These terms and conditions apply to the ZAP~POST service supplied by ARC X-MEDIA LIMITED (“Supplier”) to its ZAP~POST Members who sign up to use Supplier’s ZAP~POST service (“the Service”) via Supplier’s website (“the Website”). By signing up and being accepted by Supplier to use the Service, the Member (“Member”) creates a contractual arrangement with Supplier in respect of the Service as set out on the Website and incorporating the following terms and conditions. References herein to “the Agreement” shall be construed accordingly.
1.1 Terms Of Business
1.1.1 The Supplier shall supply the Service to the Member as set out on the Website and subject to these terms and conditions (“T&Cs”). Words and expressions defined on the Website shall have the same meaning when used in these T&Cs.
1.1.2 By using the Service, the Member sets up an account with Supplier to deposit money with Supplier to pay for Member’s use of the Service via the Website (“the Account”). The Member is solely responsible for the use of the Service in its name via the Website and thereby the use of its Account and Supplier is entitled to treat all such usage as fully and duly authorised by the Member and to charge for all such usage accordingly.
1.1.3 Without prejudice to the foregoing, the Member is solely responsible for issuing usernames and passwords for use of its Account for the purpose of using the Service and acknowledges and agrees that it is fully liable for due payment for all such usage in its name of its Account. The Member is solely responsible for procuring that no unauthorised access to and/or use is made of the Services via its Account. The Service does not provide and is not intended to provide the Member with any security provision for the avoidance of any misuse or unauthorised use of the Member’s Account.
1.1.4 The Member acknowledges that the Supplier’s ability to meet its obligations under this Agreement shall depend on the Member’s own input into its utilisation of the Service. Consequently, in so far as the Supplier is prevented or delayed from fulfilling any of its obligations as a result of a delay or act or omission by the Member, Supplier shall not be liable to the Member for any such failure or delay.
1.1.5 The Supplier shall use reasonable endeavours to ensure that access to the Service is available 24/7 but does not warrant that the Services will be uninterrupted or error free. The Supplier shall, wherever reasonably practicable, give the Member at least 24 hours prior written notice of all scheduled interruptions to the Service.
The Member’s use of the Service depends on the Membership Plan chosen during set-up through the Website (ie One-Off; Trial; Monthly or Annual). This Agreement will endure for the period of usage of the Service (but see Condition 3 below in terms of required notice provisions in relation to Monthly and or Annual Memberships). The Member may amend its Membership Plan via their account at any time, effective from the next Renewal date and the Agreement will continue as so amended.
1.3.1 One-Off: Members can send any number of campaigns without subscribing to a Membership Plan. One-off Member's accounts remain active for up to 12 months without incurring any Membership fees, after which time the account becomes inactive and will be archived.
Trial: is a one-time use of the Service according to the Trial Plan selected in your Account on the Website. Save to the extent the Member chooses to subscribe to the Service at the end of the Trial, the Agreement will end once the Trial is complete.
Monthly Membership: may be terminated at any time by the Member by giving not less than 7 days’ notice to terminate with effect from the Services Renewal date when the Agreement will end on such end date. If notice is not served to terminate your monthly Membership, your Membership will automatically renew for a further monthly period.
Annual Membership: may be terminated at any time by the Member by giving not less than 30 days’ notice to terminate with effect from the Services Renewal date when the Agreement will end on such end date. If notice is not served to terminate your annual Membership, your Membership will automatically renew for a further annual period.
The Services Renewal date is the Monthly or Annual recurring date of the Services start date. Subscribers can set up a reminder in the Account in relation to Renewal dates if they so wish.
The Member can serve notice to cancel its Membership at any time via its Account page or by contacting Member Support. Should the Member cancel the Membership once the Service has commenced, no refund will be paid and the Service will continue until the end of the then current contracted term.
The Member is deemed to have used the Service when the Member has submitted it's first recipient data.
1.3.2 The Member is free to cease to use the Service at any time but acknowledges that its pricing for its use of the Service is determined by the Membership Plan chosen by it and that as the Service and its pricing by the Supplier is volume dependent across all of Supplier’s Members, no rebates or other repayments of monies in the Member’s Account are available. The Member is therefore advised not to cease its usage of the Service until it has fully utilised its Membership Plan entitlement but that is a matter for the Member alone.
1.3.4 Either party may terminate this Agreement at any time on written notice to the other party with immediate effect, in the event that:
(a) the other party is in breach of any of its material obligations under the Agreement which is not remediable or, if remediable, which it has failed to remedy to the reasonable satisfaction of the non-defaulting party within fourteen (14) days' (or one day in the event of overdue payment of any monies) written notice requiring it to do so;
(b) the other party ceases or threatens to cease to do business, becomes unable to pay its debts, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of bona fide solvent amalgamation or reconstruction) or any equivalent or similar action or proceeding is taken or suffered in any jurisdiction.
1.3.5 In the event of any termination by the Supplier of this Agreement pursuant to clause 1.3.4 above or clause 1.3.6 below, no rebate of any monies to the Member is payable because of the reasons set out in clause 1.3.2 above. In the event the Agreement is terminated by the Member pursuant to clause 1.3.4 above or clause 1.7.2 below, the Member will be entitled to a rebate of any monies then held in its Account which are not required to be utilised in respect of any active Services on its behalf at the date of termination.
