Extended Terms - Despatch Cloud

THIS FRAMEWORK CONTRACT COMPRISES OF

1. The Statement of Work(s); and
2. These Special Terms and Conditions and
3. The Data Processor Agreement: these govern the processing of Your personal data by Us.

This agreement is in place in order to allow the client (you) to use the services of Despatch Cloud (us) on behalf of itself or the clients of the customer.

The Provider and the Customer therefore wish to enter into a contract in accordance with the provisions of this Agreement.

The Special Terms and Conditions are for clients on contracts over 6 months.

We strongly advise you to pay careful attention to section 15 which deals with limitations of liabilities.

1.Definitions

1. In this Agreement, except to the extent expressly provided otherwise:
2. „Acceptance Criteria“ means:
  1. the Platform and Hosted Services conforming in all material respects with the Hosted Services Specification; and
  2. the Hosted Services being free from Hosted Services Defects;
3. „Acceptance Period“ means a period following the making available of the Hosted Services to the Customer for the purposes of testing the length of the period to be agreed
4. „Acceptance Tests“ means a set of tests designed to establish whether the Hosted Services meet the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Provider acting reasonably, and communicated to the Customer in advance of the first Acceptance Period
5. „Account“ means an account enabling the client to access and use the Hosted Services, the service may include a unlimited number of sub accounts where staff from the client can access the service;
6. „Affiliate“ means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
7. „Agreement“ means this agreement including any Schedules, and any amendments to this Agreement from time to time;
8. „Business Day“ means any weekday other than a bank or public holiday in England;
9. „Business Hours“ means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
10. „Change“ means any change to the scope of the Services
11. „Charges“ means the following amounts:
  1. the amounts specified in the statement of work;
  2. such amounts as may be agreed in writing by the parties from time to time; and
  3. amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider’s personnel performing the Support Services
  4. A charge for use in excess of the agreed limits (listed in the statement of work(s)
12. „Credit“ Bookkeeping units that describe the use of a function of the software, these are
  1. „Order“ The addition of a record in a Despatch Cloud System that has data (in full or in part) would enable goods to be shipped to a recipient.
  2. „Label“ a single API request sent to a courier to generate a label for the dispatch of a letter or packet
  3. „Hub“ is a single instance of a Despatch Cloud Order Management or Warehouse Management system, which is connected to the main client system and provided to be utilised by the clients of the Despatch Cloud client.
13. „Confidential Information“ means the Confidential Information of either party, provided as part of the relationship that is either described as confidential or would reasonably understood to be confidential
14. „Control“ means the legal power to control (directly or indirectly) the management of an entity (and „Controlled“ should be construed accordingly);
15. “Client Customer(s)” means the entity to which the customer, resells the service to, or otherwise enters into a contract with, to access the service or allows to use the Service.
16. „Customer Data“ means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
17. „Customer Personal Data“ means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;
18. „Customer Systems“ means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Hosted Service];
19. „Customisation“ means a customisation of the Hosted Services, whether made through the development, configuration or integration of software, or otherwise;
20. „Data Protection Laws“ means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) or UK equivalent;
21. „Documentation“ means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
22. „Effective Date“ means the date of execution of this Agreement;
23. „Expenses“ means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under this Agreement;
24. „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 the internet or any public telecommunications network, or hosting service, hacker attacks, denial of service 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);
25. „Hosted Services“ means the Despatch Cloud service, as specified in the Statement of Works, which will be made available by the Provider to the Customer as a service via the Internet in accordance with this Agreement;
26. „Hosted Services Defect“ means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
  1. any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
  2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
  1. a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
  2. an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
  3. „Insolvency Event“ means: in relation to a corporate entity, any of the following events:
  4. a petition is presented applying for an administration order to be made in respect of the other party or a petition is presented or notice is given or an order is made or an effective resolution is passed for the liquidation or winding up (or any similar judicial process) of the other party;
  5. the other party seeks or enters into any composition or arrangement for the benefit of its creditors or convenes a meeting for the purpose of making such arrangement or composition or suffers or permits any distraint or distress proceedings or an encumbrancer takes possession or an administrative receiver or a receiver or manager is appointed of all or any part of its assets or undertaking or if it takes or suffers any similar action in consequence of debt or a judgment is entered and is not paid out within seven days; or
  6. the other party ceases or threatens to cease to carry on its business or substantially the whole of its business or disposes of its undertaking or stops payment or threatens to stop payment of its debts as and when they fall due or is deemed to be unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986;
27. „Intellectual Property Rights“ means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these „intellectual property rights“ 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 and rights in designs);
28. „Maintenance Services“ means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
29. „Minimum Term“ means, in respect of this Agreement, the period of 12 months beginning on the Effective Date;
30. „Mobile App“ means any mobile application that is made available by the Provider through a website optimized for use on a mobile device, the Google Play Store and the Apple App Store or similar platform;
31. „Order Form“ means the part of the Statement of Works or Custom Work Scoping documentation whether physical or on-line confirming an order with Despatch Cloud Ltd which sets out the requested Service, the Subscription Term, payment schedule and payment due dates as agreed between the parties;
32. „Personal Data“ has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
33. „Platform“ means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
34. „Remedy Period“ means a period of 20 Business Days following the Customer giving to the Provider a notice that the Hosted Services have failed the Acceptance Tests or such other period as the parties may agree in writing;
35. „Schedule“ means any schedule attached to the main body of this Agreement;
36. „Services“ means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
37. „Set Up Services“ means the configuration, implementation and integration of the Hosted Services
38. „Support Services“ means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
39. „Term“ means the term of this Agreement,
40. „Third Party Services“ means any hosted or cloud services provided by any third party that may transmit data to and/or from the Hosted Services;
41. „Update“ means a hotfix, patch or minor version update to any Platform software;
42. „Upgrade“ means a major version upgrade of any Platform software.
43. „User“ means the individuals for whom a subscription has been ordered and who are authorised by you to access and use the Service, or a client of the customer, who has been vetted, bound by the same terms as the customer & authorised by the customer to access and use the service;
44. “We”, „Us“, “Our” „Provider“ „Supplier“ or “Despatch Cloud Ltd” means Despatch Cloud Ltd whose registered number is 09615192 and whose registered address is at Despatch Cloud Ltd, United 76, Warfield Road, Kellthorpe Industrial Estate, Kelleythorpe, Driffield, YO25 9FQ;
45. „Website“ means https://despatch.cloud or https://courierapi.co.uk/ or such other website or subdomains on which we may make the service available;
46. “you” means you, the person using our products, Services or visiting our Website and the company to which that person is a director, consultant, subcontractor, associate or an employee.

