2. USE OF the SERVICES
4. ACCEPTANCE TESTING
5. Customer data
6. Third party providers
7. Supplier’s obligations
8. Customer’s obligations
9. Charges and payment
10. Proprietary rights
11. Confidentiality and compliance with policies
13. Limitation of liability
14. Term and termination
15. Force majeure
18. Rights and remedies
20. Entire agreement
22. No partnership or agency
23. Third party rights
24. Sanctions/Compliance with Laws
27. Governing law
- The definitions and rules of interpretation in this clause apply in the Agreement.
“Acceptance” means the acceptance of a Key Deliverable as set out in clause 4
“Acceptance Criteria” means as set out in clause 4
“Acceptance Tests” — the tests in respect of the Software or each Phase, as the case may be, as set out in the Agreement (and the running of Acceptance Tests will be referred to as “Acceptance Testing”)
“Additional Services” — the additional services set out in the Order
“Additional Service Fees” — the additional service fees set out in the Order
“Affiliate” — in relation to a party, each other entity which directly or indirectly Controls, is directly or indirectly Controlled by (through one or more intermediaries) or is under direct or indirect common Control with, that party from time to time
“Agreement” — the contract between the Supplier and the Customer for the supply of Services in accordance with these terms and conditions
“Authorised Users” — those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.2
“Business Day” — a day other than a Friday, Saturday or public holiday in the United Arab Emirates
“Change” — a change to the Services or any aspect of the Software or services that are materially outside the scope of the Services
“Change in Law” — the coming into effect of a new law that applies to the parties to this Agreement or the subject matter or performance of this Agreement or a change in any such law after the date of this Agreement
“Charges” — the Package Fees, the Shipment Fees, the Third Party Charges, the Customisation Fees and the Additional Service Fees
“Confidential Information” — information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7
“Control” means, in relation to a party, the direct or indirect ownership of more than 50% of the voting capital or similar right of ownership of that party, or the legal power to direct or cause the direction of the general management and policies of that party, whether through the ownership of voting capital, by contract or otherwise, and Controls and Controlled will be interpreted accordingly
“Customer” — the person, firm or company which purchases Services from the Supplier
“Customer Data” — the data entered by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services
“Customisation Services” — the customisation services, if any, set out in an Order
“Documentation” — the documentation made available to the Customer by the Supplier online via https://shipox.com/support/ or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services
“Effective Date” — the date on which the Customer purchases any Services or places an Order, whichever is the earlier
“Initial Subscription Term” means the period of the initial subscription selected by the Customer, commencing on the Effective Date
“Mandatory Policies” — the Supplier’s business policies made available to the Customer by the Supplier online via www.shipox.com, as amended by the Supplier from time to time
“Normal Business Hours” — 6.00 am to 4.00 pm local GMT time, each Business Day.
“Order” — an order placed by the Customer for Additional Services and/or Customisation Services
“Package Fees” — the fees payable by the Customer to the Supplier for the package of Services selected by the Customer
“Phase” — the part of the Software and other deliverables identified as being an obligation on the Supplier to provide in a phase as set out in an Order
“Renewal Period” — a period of 1 month
“Services” — the services including any Additional Services and Customisation Services provided by the Supplier to the Customer under the Agreement via https://shipox.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation and any Order
“Service Level Agreement” — the Supplier’s policy for providing support in relation to the Services as made available at https://shipox.com or such other website address as may be notified to the Customer from time to time
“Shipment Fees” — the shipment fees payable by the Customer to the Supplier for the use of the Services, as referred to in clause 9
“Software” — the online software applications provided by the Supplier as part of the Services
“Supplier” — Shipox Inc incorporated and registered in state of Delaware is 2035 sunset lake road, suite B-2, in the city of Newark, zipcode 19702 and county of New castle (USA).
