Terms & Conditions
The following definitions and rules of interpretation apply in this Agreement.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as [amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 Provider agrees with effect from the Commencement Date in consideration of the payment of the Service Fee by the Customer to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement.
2.2 Subject to any limits set out in Schedule 2 the Provider hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the Services during the Term solely for the Customer’s internal business operations.
2.3 The Customer acknowledges that Provider may at any time, and without notice, incorporate licence management software into the Hosted Solution for the purposes of ensuring that licence rights are not exceeded.
2.4 Customer acknowledges that the Hosted Services are subject to the Support and Service Terms.
3. Commencement and duration
3.1 This Agreement shall commence on the Commencement Date and shall continue for the Initial Period and thereafter for any Extension Periods invoked pursuant to Clause 3.2 below unless and until terminated earlier in accordance with clause 16 (Termination) , where applicable and as mutually agreed in writing as an addendum to this agreement.
3.2 The Customer will have the option to extend the Term with effect from the end of the Initial Period by a maximum of 7 Extension Periods in accordance with the procedure outlined in Clause 3.3 below, where applicable and as mutually agreed in writing as an addendum to this agreement.
3.3 At least 14 days prior to the end of the Initial Term or the Extension Period then in course, the Customer may give notice to Provider in accordance with Clause 16 that it wishes to extend the Term by an Extension Period, where applicable and as mutually agreed in writing as an addendum to this agreement.
4.1 The Customer undertakes to pay the Service Fee for the Services on an annual basis in advance as well as any additional fees to Provider for any other services provided by Provider, such charges to be based on Provider’s then current charging rates.
4.2 Provider shall send to the Customer an invoice in respect of the Service Fee at least 7 days in advance of the next payment period or as otherwise agreed in writing.
4.3 The Service Fee and Commission is set out in Schedule 2.
4.4 The Service Fee includes the number of Users and/or Sites set out in Schedule 1; any increase in the number of Users or Sites will result in a pro-rated increase. If such increase occurs during the course of a charging period, the remainder of that period as well as future periods will be subject to the pro-rated increase.
4.5 The Hardware Fee will be payable after the supply of the Hardware to the Customer in accordance with Clause 4.7 below.
4.6 Where Provider has repatriated an item or disposed of an Item, Customer shall be paid the Commission set out in Schedule 2.
4.7 Unless otherwise stated herein, all invoices are payable within 15 days after the date thereof unless otherwise agreed in writing.
4.8 Provider shall be entitled to charge the Customer interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) on a monthly basis at the rate of 3 per cent per annum above the base rate from time to time of Barclays Bank plc from the due date therefor until payment.
4.9 All sums payable to the Provider under this Agreement:
4.9.1 are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
4.9.2 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Provider’s responsibilities
5.1 The Provider shall use reasonable endeavours to supply the Services and Deliverables to the Customer, in accordance with this Agreement in all material respects.
5.2 The Provider will use best commercial efforts to identify the legal owner of an Item but gives no warranty or undertaking to be able to do so and accepts no responsibility for failure to match an Item with a legal owner.
6.1.1 co-operate with the Provider in all matters relating to the Services;
6.1.2 provide, for the Provider access to the Customer’s premises, data and other facilities as reasonably required by the Provider;
6.1.3 provide to the Provider in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Provider in connection with the Services;
6.1.4 provide access to any Carrier or other third party to whom Provider has sub-contracted any of the Services hereunder to the Customer’s Premises as necessary in order to perform the Services in accordance with Clause 6.7;
6.1.5 inform the Provider of all health and safety and security requirements that apply at any of the Customer’s premises, such requirements are as set out in the Customer’s Mandatory Policies;
6.1.6 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Provider to provide the Services, in all cases before the date on which the Services are to start
6.1.7 provide any data or other information required by the police or other authority at its sole cost.
6.2 The Customer is required at all times during the Term to maintain the Customer Equipment in good order and working condition and to provide prior written notification to Provider of any changes it makes in respect thereof. To the extent any specifications are set out in Schedule 1 in relation to Customer Equipment, at no time during the Term shall the Customer permit the Customer Equipment to fall below such specifications.
