VIAPOST COMMUNICATIONS
LIMITED
TERMS AND CONDITIONS (Business to Business)
These terms and conditions apply to the automated electronic
mail delivery service (‘Service’) that ViaPost Communications Limited (“we”)
will provide to you and any Other Account Users you add to your Account through
our website www.viapost.com (‘our site’).
By clicking “I agree” you agree to be bound by these terms and conditions and in particular the limitation of
liability set out in condition 10 which shall also govern any Services
provided to your Other Account Users.
Please understand that if you refuse to agree or accept these terms and
conditions you will not be able to request or order any Services from our site.
1. Definitions and interpretation
1.1 In these terms and conditions (except
where the context otherwise requires) the following words and phrases have the
following meanings:
“Account” means the account against which we have
received payments from you, and through which you pay for the Service;
“Confidential Information” means all information of whatsoever nature
contained in the Software and all Mail received
from you;
“Fee” means the current
applicable rate as set out on our
website at http://www.viapost.com/, except in cases of obvious error, and/or
notified to you by us from time to time;
“Licence” means the
licence to use the Software granted to you under condition 5;
“Mail” means all correspondence received by us from you through the
use of the Software for the purposes of the Service;
“Mail Content” means the
content of any Mail;
“Other Account User” means any others that you add to your Account;
“Registration Information” means the information necessary to open an Account for you
(including updates to such information) and which consists of your name,
address, e-mail address, telephone number, the number of letters you send per
month, and, where relevant, your company name, the industry you work in and the
number of employees working for your company;
“RMIMC” means the Royal Mail Inward Mail Centre;
“Service” means printing,
enclosing, application of the Viapost Indicia, sorting, and
delivering Mail on your behalf to RMIMC, for onward
delivery to the addressee by Royal Mail, in accordance with these terms and
conditions;
“Software” means ViaPost
Limited’s software (including the Viapost Printer Driver, the Viapost Web Portal,
the Viapost Core Application and the Viapost Spooler Service and any other such
software as may be provided from time to time) used to provide the Service;
“Support Services” means
the services set out in condition 6;
“Viapost Core
Application” means the software used, owned or operated by
Viapost that processes data submitted by the Viapost Web Portal in order to
deliver the Services
“Viapost Indicia”
means the logo applied to the Mail by Viapost in accordance with Royal Mail
regulations;
“Viapost Printer Driver”
means the printer driver which
is downloaded and installed by you send documents from a personal computer utilising Microsoft windows
applications;
“Viapost Spooler
Service” means the application that is
installed to allow pdf documents to be spooled to the Viapost Core Application;
“Viapost Web Portal”
means the Viapost website which enables you to manage their accounts
and send letters without the need to install anything on your personal
computer
];
“We” means
Viapost Communications Limited. We are
registered in
“Working Hours” means 9am to
5pm
“You/your” means the person,
organisation or company who enters into a contract for the provision of
Service, subject to these terms and conditions.
2 SERVICES
2.1 On your acceptance of these terms and
conditions and when you have provided complete Registration Information we
will:
2.1.1 open an Account for you to allow you to use
the Service; and
2.1.2 make
the Software available to you
2.2 Once the
Software has been installed ready for your use we will provide the Service to you
following receipt of a request from you through the Software for us to provide
the Service. Your request constitutes an offer to us to provide the
Service. The contract between us
(‘Contract’) will only be formed when we accept your Mail for processing. The
provision of the Service to each piece of your Mail shall constitute an
individual and separate Contract between us. All Contracts between us will be
governed by these terms and conditions.
2.3 Unless we agree
otherwise we will provide the Services on normal working days and start work no
earlier than 9am and finish work no later than 5pm. A normal working day for us
means Mondays to Fridays, excluding any bank or other national holidays. If we receive a request for Services from you
on a day which is not a working day, we will treat this as a request you have
made on the next working day.