“Term” — the Initial Subscription Term and each Renewal Period (or any shorter period if the agreement is terminated early in accordance with clause 14 or otherwise ceases to have effect, whether as a result of termination, frustration, avoidance or otherwise)
“Virus” — anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices
“Website” — the web site operated by the Supplier, as may be amended by the Supplier from time to time
- Clause, schedule and paragraph headings will not affect the interpretation of these terms and conditions.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
- A reference to a company will include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
- Unless the context otherwise requires, a reference to one gender will include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
- A reference to a statute or statutory provision will include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
- A reference to writing or written includes only e-mail.
- References to clauses and schedules are to the clauses and schedules of these terms and conditions; references to paragraphs are to paragraphs of the relevant schedule to these terms and conditions.
USE OF the SERVICES
- Subject to the Customer paying the Charges in accordance with clause 9, the restrictions set out in this clause 2 and the other terms and conditions of the Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer’s internal business operations.
- In relation to the Authorised Users, the Customer undertakes that:
- each Authorised User will keep a secure password for his use of the Services and Documentation and that each Authorised User will keep his password confidential;
- it will permit the Supplier or the Supplier’s designated auditor to audit the Services in order to audit compliance with the Agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right will be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
- if any of the audits referred to in clause 2.2.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer will promptly disable such passwords and the Supplier will not issue any new passwords to any such individual; and
- if any of the audits referred to in clause 2.2.2 reveal that the Customer has underpaid any Charges to the Supplier, then without prejudice to the Supplier’s other rights, the Customer will pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.
- The Customer will not access, store, distribute or transmit any Viruses, or any material (including marketing and promotional material) during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to (i) suspend provision of the Services and/or (ii) disable the Customer’s access to any material that breaches the provisions of this clause.
- The Customer will not:
- 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 the Agreement:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- interfere in any manner with the functionality or proper working of the Software, application programming interfaces or the Website; or
- use the Services and/or Documentation to provide services to third parties; or
- subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
the Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
- 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 the Agreement:
- The rights provided under this clause 2 are granted to the Customer only, and will not be considered granted to any Affiliate of the Customer.
- The Supplier will, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement and in accordance with the Service Level Agreement.
- The Supplier will use commercially reasonable endeavours to carry out the Customisation Services by the date specified in any Order.
- The Customer will be responsible for the provision of all services and the supply of any goods or products by the Customer through, using or in connection with the Services, including in relation to any malfunction thereof. The Supplier is not a selling agent in connection with any sale by the Customer of goods or services to any person. The Supplier has no control over or responsibility for the quality, fitness, safety, reliability, legality, or any other aspect of any good or service that the Customer may sell using the Services.
- Scheduling and Performance of Acceptance Tests
If the Supplier has performed any Customisation Services, the Customer will perform Acceptance Tests on the Software or on each Phase, as the case may be. The Customer will give the Supplier reasonable prior notice for each Acceptance Test and will permit a reasonable number of Supplier Personnel to attend and observe each Acceptance Test. The Customer will at no additional cost to the Supplier provide such support and assistance to the Supplier as is necessary for the Supplier to rectify any alleged non-conformance of the Software or the Phase with the Supplier’s obligations under the Customisation Services and such other support and assistance as set out in the Order, the Agreement or as otherwise reasonably required by the Supplier.
- Acceptance Criteria and Supplier Determination
In conducting each Acceptance Test, the Customer will apply the criteria set out in the Order (“Acceptance Criteria”). The Supplier will be entitled to determine whether the performance of the Software is in conformity with the relevant Acceptance Criteria, at its sole discretion (“Acceptance”).
- Changes to the Acceptance Criteria
Following the Effective Date, the Parties will, acting reasonably and in good faith, refine the Acceptance Criteria in the Order to the extent necessary in response to any Changes or other variations, and in the event of any disagreement the Supplier will have the right to determine the final version of the Acceptance Criteria applied to each Key Deliverable, at its sole discretion.
