Last Updated 22 April 2020.
These terms, including any attached exhibits (collectively, "Terms") apply as of 22 April 2020 and are entered into as of the effective date listed on the Order Form ("Effective Date") between Linn Systems Ltd, company no. 06784391, registered in England and Wales, having its principal place of business at City Gates House, 2-4 Southgate, Chichester, PO19 8DJ, United Kingdom ("Linnworks" or "Supplier") and the customer identified on the Order Form ("Customer"), collectively the "Parties".
1. Definitions and Interpretation
means this software as a service agreement (including the Terms and the Order Form) and any amendments or modifications to it from time to time made in accordance with this Agreement;
means those employees, officers, agents and independent sub-contractors of the Customer who are authorised by the Customer to use the Services, the Software and the Documentation for the benefit of the Customer;
means any day, other than a Saturday, Sunday or a bank or public holiday in England;
means any sales channels used by Customer and authorised to be used with the Software pursuant to this Agreement, the Order Form or any other related documents;
means the amounts payable by the Customer to the Supplier under or in relation to this Agreement (as set out in the Order Form subject to any changes in accordance with paragraphs 2 and/or 7);
means all information (in any medium or format, including written, oral, visual or electronic) which is marked or described as "confidential" and which relates to a party (the "Disclosing Party") or to its employees, officers, customers or suppliers and which is directly or indirectly disclosed by the Disclosing Party to the other (the "Recipient Party") in the course of their dealings relating to this Agreement, whether disclosed before or after the Commencement Date other than:
(a) information which is in the public domain other than as a result of breach of this Agreement;(b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and(c) Information which was developed or created independently by or on behalf of the Recipient Party;
(b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and(c) Information which was developed or created independently by or on behalf of the Recipient Party;
(c) Information which was developed or created independently by or on behalf of the Recipient Party;
all data, works and materials uploaded or inputted by or on behalf of the Customer or by any person or application or automated system using the Customer's account for the purposes of using the Services or Software or facilitating the Customer's use of the Services or Software;
has the meaning set out in Paragraph 3 ("Customisations");
"Data Protection Legislation"
means the Privacy and Electronic Communication (EC Directive) Regulations 2003, the General Data Protection Regulation 2016 ("GDPR"), the UK Data Protection Act 2018 and all applicable laws and regulations in the UK that relate to the protection and processing of personal data and privacy including any mandatory guidance and codes of practice issued by the UK's Information Commissioner, all as amended, replaced or superseded from time to time. "Controller", "Data Subject", "Personal Data", "processing" and "Processor" shall each have the meanings given in the applicable Data Protection Legislation;
means the documentation produced by the Supplier and made available to the Customer specifying how the Services and the Software should be used;
"Force Majeure Event"
means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights"
means all intellectual property rights which subsist now or in the future, in any part of the world, whether registered or unregistered, including any application or right of application for such rights, any renewals or extension, and any rights to claim priority from (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights, rights in designs and all similar or equivalent rights and forms of protection);
means any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program 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;
means any implementation or integration services, to the extent set out in the Order Form;
means the order form in respect of the Services which is either:(a) signed on behalf of the Customer and Supplier; or(b) completed online on behalf of the Customer.
(a) signed on behalf of the Customer and Supplier; or
(b) completed online on behalf of the Customer.
means all the services provided or to be provided by the Supplier to the Customer under this Agreement as specified in Order Form, comprising:
(a) access to and use of Software;
(b) the Support Services; and
(c) Onboarding Services, if so listed in the Order Form;
"Service Start Date"
means the earlier of:
(a) the 'Service Start Date' confirmed in the Order Form; and
(b) the date on which the Customer's subscription with the Supplier first became active;
"Software" or "Platform"
means the Supplier's online order and inventory management system;
means the term of the subscription as set out in the Order Form as measured from the Service Start Date;
means the following support services to be provided by the Supplier by telephone, chat and email, within normal Business Hours (with Supplier using reasonable endeavours to ensure that a member of its support staff will monitor the support ticketing system and emergency email outside of normal Business Hours in the case of an emergency):
(a) assisting the Customer with the proper use of the Services and Software by use of pre-booked online training sessions; and
(b) determining the causes of faults and fixing faults that are not caused by the Customer or a cause outside the Supplier's control; and
means the term of this Agreement.
