INKPACT MARKETING LIMITED
REGISTERED USER TERMS
WEBSITE TERMS AND CONDITIONS OF SERVICE
PART 1 – REGISTERED USER TERMS
1.1. Inkpact is a business-to-business supplier of personalised handwritten communications.
1.2. A registered user is a person who has registered to use our website at: https://inkpact.com/ including our online service platform for registered user’s [known as ‘[Insert]’] (“Registered User”) in accordance with these Registered User Terms. Please read these Registered User Terms before creating an account.
1.3. If you elect to create an account with us and become a registered user, the Registered User terms (Part 1) apply to your registered status:
1.3.1. ‘Sign-up and Go’: If you are a registered user who uses our Services on a ‘Sign-up and Go basis’ (i.e. without a Customer Contract or Framework Agreement), Part 1 (Registered User Terms) and Part 2 (Website Terms and Conditions of Service) apply to you. Words and expressions defined in the Website Terms and Conditions of Service have the same meanings in these Registered User Terms.
1.3.2. Customer Contract: If you are a registered user who has a separate Customer Contract for our Services, Part 1 (Registered User Terms) and the terms of your Customer Contract apply to you. Words and expressions defined in your Customer Contract with Inkpact have the same meanings in these Registered User Terms.
1.3.3. Framework Agreement: If you are a registered use who has a separate Framework Agreement for our Services, Part 1 (Registered User Terms) and the terms of your Framework Agreeement apply to you. Words and expressions defined in your Framework Agreement with Inkpact have the same meanings in these Registered User Terms.
1.4. Inkpact may amend the Registered User Terms form time time. Unless we provide a delayed effective date, all amendments will be effective upon our publication of of such updated Registered User Terms. Your continued access to and use of our Website (including the Platform) after such posting constitutes your consent to be bound by such Registered User Terms, as amended.
1.5. The Registered User Terms will not apply to consumers and we do not knowingly contract with consumers on these Registered User Terms. In order to become a Registered User you must:
1.5.1. not be acting in your capacity as a consumer;
1.5.2. be an individual acting on behalf of a business and be of at least 18 years of age; and
1.5.3. provide accurate information at registration and in all future interactions with us and with third parties, and all such information must be true, accurate, current and complete.
1.6. Upon duly completing the relevant registration process and creating a username and password, you will be registered as a registered user of the Website.
2. Your Account
2.1. You are solely responsible for holding and managing your account, including protecting the identity of your password and maintaining proper control and supervision of your account, and you are solely responsible for your use of our Website and for the use of our Website by anyone who uses our Website under your user account profile.
2.2. If you choose, or if you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Registered User Terms.
2.3. If you know or suspect that anyone other than you knows your user identification code or password, you must immediately reset your username and/or password and notify us at: email@example.com.
2.4. Your account is non-transferable and may not be sold, combined or otherwise shared with any other person. You may not, without our prior consent, create any additional accounts or multiple passwords whilst your original account is active. You may not create an additional account following suspension of an original account.
2.5. The Website is our private property. All interactions with the Website must be lawful and in compliance with these Registered User Terms at any time.
2.6. You may not commit or attempt any fraud including deliberately submitting any inaccurate information or falsifying any information in connection with your use of the Website or your account, and if this occurs you are responsible for any and all losses and damages that we may suffer or incur as a result of your actions. We may also notify your internet service provider of any fraudulent activity we associate with you or your use of the Website or your account.
2.7. If you breach these Registered User Terms or if we consider your conduct to be unacceptable in any way, including if you restrict or inhibit other users from using, accessing, or enjoying any part of our Website at any time, we may in our sole discretion immediately limit your privileges or suspend or close your account and, without prejudice to our other rights and remedies, we may cancel any of your pending, current or future credits and any un-redeemed certificates in your account.
2.8. If your account is closed you may not join under a new account or re-enrol unless we formally invite you to do so. These Registered User Terms will survive any closure or termination of your account.
3.1. If we modify our Website in a way that will significantly affect your use of the Website or any of our Services, we will notify you through the email address registered to your account and/or by posting a notice of such change on our Website. You agree to electronic communications and acknowledge that all contractual notices and other communications that we provide electronically comply with any requirement that they must be in writing. This does not affect your statutory rights.