- Acceptance Test Results, Remediation and Repetition
The Customer will within ten Business Days of completion of the Customisation Services (in relation to each Phase, where applicable) inform the Supplier in writing if any Acceptance Test is a success or a failure, giving such details as the Customer may have of any such failure. In the event of a failure, the Supplier may, at its sole discretion, within ten Business Days of receipt of that information remedy the relevant defect, malfunction, bug, non-conformity or error, or other cause of the failure, and re-deliver or otherwise make ready the Software or the relevant Phase for a repeat of the relevant Acceptance Test. The Supplier may, in its sole discretion, perform further Acceptance Tests and in the event of failure repeat remediation attempts.
- Consequences of Acceptance Failure
If in respect of the Software or any Phase (where applicable) (i) any Acceptance Test conducted under clause 4.4 fails, or (ii) if the Acceptance Testing procedure has not been completed and Acceptance has not been achieved by the relevant date (if any) for that Phase as set out in the Order, the Supplier may terminate the Agreement in full or in respect of the relevant Phase, if applicable, and provide a full refund of all sums paid by the Customer to the Supplier under the Agreement. Where the Supplier terminates the Agreement pursuant to this clause 4.5, the Customer will not be liable to pay any further Charges to the Supplier in respect of the Agreement.
- The Customer will own all right, title and interest in and to all of the Customer Data that is not personal data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
The Supplier will follow its archiving procedures for Customer Data as set out in its back-up policy available at https://aws.amazon.com/backup/faqs/ or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the
- Customer’s sole and exclusive remedy against the Supplier will be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its back-up policy. The Supplier will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it will remain fully liable under clause 6.
- The Supplier will, in providing the Services, comply with its privacy and security policy relating to the privacy and security of the Customer Data available at [https://aws.amazon.com/compliance/data-privacy-faq/] or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
- The Customer consents to the Supplier appointing third-party processors of personal data under these terms and conditions.
Third party providers
- The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 7.1 will not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
- 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- This Agreement will not prevent the Supplier 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 the Agreement.
- The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
- The Customer will:
- provide the Supplier with:
- all necessary co-operation in relation to the Agreement; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
- carry out all other Customer responsibilities set out in the 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and will be responsible for any Authorised User’s breach of the Agreement;
- obtain and will maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’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.
- provide the Supplier with:
Charges and payment
- The Customer will pay the Charges to the Supplier in accordance with this clause 9. The Charges are exclusive of charges made to the Supplier by third parties in connection with the provision of the Services (“Third Party Charges”) which will be payable by the Customer in addition to the Charges.
- Package Fees
- The Package Fees are as set out on the pricing page at https://shipox.com/pricing based on the bands corresponding to a number of shipments per month set out on the Pricing page. If at any time during the relevant month the Customer exceeds the number of shipments specified as the upper limit of the band for which it has paid, it must purchase Services for any additional shipments which it requires during the remainder of that month and pay the shipment fees for those additional shipments.
- The Package Fees for the band selected by the Customer will automatically be applied, and the Services will be available for the corresponding number of shipments, for the following month unless the Customer selects and purchases the Services for a different band. The Customer may select the band for a particular month at any time before the start of that month.
- The Supplier may submit an invoice to the Customer:
- in respect of the Package Fees for the first month of the Initial Subscription Term, on the Effective Date;
- in respect of the subsequent months of the Initial Subscription Term, before the first day of the second and each subsequent month of the Initial Subscription Term; and
- In respect of the Package Fees for each Renewal Period, on the first day of the relevant Renewal Period.
- Third party charges
- The Supplier may submit an invoice to the Customer in respect of the Third Party Charges on the last day of each month.
- Customisation fees
- Subject to clause 9.4.2, the Supplier may submit an invoice to the Customer in respect of 50% of the Customisation Fees on the placing of the relevant Order and an invoice for the remaining 50% on completion of the Customisation Services set out in that Order.