6.3 The Customer shall ensure all Items have been thoroughly searched and any Prohibited Items are removed and processed by the Customer at their cost and following all applicable regulations and/or laws or guidelines. A non-exhaustive list of examples of Prohibited Items are set out in Schedule 3. Customer acknowledges that each Carrier may have a specific list of Prohibited Items which the Customer hereby agrees will not be processed as part of the Service.
6.4 The Customer shall abide by the Terms of Carriage of the selected Carrier or Carriers, an up to date copy of which will be provided to the Customer on request.
6.5 The Customer shall ensure that any restricted or dangerous items are fully documented and itemised in any software tools or system provided and specified by Provider and in any shipping documentation required by Carrier, as updated from time to time, and any and all Carrier Terms & Conditions regarding such Items are followed.
6.6 Provider may refuse to accept an Item even if not listed as a Prohibited Item if in Provider’s sole discretion it would be illegal, unethical or dangerous to process that Item. Additional specific Fees may apply where the Provider agrees to process an Item that it in its sole discretion requires additional safety features to ensure safe transport.
6.7 In relation to transport of Items by a Carrier, the Customer shall ensure that
6.7.1 access and parking is provided and available for both on-demand and scheduled pickups;
6.7.2 the Item is either:
(a) packed in accordance with requirements of both Provider and Carrier, or
(b) ready for packaging where packaging is to be provided with Carrier.
6.7.3 Customer has sufficient staff and facilities to ensure the Carrier pick up process is completed without delay.
6.8 Provider will be entitled to charge a fee to the Customer for failure to pack an Item in accordance with clause 6.7.2 (a).
6.9 Responsibility for Items shall not pass to the Provider until the Item is picked up by Provider or a Carrier.
6.10 All Items except Prohibited Items must be registered with the Zero Burden Services. Notwithstanding the foregoing, if the Customer identifies an owner it may repatriate an Item to that owner itself or by using the Services but may not engage a third party to provide repatriation services.
6.11 The Customer undertakes at all times during the Term to comply with all current System Management Regulations. Provider shall give not less than 14 days’ written notice to the Customer of additions and changes to System Management Regulations, the Customer will comply with such reasonable additions and changes.
6.12 In the event that the Customer is in breach of any of its obligations under this Agreement, then:-
6.12.1 Provider cannot be held responsible should any relevant Services fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach and no service credits will accrue on account thereof;
6.12.2 Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at Provider’s then current standard charging rates but such work will only be carried out where the parties have agreed in a statement of work the parameters and charges for such work. However, if such agreement is not forthcoming, Provider cannot be held responsible for any resultant problems suffered by the Customer; and
6.12.3 Provider may without any liability terminate or suspend the Services without prejudice to any other pre-existing rights and obligations of either party.
6.13 If the Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Provider shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
6.14 Customer shall indemnify the Provider in full against all liabilities, costs, expenses, damages and losses (including but not limited to 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 the Provider arising out of or in connection with any claim brought against the Provider, its agents, subcontractors or consultants arising out of, or in connection with Customer’s failure to comply with Clauses 6.3 to 6.6.
7. Service Levels and Hardware Support
7.1 Provider undertakes with the Customer that it will use its reasonable endeavours to ensure that the Services and each component thereof will, where relevant and subject to Clauses 15.5 and 21, be provided to the levels of performance specified in the Service Levels save where otherwise expressly provided for by this Agreement.
7.2 The provisions in the Support and Services Terms in relation to the raising of service requests and response times will apply to the Hardware but the rest of the provisions in the Support and Services Terms will be inapplicable in respect of problems with or caused by the Hardware.
7.3 If there are problems with the Hardware, Provider will liaise between the Customer and the manufacturer but not be responsible for fixing problems or any replacement. Any costs associated with fixing or replacing Hardware will be borne by the Customer.
