1. Definitions and interpretation
1.1 In this Agreement:
Account Application Form means the form completed and signed by the Customer (whether in hard copy or electronically) setting out amongst other things the Customer’s name and address, an account number (as allocated by Imail Comms Limited) and an account type;
Agreement means the agreement between Imail Comms Limited and the Customer constituted by an Account Application Form, where applicable the Mailing Profile(s), these terms and conditions (as varied from time to time) and the Service Specification;
Charges means Imail Comms charges for the provision of the imail Service in respect of the imail Mailing Items, as published on the imail Website, or where applicable, as agreed in a Mailing Profile, and as may be varied or supplemented under the provisions of this Agreement; Customer means the person entering into this Agreement and responsible for the imail Mailing Items that are electronically conveyed to Imail Comms Limited under this Agreement as identified in the Account Application Form;
imail Identity means the root password protected logon that allows the Customer access to the imail Service;
imail Service means the service set out in the Service Specification; Indicator means the marks, impressions or other devices used by Imail Comms Limited on each imail Mailing Item to be conveyed by Imail Comms Limited under this Agreement;
imail Website means the website giving the Customer access to the imail Service, the URL of which is www.imailprint.co.uk (but which Imail Comms Limited may change from time to time).
Intellectual Property Rights means all patents, registered designs, trademarks and service marks (whether registered or not), copyright, database rights, design right, know-how, information and all similar property including that subsisting (in any part of the world) in inventions, designs, performances, computer programs, semiconductor topographies, confidential information, business names, goodwill and the styles of presentation of goods or services and in applications for protection of them in any jurisdiction;
Licensed Software means the software made available by Imail Comms Limited to the Customer whether by web browser, downloadable print driver or Autolink softwarefor use by the Customer, in conveying imail Mailing Items to Imail Comms Limited in accordance with this Agreement;
Mailing Profile means agreed parameters of imail Mailing Items to be electronically conveyed by the Customer to Imail Comms Limited in accordance with this Agreement, set out in documents signed by Imail Comms Limited and the Customer (whether in hard copy or electronically) from time to time;
imail Mailing Item means a letter or postcard as described in the Service Specification, which is electronically conveyed to Imail Comms Limited in accordance with the requirements set out in the Service Specification and which is subsequently processed under the imail Service;
Royal Mail means Royal Mail Group Ltd;
Scheme means the Post Office Inland Letter Post Scheme IL1/2000 (as amended from time to time) and any replacement or similar Scheme or Schemes (and any amendments thereto) relating to inland postal services made or deemed to have been made by Royal Mail from time to time under section 89 of the Postal Services Act 2000;
Service Specification means the specification for the imail Service set out in the imail Service Specification published by Imail Comms Limited from time to time;
Imail Comms Limited means Imail Comms Limited (company number 13535125) with its registered office at 2 Hillman Way, Ryton on Dunsmore, CV8 2EA. VAT number 387260276.
1.2 In this Agreement (except where the context otherwise requires):
a) any reference to a clause is to the relevant clause of this Agreement;
b) the clause headings are included for convenience of reference only and shall not affect the interpretation of this Agreement;
c) use of the singular includes the plural and vice versa and use of any gender includes the other gender;
d) the words “include”, “including” and “in particular” shall be construed as being by way of illustration or emphasis and shall not limit or prejudice the generality of the foregoing words; and
e) reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted.
1.3 The Service Specification forms part of this Agreement and shall have effect as if set out in full in the main body of this Agreement and any reference to this Agreement includes the Service Specification. However, in the event of there being any conflict between the wording of the Service Specification and the main body of this Agreement, the main body of the Agreement shall prevail.
1.4 The provisions of the Scheme insofar as not inconsistent with this Agreement are hereby incorporated into this Agreement. The Customer shall be deemed to be the “sender” for the purposes of the Scheme and for the purpose of the Scheme any reference in the Scheme to Royal Mail or the Post Office shall be read as including (where the context permits) a reference to Imail Comms Limited.
2. Service Obligation
2.1 Imail Comms Limited shall in accordance with this Agreement process all imail Mailing Items that have been accepted by Imail Comms Limited under the imail Service.