- If the Customisation Services are to be provided by the provision of Phases, the Supplier may submit an invoice to the Customer in respect of 50% of the Customisation Fees for the first Phase on the placing of the relevant Order, in respect of 50% of the Customisation Fees for each subsequent Phase on the commencement of work on the relevant phase, and in each case an invoice for the remaining 50% on completion of each Phase.
- Additional service fees
- The Supplier may submit an invoice to the Customer in respect of the Additional Service Fees on the Effective Date and at least 14 days prior to the first day of the relevant Renewal Period.
- The Customer will on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or, if agreed in writing by the Supplier, approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
- its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card for any amount due under the Agreement on the dates on which the Supplier may submit an invoice in respect of such amount in accordance with this clause 9; and
- its approved purchase order information to the Supplier, the Supplier will invoice the Customer in accordance with this clause 9;
and the Customer will pay each invoice within 14 days after the date of such invoice.
- If the Supplier has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
- the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- Interest will accrue on a daily basis on such due amounts at an annual rate equal to 8% per year, commencing on the due date and continuing until fully paid.
- Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All amounts and fees stated or referred to in the Agreement:
- will be payable in United States Dollars;
- are non-cancellable and, subject to clause 4.5, non-refundable;
- are exclusive of applicable taxes and duties, including, without limitation, VAT, sales and similar transaction taxes, excise taxes and gross receipts taxes (“Indirect Taxes”). If the fees payable by the Customer are subject to Indirect Taxes, then Indirect Taxes will be charged by the Supplier in addition to the fees payable under the Agreement. The Customer will provide such information to the Supplier as reasonably required to determine whether the Supplier is obliged to collect Indirect Taxes from the Customer or to allow the Supplier to comply with its legal obligations in relation to the correct collection and enforcement of Indirect Taxes. The Supplier shall not collect, and the Customer shall not pay, any such Indirect Tax or duty for which the Customer furnishes the Supplier a properly completed exemption certificate or a direct payment permit certificate or for which the Supplier may claim an available exemption from Indirect Tax. All payments made by the Customer to the Supplier under this Agreement will be made free and clear of any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, the Customer will pay such additional amounts as are necessary so that the net amount received by the Supplier is equal to the amount then due and payable under this Agreement. The Supplier will provide the Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
- The Supplier will be entitled to increase the Package Fees, the Shipment Fees and the Additional Service fees at the start of each Renewal Period upon 30 days’ prior notice to the Customer and the [Charges Page] will be deemed to have been amended accordingly.
- The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, under or in any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
- The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
Confidentiality and compliance with policies
- Each party (the “Receiving Party”) may be given access to Confidential Information from the other party (the “Disclosing Party”) in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 11.4, each party will hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
- Each party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
- 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 and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
- The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- No party will make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- The above provisions of this clause 11 will survive termination of the Agreement, however arising.
- The Disclosing Party acknowledges that the Receiving Party may now have, or in the future may develop or receive, information that is the same as, or similar to, Confidential Information without having breached the Agreement. Nothing in the Agreement (a) prevents the Receiving Party from using, for any purpose and without compensating the Disclosing Party, information retained in the memory of the Receiving Party’s personnel who have had access to Confidential Information or (b) obliges the Receiving Party to restrict the scope of employment of the Receiving Party’s personnel; provided, however, that this section does not create a license under any copyright or patent of the Disclosing Party.
- The Customer will comply with the Mandatory Policies in relation to any matter arising from or relating to the Agreement.
- The Customer will defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
- the Customer is given prompt notice of any such claim;
- the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- the Customer is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
- In no event will the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than the Supplier; or
- the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and clause 13.3.2 state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
- Except as expressly and specifically provided in the Agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
- the Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in the Agreement excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to clause 13.1 and clause 13.2:
- the Supplier will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
- the Supplier’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 the Agreement will be limited to 50% of the total Charges paid during the 12 months immediately preceding the date on which the claim arose.
Term and termination
- This Agreement will commence on the Effective Date and will expire at the end of the Term.