This Agreement will come into force on the Effective Date or Service Start Date, whichever is earlier, and will continue in force for the Subscription Term and thereafter shall be automatically renewed for successive Subscription Terms as measured from the date of expiry of the current Subscription Term, unless:
• either party notifies the other party of termination, in writing, at least 30 days before the end of a Subscription Term, in which case this Agreement shall terminate upon the expiry of that Subscription Term; or
• this Agreement is otherwise terminated earlier in accordance with the terms of this Agreement.
The Supplier shall not less than 30 days before the expiry of the current Subscription Term notify the Customer of any changes to the Charges which the Supplier has calculated will be due for the next Subscription Term. Unless this Agreement is terminated by the Customer in accordance with the terms of this Agreement, the Customer shall be deemed to accept any such notified changes to the Charges and the Supplier shall continue to provide the Services for the next Subscription Term on the revised terms.
3. The Services
Subscription Rights and Access
Subject to Customer’s payment of the fees confirmed in the Order Form (as amended in accordance with paragraph 2) and compliance with the terms of this Agreement, Supplier grants Customer the nonexclusive limited-time subscription and right to use the Services in accordance with this Agreement. Further, Supplier agrees that Customer may access and use, and permit each Authorised User to access and use, the Services for its intended purpose, in accordance with the specifications confirmed in any Documentation and subject to the terms of this Agreement and the limits on User Count, Order Volume, SKU Count, Feature Set, Channels, and/or other use restrictions specified on each Order Form. Subject to Customer’s payment of the fees confirmed in the Order Form and compliance with the terms of this Agreement, Supplier shall provide to Customer the necessary passwords, security protocols and policies, and network links or connections to allow Customer and its Authorised Users to access the Services. Supplier shall provide the Customer and Authorised Users with (a) support for the Services and (b) access to enhancements and maintenance modifications as they become available. Customer and its Authorised Users are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment, and Internet service necessary for the use of the Services. All other rights not expressly granted in this Agreement are reserved by the Supplier.
For the avoidance of doubt, the Customer has no right to access the object code or source code of the Software at any time.
From time to time the Supplier and the Customer may agree that the Supplier will customise the Services in accordance with a specification agreed in writing between the parties ("Customisation"). From the date when a Customisation is first made available to the Customer, the Customisation shall form part of the Software and Services under this Agreement. The Customer acknowledges that the Supplier may make any Customisation available to its other customers at any time after making available that Customisation to the Customer. All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Supplier. The Customer will be responsible for procuring any third-party cooperation reasonably required by the Supplier to enable the Supplier to fulfil its obligations in providing Customisations.
From time to time, Supplier may invite Customer to try certain beta services, including pilot, limited release, developer preview, non-production, or evaluation services ("Beta Services") at no charge. Customer may accept or decline any such trial. Beta Services will be clearly designated as such by Supplier. Beta Services are provided "as is" without a warranty or guarantee and are for evaluation purposes and not for production use, are not considered "Services" under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Supplier may discontinue Beta Services at any time and may never make them generally available. Supplier will have no liability for, and Customer hereby releases Supplier from, any liability or damage arising out of or in connection with any Beta Services.
Supplier may change, modify, upgrade, or discontinue any aspect or feature of Software in whole or in part. Such changes, upgrades, modifications, additions, or deletions will be effective immediately upon notice thereof, which may be made by posting such changes to the Supplier's website or directly via email to Customer. In the event Supplier modifies or discontinues any content or feature of Software which results in reduction of functionality or degradation of the Services, Supplier shall provide comparable functionality. Supplier shall, from time to time, develop new features, which may be offered to Customers for additional fees.
