PARTIES

(1)    CITIPOST LIMITED incorporated and registered in England and Wales with company number 03451070 whose registered office is at 51 Hailey Road, Erith, Kent, DA18 4AA (Citipost)

BACKGROUND

• (A) Citipost has developed the ORBIT software application and platform which it makes available to its customers via the internet for the purpose of tracking and assessing its consignment activities via the Royal Mail’s Mailmark system.

(B) The Customer wishes to use Citipost’s service in its business operations and accepts and acknowledges that the ORBIT software is designed to link to and obtain information from the Royal  Mail’s Mailmark system for which the Customer has an agreement with Royal Mail.

• (C) Citipost has agreed to provide and the Customer has agreed to accept Citipost’s service subject to the terms and conditions of this agreement.

AGREED TERMS

1. Interpretation

• 1.1 The definitions and rules of interpretation in this clause apply in this

Applicable Data Protection Laws: all applicable data protection and privacy legislation in force from time to time including without limitation the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018); the Data Protection Act 2018 (and regulations made thereunder)

(DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) in any jurisdiction.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.1(d).

Batch: means a selection of Mailmark barcode large and small letter that meet the minimum entry volume requirement for the service being used and which are all of the same format, sortation and machine-readability option. A Batch is submitted to the eManifest. Each Batch submitted to the eManifest is commonly referred to as a consignment.

Bill Payer: the Participant in the Supply Chain that is responsible for paying Royal Mail for the Mailmark Mailings.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Carrier: the Participant in a Supply Chain responsible for carrying the Mailmark Mailings.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression

change of control shall be interpreted accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.1.

Customer Data: the data inputted by the Customer, Authorised Users, or Citipost on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services but not including bag identification numbers.

Customer Personal Data: personal data of the Customer’s Authorised Users

Customer User: any of the Customer’s employees authorised by the Customer to access and use the Mailmark Direct Data (wholly or in part), using the unique email address provided by the Customer to the Royal Mail;

Documentation: the user manual or documents made available to the Customer by Citipost or such other web address notified by Citipost to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of this agreement.

eManifest: an electronic file created via the eManifest Handling System (eMHS) for each Supply Chain per Working Day. A Batch or Batches are submitted to the eManifest, and once confirmed the eManifest contains a record of the Customer’s Mailmark Mailing Items which is used to provide eManifest and Batch level reporting;

eManifest Handling System (eMHS): the web based interface which enables the creation of the eManifest and is used for all actions relating to the eManifest (such as submitting Batches);

Mailmark Direct Data: means any data or information, including any personal data, that: (a) the Customer supplies to Royal Mail via the eManifest or that Royal Mail collate through automated processing of the Customer’s Mailmark Mailings; and (b) is made available to the Customer as part of the Mailmark Direct Data Reports on the terms of this agreement.

Mailmark Direct Data Reports: means the reports labelled as ‘MDD Summary Report’ and ‘MDD Detail Report’ in the Mailmark Direct Data Technical Specification made available to the Customer from time to time by Royal Mail and “Mailmark Direct Data Report’ will be construed accordingly. The Mailmark Direct Data datasets that are included in each type of Mailmark Direct Data Report and the relevant format for each Mailmark Direct Data Report are further described in the Mailmark Direct Data Technical Specification;

Mailmark Direct Data Technical Specification: means the Mailmark Direct Data Technical Specification as published on www.royalmailwholesale.com/royal-mail-mailmark-direct-data;

Mail Originator means the Participant in the Supply Chain on whose behalf the Mailmark barcode Mailing Items are being produced and delivered;

Mail Producer means the Participant in the Supply Chain that is responsible for producing (including printing and enclosing) the Mailmark barcode Mailing Items;

Mailmark Services: Royal Mail’s barcode technology and web-based reporting services to include (without limitation) online analytics, detailed batch level reporting on predicted delivery, volume and performance as well as item level error reporting provided to the Customer by Royal Mail.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Orbit Data: any data or information or reports including personal data that Citipost supplies to the Customer as part of the Services to include data obtained from the Mailmark Services, Mailmark Direct Data and Mailmark Direct Data Reports.