8. Security, Outages ad Service Interruptions
8.1 Each party recognises that it is impossible to maintain flawless security but (where relevant) Provider shall take all reasonable steps to prevent security breaches in its servers’ interaction with the Customer and security breaches in any interaction with resources or users outside of any firewall that may be built into Provider’s servers.
8.2 The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Hosted Solution and is solely responsible for any damage caused by any such unauthorised access.
8.3 Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the applicable Services. Provider will use reasonable endeavours to minimise the Outages or Service Interruptions that may be caused by a change.
8.4 If Outages or Service Interruptions are required under Clause 8.1, Provider will endeavour to schedule them so as to minimise impact on the Services and will notify the Customer of the anticipated commencement time and its estimated duration.
8.5 Customer requested interruptions (including, but not limited to, request for an application server to be re-booted) will not be considered a breach in service, and will not be a factor when calculating breaches of the Service Levels for any purpose or give rise to any liability on the part of Provider. The Customer is required to request such interruptions via the customer support number listed in Schedule 2. This type of request will require a minimum notice period of 14 Working Days.
8.6 If the Customer becomes aware of an event that has caused or may cause an unscheduled Outage without having been previously notified thereof by Provider, the Customer shall promptly provide initial notice to Provider via customer support methods listed in Schedule 2.
9. Warranties and Indemnities
9.1 Provider warrants to and undertakes with the Customer that:
9.1.1 Provider will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
9.1.2 Provider has full right power and authority to provide the Services to the Customer in accordance with the terms of this Agreement;
9.1.3 Provider has all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation; and
9.1.4 Provider will at all times comply with the Data Protection Legislation, including without limitation the obligations set out in Schedule 4, and with the Conduct Legislation.
9.2 Except for the express warranties set forth in this Clause 9, the Services are provided on an “as is” basis, and the Customer’s use of the Services is at its own risk. Provider does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.
9.3 Provider does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
9.4 Provider warrants that Hardware will be free from material defects in workmanship and materials for 12 months from the date of original purchase (“Warranty Period”).
9.5 This warranty does not apply to any Hardware: (a) Which has been misused (including static discharge, improper installation, repair, accident, or use not in accordance with instructions provided by Provider), stored in a faulty manner, neglected, altered or modified (including “cosmetic” modifications), used with any accessories not supplied by Provider, or which Provider is not capable of testing under its normal test conditions. (b) Which has not been purchased from Provider.
9.6 Provider’s sole obligation to Customer for any Hardware failing to meet this warranty, and Customer’s sole remedy, is limited to (at Provider’s election) (1) repair of the Hardware by Provider, or (2) refund of Customer’s purchase price for such Hardware (without interest), or (3) replacement of such Hardware; a condition for availability of such remedy is that such Hardware must be returned to Provider, along with acceptable evidence of purchase, within the Warranty Period, transportation charges prepaid, with a valid Provider issued RMA number and incoming freight, duty, taxes and insurance prepaid.
9.7 Provider warrants a replacement or repaired element of Hardware only for the unexpired term of the Warranty Period for the replaced/ repaired Hardware. Provider’s warranty shall not be enlarged by, nor shall any obligation or liability of Provider arise due to, Provider providing technical advice, facilities, or service in connection with any Hardware. Repairs outside of warranty are available by arrangement and chargeable.
9.8 This Hardware warranty and remedies stated in relation to Hardware in this clause are exclusive. All other express and/or implied warranties, terms and conditions (whether statutory or otherwise) are excluded and disclaimed to the fullest extent permitted by law. In particular, Provider makes no warranty respecting the merchantability of the Hardware or its suitability or fitness for any particular purpose, non-infringement of third party rights or latent defects. Provider expressly disclaims all warranties that the Hardware is in compliance with any laws or regulations. The Customer is not permitted to give any warranty or assume any obligation or liability on Provider’s behalf in connection with the sale, installation or use of the Hardware.
9.9 Subject to the Customer’s compliance with Clause 9.10, Provider hereby agrees to indemnify the Customer in respect of any third party claims that the Provider Software infringes its Intellectual Property Rights.
