TERMS AND CONDITIONS OF PENNY BLACK TECHNOLOGY LIMITED 

1. Validity And Acceptance Of These Terms And Conditions

1.1 Penny Black Technology Limited is a private limited company incorporated and registered in England and Wales with company number 13942953 whose registered office is at 18 – 20 Crucifix Lane, London, SE1 3JW (“Penny Black”).

1.2 These terms and conditions (the “Terms and Conditions”), together with the Service Order (as defined below) constitute a binding agreement (“the Agreement”) between Penny Black and you or the legal entity that you represent (“the Customer”) for the provision of the Penny Black Services (as defined below).

2. Definitions

2.1 Capitalised terms shall have the meanings set forth in this section, or in the section where they are first used.

“Authorised User” means any individual who is an employee, agent or independent contractor of the Customer or an affiliate, partner, service provider or such other person or entity as may be authorised by the Customer to access the Penny Black Services pursuant to the Customer’s rights under this Agreement.

“Customer Data Platform” means the email service provider specified in the Service Order.

“Customer Data” means any data, information, programs and other content provided or transmitted by the Customer or its Authorised Users to the Platform, including, without limitation, Customer Marketing Content and personal data, including the personal data of end customers and prospects.

“Customer Marketing Content” means trade marks, trade names, service marks, slogans, logos, other source identifiers and marketing and promotional content, provided or transmitted by the Customer or its Authorised Users to the Platform in connection with the advertising, promotion, and sale of products and services.

“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force and applicable from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

“Ecommerce Platform” means the ecommerce platform specified in the Service Order.

“Effective Date” means the date specified as such in the Service Order.

“Fees” means the fees payable to Penny Black under the Agreement, as set out in the Service Order and consisting of the Platform Services Fee and, as applicable, the Printer Fees and/or the Production Management Service Fees.

“Fulfilment Operations” means the organisation which, as an internal facility of the Customer or an affiliate, partner, or service provider of the Customer picks, packs and fulfils its ecommerce orders.

“Initial Services Term” means the initial period of time for which Penny Black will provide the Penny Black Services, as specified in the Service Order and commencing on the Effective Date.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in data, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, whether registered or not, including all applications for (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. 

“Onboarding Activity” means all activities to be undertaken by the Customer and Penny Black which are necessary to enable the Customer to access the Platform Services, including configuration and integration with the platforms and systems set out in the Service Order.

“Penny Black Services” means the Platform Services and such of the Production Management Service and/or the Printer Services as are provided to the Customer by Penny Black under the Agreement, as specified in the Service Order.

“Platform” means Penny Black’s proprietary marketing automation software at www.pennyblack.io or any other website notified to the Customer by Penny Black from time to time.

“Platform Fees” means the fees payable by the Customer to Penny Black to access and use the Platform Services, as specified in the Service Order.

“Platform Services” means the services provided by Penny Black to the Customer under this Agreement which give the Customer access to the Platform and integrate with the Ecommerce Platform, Customer Data Platform (where requested) and Warehouse Management System/Fulfilment Operations to enable the Customer to send marketing communications to its customers. 

“Print Consumables” means paper, ink or toner cartridges and maintenance boxes compatible with the printers used by the Customer in conjunction with the Platform Services.

“Print Credits” means the volume of prints to be provided to the Customer, as specified in the Service Order. 

“Printer Fees” means the fees payable to Penny Black by the Customer for providing the Printer Services, as specified in the Service Order.

“Printer Services” means the services provided to the Customer by Penny Black to hire printers to the Customer for use by the Customer in conjunction with the Platform Services.

“Production Management Service” means the managed service provided to the Customer by Penny Black to source and manage Print Consumables for the printers used by the Customer in conjunction with the Platform Services. 

“Production Management Service Fees” means the fees payable to Penny Black for providing the Production Management Service, as specified in the Service Order.

“Renewal Period” means the period of time for which the Agreement automatically continues following the Initial Services Term, as specified in the Service Order.