3.3. These Registered User Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
PART 2 – WEBSITE TERMS AND CONDITIONS OF SERVICE
1.1. Please be aware that these “Website Terms and Conditions of Service” (also referred to as “this Agreement”) only apply to registered users who do not have a separate ‘Customer Contract’ or ‘Framework Agreement’ with Inkpact (a “Sign-up and Go Customer”). Where a registered user has a Customer Contract or Framework Agreement with Inkpact, the terms of the Customer Contract or Framework Agreement (as applicable) shall apply at the exclusion of this Agreement.
1.2. Subject to clause 1.1, this Agreement applies where a Sign-up and Go Customer wishes to obtain and Inkpact wishes to provide the Services. In order to submit an order for Services on the Website a Sign-up and Go Customer must become a Registered User and the Registered User Terms form part of this Agreement.
2.1 The following definitions and rules of interpretation apply in this Agreement:
Applicable Laws: all applicable laws, statutes and regulations from time to time in force which apply to the Services and this Agreement.
Business Day: a day, other than a Saturday, Sunday or public holiday in England.
Campaign: unless otherwise agreed in writing by Inkpact, an order for the Services in relation to not less than 20 Note Cards.
Change Order: has the meaning given in clause 8.1.
Charges: the chargesfor the Services which shall be calculated either as a cash amount or as a number of Credits in accordance with the Rate Card.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing: as defined in the UK GDPR.
Credits: the credits purchased by the Sign-up and Go Customer which can be exchanged for Services by placing an order for a Campaign in accordance with the terms of this Agreement.
Credit Cycle: has the meaning given in clause 4.3.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK retained version of the General Data Protection Regulation ((EU) 2016/679) (“UK GDPR”); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Deliverables: (a) the provision of the Website with a suitable platform to allow the Sign-up and Go Customer to arrange its Campaign(s) including to submit recipient information; and (b) any output of the Services performed by Inkpact including the Note Cards in respect of a Campaign(s).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Note Card: a handwritten personal communication (each a “Note Card” and together the “Note Cards”).
Note Card Price: the price for the Services in respect of each Note Card as may be communicated to the Sign-up and Go Customer by Inkpact from time to time.
Sign-up and Go Customer: has the meaning given at clause 1.1.
Rate Card: means the document or list provided to you containing the prices and descriptions of the different types of Campaigns and the Charges for such Campaigns (as may be amended and updated by Inkpact from time to time) and for purchasing Credits.
Registered User: as defined in the Registered User Terms.
Sign-up and Go Customer Materials: all documents, data, information, items and materials in any form, whether owned by Sign-up and Go Customer, its Registered Users or a third party, which are provided by the Sign-up and Go Customer to Inkpact in connection with the Services, including the items provided pursuant to clause 6.1.3.
Services: the services to be provided by Inkpact in relation to a Campaign including those set out at clause 5.1.
Website: Inkpact’s website at www.inkpact.com.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
2.2 A reference to:
2.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.2.2 a company includes any company, corporation or other body corporate, wherever and however incorporated or established;
2.2.3 words in the singular will include the plural and in the plural will include the singular, unless the context requires otherwise;
2.2.4 one gender will include a reference to the other genders, unless the context requires otherwise;
2.2.5 a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to and will include all subordinate legislation made from time to time under that statute or statutory provision;
2.2.6 writing or written includes email but not fax;
2.2.7 references to the this Agreement or to the Website Terms and Conditons of Service or any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time;
2.2.8 including or include or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.3 Clause, Schedule and paragraph headings will not affect the interpretation of this Agreement.
2.4 The Schedules form part of this Agreement and will have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
2.5 This Agreement will be binding on, and enure to the benefit of, the Sign-up and Go Customer and their respective personal representatives, successors and permitted assigns, and references to any party will include that party’s personal representatives, successors and permitted assigns.
2.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.7 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
3. Placing an Order
3.1 A Sign-up and Go Customer can submit an order for Services via the Website. Each order submitted must be in respect of a Campaign.
