MAILSTREAM ON DEMAND TERMS AND CONDITIONS
These terms are entered into as of the date you sign the Order Form (as defined below) (the “Effective Date”), by and between Pitney Bowes Australia Pty Ltd (“PBA” or “we” or “us” or “our”), with its registered office at Level 1, 68 Waterloo Road, Macquarie Park 2113 New South Wales, and the entity identified on the Order Form (“Client” or “you” or “your”).
1. Definitions and interpretation
1.1 In this Agreement:
“Australia Post” means the Australian Postal Corporation.
“Charges” means PBA’s charges for the provision of the Service as set out in the Order Form and SOW.
“Communications” means physical communications, such as invoices, statements, and notices.
“Customer Portal” means the cloud-based portal via which you can create and send Mail and access your services, reporting, pricing and archived Mail.
“Interest Rate” means 2% per month on the outstanding amount, charged on the monthly outstanding balance as varied by us from time to time in accordance with this Agreement.
“IPR” means all patents, registered designs, trademarks and service marks (whether registered or not), copyright, database rights, design right, know how, information and all similar property.
“Logon Details” means the password protected logon that allows the Client access to the Service.
“Mail on Demand” means the service offered by PBA that provides a cloud-based portal for producing, sending and delivering multi-channel client communications on-demand.
“Mail on Demand Website” means the website notified to the Client giving the Client access to the Service;
“Mail” means either an A4 letter or document as described in the Service Specification, or an SMS, or an email, which is electronically conveyed to PBA in accordance with the requirements set out in the Service Specification and which is subsequently processed under the Service;
“Service Specification” means the specification for the Service set out in the SOW.
1.2 In this Agreement (except where the context otherwise requires):
a) any reference to a clause is to the relevant clause of this Agreement;
b) the clause headings are included for convenience of reference only and shall not affect the interpretation of this Agreement;
c) use of the singular includes the plural and vice versa and use of any gender includes the other gender;
d) the words “include”, “including” and “in particular” shall be construed as being by way of illustration or emphasis and shall not limit or prejudice the generality of the foregoing words; and
e) reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted.
1.3 Services. From the Effective Date, we will provide the Services as
set out in the Order Form and a Statement of Work referencing these terms (“SOW”)
and these terms herein (the “Services”) to you. The Order Form, the
terms herein and the SOW(s) are referred to collectively as the or this
2. Service Obligation
2.1 PBA (or one of our vendors or affiliates), shall process all Mail that is submitted via the Customer Portal and accepted by PBA under this Agreement.
2.2 PBA reserves the right to reject or refuse to accept any Mail that fails to comply the terms of this Agreement.
2.3 The Service Specification sets out PBA’s service level target. The Client acknowledges that PBA is required to use Australia Post for the final sortation and delivery, and accordingly is not able to offer any assurance as to the actual delivery date of any physical Mail. PBA shall not be liable to the Client or to any other person for failure to deliver within this target (whether as a result of breach of this Agreement or otherwise).
2.4 Performance Standards; Warranty. We (or our vendors or affiliates, as applicable) will perform the Services in a skilful and workmanlike manner in accordance with the specifications set forth in the SOW. Except as expressly stated in this Agreement, all other warranties and conditions, express or implied, with respect to the Services furnished under this Agreement, including but not limited to, any warranty of satisfactory quality, merchantability, fitness for a particular purpose, accuracy, reliability, course of dealing, course of performance or usage in trade, are excluded.
2A. Optional Support Services
2A. 1 Annual Support Agreement. An Annual Support Agreement is to be assigned and utilised by one natural person only. Should you require more than one person to access the support services, you will need to purchase an Annual Support Agreement for each user that you require to use the support services.
2A. 2 If you do not have an active Support Agreement with Pitney Bowes and you require assistance with the Services, Pitney Bowes Professional Services will be billed at $49 for each 15-minute block of time.
2A. 3 If, during the onboarding process, it is determined that a bespoke setup is required to configure your MOD system or the content within, Pitney Bowes Professional Services shall be billable pursuant to a quotation agreed to by the parties.
