Terms and Conditions
Parties
(1) Postworks Limited, a company incorporated in England and Wales (company number 09549192) with registered offices at Unit 2, 94A Wycliffe Road, Northampton, United Kingdom, NN1 5JF (“us”, “our” or “we”).
(2) The Customer (“you” or “your”).
Background
(A) Our Agreement with you is made up of:
(i) these general terms and conditions (“Conditions”);
(ii) Royal Mail general terms and conditions – https://www.royalmail.com/terms-and-conditions;
(iii) our Website Privacy Policy (https://www.postworks.co.uk/privacy-policy/);
(iv) our Page Layout Guide (https://hubs.ly/H0v8tzq0); and
(v) our End User Licence Agreement,
which together explain our duties to each other and makes up the full understanding between us for the Services we agree to provide to you under this Agreement.
(B) These Conditions shall take precedence over any other terms and conditions incorporated by reference in this Agreement.
(C) Pursuant to and in accordance with the terms of this Agreement, we will provide the Services to business customers only. Our Services are NOT suitable for consumers. For the avoidance of doubt, you are a business customer if you access our Services wholly or mainly for use in connection with your trade, business, craft or profession, and not for your personal use.
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 in accordance with these Conditions.
All Applicable Laws: the laws, regulations and statutes and the requirements 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): UK regulations to prevent, detect, and report financial transactions aimed at concealing illegally obtained funds
Basic File Manipulation: this includes but is not limited to, where required, correcting a postal address, altering the position of a postal address and adding barcodes to enable us to provide the Send Services . By signing up to these Conditions, you are agreeing to us carrying out this process in our performance of the Send Services .
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: The Charges shall be our stated prices in force at the time that your Order is accepted as set out on our Website or within these Terms and Conditions and as amended by us 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 shall be deemed to be that date on which you create an online account on our Website.
Company Software: means any software owned by Postworks and used by the Customer; including but not limited to: Postworks Portal™ (which can be accessed via app.postworks.co.uk, PostboxPrint™ and PostboxServer™).
Conditions: these terms and conditions as amended from time to time.
Controller: any person who falls under any definition of “Data Controller” or “controller” under any Data Protection Law.
“Cut-OffTime” means the time needed for Postal Items to be processed for despatch the same day, which is dependent on your chosen plan (i.e. midday on a Business Day under our Starter plan, 1pm on a Business Day under our Professional plan and 2pm on a Business Day under our Enterprise plan).
Your Default: has the meaning set out in clause 7.4.
Data Processing Particulars: means the particulars set out in Schedule 1 to this Agreement.
Data Protection Law:
(i) the DPA, the GDPR, any other applicable law concerning data protection, privacy or confidentiality 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 data protection, confidentiality or privacy which may come into force from time to time.
Delivery Partner means our chosen supplier to sort and deliver Postal Items
Digital Reply Envelope (DRE): has the meaning set out in clause 4.4
DPA means the Data Protection Act 2018 or any successor legislation.
Fastrack Service: has the meaning set out in clause 4.3.
GDPR: General Data Protection Regulation ((EU) 2016/679).
ICO: the UK Information Commissioner’s Office.
Identification, AML and 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.
Non-Geographic Postcode: a postcode that does not identify a specific location, but instead relates to a Post Office box or other purpose.
Order: your order and instructions (which you will specify at the time that you upload your documents to your Postworks account where applicable) for us to provide the Services in accordance with this Agreement.
Page Layout Guide: the guide and instructions for the layout of your Postal Item as set out in Schedule 2.
Payment in Advance: has the meaning set out in clause 9.6.
Payment in Arrears: has the meaning set out in clause 9.9.
Personal Data: any information which falls within the definition of “personal data” under any Data Protection Law.
Postal Items: means, in relation to Send Services, an item for posting as described on our Website, which is electronically submitted to us by you in an accepted format for posting, and in relation to Receive Services, an item received by us for opening, scanning and uploading or forwarding on to you.
Processing, Processed and Process: as defined under any Data Protection Law.
Submitted Documents: documents uploaded by users for Send Services, including but not limited to, PDFs, DOC, DOCX and data files.
Suite Address: means a unique address assigned to the Customer for use with our Receive and Registered Office Services that has been provided by Postworks in writing to the Customer.
Send Services: the print and post services which we agree to provide to you in respect of each Order we accept which include checking addresses against Royal Mail’s Postcode Address File and amending them where necessary, Basic File Manipulation to include creating a PDF, barcoding your PDFs, printing your PDFs, and enveloping them for collection by our chosen Delivery Partner. The use of any insert including but not limited to a Digital Reply Envelope (DRE) is included in Send Services.
