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Citipost Mail > Terms and Conditions Of Use

Customer Service Agreement

The Applicable Terms, as set out at Schedule 1 of this Customer Service Agreement, shall apply to each Order.

 

The Customer acknowledges and agrees that:

(i) invoices may be raised daily or weekly and must be paid in accordance with the Customer Services Agreement. 

(ii) all charges relate to the Standard Rate for the chosen Service(s) unless otherwise agreed between the parties in respect of each Order.

Definitions used in this Front Sheet are as defined in the attached Customer Service Agreement. The Customer Service Agreement shall come into force on the date when it has been signed by all the parties.

 

Parties

(1) The company referred to in the Front Sheet to which this Agreement is attached; and

(2) Citipost Mail Limited incorporated and registered in England and Wales with company number 03756000 whose registered office is at 51 Hailey Road, Erith, Kent, DA18 4AA (Citipost).

 

Background

(A) Citipost provides bag labels, sorts and collects mail from its customers for downstream access.

(B) The Customer wishes to appoint Citipost to provide services to it under an agreement.

(C) When a Customer or a mailing house on its behalf, requests services from Citipost, and Citipost is able to provide such services, the relevant parties will enter into a separate order in accordance with this customer services agreement.

(D) Each order will incorporate Citipost's terms and conditions which are set out in Schedule 1 of this customer services agreement.

 

Agreed terms

 

1.  Interpretation

1.1 The following definitions and rules of interpretation apply in this agreement and each Order:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes an subordinate legislation made under that statute or statutory provision as amended or re-enacted;

(c) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

(d) a reference to writing or written includes fax and e-mails.

(e) a reference to this  agreement or to any other agreement or document referred to in this agreement is a reference to 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.

(f) references to clauses and schedules are to the clauses and schedules of the Agreement or Order (as applicable); references to paragraphs are to paragraphs of the relevant schedule.

 

2. Order process

2.1 This Agreement governs the overall relationship of the parties in relation to the Services provided by Citipost to the Customer, and sets out:

(a) in this clause 2., the procedure for the Customer or the Mailing House on its behalf to request the provision of Services from Citipost under separate Orders;

(b) in Schedule 1, the Applicable Terms that are deemed incorporated into each Order.

 

2.2 The Customer shall, or the Customer shall procure that the Mailing House shall, notify Citipost that it wishes to place an Order at least 24 hours in advance of requiring the Services to be provided.

 

2.3 Subject to clause 2.2 above, the Customer or the Mailing House shall be entitled from time to time to request in writing or via the BBS Software to place an order for the provision of any or all of the Services from Citipost.

 

2.4 The Customer shall, or the Customer shall procure that the Mailing House shall, specify in each Order:

(a) whether the Customer, or the Mailing House on its behalf, will sort the Consignment itself or whether it requires Citipost to do so;

(b) the number of bag labels required for the Consignment;

(c) the number of containers required for the Consignment;

(d) whether it requires Citipost to provide the bag labels directly to the Customer or to the Mailing House and if it is the latter provide relevant details to assist Citipost in delivering the same to any such third party;

(e) the date and time that the Consignment shall be ready for collection by Citipost.

 

2.5 Each Order shall be governed by the Applicable Terms and not enter into force, be legally binding or have any other effect unless:

(a) the Order contains the information required by Citipost in accordance with clause 2.4;

(b) the Order has been placed by the authorised representative of the Customer;

(c) as at the date the Order is placed, this Agreement has not been terminated; And

(d) shall adhere to the terms of the User Guide which is incorporated into the Applicable Terms by reference.

 

2.6 Each Order:

(a) shall be entered into by the Customer and Citipost;

(b) forms a separate contract between the parties; and

(c) shall incorporate the Applicable Terms.

 

2.7 Any amendment to this Agreement agreed by the Customer and Citipost shall be deemed to apply to all future Orders entered into after the date of such amendment and the Customer shall be responsible for notifying the Mailing House of the same.

 

3. Commencement and term

This Agreement shall commence on the date set out on the Front Sheet and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other party not less than 30 days' written notice to terminate, expiring on or after the second anniversary of the date of this Agreement.

 

4. Limitation of liability

4.1 Nothing in this Agreement shall limit or exclude a party's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

 

4.2 Subject to clause 4.1, neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Agreement.

 

4.3 Subject to clause 4.1 and clause 4.2, Citipost's total liability to the 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 £75 for each consignment.