3. Equipment and Mail
3.1 The Client shall at its expense obtain and, for the duration of this Agreement, maintain such equipment as is necessary to enable the Client to electronically convey Mail to PBA for processing under the Service. It is the Client’s responsibility to ensure that such equipment complies with the specifications and requirements set out in the Service Specification.
3.2 The Client shall ensure that each Mail electronically conveyed to conforms to the requirements set out in the Service Specification.
3.3 The Client warrants that either it is the owner of all Mail that it electronically conveys to PBA for processing under the Service or, if not the owner, is authorised to electronically convey the Mail on the owner’s behalf for such processing by PBA.
3.4 The Client shall ensure that:
a) all relevant Mail has been submitted in accordance with legislation and guidance; and
b) it has complied with any and all laws, regulations, best practices, and guidance which may apply to the Mail.
3.5 The Client shall procure that the contents of all Mail that are electronically conveyed to PBA conform to the requirements of the Spam Act 2003 (Cth).
3.6 The Client acknowledges that Mail that is processed by PBA under the Service shall be printed to the standard of the Service Specification. PBA shall not be liable to the Client in respect of the accuracy or consistency of the printing of the Mail where the printing of such Mail complies with the Service Specification.
3.7 The Client warrants that it is either the owner of the IPR vested in the content (including but not limited to graphics, images and text) of any Mail it conveys to PBA under the Service or it is otherwise licensed or authorised to use such IPR.
3.8 The Client shall grant a royalty free license to PBA (or our vendors or affiliates, as applicable), and to use the IPR for the purpose of allowing PBA to perform its obligations under this Agreement, or shall obtain any required third party licence for PBA for the purposes of performing its obligations under this Agreement.
3.9 Without prejudice to the generality of the foregoing, PBA reserves the right to reject any Mail that does not conform to the obligations contained in this Agreement.
4.1 PBA hereby grants to the Client for the duration of this Agreement a non-exclusive, non-transferable licence to use the Licensed Software for the purposes of the Service upon the terms and conditions of this Agreement.
4.2 PBA warrants that it has the right, power and authority to license the Software to the Client upon the terms and conditions of this Agreement.
4.3 PBA does not warrant that the Client’s use of the Software will be uninterrupted or error free or that the Software will be free of harmful code such as viruses, trojan horses, worms or other malicious code.
4.4 Subject to the foregoing, all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the Software are hereby excluded.
4.5 The Client shall not:
a) (other than as permitted by law) reverse compile, reverse engineer, adapt or otherwise modify the whole or any part of the Software; or
b) remove or alter any copyright or other proprietary notice on the Software.
4.6 The Software contains confidential information of PBA (and its vendors and affiliates, as applicable) and all copyright, trademarks and IPR in the Software are the exclusive property of PBA (and/or its licensors) and the Client shall (at its cost) take all such steps as are necessary from time to time to protect PBA’s confidential information and IPR in the Software.
4.7 The Client is responsible for ensuring that the Software is compatible with its existing software programmes and PBA shall not be liable to the Client where the Client’s use of the Software is incompatible with such existing software or where such use causes corruption, interruption or other errors in respect of the Client’s existing software or systems.
5 Client access and passwords
5.1 The Client shall be responsible for the acts and/or omissions of any persons making use of its Logon whether being authorised to do so or not, including but not limited to payment for all Mail lodged by any persons using the Client’s Logon. The Client will promptly notify PBA on becoming aware of any Logon and/or password being known and/or available to a third party.
5.2 If the Client becomes aware that any unauthorised access to or use of the Software and/or Service has occurred or may occur, it shall promptly notify PBA.
5.3 If PBA becomes aware that any unauthorised access to or use of the Software and/or Service has occurred or may occur it shall promptly notify the affected Client.
5.4 Without prejudice to PBA’s rights under Clause 5.5, upon notification under Clause 5.2 or 5.3, PBA and the Client shall discuss what steps if any may be appropriate to reduce the risk of any further unauthorised access to or use of the Software and/or Service, and each of the Client and PBA shall take such steps as soon as is reasonably practicable at their own cost.