Participant: a Mailmark Mailing, the participant is each of the Bill Payer, Carrier, Mail Originator, and Mail Producer that together make up a Supply Chain;

Royal Mail: means Royal Mail Group Ltd (No. 4138203) whose registered office is at 100 Victoria Embankment, London, EC4Y 0HQ.

Services: the subscription services provided by Citipost to the Customer under this agreement via ORBIT https://orbit.citipostmail.co.uk or any other website notified to the Customer by Citipost from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by Citipost as part of the Services.

Supply Chain: the combination of all of the four Participants (Bill Payer, Carrier, Mail Originator, Mail Producer) that is required for each Mailmark Mailing relating to those specific Participants;

Term: has the meaning given in clause 14.1.

User Subscriptions: the user subscriptions provided to the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

• 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this
• 1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

• 1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
• 1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
• 1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

• 1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
• 1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
• 1.9 A reference to writing or written excludes fax and email.

• 10.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. Access to the Services

• 2.1 Subject to and as consideration for the Customer abiding by its restrictions and its other obligations of this agreement and the payment by the Customer of £1 (one pound) to Citipost, (the receipt of which is acknowledged by Citipost), Citipost hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer’s internal business operations.

• 2.2 The Customer acknowledges and accepts that Citipost’s provision of the Services is dependent Citipost’s access to the Mailmark Services and the Customer’s continued compliance with the terms and conditions of the Mailmark Services.

3. Authorised Use and Users

• 3.1 In relation to the Authorised Users, the Customer undertakes that:
  • (A) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed ten User Subscriptions unless otherwise agreed by Citipost in writing from time to time;
• (B) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

• (C) each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep their password confidential;

• (D) it shall maintain a written, up to date list of current Authorised Users and provide such list to Citipost within 5 Business Days of Citipost’s written request at any time or times;

• (E) it shall permit Citipost or Citipost’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this Each such audit may be conducted no more than once per quarter, at

Citipost’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and

• (F) if any of the audits referred to in clause 1(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Citipost’s other rights, the Customer shall promptly disable such passwords and Citipost shall not issue any new passwords to any such individual.

• 3.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
• (A) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
• (B) facilitates illegal activity;
• (C) depicts sexually explicit images;
• (D) promotes unlawful violence;
• (E) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
• (F) is otherwise illegal or causes damage or injury to any person or property;
• and Citipost reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
• 3.2 The Customer shall not:

• (A) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
• (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
• (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Software; or

 

• (B) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

• (C) use the Services and/or Documentation to provide services to third parties; or
• subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or
• (D) otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

• (E) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this agreement; or
• (F) introduce or permit the introduction of, any Virus or Vulnerability into Citipost’s network and information systems.

• 3.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Citipost.
• 3.5 The rights provided under this agreement are granted to the Customer only,and shall not be considered granted to any subsidiary or holding company of the Customer.

 

4. Additional user subscriptions

• 4.1 Subject to clause 4.2, the Customer may, from time to time during the Term, request additional User Subscriptions and Citipost shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
• 4.2 If the Customer wishes to request additional User Subscriptions, the Customer shall notify Citipost in writing. Citipost shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where Citipost approves the request, Citipost shall activate the additional User Subscriptions within 7 Business Days of its approval of the Customer’s request.