 

4.4 This clause 4 shall survive termination of the Agreement.

 

5. Intellectual property and licence

5.1 Citipost and its licensors shall retain ownership of all Supplier Background IPRs.

 

5.2 Citipost grants the Customer, or shall procure the direct to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement:

(a) to copy  the Supplier Background IPRs for the purpose of receiving and using the Services and the Deliverables in its business;

(b) to use the BBS Software and the Documentation in accordance with the Licence.

 

5.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in 5.2

 

6. Title

6.1 Citipost shall, from time to time, provide the Customer with a central processing unit   which may be pre-loaded with the BBS Software and/or a printer (referred to herein, separately or together, as the Products). The Customer hereby acknowledges that in no event shall title in the Products pass to the Customer.

 

6.2 The Customer shall:

(a) Store such Products separately from all other goods held by the Customer so that they remain readily identifiable as Citipost's property;

(b) Not remove, deface or obscure any identifying mark or packaging on or relating to such Products; and

(c) Maintain such Products in satisfactory condition and keep them insured on Citipost's behalf for their full price against all risks with an insurer that is reasonably acceptable to Citipost. The Customer shall obtain an endorsement of Citipost's interest in the Products on its insurance policy, subject to the insurer being willing to make the endorsement. On request, the Customer shall allow Citipost to inspect such Products and the insurance policy.

 

6.3 If the Customer becomes subject to any of the events listed in clause 7.1(d) to 7.1(i) inclusive, then, without limiting any other right or remedy Citipost may have:

(a) Citipost may at any time:

(i) Require the Customer to deliver up the Products in its possession and promptly return them to Citipost;

(ii) If the Customer fails to do so promptly, enter any premises of the Customer in order to recover them.

 

7. Termination

7.1 Without limiting its other rights or remedies, this Agreement may be terminated by either party with immediate effect by giving written notice to the other party:

(a) if a party commits a material breach of any term of the Agreement and, if the breach is capable of remedy, that party has failed to remedy such breach within 30 days of being notified to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or

(c) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors 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; or

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party 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; or

(e) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or

(f) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or

(g) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or

(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

(i) if the other party ceases or threatens to cease to carry on business in the United Kingdom.

 

7.2 Without limiting its other rights or remedies, either party may terminate the Agreement by giving one month's notice in writing to the other party.

 

8. Conflict

8.1 In the event of any inconsistency or conflict between the Agreement, the Order or the Front Sheet, the following order of priority shall apply:

(i) the Order;

(ii) the Front Sheet; and

(iii) the Agreement (and within the Agreement the front end of the Agreement shall have priority over the Applicable Terms).

 

9. Entire agreement

9.1 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.

 

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

 

10. Notices

10.1 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 fax to its main fax number.

 

10.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or 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 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

(c) if sent by fax, at 9.00 am on the next Business Day after transmission.

 

10.3 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. For the purposes of this clause, "writing" shall not include e-mail.

 

11. General

11.1 The following clauses in the Applicable Terms shall be deemed to be incorporated in the Agreement  as if set out here:

(a) Clause 1 (Interpretation)

(b) Clause 7 (Force Majeure)

(c) Clause 10 (Confidentiality)

(d) Clause 12  (Anti-Bribery)

(e) Clause 15 (General)

 

12. 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 construed in accordance with the law of England and Wales.

 

13. Jurisdiction

Each 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 discussed.

 

Schedule 1 - Applicable terms

Citipost Mail Limited Terms and Conditions of Services

 

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Agreement documents:

these Conditions, the Customer Service Agreement, the Order, the Licence and the User Guide;

BBS software:

the Border Business Software system used by Citipost and as licenced to the Customer under the Licence. 

Business day:

a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Charges:

the charges payable by the Customer for the supply of the Services in accordance with clause 6.

Citipost:

Citipost Mail Limited registered in England and Wales with company number 03756000 and whose registered office is at 51 Hailey Road, Erith, Kent DA18 4AA.

Conditions:

these terms and conditions as amended from time to time.

Consignment:

the mail items that are the subject of the Services and Consignment Item shall refer to any individual item in a Consignment.

Contract:

the contract between Citipost and the Customer for the supply of Services in accordance with these Conditions and any Order.