2.2 Imail Comms Limited shall notify the Customer electronically when an imail Mailing Item has been accepted for processing under the imail Service. Imail Comms Limited reserves the right to reject or refuse to accept any imail Mailing Item that fails to comply with the Service Specification or the terms of this Agreement.
2.3 The Service Specification sets out Imail Comms service level target. The Customer acknowledges that Imail Comms Limited is required to use Royal Mail for the final sortation and delivery, and accordingly is not able to offer any assurance as to the actual delivery date of any imail Mailing Item. Accordingly, Imail Comms Limited shall not be liable to the Customer or to any other person for failure to deliver within this target (whether as a result of a breach of this clause or otherwise).
3. Equipment and imail Mailing Items
3.1 The Customer shall at its expense obtain and, for the duration of this Agreement, maintain such equipment as is necessary to enable the Customer to electronically convey imail Mailing Items to Imail Comms Limited for processing under the imail Service. It is the Customer’s responsibility to ensure that such equipment complies with the specifications and requirements set out in the Service Specification.
3.2 The Customer shall ensure that each imail Mailing Item that it electronically conveys to Imail Comms Limited conforms to the requirements set out in the Service Specification and where applicable, the Mailing Profile.
3.3 The Customer warrants that either it is the owner of all imail Mailing Items that it electronically conveys to Imail Comms Limited for processing under the imail Service or if not the owner it is an agent of the owner and is authorised to electronically convey the imail Mailing Items on the owner’s behalf for such processing by Imail Comms Limited.
3.4 The Customer shall ensure that:
a) each imail Mailing Item will comply with the Scheme (except as expressly permitted by this Agreement); and
b) the Mailing Preference Service’s Suppression File is applied to all relevant imail Mailing Items.
3.5 The Customer shall procure that the contents of all imail Mailing Items that are electronically conveyed to Imail Comms Limited conform to the British Codes of Advertising and Sales Promotion. Any breach of this clause 3.5 shall be deemed not to be capable of remedy for the purpose of clause 8.2.
3.6 The Customer acknowledges that imail Mailing Items that are processed by Imail Comms Limited under the imail Service shall be printed to the standard of the Service Specification. Imail Comms Limited shall not be liable to the Customer in respect of the accuracy or consistency of the printing of the imail Mailing Items where the printing of such imail Mailing Items complies with the Service Specification.
3.7 The Customer warrants that it is either the owner of the intellectual property vested in the content (including but not limited to graphics, images and text) of any imail Mailing Item it conveys to Imail Comms Limited under the imail Service or it is otherwise licensed or authorised to use such intellectual property.
3.8 The Customer shall grant a royalty free license to Imail Comms Limited for the purpose of allowing Imail Comms Limited to perform its obligations under this Agreement, or shall obtain any required third party licence for Imail Comms Limited for the purposes of performing its obligations under this Agreement.
3.9 The Customer shall indemnify Imail Comms Limited and/or Royal Mail and render it harmless against any and all losses, including without limitation all claims, damages, awards, expenses (including legal expenses) suffered or incurred by Imail Comms Limited and/or Royal Mail in respect of any and all matters arising out of, or in connection with any breach by the Customer of clauses 3.7 and 3.8.
3.10 Without prejudice to the generality of the foregoing, Imail Comms Limited and Royal Mail reserves the right to reject any imail Mailing Item that does not conform to the Service Specification.
4. Licensed Software
4.1 Imail Comms Limited in consideration of the payment by the Customer from time to time of the Charges in accordance with clause 6 hereby grants to the Customer for the duration of this Agreement a non-exclusive, non-transferable licence to use the Licensed Software for the purposes of the imail Service upon the terms and conditions of this Agreement.
4.2 Imail Comms Limited warrants that it has the right, power and authority to license the Licensed Software to the Customer upon the terms and conditions of this Agreement.
4.3 Imail Comms Limited does not warrant that the Customer’s use of the Licensed Software will be uninterrupted or error free or that the Licensed Software will be free of harmful code such as viruses, Trojan horses, worms or other malicious code.
4.4 Subject to the foregoing, all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the Licensed Software are hereby excluded.