“Service Order” means any written form provided by Penny Black evidencing the Customer’s subscription to the Penny Black Services.

“Services Commencement Date” means the date on which the first printed document is received by the Customer’s Fulfilment Operations and added to the end customer’s e-commerce packaging. 

“Term” means the period of time commencing on the Effective Date and continuing through the Initial Services Term, together with any subsequent Renewal Period.

“UK Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the United Kingdom, the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom; (ii) any successor legislation to the GDPR that is applicable in the United Kingdom; and (iii) the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

3. Provision Of The Penny Black Services

3.1 Provision Of The Penny Black Services. Penny Black shall provide the Penny Black Services to the Customer on and subject to the terms of this Agreement.

3.2 Commencement of the Penny Black Services. Penny Black shall provide:

3.2.1 The Platform Services from the Effective Date and thereafter during the Term; and 

3.2.2 The Production Management Service and the Printer Services from the Services Commencement Date and thereafter during the Term.

4. Provision Of The Platform Services

4.1 Access. Subject to the terms and conditions of the Agreement, Penny Black grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and licence to access and use the Platform Services during the Term. The Customer may permit its Authorised Users to use the Platform Services provided that the Customer shall remain responsible and liable to Penny Black for each Authorised User’s compliance with and any breach of the Agreement.

4.2 Restrictions. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement, the Customer shall not, and shall not permit any Authorised User or any other party to: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform Services in any form or media or by any means; (b) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform Services available to any third party except the Authorised Users; (c) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform Services; (d) bypass, delete, or disable any copy protection or security mechanisms of the Platform Services; (e) access all or any part of the Platform Services in order to build a product or service which competes with the Platform Services or use or demonstrate the Platform Services in any other way that is in competition with Penny Black; (f) remove any notice of proprietary rights from the Platform Services; (g) attempt to gain unauthorised access to, or disrupt the integrity, performance or security of the Platform Services or the data contained therein; (h) use or copy the Platform Services, except as expressly allowed herein; or (i) attempt to obtain, or assist third parties in obtaining, access to the Platform Services. Should the Customer become aware of any unauthorized access to, or use of, the Platform Services the Customer shall promptly notify Penny Black. Penny Black shall have the right, but not the obligation, to review and monitor all use of the Platform Services to ensure compliance with the terms and conditions of this Agreement.

4.3 Downtime. The Customer acknowledges that access to and use of the Platform Services may be suspended for the duration of any scheduled or unscheduled maintenance or downtime or the unavailability of any portion or all of the Platform Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Penny Black.

5. Onboarding Activity And Remedies For Misuse Of The Platform Services

5.1 Onboarding. The Customer and Penny Black will use reasonable endeavours to facilitate the completion of all Onboarding Activity within ninety (90) days of the Effective Date.

5.2 Access, Co-Operation And Assistance. The Customer will provide Penny Black with the access, co-operation and assistance reasonably required by Penny Black to complete the Onboarding Activity and will be responsible for providing all necessary information and materials required to facilitate the Services Commencement Date within ninety (90) days of the Effective Date.  The Customer shall be responsible for obtaining and maintaining, at the Customer’s expense, all of the necessary telecommunications, computer hardware, software, services and internet connectivity required by the Customer or any Authorised User to access the Platform Services from the internet. Where Penny Black assists or advises the Customer as part of the Onboarding Activity, in no event shall such assistance or advice be construed as legal advice.

5.3 Onboarding Where The Customer Is Using Fulfilment Operations From A Third Party. In the event that the Customer’s Fulfilment Operations are delivered by an external third party, the Customer shall use best endeavours to procure that the external third party complies with the obligations set out at Sections 5.1 and 5.2 above to enable the Customer to commence use of the Platform Services within ninety (90) days of the Effective Date. 