Registered Office Services: the provision of an address used as the official registered office for legal and statutory correspondence, and/or an address provided by the Company for the use of receiving mail, and/or mail handling and forwarding services.
Receive Services: the opening, scanning and uploading to the Company Software of post received by us.
Services: collectively, the Send Services and/or Receive Services and/ or Registered Office Services and such other services which may be agreed between the parties from time to time.
Third Party Materials: means any materials 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).
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.
2 How the Agreement is formed between you and us
2.1 Your Order constitutes an offer by you to purchase Services in accordance with these Conditions. The detail of the Services to be provided will be set out in your Order.
2.2 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 order any Services from us.
2.3 The Agreement for Receive Services and Registered Office Services will be for a minimum term of 1 month commencing from the date of your Order, after which time it will continue on a rolling 1 month basis unless a written notice to terminate is given by either party in accordance with clause 13.
2.4 These Conditions apply to the Agreement to the exclusion of any other terms and conditions that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
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 idea of the Services described in them. They shall not form part of this Agreement or have any contractual force.
3 Supply of Services – General
3.1 We shall supply the Services to you using reasonable care and skill in accordance with this Agreement.
3.2 We reserve the right to amend our Services if necessary to comply with All Applicable Laws or regulatory requirements, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
3.3 We shall use reasonable endeavours to meet any performance dates and delivery times specified on our Website or agreed to in any Order, but any such dates and times 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 for whatever reason as laid out in clause 8.
4.2 All Postal Items are to be received by the Cut-OffTime 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-OffTime, provided they are uploaded before 4pm on a Business Day. Our Fastrack Service is chargeable and you will be prompted to accept the additional charge during the Order process.
4.4 If you have selected our Digital Reply Envelope DRE service, then Postal Items will be sent out with a business response envelope included. Any returned response envelopes received by us will be scanned and made available via the Company Software.
4.5 The Digital Reply Envelope response must include a page from the original Send Services Postal Item for the response to be made available to the Customer’s account. If the Digital Reply Envelope response does not include a page from the Postal Item. This item will not be made available onto the Customer’s account.
4.6 We use a Delivery Partner to deliver all Postal Items. Our obligations to you shall be fulfilled and we shall cease to have liability to you in respect of the Postal Items as soon as we transfer your Postal Items into the custody of our Delivery Partner.
4.7 If we have made our ClearSend® service available to you, then we will share information with you to enable you to track your Postal Items through our Delivery Partner’s network. Please note that the accuracy and availability of the information is subject to that made available by the Delivery Partner and we have no responsibility for this, Postworks cannot be held liable for any data, or the accuracy of data provided by us including but not limited to ClearSend data.
4.8 We may change Delivery Partners from time to time. We will notify you two weeks in advance if we decide to change Delivery Partners.
5 Supply of Receive Services
5.1 Prior to commencing the Supply of 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 Services. It is your responsibility to arrange redirection or update your address for your mail as appropriate.
5.2.1 You agree to not use this address without written permission by us, without completing AML and KYC checks and following termination as described in clause 13.
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 but not limited to HMRC, Companies House or in some circumstances the NCA without further notice to you should the law require and
(c) be entitled to charge for any costs or losses sustained or incurred by us arising directly or indirectly from your default.
5.3 We will open your post on receipt and scan and make it available via the Company Software.
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 5.2 and to forward on any Postal Items in accordance with clause 7.3.
5.5 We hold original Postal Items you have received for 60 days, after which time they will be securely destroyed.
5.6 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.
5.7 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. It shall be your responsibility to ensure that the forwarding address we have is up to date at all times.
5.8 We will endeavour to ensure that all parcels received are handled with consideration however cannot guarantee or compensate for Postal Items lost or damaged in transit. 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 mail at our discretion.
6 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.
6.1.2 Data records relating to AMLR will be held for a period of 5 years following the end of the provision of services.
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.
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.
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.
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 for DVLA registration, export documentation or as serviced offices or for any other trading names.
6.5 We reserve the right to charge a fee of £50 for dishonourable visits, including, but not limited to, enforcement visits to your registered office address.
7 Your obligations
7.1 You shall:
7.1.1 make payment of all outstanding invoices before or on the due date;
7.1.2 cooperate with us in all matters relating to the Services;
7.1.3 provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
7.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
7.1.5 comply with All Applicable Laws.