Customer shall not, and shall not authorise or permit any Authorised User to (a) rent, loan, or re-license rights to access and/or use the Services (except as specifically provided herein); (b) copy, modify, disassemble, decompile, or reverse engineer software included as part of the Services and/or the Documentation; (c) share identification or password codes with persons other than Authorised Users, or permit Customer’s account to be accessed by individuals who are not Authorised Users; (d) access, use, or permit a third party to access or use the Services for purposes of competitive analysis, including the development, provision, or use of a competing software or service or for any other purpose that may be to Supplier’s detriment or commercial disadvantage; (e) intentionally or unintentionally install malware, spyware, or similar application intended to monitor, damage, or do harm to Supplier’s Platform; (f) exceed the number of monthly or other periodic order numbers confirmed in the Order Form or use any Features Sets not included in the Order Form without additional fees or Service tier; or (g) use the Services in any way not expressly provided for in this Agreement. Customer shall be responsible under this Agreement for all activities that occur under Customer’s account and for all actions of Customer or its Authorised Users and both Customer and Authorised Users shall use the Services in accordance with the terms of this Agreement and any additional Terms of Service on the Supplier's website. In the event of any conflict between the terms of this Agreement and any Terms of Service on Supplier’s website, this Agreement shall take precedence. Customer shall immediately notify Supplier of any unauthorised use of Customer’s passwords or account, or any other breach of security that is known or suspected by Customer.
The Customer acknowledges that Supplier may enable or assist it to access and/or purchase content or technical applications offered by third parties ("Non-Linnworks Application") either directly from the Linnworks app store or via third party websites. Any use by Customer and any exchange of data between Customer and the provider of Non-Linnworks Applications is solely between Customer and the applicable provider. Supplier does not warrant or support Non-Linnworks Applications or other non-Supplier products or services. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the access, content or use of, or correspondence with, any such third party, or any transactions completed, and any contract entered into by the Customer, with any such third party.
If Customer installs or enables a Non-Linnworks Application for use with the Services, Customer hereby grants Supplier permission to allow the provider of that Non-Linnworks Application to access Customer’s data and content as required for the interoperation of that Non-Linnworks Application with the Services. Supplier is not responsible for any disclosure, modification, or deletion of any of Customer’s data or content resulting from access by a Non-Linnworks Application. The Services may contain features designed to interoperate with Non- Linnworks Applications. To use such features, Customer may be required to obtain access to Non-Linnworks Applications from their providers, and may be required to grant Supplier access to Customer’s account(s) on the Non-Linnworks Applications. If the provider of a Non-Linnworks Application ceases to make the Non-Linnworks Application available for interoperation with the corresponding Service features, Supplier may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.
4. Customer Content
Supplier will process, store and use Customer Content as generally necessary in order to perform the Services, to create new Supplier products/services, or to share, in aggregate, with Supplier’s partners, affiliates or customers. Customer represents and warrants that it has all necessary rights in the Customer Content to grant Supplier the right to use, and Customer hereby grants Supplier a non-exclusive, worldwide, royalty-free and fully paid license to use the Customer Content.
a. Customer Content warranty
Customer represents and warrants that it has all necessary permissions, consents and authority to provide the Customer Content and that any Customer Content hosted, processed, stored or used by Supplier as part of the Services will not (a) infringe or violate the Intellectual Property Rights or other legal rights of any third party; (b) be deceptive, defamatory, obscene, or unlawful; or (c) contain any viruses, worms, Malware, spyware, or other malicious computer programming codes intended to damage Platform or data.
