TERMS AND CONDITIONS
Whistl UK Limited ("Whistl") shall provide access to the Insight portal ("Portal") for the customer which has been registered for access in accordance with clause 1 ("Customer"), on the terms and conditions set out below. Whistl may change these terms and conditions from time to time and [will post the revised version on this site] for acceptance by the Customer and the Users.
1. Registration of the Customer
1.1 The Customer shall be registered to use the Portal once the following matters are completed:
(a) the Customer has confirmed the number of, and the details of, Users (as defined below);
(b) the Customer has confirmed the level of access of each User.
2. Usernames, passwords and security
2.1 Following registration, Whistl shall issue usernames and passwords to the Customer's users of the Portal (each a "User") to enable each of them to access the Portal.
2.2 The Customer shall procure that each User treats any username, password or any other information which forms part of Whistl's security procedures from time to time ("Security Information"), as confidential, and that they shall not disclose it to any third party. The Customer shall be liable for any loss or damage arising out of the disclosure of any Security Information by any User.
2.3 Whistl has the right to disable any username, password or other information Whistl provided to the Customer or a User at any time if, in Whistl's opinion, the Customer or any User fails to comply with any of the provisions of these terms and conditions.
2.4 If any User's employment with the Customer ends, the Customer shall inform Whistl immediately and provide Whistl with details of the individual to enable Whistl to deactivate that User's access to the Portal.
2.5 From time to time Whistl may:
(a) (for operational reasons), change usernames, passwords or other Security Information necessary to access the Portal or change the technical specification of the Portal.
(b) issue instructions to the Customer and/or individual Users, which Whistl believes are necessary. The Customer shall procure that the User complies with any such instructions that Whistl issues to the Customer or the User.
3. No warranty
3.1 Access to the Portal is provided on an ‘as is' basis and Whistl does not guarantee that access to the Portal will be error or virus free, nor that access to the Portal will be available at all times nor that Portal content will be updated by any particular date or time.
3.2 Whistl does not warrant the accuracy or completeness of the content of the Portal and the Customer utilises the content at its own risk.
3.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
4. Use of the Portal
4.1 Users may access the Portal in accordance with these terms and conditions for the Customer's business use. It is the Customer's responsibility to ensure that it is able to connect to, and access, the Portal and that it maintains all necessary hardware and software in order to do so. The Customer shall procure that Users shall comply with these terms and conditions.
4.2 Access to the Portal is provided to the Customer for Users' use only. Neither the Customer nor any User may re-sell or licence the access or the content of the Portal to any third party. A User's level of access will be determined by the Customer. If the Customer wishes to change the level of access, it should contact Whistl.
4.3 The Customer shall not do, and shall not permit any User to do, anything that is likely to adversely interfere with the Portal, Whistl systems or Whistl's business.
5. Duration, Termination and Suspension
5.1 Access to the Portal is granted by Whistl to the Customer for the period in which the Customer uses the P&P Insight service.
5.2 The termination of these terms and conditions shall not terminate or otherwise affect any other agreement which is in place between Whistl and the Customer. However access to the Portal shall automatically terminate if the Customer ceases to use the P&P Insight service.
5.3 Whistl may suspend the Customer's access to the Portal without liability:
(a) because of an emergency, or for maintenance or improvements to the Portal or its systems, or for the purpose of ensuring network or information security. In such cases, Whistl shall aim to restore access as soon as reasonably practical and Whistl shall aim to give the Customer as much notice as possible of any suspension of access;
(b) if Whistl reasonably considers that Users are, or will, use their access in a way that is likely to adversely interfere with Whistl's ability to provide access to the Portal to the Customer or any third party or that their use is in breach of these terms and conditions;
(c) if any User causes any technical or other problems to Whistl;
(d) if in Whistl's reasonable opinion any User is involved in fraudulent or unauthorised use of the Portal or its content;
(e) if the Customer or any User resells or licences access to the Portal or its content; or
(f) if the Customer or any User uses the Portal or its content in contravention of these terms and conditions.
6. Intellectual property rights and data protection
6.1 All Intellectual Property Rights and all other rights in the Portal [and its content] are owned or licensed by Whistl. Nothing in these terms and conditions shall operate to transfer any such rights to the Customer.
6.2 [Whistl grants the Customer a revocable, non-transferrable licence to use the content of the Portal which relates to the Customer's mailings to the extent necessary to enable the Customer to use the content of the Portal solely for its own business purposes.]
6.3 Neither party shall use any of the intellectual property rights which are owned or licensed by the other party or any member of its group with out the prior written consent of that party.
6.4 The Portal will contain the names and addresses of the intended recipients of the items sent by the Customer using the P&P Insight service ("Personal Data"). For the purposes of the Data Protection Act 1998, the Customer is the data controller and Whistl is the data processor of the Personal Data.
6.5 Every person who logs in as a User will have access to the Personal Data. In addition Whistl's authorised users will have access to the Personal Data. For details of the current security measures set up for the Portal please contact contact your Whistl Account Manager.
6.6 Whistl shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data, and it will take (and enforce) appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and (ii) the nature of the data to be protected.
6.7 Whistl will process the Personal Data for [12 months or such other period as is stated in the Customer Guide] after which it will be deleted.
7. Limitation of liability
7.1 Clause 3 and the provisions of this clause set out the entire financial liability of Whistl (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of any breach of the agreement however arising, any use made by the Customer of the Portal or its content, or any part of them and any representation, statement or tortious act or omission (including negligence).
7.2 Nothing in these terms and conditions excludes the liability of Whistl for death or personal injury caused by Whistl's negligence, or for fraud or fraudulent misrepresentation or for any matter for which it is unlawful to exclude or limit liability.
7.3 Subject to clauses 7.1 and 7.2:
(a) Whistl shall not be liable for any loss of profits, loss of business, wasted costs, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
(b) Whistl's total liability under these terms and conditions is limited to an aggregated amount of £1,000.
8. Notices
8.1 All notices and other communications required or permitted to be given by the Customer or Whistl under these terms and conditions shall be in writing. All notices and other communications shall be deemed properly served if they have been delivered personally or sent by fax or pre-paid registered post or e-mail to the registered office address of the other party for items sent by post or delivered by hand or to the latest fax number of email address provided by one party to the other for faxes or emails.
9. Assignment
9.1 The Customer shall not, without the prior written consent of Whistl (such consent not to be unreasonably conditioned, withheld or delayed), assign or transfer, any of its rights and obligations under these terms and conditions.
10. Force majeure
10.1 Whistl shall not be in breach of these terms and conditions, nor liable for any failure or delay in performance of any obligations arising from or attributable acts, events, omissions or accidents beyond its reasonable control.
11. General
11.1 Any failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
11.2 No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
11.3 If any provision of these terms and conditions (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of these terms and condition and the validity and enforceability of the other provisions of these terms and conditions shall not be affected.
11.4 Nothing in these terms and conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
11.5 These terms and conditions constitute the whole agreement between the parties relating to the access, usage and content of the Portal and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
11.6 Each party acknowledges that, in entering into these terms and conditions, it does not rely on any statement, representation, assurance or warranty ("Representation") of any person other than as expressly set out in these terms and conditions. Nothing in this clause shall limit or exclude any liability for fraud.
11.7 These terms and conditions and any dispute or claim arising out of or in connection with them is governed by English law and the parties irrevocably submit to the jurisdiction of the English courts.