7.2 In relation to Send Services, you shall:
7.2.1 ensure that your Postal Items contain a correct and accurate address, according to the Royal Mail Postcode Address File;
7.2.2 ensure that your Submitted Documents comply with our Page Layout Guide or any other guidance that has been provided by us in writing;
7.2.3 ensure that the terms of the Order and any information you provide are complete and accurate. Our process allows you to check and amend any errors before submitting your Order to us. You will not be able to recall Postal Items after we start processing your request after your designated recall window has passed;
7.3 In relation to Receive Services, you shall:
7.3.1 be responsible for arranging and paying for the redirection of your post to the PO Box or Suite Address we will provide to you, ensuring this redirection service is renewed throughout the term of the Agreement, and terminating it immediately upon the termination of the Agreement, if Postal Items are to be redirected;
7.3.2 be responsible for ensuring the accuracy of the Suite Address when provided to organisations, including but not limited to Companies House, Customer letterheads, and Customer website, if using the Registered Office Service. We reserve the right to refuse Postal Items which are incorrectly addressed and cannot be matched to the address provided by us.
7.3.3 provide us with a suitable address for forwarding on any post such as original Postal Items that you request, any Postal Items that cannot be scanned and other unopened Postal Items such as parcels or Postal Items we may refuse to open in accordance with clause 8. We will forward any Postal Items once per week using a trackable service and this will be chargeable.
7.4 If our performance of any of our obligations under this Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Your Default”):
7.4.1 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 from the performance of any of our obligations in each case to the extent that Your Default prevents or delays our performance of any of our obligations;
7.4.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause 7.4; and
7.4.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
8 Discretion to refuse items
8.1 You must comply with prohibitions, restrictions or specific requirements in the UK and will procure that your Postal Items and any Postal Items you require us to open comply with All Applicable Laws.
8.2 We reserve the right to reject any Postal Item or refuse to open any received item that we reasonably consider may be in breach of clause 8.1 which, for the avoidance of doubt, shall include:
8.2.1 pornographic images or messaging;
8.2.2 promotion of illegal activities;
8.2.3 some religious or political propaganda;
8.2.4 hate mail or Postal Items deemed to be sent because of hostility or prejudice based on a protected characteristic;
8.2.5 any other type of imagery or messaging that we deem to be offensive to groups or individuals; or
8.2.6 Postal Items containing material developed for the purpose of carrying out any fraudulent or criminal activity.
8.3 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) as a result of you being in breach of this clause 8.
8.4 You will indemnify us in respect of all costs, losses, expenses and liabilities which we suffer or incur and which arise as a result of or in connection with our performance of the Services under this Agreement (including, for the avoidance of doubt, as a result of any Postal Item, or the communication with any recipient of a Postal Item, not complying in all respects with All Applicable Laws), save to the extent that such losses, costs, expenses or liabilities arise as a direct result of our breach of any provision of this Agreement.
9 Charges and payment
9.1 The Charges shall be our stated prices in force at the time that your Order is accepted as set out on our Website and as amended by us from time to time. 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.
9.2 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 (subject to clause 9.3) you accept the then-current Charges when you place that Order.
9.3 Once you have placed an Order, the Charges in respect of the Postal Items referred to in that Order will remain fixed, save that we reserve the right to increase the Charges in respect of any Order, after it has been placed, to reflect any price increases announced by the Royal Mail after your Order was placed and before it has been processed.
9.4 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.
9.5 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 Agreement and as amended by us from time to time.
9.6 A promotional credit may be applied to your account at our discretion. This promotional credit is non-refundable, non-exchangeable and has no cash value. Where the promotional credit has not been spent we reserve the right to remove it after 30 calendar days.
9.7 We may offer you one of two payments options for our Services – Payment in Advance in accordance with clause 9.6 or a Payment in Arrears in accordance with clause 9.9.
9.8 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).
9.9 Where you have made Payment in Advance:
9.9.1 we will only process your Order for Send 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 (and you hereby irrevocably and unconditionally authorise us to allocate any Payment in Advance against any order for Services which you have placed with us);
9.9.2 if your contract 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. If you provide us with your bank account details, we will we make arrangements for any refunds to be transferred to you (save that, we will not be responsible for any associated bank charges);
9.9.3 where we are providing Receive Services, you will remain liable to pay the PO Box rental, the monthly fee and any other fixed charges for the remainder of the term and any Payment in Advance may be allocated to such fees accordingly.
9.10 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 9.7.2 above, if:
9.10.1 the amount of the unallocated Payment in Advance is equal to or less than the administrative charge; or
9.10.2 we have made reasonable efforts to pay you the money but have been unable to do so, and at least 12 months and have passed since we told you of the final amount that we owe you and have tried unsuccessfully to return to you.