4.5 Risk in the Licensed Software will pass to the Customer upon accessing of the Licensed Software by the Customer. If the Licensed Software is subsequently destroyed, damaged or lost, Imail Comms Limited will upon request replace the same.
4.6 The Customer shall not:
a) (other than as permitted by law) reverse compile, reverse engineer, adapt or otherwise modify the whole or any part of the Licensed Software; or
b) remove or alter any copyright or other proprietary notice on the Licensed Software.
4.7 The Licensed Software contains confidential information of Imail Comms Limited and all copyright, trade marks and other Intellectual Property Rights in the Licensed Software are the exclusive property of Imail Comms Limited (and/or its licensors) and the Customer shall (at its cost) take all such steps as are necessary from time to time to protect Imail Comms confidential
information and Intellectual Property Rights in the Licensed Software.
4.8 The Customer is responsible for ensuring that the Licensed Software is compatible with its existing software programmes and Imail Comms Limited shall not be liable to the Customer where the Customer’s use of the Licensed Software is incompatible with such existing software or where such use causes corruption, interruption or other errors in respect of the Customer’s existing software or systems.
5. Customer access and passwords
5.1 The Customer shall be responsible for the acts and/or omissions of any persons making use of its imail Identity(ies) whether being authorised to do so or not. The Customer will promptly notify Imail Comms Limited on becoming aware of any imail Identity and/or password being known and/or available to a third party.
5.2 If the Customer becomes aware that any unauthorised access to or use of the Licensed Software and/or imail Service has occurred or may occur, it shall promptly notify Imail Comms Limited.
5.3 If Imail Comms Limited becomes aware that any unauthorised access to or use of the Licensed Software and/or imail Service has occurred or may occur it shall promptly notify the affected Customer.
5.4 Without prejudice to Imail Comms rights under clause 5.5, upon notification under clause 5.2 or 5.3 Imail Comms Limited and the Customer shall discuss what steps, if any, may be appropriate to reduce the risk of any further unauthorised access to or use of the Licensed Software and/or imail Service, and each of the Customer and Imail Comms Limited shall take such steps as soon as is reasonably practicable at their own cost.
5.5 Where at any time Imail Comms Limited becomes aware that the Customer is not complying with the terms of this Agreement included but not limited to access to or use of the Licensed Software and/or imail Service or that there has been or may be unauthorised access to or use of the Licensed Software and/or imail Service, Imail Comms Limited reserves the right to suspend and/or terminate the Customer’s access to the Licensed Software and the imail Service, and will notify the Customer in the event that suspension or termination occurs. Imail Comms Limited has discretion to restore the Customer’s access where the Customer has demonstrated to Imail Comms reasonable satisfaction that such non-compliance has ceased and the Customer is taking all reasonable steps to prevent its reoccurrence.
5.6 Due to the nature of the internet, online systems and software, Imail Comms Limited cannot ensure that the imail Service will be available at all times and/or will always function effectively. Accordingly, Imail Comms Limited shall not be liable to the Customer in respect of the unavailability or malfunctioning of the imail Service. Imail Comms Limited will attempt to inform Customers via the imail Website of periods of planned downtime during which the Customer will not be able to access the imail Service. However, Customers should be aware that some downtime may not be planned.
5.7 Imail Comms Limited shall not be liable to the Customer where the Customer is unable to access the imail Service, electronically convey imail Mailing Items or otherwise use the imail Service for reasons related to internet connectivity and/or telecommunications.
6. Charges and payment
6.1 The Customer shall pay the Charges in accordance with those published on the imail Website from time to time or where applicable, in accordance with the Mailing Profile(s). Imail Comms Limited may vary the Charges (acting reasonably and after notifying the Customer) if the imail Mailing Items that the Customer electronically conveys to Imail Comms Limited do not comply with the relevant Mailing Profile.
6.2 Imail Comms Limited reserves the right to review and increase Charges at any time upon giving 30 days’ notice to the Customer
by publishing it on the imail Website or by written notice where a Mailing Profile applies.