Customer acknowledges that any use of the Services by Customer or Authorised Users contrary to or in violation of the representations and warranties of Customer in this paragraph constitutes unauthorised and improper use of the Services. Any such authorised or improper use shall entitle the Supplier discontinue the Customer's access to the Services, without prejudice to its other rights or remedies. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Parties acknowledge that Supplier does not and cannot review all Customer Content and will not be responsible for such content, but that Supplier shall have the right to delete, move, or edit any Customer Content that Supplier determines violates or might violate this Agreement, or any applicable law or regulation, or is otherwise unacceptable.
b. Anonymous data
The Supplier shall be entitled to use aggregated Personal Data created from data produced under this Agreement for the purposes of reporting on the performance, developing and providing new and different products/services to Supplier’s customers, levels of usage and revenue of the Services (provided that such use does not identify the Customer or any living person identified in the Personal Data). This paragraph shall survive the expiry or termination of the Agreement.
c. Data Corruption/Loss
In the event of the loss of, or corruption of, Customer Content stored on the Software being notified by the Customer to the Supplier, the Supplier shall, if so directed by the Customer, use all reasonable endeavours promptly to restore the Customer Content from the most recent available backup copy, if available. In the event of any loss or damage to the Customer Content, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavors to restore the Customer Content that is lost or damaged from the latest back-up, if any, maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of the Customer Content caused by any third-party.
5. Data Protection
Each party shall ensure that it complies with the requirements of all applicable legislation and regulatory requirements in force from time to time relating to the use of Personal Data, including the Data Protection Legislation.
The Supplier and the Customer acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor in respect of any Personal Data that the Customer shares with the Supplier in the provision of the Services for the duration of this Agreement. The remainder of this Paragraph 5 shall apply if the Supplier processes any Personal Data on the Customer's behalf when performing its obligations under this Agreement.
The Supplier shall process the Personal Data only for the purposes of providing the Services, gathering feedback about the Services, performing its other obligations under this Agreement and otherwise in accordance with the reasonable and lawful documented instructions of the Customer and applicable laws.
Other than as expressly set out in this Agreement, the Supplier shall not process the Personal Data in any country outside the European Economic Area ("EEA") (or following the United Kingdom's departure from the European Union, outside the United Kingdom and the EEA) without the prior written request from, or consent of, the Customer and the Supplier shall comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred by following one of the following safeguards:
• entering into the European Commission's standard contractual clauses for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of protection, as updated, amended, replaced or superseded from time to time;where the relevant country has been deemed to provide an adequate level of protection for Personal Data by the European Commission; orwhere the sub-processor is in the United States and that sub-processor is EU-US Privacy Shield Certified.
• where the relevant country has been deemed to provide an adequate level of protection for Personal Data by the European Commission; or
• where the sub-processor is in the United States and that sub-processor is EU-US Privacy Shield Certified.
If the Supplier is required by applicable laws to transfer the Personal Data outside of the EEA (or following the United Kingdom's departure from the European Union, outside the United Kingdom and the EEA), the Supplier shall inform the Customer of such requirement before making the transfer (unless the Supplier is barred from making such notification under the relevant applicable law).
The Supplier shall ensure that all persons authorised by it to process the Personal Data are subject to appropriate duties of confidentiality and shall have at all times during the term of this Agreement appropriate technical and organisational measures in place to protect any Personal Data against unauthorised or unlawful processing and against accidental loss, alteration, destruction or damage (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons). The Supplier shall at the Customer's election, delete or return all Personal Data to the Customer, and delete all existing copies unless applicable law requires their retention.
The Supplier shall (at the Customer's cost) make available to the Customer all information reasonably necessary to demonstrate compliance with the obligations set out in this paragraph 5a, and at the Customer's request (and at the Customer's cost) allow for and contribute to audits, including inspections, conducted by the Customer or its representative.
The Supplier shall without undue delay from becoming aware, notify the Customer of any unauthorised or unlawful processing of any of the Personal Data to which this Paragraph 5 applies and of any loss or destruction or other damage and shall take reasonable steps to mitigate the detrimental effects of any such incident on the Data Subjects and co-operate with the Customer in dealing with such incident and its consequences.
The Supplier shall provide reasonable assistance to the Customer in ensuring its compliance with its obligations under the Data Protection Legislation in respect of security of Personal Data, notifications of breaches of Data Protection Legislation to supervisory authorities, communications of breaches of Data Protection Legislation to Data Subjects, the carrying out of data protection impact assessments and any consultations with supervisory authorities.