Customer:

the person or company who purchases the Services from Citipost.

Customer Service Agreement:

the customer service agreement (including its Front Sheet) entered into by Citipost and the Customer for the supply of the Services, the terms of which shall be governed by these Conditions.

Force Majeure Event:

any act or event beyond Citipost's reasonable control, including without limitation strikes, lock-outs or other customer industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether deceased or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster or failure of public or private telecommunications network.

Intellectual Property Rights:

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered of 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.

Licence:

the licence granted by Citipost to the Customer for the use of the BBS Software as set out in Schedule 2 of the Customer Service Agreement.

Order:

the Customer's order for the Services as notified by Customer to Citipost via a pre-alert generated by the BBS Software.

Prohibited Items:

any hazardous or combustible materials, including fluids, paints, acids, chemicals explosives or radioactive materials, firearms or parts thereof, drugs, live or dead plants or animals, perishable or non-perishable foods, cosmetics and liquor, fine arts and antiques, literature or material that may be pornographic, offensive or physically sensitive, precious stones or jewellery including commercial carbons or industrial diamonds, precious materials, gold or silver in the form of bullion, coins, dust, cyanides, precipitates or any other form, currency (paper or coin) of any nationality, negotiable securities, stocks, bonds, bond certificates, coupons or stamps, negotiable cheques and any materials that are prohibited under applicable law, legislation or regulation.

Services:

the production and supply to the Customer of bag labels, the sorting (if required) and collection of the Consignment. 

Standard rate:

Citipost rate tariffs as set out in Citipost's then current price list (as amended from time to time) excluding VAT.

User guide:

Royal Mail's user guide, as published from time to time.

VAT:

value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Construction - In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

(e) a reference to writing or written includes faxes and e-mails;

(f) the word "indemnify" in these Conditions means to indemnify, keep indemnified and hold harmless the relevant party in full and on demand from and against all costs, expenses, liabilities, injuries, losses, damages, claims, proceedings (including legal and other professional fees and expenses on an indemnity basis) which the indemnified party incurs or suffers directly, indirectly or consequentially (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of reputation, depletion of goodwill, internal management cost and all legal costs) and "indemnity", "indemnifies" and all similar wording have a corresponding meaning in such circumstances.

 

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions and the Customer Service Agreement.

 

2.2 The Order shall only be deemed to be accepted when Citipost confirms it is acceptable to the Customer (either in writing or verbally), at which point and on which date the Contract shall come into existence.

 

2.3 The Agreement Documents constitute the entire agreement between Citipost and the Customer.  In the event of a dispute between any of the terms contained in the Agreement Documents, then the terms set out in these Conditions shall prevail

 

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

3. Services

3.1 Citipost shall supply the Services to the Customer in accordance with the Order in all material respects.

 

3.2 Citipost shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

 

3.3 Citipost reserves the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Citipost shall notify the Customer in any such event

 

3.4 Citipost warrants to the Customer that the Services will be provided using reasonable care and skill.

 

3.5 The Customer may, without incurring Charges, cancel the Order at any time up to 10am on the date the Services are to be supplied, as follows:

(a) by email to: citipostmail@citipost.co.uk or

(b) by telephone: 0203 260 0240, followed by a confirmation email to be received by Citipost by 10am on the date the Services are to be supplied.

 

3.6 In the event that the Customer fails to cancel an Order in accordance with clause 3.5, the Customer will be liable to pay the Charges in accordance with clause 6. 

 

4. Non-delivery

4.1 Citipost reserves the right to refuse to perform the Services, refuse to collect or accept a Consignment or Consignment item or refuse carriage of Consignments or Consignment Items for any reason whether before or after carriage has commenced (including but not limited to, if Citipost has reason to believe the Consignment or Consignment Item contains Prohibited Items) and upon such refusal Customer shall have no right of recourse against Citipost.

 

4.2 In the event that a Consignment Item is not delivered for whatever reason and has no visible return address, the Customer permits Citipost to open the item in order that it may take reasonable steps to return it to the sender at the Customer's cost. The Customer permits Citipost to deal with such undelivered Consignment Item in any way it considers appropriate (which may involve arranging delivery, returning it to the Customer or by destroying the Consignment Item). If Citipost incurs any charge in respect of non-delivery under this clause 4.2, it shall be entitled to pass such charges on to the Customer, at Citipost's original charging rate.