9.10 In the event of a third party claim falling under Clause 9.6, the Customer undertakes and agrees:
9.10.1 not to make any admissions or settlement in respect of such claim without Provider’s prior written permission;
9.10.2 that the defence of such claim will be conducted by Provider alone;
9.10.3 at Provider’s expense, to provide such assistance as reasonably required by Provider in defence of such claim.
9.11 The Customer represents, warrants and undertakes that:
9.11.1 it has and shall during the Term have the legal right and authority to use and have used the Customer Equipment as contemplated under this Agreement;
9.11.2 it will use the Services only for lawful purposes and in accordance with this Agreement;
9.11.3 it will comply at all times with the Data Protection Legislation, including without limitation the obligations set out in Schedule 4, and with the Conduct Legislation;
9.11.4 any Customer Materials, software, data, equipment or other materials provided by the Customer to Provider or employed by the Customer, its agents, subcontractors or consultants, in its use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or personal data interests of any third party, will only be provided to Provider in accordance with Data Protection Legislation and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity; and
9.11.5 it shall indemnify the Provider in full against all liabilities, costs, expenses, damages and losses (including but not limited to 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 the Provider arising out of or in connection with any claim brought against the Provider, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials software, data, equipment or other materials provided by the Customer to Provider.
9.12 In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend immediately any related Services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give the Customer an opportunity to cure such breach. In such case once the Customer has cured the breach, Provider will promptly restore the Service(s).
9.13 If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this clause 9, the Indemnified Party shall:
9.13.1 notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.9 or 9.11.5 (as applicable) (IPRs Claim);
9.13.2 allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
9.13.3 provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Provider of the Indemnified Party’s costs so incurred; and
9.13.4 not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Change control
10.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
10.1.2 the Fees and Commission; and
10.1.3 any of the terms of this Agreement.
10.2 If the Provider wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
10.3 If the Customer wishes to make a change to the Services:
10.3.1 it shall notify the Provider and provide as much detail as the Provider reasonably requires of the proposed changes, including the timing of the proposed changes; and
10.3.2 the Provider shall, as soon as reasonably practicable after receiving the information at clause 10.3.1, provide a draft Change Order to the Customer.
10.4.1 agree to a Change Order, they shall sign it and that Change Order shall amend this Agreement; or
10.4.2 are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 31 (Dispute Resolution).
10.5 The Provider may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 10.3 on a time and materials basis at the Provider’s daily rates specified in Schedule 2.
11. Intellectual Property Rights
11.1 Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Hosted Solution, documentation and other materials used by Provider in connection with or related to the provision of the Services hereunder.
11.2 Provider warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Agreement.
11.3 The Customer hereby grant to Provider:
11.3.1 A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by the Customer or resulting from the Services for the purposes of using the data for the provision of the Services; and
11.3.2 A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display the Customer’s trade marks for the purposes of using the data for the provision of the Services.
11.4 In relation to the Customer Materials, the Customer:
11.4.1 and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
11.4.2 grants the Provider a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
11.5 Subject to any contrary provision in this Agreement, Provider undertakes only to use the Customer’s trade marks for the purpose of providing the Services.
12. Compliance with laws and policies
12.1 In performing its obligations under this Agreement, the Provider shall comply with:
12.1.1 the Applicable Laws; and
12.1.2 the Mandatory Policies, provided that the Customer shall give the Provider not less than 3 months’ notice of any change to such policies.
12.2 Changes to the Services required as a result of changes to the Applicable Laws or the Mandatory Policies shall be agreed via the change control procedure set out in clause 8 (Change control).
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation and the Data Protection Provisions attached at Schedule 4 and incorporated herein by reference. The Data Protection Provisions are in addition to, and do not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
14. Confidentiality and Ownership of Customer Data
14.1 Subject to Clause 14.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (Confidential Information).
14.2 Provider hereby undertakes not without the Customer’s written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same; and
14.3 The provisions of Clause Error! Reference source not found. above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
14.3.1 trivial or obvious;
14.3.2 already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
14.3.3 in the public domain other than as a result of a breach of this clause; or
14.3.4 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
14.4 Each of Provider and the Customer hereby undertakes to the other to make all relevant employees agents and sub‑contractors aware of the confidentiality of the Information and the provisions of this Clause 14.
