End-User Terms and Conditions
Your attention is particularly drawn to the provisions of clause 7.
1.1 Definitions. In these Conditions, the following definitions apply:
- “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- “Contract” means the contract between Postee and you for the supply of Services in accordance with these conditions.
- “Fees” means the fees payable by you for the supply of the Services in accordance with clause 5.
- “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- “Order” means your order for access to the Services Platform as set out the Specification.
- “Postee” means Postee Limited (CRN: 08445704).
- “Services” means the bulk SMS and/or e-mail communication solutions supplied by Postee to you as set out in the Specification.
- “Services Access Code” means the unique and confidential login details used by you to access the Services Platform.
- “Services Content” means the information and content supplied by you in relation to the Services and which is uploaded to the Services Platform.
- “Services Platform” means the interactive online portal created by Postee through which the Services are provided.
- “Specification” means the description or specification of the Services to be provided as agreed between you and Postee.
- “you” or “your” means the party requesting that Postee provides the Services in accordance with the terms of this Contract and as may be identified in the Specification.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns; and
1.2.3 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of contract
2.1 The Order constitutes an offer by you to purchase access to the Services Platform in accordance with these conditions.
2.2 The Order shall only be deemed to be accepted when Postee issues written acceptance of the Order and Specification at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Postee which is not set out in the Contract or Specification.
2.4 Any samples, drawings, descriptive matter or advertising issued by Postee, and any descriptions or illustrations contained in Postee’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services and their capabilities. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Postee shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
3. Supply of Services
3.1 Postee shall, subject to these Conditions, supply the Services Platform and Service Access Codes to you as soon as reasonably practicable once your Order has been accepted in writing.
3.2 Postee shall have the right to make any changes to the Services Platform or Service Access Codes which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services Platform, and Postee shall notify you in any such event.
3.3 Subject to payment of all Fees, Postee grants to you a personal, non-transferable, non-exclusive right to use the Service Platform to the extent strictly necessary for you to conduct the Services. You acknowledge and agree that the licence granted by this clause 3.3 shall terminate in accordance with the provisions of clause 9.
3.4 You acknowledge that due to the nature of the Services and Services Platform, Postee’s ability to deliver the Services Platform is dependent on the SMS networks and connection to the World Wide Web and, as such, Postee shall not be liable for any delay in performing the Services or providing the Service Platform as a result of any inability to access or connect to such networks.
4. Customer’s obligations
4.1 You shall:
4.1.1 ensure that the Specification is complete and accurate;
4.1.2 be responsible for inputting all data into the Services Platform (including, but not limited to, all telephone numbers and e-mail addresses required for Postee to provide the Services);
4.1.3 ensure that the Service Content is accurate, fit for purpose and not misleading. You acknowledge that Postee is shall not be liable for any costs or losses incurred as a result of the Service Content being inaccurate in any way;
4.1.4 provide such assistance, information or materials as Postee may reasonably require in order to supply the Services Platform to you;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
4.1.6 comply with all legal requirements in respect of the Services including, but not limited to, the Data Protection Act 1998.
4.1.7 keep and maintain all Services Access Code(s) in safe custody and at your own risk. Postee shall not be liable for any unauthorised use of the Services Access Code or the Services Platform at any time;
4.1.8 ensure that any Service Content is clearly identifiable as being a marketing or promotional communication being sent by you and you undertake not to reference Postee or any other party without their prior written consent.
4.2 You agree to indemnify and keep Postee indemnified against all liabilities, losses, damages, claims, costs or expenses incurred or suffered by Postee which arise as a result of any Services Content being alleged as being defamatory, malicious or unlawful or illegal in any way.
4.3 You acknowledges that Postee is under no duty to investigate the completeness, accuracy, legality or sufficiency of any Service Content.
4.4 If Postee’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Default”):
4.4.1 Postee shall, without limiting its other rights or remedies, have the right to suspend performance of the Services or access to the Services Platform until you remedy any Default;
4.4.2 Postee shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Postee’s failure or delay to perform any of its obligations; and
4.4.3 you shall reimburse Postee on written demand for any costs or losses sustained or incurred by Postee arising directly or indirectly from any Default.
