These terms and conditions apply to the ZAP~POST service supplied by ARC X-MEDIA LIMITED (“Supplier”) to its ZAP~POST customers 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 customer (“Customer”) 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 Customer 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 Customer sets up an account with Supplier to deposit money with Supplier to pay for Customer’s use of the Service via the Website (“the Account”). The Customer 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 Customer and to charge for all such usage accordingly.
1.1.3 Without prejudice to the foregoing, the Customer 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 Customer 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 Customer with any security provision for the avoidance of any misuse or unauthorised use of the Customer’s Account.
1.1.4 The Customer acknowledges that the Supplier’s ability to meet its obligations under this Agreement shall depend on the Customer’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 Customer, Supplier shall not be liable to the Customer 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 Customer at least 24 hours prior written notice of all scheduled interruptions to the Service.
The Customer’s use of the Service depends on the subscription Tier it chooses on its set-up for the Service through the Website (ie 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 subscriptions). The Customer may amend its Subscription Tier via their account at any time, effective from the next Renewal date and the Agreement will continue as so amended.
1.3.1 Trial: is a one-off use of the Service according to the Trial Tier selected in your Account on the Website. Save to the extent the Customer chooses to subscribe to the Service at the end of the Trial, the Agreement will end once the Trial is complete.
Monthly subscription: may be terminated at any time by the Customer 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 you monthly subscription, your subscription will automatically renew for a further monthly period.
Annual subscription: may be terminated at any time by the Customer 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 you annual subscription, your subscription 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 Trial and either subscription will end on such end date (save for those provisions thereof which are capable or intended to continue to have effect between the parties, including without limitation, the indemnity provisions under clause 5.2 below)
The Customer can serve notice to cancel its subscription at any time via its Account page or by contacting Customer Support. If the Customer cancels within 14 days of its initial sign up before Service has been provided, the Customer will be refunded. Should the Customer cancel the subscription 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 Customer is deemed to have used the Service when Supplier has completed a ZAP~POST send.
1.3.2 The Customer 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 subscription Tier chosen by it and that as the Service and its pricing by the Supplier is volume dependent across all of Supplier’s customers, no rebates or other repayments of monies in the Customer’s Account are available. The Customer is therefore advised not to cease its usage of the Service until it has fully utilised its subscription Tier entitlement but that is a matter for the Customer 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 3.4 above or clause 3.6 below, no rebate of any monies to the Customer is payable because of the reasons set out in clause 3.2 above. In the event the Agreement is terminated by the Customer pursuant to clause 3.4 above or clause 7.2 below, the Customer 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 3.3 above) the Supplier may terminate this Agreement forthwith with immediate effect in the event that the Customer 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 Tier subscription entitlement.
1.4 Billing and Payment
1.4.1 In consideration of the supply of the Services, the Customer shall pay the charges to the Supplier as set out in the Website depending on the subscription Tier chosen by the Customer, together with all applicable VAT. The Supplier reserves the right, through notice on the Website, to change the charge rates for any subscription 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 Customer 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 Customer’s warranties in clauses 8.2, 9.8 and or 9.11 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 Customer 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 shall have no Liability to the Customer 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 total aggregate Liability to the Customer 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 7.2, the provisions of clause 3.5 shall apply.
1.8 Intellectual Property
1.8.1 The Customer 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 Customer 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, libelous or slanderous or will cause harm or injury to, invade the privacy of or otherwise violate any rights of any person.
The Customer is bound by the Country Data Protection policy on the website as determined by the country from which the relevant subscription 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 Customer 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 Customer 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&Csand 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 Customer). 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.
2.1 Who we are:
Controller or Processor With respect to information collected from this website, ARC X-Media is the data controller and responsible for this website. ARC X-Media also processes data on behalf of its customers and in accordance with their instructions. ARC X-Media is a data processor with respect to third-party data provided to it by its customers. Where ARC X-Media is the data processor, you should make any requests for information or to exercise your rights directly to the data controller.
How to Contact Us We have appointed a Data Protection Officer who is responsible for overseeing questions in relation to this privacy notice. If you have any questions about this privacy notice, including any requests to exercise your legal rights, please contact the Data Protection Officer using the details set out below. Data Protection Officer, ARC X-Media Ltd, CEC, London Road, Corby, NN17 5EU or via email to firstname.lastname@example.org with the subject Attn: DPO. Please contact us in the first instance if you have any questions, queires or complaints. You have the right to make a complaint at any time to the relevant supervisory authority for data protection issues. In the UK, this is the Information Commissioner’s Office, www.ico.org.uk.
Third Party Links This website includes links to third-party websites and applications. Clicking on those links or enabling those connections may allow third parties to collect or share data about you. We do not control these third-party websites and are not responsible for their privacy statements.
2.2 The data we collect about you and how we use it:
~ Identity Data includes first name, maiden name, last name, username or similar identifier, marital status, title, date of birth and gender.