6.3 Imail Comms Limited may offer 3 account options for its imail Service. The invoicing and payment arrangements in respect of the 3 account options are as follows:
(a) Credit Account Customers – Imail Comms Limited shall send to the Customer weekly invoices, whether by post, email or other means, showing the total Charges or other sums due from the Customer and the Customer shall pay all such invoices in full within 7 days of date of the invoice, unless payment is by direct debit in which case payment must be made within 14 days of date of the invoice.
(b) Ad Hoc Account Customers – The Customer shall pay the Charges upon booking the imail Services online using a credit or debit card accepted by Imail Comms Limited.
(c) Prepayment Account Customers – The Customer shall establish a credit balance by making an advance payment sufficient for the Charges prior to using the imail Service by using a credit or debit card accepted by Imail Comms Limited. The Customer may from time to time make additional payments to the prepayment account so as to maintain a credit balance. Such credit balance may be used in part or full payment of the Charges in respect of future imail Mailing Items that it conveys to Imail Comms Limited for processing under the imail Service. Imail Comms Limited may notify the Customer of its credit balance from time to time.
Imail Comms Limited shall determine which of the account options are available to the Customer at the time of contracting. Some of the account options may require the Customer to satisfy certain credit requirements. Imail Comms Limited reserves the right to refuse to offer or to withdraw the Credit Account option where the Customer fails to satisfy Imail Comms credit requirements from time to time.
6.4 Any queries relating to invoices must be received by Imail Comms Limited, in writing, within 7 days of the date of the invoice.
6.5 All payments due from the Customer under this Agreement will be made without deduction whether by way of counterclaim, set- off or otherwise unless the Customer has a valid court order requiring an amount equal to the deduction to be paid by Imail Comms Limited.
6.6 All Charges or other sums payable under this Agreement are expressed exclusive of VAT, which shall be paid at the time and in the manner required by law.
6.7 If a Credit Account Customer fails to make any payment to Imail Comms Limited under this Agreement on the due date, without prejudice to any other right or remedy available to Imail Comms Limited, Imail Comms Limited shall be entitled to:
a) immediately suspend the performance or further performance of its obligations under this Agreement without liability to the Customer; and
b) charge daily interest on all amounts not paid until payment is received in full at an annual rate equal to 4% above the Lloyds Bank plc base lending rate from time to time.
7. Exclusions of liability and claims
7.1 The Customer acknowledges and agrees that:
a) the treatment of all imail Mailing Items that have been processed under the imail Service pursuant to this Agreement will be the same as in the case of ordinary mailing items posted with Royal Mail and, in particular, Imail Comms Limited does not keep detailed records of conveyance or delivery of any imail Mailing Items; and
b) in the event of loss of or damage to any imail Mailing Item dealt with by Imail Comms Limited under this Agreement, Imail Comms Limited shall, subject to satisfactory proof of such imail Mailing Item having been accepted by Imail Comms Limited and of the loss or damage, and subject to the remainder of this clause 7, pay compensation to the Customer subject to the following limits:
(i) where Imail Comms Limited has already handed over the relevant imail Mailing Item to Royal Mail, the compensation shall be limited to whatever payment Imail Comms Limited
recovers from Royal Mail under the Scheme in relation to that imail Mailing Item;
(ii) otherwise, the compensation in respect of the relevant imail Mailing Item shall be limited to the Charge paid.
7.2 Imail Comms maximum liability to the Customer in relation to the total number of imail Mailing Items, that have been accepted by Imail Comms Limited, in any one day (whether under clause 7.1 or other provision of this Agreement, in tort (including negligence or breach of statutory duty) or otherwise) is £10,000.
7.3 Except as provided in clause 7.1, Imail Comms Limited shall not be liable to the Customer or to any other person (whether in contract, tort (including negligence or breach of statutory duty) or otherwise) for any loss of or damage to any imail Mailing Item dealt with by Imail Comms Limited under this Agreement or for any delay in delivery.
7.4 Notwithstanding clause 7.1, Imail Comms Limited shall not be liable to the Customer for any loss or damage (whether in contract, tort (including negligence or breach of statutory duty) or otherwise) of any imail Mailing Item:-
a) which occurs as a direct or indirect result of any failure by the Customer to comply with this Agreement (including the Scheme and the Service Specification); or
b) for which Imail Comms Limited has not acknowledged acceptance; and
c) unless the Customer notifies Imail Comms Limited of a claim under clause 7.1 in writing within 28 days of the relevant date of acceptance by Imail Comms Limited.