5.4 Suspension, limitation and termination of access. Penny Black shall be entitled, without liability to the Customer, to immediately suspend, terminate or limit the Customer’s access to any or all of the Penny Black Services at any time in the event that Penny Black determines, in its reasonable discretion, that (a) any of the Penny Black Services are being used by the Customer or its Authorised Users in violation of any applicable laws or regulations or in breach of the terms of this Agreement; (b) any of the Penny Black Services are being used by the Customer or its Authorised Users in an unauthorised, inappropriate, or fraudulent manner; (c) the use of any of the Penny Black Services by the Customer adversely affects Penny Black’s equipment or service to others; (d) Penny Black is prohibited by an order of a court or other governmental agency from providing any of the Penny Black Services; (e) there is a security incident or other disaster that impacts the Platform Services or the security of the Platform Services, Customer’s account or Customer Data; or (f) any amount due under this Agreement is not received by Penny Black within fifteen (15) days after it was due. Without limiting the generality of this Section, Penny Black shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of the Customer’s right to use any of the Penny Black Services pursuant to this Section 5.4.

6. Printer Services

6.1 Printer Services. This section 6 applies where Penny Black provides printers to the Customer on a hire basis under the Printer Services. In the event that the Customer’s Fulfilment Operations are delivered by an external third party and any printers hired by the Customer are located at the premises of such external third party, the Customer shall use best endeavours to procure that the external third party complies with the obligations set out in Sections 6.3 to 6.6.

6.2 Delivery Of The Printers. Penny Black shall deliver the printers to the address(es) agreed with the Customer and shall use reasonable endeavours to effect such delivery by the delivery date agreed with the Customer. However, any such delivery date shall be an estimate only and time for performance by Penny Black shall not be of the essence of the Agreement. 

6.3 Title To The Printers. The printers shall at all times remain the property of Penny Black and the Customer shall have no right, title or interest in or to the printers (save the right to possession and use of the printers subject to the terms and conditions of the Agreement).

6.4 Risk In The Printers. The risk of loss, theft, damage or destruction of the printers shall pass to the Customer upon delivery of the printers. The printers shall remain at the sole risk of the Customer while the printers are in the possession, custody or control of the Customer until such time as the printers are returned to Penny Black. During this time the Customer shall, at its own expense, obtain and maintain suitable and adequate insurance of the printers. 

6.5 Operation And Use Of The Printers. the Customer shall ensure that the printers are (a) kept and operated in a suitable environment, (b) used only for the purposes of the Agreement, (c) operated only by trained competent staff in accordance with any operating instructions and (d) kept at all times safe and without risk to health when being used or maintained.

6.6 Customer Obligations Relating To The Printers. The Customer shall (a) permit Penny Black or its authorised representative to enter any premises at which the printers may be located in order to inspect and, if necessary, repair the printers, (b) keep Penny Black informed of all material matters relating to the printers, (c) make no alteration to the printers without the prior written consent of Penny Black, and (d) return the printers to Penny Black upon expiry or termination of the Agreement or, if necessary, allow Penny Black or its representatives access to the premises where the printers are located for the purpose of removing them.

6.7 Indemnity. The Customer acknowledges that Penny Black shall not be responsible for any loss of or damage to the printers arising out of or in connection with any negligence, misuse or mishandling of the printers, or otherwise caused by the Customer, Authorised Users or any third parties while the printers are in the Customer’s possession or control and the Customer shall indemnify Penny Black in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Penny Black arising out of, or in connection with any failure by the Customer to comply with the terms of the Agreement in respect of the printers. 

6.8 Warranty. Penny Black warrants that the printers shall substantially conform to their specification (as made available by Penny Black), be of satisfactory quality and fit for any purpose held out by Penny Black. Penny Black shall use reasonable endeavours to remedy, free of charge, any material defect in the printers which manifests itself within twelve months from the date of their delivery to the Customer, provided that (a) the Customer notifies Penny Black of any defect in writing within ten days of the defect occurring or of becoming aware of the defect, (b) Penny Black is permitted to make a full examination of the alleged defect, (c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Penny Black’s authorised personnel, (d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and (e) the defect is directly attributable to defective material, workmanship or design.