The Supplier shall assist the Customer, where reasonably requested by the Customer (and at the Customer's cost) and to the extent possible, with fulfilling the Customer's obligations to respond to requests from a Data Subject for access to, rectification, erasure or portability of, or for restriction of, or objections to, the Processing of, that Data Subject's Personal Data.
The Customer acknowledges and agrees that the Supplier may engage third party sub Processors in connection with the Processing of such Personal Data and in order to meet its obligations under the Agreement from time to time. In such circumstances the Customer hereby authorises the Supplier to engage with such third party sub Processors and in respect of the Supplier's use of sub Processors the Supplier shall inform the Customer of any intended changes concerning the addition or replacement of other sub Processors, thereby giving the Customer the opportunity to object to such changes. The Supplier confirms that it has entered or (as the case may be) will enter with the sub Processor into a written agreement incorporating terms which are substantially similar to those set out in this Paragraph 5. As between the Supplier and the Customer, the Supplier shall remain fully liable for all acts or omissions of any sub Processor appointed by it pursuant to this Paragraph 5b.
If the Supplier appoints sub Processors who process Personal Data outside the EEA, the Supplier shall notify the Customer of such sub Processors and the jurisdiction in which Personal Data shall be processed and the paragraph above shall apply in respect of any objection by the Customer.
Where the Customer provides Personal Data to the Supplier, the Customer shall ensure that any disclosure of Personal Data made by it to the Supplier is made with the Data Subject's consent or is otherwise lawful and any instructions given to the Supplier by the Customer are lawful.
The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer's instructions.
6. Customer Obligations & Acknowledgement
The Customer shall:
• provide the Supplier with all reasonably necessary co-operation in relation to this Agreement;
• ensure that its Authorised Users use the Services, Software and Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
• ensure that it and any Authorised Users abide by all applicable laws and regulations in connection with their use of the Services;
• ensure that it and any Authorised Users abide, do not abuse, attempt to circumvent, or violate any rules, regulations, or terms of service of the Channels, Marketplaces, Storefronts, Couriers, Non-Linnworks Applications, and any other systems or software connected to the Platform;
• agrees to enter into agreements with its Authorised Users that contain terms that impose no less restrictions in all material respects than those imposed on Customer herein, including, but not limited to, the provisions regarding the use of the Services and protection of Supplier’s Intellectual Property Rights, and that include additional terms as reasonably requested by Supplier.
On or before the earlier of the Effective Date or the Service Start Date, Customer acknowledges and agrees that an authorised representative of Customer has evaluated the features and functionality of the Services in a means satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the features and functionality that have been represented to Customer. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Supplier regarding future functionality or features.
Customer shall pay Supplier all Charges confirmed in the Order Form (or as otherwise amended in accordance with these Terms) upon receipt of invoice (unless otherwise stated on the Order Form). The Supplier and the Customer may agree more favourable payment terms, but the Customer acknowledges and agrees that the Supplier shall be entitled to charge the Customer a premium in such circumstances.
Except for as otherwise set out in this Agreement, all payments to Supplier are non-refundable and non-cancellable. Specifically, Customer’s loss of business, loss of Services due to nonpayment, or Customer’s failure to use the Services will not be cause for any refund to Customer from Supplier. Customer shall reimburse Supplier for Supplier’s collection costs incurred in attempting to collect any overdue payments, including reasonable legal fees.
VAT and Taxes
The Charges confirmed in the Order Form (or as otherwise amended in accordance with these Terms) are exclusive of VAT, or other applicable governmental taxes, duties, fees, excises, or tariffs ("Taxes") now or hereafter imposed on the Services. Customer shall be responsible for, and shall reimburse, Supplier for all such Taxes on any amounts payable by Customer hereunder, except for Taxes imposed on Supplier’s net income. If Supplier has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, Supplier will add such Taxes to the amount invoiced to Customer.