 

5. Sub-contracting

5.1 Citipost shall be entitled to sub-contract any of the Services with any third party that it sees fit in respect of the whole or any part of the carriage of the Consignment.

 

5.2 Notwithstanding clause 5.1, Citipost shall not sub-contract or delegate in any manner any or all of its obligations under the Agreement Documents to any third party or agent without terms at least as onerous as those contained in these Conditions. Without prejudice to this clause, Citipost shall be liable for the acts and omissions of any sub-contractor.  Notwithstanding the use of any sub-contractor, Citipost shall remain liable to the Customer for the performance of Citipost's obligations under the Agreement Documents.

 

6. Charges and payment

6.1 The Charges payable by the Customer to Citipost under the Customer Service Agreement shall be the charges as agreed between Citipost and the Customer as set out in the rate card as supplied by Citipost. If no such charge has been agreed in accordance with this clause 6.1, Citipost's Standard Rate from time to time shall apply.

 

6.2 Citipost reserves the right to increase the Standard Rates at any time upon 30 days' notice.

 

6.3 Subject to clause 6.2, Citipost reserves the right to increase the Charges at any time and without notice, to reflect increases in costs that may affect Citipost in the provision of the Services, including but without limitation, any increase in respect of rates of VAT, other taxes, duties, Royal Mail rates, legal or regulatory requirements.

 

6.4 Unless an Order is cancelled in accordance with clause 3.5, the Customer shall be deemed to incur the Charges as soon as the Customer has commenced the supply of the Services and the Customer agrees to pay such Charges in full and in accordance with clause 6.5 of these Conditions.

 

6.5 The Charges are exclusive of amounts in respect of Value Added Tax (or any local equivalent) or customs duty if applicable.

 

6.6 The Customer shall pay each invoice submitted by Citipost:

(a) within the specified days of the invoice date; and

(b) in full and in cleared funds to the bank account nominated in writing by Citipost; and time for payment shall be of the essence of the Contract.

 

6.7 If the Customer fails to make any payment due to Citipost under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

 

6.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Citipost may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Citipost to the Customer.

 

7. Force majeure event

7.1 Citipost will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by a Force Majeure Event.

 

7.2 If a Force Majeure Events takes place that affects the performance of the Contract:

(a) Citipost shall notify the Customer as soon as reasonably possible; and

(b) Citipost's obligations under a Contract will be suspended and the time for performance of its obligations will be extended for the duration of the Force Majeure Event.

 

8. Limitation of liability

8.1 Citipost shall make reasonable efforts to complete the Services by sorting and procuring the delivery of the Consignment safely and on time, however, no guarantee or warranty is given that delivery times will be met. Accordingly, Citipost shall not be liable if delivery of a Consignment is delayed. Unless otherwise agreed in writing, Citipost will have no liability to the Customer other than as set out in this clause 8.

 

8.2 Nothing in these Conditions shall limit or exclude Citipost's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors; or

(b) fraud or fraudulent misrepresentation.

 

8.3 Subject to clause 8.2:

(a) Citipost shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity, loss of anticipated savings or any indirect or consequential loss arising under or in connection with the Contract.

(b) Citipost's total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £75 for each Consignment.

 

8.4 Citipost shall not be liable for loss or damage to any Consignment Item once delivery has taken place.

 

8.5 Citipost shall not be liable nor shall it be required to indemnify or compensate the Customer or refund any monies paid by Customer to Citipost for any re-routing, rejection, seizures, confiscation, mishandling of a Consignment or any part thereof by any third party delivery partner, post office or customs authorities or persons acting on their behalf on the grounds that the Consignment or any part thereof contravenes or is alleged to contravene laws or regulations in place from time to time.

 

8.6 Citipost shall use reasonable endeavours to effect customs clearance but shall not be liable for any penalties imposed or loss incurred due to delay by customer authorities or due to the Consignment being impounded by customs or other authorities and the Customer shall indemnify Citipost on demand in respect of any such penalty or loss suffered by Citipost.

 

8.7 The Customer shall notify Citipost in writing in respect of any claim the Customer wishes to make within 21 days of the processing date of such Consignment Item, as notified to Customer in the processing report.