~ Contact Data includes billing address, delivery address, email address and telephone numbers.
~ Transaction Data includes details about payments to and from you and other details of products and services you have purchased from us.
~ Technical Data includes internet protocol (IP) address, your login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices you use to access this website.
~ Profile Data includes your username and password, purchases or orders made by you, your interests, preferences, feedback and survey responses.
~ Usage Data includes information about how you use our website, products and services.
~ Marketing and Communications Data includes your preferences in receiving marketing from us and our third parties and your communication preferences.
~ Direct interactions You may give us your Identity, Contact, Profile and Marketing Data by filling in forms or by corresponding with us by post, phone, email or otherwise. This includes personal data you provide when you:
~ As a Data Processor, we may receive data from third parties or publicly available sources as set out below:
~ Lawful Basis For the Use of Your DataWe will only use your personal data in accordance with applicable laws. There are a number of lawful bases for processing personal data. Most commonly, we will use your personal data in the following circumstances:
~ Marketing We may use your Identity, Contact, Technical, Usage and Profile Data to form a view on what we think you may want or need, or what may be of interest to you. This is how we decide which products, services and offers may be relevant for you (we call this marketing).
~ Opting Out You can ask us to stop sending you marketing messages at any time by following the opt-out links on any marketing message sent to you or by contacting us at email@example.com with the subject of ‘opt-out’ at any time.
2.3 Disclosures of your personal data<
We may have to share your personal data with the some external third parties.
External Third Parties:
~ Service providers, acting as processors, who may be based within or outside the EEA, who provide IT, software-as-a-service (SaaS), system administration and other services which support the functions of our business.
~ Professional advisers, acting as processors or joint controllers, including lawyers, bankers, auditors and insurers based in who may be based within or outside the EEA, who provide consultancy, banking, legal, insurance, accounting and similar professional services.
~ Third parties to whom we may choose to sell, transfer, or merge parts of our business or our assets. Alternatively, we may seek to acquire other businesses or merge with them. If a change happens to our business, then the new owners may use your personal data in the same way as set out in this privacy notice.
~ Tax authorities, regulators, public bodies or other parties, acting as joint controllers or processors, based in countries where ARC X-Media carries on business operations and where disclosure is required in accordance with applicable law.
We require all third parties to respect the security of your personal data and to treat it in accordance with the law. We do not allow our third-party service providers to use your personal data for their own purposes and only permit them to process your personal data for specified purposes and in accordance with our instructions.
2.4 Data Security
We have put in place appropriate security measures to prevent your personal data from being accidentally lost, altered, disclosed or used in an unauthorised way. In addition, we limit access to your personal data to those employees, agents, contractors and other third parties who have a business need to know. They will only process your personal data on our instructions (where we are the data controller) or on the data controller’s instructions (where we are the data processor) and they are subject to a duty of confidentiality.
We have put in place procedures to deal with any suspected personal data breach and will notify you and any applicable regulator of a breach where we are legally required to do so.
2.5 Data Retention
How long will you use my personal data for We will only retain your personal data for as long as necessary to fulfil the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements. As a Data Processor, we determine the appropriate retention period for personal data, according to its purpose, nature and sensitivity. Details of the retention periods for different categories of personal data are set out in our Data Retention Policy.
In some circumstances, you can ask us to delete your data. See Your Legal Rights below for further information. In some circumstances, we may anonymise your personal data (so that it can no longer be associated with you) for research or statistical purposes in which case we may use this information indefinitely without further notice to you.
2.6 Your legal rights
Where we are the data controller, and under certain circumstances, you have rights in relation to your personal data. For a full description of your legal rights, please visit this link: https://ico.org.uk/for-the-public/personal-information/ If you wish to exercise any of the rights set out on the ICO website, please contact us. Where we are a data processor, you should make your request directly to the data controller.
Fees and Process
You will not have to pay a fee to access your personal data (or to exercise any of the other rights). However, we may charge a reasonable fee if your request is clearly unfounded, repetitive or excessive. Alternatively, we may refuse to comply with your request in these circumstances. We may need to request specific information from you to help us confirm your identity and ensure your right to access your personal data. We try to respond to all legitimate requests (where we are the data controller) within one week. Occasionally it may take us longer, in this case, we will notify you and keep you updated.
3. Data Protection
The Customer will provide the Supplier with all required data (“Data”) of all intended recipients of Customer’s ZAP~POST items created by the Customer under its ZAP~POST account (“Service”).
The parties acknowledge and agree that the Customer shall be the data controller in respect of any personal data contained within the Data and the Supplier shall be the data processor. The remainder of this policy will apply to these circumstances, or any other circumstances where the Supplier acts as the data processor of any personal data within the Data in providing the Service.