3.2 At the point of submitting an order for a Campaign, Inkpact will notify the Sign-up and Go Customer of the Charges in respect of the Campaign in accordance with the Rate Card. The Sign-up and Go Customer can then elect to:
3.2.1 pay the Charges by cash, using a credit/debit card or any other current, valid and accepted method of payment available on the Website, at the point of submitting the order for the Campaign; or
3.2.2 allocate its pre-paid Credits in satisfaction of the Charges, provided the Sign-up an Go Customer has sufficient Credits available to pay for such Campaign.
4.1 At the point of submitting an order to purchase Credits, Inkpact will notify the Sign-up and Go Customer of the Charges in respect of such Credits in accordance with the Rate Card.
4.2 Where a Sign-up and Go Customer purchases Credits from Inkpact, Inkpact will allot such Credits to the Sign-up and Go Customer’s account. The Sign-up and Go Customer can choose how to use its Credits across the various Services available to the Sign-up and Go Customer via its account on the Website, by placing and order for a Campaign(s) and electing the option to pay by Credits described at clause 3.2.2.
4.3 Unless Inkpact communicate a different time period to the Sign-up and Go Customer, at the time of signing-up as a Registered User or otherwise, each Credit shall be valid for a period of three (3) months from the date which the Credit(s) are allotted to the Sign-up and Go Customer’s account (“Credit Cycle”).
4.4 Credits are to be solely used for Campaigns ordered during the Credit Cycle and have no cash value or other value outside the Website and are not redeemable for cash. The Sign-up and Go Customer may not transfer, trade, gift or otherwise exchange Credits.
4.5 Unused Credits expire at the end of each Credit Cycle, meaning that Credits which the Sign-up and Go Customer does not use during the Credit Cyle will not roll over into future months.
4.6 The Credits may be used by the Sign-up and Go Customer for any type of Campaign offered by Inkpact from time to time subject to the prices notified to the Sign-up and Go Customer by Inkpact. Inkpact reserves the right to modify, terminate or amend its offered Services and prices at any time.
5. Inkpact’s Responsibilities
5.1 Subject to the the terms of this Agreement, Inkpact shall provide the following “Services”:
5.1.1 allocate the Sign-up and Go Customer’s account with any Credits it purchases in accordance with clause 4;
5.1.2 use its best endeavours to make its Website and a suitable platform available to the Sign-up and Go Customer to allow the Sign-up and Go customer to submit details of its Campaign(s) and receipient information;
5.1.3 create the Note Cards requested in any Campaign(s) from time to time and deliver such Note Cards to the recipients in accordance with the delivery instructions provided by the Sign-up and Go Customer;
5.1.4 use reasonable endeavours to meet any performance dates specified on the Website, or requested by the Sign-up and Go Customer when submitting an order for a Campaign, but any such dates will be estimates only and time for performance by Inkpact will not be of the essence of this Agreement. For the avoidance of doubt, Inkpact shall not in any circumstance be responsible for any delay in the delivery of any Deliverables caused by the performance of any third party suppliers including any supplier (such as the Royal Mail) engaged to effect delivery of the Note Cards.
5.1.5 notify the Sign-up and Go Customer when all Note Cards forming part of a Campaign have been dispatched to the intended recipients; and
5.1.6 in performing its obligations under this Agreement, comply with Applicable Laws. Changes to the Services required as a result of changes to Applicable Laws will be agreed via the change control procedure set out in clause 8.
6. Registered Customer’s Obligations
6.1 The Sign-up and Go Customer will:
6.1.1 unless otherwise agreed in writing, ensure the address for all recipients of handwritten personalised communications will be in the UK, Isle of Man, Jersey or Guernsey. If Inkpact agrees to deliver handwritten personalised communications to addresses in other locations, additional delivery costs will apply;
6.1.2 co-operate with Inkpact in all matters relating to the Campaign and any other Services and Deliverables;
6.1.3 provide to Inkpact in a timely manner all documents, data, information, items and materials in any form (whether owned by the Sign-up and Go Customer or third party) requested by Inkpact and any other information otherwise reasonably required by Inkpact in connection with the Services and ensure that they are accurate and complete. Information shall include, but not be limited to: the titles, names and addresses of recipients of handwritten personalised communications, as well as the personalised message to be contained in the relevant communication;
6.1.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Inkpact to provide the Services; and
6.1.5 ensure that all recipient contact information provided to Inkpact is accurate and complete. Inkpact will not be responsible for checking any recipient information before dispatching handwritten communications.