- Subject to clauses 14.3 and 14.4, unless a Party gives the other Party not less than 30 calendar days’ written notice that it does not wish to extend the Initial Term or to enter into a further Renewal Period, this Supplier Agreement will continue for successive Renewal Periods subsequent to the expiry of the Initial Term or the relevant Renewal Period, as the case may be. If a Party gives notice under this clause 14.2, this Supplier Agreement will terminate at the end of the Initial Term or the relevant Renewal Period.
- Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party (the “Defaulting Party”) if:
- the Defaulting Party is in material breach of the Agreement and either that breach cannot be remedied or has not been remedied 30 calendar days after the Defaulting Party has received a notice specifying the breach and requiring it be remedied;
- if the Defaulting Party becomes insolvent or has a receivership or administration order made against it in any applicable jurisdiction; or
- the Defaulting Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- The Supplier may terminate the Agreement (or, where appropriate, a part of the Agreement) with immediate effect without prior notice and without costs or compensation payable to the Customer, where:
- the Customer fails to pay all or any part of the Charges due under the Agreement on the due date for payment and remains in default not less than 30 calendar days after being notified to make such payment; or
- there is a Change in Law that makes the continued performance by the Supplier of its obligations under the Agreement onerous (as determined by the Supplier in its absolute discretion), or which require compliance by the Customer and in respect of which the Customer does not comply.
- On expiry or termination of this Agreement for any reason:
- all licences granted under the Agreement will immediately terminate and the Customer will immediately cease all use of the Services and/or the Documentation;
- each party will return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession, unless the Supplier receives, no later than ten days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of the Customer Data inputted during the 12 months immediately preceding the date of termination. The Supplier will use reasonable commercial endeavours to deliver that Customer Data to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
- 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, will not be affected or prejudiced.
- For the avoidance of doubt, a court order will not be required to give effect to any termination of the Agreement under this clause.
The Supplier will have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of the Agreement will be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Agreement.
- If any provision or part-provision of the Agreement is deemed deleted under clause 19.1 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 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.
- Each party acknowledges that in entering into the Agreement it does not rely on, and will 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 will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
- Nothing in this clause will limit or exclude any liability for fraud.
Neither party may assign the Agreement without the prior written consent of the other party, except that the Supplier may assign the Agreement to an Affiliate or in connection with any merger, reorganization, sale of all or substantially all of its assets or any similar transaction. Subject to this limitation, the Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
No partnership or agency
Nothing in the Agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will 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).
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
Sanctions/Compliance with Laws
- The Customer represents and warrants that the Customer and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
- Notwithstanding anything to the contrary herein, nothing in the Agreement will, or will be interpreted or construed to, induce or require either party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules, or requirements that apply to any party to the Agreement.
The Customer acknowledges that the Supplier’s Code of Business Conduct and Ethics prohibits the paying of bribes to anyone for any reason, whether in dealings with governments or the private sector. Neither party will violate or knowingly permit anyone to violate the Code’s prohibition on bribery or any applicable anti-corruption laws in performing under the Agreement. Either party may immediately terminate or suspend performance under this agreement if the other party breaches this section. The Customer will maintain true, accurate and complete books and records concerning any payments made to another party by the Customer under the Agreement, including on behalf of the Supplier. The Supplier and its designated representative may inspect the Customer’s books and records to verify such payments and for compliance with this section.
- Any notice or other communication to be given to the Supplier under the Agreement must be in writing and must be sent by recognised international courier delivery service to the address given in clause 1 of these terms and conditions or any other address notified to the Customer by the Supplier for that purpose, marked for the attention of Commercial Director and Head of Legal. Such notice will be deemed delivered on the third Business Day after it was given to or collected by such courier service.
- Any notice or other communication to be given to the Customer under the Agreement must be in writing and may be provided to the Customer by recognised international courier delivery service, or by email.
Delaware state law governs this Agreement without regard to its conflict of law provisions.
- ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Delaware law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND SHIPOX INC ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.