2.4 We will use our reasonable endeavours to
ensure that we deliver Mail for which there is a finalised Contract between us to
RMIMC for onward delivery to the addressee by Royal Mail the day following its
receipt by us where the Mail is received by midday (12pm), but we cannot
guarantee the Mail will reach the addressee on any particular date. Time will
not be of the essence in respect of the delivery dates for your Mail. We cannot
be responsible for any delays in or failure to perform our obligations if that
delay or failure is caused by Royal Mail.
2.5 We will not accept for postage any Mail
the carriage of which is prohibited by any law, rule or regulation of any
country in which the Mail travels or where you are in breach of these terms and
conditions.
2.6 Your Mail will be printed on a minimum of A4 90gsm paper.
2.7 We can only accept a maximum of 8 pages for insertion into a
standard C5 envelope. If any of your Mail exceeds this requirement, your Mail
will not be processed
2.8 In the event that we are unable to deliver
any Mail due to you providing us with an incorrect recipient address, or in the
event that Royal Mail is unable to effect delivery for any reason, the relevant
Mail will be returned to us and:
2.8.1 if
you have subscribed to our post return service we will forward the Mail to you
at the address which you have provided us with; and
2.8.2 if
you have not subscribed to our post return service or if you have provided us
with an incorrect address, we will destroy the Mail.
3 PAYMENT AND PAYMENT
TERMS
3.1 You may credit your Account by selecting from the range of
payment options available to you.
3.2 Payment will be due and payable by you
through your Account prior to postage of your Mail. We will deduct the relevant
Fee from your Account immediately following a request by you for the Services
and prior to carrying out those Services.
3.3 We may increase the Fees from time to
time and if we do so we will notify you of the changes by email but any changes
will not affect any requests still to be processed which are received prior to
such notification.
3.4 All fees
stated are exclusive of VAT which will be charged in addition at the rate in
force at the time you make
your request.
3.5 All Fees and payment methods are as
set out on our site and it is always possible that, despite our best efforts,
some of those Fees may be stated incorrectly.
We are under no obligation to provide a Service to you at an incorrect
(lower) Fee, if the pricing error is obvious and unmistakeable and could have
reasonably been recognised by you as a mis-pricing.
4 YOUR RESPONSIBILITIES
AND WARRANTIES
4.1 You will:
4.1.1 provide true, accurate and complete
Registration Information;
4.1.2 keep
your Registration Information up to date;
4.1.3 provide
us with a correct and operational email address, and notify us promptly of any
changes or cancellations of any and all e-mail addresses you provide us; and
4.1.4 be
responsible for ensuring that each item of Mail bears a complete and accurate
address, including a post code.
4.1.5 be
responsible for verifying the appearance of the Mail and its print quality via
the preview that our system will generate during the execution of the Services.
Your acceptance of the preview will be conclusive evidence of your acceptance
of the appearance and print quality of your Mail.
4.1.6 be
responsible for ensuring that for all use of the Services with an individual or
cumulative Fee in excess of £100 you shall verify the print quality of the Mail
by means of making, receiving and verifying a test print from us.
4.2 You will not:
4.2.1 impersonate any other person or use a name
that you are not authorised to use;
4.2.2 use
the Service for any unlawful or fraudulent activity; or
4.2.3 reveal
your Account password to anyone else or use anyone else's password.
4.3 You warrant that:
4.3.1 your
Mail does not contain anything defamatory, offensive, indecent or threatening
or otherwise prohibited by any law, rule or regulation; and
4.3.2 you
have access to the internet and to a current functional e-mail address.
Although we will take reasonable steps to contact you based on information that
you have provided us, we will not be liable for any undelivered e-mail or any
costs you incur for maintaining internet access and an e-mail account.
4.4 You agree to indemnify us against any
costs which we may incur in connection with condition 2.8, including but not
limited to the cost of forwarding any undelivered Mail to you and/or disposing
of any undelivered Mail.
4.5 You agree to indemnify and hold us and (as
applicable) our affiliates, officers, directors, agents and employees, harmless
from, all direct, indirect or consequential liabilities (including loss of
profits, loss of business, depletion of goodwill and similar losses), costs,
proceedings, damages and expenses (including reasonable legal fees) awarded
against, or incurred or paid by us and (as applicable) our affiliates, officers,
directors, agents and employees as a result of or in connection with any claim
or demand made by any third party due to or arising out of your breach of these
terms and conditions.
