personal Data shall be kept by us for 365 days or such other period as may be specified in the monthly plan. |
Sub-Processor and Third Party Processors
We use the following sub-processor for the destruction of physical Postal Items:
| Name of Third Party Processor | Restore Datashred |
| Nature | Collection
Disclosure by transmission Erasure and destruction Restore Datashred receives a locked bin containing the Postal Items. The locked bin is opened in their vehicle on the supplier’s premises where it is cross-cut shredded to an unidentifiable end product. |
| Location | United Kingdom |
| Purpose | Secure destruction of Postal Items that have either been received under our Receive Services, or returned or printed Postal Items that have failed to meet quality control standards under our Send Services. |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
Data subject’s name and address Any Personal Data contained in the contents of the Postal Items. |
| Period for which Personal Data will be retained: | Subject to clause 13.7 of this Agreement Personal Data shall be kept up to 365 days in digital format or 60 days in physical format. |
For collection, recording, organisation, structuring, adaptation, storage, retrieval, use, disclosure by transmission, and erasure and destruction and the delivery of all SMS and Email communications, we use the following third party for processing:
| Name of Third Party Processor | Amazon Web Services (AWS) |
| Nature: | Collection
Recording Structuring and Organising Adaptation or Alteration Use Combination or Alignment Retrieval and Consultation Disclosure by Transmission Storage Restriction Erasure Destruction Hosts of our software, the related data processing takes place on the AWS platform. The Communication Items are transmitted from you to us for the process of address checking, sorting, batching, printing and fulfilling. PDF copies of Communication Items are stored for retrieval by you or us when required. For Email Services and SMS Services, items are sent to the Recipient using AWS. After 365 days Personal Data and the Communication Item is erased. |
| Location | UK and Ireland |
| Purpose | Processing of the Communication Items |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
Data subject’s name and postal address, phone number or email address Any Personal Data contained in the contents of the Communication Items. |
| Period for which Personal Data will be retained: | Subject to clause 13.7 of this Agreement Personal Data shall be kept up to 365 days in digital format or 4 weeks in physical format, or such other period as may be agreed between both parties in writing.
Please note that we may, under select circumstances, retain certain aspects of the Personal Data for longer periods in line with our internal record keeping and reporting procedures. |
For the storage and retrieval of business information:
| Name of Third Party Processor | Google Cloud EMEA Limited |
| Nature: | Collection
Recording Structuring and Organising Adaptation or Alteration Use Combination or Alignment Retrieval and Consultation Disclosure by Transmission Storage Restriction Erasure Destruction Google Cloud EMEA Limited provides cloud-based data warehouse infrastructure via Google BigQuery. Postworks uses this service to store, organise, and analyse operational and transactional data for business intelligence and reporting purposes. Processing activities include combining and querying relevant datasets, generating operational and customer-facing reports, monitoring performance trends, supporting management decision-making, and measuring and improving service delivery performance. Where applicable, this processing also supports the fulfilment of customer reporting obligations, including the provision of data extracts or bespoke reports requested by clients in connection with services provided by us . |
| Location | UK and Ireland |
| Purpose | To store and analyse information for business intelligence, reporting, trend analysis, operational insight and decision-making |
| Categories of Data Subject and the type of Personal Data: | Recipient Name, communication information, address information
Information held within the template name |
| Period for which Personal Data will be retained: | Subject to clause 13.7 of this Agreement Personal Data shall be kept up to 365 days in digital format or such other period as may be agreed between both parties in writing.
After 365 days, the Recipient Field is masked to remove accessible Personal Data. Please note that we may, under select circumstances, retain certain aspects of the Personal Data for longer periods in line with our internal record keeping and reporting procedures or in the event that we are required to by law. |
For the delivery and sorting of all Postal Items:
| Name of Third Party Processor | Whistl (applicable to Send Services only) | Royal Mail |
| Nature: | Recording
Storage Retrieval Use Disclosure by transmission Erasure An image of the front of the envelope is recorded, stored and retrieved to assist with delivery and invoicing queries. Where the video encoding service is used an image of the name and address on the front of an unsorted item, which does not have a complete or correct address, is recorded and transmitted to Whistl third party processors to be read. |
As per the universal service obligation agreement posted on Royal Mail’s website. |
| Location | United Kingdom, Netherlands, The Philippines and Vietnam | |
| Purpose | Reading manually or by sortation machine to sort the mail to the correct geographical location. | |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
Data subject’s name and address as printed/visible on the front of the Postal Item |
|
| Period for which Personal Data will be retained: | The duration of the processing is as follows:
processing for sortation takes less than 2 seconds images of the front of the envelope are stored for 90 days video encoded images are accessed for less than 5 minutes |
For the processing and completion of Anti-Money Laundering Checks for Postworks Receive and Registered Office Services only:
| Name of Third Party Processor | Red Flag Alert |
| Nature: | Contacting and liaising with us to carry out the Identification, AML and KYC Verification Checks.
Access, collection, organisation, storage, hosting and use of the Personal Data. Protecting Personal Data, including restricting, encrypting, and security testing. Returning or erasing Personal Data, including destruction and deletion. |
| Location | United Kingdom |
| Purpose | Process Personal Data provided by us strictly only in accordance with carrying out Anti-Money Laundering and verification checks on behalf of us. |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
Identity data of client Persons of Significant Control (PSCs) Contact information of client PSCs Results from verification checks of client PSCs |
| Period for which Personal Data will be retained: | Personal Data shall be kept up to 5 years following the end of the provision of services in accordance with Applicable Laws and clause 6.1.2. |