• 5. Services
  • 5.1 Citipost shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
  • 5.2 The Service is provided on an ‘as available’ basis and Citipost shall not be responsible for any downtime however Citipost shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
    • (A) Planned maintenance (which Citipost will typically carry out each Sunday however this is not guaranteed) and other planned maintenance as notified by Citipost; and
    • (B) unscheduled maintenance performed outside Normal Business Hours in which case Citipost shall use reasonable endeavours to provide as much notice to the Customer as possible.
  • 5.3 The Customer may contact its client services representative if it has any problems accessing the Services.
• 6. Data protection
  • 6.1 For the purposes of this clause 6 the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
  • 6.2 Both parties will comply with all applicable requirements of Applicable Data Protection This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
  • 6.3 The parties have determined that, for the purposes of Applicable Data Protection Laws the Citipost shall process the Customers Personal Data as set out in clause 6.6 as processor on behalf of the Customer.
  • 6.4 Should the determination in clause 3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 6.
• 6.5 Without prejudice to the generality of clause 2 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Citipost for the duration and purposes of this agreement.
• 6.6 In relation to the Customer Personal Data, this clause 6 sets out the scope, nature and purpose of processing by the Citipost, the duration of the processing and the types of personal data and categories of data subject as follows:
  • • • Scope     Contractual scope for the provision of the ServicesNature    Use, collection, storage or otherwise required for the PurposePurpose of the processing     For the provision of the ServicesDuration of the processing     For the term of the agreement and in order to comply with data retention periodsTypes of Personal Data     Username, passwords, identity.Categories of Data Subject    Customer’s employees, workers and contractors.
• 6.7 Without prejudice to the generality of clause 2, Citipost shall, in relation to the Customer’s Personal Data:

(A) process that Customer Personal Data only on the documented instructions of the Customer unless Citipost is required by Applicable Data Protection Laws to otherwise process that Customer Personal Data. Where Citipost is relying on Applicable Data Protection Laws as the basis for processing Customer Personal Data, Citipost shall notify the Customer of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit Citipost from so notifying the Customer on important grounds of public interest.

• (B) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, having regard to the state of technological development and the cost of implementing any measures;

• (C) ensure that any personnel engaged and authorised by Citipost to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

• (D) not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
• (i) the Customer or Citipost has provided appropriate safeguards in relation to the transfer;
• (ii) the data subject has enforceable rights and effective legal remedies;
• (iii) Citipost complies with its obligations under the Applicable Data Protection Laws providing an adequate level of protection to any Personal Data that is transferred; and
• (iv) Citipost complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

• (E) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Citipost), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(F) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customers Personal Data; and

(G) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Citipost is required by law to continue to process that Customer Personal Data. For the purposes of this clause 6.7(g) Customer Personal Data shall be considered deleted where it is put beyond further use by the Citipost.

• 6.8 The Customer consents to Citipost appointing third-party processors as processors of Customer Personal Data under this Citipost confirms that it has entered or (as the case may be) will enter with the third-par- ty processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6 and which reflect the requirements of the Applicable Data Protection Laws.

• 6.9 Either party may, at any time on not less than 30 days’ notice, revise clauses 6.1-6.8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
• 6.10 The parties agree that any personal data shared in accordance with this agreement other than the Customer Personal Data (Other Personal Data), shall be shared between the parties on a controller-to-controller In relation to the Other Personal Data:

• (A) Each party agrees, in relation to any requests or correspondence which relate to or impact upon personal data processed under or in connection with this agreement, to co-operate with one another in responding to:
• (i) any requests made by data subjects exercising their rights under the Data Protection Legislation;
• (ii) any correspondence from the Information Commissioner’s Office or other relevant regulatory authority.

• (B) Each party will notify the other party promptly upon becoming aware of any actual or suspected personal data breach where such personal data is processed under or in connection with this agreement and together with such notice, will provide a written description of the personal data breach particulars.
• (C) Each party will, where appropriate, cooperate reasonably to support their respective compliance with the rights of the data subjects of personal data which each party processes as a data controller under or in connection with this agreement.

7. Mailmark Direct Data and Licence

• 7.1 The Customer acknowledges that the Services enables it to access Mailmark Direct Data and that it does so solely at its own risk. Citipost makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the Mailmark Data nor any transactions completed, and any contract entered into by the Customer, with Royal Mail.
• 7.2 The Customer gives its consent to Citipost and Royal Mail to use the Mailmark Direct Data on the terms of this agreement.