14.5 For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of the Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto.
14.6 Provider reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of the Customer for demonstrating its expertise to potential clients, subject always to the provisions of this Clause 14.
14.7 The provisions of Clause 14 shall remain in full force and effect notwithstanding any termination of this Agreement.
15.1 Except as expressly stated in Clause 15.2:
15.1.1 Provider’s liability, whether under this Agreement or any collateral contract, for loss of or damage to the Customer’s tangible property caused by the negligence of Provider, its officers, employees, contractors or agents, shall not exceed £9,000,000.
15.1.2 Provider shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(a) special damage, even though Provider was aware of the circumstances in which such special damage could arise;
(b) loss of profits;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of or goodwill;
(f) loss of or damage to data;
provided that this Clause 15.1.2 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 15.1.1 or any other claims for direct financial loss that are not excluded by any of categories set out in Clauses 15.1.2.(a) – 15.1.2.(f) inclusive of this Clause 15.1.2.
15.1.3 to the extent that not excluded by Clauses 15.1.1, 15.1.2, 15.3, 15.4, 15.5 or otherwise, the total liability of Provider, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to £1,000,000.
15.1.4 the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Provider shall have no liability otherwise than pursuant to the express terms of this Agreement;
15.2 The exclusions in Clause 15.1 shall apply to the fullest extent permissible at law but Provider does not exclude liability for:
15.2.1 death or personal injury caused by the negligence of Provider, its officers, employees, contractors or agents; or
15.2.2 fraud or fraudulent misrepresentation; or
15.2.3 breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
15.2.4 any other liability which cannot be excluded by law.
15.3 Provider shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond Provider’s reasonable control.
15.4 The Customer accepts that Provider is in no way liable for any virus or other contaminants which enter the Customer’s email system or computer network via email.
15.5 Provider shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
15.5.1 interruptions to the flow of data to or from the internet;
15.5.2 changes, updates or repairs to the network or the Hosted Solution subject to Provider striving to minimise the interruptions/outages that may be caused by such change;
15.5.3 the effects of the failure or interruption of services provided by third parties;
15.5.4 factors set out in Clause 18 (Force Majeure);
15.5.5 any actions or omissions of the Customer (including, without limitation, breach of the Customer’s obligations set out in this Agreement or the Quotation) or any third parties;
15.5.6 Problems with the Customer’s equipment and/or third party equipment;
15.5.7 interruptions to the Services requested by the Customer.
15.6 The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fee has been calculated on the basis of the limitations and exclusions in this Clause 10 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 15.
16.1 For the purposes of this Clause 16, the following events shall be deemed “acts of default”:
16.1.1 if the Customer fails to pay any moneys due pursuant hereto or to any third party finance agreement within 7 days of the due date therefor;
16.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under Clause 16.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
16.1.3 if a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
16.2 If the Customer commits an act of default then Provider may forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits.
16.3 If either party commits an act of default, the other party may terminate this Agreement by notice in writing forthwith.
16.4 Provider shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the Customer if the Customer:
16.4.1 undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the Customer; or
16.4.2 sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
16.4.3 disputes the ownership or validity of Provider’s Intellectual Property Rights.
16.5 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
16.6 Either party may terminate this Agreement, after the Initial Period, by providing a written notice of termination with a minimum of 12 months prior notice to the termination date, during which time the services and terms of this Agreement shall apply.
17. Consequences of Termination
17.1 In the event of termination of this Agreement:
17.1.1 The Customer shall immediately pay to the Provider all of the Provider’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Provider may submit an invoice, which shall be payable immediately on receipt;
17.1.2 the Customer’s right to receive the Services shall cease automatically;
17.1.3 Provider’s entitlement to use the Customer’s trademarks ceases immediately except as necessary for the provision of any post-termination services;
17.1.4 Provider may in its sole discretion agree to provide any assistance reasonably requested by the Customer in connection with the hand-over to a third party of any services provided by Provider hereunder, and the Customer shall pay Provider in accordance with Provider’s then current standard rates for any such assistance;
17.1.5 each party shall immediately return to the other all property and materials containing Confidential Information (as defined in Clause 14) belonging to the other.