7. Production Management Service 

7.1 Provision of the Production Management Service. Where requested by the Customer Penny Black shall provide the Production Management Service, which shall include the sourcing, management and delivery of the Print Consumables required by the Customer for the printers used by the Customer in conjunction with the Platform Services.

7.2 Ordering of Paper. In order to ensure competitive pricing regarding the provisioning of paper, these will be ordered by Penny Black in 3-month cycles. 

7.3 Replenishment of Print Consumables. The Customer (through its Fulfilment Operation) shall remain responsible for ensuring the timely replenishment of ink and toner cartridges and maintenance boxes and the loading of paper provided by Penny Black. 

8. Data Protection

8.1 Data Protection Legislation. The parties will comply with all applicable requirements of the Data Protection Legislation. This Section 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

8.2 Data protection terms. The parties acknowledge that, for the purposes of the Data Protection Legislation, the Customer is the controller of Personal Data and Penny Black is the processor of Personal Data (“control”, “controller”, “process”, “processor”, “Sub-Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach” “Special Category Personal Data” and derived and inflected word forms have the meanings as defined in the Data Protection Legislation).

8.3 Consents and notices. Without prejudice to the generality of Section 8.1, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Personal Data to Penny Black and/or lawful collection and processing of Personal Data by Penny Black on behalf of the Customer for the duration and purposes of this Agreement.

8.4 Processing of Personal Data. Without prejudice to the generality of Section 8.1, Penny Black shall, in relation to any Personal Data processed in connection with the performance by Penny Black of its obligations under this Agreement (a) process that Personal Data only on the documented written instructions of the Customer, unless required to do otherwise by the Data Protection Legislation. If it is so required it will promptly inform the Customer of this before processing the Personal Data, unless prohibited from doing so by the Data Protection Legislation; (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it; (c) ensure that its personnel who have access to and/or process Personal Data are obliged to maintain the confidentiality of such Personal Data; (d) not transfer any Personal Data outside of the UK or the European Economic Area unless (i) the Customer or Penny Black has provided appropriate safeguards in relation to the transfer; (ii) the Data Subject has enforceable rights and effective legal remedies; and (iii) Penny Black complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (iv) Penny Black complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; (e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify the Customer without undue delay on becoming aware of a Personal Data Breach; (g) at the written direction of the Customer, delete or return Personal Data and any copies thereof to the Customer on termination of the Agreement unless required by Data Protection Legislation to store the Personal Data; and (h) maintain complete and accurate records and information to demonstrate its compliance with this Section and with Data Protection Legislation, and to assist with any audit reasonably requested by the Customer.

8.5 Sub-processors. Penny Black may only authorise a third party (sub-processor) to process Personal Data under this Agreement if: (a) the Customer is provided with an opportunity to object to the appointment of each sub-processor within 14 days after Penny Black supplies the Customer with full details in writing regarding such sub-processor; (b) Penny Black enters into a written contract with the sub-processor that contains terms substantially the same as those set out in this Agreement and in each case which Penny Black confirms or undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation; (c) Penny Black maintains control over all of the Personal Data it entrusts to the sub-processor; (d) the sub-processor’s contract terminates automatically on termination of this Agreement for any reason; and (e) as between the Customer and Penny Black, Penny Black shall remain fully liable for all acts or omissions of any sub-processor appointed by it pursuant to this Section 8.5.

9. Customer Obligations

9.1 General obligations. The Customer shall: (a) provide Penny Black with: (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by Penny Black, in order to provide the Penny Black Services, including but not limited to Customer Data, security access information and configuration services; (b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; (c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Penny Black may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) ensure that the Authorised Users use the Penny Black Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Penny Black, its contractors and agents to perform their obligations under this Agreement, including without limitation the Penny Black Services; (f) ensure that its network and systems comply with any relevant specifications provided by Penny Black from time to time; and (g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Penny Black’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

10. Penny Black’s Obligations

10.1 Undertaking. Penny Black undertakes that the Penny Black Services will be performed with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance which is caused by use of any of the Penny Black Services contrary to Penny Black’s instructions, or modification or alteration of the Penny Black Services by any party other than Penny Black or Penny Black’s duly authorised contractors or agents. If the Penny Black Services do not conform with the foregoing undertaking, Penny Black will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.  