6.2 If Inkpact’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Sign-up and Go Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Inkpact will be allowed an extension of time to perform its obligations equal to the delay caused by the Sign-up and Go Customer.
7.1 The Sign-up and Go Customer will not, without the prior written consent of Inkpact, at any time from the date of this Agreement to the expiry of 6 months after the termination of its account, solicit or entice away from Inkpact or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Inkpact in the provision of the Services.
7.2 Any consent given by Inkpact in accordance with clause 7.1 will be subject to the Sign-up and Go Customer paying to Inkpact a sum equivalent to 20% of the then current annual remuneration of Inkpact’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Sign-up and Go Customer to that employee, consultant or subcontractor.
8. Change Control
8.1 Either party may propose changes to the scope or execution of the Services but no proposed changes will come into effect until a Change Order has been signed by both parties. A Change Order will be a document setting out the proposed changes and the effect that those changes will have on:
8.1.1 the Services including any live Campaigns;
8.1.2 Inkpact’s existing Charges and/or the Sign-up and Go Customer’s Credits;
8.1.3 The timetable of the Services including any live Campaigns; and
8.1.4 any of the terms of this Agreement.
8.2 If Inkpact wishes to make a change to any Services (incluing in respect of a particular Campaign) it will provide a draft Change Order to the Sign-up and Go Customer.
8.3 If the Sign-up and Go Customer wishes to make a change to the Services:
8.3.1 it will notify Inkpact and provide as much detail as Inkpact reasonably requires of the proposed changes, including the timing of the proposed changes; and
8.3.2 Inkpact will, as soon as reasonably practicable after receiving the information at clause 8.3.1, provide a draft Change Order to the Sign-up and Go Customer.
8.4 If the parties:
8.4.1 agree to a Change Order, they will sign it and that Change Order will amend this Agreement; or
8.4.2 are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 29.
9. Charges and Payments for the Credits
9.1 Where a Sign-up and Go Customer purchases Credits, Inkpact will invoice the Sign-up and Go Customer for the cost of such Credits and will credit the Sign-up and Go Customer’s account with such Credits in accordance with clause 4.
9.2 The Sign-up and Go Customer will pay each invoice submitted to it by Inkpact in respect of Credits purchased within 30 days of receipt to a bank account nominated in writing by Inkpact from time to time.
9.3 Should the Sign-up and Go Customer dispute any invoice, it will notify Inkpact immediately and the parties will enter into good faith negotiations to resolve the dispute promptly.
9.4 Without prejudice to any other right or remedy that it may have, if the Sign-up and Go Customer fails to pay Inkpact any sum due under this Agreement on the due date:
9.4.1 the Sign-up and Go Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.4.1 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
9.4.2 Inkpact may cease applying any further Credits to the Sign-up and Go Customer’s account; and
9.4.3 Inkpact may suspend the Services (in whole or part) including in respect of any Campaigns ordered until such time that payment has be made in full.
9.5 All sums payable to Inkpact under this Agreement:
9.5.1 are exclusive of VAT, and the Sign-up and Go Customer will in addition pay any amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
9.5.2 will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law)).
10. Intellectual Property Rights
10.1 In relation to the Deliverables:
10.1.1 Inkpact and its licensors will retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Registered Customer Materials;
10.1.2 Inkpact grants the Sign-up and Go Customer, or will procure the direct grant to the registered use, a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy and modify the Deliverables (excluding the Sign-up and Go Customer Materials) for the purpose of receiving and using the Services and the Deliverables; and
10.1.3 the Sign-up and Go Customer will not sub-license, assign or otherwise transfer the rights granted in clause 10.1.2.
10.2 In relation to the Sign-up and Go Customer Materials, the Sign-up and Go Customer:
10.2.1 and its licensors will retain ownership of all Intellectual Property Rights in the Sign-up and Go Customer Materials;
10.2.2 grants Inkpact a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Sign-up and Go Customer Materials for the purpose of providing the Services;
10.2.3 warrants that the receipt and use of the Sign-up and Go Customer Materials in the performance of this Agreement by Inkpact, its agents, subcontractors or consultants will not infringe the rights, including any Intellectual Property Rights, of any third party;
10.2.4 will indemnify Inkpact in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Inkpact arising out of or in connection with any claim brought against Inkpact, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Sign-up and Go Customer Materials.