7.3 The Customer acknowledges, accept and consents to the following:

• (A) that Citipost may enter into similar Mailmark Direct Data arrangements with Participants of the Customer’s Supply Chain on the same, or similar terms of this Agreement;
• (B) Citipost’s disclosure of the Customer’s Mailmark Direct Data and the Mailmark Direct Data Reports to any Participant within the Customer’s Supply Chain, and
• (C) to the maximum extent permitted by law Citipost shall under no circumstances be liable to the Customer for any losses that it may suffer (whether under contract, tort or any other category of law) as a consequence of any disclosures of Mailmark Direct Data and/or the Mailmark Direct Data Reports Citipost may make under this clause.

7.4 Subject to clause 3, Citipost hereby grants the Customer a non-exclusive, non-transferable licence, during the term of this Agreement only, subject to the restrictions set out below in clause 8.2, to do the following in relation to the Orbit Data which may include Mailmark Direct Data and the Mailmark Direct Data Reports (Mailmark Direct Data Licence):

• (A) access, view and use the Orbit Data (including any Mailmark Direct Data and the Mailmark Direct Data Reports comprised within it)
• (B) for the purpose of:
• (i) processing the Orbit Data within the Customer’s own business systems;
• (ii) using the Orbit Data in conjunction with other data the Customer holds to add value to the Customer’s business and customer processes;
• (iii) managing the Customer’s commercial relationship with Citipost including the creation of invoices and the assessment and resolution of Mailmark adjustments;
• (iv) storing the Orbit Data on the Customer’s systems;
• (v) distributing the Orbit Data internally to Customer Users, to other Participants in the Supply Chain;
• (vi) using the Orbit Data to facilitate the development of the Customer’s products and services.

• 7.5 Except as expressly provided in this Agreement, the Customer must not use the Orbit Data (including and Mailmark Direct Data or the Mailmark Direct Data Reports) (wholly or in part) for any purpose other than the purposes set out in clause 3.1 without our consent.
• 7.6 Citipost may revoke the Mailmark Direct Data Licence at any time with immediate effect if required to do so following any change in the law, for any regulatory reasons, or on termination of this Agreement.

 

8. No warranty

• 8.1 The Customer acknowledges that the Services and the Orbit Data are provided on an “as is” and “as available” basis and Citipost makes no undertaking, warranty or representation as to the functionality of the Services or the provision of Orbit Data.

• 8.2 The undertaking at clause 1 shall not apply to the extent of any non-conformance
• 8.3 Citipost:

• (A) does not warrant that:
  • (i) the Orbit Data or any other data obtained by the Customer whilst using the Services will be complete, accurate, comprehensive or fit for purpose;
  • (ii) the Customer’s use of the Services will be uninterrupted or error-free; or
  • (iii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
  • (iv) the Software or the Services will be free from Vulnerabilities or Viruses.
• (B) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

• 8.4 The information in the Mailmark Direct Data is only an indication of the performance of a Batch.
• 8.5 There will always be a proportion of Mailing Items that are not read by Royal Mail’s processing Without limiting clause 8.6, no warranty is given or implied by law or otherwise that:

(A) the information in the Mailmark Direct Data Reports will be completely accurate, comprehensive or fit for purpose; or

• (B) the Mailmark Direct Data or the Mailmark Direct Data Reports will be free from bugs, errors or any viruses.

• 8.6 The Mailmark Direct Data and the Mailmark Direct Data Reports are provided to the Customer on an “as is” basis and Citipost gives no warranties in relation to the Mailmark Direct Data, the Mailmark Direct Data Reports and/or the information in them and any warranties in relation to them or their information which may be implied by law or otherwise, are excluded to the extent permitted by law.
• 8.7 This agreement shall not prevent Citipost from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

• 8.8 Citipost warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
• 8.9 Citipost shall store Orbit Data and any Customer Data for a period of 90 days from the receipt of that data (the Retention Period). In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Citipost during the Retention Period shall be for Citipost to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data. Citipost shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Citipost to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).

• • 8.10 Citipost shall not be liable to the Customer for any loss or destruction of Orbit Data or Customer Data once the Retention Period has expired.