10.2 Warranty. Penny Black warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

10.3 No warranty. Penny Black: (a) does not warrant that: (i) the Customer’s use of the Penny Black Services will be uninterrupted or error-free; or (ii) the Penny Black Services and/or the information obtained by the Customer through the Penny Black Services will meet the Customer’s requirements (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Penny Black Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10.4 Other agreements. This Agreement shall not prevent Penny Black from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

11. Intellectual Property

11.1 Ownership. The Customer acknowledges that all Intellectual Property rights in the Penny Black Services belong and shall belong to Penny Black and the Customer shall have no rights in or to the Penny Black Services other than the right to use them in accordance with the terms of this Agreement. All rights in and to the Penny Black Services not expressly granted to the Customer in this Agreement are reserved by Penny Black. Except as expressly set forth herein, no express or implied licence or right of any kind is granted to the Customer regarding the Penny Black Services, or any part thereof, including any right to obtain possession of any software, source code, data or other technical material related to the Penny Black Services.

11.2 Continuous development. The Customer acknowledges that Penny Black may continually develop, deliver and provide to Customer on-going innovation to the Penny Black Services in the form of new features, functionality, and efficiencies. Accordingly, Penny Black reserves the right to modify the Penny Black Services from time to time. Some modifications may be provided to the Customer at no additional charge. In the event Penny Black that adds additional functionality to a particular Service, Penny Black may condition the implementation of such modifications on the Customer’s payment of additional fees, provided that the Customer may continue to use the version of the Penny Black Services that Penny Black makes generally available (without such features) without paying additional fees.

11.3 Feedback. In the event that the Customer or its Authorised Users provide any comments or suggestions in connection with the Penny Black Services, whether written or oral (collectively, the “Feedback”), Penny Black, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to the Customer. The Customer hereby grants Penny Black, on behalf of itself and its Authorised Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and licence to use, reproduce, incorporate or otherwise exploit the Feedback into Penny Black products and services.

11.4 Aggregated data. Penny Black may collect and derive from Customer Data aggregated data that does not identify the Customer, any third-party entity or any natural persons, and use and disclose such aggregated data for Penny Black’s legitimate business purposes, which may include but is not limited to Services improvement, service and product development, research and marketing. Additionally, Penny Black may collect and review Customer Marketing Content to improve and enhance the Penny Black Services and for other development, diagnostic and corrective purposes.

12. Fees And Payment

12.1 Fees generally. In consideration for Penny Black providing the Penny Black Services, the Customer will pay to Penny Black the Fees. 

12.2 Invoicing, and payment terms. Penny Black will invoice to the Customer the Fees for the Penny Black Services in advance for each billing period, as specified in the Service Order, on or after the first day of such billing period. All Fees for the Penny Black Services are due and payable in GBP Sterling and are non-refundable. Where the Agreement commenced before 1 October 2023, each invoice issued by Penny Black to the Customer shall be payable within thirty (30) days after the date of such invoice. Where the Agreement commenced or was renewed after 1 October 2023, each invoice issued by Penny Black to the Customer shall be payable within fourteen (14) days after the date of such invoice.  

12.3 Remedies for late payment. If Penny Black has not received payment of any of its invoices within fifteen (15) days of the due date, and without prejudice to any other rights and remedies it might have: (a) Penny Black may, without liability to the Customer, suspend or limit the Customer’s access to all or part of the Penny Black Services and Penny Black shall be under no obligation to provide any or all of the Penny Black Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to three per cent (3%) over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. 