 

9. Customer warranty and indemnity

9.1 The Customer warrants that:

(a) The particulars relating to the Consignment as shown in the Order, stipulating amongst other things, the collection date and the declared value for customs, are correct and that the Consignment is accurately labelled and addressed to enable effective delivery.

(b) The Consignment and all Consignment Items:

(i) do not contain any Prohibited Items;

(ii) do not break the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing;

(iii) are not prohibited by any law (in the UK or the Consignment delivery destination country) or dangerous goods rules;

(c) The Consignment meets the specifications as set out in the User Guide.

(d) It has complied with all laws and regulations relating to the nature, contents, packaging, labelling place of origin or otherwise relating to the carriage and that the Consignment is packed in a manner adequate to withstand the ordinary risk of carriage having regard to its nature.

(e) If part or all of the Consignment contains documents, such documents have neither commercial value nor customs value in the country of destination

 

9.2 The Customer shall indemnify Citipost in respect of any breach of any warranty set out in this clause 9.

 

10. Confidentiality

10.1 Subject to clause 10.2 the Customer and Citipost shall treat as strictly confidential all information received or obtained as a result of entering into or performing the Contract, the subject matter of the Contract of the other party or its affairs.

 

10.2 Either party may disclose information which would otherwise be confidential if and to the extent it is:-

(a) required by law, governmental or court order; or

(b) required by the rules of the London Stock Exchange Limited; or

(c) the information has come into the public domain through no fault of the disclosing party.

 

10.3 Both parties agree that they will not make any announcement to the public or any section thereof in connection with the Contract without first obtaining the agreement of the party as to the text and method of such announcement.

 

11. Data protection 

11.1 In this clause 11, the terms "personal data" and "data" shall have the meanings ascribed to them in the Data Protection Act 1998 or equivalent legislation in the territory. In so far as Citipost processes any personal data on behalf of Customer, Citipost shall:

(a) process such data and information only in accordance with Customer's instructions and shall not publish, disclose or divulge any of the personal data to any third party unless directed to do so in writing by Customer;

(b) not transmit such data and information to a country or territory outside the European Economic Area without Customer's prior express written consent; and

(c) take such technical and organisational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate to Customer as data controller.

 

12. Anti-bribery

12.1 Citipost and the Customer agree:

(a) to comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 ("Relevant Requirements");

(b) not to engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

(c) to have and  maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies and will enforce them where appropriate;

(d) promptly report to the other party  any request or demand for any undue financial or other advantage of any kind received by a party  in connection with the performance of the Contract; and

(e) immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of Citipost or the Customer or acquires a direct or indirect interest in Citipost or the Customer.

 

13. Termination

13.1 Without limiting its other rights or remedies,  a Contract may be terminated by either party with immediate effect by giving written notice to the other party:

(a) if a party commits a material breach of any term of the Contract and, if the breach is capable of remedy, that party has failed to remedy such breach within 30 days of being notified to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or

(c) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors 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; or

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party 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; or

(e) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or

(f) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or

(g) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or

(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

(i) if the other party ceases or threatens to cease to carry on business in the United Kingdom.

 

13.2 Without limiting its other rights or remedies, either party may terminate the Contract and/or the Framework Agreement by giving one month's notice in writing to the other party.

 

14. Consequences of termination

14.1 On termination of the Contract or the Customer Service Agreement for any reason:

(a) the Customer shall immediately pay to Citipost all of Citipost's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Citipost shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

 

15. General

15.1 Third Party Rights: a person who is not a party to the Contract shall not have any rights to enforce the terms of these Conditions.

 

15.2 Assignment and other dealings:

(a) Citipost may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under these Conditions and may subcontract or delegate in any manner any or all of its obligations under these Conditions to any third party or agent.

(b) The Customer shall not, without the prior written consent of Citipost, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Conditions.

 

15.3 No partnership or agency: nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

 

15.4 Variation: except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Citipost.

 

15.5 Waiver: a waiver of any right under these Conditions or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

15.6 Jurisdiction and Governing Law: the Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall 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 shall have exclusive jurisdiction to settle any disputes or claims which may arise out of or in connection with the Contract.

 

Schedule 2 – License

Standard End User Software Licence and Services Agreement

Border Business Systems Ltd (BBS) undertakes to provide for the duration of this agreement reasonable assistance and advice in the use of the Licensed Products provided by trained personnel over the telephone between the hours of 9.00 a.m. and 5.00 p.m. Monday to Friday excluding statutory holidays ("Technical Support"), with effect from the date of this agreement or the first Use of the Licensed Products by the Licensee, whichever the earlier.