18. the following clauses shall continue in force: clause 9 (Warranties and Indemnities), clause 11 (Intellectual property rights), clause 13 (Data protection), clause 14 (Confidentiality and Ownership of Customer Data), clause 15 (Limitation of liability), clause 17 (Consequences of termination), clause 2 (Waiver), clause 24 (Severance), clause 26 (Conflict), clause 31 (Dispute Resolution), clause 33 (Governing law) and clause 34 (Jurisdiction).
18.1 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
19.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
19.1.1 acts of God, flood, drought, earthquake or other natural disaster;
19.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
19.1.4 nuclear, chemical or biological contamination or sonic boom;
19.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
19.1.6 collapse of buildings, fire, explosion or accident; and
19.1.7 interruption or failure of utility service.
19.2 Provided it has complied with clause 19.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
19.4.1 as soon as reasonably practicable after the start of the Force Majeure Event [but no later than 30 days from its start], notify the other party [in writing] of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
19.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than  weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving  weeks’ written notice to the Affected Party.
20. Assignment and Subcontracting
20.1 Neither party will be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior consent of the other party, such consent not be unreasonably withheld or delayed. Notwithstanding the forgoing the Provider may assign this Agreement to a company within the same group of companies without consent of the Customer.
20.2 The Provider may at any time sub-contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
Subject to clause 8 (Change control), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
22.2 A failure or delay by a party to exercise 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 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
22.3 A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.1 If any provision or part-provision of this 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 this Agreement.
24.2 If any provision or part-provision of this Agreement is deemed deleted under clause 24.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
25.1 This 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.
25.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
25.3 No change, alteration or modification to the Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.
27.1 Nothing in this Agreement 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.
27.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
28.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
29.1 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post, email or by facsimile transmission (such email or facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served on the date of acknowledgement of receipt by countersignature or email from the addressee.
29.2 Notices must be addressed and sent to the contacts nominated by the party either in this Agreement or the Quotation or subsequently thereto in writing.
30.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
31.1 In the event of a dispute arising out of or relating to these terms and conditions, the Platform or Services, the parties shall first seek settlement of that dispute by mediation in accordance with the LCIA Mediation Rules, which rules are deemed to be incorporated by reference into this clause.
31.2 If the dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which are deemed to be incorporated by reference into these terms and conditions.
31.3 The language to be used in the mediation and in the arbitration shall be English. The governing law of the contract shall be the substantive law of England and Wales.
31.4 In any arbitration commenced pursuant to this clause, the number of arbitrators shall be three; and the seat, or legal place, of arbitration shall be London.
32.1 No announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
33. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
1. Services Description
End to end lost property services including:
Hosted Lost Property Management Solution (as specified by Provider)
In relation to Items:
· Collection of Items by third party carrier
· Donation to charity
· Provide to Police/passport office, DVLA etc
Zero Burden Service :
Zero Burden Service Lost & Found Service available via web and mobile applications, where Provider, once collected, shall assume control and stewardship over items provided – in good faith, by Customer.
Zero Burden Service supports Post-Loss of property into the Zero Burden Service Lost Property Life cycle – pre-register, receive, log, audit, investigate, store, transfer, dispose and return property found, using service/software or other tools as provided by Provider for this task to Customer to support Carrier end user paid repatriation or ethical disposal of unclaimed items. This is the Purpose.
Other modules or functionality maybe added or made available by Provider from time to time and either for free, or with a change in commercial conditions, according to an written mutually executed addendum to this Agreement.
Customer supplied computer units or mobile devices, whether networked or not, will be used to facilitate the remote search and read access, using either support Internet Browsers, or Provider-approved mobile applications.