9.11 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. 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.
9.12 Where we have agreed that you can make Payment in Arrears, we shall invoice you weekly in arrears.
9.13 You shall pay each invoice submitted by us under this Agreement:
9.13.1 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
9.13.2 in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence.
9.14 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.
9.15 If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies under clause 13, 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 9.13 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.
9.16 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).
10 Intellectual property rights and use of our Company Software
10.1 All Intellectual Property Rights in, or arising out of, or in connection with, the Services and the Company Software software (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
10.2 We grant to you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement for the purpose of receiving and using the Services. You shall not sub-license, assign or otherwise transfer the rights granted in this clause 10.2.
10.3 Each permitted user will be given a separate login to the Company Software. It is your responsibility to ensure that only permitted users access and use the software in accordance with these Terms and Conditions and are accordingly notified of the same. You must ensure that any user who leaves your employment has their access to the software removed immediately. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, our software and, in the event of such unauthorised access or use, must notify us immediately.
10.4 You undertake that you will not allow any one login to be used by more than one permitted user, as described in clause 10.3, and confirm that you will use all reasonable endeavours to ensure that each user keeps their login details confidential. You 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 notified, 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.
10.5 You, and any users, must not access, store, distribute or transmit any viruses, or any material during the course of using our software, that is or could be considered to:
10.5.1 be unlawful, discriminatory, harmful, threatening, defamatory, obscene, harassing or offensive;
10.5.2 facilitate illegal activity;
10.5.3 depict sexually explicit images;
10.5.4 promote unlawful violence; or
10.5.5 cause or potentially cause damage or injury to any person or property
and we reserve the right, without liability to you, to suspend access and/or remove any material that breaches the provision of this clause 10.
10.6 You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you (including Third Party Materials) to us for the term of the Agreement for the purpose of providing the Services to you.
10.7 You shall indemnify us and keep us indemnified from and against all and any reasonable 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).
10.8 Unless otherwise agreed in writing, 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 licence to do so in accordance with clause 10.2.
11 Data protection and data processing
11.1 The parties further acknowledge 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).
11.2 The parties acknowledge and agree that we will process Personal Data in order to provide the Services (the Purpose). For the avoidance of doubt, this may include Data Processing which takes place outside of the EU as set out in Schedule 1.
11.3 Both parties shall comply with all applicable requirements of Data Protection Law at all times during the Term of this Agreement. This clause 11 is in addition to, and does not relieve, remove or replace, either party’s obligations under Data Protection Law.
11.4 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: 11.4.1 any breach by you of your obligations under this clause 11; or
11.4.2 any breach by us of this clause 11 which arises out of us providing the Services in accordance with your instructions.
11.5 Unless instructed otherwise, 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.
11.6 Without prejudice to the generality of clause 11.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Law) to us for the duration and purposes of the Agreement.
11.7 Without prejudice to the generality of clause 11.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under the Agreement:
11.7.1 process that Personal Data only on your documented instructions unless we are required to do so by All Applicable Laws to which we are subject; in such a case, we shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
11.7.2 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
11.7.3 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 inter alia 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.
11.7.4 in assessing the appropriate level of security referred to in clause 11.7.3 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;
11.7.5 where we intend to engage a new Data Processor, inform you in writing not less than two weeks before the intended change. Where you notify us immediately of any objections to that new Data Processor, we will cease to provide the Services. Any Services that commenced three days prior to you being notified of this change may be processed by the new Data Processor. If you do not object to this notified change within three (3) days of being notified, we will continue to perform the Services in fulfilment of our obligations under this Agreement;
11.7.6 where we engage another Data Processor for carrying out specific processing activities on your behalf, the same data protection obligations as set out in this Agreement shall be imposed on that other Processor by way of a contract or other legal act under All Applicable Laws, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR. Where that other Processor fails to fulfil its data protection obligations, we shall remain fully liable to you for the performance of that other Data Processor’s obligations.
11.7.7 taking into account the nature of the processing, (at your cost) assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the data subject’s rights laid down under Data Protection Law including under Chapter III of the GDPR;
11.7.8 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;
11.7.9 notify you without undue delay on becoming aware of any Personal Data Breach in respect of any Personal Data;
11.7.10 at your choice, delete or return all the personal data to you after the end of the provision of Services relating to data processing (or at any point in time whilst such data processing is taking place), and delete existing copies unless All Applicable Law requires storage of the personal data;
11.7.11 make available to you all information necessary to demonstrate compliance with the obligations laid down in the GDPR and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you. For the avoidance of doubt, costs attributable to any such audit shall be borne by you;
11.7.12 with regard to clause 11.7.11 of this Agreement, immediately inform you if, in our opinion, an instruction infringes the GDPR or other applicable data protection provisions.