Technical Support does not include the diagnosis and rectification of any fault resulting from the operational failure through improper use, operation or neglect of the Licensed Programs ,or except by prior written agreement with the Company the Licensee's failure to install and use in substitution for the previous release any New Release of the Licensed Products within 60 days of receipt of the same.

 

1. Definitions

"DATA" shall for the purpose of this Licence incorporate the confidential Information of the Royal Mail and including "Royal Mail Section Files & PIF" and any other data from time to time supplied in conjunction or combination with or as part of the Licensed Products including information from any other postal operators.

"LICENSEE" shall mean all the individual or body corporate entering into an Agreement of which this licence forms part with BBS directly.

"LICENSED PRODUCTS" means such of the Company's Products and Data as set out on BBS Schedule 1 (a copy of which is attached hereto), signed and submitted by the Licensee, to which this Agreement relates and such other Products as may from time to time be agreed in writing by the parties.

"USER" shall mean an individual, PC, work station or terminal within  the Licensees organisation which has access (either directly or indirectly) to any part of the Licensed Products or the Data through any software routines whether supplied by BBS, a Reseller or any third party supplier or developed by or for the Licensee by its employees, agents or sub-contractors.

 

2. Licence and support

2.1 BBS hereby grants the Licensee a non-exclusive licence to use, within the Licensees organisation, for the Licensee's own internal purposes only, the Licensed Products and Data, and updates to the Licensed Products and Data provided to the Licensee by BBS in accordance with the specification for the use of the Licensed Products and Data incorporated within the BBS Schedule 1 (a copy of which is attached hereto) as updated from time to time by BBS and the Licensee and witnessed in writing by both parties.

 

2.2 The Licensee shall ensure that any changes in the details relating to its use of the Licensed products and Data from that specified on BBS Order form are notified to BBS and that the Number of Users does not exceed that permitted by the numbers and type of licences purchased by the Licensee.

 

2.3 The Licensee shall ensure that any changes in the details relating to its use of the Licensed products and Data from that specified on order form are notified to BBS and that the Number of Users does not exceed that permitted by the numbers and type of licences purchased by the Licencee.

 

2.4 The Licensee shall have a reasonable mechanism or process in place to ensure that the number of users accessing the Licensed Products or Data does not exceed the number of Licences purchased.

 

2.5 The Licensee shall install and use any new release or updates to the Licensed products and Data supplied by BBS within 30 days of receipt.

 

2.6 The Licensee shall comply with all requirements of the Date Protection Act 1998 ("the Act") relevant to its possession or use of the Licensed Products and Data and shall ensure that such use is not inconsistent with its own registration under the Act.

 

3. Limit on licensee's use of the data and licensed products

3.1 The Licensee shall not at any time reproduce, publish, sell, let, lend or otherwise part with possession of any part of Licensed Products or Data save to make such copies as may be consistent with the licensed distribution & installation of the same in accordance with the BBS Order form, including storage on alternative computer systems (such copies to be subject to the terms and conditions of this Licence and deemed to form part of the Licensed

 

3.2 Products save that no further copies may be made thereof). The Licensee shall ensure that its employees, agents and sub-contractors comply with the terms of this Clause.

 

4. Fees

4.1 The Licensee shall pay to BBS annual Licence fees in accordance with the following timescales:

(a) The first year's fee shall become payable within fourteen days of the date of invoice to which this Licence Agreement relates. Subsequent year's fees shall become due for payment by the Licensee on each anniversary of this Licence Agreement.

(b) This Licence Agreement shall terminate immediately where the Licensee fails to pay the appropriate fees by the due date.

 

4.2 The Licence Fees may, subject to clauses 4.2.1 below, be increased or decreased or the payments structure modified or amended by BBS during the currency of this Licence Agreement to take effect on any anniversary of this Licence Agreement save that;

(a) any increase in BBS Licence Fees shall be subject to not less than 28 days prior notice and shall not exceed the increase in the Retail Price Index during the period since the last occasion upon which the Licensee's Licence Fees were increased;

 

5. Limitation of liability

The following provisions set out BBS's entire liability to the Licensee in respect of breach of its contractual obligation, and pursuant to any representation, statement, tortuous act or omission ("Event of Default"), arising in connection with or under this agreement.