The access level is to be all rights, including, but not limited to – WRITE, CREATE, DELETE, READ and SEARCH i.e. there will be equal capability to add, alter or delete records. Customer supplied computer units or mobile devices, whether networked or not, will be used to facilitate the remote search and read access.
Customer users with Customer email addresses will each be given an account comprising of a “log on” and password. This will enable them to utilise the provided system and may be audited by Provider.
Any data or spreadsheet will be held on Customer secure databases and Customer will become the Data Controller at this point.
Schedule 2 – Fees and Service Limits
Payment of the annual Service Fee and Hardware Fee, if applicable, shall be made by the Customer upon receipt of a correctly presented invoice submitted by Provider and quoting the relevant purchase order number, where required, payments shall be made by the Provider upon receipt of a correctly presented invoice submitted by Customer and quoting the relevant purchase order number, where applicable.
Fees for any applicable Carrier, postage & packaging and associated taxes and duties, as well as any applicable penalty payments relating to issues within the Customer’s sphere of knowledge or control, shall also be charged where appropriate according to the report provided. These fees may be deducted from any commission or fee payable to Customer and detailed in the provided report.
Provider shall provide a detailed report covering all Commission, charges, per transaction, by the 10th working day of each month, for the preceding month and this shall form the basis of invoicing between Provider and Customer.
The Customer shall pay a Hardware Fee in relation to the following LPO Peripheral packages
As ordered* LPO Peripherals Package Including:
ZBS approved Barcode Printer
ZBS approved Barcode Scanner
ZBS approved Receipt Printer
ZBS approved Signature Pad
USERS AND/OR SITES PER YEAR – AS PER QUOTATION
Sites: Unlimited, as long as each site is solely used as a part of the Customers offerings and where Providers service or any hardware/software/service components thereof are not ‘resold’ as a ‘standalone’ charged for capability.
The following are examples of Prohibited Items. This list may vary according to the selected Carrier’s Terms of Carriage, full details of which will be provided on request.
Examples are, but not limited to :
Fragile and perishable goods, (including but not limited to prepared food, unprepared food, cooked or uncooked food)
Clinical and / or biological samples (including but not limited to bodily fluids and tissue samples)
Flowers / plants
Human remains or ashes in any form
Hunting (animal) trophies, animal parts such as ivory and sharks fin, animal remains or ashes, or animal by-products and derived products not intended for human consumption, prohibited for movement by the CITES Convention and/or local law
Illegal goods, such as narcotics, illegal firearms and other forms of weapons – all of which must be reported to the local Police by Customer
Live animals (including but not limited to mammals, reptiles, fish, invertebrates, amphibians, birds, insects, larvae and pupae)
Damaged or defective batteries
Any other goods which the Provider may at its sole discretion deem to be valuable, unless otherwise agreed to prior to pick up in writing
Includes goods as defined in the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) or International Maritime Dangerous Goods (IMDG) as revised or reissued from time to time – examples are shown below but not limited to :
- Class 1 Explosive substances and articles
- Class 2 Gases, including compressed, liquefied, and dissolved under pressure gases and vapours
- Flammable gases (e.g. butane, propane, acetylene)
- Non-flammable and non-toxic, likely to cause asphyxiation (e.g. nitrogen, CO2) or oxidisers (e.g. oxygen)
- Toxic (e.g. Chlorine, Phosgene)
- Class 3 Flammable liquids
- Class 4.1 Flammable solids, self-reactive substances, and solid desensitized explosives
- Class 4.2 Substances liable to spontaneous combustion
- Class 4.3 Substances which, in contact with water, emit flammable gases
- Class 5.1 Oxidizing substances
- Class 5.2 Organic peroxides
- Class 6.1 Toxic substances
- Class 6.2 Infectious substances
- Class 7 Radioactive material
- Class 8 Corrosive substances
- Class 9 Miscellaneous dangerous substances and articles
Schedule 4– Data Protection Provisions
1. Data Protection
1.1 For the purpose of this schedule, in addition to the definitions set out in the main body of this Agreement, the following terms shall have the following meanings:
(a) Data Controller: shall have the meaning of ‘data controller’ set out in section 6(1) of the DPA.