Compliance and Auditing
Pricing is determined by a number of factors, including User Count, Order Volume, SKU Count, Customisations, Support Services, and other similar factors. Supplier may, from time to time, audit Customer’s account (as specified on the Order Form) without any notice to Customer to ensure compliance with agreed-upon terms and pricing. Supplier will give Customer at least ten (10) days advance notice of any such audit that Supplier expects to interfere with Customer’s normal operations. Such audit will be at Supplier’s expense; however, if any such audit should disclose any underpayment by Customer, Customer shall immediately pay Supplier such underpaid amount, together with interest thereon at the rate for the usage discovered by Supplier, and Customer shall also pay Supplier for Supplier’s expenses associated with such audit.
Charges under this Agreement are based on information shared by Customer to Supplier. The Supplier may be required to adjust the Charges as necessary in the event of any change in product, project scope, increase in User Count, Order Volume, SKU Count, or misrepresentation of facts by Customer. At its discretion, the Supplier reserves the right to adjust the basis and the rate of Charges, including by removing any discounts provided.
In the event of a change to the Charges based on misrepresentation of facts by Customer, Supplier reserves the right to suspend Customer access to the Services until a remedy can be found between parties. The Supplier and Customer shall each have the right to terminate this Agreement, unless otherwise agreed, within ten (10) Business Days after notification to Customer of a change to the Charges. In the event the termination of this Agreement as a result of a change in Charges, Supplier may be required to bill for or retain reasonable and proportional compensation for any work performed or expenses incurred prior to the termination of this Agreement. The Customer shall be entitled to a refund of any Charges already paid by the Customer for the Subscription Term remaining after the date of termination.
Without limiting any other remedies available to the Supplier, the Supplier may suspend or terminate access to the Software and the provision of the Services if any amounts due to be paid by the Customer to the Supplier under this Agreement are overdue by more than ten (10) days and the Supplier has provided at least ten (10) days' notice of such suspension.
Overdue payments will be subject to interest from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at the statutory interest rate under the Late Payment of Commercial Debts (Interest) Act 1998.
The Customer acknowledges that the continued payment for Services and Software does not mean that the Supplier undertakes or promises to provide any future functionality or new features.
During the Term, Supplier shall indemnify Customer against a final award of damages resulting from a claim that the Services infringe any Intellectual Property Rights. In addition, if the use of the Services infringes or is enjoined, or Supplier believes it is likely to infringe or be enjoined, Supplier may, at its sole option: (a) procure for Customer the right to continue use of the Services as furnished; (b) modify the Services to make them non-infringing, provided that they still substantially conform to the applicable Documentation; or (c) if Supplier, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate this Agreement and refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. The indemnity provided herein does not apply to the extent the alleged infringement arises from any use of the Services not in accordance with this Agreement or as specified in the Documentation or any unauthorised modification of the Services. This paragraph states Supplier’s sole and exclusive liability and Customer’s sole remedies for any threatened or actual infringement of any Intellectual Property Rights.
During the Term, Customer shall defend, indemnify, and hold harmless Supplier and its officers, directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities, judgments, settlements, losses, costs, or expenses of any kind, including reasonable legal fees, costs and expert witness fees, suffered or incurred by the Supplier and arising out of or in connection with: any breach by the Customer of Paragraph 4a; (b) Customer’s misuse of the Intellectual Property Rights of any third party; and (c) any Customer Content which violates the terms of this Agreement.
In relation to the indemnities given within this Agreement, the applicable indemnified party shall:
• provide notice of any relevant claim to the indemnifying party in a timely manner;
• provide reasonable co-operation to the indemnifying party in the defence and settlement of such claim at the indemnifying party's expense;
• give the indemnifying party sole authority to defend or settle the claim;
• and use all reasonable endeavours to mitigate its losses.