 

5.1 BBS's liability to the Licensee in respect of:

(a) death or personal injury resulting from its own negligence shall not be limited and the exclusion in clause 5.1.2 shall not apply thereto.

(b) damage to the Licensee's tangible property resulting from BBS's negligence and in respect of any Event of Default, shall be limited to damages of an amount equal to the aggregate of the Licence Fee paid in respect of the current annual licence period.

(c) BBS shall in no circumstances be liable for any loss of profits, goodwill or any type of special indirect or consequential loss, including loss of any Postal discounts, even if reasonably foreseeable, or clearly anticipated by BBS.

(d) If a number of Events of Default give rise to the same (or substantially the same) loss, then they shall be regarded as giving rise to only one claim.

(e) The Licensee hereby agrees to afford BBS not less than 60 days in which to remedy any Event of Default, following receipt by BBS of such notification, and except in the case of an Event of Default specifically arising under clause 5.1.1.1 above, BBS shall have no liability to the Licensee unless the latter shall have served a notice upon BBS forthwith on becoming aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware, whichever the earlier.

(f) Nothing in this clause shall confer any right or remedy upon the Licensee to which it would not otherwise be legally entitled.

(g) The Licensee acknowledges that the Licence fees are calculated by reference to the limits of liability set out in this clause 5 and that the Licensee may by written notice request BBS to agree a higher limit of liability to which BBS may, at its sole discretion, agree subject to Insurance cover being available and on condition that any increased insurance premiums and other costs associated with providing such increased liability shall be borne by the Licensee.

 

6. Warranties

6.1 BBS does not warrant that the use of the Licensed Products will meet the Licensee's data processing or other business requirements or that the operation of the Licensed Products will be uninterrupted or error free and the Licensee accepts that the Licensed Products were not designed and produced to its individual requirements and that it was responsible for their selection.

 

6.2 BBS warrants that:

(a) It has taken reasonable precautions to ensure that all software supplied by BBS will be virus-free checked prior to delivery to the Licensee.

(b) The Licensed Products and all supporting literature shall conform with all descriptions applied to them in writing by BBS.

(c) The proper use by the Licensee of the Licensed Products and Data will not in any way infringe any letters patent, registered design, trademark, trade name, copyright or any other right of any third party.

(d) BBS shall use reasonable skill and care in providing Technical Support and the Licensee agrees that BBS's sole and exclusive liability for breach of the warranty under this License Agreement, and the licensee's sole and exclusive remedy shall be that BBS will so perform the services as set out under BBS's responsibilities at no additional charge to the Licensee.

(e) BBS and the Licensee each warrants to the other that it holds all necessary registrations, licences and consents including but not limited to those required by Law and in particular the Data Protection Act 1998 (as the same may be amended or superseded) and will comply with and keep in force all such registrations, licenses and consents and produce evidence of the same to the other on request including contracts with Royal Mail and any other postal operators.

(f) The Licensee warrants that none of the activities for which it shall use the Licensed Products or Data shall constitute, involve or facilitate, either directly or indirectly, the commission of any unlawful or illegal act or any offence or infringement of the rights of any person.

 

7. Intellectual property rights and confidentiality

7.1 The Licensed Products and Data contain confidential information of BBS and all intellectual property rights ("IPRS") in the Licensed Product are BBS's exclusive property.

 

7.2 The Licensee shall not perform the following acts:

(a) copy the whole or any part of the Licensed Product documentation.

(b) modify, merge or combine with any other software or documentation or reverse engineer or decompile the whole or any part of Licensed Products or Data. In the event that the Licensee wishes to create an interoperable program with the Licensed Products or Data, it shall notify BBS of such intent and BBS shall make readily available to the Licensee such information as is necessary to enable the Licensee to create such an interoperable program provided that on termination of this Licence Agreement, the Licensee shall remove the Licensed Products and Data from any software with which they have been so interoperated and comply with the provisions of clause 8.3 below.

 

7.3 The Licensee shall perform the following acts:

(a) keep the Licensed Products and Data confidential and take all steps to protect BBS's confidential information and all IPRS in the Licensed Products.

(b) reproduce on any copy of the Licensed Products or Data BBS's copyright and trade mark notices.