4.6 You shall not for a period
of one calendar year following the date of this agreement, be involved directly
or indirectly in the development, manufacture or sale of any Services which
compete with the Services
and shall not act as agent, representative, franchisee or distributor for or
otherwise be directly or indirectly concerned or interested in the development,
manufacture, delivery or supply of any products, goods (including software or
other computer programme or device) or services that are similar in
description, design or function to the Services. This restriction applies to you,
whether on your own behalf or on behalf of any other person, firm or company
whatsoever. The provisions of this condition 4.6 shall survive termination or
expiration howsoever occasioned
5 LICENCE
5.1 We grant to you a non-exclusive, non-transferable
licence to use the Software in accordance with
these terms and conditions (the “Licence”).
5.2 Except as expressly set out in these terms and conditions, by
our express permission, or to the extent permitted by statute, you undertake:
5.2.1 not to reproduce, vary, modify, adapt, merge, translate,
disassemble, decompile, recompile or reverse engineer the Software or create
derivative works based on the whole of or any part of the Software or
incorporate the Software into any other software program not provided by us;
and
5.2.2 not to rent, lease,
sub-license, loan, sell assign, pledge,
transfer or otherwise dispose of the
Software whether on a temporary or permanent basis;
5.3 You acknowledge that the Software may not
be free of bugs or errors and agree that the existence of minor errors shall
not constitute a breach of these terms and conditions.
6 SUPPORT SERVICES
6.1 For all customers, we provide an on-line
self-help service, available at our site
6.2 For account managed customers (who we, in
our absolute discretion select), we will provide the following Support Services
during Working Hours via telephone, email or facsimile, as appropriate:
6.2.1 a telephone helpdesk facility, including
advice and assistance on issues relating to the configuration
of the Software;
6.2.2 where
there is a demonstrable fault in the Software which is capable of replication
by us, we will provide advice and assistance on its correction; and
6.2.3 provision
of workarounds, patches or other maintenance releases not providing any new
functionality issued for the Software.
6.3 We will not provide any Support Services:
6.3.1 where
faults result from or are connected with any improper use, operation or neglect
of the Software, your failure to implement recommendations in respect of or
solutions to faults previously advised by us, and/or any repair, adjustment,
alteration or modification of the Software by any person other than us or our
authorised agents without our consent;
6.3.2 where
faults result from the use of the Software in combination with other software,
hardware, or other parts of your technical infrastructure not licensed under
these terms and conditions; or
6.3.3 in
respect of an unsupported version of the Software, being a version other than the
most recent version of the Software delivered to you following acceptance of
these terms and conditions or made available to you under condition 7.
7 UPGRADES
7.1 From time to time, we may make available
upgrades, new versions or other revisions or amendments to the Software, which
provide additional features or change the functionality of the Software and we
may make these available to you.
7.2 Any upgrades provided to you will form
part of the Software and be subject to these terms and conditions.
8 INTELLECTUAL PROPERTY
RIGHTS
8.1 You acknowledge that we own, or are
licensed to use, all copyright and other intellectual property rights in and
relating to the Software and that you have no rights in, or to, the Software
other than the right to use it in accordance with these terms and conditions.
8.2 We warrant that the use of the Software
in accordance with these terms and conditions will not infringe the copyright
belonging to any third party.
8.3 Subject to condition 8.4, if any claim is
brought against you that the normal use or possession of the Software in
accordance with these terms and conditions infringes the copyright of a third
party, we hereby indemnify you and will keep you indemnified against any
damages that are awarded and are paid to any such third party in respect of a
claim and any losses, costs (including all legal fees) and expenses incurred by
or on behalf of you provided that you:
8.3.1 as
soon as reasonably practicable notify us in writing of any such claim of which
you become aware;
8.3.2 do
not make any admission of liability or compromise or agree any settlement of
any claim without our prior written consent, which consent will not be
unreasonably withheld or delayed, or otherwise prejudice our or any third
party’s defence of any claim;
8.3.3 give
us, or such person as we direct, immediate and complete control of the conduct
or settlement of all negotiations and litigation arising from any claim; and
8.3.4 upon
payment of your reasonable costs, give us and such other third parties as we
direct all reasonable assistance with the conduct or settlement of any such
negotiations or litigation.