9. Warranties and Liability
THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN "AS IS" BASIS. SUPPLIER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, THE SOFTWARE AND THE DOCUMENTATION BY THE CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. THE SUPPLIER SHALL 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 THE SOFTWARE, OR ANY ACTIONS TAKEN BY THE SUPPLIER AT THE CUSTOMER'S DIRECTION.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE.
NOTHING IN THE AGREEMENT LIMITS ANY LIABILITY WHICH CANNOT LEGALLY BE LIMITED, INCLUDING BUT NOT LIMITED TO LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; AND (C) BREACH OF THE TERMS IMPLIED BY SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 (TITLE AND QUIET POSSESSION).
Each Party warrants that it has all necessary authority to enter into and perform its obligations under this Agreement. Supplier represents and warrants that: (a) the Services will perform in accordance with this Agreement under normal circumstances; and (b) the Services provided hereunder will be performed in a professional manner in accordance with prevailing industry standards.
The Services may contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges and agrees that Supplier is not responsible for the availability of, or the content located on or through, any such external site.
SUPPLIER WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTIONS, LOSS OF ANTICIPATE SAVINGS, LOSS OF CONTRACT, SHIPPING COSTS ASSOCIATED WITH INVENTORY, DELAYS IN IMPLEMENTATION OR ACCESS TO THE SERVICES, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION) EVEN IF EITHER PARTY WAS AWARE OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MIGHT BE INCURRED BY THE OTHER.
THE SUPPLIER’S MAXIMUM LIABILITY FOR CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT SHALL BE THE GREATER OF: (A) £10,000; AND (B) 100% OF THE CHARGES PAID, OR DUE AND PAYABLE, BY THE SUPPLIER IN THE LAST 6 MONTHS OF THE AGREEMENT PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE DAMAGES (EXCLUDING ONE-OFF, ONBOARDING/IMPLEMENTATION, OR UP-FRONT FEES).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE JURISDICTIONS, SUPPLIER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS SET FORTH IN THIS PARAGRAPH 9 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT ABSENT THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
10. Intellectual Property Rights
All Intellectual Property Rights in the Services (including Linnworks), the Software and the Documentation shall, as between the parties, be the exclusive property of the Supplier. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services, Software or the Documentation. All proprietary rights in the Services, including in the Software as well as any aggregate usage statistics, traffic patterns, and other non-personally identifiable data collected by Supplier in connection with use of the Services, will be the sole and exclusive property of Supplier. Supplier retains the royalty-free right to use any suggestions, ideas, feedback, or other recommendations provided by Customer or Authorised Users relating to the Services. Supplier may use Customer’s name and/or its logo on Supplier’s website and in its marketing materials to indicate that Customer is a client of Supplier. Customer hereby grants Supplier the right to contact Customer and Authorised Users in connection with their use of the Services unless otherwise stated on the Order Form.
11. Confidentiality and Publicity
Each Party shall, during and after the existence of this Agreement, hold in strictest confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other Party. Each Party shall not disclose Confidential Information without the prior written consent of the other Party, except to its employees, contractors, or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this paragraph. Information will not be deemed confidential if it: (a) was known to the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as evidenced by written records of the receiving Party; (b) is now or later becomes (through no act or failure on the part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (c) is supplied to the receiving Party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving Party without use of or reference to any Confidential Information provided by the disclosing Party. The restrictions on disclosure imposed by this paragraph do not apply to information that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief.
Upon termination of this Agreement, each Party shall promptly cease all further use of Confidential Information, return to the other Party all physical materials containing Confidential Information, whether the materials were originally provided by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information kept by either Party in electronic or other non-physical form. The Parties acknowledge that the receiving Party will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing on the receiving Party’s backup or disaster-recovery systems, or which must be maintained for regulatory or policy purposes. Such termination by either Party will not affect each Party’s continuing obligations under this paragraph.
Either party may terminate this Agreement upon: (a) any material breach of this Agreement by the other party that (if remediable) is not remedied within thirty (30) days (or within ten (10) days in case of failure to pay) following written notice thereof; (b) the other party is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case, or ceases substantially all of its business; or (c) the other party breaches paragraph 13j ("Compliance with Laws").