(b) Data Processor: shall have the meaning of ‘data processor’ set out in Article 4(8) of the GDPR.
(c) Data Protection Legislation: means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
(d) Data Subject: an individual who is the subject of Personal Data.
(e) DPA: means the Data Protection Act 2018.
(f) GDPR: means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
(g) Personal Data: has the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
(h) Processing and process: have the meaning set out in Article 4(2) of the GDPR.
2. Joint Data Controllers
2.1 Customer and Provider agree that for the purposes of the Data Protection Legislation that they shall be joint Data Controllers in respect of any Personal Data which is inherent in the Customer Data.
2.2 Each party shall take steps to ensure that its employees are informed of its obligations in relation to Personal Data that it collects, transfers or holds.
3. Extent of Processing in scope
3.1 The types of Personal Data that the parties foresee will be given by the Data Subjects, or someone acting on their behalf, and then collected, transferred and held by the parties in pursuance of the activities contemplated by this schedule will include:
(a) the names, gender, date and place of birth, health status and financial status of individuals who have registered, or been registered as having lost items of property;
(b) the addresses and contact details relating to the individuals of the type specified in (a) above;
(c) details of journeys and travel undertaken by individuals of the type specified in (a) above;
(d) any national identification information including, but not limited to, passport, social security and driving licence details relating to the individuals of the type specified in (a) above;
(e) vehicle and bicycle registration numbers and tag / tracking numbers of property relating to the individuals of the type specified in (a) above;
(f) credit card, debit card and bank account details of the individuals of the type specified in (a) above;
(g) job title and employer details of the individuals of the type specified in (a) above; and
(h) documentation (including photographs) relating to property of the individuals of the type specified in (a) above.
3.2 Each party shall process the Personal Data identified in 3.1 to the extent necessary to:
(a) perform its obligations pursuant to the terms of the main Agreement;
(b) for the purposes of assisting relevant Data Subjects in recovering items of lost property;
(c) and/or in accordance with the other party’s reasonable, lawful instructions from time to time;
and they shall not process the Personal Data for any purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which may be authorised by the other party from time to time.
3.3 The parties recognise that the Provider provides software services to various third parties whereby it provides those third parties with solutions similar to the one described in the main body of this Agreement. The parties accept and agree that nothing in this Schedule is intended to prevent, or shall have the effect of preventing, the Provider from using Personal Data with which it is provided by the Customer for the purposes of enabling those third parties to unite relevant Data Subjects with items of lost property.
4. UK Police Force Access
4.1 The parties acknowledge and agree that various UK Police Forces will have access to the Services in order to enable them to access Personal Data stored therein. The parties recognise that such access is required by law and that neither party shall be under any duty to inform the other of any such access to Personal Data that UK Police Forces may make during the Term.
5. Data Protection Undertakings
5.1 Each party undertakes to the other that it will process the Personal Data in compliance with all applicable Data Protection Legislation.
5.2 Each party to this Agreement undertakes that:
(a) having regard to the reasonably available state of the art of technological development, the nature of the processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, it will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful processing and against the accidental loss or destruction;
(b) it will assist the other party, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the other party reimbursing it for the cost of the same;
(c) except for requests that arise further to section 4.1 it will notify the other party, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to;
(d) it will report to the other party any suspected data breach concerning the Personal Data which comes to its attention and it will provide reasonable assistance to them in informing the relevant regulator and/or affected Data Subjects; and
(e) it will, on request, take reasonable steps to demonstrate to the other party, to the extent that is reasonable given the nature of the processing in question, that it complies with Data Protection Legislation.
6.1 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant to sections 3 and 5 of this schedule. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
6.2 As joint Data Controllers the parties acknowledge that each party will be reliant on the other party from time to time for directions as to the extent to which each party will be entitled to use and process the relevant Personal Data. Consequently, the party acting on instructions from the other will not be liable to the instructing party for any claim brought by a Data Subject arising from any action or omission by it, to the extent that such action or omission resulted directly from the other party’s instructions.ZBS