   

  9. Customer’s obligations

• 9.1 The Customer shall:
  • (A) provide Citipost with:
  • (i) all necessary co-operation in relation to this agreement; and
  • (ii) all necessary access to such information as may be required by Citipost;
  • (iii) in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
• (B) comply at all times with the terms of the Mailmark Services and comply with the Mailmark Direct Data Technical Specification;
• (C) ensure that all eManifests contain all and accurate information to include (without limitation) bag identifications in order to allow for the continued provision of the Services;

• (D) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
• (E) carry out all other Customer responsibilities set out in this agreement in a timely and efficient In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Citipost may adjust any agreed timetable or delivery schedule as reasonably necessary;

• (F) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
• (G) obtain and shall maintain all necessary licences, consents, and permissions necessary for Citipost, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
• (H) ensure that its network and systems comply with the relevant specifications provided by Citipost from time to time; and

• (I) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Citipost’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
• (J) notify Citipost as soon as possible if it believes, or becomes aware that, the Customer has been made a Participant of a Supply Chain in error.

• 9.2 The Customer will:
  • (A) limit access to the Mailmark Direct Data and the Mailmark Direct Data Reports) to the Customer Users, other Participants in the Supply Chain;
• (B) securely store the Orbit Data (including any Mailmark Direct Data and the Mailmark Direct Data Reports) using technical and organisational measures that are no less secure than those used by the Customer to store its own data;
• (C) only make copies of the Orbit Data (including any Mailmark Direct Data and the Mailmark Direct Data Reports) in compliance with Data Protection Legislation;

• (D) not use the Orbit Data (including any Mailmark Direct Data or the Mailmark Direct Data Reports) for any purpose contrary to any law or regulation or any regulatory code, guidance or request;
• (E) not extract, reutilise, use, sell, exploit, redistribute, disseminate, re-disseminate, copy or store the Orbit Data including any Mailmark Direct Data for any purpose not expressly permitted by this Agreement; and

(F) not do anything which may damage our reputation or the Mailmark Direct Data, including by way of using the Mailmark Direct Data or the Mailmark Direct Data Reports (wholly or in part) in any manner which is immoral, obscene, defamatory, harmful, offensive, fraudulent or otherwise unlawful.

9.3 Citipost shall not be obliged to provide the Services to the Customer where the Customer does not comply with its obligations set out in this Agreement, including but not limited to the obligations set out in clauses 1 and 9.2.

• 9.4  The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

1. 10. Proprietary rights

• 10.1 Save for any Royal Mail data and the Mailmark Services, the Customer acknowledges and agrees that Citipost and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

• 10.2 The Customer acknowledges that Royal Mail or its licensors are the owners of all intellectual property rights in the Mailmark Direct Data and/or the Mailmark Direct Data Reports that are supplied to the Customer by Citipost in accordance with this agreement and the Customer shall have no rights in or to the Mailmark Direct Data or the Mailmark Direct Data Reports other than the right to use it in accordance with the express terms of this agreement.
• 10.3 Citipost confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

11. Changes to these terms or the Documentation

• 11.1 Citipost reserves the right to make changes to the Services and/or the Documentation:
  • (A) to reflect changes in relevant laws and regulatory requirements;
• (B) to make technical adjustments and improvements, for example to address a security threat or because Royal Mail has made amendments to the Mailmark These are changes which will not affect the Customer’s use of the Services; and
• (C) to update the Services provided that such update shall not materially change the Citipost may request that the Customer installs and/or downloads such updates.

11.2 Citipost shall use reasonable endeavours to provide the Customer with at least 30 days written notice of any material change to the A material change under this clause 11.2 shall mean a change and/or update that if implemented would require the Customer to amend, update or change its information technology infrastructure or systems so that the Customer can continue to receive the Services.

 

12. Confidentiality

• 12.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with the Orbit software and application including but not limited to:

(A) the existence and terms of this agreement or any agreement entered into in connection with this agreement;

• (B) any information that would be regarded as confidential by a reasonable business person relating to:
• (i) the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
• (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);

• (C) any information developed by the parties in the course of carrying out this agreement and the parties agree that:
• (i) details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and
• (ii) Customer Data shall constitute Customer Confidential Information.