12.4 Taxes. The Fees are exclusive of value added tax, which shall be added to Penny Black’s invoice(s) at the appropriate rate

12.5 Expenses. If pre-approved by the Customer in a Service Order, the Customer shall reimburse Penny Black for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Service Order. All costs and expenses incurred by the Customer in connection with this Agreement are the sole responsibility of the Customer.

12.6 Fee increases. Penny Black will provide to the Customer at least fourteen (14) days advanced notice for any increase in fees. Any increases to the Fees shall apply from the beginning of the Customer’s next Renewal Period.

12.7 Exceeding The Print Credits. If the Customer exceeds the Print Credits allocated to it in a Service Order and does not agree a new Print Credits allocation with Penny Black (whether in a new Service Order or otherwise in writing), the Customer shall pay for any additional prints used by it at the rates applied to the allocated Print Credits (as published by Penny Black from time to time), following receipt of an appropriate invoice from Penny Black.

12.8 Underuse Of The Print Credits. If the Customer does not use all of the Print Credits allocated to it in a Service Order within the time period covered by such allocation, the Customer may roll over up to 10% of the allocated Print Credits into its next Print Credits allocation or renewal, provided that the Customer uses the Print Credits rolled over in this way within 2 months of the date of the next Print Credits allocation or renewal. If the Customer does not enter into a new Print Credits allocation or renewal, the Customer must use all of the allocated Print Credits within the time period covered by such allocation.

12.9 Replacement Of Printers Or Customer Requirement For Additional Printers. Where the Customer requests that Penny Black procures (i) new printers to replace printers currently being used by the Customer under this Agreement or (ii) additional printers to be used by the Customer under this Agreement, the Customer and Penny Black shall discuss and agree any additional services that the Customer might need from Penny Black to procure and configure such printers and the Fees payable to Penny Black by the Customer for the procurement of the printers and such additional services.

13. Customer Data

13.1 Ownership of Customer Data. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data and for the adequate security, protection and backup of Customer Data.

13.2 Licence. The Customer grants to Penny Black a non-exclusive, sublicensable, transferable, worldwide, royalty-free licence to process and use the Customer Data as necessary for purposes of providing the Penny Black Services and as otherwise permitted in this Agreement. The Customer warrants that it is the owner or legal custodian of, or otherwise has the right and has or will obtain the necessary permissions, valid consents and releases to lawfully transmit, store and use all Customer Data in connection with the Penny Black Services and to grant the rights granted to Penny Black under this Agreement

14. Representations And Warranties

14.1 Mutual representations and warranties. Penny Black and the Customer each represent and warrant that: (i) it has full corporate right, power, and authority to enter into this Agreement and (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound. 

14.2 Customer representations and warranties. The Customer represents and warrants that: (a) the Customer has a legally sufficient privacy policy that is made available to end customers and prospects prior to their provision of any Customer Personal Data to the Customer or Penny Black; (b) the Customer Data and use of the Customer Data will not (i) infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party, (ii) constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, and (iii) be used in any activity in violation of the law or to promote such activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; and (c) it will not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.

15. Limitation Of Liability

15.1 No liability. Except as expressly and specifically provided in this Agreement: (a) the Customer assumes sole responsibility for results obtained from the use of the Penny Black Services by the Customer, and for conclusions drawn from such use. Penny Black shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Penny Black by the Customer in connection with the Penny Black Services, or any actions taken by Penny Black at the Customer’s direction; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and (c) the Penny Black Services are provided to the Customer on an “as is” basis.

15.2 No limit of liability. Nothing in this Agreement excludes the liability of either party: (a) for death or personal injury caused by that party’s negligence; or (b) for fraud or fraudulent misrepresentation.

15.3 Limitation of liability. Subject to Sections 15.1 and 15.2: (a) Penny Black shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and (b) Penny Black’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.

16. Confidentiality 

16.1 Confidential Information. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party to the other party whether before or after the date of this Agreement, including but not limited to: (a) information relating to the disclosing party’s business, technology, products or services; (b) any other information that would be regarded as confidential by a reasonable business person; and (c) any information developed by the parties in the course of carrying out this Agreement, and the parties agree that Customer Data shall constitute Customer Confidential Information.