The purposes for the processing of the Data, a description of the processing of the Data, the categories of data subjects covered by the Data and the categories of personal data within the Data are set out in the relevant Service Tier subscription taken out by the Customer. The Supplier shall only process the Data during the provision of the Service to the Customer or longer if instructed by the Customer.
The Supplier agrees to:
(a) only process the personal data for and on behalf of the Customer for the purposes of performing the Service to the Customer and in accordance with any other documented instructions issued by the Customer in writing from time to time (provided that such instructions are within the scope of the Supplier’s obligations under the agreement) unless otherwise required by law or any other regulatory body (in which case the Supplier shall, where permitted, inform the Customer of that other requirement before processing);
(b) not allow such Data to be processed by anyone who is not subject to a binding obligation of confidentiality;
(c) immediately notify and provide full details to the Customer of any potential or actual loss of personal data, take all measures necessary to remedy or address the breach or potential breach and cooperate with the Customer to resolve such issue;
(d) immediately notify the Customer of any contact with or investigation or audit of the Supplier in relation to Data by any regulatory authority prior to providing any information, unless the Supplier is prevented from doing so by law or court of competent jurisdiction;
(e) implement and at all times maintain an information security management system that includes all appropriate technical and organisational measures necessary or desirable to ensure a level of security appropriate to the risk against unauthorised or unlawful processing, accidental loss or destruction of or damage to personal data and enable the personal data to be processed in compliance with obligations equivalent to those imposed on the Customer under the Data Protection Laws and to ensure protection of the rights of the relevant data subjects;
(f) from time to time on request provide full details in writing of the Supplier's data processing activities in respect of the personal data, including the address of all locations where such processing takes place, and allow its data processing facilities, procedures and documentation which relate to the processing of the personal data to be inspected and audited (on reasonable written notice) by the Customer, a representative or auditor of the Customer or a regulatory body in order to ascertain compliance with Data Protection Laws and the terms of this Policy;
(g) on termination of the Service, return (or, at the Customer’s discretion at any time upon instruction from the Customer, permanently delete) all personal data processed on behalf of the Customer pursuant to the Service (and permanently delete any copies, save to the extent retention is required by law or the extent that the Supplier is the data controller of the Data).
In pursuance of the provision of the Supplier’s System, the Supplier may use some non- identifiable data that will be aggregated, anonymised and used for statistical reporting/providing information on the sector internally and to third parties. For example, the Supplier uses data collected to carry out market studies to support the Supplier’s customers generally. If the Customer does not provide consent to data being used in this unidentifiable manner, express written notification must be provided to the Supplier.
Where the Customer requires assistance from the Supplier in order to respond to requests, queries and/or investigations in respect of the personal data within the Data or requires that the Supplier help the Customer in reconstructing and/or otherwise safeguarding the personal data within the Data or requires that the Supplier assists the Customer in complying with Data Protection Laws, the Supplier shall provide the Customer (at the Customer’s cost) with such assistance as the Customer reasonably requests within any timescales reasonably specified by the Customer.
The Customer authorises the Supplier to appoint sub-processors from time to time provided the Supplier shall impose upon any sub-processor (and procure any sub-processor’s compliance with) the terms of this Policy as if the processing being carried out by the sub-processor was being carried out by the Supplier (and the Supplier shall be liable for the acts and omissions of such sub-processors as if they were the Supplier’s own acts and omissions).
The Customer warrants that:
(a) all Data provided by or on behalf of the Customer shall have been lawfully obtained and retained by the Customer (or its nominated third party);
(b) all necessary consents and data privacy notices have been provided in relation to the processing of the Data by the Supplier; and
(c) the Customer is lawfully entitled to provide, procure the provision of and authorise the Supplier to obtain and use (as the case may be) the Data for the purposes of providing the Service.
From time to time during the term of the provision of the Service the Supplier shall (upon written request from the Customer):
(a) provide details in writing of its data processing activities in respect of the Data;
(b) on reasonable notice allow the Customer to audit its compliance with these terms (subject to any reasonable requirements or restrictions that the Supplier may impose to safeguard the personal data it holds on behalf of other clients and/or avoid unreasonable disruption to the Supplier’s business).
Each party shall:
(a) comply with all Data Protection Laws;
(b) only process personal data in accordance with the relevant principles under the Data Protection Laws;
(c) co-operate with any regulatory authority for data processing;
(d) not do or omit to do anything which will place the other party in breach of any Data Protection Laws.
The Customer warrants and represents that:
(a) the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the personal Data held by the Customer. Consequently, the Supplier shall not be Liable for any claim brought by a Data subject or otherwise arising from any action or omission by the Supplier, to the extent that such action or omission resulted from the Customer’s instructions;
(b) it has the right to allow the Supplier to process all Data and create works from them as part of the Services and the right to license the Supplier to receive and use the Data it holds, as contemplated hereby; and
(c) the Data contains nothing that is defamatory or indecent; and all the Data is necessary, accurate and up-to-date.