8.4 If any third party claims that your use of
the Software in accordance with these terms and conditions infringes any third
party’s copyright, we may in our absolute discretion and at our own expense:
8.4.1 procure
the right for you to continue using the Software in accordance with these terms
and conditions;
8.4.2 make
such alterations, modifications or adjustments to the Software so that they
become non infringing; or
8.4.3 replace
the Software with non-infringing software.
8.5 Subject to conditions 8.3 and 8.4, our
liability for infringement of third-party intellectual property rights shall be
limited to breaches of rights subsisting in the
8.6 If there is any claim attributable to the
use or possession by you of the Software other than in accordance with these
terms and conditions, conditions 8.2 to 8.4 will not apply and you will
indemnify us against all liabilities, costs and expenses that we may incur as a
result of such claim.
9 DATA PROTECTION
9.1 ViaPost Limited is the data controller of
any personal information that you submit to us (including but not limited to
your Registration Information and any information contained in any Mail). We
are committed to protecting your privacy and maintaining the security of any
personal information received from you.
9.2 By submitting your personal information,
you consent to our use of the information as set out in these terms and
conditions.
9.3 We will use your information to administer
your Account, process payments made under these terms and conditions, provide
the Service, and analyse your use of the Service.
9.4 We may from time to time contact you by
post, telephone, or email to notify you about changes to this website and the
Service and provide other information that may be of interest to you. We will
give you an opportunity to choose not to receive our marketing information
before you submit your personal information. You can tell us to stop sending
you marketing information at any time by contacting info@viapost.com.
9.5 We may share your information with trusted
third parties who may contact you from time to time by post, telephone, or
email to inform you about products and/or services that may be of interest to
you. We will give you an opportunity to choose not to share your information in
this way before you submit your personal information.
9.6 We may disclose your information to any
buyer or potential buyer of the business of ViaPost Limited.
9.7 We may disclose your information to our
agents and service providers for the purposes set out above.
10 WARRANTIES AND LIMITATION OF
LIABILITY
10.1 Except as expressly set out in these terms
and conditions, all conditions, warranties, terms and undertakings, express or
implied, whether by statute, common law, trade practice, custom, course of
dealing or otherwise (including without limitation about quality, performance
or fitness or suitability for purpose) in respect of the Software and provision
of the Service and Support Services are hereby excluded to the fullest extent
permissible by law.
10.2 Nothing in these terms
and conditions will exclude or restrict the liability of either party to the other for:
10.2.1 death or personal injury
resulting from negligence;
10.2.2 any fraud or fraudulent
misrepresentation ;or
10.2.3 any other liability to the extent that it may not be excluded or
limited as a matter of law.
10.3 Subject to conditions 10.2, 10.4, 10.5
and 10.6 our liability to you for direct loss in contract, tort or otherwise
arising out of or in connection with these terms and conditions or your use of
the Software, the Support Services or the Service will be limited to 100% (one
hundred per cent) of the fees paid by you in relation to the delivery of the
relevant piece of your Mail under these terms and conditions.
10.4 Subject to condition 10.2, in no circumstances will we be liable
to you whether in contract, tort, negligence, breach of statutory
duty or otherwise in respect of:
10.4.1 loss of profits, income or revenue,
10.4.2 Loss of goodwill,
10.4.3 Loss of business opportunity or contracts,
10.4.4 Business interruption,
10.4.5 Loss of anticipated savings,
10.4.6 Loss of information,
10.4.7 loss of, damage to or corruption of data or cost of restoration
of data for use of any results obtained by use of the Software, the Support
Services or the Service; or
10.4.8 any indirect, consequential,
financial or economic loss or damage costs or expenses whatsoever or howsoever
arising out of or in connection with these terms and conditions or your use of
the Software, the Support Services or the Service.