5. Fees and payment
5.1 The Fees for the Services shall be notified to you in the Specification.
5.2 Where the Specification identifies that a monthly or recurring Fee shall be charged, you shall pay such amounts in the first Business Day of each calendar month unless otherwise agreed in writing by Postee. All sums invoiced by Postee shall be paid within 30 days of the invoice date.
5.3 Where a non-recurring Fee is stated in the Specification, such Fee shall be paid on delivery of the Services All sums invoiced by Postee shall be paid within 30 days of the invoice date.
5.4 Postee shall be entitled to charge an additional fee for any work undertaken by Postee which is not identified in the Specification. Such work shall be charged at Postee’s then standard hourly rate.
5.5 Postee shall be entitled to charge you for any expenses reasonably incurred in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Postee for the performance of the Services, and for the cost of any materials.
5.6 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Postee to you, you shall, on receipt of a valid VAT invoice from Postee, pay to Postee 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.
5.7 Without limiting any other right or remedy of Postee, if you fail to make any payment due to Postee under the Contract by the due date for payment, Postee shall have the right to charge interest on the overdue amount at the rate of 4%p.a above the then current Bank of England base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.8 You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against Postee in order to justify withholding payment of any such amount in whole or in part. Postee may, without limiting its other rights or remedies, set off any amount owing to it by you against any amount payable by Postee to you.
6. Intellectual property rights and Data Protection
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Services Platform (with the exception of materials provided solely by you) shall be owned by Postee absolutely. In the event that any modifications, alterations or improvements are made to the Service Platform you undertake to assign the same to Postee (without cost) absolutely upon demand.
6.2 You acknowledge that, in respect of any third party Intellectual Property Rights, your use of any such Intellectual Property Rights is conditional on Postee obtaining a written licence from the relevant licensor on such terms as will entitle Postee to license such rights to you.
6.3 All materials supplied by Postee shall remain the exclusive property of Postee.
6.4 You warrant that any Service Content is your original work and does not infringe the Intellectual Property Rights of any third party. You agree to indemnify and keep indemnified Postee against any liabilities, losses, damages, claims, costs or expenses that are incurred or suffered by Postee as a result of any breach of the aforementioned warranty and/or any infringement by you of Postee’s Intellectual Property Rights.
6.5 You acknowledge and agree that Postee shall only operate in its capacity as a “Data Processor” for the purposes of the Data Protection Act 1998.
6.6 Postee shall store all Service Content and data uploaded to the Service Platform for a period of six years from the date such Service Content is uploaded. On expiry of this period, all data shall be deleted.
7. Limitation of liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 This clause 7 shall survive termination of the Contract.
7.2 Postee shall maintain Professional Indemnity Insurance and Product Liability Insurance each with a maximum claim limit of not less than £1,000,000 sterling.
7.3 This clause 7 sets out the entire financial liability of Postee (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to you in respect of:
7.3.1 any breach of the Contract;
7.3.2 any use made by you of the Services or the Services Platform;
7.3.3 any loss or corruption of the Service Content or data uploaded by you;
7.3.4 any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract, the Services or the Services Platform; or
7.3.5 any loss, damage or expense arising out of or in connection with any delay or failure to provide the Services or the Services Platform (howsoever caused).
7.4 Postee shall not be liable for any loss of profit, loss or corruption of data or Service Content, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
7.5 Nothing in the Contract limits or excludes the liability of either party to the other:
7.5.1 for death or personal injury resulting from negligence;
7.5.2 for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
7.6 For so long as Postee has complied with its obligations under clause 7.2, Postee’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the insurances held pursuant to clause 7.2 of the Contract.
7.7 All warranties, conditions and other terms implied by statute or common law (save as to title) are, to the fullest extent permitted by law, excluded from the Contract.
8 Service Platform Availability and Security
8.1 As soon as reasonably practicable following acceptance of your Order, Postee shall provide a written confirmation of your Service Access Code.