11.8 For the avoidance of doubt, this Agreement shall constitute documented instructions for the purposes of clause 11.2 in respect of us acting as a Data Processor to you for the Purpose.
12 Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 any other liability which cannot be limited or excluded by All Applicable Law.
12.2 Subject to clause 12.1, 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:
12.2.1 loss of profits;
12.2.2 loss of sales or business;
12.2.3 loss of agreements or contracts;
12.2.4 loss of anticipated savings;
12.2.5 loss of use or corruption of software, data or information (subject to clause 11);
12.2.6 loss of or damage to goodwill; and
12.2.7 any indirect or consequential loss.
12.3 Subject to clause 12.1 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 year shall be limited to the amount of the Charges actually paid by you to us in that year.
12.4 All other conditions or warranties, whether express or implied, including sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
13 Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement for Send Services by giving the other party one (1) month’s written notice.
13.2 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.
13.3 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:
13.3.1 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 15 days of that party being notified in writing to do so;
13.3.2 you fail to comply with reasonable requests for information relating to Anti-Money Laundering or other regulatory requirements;
13.3.3 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;
13.3.4 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
13.3.5 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
13.4 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.
13.5 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 13.3.2 to clause 13.3.4, or we reasonably believe that you are about to become subject to any of them.
14 Consequences of termination
14.1 On termination of the Agreement:
14.1.1 you shall immediately pay to us all of your unpaid invoices and interest 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;
14.1.2 we shall, where you have made Payment in Advance, process any refunds in accordance with clause 9.7.
14.2 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 in respect of any breach of the Agreement which existed at or before the date of termination.
14.3 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.
14.4 Postworks has no obligation to process nor will be held liable for any Postal Items received after termination.
15 General
15.1 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.
15.2 Assignment and other dealings
15.2.1 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.
15.2.2 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.
15.3 Confidentiality
15.3.1 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 15.3.2.
15.3.2 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 15.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
15.4 Entire agreement
15.4.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.4.2 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, 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.
15.5 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.6 Waiver
15.6.1 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.
15.6.2 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.
15.7 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.
15.8 Notices
15.8.1 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 first-class post or other next Business Day delivery service at the address for that party which is set out in the Agreement.
15.8.2 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 first class post or other next working day delivery service, at 9.00am on the second Business Day after it is sent.
15.8.3 This clause shall not apply to the service of any proceedings or other documents in any legal action.
15.9 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.
15.10 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.
15.11 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.
Schedule 1: Data Processing Particulars in respect of Relevant Personal Data
| Subject matter of the Processing: | Provision of Services 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 11.1 of this Agreement. |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
|
| Period for which Personal Data will be retained: | Subject to clause 11.7 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 | Shred-on-Site |
| Nature | Collection
Disclosure by transmission Erasure and destruction Shred-on-Site receive 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:
|
| Period for which Personal Data will be retained: | Subject to clause 11.7 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 we use the following third party for processing:
| Name of Third Party Processor | Amazon Web Services (AWS) |
| Nature: | Collection
Recording Organisation Structuring Adaptation Storage Retrieval Use Disclosure by transmission Erasure and destruction AWS is the chosen host of our software, so the related data processing takes place on the AWS platform. The PDFs of the Postal Items are transmitted from you to us for the process of address checking, sorting, batching, printing, and fulfilling. PDF copies of Postal Items are stored for retrieval by you or us when required. After 365 days, Personal Data and the PDF of the Postal Item are erased. |
| Location | UK and Ireland |
| Purpose | Processing, print, and insertion of the Postal Items |
| Categories of Data Subject and the type of Personal Data: | Personal Data:
|
| Period for which Personal Data will be retained: | Subject to clause 11.7 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. |
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 cannot be machine-read, 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:
|
|
| Period for which Personal Data will be Retained: | The duration of the processing is as follows:
|
For the processing and completion of Anti-Money Laundering Checks for Postworks Receive Services only:
| Name of Third Party Processor | Red Flag Alert |
| Nature: | Contacting and liaising with Postworks to carry out the AML 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 Postworks strictly only in accordance with carrying out Anti-Money Laundering and verification checks on behalf of Postworks. |
| Categories of Data Subject and the Type of Personal Data: | Personal Data:
|
| Period for which Personal Data will be Retained: | Subject to clause 6.1.2 of this Agreement, Personal Data shall be kept up to 5 years following the end of the provision of services. |