10.5 If any of the limitations on our liability
under these terms and conditions are adjudged to be unreasonable in the
circumstances, then such limitation will be increased to the amount that we can
recover from our insurer for the loss in question.
10.6 We will not be liable for any delay in or
for failure to perform our obligations under these terms and conditions,
including (but not limited to) your Mail
or any part of it being lost, damaged, delayed or mis-delivered or not
delivered at all as a result of:
10.6.1 circumstances beyond our
reasonable control, including but not limited to acts of god including
earthquakes, cyclones, storms, flooding, fire, disease, fog, snow or frost,
force majeure including war, accidents, acts of public enemies, strikes,
embargoes, perils of the air, local disputes, terrorism, riot or civil
commotions, national or local disruptions in air or ground transportation
networks and mechanical problems to modes of transport or machinery,
impossibility of the use of public or private telecommunications networks,
latent defects or inherent vice in the contents of the Mail or criminal acts of
third parties such as theft or arson;
10.6.2 you being in breach of your
obligations under these terms and conditions; and/or
10.6.3 your Mail consisting of anything
prohibited by any law, rule or regulation; and/or
10.6.4 any acts or inactions of
Royal Mail
11 TERM AND TERMINATION
11.1 The Licence will commence at the time that
you accept these terms and conditions and will continue until terminated in
accordance with this condition 11.
11.2 We may suspend or terminate your Account,
the Licence, and your agreement with us, immediately by written notice, if:
11.2.1 you
breach these terms and conditions;
11.2.2 you do not access your Account for a period
of three months; or
11.2.3 you are declared
bankrupt or are unable to pay your debts when they fall due, or,
11.2.4 where you have
registered for the Service on behalf of your company and the company becomes
insolvent, an interim order is made or a voluntary arrangement approved in
respect of the company or a receiver or trustee is appointed or a voluntary
arrangement is approved or a notice is served of intention to appoint an
administrator or an administrator is appointed by court order or by any other
means in respect of the company, or a receiver or administrative receiver is
appointed over any of the company’s assets or undertaking or a resolution or
petition to wind up the company is passed or presented (otherwise than for the
purposes of reconstruction or amalgamation), or if any circumstances arise
which entitle the court or a creditor to appoint a receiver, administrative
receiver or administrator or to present a winding up petition or make a winding
up order; or
11.3 You may
terminate your Account at any time by providing us with no less than one week’s
written notice.
11.4 In addition
to any other rights we may have to terminate your Account, we may terminate
your Account at any time upon giving you at least two weeks’ written notice.
11.5 If
we terminate your Account under condition 11.4 then after the date of
termination, we will use the Registration Information to try to send you any
funds that we are holding in your Account. If the Registration Information is
not correct, and we are unable to complete the payment to you, or if you have
not used your Account for a period of three months, your funds will be subject
to applicable laws regarding unclaimed property.
11.6 Any
termination of these terms and conditions will be without prejudice to any
other rights or remedies either party may be entitled to under these terms and
conditions or at law.
11.7 Within seven
days of the termination of these terms and conditions (by either party for
whatever reason) you will destroy all copies of the Software in your possession.
12 CONFIDENTIALITY
12.1 Each Party (the Receiving Party) shall keep
the Confidential Information of the other Party
(‘Supplying Party’) confidential and secret and shall not at any time
after the date that you have accepted these terms and conditions:
12.1.1 divulge
or communicate to any person, company, business entity or other organisation;
12.1.2 use for its own purposes or for
any purposes other than those of the Supplying Party or for performing their
obligations under these terms and conditions; or
12.1.3 through any failure
to exercise due care and diligence, cause any unauthorised disclosure of any Confidential
Information relating to the Supplying Party.