5.5 Where at any time PBA becomes aware that the Client is not complying with the terms of this Agreement included but not limited to access to or use of the Licensed Software and/or Service or that there has been or may be unauthorised access to or use of the Software and/or Service, PBA reserves the right to suspend and/or terminate the Client’s access to the Software and the Service, and will notify the Client in the event that suspension or termination occurs. PBA has discretion to restore the Client’s access where the Client has demonstrated to PBA’s reasonable satisfaction that such non-compliance has ceased and the Client is taking all reasonable steps to prevent its reoccurrence.
5.6 Due to the nature of the internet, online systems and software, PBA cannot ensure that the Service will be available at all times and/or will always function effectively. Accordingly, PBA shall not be liable to the Client in respect of the unavailability or malfunctioning of the Service. PBA will attempt to inform Clients via the Website, or by other means, of periods of planned downtime during which the Client will not be able to access the Service. However, Clients should be aware that some downtime may not be planned.
5.7 PBA shall not be liable to the Client where the Client is unable to access the Service, electronically convey Mail or otherwise use the Service for reasons related to internet connectivity and/or telecommunications.
6. Pricing and Payment
6.1 You will pay the fees for the Services as set out on the Order Form.
6.2 PBA reserves the right update the pricing from time to time and must provide you with 30 days’ notice of any price increase. New prices will be published on the Customer Portal.
6.3 PBA will issue you with an invoice each month, which will be payable within 10 days of the date of issue.
6.4 Interest. If you are in arrears outstanding balance on or before the payment due date, interest will be charged at the Interest Rate on the whole balance outstanding from the date of each transaction up to the date of any repayment.
6.5 You or we may terminate the Account at any time by written notice to the other. Any termination shall not affect your liability incurred prior to termination, including in respect of transactions entered into before, but charged after, termination.
6.6 Closure of your Account for any reason will not affect your liability in respect of any payments due under any agreement with us.
6.7 All payments due from the Client under this Agreement will be made without deduction whether by way of counterclaim, set-off or otherwise.
6.8 If you fail to make any payment to PBA under this Agreement on the due date, or otherwise exceed the predetermined usage levels, without prejudice to any other right or remedy available to PBA, PBA shall be entitled to immediately suspend the performance or further performance of its obligations under this Agreement without liability to the Client.
7. Competition and Consumer Act 2010 (Cth) etc. limits.
Statutory notice: The following only applies if you are a deemed "consumer" under the Australian Consumer Law and may not apply in your particular case. In telling you the following, we do not vary or extend the remedies otherwise available to you. Provisions of the Competition and Consumer Act 2010 (Cth), the ‘Australian Consumer Law’, and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law our liability under those provisions is limited as follows. Our liability in relation to goods is limited at our option to replacement of the goods or the supply of equivalent goods; or repair of the goods; or payment of the cost of replacing the goods or of acquiring equivalent goods; or payment of the cost of having the goods repaired. Our liability in relation to services is limited at our option to the supplying of the services again; or the payment of the cost of having the services supplied again.
8. Exclusions of Liability and Claims
8.1 The Client acknowledges and agrees that:
a) the treatment of all Mail processed under the Service pursuant to this Agreement will be the same as in the case of ordinary Mail posted with Australia Post and, in particular, PBA does not keep detailed records of conveyance or delivery of any Mail; and
b) in the event of loss of or damage to any Mail dealt with by PBA (or its vendors or affiliates) under this Agreement, PBA shall, subject to satisfactory proof of such Mail having been accepted by PBA and of the loss or damage, and subject to the remainder of this Clause 8, pay compensation to the Client subject to the following limits:
(i) where PBA has already handed over the relevant Mail to Australia Post, the compensation shall be limited to whatever payment PBA recovers from Australia Post in relation to that Mail;
(ii) otherwise the compensation in respect of the relevant Mail shall be limited to the Charge paid.