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

• 12.2 The provisions of this clause shall not apply to any Confidential Information that:
  • (A) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
• (B) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
• (C) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;

• (D) the parties agree in writing is not confidential or may be disclosed; or
• (E) is developed by or for the receiving party independently of the information.

• 12.3 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
  • (A) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
• (B) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.

12.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

• • (A) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
  • (B) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
• 12.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
• 12.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.

12.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.

• 12.8 On termination or expiry of this agreement, each party shall:

• • (A) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
  • (B) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
  • (C) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Termination).
• 12.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.

• 12.11 The above provisions of this clause 11 shall continue to apply for a period of five years from termination or expiry of this agreement.

 

13. Limitation of liability

WARNING: the Customer is strongly advised to read this clause.

• 13.1 Except as expressly and specifically provided in this agreement:

(A) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such Citipost shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Citipost by the Customer in connection with the Services, or any actions taken by Citipost at the Customer’s direction;

• (B) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
• (C) the Services and the Documentation are provided to the Customer on an “as is” basis.

13.2 Nothing in this agreement excludes the liability of Citipost:

• • (A) for death or personal injury caused by Citipost’s negligence; or
  • (B) for fraud or fraudulent misrepresentation.
    • 13.3 Subject to clause 1 and clause 13.2:
      • (A) Citipost shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of revenue, loss of contracts, loss of business, depletion of goodwill, loss of anticipated savings, loss or damage to goodwill, and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
    • (B) Citipost’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £5000.
    • 13.4 The Customer shall defend, indemnify and hold harmless Citipost against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation.

• 13.5 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Citipost’s Intellectual Property Rights.

 

14. Term and termination

• 14.1 This agreement shall commence on the Effective Date and shall continue until terminated in accordance with the provisions of this agreement.

• 14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party fails to pay any amount due under this agreement or any other agreement it has with the other party on the due date for payment.
• 14.3 Without affecting any other right or remedy available to it, Citipost may immediately terminate this agreement on written notice to the Customer in the event that Citipost’s right to access the Mailmark Services terminates.

• 14.4 Citipost may terminate this agreement:
  • (A) on giving not less than 7days’ written notice to the Customer; or
  • (B) immediately on giving written notice to the Customer if Citipost ceases to supply its services under the terms of any other contract or agreement to the Customer for any reason.
• 14.5 On termination of this agreement for any reason:
  • (A) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
• (B) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
• (C) Citipost may destroy or otherwise dispose of any of the Customer Data in its possession;

• (D) 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 shall not be affected or prejudiced.

 

15. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

16. Waiver

• • 16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  • 16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

   

  17. Rights and remedies

  Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

• 18. Severance
  • 18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
• • 18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

   

  19. Entire agreement

• 19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
• 19.2 Each party acknowledges that in entering into this agreement it does not rely on, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

• 19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

 

20. Assignment

• 20.1 The Customer shall not, without the prior written consent of Citipost, assign, novate, transfer, charge, sub- contract or deal in any other manner with all or any of its rights or obligations under this agreement.
• 20.2 Citipost may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

 

21. No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

22. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

23. Counterparts

• 23.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
• 23.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the other with the “wet ink” hard copy original(s) of their counterpart.

• 23.3 No counterpart shall be effective until each party has delivered to the other(s) at least one executed counterpart.

 

24. Notices

• 24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

• (A) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
• (B) sent by email to the following addresses (or an address substituted in writing by the party to be served):
• (i) Citipost: commercial@citipost.co.uk
• (ii) Party 2: [ADDRESS].

• 24.2 Any notice shall be deemed to have been received:
  • (A) if delivered by hand, at the time the notice is left at the proper address;
  • (B) if sent by pre-paid first-class post or other next working day delivery service, at 00 am on the second Business Day after posting; or if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
• • 24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

   

  25. Governing law

• This agreement 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 interpreted in accordance with the law of England and Wales.26. JurisdictionEach party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).This agreement has been entered into on the date stated at the beginning of it.