Upon expiration or termination of this Agreement or Services authorised in an Order Form, Customer shall immediately discontinue all access and use of the Services. In the event Customer terminates this Agreement for a material and uncured breach by Supplier, Supplier shall, as Customer’s sole and exclusive remedy, refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. In addition to any other remedies available to Supplier, Supplier may suspend Customer’s or any Authorised Users’ access to the Services, at Supplier’s sole option, in the event of any breach by the Supplier of this Agreement.
Upon termination or expiry of this Agreement the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and any applicable interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately upon receipt. All parties shall then return or destroy any and all Confidential Information belonging to either party. A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination or expiry of this Agreement if that party is obliged to retain such document by any law or regulation or other rule enforceable against that party or if such information is explicitly noted to survive the termination of this Agreement.
Each Party shall, and shall procure that any person associated with it performing services in connection with this Agreement shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption in England, including but not limited to the Bribery Act 2010. Breach of this paragraph shall be deemed a material breach, which is irredeemable, under paragraph 12.
b. Force Majeure
Neither party shall be liable to the other as a result of any delay or failure to perform their respective obligations under this Agreement as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 90 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Supplier.
c. Inadequacy of Damages
Without prejudice to any other rights or remedies that a party may have, the Parties acknowledge and agree that damages alone may not be an adequate remedy for any breach of the terms of this Agreement by a party. Accordingly, the parties shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
d. Relationship of the Parties
It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Supplier shall retain the right to perform services for others during the term of this Agreement.
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Either party may subcontract its obligations under this Agreement.
Customer shall not, without Supplier’s prior written consent, either during the Term or within 12 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of Supplier who has been involved in the performance of this Agreement.
g. Modification and Amendments
Other than as set out in this Paragraph 13g, no variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorised representatives.
Supplier, it its sole discretion, may modify this Agreement to, for example, reflect changes to the law, Platform, or Services provided to Customer by Supplier or related third-party. Customer should look at this Agreement regularly. Supplier will post notice of modifications of this Agreement, to the Supplier's website, and/or in a similar form of electronic communication to the Customer. If the Supplier considers that the modifications entail a material change to the terms of the Agreement, it shall notify the Customer. No such material change of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorised.
If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement.
The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
If any provision, or part of a provision, of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable law.
j. Compliance with Laws
Both Parties shall comply with all applicable laws, statutes and regulations from time to time in force in connection with their performance of their obligations and access/use of the Services under this Agreement.
k. Third party rights
Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
Either party may at any time assign, transfer or otherwise deal in any manner with its rights and obligations under this Agreement only with the prior written consent of the other party such consent not to be unreasonably withheld or delayed. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.
Without limiting the Supplier's rights under paragraph 5b above, either party may subcontract its obligations under this Agreement but not without the prior consent of the other party.
Any notice required to be given to a party under or in connection with this Agreement shall be in English and in writing (which includes email) and shall be delivered to the other party by hand or sent by recorded delivery to the address set out in the Order Form, for the attention of the person who signed such Order Form. Any notice shall be deemed to have been duly received if delivered by hand, when left at the address referred to above or, if sent by recorded delivery, on the second Business Day after posting or if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
n. Governing Law & Jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims), shall be governed by laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims).
o. Entire Agreement / Survival
This Agreement, together with the content of any web pages (as identified by any URLs contained herein), any exhibits, any future non-material modifications, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals, Customer purchase orders, non-disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under this Agreement, regardless of any failure of Supplier to object to such terms, provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of paragraphs: Paragraph 9 ("Warranties and Liabilities"), Paragraph 10 ("Intellectual Property Rights"), Paragraph 11 ("Confidentiality and Publicity"), Paragraph 13d ("Relationship of the Parties"), and Paragraph 13n ("Governing Law & Jurisdiction") and this Paragraph 13o ("Entire Agreement/Survival") shall survive any termination of this Agreement.