16.2 Protection of Confidential Information. Each party shall keep the other party’s Confidential Information secret and confidential and shall not use or disclose to any third party such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement. The party receiving the Confidential Information will limit access to the Confidential Information to its employees and contractors who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the receiving party will protect the other party’s Confidential Information from unauthorised use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. 

16.3 Permitted disclosure. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

16.4 Exceptions. The confidentiality obligations set out in this Section 16 will not apply to any information that: (a) is or becomes generally available to the public through no fault of the receiving party; (b) is lawfully provided to the receiving party by a third party free of any confidentiality duties or obligations; (c) the receiving party can prove, by clear and convincing evidence, was already known to the receiving party without restriction at the time of disclosure; or (d) the receiving party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the receiving party who had no access to the Confidential Information. 

17. Term And Termination

17.1 Term. This Agreement shall commence on the Effective Date and, unless otherwise terminated as provided in this Section 17, shall continue through the Initial Services Term and, thereafter, shall be automatically renewed for successive Renewal Periods, unless: (a) either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Services Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Services Term or Renewal Period; or (b) otherwise terminated in accordance with the provisions of this Agreement.

17.2 Termination with immediate effect. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party: (a) commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; (b) takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Section 17.2(b); or (c) suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

17.3 Recovery of reasonable costs. If Penny Black terminates this Agreement in accordance with Section 17.2 or the Customer terminates this Agreement other than in accordance with Sections 17.1 or 17.2, Penny Black shall be entitled to recover from the Customer any reasonable and unrecovered costs it has incurred in implementing the Penny Black Services. 

17.4 Effects of termination. On termination of this Agreement for any reason: (a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Penny Black Services; (b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party ; (c) Penny Black may destroy or otherwise dispose of any of the Customer Data in its possession; and (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

18. Force Majeure

18.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate this Agreement by giving thirty (30) days’ written notice to the affected party.

19. General Provisions

19.1 Marketing: The Customer agrees that Penny Black may refer to the Customer by name, logo and trade mark in any publicity releases, marketing or promotional materials and on Penny Black’s website without needing the prior written approval of the Customer. 

19.2 Modification of the Agreement: The Customer acknowledges that Penny Black may amend the Agreement from time to time due to changes to the Penny Black Services, to account for developments under the law or for any other reason. When material modifications are made, Penny Black may (and where required by law, will) send an email to the Customer at the last email address provided to it by the Customer pursuant to the Agreement to provide an updated copy of the Agreement. Penny Black may require the Customer to provide consent to the updated Agreement in a specified manner before further use of the Penny Black Services is permitted. If the Customer does not agree to any change(s) after receiving a notice of such change(s), it shall stop using the Penny Black Services. Otherwise, the Customer’s continued use of the Penny Black Services shall constitute the customer’s acceptance of such change(s). 

19.3 Variation: In any circumstances not covered by Section 19.2 above, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19.4 Waiver: A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

19.5 Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

19.6 Entire agreement: 

19.6.1 The 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.

19.6.2 Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.

19.7 Assignment: The Customer shall not, without the prior written consent of Penny Black, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Penny Black may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19.8 No partnership or agency: Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19.9 Third-party rights: The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

19.10 Notices: Any notice required to be given to a party under or in connection with the Agreement shall be delivered by email. Where Penny Black requires the Customer to provide an email address, the Customer is responsible for providing Penny Black with its most current email address. In the event that the last email address provided to Penny Black is not valid, or for any reason is not capable of delivering to the Customer any notices required or permitted by the Agreement, Penny Black’s dispatch of the email containing such notice will nonetheless constitute effective notice. The Customer may give notice to Penny Black at the following email address: admin@pennyblack.io. Any notice shall be deemed to have been received at the time of transmission. 

20. Governing law: The 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 interpreted in accordance with the law of England and Wales.
21. 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).

September 2022