10.3 If the Sign-up and Go Customer uploads, shares or otherwise makes its logo, branding and/or trade marks available to Inkpact, including via Inkpact’s Website, for inclusion in any handwritten personalised communication:
10.3.1 the Sign-up and Go Customer grants to Inkpact a fully paid-up, non-exclusive, royalty-free, non-transferable licence to utilise such logo, branding and/or trademark for the purpose of providing the Services;
10.3.2 the Sign-up and Go Customer warrants that the receipt and use of its logo, branding and/or trade mark in the performance of this Agreement by Inkpact, its agents, subcontractors or consultants will not infringe the rights, including any Intellectual Property Rights, of any third party; and
10.3.3 the Registered User will indemnify Inkpact in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Inkpact arising out of or in connection with any claim brought against Inkpact, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Sign-up and Go Customer’s logo, branding and/or trade mark.
10.4 Inkpact will:
10.4.1 notify the Sign-up and Go Customer in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 10.2.4 or 10.3.3 (“IPRs Claim”);
10.4.2 allow the Sign-up and Go Customer, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Sign-up and Go Customer will obtain Inkpact’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
10.4.3 provide the Sign-up and Go Customer with such reasonable assistance regarding the IPRs Claim as is required by the Sign-up and Go Customer, subject to reimbursement by Inkpact of Inkpact’s costs so incurred; and
10.4.4 not, without prior consultation with the Sign-up and Go Customer, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Sign-up and Go Customer considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of Inkpact into disrepute.
11.1 The Sign-up and Go Customer consents to Inkpact’s use of the Sign-up and Go Customer’s testimonials, case studies, name, branding, trade marks(s) and logo on Inkpact’s website, slide decks and other marketing materials for Inkpact’s marketing, advertising and promotional purposes.
11.2 If the Sign-up and Go Customer disapproves of any use by Inkpact of the Sign-up and Go Customer’s testimonials, case studies, name, branding, trademark(s) or logo, it will give written notice to Inkpact and the parties will use their best endeavours to work together to resolve the issue and agree any necessary changes to the use by Inkpact of the Sign-up and Go Customer’s testimonials, case studies, name, branding, trademark(s) or logo to the minimum extent possible to alleviate the Sign-up and Go Customer’s concerns.
12. Data Protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Sign-up and Go Customer is the controller and Inkpact is the processor.
12.3 This clause 12.3 sets out the scope, nature and purpose of processing by Inkpact, the duration of the processing and the types of personal data and categories of data subject:
12.3.1 Scope and purpose of processing: The scope and purpose of processing of personal data by Inkpact is limited to the processing required for its fulfilment of its obligations under this Agreement.
12.3.2 Nature of processing: Inkpact will receive the personal data described in clause 12.3.5 and access, use and store it in order to fulfil the purposes described in clause 12.3.1.
12.3.3 Duration of processing: The processing of personal data will be limited to the duration of this Agreement.
12.3.4 Categories of data subject: Employees and representatives of the Sign-up and Go Customer and the recipients of handwritten personalised communications, as directed by the Sign-up and Go Customer.
12.3.5 Types of personal data: The titles, names and addresses recipients of handwritten personalised communications, as well as the personalised message to be contained in the relevant communication. Titles, names and email addresses of the employees and representatives of the Sign-up and Go Customer. Any other categories of personal data which the Sign-up and Go Customer makes available to Inkpact from time to time.
12.4 Without prejudice to the generality of clause 12.1, the Sign-up and Go Customer will ensure that:
12.4.1 it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Inkpact for the duration and purposes of this Agreement;
12.4.2 it is not in breach (and will not place Inkpact in breach) of the Data Protection Legislation or any other Applicable Laws in requesting Inkpact to send personalised handwritten communications to particular recipients.