7.5 Neither party shall be liable to the other for loss of profit, revenue, business, goodwill and like loss (in each case whether direct or indirect) or for any consequential or indirect losses.
7.6 Imail Comms Limited shall not be liable for any failure or delay in performance of Imail Comms obligations (including for any loss or damage or failure to deliver or delay in delivery of a imail Mailing Item) due to any event beyond Imail Comms reasonable control including an act of God, war, riot, civil commotion, terrorism, malicious damage or blockades, industrial disputes, compliance with any law or governmental order, rule, regulation or direction, national emergencies, fire, flood, tempest or storm, accident, breakdown of plant or machinery or default of supplies (including fuel,) or sub-contractors.
7.7 Nothing in this Agreement shall exclude or restrict either party’s liability for fraudulent misrepresentation or for death or personal injury caused by negligence.
7.8 Subject to clause 7.9, the Customer shall indemnify Imail Comms Limited and keep Imail Comms Limited indemnified against any liability, loss, claim, costs or expense (including legal expenses) suffered or reasonably incurred by Imail Comms Limited (or its employees, agents or contractors) as a result of any breach by the Customer of any provision in this Agreement.
8.1 Without prejudice to any other right to terminate under this clause 8, either party may terminate this Agreement at any time by giving the other party 30 days’ notice.
8.2 Either party (the “terminating party”) may terminate this Agreement immediately by giving the other party (the “breaching party”) notice if:
a) the breaching party commits any breach of the terms of this Agreement and the breach is not capable of remedy or where the breach is capable of remedy the breaching party has not remedied that breach within 14 days of being notified of the breach by the terminating party; or
b) the breaching party has an administrator or a receiver (including any administrative receiver or manager) appointed over the whole or any part of its assets or an order made or a resolution passed for winding-up of the breaching party (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a
court to appoint an administrator or make a winding-up order or if the breaching party has made any composition with its creditors generally.
8.3 In respect of Credit Account Customers, Imail Comms Limited may terminate this Agreement immediately by giving the Customer notice if the Customer fails to pay any Charges or other sums due under this Agreement when due, provided that Imail Comms Limited has given the Customer notice specifying an intention to terminate this Agreement and given a period of 7 days to remedy that failure.
8.4 In the case of Prepayment Account Customers, Imail Comms Limited may terminate this Agreement immediately on notice if the Customer has not made any use of the imail Service to convey an imail Mailing Item for a period of 6 months from the date of last use to convey an imail Mailing Item. The provisions of clause 9.4 will then apply.
9. Consequences of Termination
9.1 The termination of this Agreement (for any reason) shall not affect the coming into or the continuance in force of any obligations which expressly or by implication are intended to come into or continue in force on or after such termination and shall be without prejudice to any other rights of either party accrued up until the date of termination.
9.2 On termination of this Agreement (for any reason) the Customer shall immediately:
a) cease using the Licensed Software; and
b) cease using the imail Identity and password(s);
c) The Customer shall also immediately upon termination of this Agreement or otherwise when reasonably requested by Imail Comms Limited return to Imail Comms Limited any property (and delete, remove and/or uninstall all copies of the Licensed Software held by the Customer) provided to the Customer under this Agreement.
9.3 On termination, any sum owing to Imail Comms Limited by the Customer, regardless of whether the Customer has been issued with an invoice for that sum or whether such sum is due to be paid in the future, will become immediately due and payable.
9.4 Where Imail Comms Limited has terminated pursuant to clause 8.4, the Customer’s remaining credit account balance, if any, shall be forfeited and transferred to Imail Comms Limited.
10.1 Except as provided in clauses 10.2 and 10.3, Imail Comms Limited and the Customer undertake to the other to keep confidential the terms of this Agreement, all information (written or oral) concerning the business, the customers or financial information of the other that it has received as a consequence of the discussions leading up to this Agreement or which it subsequently receives as a consequence of the performance of this Agreement, including the prices charged by Imail Comms Limited under this Agreement (“Confidential Information”).