8.2 PBA’s maximum liability to the Client in relation to the total number of Mail, that has been accepted by PBA, in any one day (whether under Clause 8.1 or other provision of this Agreement, in tort (including negligence or breach of statutory duty) or otherwise) is $5,000.
8.3 Except as provided in Clause 8.1, PBA shall not be liable to the Client or to any other person (whether in contract, tort (including negligence or breach of statutory duty) or otherwise) for any loss of or damage to any Mail dealt with by PBA (or its vendors or affiliates) under this Agreement or for any delay in delivery.
8.4 Notwithstanding Clause 8.1, PBA shall not be liable to the Client for any loss or damage (whether in contract, tort (including negligence or breach of statutory duty) or otherwise) of any Mail:
a) which occurs as a direct or indirect result of any failure by the Client to comply with this Agreement (including the Service Specification); or
b) for which PBA has not acknowledged acceptance; and
c) unless the Client notifies PBA of a claim under Clause 8.1 in writing within 14 days of the relevant date of acceptance by PBA.
8.5 Except as set out in 8.7 below, under no circumstances will PBA be liable for any (i) loss or damage to profits, sales, business, goodwill or anticipated savings; or (ii) business interruption or lost data; or (iii) punitive, special, consequential, incidental or indirect damages; even if PBA has been advised of the possibility of such loss or damage.
8.6 PBA shall not be liable for any failure or delay in performance of PBA’s obligations (including for any loss or damage or failure to deliver or delay in delivery of a Mail) due to any event beyond PBA’s reasonable control including but not limited to an act of God, war, riot, industrial disputes, compliance with any law or governmental order, rule, regulation or direction, or default of suppliers or sub- contractors.
8.7 Nothing in this Agreement shall exclude or restrict either party’s liability for (i) fraud; (ii) death or personal injury caused by negligence; or (iii) any other liability which by law cannot be excluded or limited.
8.8 The Client shall indemnify PBA and keep PBA indemnified against any liability, loss, claim, costs or expense (including legal expenses) suffered or reasonably incurred by PBA (or its employees, agents or contractors) as a result of any breach by the Client of any provision in this Agreement.
9. Term and Termination
9.1 This Agreement shall commence on the Effective Date. The Agreement shall continue on a month by month basis and can be terminated by either party on at least 30 days’ notice.
9.2 Either party (the “terminating party”) may terminate this Agreement immediately by giving the other party (the “breaching party”) notice if:
a) the breaching party commits any breach of the terms of this Agreement and the breach is not capable of remedy or where the breach is capable of remedy the breaching party has not remedied that breach within 14 days of being notified of the breach by the terminating party; or
b) the breaching party has an administrator or a receiver (including any administrative receiver or manager) appointed over the whole or any part of its assets or an order made or a resolution passed for winding-up of the breaching party (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or if circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to appoint an administrator or make a winding-up order or if the breaching party has made any composition with its creditors generally.
9.3 PBA may terminate this Agreement immediately by giving the Client notice if the Client fails to pay any Charges or other sums due under this Agreement when due, or where the Client has exceeded predetermined usage levels, provided that PBA has given the Client notice specifying an intention to terminate this Agreement and given a period of 7 days to remedy that failure.
10. Consequences of Termination
10.1 The termination of this Agreement (for any reason) shall not affect the coming into or the continuance in force of any obligations which expressly or by implication are intended to come into or continue in force on or after such termination and shall be without prejudice to any other rights of either party accrued up until the date of termination.
10.2 On termination of this Agreement (for any reason) the Client shall immediately:
a) cease using the Software; and
b) cease using the Logon Details and password(s);
c) The Client shall also immediately upon termination of this Agreement or otherwise when reasonably requested by PBA return to PBA any property (and delete, remove and/or uninstall all copies of the Software held by the Client) provided to the Client under this Agreement.
11.1 Except as provided in Clauses 11.2 and 11.3, PBA and the Client undertake to the other to keep confidential the terms of this Agreement, all information (written or oral) concerning the business, the Clients or financial information of the other that it has received as a consequence of the discussions leading up to this Agreement or which it subsequently receives as a consequence of the performance of this Agreement, including the prices charged by PBA under this Agreement (“Confidential Information”).