12.5 Without prejudice to the generality of clause 12.1, Inkpact will, in relation to any personal data processed in connection with the performance by Inkpact of its obligations under this Agreement:
12.5.1 process that personal data only on the documented written instructions of the Sign-up and Go Customer as set out in this Agreement unless Inkpact is required by the Applicable Laws to otherwise process that personal data. Where Inkpact is relying on the Data Protection Legislation as the basis for processing personal data, Inkpact will promptly notify the Sign-up and Go Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Inkpact from so notifying the Sign-up and Go Customer;
12.5.2 ensure that it has in place appropriate technical and organisational measures, Sign-up and Go Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.5.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
12.5.4 save as provided by this clause 12, not transfer any personal data outside of the UK unless prior written consent of the Sign-up and Go Customer has been obtained and the following conditions are fulfilled:
(a) the Sign-up and Go Customer or Inkpact has provided appropriate safeguards in relation to the transfer (such as the European Commison approved Standard Contractual Clauses (SCCs) for transfers of Personal Data outside the UK where there is no adequacy decision);
(b) the data subject has enforceable rights and effective legal remedies;
(c) Inkpact complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) Inkpact complies with reasonable instructions notified to it in advance by the Sign-up and Go Customer with respect to the processing of the personal data;
12.5.5 assist the Sign-up and Go Customer, at the Sign-up and Go Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.5.6 notify the Sign-up and Go Customer without undue delay on becoming aware of a personal data breach;
12.5.7 at the written direction of the Sign-up and Go Customer, delete (subject to clause 12.6) or return personal data and copies thereof to the Sign-up and Go Customer on termination of this Agreement unless required by Applicable Law to store the personal data; and
12.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and allow for audits by the Sign-up and Go Customer or the Sign-up and Go Customer’s designated auditor and immediately inform the Sign-up and Go Customer if, in the opinion of Inkpact, an instruction infringes the Data Protection Legislation.
12.6 Notwithstanding clause 12.5.7, the Sign-up and Go Customer acknowledges and agrees that it is responsible for deleting the data (including Personal Data) it uploads to Inkpact’s platform via Inkpact’s website when such data (including Personal Data) is no longer required to be utilised by Inkpact in connection with its performance of the Services. However, where the Sign-up and Go Customer has not carried out such action Inkpact will securely delete or destroy or, if directed in writing by the Sign-up and Go Customer, return and not retain, all or any of the Personal Data related to this Agreement in its possession or control within 10 working days of termination or expiry of of this Agreement.
12.7 The Sign-up and Go Customer consents to Inkpact entering into standard contractual model clauses approved by the European Commission in the Sign-up and Go Customer’s name and on the Sign-up and Go Customer’s behalf with Inkpact’s Indian IT service provider, Tarral Softtech.
12.8 The Sign-up and Go Customer consents to Inkpact appointing its scribes and writers (in the UK and US), IT service providers (in the UK and US), software developers (in the UK and India), logistics and delivery service providers (in such territories where delivery is required), professional advisors (in the UK and US) and any other service provider engaged by Inkpact to enable it to perform the Services, as third party processors of Personal Data under this Agreement. Inkpact confirms that it has entered or (as the case may be) will enter with the third party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 12 and which Inkpact confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Sign-up and Go Customer and Inkpact, Inkpact will remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 12.
13.1 Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party will use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
14. Limitation of Liability
14.1 Nothing in this Agreement limits any liability which cannot legally be limited, including (without limitation) liability for:
14.1.1 death or personal injury caused by negligence;
14.1.2 fraud or fraudulent misrepresentation; and
14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2 Subject to clause 14.1, Inkpact’s total liability to the Sign-up and Go Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Agreement shall be limited to an aggregate amount equal to the Charges paid or payable by the Sign-up and Go Customer in respect of the Services for the Campaign in respect of which the breach (or series of breaches) giving rise to the liability occurred.
14.3 The following types of loss are wholly excluded by the parties:
14.3.1 loss of profits;
14.3.2 loss of sales or business;
14.3.3 loss of agreements or contracts;
14.3.4 loss of anticipated savings;
14.3.5 loss of use or corruption of software, data or information;
14.3.6 loss of or damage to goodwill;
14.3.7 indirect or consequential loss.