10.2 Imail Comms Limited and the Customer may each disclose Confidential Information to their respective legal, financial and other business advisors (in each case in so far as such advisors need to know such Confidential Information) or as may be required by law or by any regulatory authority.
10.3 Clause 10.1 shall not apply to Confidential Information which the receiving party can demonstrate was; (i) already in its possession prior to its receipt from the disclosing party; (ii) was subsequently disclosed to it lawfully by a third party who did not obtain such Confidential Information (directly or indirectly) from the disclosing party; or (iii) was in the public domain at the time of receipt by the receiving party or has subsequently entered the public domain other than as a result of a breach of clause 10.1 by the receiving party.
10.4 The obligations of the parties under this clause 10 survive termination of this Agreement however caused.
11. Assignment, Use of Agents and Sub-contracting
11.1 Imail Comms Limited may employ any person as Imail Comms Limited agent, sub-contractor or otherwise in the performance of any of Imail Comms obligations under this Agreement. In particular, the Customer recognises Imail Comms Limited may use DHL Parcel UK Ltd (or an alternative similar logistics company), or its or their franchisees and owner-drivers to convey imail Mailing Items that have been processed under the imail Service. The Customer also recognises that Imail Comms Limited will hand over imail Mailing Items to Royal Mail for final conveyance to the destination address.
11.2 Imail Comms Limited recognises that the Customer may use agents to electronically convey the imail Mailing Items to Imail Comms Limited. If the Customer does so, it remains responsible for acts and/or omissions of the agent and for compliance with this Agreement, in particular the agent’s compliance with the obligations set out in clause 5. Imail Comms Limited is entitled to deal with the Customer’s agent in respect of any imail Mailing Items that are electronically conveyed by that agent.
11.3 This Agreement is personal to the Customer and the Customer may not assign or licence any or all of the Customer’s rights or obligations under it without the prior written agreement of Imail Comms Limited.
12. The Indicator
12.1 The Indicator that Imail Comms Limited applies to the imail Mailing Items that are processed under the imail Service is the property of Imail Comms Limited.
12.2 Nothing in this Agreement will operate so as to grant the Customer any rights in respect of the Indicator. All Intellectual Property Rights in respect of the Indicator will (as between the Customer and Imail Comms Limited) remain vested in Imail Comms Limited at all times. All goodwill attaching to the Indicator arising through Imail Comms application of the Indicator to the Customer’s imail Mailing Items will automatically accrue to Imail Comms Limited, whether arising at common law or otherwise, and the Customer assigns with full title guarantee to Imail Comms Limited any such goodwill which may otherwise be vested in it.
13.1 Save for notices published on the imail Website under this Agreement, all notices between the parties must be in writing and delivered by hand, or post, if to Imail Comms Limited, to Imail Comms registered office and if to the Customer, to the Customer’s address specified on the Account Application Form, or in either case, to such other address as is notified by one party to the other.
13.2 Notices will be deemed to be received if sent by post, 2 days (excluding Saturdays, Sundays and bank or public holidays) after posting (excluding the day of posting), and if delivered by hand, on the day of delivery.
14.1 Imail Comms Limited reserves the right for it and for Royal Mail to open and inspect imail Mailing Items to verify compliance with the requirements of relevant law and regulation and this Agreement.
14.2 Imail Comms Limited may vary these terms and conditions by giving the Customer at least 30 days’ notice by publication on the imail Website.
14.3 The failure of either party to enforce or to exercise, at any time or for any period, any term of, or right arising pursuant to, this Agreement does not constitute, and shall not be construed as, a waiver of such a term or right and shall not affect the party’s right to enforce or exercise it at a later date.
14.4 Imail Comms Limited is not and does not contract as a common carrier. This Agreement supersedes any prior agreements and arrangements between Imail Comms Limited and the Customer, and constitutes the entire agreement between Imail Comms Limited and the Customer, relating to its subject matter. Neither
party has relied upon or been induced to enter into this Agreement by any representation or statement other than as set out in this Agreement. No addition to or modification of this Agreement shall be effective unless it is in writing and signed by a duly authorised representative of both Imail Comms Limited and the Customer. Any imail Mailing Item that is electronically conveyed to Imail Comms Limited is electronically conveyed under this Agreement to the exclusion of all other documents or terms that the Customer attempts to apply, even if they are endorsed upon, delivered with or contained in any document that the Customer delivers to Imail Comms Limited.