11.2 PBA and the Client may each disclose Confidential Information to their affiliates, respective legal, financial and other business advisors (in each case in so far as such advisors need to know such Confidential Information) or as may be required by law or by any regulatory authority.
11.3 Clause 11.1 shall not apply to Confidential Information which the receiving party can demonstrate was; (i) already in its possession prior to its receipt from the disclosing party; (ii) was subsequently disclosed to it lawfully by a third party who did not obtain such Confidential Information (directly or indirectly) from the disclosing party; or (iii) was in the public domain at the time of receipt by the receiving party or has subsequently entered the public domain other than as a result of a breach of Clause 11.1 by the receiving party.
11.4 The obligations of the parties under this Clause 11 survive termination of this Agreement however caused.
12.1 PBA may use your name in promotional materials, including press releases, presentations and customer references regarding the sale of any goods. You give us that permission free of charge for worldwide use in any medium. However, we will obtain your prior approval for publicity that contains quotes or endorsements attributed to you. We may send you emails and marketing materials from time-to-time unless you advise us in writing that you do not wish to receive any such emails and/or marketing materials.
13. Personal information and data privacy
13.1 PBA may collect personal information about you, and in particular the person signing this Agreement, in connection with our dealings with you. PBA will at all times abide by the Privacy Act 1988 (Cth), including the Australian Privacy Principles, in handling personal information about you, your business or your directors. We collect and use personal information collected from you to provide you with our products and services, including in assessing any credit application, conducting credit checks and establishing and operating any credit account as a result and to manage our relationship with you.
13.2 PBA may disclose your personal information to regulatory bodies where this is required by law. We may also disclose your personal information to other companies within the Pitney Bowes group, to credit rating agencies, subcontractors, and other third parties engaged by us to carry out services on our behalf, or otherwise in accordance with our legitimate business needs. This may include the disclosure of your personal information to recipients located in the United States of America, the United Kingdom and any other country in which the Pitney Bowes group operates in. A list of such countries can be found at http://www.pb.com/Contact-Us/Worldwide-Regions.shtml.
14. Assignment and Sub-contracting
14.1 We may sub-contract the performance of any of PBA’s obligations under this Agreement. The Client recognises that PBA (or its vendors or affiliates) will hand over physical Mail to Australia Post for final conveyance to the destination address.
14.2 This Agreement is personal to the Client and the Client may not assign or licence any or all of the Client’s rights or obligations under it without the prior written agreement of PBA.
All notices we give each other must be in writing and signed. Notices must either be delivered by hand or sent by prepaid post to the relevant address shown on the Order Form or a changed address of which due notice has been given.
16.1 Force Majeure. Except for a party’s payment obligations, neither party shall be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, governmental actions, transportation problems, strikes, lockouts, riots, acts of war, acts of terrorism, delays or errors by postal authorities or changes of laws or regulations, epidemics, fire, interruption or failure of internet, general internet or communication line failures, interruption or failure of telecommunications or digital transmission links, hostile network attacks, power surges or failures, earthquakes or other disasters (a “Force Majeure Event”).
16.2 PBA reserves the right for it and for Australia Post to open and inspect Mail to verify compliance with the requirements of relevant law and regulation and this Agreement.
16.3 The failure of either party to enforce or to exercise, at any time or for any period, any term of, or right arising pursuant to, this Agreement does not constitute, and shall not be construed as, a waiver of such a term or right and shall not affect the party’s right to enforce or exercise it at a later date.
16.4 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
16.5 This Agreement can only be varied by the written agreement of each party executed by an authorised person.
16.6 Each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this Clause 16.5 shall limit or exclude any liability for fraud.
16.7 If any term or provision of this Agreement shall be held illegal or unenforceable in whole or in part under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the validity and enforceability of the remainder of this Agreement shall not be affected.
16.8 Governing Law. This Agreement will be governed by the laws of Australia and the parties submit to the exclusive jurisdiction of the Australian courts.