1.3.6 Without prejudice to the foregoing or to any other provision hereof (including without limitation, clause 1.3.3 above) the Supplier may terminate this Agreement forthwith with immediate effect in the event that the Member fails to pay, within 2 days of notice from the Supplier requiring it to make such payment, any Overage Charges because of its usage of the Service in excess of its then Plan Membership entitlement.
1.4 Billing and Payment
1.4.1 In consideration of the supply of the Services, the Member shall pay the charges to the Supplier as set out in the Website depending on the Membership Plan chosen by the Member, together with all applicable VAT. The Supplier reserves the right, through notice on the Website, to change the charge rates for any Membership on 30 days’ notice or more, such increases to have effect on the Renewal date. Any such increases to Charges will be limited to demonstrable external cost increases incurred by the Supplier.
1.5 Warranty and Indemnities
1.5.1 The Supplier warrants that it will exercise reasonable care and skill in performing the Services and its obligations under the Agreement.
1.5.2 The Member will indemnify and hold Supplier harmless on demand against all losses, liabilities and damages incurred or suffered by Supplier (including legal costs incurred by the Supplier in investigating or defending itself against any related claim by any person) as a result of any breach of the Member’s warranties in clauses 1.8.2 below.
1.5.3 Each Party warrants to the other that it will perform its obligations under this Agreement in compliance with all applicable laws (including advertising, data protection and health and safety laws), enactments, orders, regulations, industry-specific regulations, guidance and all applicable changes in law.
1.6 Limitation of Liability
1.6.1 The Member shall give or procure the Supplier is given a reasonable opportunity to remedy any matter for which the Supplier may be liable.
1.6.2 The Supplier and the Member shall have no Liability to each other for indirect or consequential losses, loss of business or loss of opportunity or for damage to goodwill or for pure economic or similar losses and special or aggravated damages.
1.6.3 The Supplier's and Member’s total aggregate Liability to each other in relation to any claim or series of linked claims for breach hereunder shall not exceed the aggregate of the Charges paid to the Supplier under this Agreement giving rise to the claim during the period of 12 months immediately preceding the relevant claim arising or if less, during the period from the commencement of this Agreement.
1.6.4 Nothing in this Agreement shall exclude or limit a party’s Liability for death or personal injury due to its negligence or the negligence of any of its agents or any Liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
1.7 Force Majeure
1.7.1 If a party is prevented, hindered or delayed from performing any of its obligations under the Agreement (other than a payment obligation) by a Force Majeure Event, that party’s obligations under this Agreement are suspended while the Force Majeure Event continues to the extent that it is so prevented, hindered or delayed.
1.7.2 If the Force Majeure Event continues for more than two (2) months, either party may terminate the Agreement or any relevant Contract by giving no less than fourteen (14) days’ notice to the other party. In the event of termination for Force Majeure in accordance with this clause 1.7.2, the provisions of clause 1.3.5 shall apply.
1.8 Intellectual Property
1.8.1 The Member shall be solely responsible for all content including copy and imagery it creates on each item of ZAP~POST generated by it.
1.8.2 The Member warrants that:
(a) no such content will contravene or breach any applicable law, regulation, code of practice, or directive including, without limitation, consumer, trade or advertising laws and regulations or data protection legislation or regulations; and
(b) no such content will infringe in any way the Intellectual Property Rights or other rights of any third parties nor will be obscene, defamatory, libellous or slanderous or will cause harm or injury to, invade the privacy of or otherwise violate any rights of any person.
1.9 Data Protection
The Member is bound by the Country Data Protection policy on the website as determined by the country from which the relevant Membership is made.
1.10.1 Governing Law and Jurisdiction: This Agreement and all disputes or claims arising out of it including non-contractual claims are governed by and shall be construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute or claim (including non-contractual claims) arising out of or in connection with this Agreement.
1.10.2 Amendments: These T&Cs may be amended by the Supplier on not less than 30 days prior notification to the Member from time to time. Except as aforesaid or as otherwise provided herein, the Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
1.10.3 Assignment and Severability: The Member shall not assign its interest in the Agreement or any part of it without the prior written consent of the Supplier. The Supplier may assign its interest in the Agreement or any part of it and may sub-contract any of its obligations hereunder (and references in the Agreement to the Supplier shall be read and construed to include all and any such assignees or subcontractors).
1.10.4 Notices: Any notice required to be given by either party for the purposes of this Agreement will be deemed validly given if sent by prepaid registered letter to the other party at its address set out in the Agreement or as otherwise notified by a party from time to time.
1.10.5 Remedies: The rights and remedies provided under the Agreement are in addition to and not exclusive of any rights or remedies provided by law.
1.10.6 Entire Agreement: These T&Cs and the terms of each Contract constitute the entire Agreement and understanding between the parties with respect to its or their subject matter and supersedes to the exclusion of any other Agreement, understanding or arrangement between the parties whether oral or in writing (including, but not limited to, any terms and conditions set out in any purchase order or other documentation issued or purported to be issued by the Member). The Agreement is not affected by any other promise, representation, warranty, usage, custom or course of dealing. The parties confirm that they have not entered into the Agreement on the basis of any representation that is not expressly incorporated into the Agreement. Nothing in the Agreement shall exclude liability for any fraudulent statement or act made prior to the date of the Agreement.
1.10.7 Third Party Rights: None of the terms and conditions of the Agreement shall be enforceable by any person who is not a party to it.