14.5 This Agreement shall be subject to English law. The parties submit to the exclusive jurisdiction of the English Courts.
14.6 Nothing in this Agreement is intended to confer on any person any benefit or any right to enforce any term of it which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
14.7 Each and every term and/or condition contained in this Agreement shall be read separately and distinctly and the invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability, of the remainder.
15. Data Protection
15.1 For the purposes of this clause 15, the term “Data Protection Legislation” shall mean: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018 and the term “Applicable Laws” shall mean: the laws of any member of the European Union and the laws of the European Union applicable to Imail Comms Limited or its parent company.
15.2 The Customer and Imail Comms Limited shall comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to and does not relieve, remove or replace either party’s obligations under the Data Protection Legislation.
15.4 Without prejudice to the generality of clause 15.2, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer and processing of Personal Data to Imail Comms Limited for the duration and purposes of the Agreement and shall indemnify and hold harmless Imail Comms Limited against any fines, losses, claims, damages, awards, costs, and expenses (including reasonable legal expenses) suffered by Imail Comms Limited arising from or in connection with any failure of the Customer of its obligations under clauses 15.2 and 15.5.
15.5 Without prejudice to the generality of clause 15.2, Imail Comms Limited shall, in relation to any Personal Data processed in connection with the performance by Imail Comms Limited of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless Imail Comms Limited is required by Applicable Laws to process Personal Data. Where Imail Comms Limited is relying on Applicable Laws as the basis for processing Personal Data, Imail Comms Limited shall promptly notify the Customer of this before performing the
processing required by the Applicable Laws unless those Applicable Laws prohibit Imail Comms Limited from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures 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;
(c) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(d) the Customer or Imail Comms Limited has provided appropriate safeguards in relation to the transfer;
(e) the data subject has enforceable rights and effective legal remedies;
(f) comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(g) comply with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(h) assist the Customer, at the Customer’s cost, in:
(i) responding to any request from a Data Subject; and
(ii) ensuring compliance with the Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(i) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(j) at the written direction of the Customer upon the termination of the Agreement or on completion of the Services, delete or return Personal Data and copies thereof to the Customer unless required by Applicable Laws to store the Personal Data;
(k) maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and allow for audits by the Customer or the Customer’s designated auditor;
(l) ensure that persons authorised to process Personal Data have committed themselves to obligations of confidentiality;
(m) assist the Customer, taking into account the nature of the processing, by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; and
(n) assist the Customer with compliance of the obligations of Articles 32 to 36 taking into account the nature of processing and the information available to Imail Comms Limited.
15.6 The Customer consents generally to Imail Comms Limited appointing third party processors of Personal Data under this Agreement pursuant to Article 28(2) GDPR. Imail Comms Limited shall ensure prior to any processing taking place that it notify the Customer of any intended changes to give the Customer an opportunity to object and will enter into a written agreement with any third party processor so appointed incorporating terms which are substantially similar to those set out in this clause 15.6. For the avoidance of doubt, the Customer accepts and acknowledges that any objection could result in a diminution of Service or render it impractical to render the Services, in which
case Imail Comms Limited may terminate this Agreement forthwith upon the giving of written notice. As between the parties, Imail Comms Limited shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 15.6.
15.7 Either party may propose to replace this clause 15 with such standard contractual clauses that may be adopted or laid down by the EU Commission or relevant supervisory authority (as that
term is defined by Data Protection Legislation) with respect to matters set out in Articles 28(3) and 28(4) of the GDPR.
15.8 If at any time the Customer wishes to revoke the consent it has given by agreeing to this Agreement or has queries relating to Data Protection, it may contact Imail Comms Data Protection Officer at Imail Comms Limited Ryton, Express House, Hillman Way, Ryton-on-Dunsmore, Warwickshire CV8 3ED or by email at dataProtectionOfficer@imailcomms.com