14.4 Inkpact has given commitments as to compliance of the Services with relevant specifications in clause 5. In view of these commitments, the terms implied by sections 3 and 4 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
14.5 Unless the Sign-up and Go Customer notifies Inkpact that it intends to make a claim in respect of an event within the notice period, Inkpact will have no liability for that event. The notice period for an event will start on the day on which the Sign-up and Go Customer became, or ought reasonably to have become, aware of the event having occurred and will expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.1 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:
15.1.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
15.1.2 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
15.1.3 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
15.1.4 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 any of its creditors other than (being a company) 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;
15.1.5 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;
15.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
15.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
15.1.9 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 the other party’s assets and such attachment or process is not discharged within 14 days;
15.1.10 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 15.1.3 to clause 15.1.9 (inclusive); or
15.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2 Without affecting any other right or remedy available to it, Inkpact may terminate this Agreement with immediate effect by giving written notice to the Sign-up and Go Customer if:
15.2.1 the Sign-up and Go Customer commits any act which causes Inkpact’s name to be brought into disrepute, contempt, scandal or ridicule;
15.2.2 the Sign-up and Go Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified to make such payment; or
15.2.3 there is a change of control of the Sign-up and Go Customer.
16. Consequences of Termination
16.1 On termination of this Agreement:
16.1.1 the Sign-up and Go Customer will immediately pay to Inkpact all of Inkpact’s outstanding unpaid invoices and interest and, in respect of the Services supplied or Credits applied to the Sign-up and Go Customer’s account but for which no payment has been made or no invoice has been submitted, Inkpact may submit an invoice, which will be payable immediately on receipt;
16.1.2 Inkpact will on request return any of the Sign-up and Go Customer Materials not used up in the provision of the Services;
16.1.3 the Sign-up and Go Customer will delete any data (including Personal Data) it uploads to Inkpact’s Website; and
16.1.4 the following clauses will continue in force: clause 2, clause 7, clause 9, clause 13, clause 14, clause 15, clause 20, clause 22, clause 24, clause 29, clause 30 and clause 31.
16.2 Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
17. Force Majeure
17.1 “Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation:
17.1.1 acts of God, flood, drought, earthquake or other natural disaster;
17.1.2 epidemic or pandemic;
17.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
17.1.4 nuclear, chemical or biological contamination or sonic boom;
17.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
17.1.6 collapse of buildings, fire, explosion or accident;
17.1.7 non-performance, strike or service failure of or in relation to delivery providers or couriers instructed by Inkpact;
17.1.8 non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause 17); and
17.1.9 interruption or failure of utility service.
17.2 Provided it has complied with clause 17.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party”), the Affected Party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations will be extended accordingly.
17.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
17.4 The Affected Party will:
17.4.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
17.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 8 weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving 4 weeks’ written notice to the Affected Party.
18. Assignment and Other Dealings
18.1 This Agreement is personal to the Sign-up and Go Customer and the Sign-up and Go Customer will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
18.2 Inkpact may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
Subject to clause 8 (Change control), no variation of this Agreement will be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
20.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law will prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and Remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this Agreement.
22.2 If any provision or part-provision of this Agreement is deemed deleted under clause 22.1 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Entire Agreement
23.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2 Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement will prevail.
25. No Partnership or Agency
25.1 Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26. Third Party Rights
26.1 Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
27.1 Any notice given to a party under or in connection with this Agreement will be in writing and will be 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).
27.2 Any notice will be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address and if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
27.3 This clause 27 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27.4 A notice given under this Agreement is not valid if sent by email.
This Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
29. Multi-tiered Dispute Resolution Procedure
29.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then except as expressly provided in this Agreement, the parties will follow the procedure set out in this clause 29.1:
29.1.1 either party will give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Sign-up and Go Customer and Inkpact will attempt in good faith to resolve the Dispute;
29.1.2 if the Sign-up and Go Customer and Inkpact are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute will be referred to a director (or person of similar seniority and authority) the Sign-up and Go Customer and Inkpact who will attempt in good faith to resolve it; and
29.1.3 if the directors (or persons of similar seniority and authority) of both parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
29.2 The commencement of mediation will not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 31 which will apply at all times.
29.3 If the Dispute is not resolved within 40 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 14 days, or the mediation terminates before the expiration of the said period of 14 days, the Dispute will be finally resolved by the courts of England and Wales in accordance with clause 31.
30. Governing Law
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.