12.2 The obligations of this condition 12 shall
not apply to any such information which:
12.2.1 was known or in the possession of the
Receiving Party before it was provided to the Receiving
Party by the Supplying Party;
12.2.2 becomes
available to the public generally otherwise than through no fault of the Receiving Party;
12.2.3 is provided to the Receiving Party
without restriction or disclosure by a third party, who did not breach any
confidentiality obligations by making such a disclosure;
12.2.4 was developed by the Receiving Party (or
on its behalf) who had no direct access to, or use or knowledge of the
confidential Information supplied by the Supplying Party;
12.2.5 is
required to be disclosed by order of a court of competent jurisdiction or other
lawful government order, but only to the extent required by such order and
subject to the Receiving Party giving the Supplying Party as much notice of the
terms of the order as may be reasonably practicable;
12.2.6 the
parties agree in writing is not confidential or may be disclosed; or
12.2.7 is trivial, obvious or useless.
12.3 This condition 12 shall survive termination of this Agreement
for a period of 2 years.
13 GENERAL
13.1 Our failure or delay to exercise or enforce
any right under these terms and conditions will not operate as a waiver of that
right or preclude the exercise or enforcement of it at any time or times
thereafter. No waiver by us of any of
these terms and conditions shall be effective unless it is expressly stated to
be a waiver and is communicated to you in writing in accordance with condition
13.7 below.
13.2 You may not transfer any rights or
obligations you may have under these terms and conditions without our prior
written consent. We reserve the right to transfer these terms and conditions or
any right or obligation under these terms and conditions without your consent.
13.3 These terms and conditions constitute the
entire understanding between the parties with respect to the subject matter and
supersede and replace all prior negotiations and discussions between the
parties relating to it. You confirm and acknowledge that you have not been
induced to accept these terms and conditions by any representation, warranty,
or undertaking not expressly incorporated into it. However, nothing in these
terms and conditions purport to exclude liability for any fraudulent statement
or act.
13.4 We have the right to revise and amend these
terms and conditions from time to time. You will be subject to the terms and
conditions in force at the time that you request the Services from us, unless
any change to those terms and conditions is required to be made by law or
governmental authority (in which case it will apply to requests previously made
by you), or if we notify you in writing of the change to these terms and
conditions before we send you confirmation of the fees deducted from you
Account/ the Mail being posted/dispatched (in which case we have the right to
assume that you have accepted the change to the terms and conditions, unless
you notify us to the contrary within 2 days of receiving notification from us.
13.5 If any provision of these terms and
conditions is held to be unlawful, invalid or unenforceable, in whole or in
part, under any enactment or rule of law, such provision or part will to that
extent be severed from these terms and conditions and rendered ineffective as
far as possible without modifying or affecting the legality, validity or
enforceability of the remaining provisions of these terms and conditions which
will remain in full force and effect.
13.6 Applicable laws require that some of the
information or communications we send to you should be in writing. When using our site, you accept that
communication with us will be mainly electronic. We will contact you by e-mail or provide you
with information by posting notices on our site. For contractual purposes, you agree to this
electronic means of communication and you acknowledge that all contracts,
notices, information and other communications that we provide to you
electronically comply with any legal requirement that such communications be in
writing. This condition does not affect
your statutory rights.
13.7 Any notice to be given under these terms
and conditions will be in writing and delivered by hand, sent by first class
post or sent by email or fax (such notice to be confirmed by letter posted
within 12 hours) to the address of the other party set out in these terms and
conditions (or such other address as may have been notified). Any such notice
or other document will be deemed to have been served: if delivered by hand - at
the time of delivery; if sent by post - upon the expiration of 48 hours after
posting; and if sent by email or fax - at 9:00am on the next business day after
the facsimile was dispatched.
13.8 The terms and
conditions of use of our site, our privacy policy and copyright notices ('Other
Provisions') shall be incorporated into these terms and conditions and shall be
equally binding on you when you enter into a contract with us.
13.9 A person who is not a party to the Contract
shall not have any rights under or in connection with it.
13.10 These terms and conditions will be governed by
and construed in accordance with English law and each party hereby irrevocably
submits to the non-exclusive jurisdiction of the English Courts.