 

7.4 Each Party agrees

(a) to maintain as confidential and not to disclose to any third party any confidential information derived from the other party in connection with the Licence Agreement without the consent of the disclosing party save to the extent reasonably necessary for the proper performance of this Licence Agreement.

(b) to restrict the disclosure of the relevant and necessary part of the confidential information to such of its officers employees agents and sub-contractors who of necessity require the same in performance of their duties as envisaged by this Licence Agreement; and;

(c) to make all relevant officers employees agents and sub-contractors aware of the confidentiality of the confidential information and the provisions of this Clause 7 and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be reasonably necessary to ensure compliance by its officers employees agents and sub-contractors with the provisions of this Clause 7.

 

7.5 the obligations in this Clause 7 shall continue in full force and effect during the term of and after the termination of this Agreement provided however that the following shall not be subject to restrictions:

(a) any information which was lawfully in the possession of the receiving Party prior to its disclosure by the disclosing Party without restriction as to its disclosure;

(b) any information which is or shall lawfully become part of the public domain; or

(c) any information which shall otherwise lawfully become available to one Party from a source independent of the other Party without restriction as to its disclosure.

 

8. Termination

This Licence Agreement may be terminated without notice by BBS if the Licensee is in breach of any of the terms of this Licence Agreement:

In addition to the foregoing; this Licence Agreement may be terminated:-

8.1 by either party giving not less than 14 days' notice to the other party expiring on the anniversary of this Licence Agreement; or

 

8.2 forthwith by BBS, if the Licensee:

(a) fails to pay any sum due hereunder on the due date;

(b) becomes insolvent, or has a trustee, receiver, administrative receiver or similar officer appointed in respect of any part of its business or assets or enters into any agreement with creditors or has an order or resolution passed for it to be wound up.

(c) in any way brings BBS into disrepute or challenges the Intellectual Property Rights of BBS and in the event of such challenge, the right to terminate this Licence Agreement shall be the sole remedy of BBS.

 

8.3 Upon termination of this Agreement (howsoever arising) the Licensee shall confirm in writing to BBS within 14 days of termination that all copies of the Licensed Products and Data and any information derived from comparison with, by reference to, or resulting from the authorised or unauthorised use of the Licensed Products or Data has been removed from all systems whatsoever used by or accessible to the Licensee and that no further use will be made of such information or any of the Licensed Products or Data.

 

8.4 Any termination of this Licence Agreement shall be without prejudice to any rights or remedies either party may be entitled to and shall not affect any accrued rights or liabilities of either party.

 

8.5 Howsoever this Licence Agreement is determined the Licensee shall not under any circumstances become entitled to the repayment of the Licence Fee or any other sums payable under this Licence Agreement.

 

9. General

9.1 Any addition to or variations of this Licence Agreement must be in writing signed on behalf of both parties.

 

9.2 If any part of this Licence Agreement shall be found by any court to be invalid or unenforceable, the invalidity or unenforceabilty of such shall not affect the other provisions of this Licence Agreement, which shall remain in full force and effect.

 

9.3 The headings herein are for the purpose of information and identification only.

 

9.4 Neither party shall be entitled to assign or sub-contract this Licence Agreement or any part of it.

 

10. Law

This Licence Agreement shall be governed by and construed in accordance with English Law and the parties hereby agree to submit to the exclusive jurisdiction of the English Courts.

 

Schedule 3 – Definitions

1. Definitions

1.1 In this Agreement and each Order, the following definitions apply:

Applicable terms:

Citipost's terms and conditions, as set out in Schedule 1, which shall apply to each Order.

Deliverables:

all documents, products and materials developed by Citipost or its agents, contractors and employees as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).

Documentation:

all printed materials and electronic documentation in respect of the BBS Software.

Foreground IPRs:

all Intellectual Property Rights in the Deliverables.

Front sheet:

the cover sheet at the front of this Agreement.

Mailing house:

the mailing house, as appointed by the Customer, to place Orders on Customer's behalf.

Supplier background iprs:

all Intellectual Property Rights that are owned by or licensed to Citipost and which are or have been developed independently of this agreement (whether prior to the date of this agreement or otherwise) in each case either subsisting in the Deliverables or otherwise necessary or desirable to enable the Customer to receive and use the Services.

 
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