8.2 Postee shall use all reasonable endeavours to maintain availability of the Services Platform, but your attention is drawn to the limitations highlighted in clause 3.3 and 11.1 of the Contract. Furthermore, you acknowledge and accept that the Service Platform may be unavailable from time to time when undergoing schedule or unscheduled maintenance.
8.3 Save as specified above, the Services (including the delivery of the same) shall be deemed to have been satisfactorily completed unless you (acting reasonably and in good faith) provide written notice to Postee within 5 Business Days of any material error with the operational functionality of the Services Platform which prevents successful provision of the Services, providing such details as to enable Postee to understand the nature of and all material details in relation to your claims (“Contest Notice”).
8.4 In the event that any Contest Notice is served, the parties shall negotiate (in good faith) and use all reasonable endeavours to resolve the matters described in the Contest Notice. During such period, you shall remain liable to fulfil your obligations to Postee pending resolution of the matters raised in the Contest Notice.
8.5 Where Postee provides security features or instructions, you undertake to comply with and implement the same. All Service Access Codes shall, unless the Postee notifies the Customer otherwise, be kept confidential and not lent, shared, transferred or otherwise misused by you or any person.
8.6 If either party:
8.6.1 becomes aware of any unauthorised or unlawful processing of any Service Content or that the same has become lost, destroyed, damaged, corrupted or unusable; or
8.6.2 becomes aware of or reasonably suspects that any unauthorised third party has access to the Service Platform and/or Service Access Codes (howsoever caused);
that party shall, at its own expense, promptly notify the other party and fully co-operate with the other party to remedy the issue as soon as reasonably practicable.
9.1 Where the Specification specifies that a recurring or monthly Fee is due, the Contract shall be terminable by either party on giving not less than 30 days written notice to the other. Such notice to expire on the due date for payment of Fees in accordance with clause 5.2.
9.2 Where a non-recurring Fee is stated in the Specification, termination shall occur immediately following delivery of the Services (or resolution of any Contest Notice) in accordance with the provisions of clause 8.
9.3 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.3.1 the other party commits a material breach of the Contract and (if such breach is reasonably capable of immediate remedy) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
9.3.2 the other party repeatedly breach any term of the Contract;
9.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of s123 Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of s268 Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
9.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
9.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.3.6 the other party (being an individual) is the subject of a bankruptcy petition or order;
9.3.7 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
9.3.8 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
9.3.9 a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
9.3.10 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.3.11 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3.3 to clause 9.3.10 (inclusive);
9.3.12 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.3.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.4 Without limiting its other rights or remedies, Postee may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under this Contract on the due date for payment.
9.5 Without limiting its other rights or remedies, Postee shall have the right to suspend provision of the Services under the Contract or any other contract between you and Postee if you becomes subject to any of the events listed in clause 9.3.3 to clause 9.3.13, or Postee reasonably believes that you is about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
10.1 On termination of the Contract for any reason:
10.1.1 the licence granted to you pursuant to clause 3.3 shall immediately terminate and you shall cease using or accessing the Service Platform and return, delete or irretrievably delete any Service Access Codes held by you;
10.1.2 you shall immediately pay to Postee all of Postee’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Postee shall submit an invoice, which shall be payable by you immediately on receipt;
10.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.4 clauses 5, 6, 7, 8, 10, and 11 shall continue to apply after termination.
11.1 Force majeure:
11.1.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of Postee including but not limited any failure or inability to access the SMS network or World Wide Web, strikes, lock-outs or other industrial disputes (whether involving the workforce of Postee or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.1.2 Postee shall not be liable to you as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.1.3 If the Force Majeure Event prevents Postee from providing any of the Services for more than six weeks, Postee shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.
11.2 Assignment and subcontracting:
11.2.1 Postee may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
11.2.2 You shall not, without the prior written consent of Postee, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by e-mail to the other party’s main e-mail address.
11.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by e-mail, on the next Business Day after transmission.
11.4 Waiver: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Postee.
11.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Updated at 20/05/2013 – Download PDF