2. Term & Statement of Work

1. This Agreement is for the Initial Term and will continue for consecutive Further Terms or as set out in a Statement of Work unless terminated in accordance with clause 14.
2. This Agreement shall subsist for as long as at least one Statement of Work subsists. Termination of any one Statement of Work shall not affect any other Statement of Work, save where specified therein, although if grounds to terminate apply to the Agreement or to multiple Statements of Work, then each affected Statement of Work may be terminated simultaneously.
3. For the supply of further Despatch Cloud services, the parties shall agree a new Statement of Work. Unless an express statement to the contrary is included in a new Statement of Work, all Statements of Work will be governed by the Terms and Conditions attaching to the Statement of Work which has most recently been entered into between the parties.
4. If there is any conflict or inconsistency between any provision of these Terms and Conditions and any Statement of Work, these Terms and Conditions shall prevail unless specifically stated in writing in a Statement of Work, with explicit reference to this clause.
5. Each Statement of Work will be effective on execution by authorised signatories from each party and the Effective Date shall be deemed to be the date on which You executed the Statement of Work or such other date as set out on the Statement of Work
6. Despatch Cloud Ltd reserves the right to update or change this Agreement, the Data Protection Agreement & any Statement of Work with 6 months’ notice, provided in written form to the customer. Subject to
  1. For a period of 90 days after the client was made aware of any changes, the client will at their sole discretion, have the right to terminate any agreements for the provision of services that are affected by any change(s), immediately or within a set timeframe, in the event that, following any discussions with Despatch Cloud regarding changes made by Despatch Cloud to the agreement, the client (at their sole discretion acting reasonably) considers that such changes will have a material adverse impact on them.
  2. The client will have a period of 9 months to terminate according to clause 2.6.1, during which time the changes will not be in force and for the avoidance of doubt the Client will not be liable to any further charges other than those previously agreed. After 9 months the changes will be deemed to have been accepted.

3. Description of Service

1. The Service shall be provided to you as set out in the applicable Statement of Work. Any new features which are subsequently added to the Service during the Term shall also be, unless agreed otherwise in writing, subject to this Agreement.
2. Despatch Cloud Ltd cannot guarantee that the Service will be continuously available as the Service may be unavailable from time to time due to either:
  1. scheduled downtime for Service upgrades and/or maintenance; and/or
  2. any circumstances which are beyond Our reasonable control such as technical failures, subject to Despatch Cloud having taken reasonable steps to identify and mitigate such risks
3. Despatch Cloud will guarantee a 99.8% uptime, and that failure to achieve this average over a 3-month period will be considered a Hosted Service defect:
4. Despatch Cloud Ltd cannot guarantee any aspect of the Service which is reliant on third party services, such as Channels, Couriers, Hosting, ISPs, Internet Security Providers, Power, or critical sub-contracted services, beyond those guarantees provided by the relevant supplier. This is subject to reasonable care and attention by Despatch Cloud being applied to the selection of a vendor and taking reasonable steps to verify their competencies.
5. Where the Statement of Work or any addendum does not specify a limit on usage (such as the number or orders or the number of users) there is a fair usage cap. For client or Client Customers the number of users this will be set at 500 per account.

4. Terms of Use

1. In order to subscribe to our Service, each account must be connected to an individual person. In the circumstance where you are an organisation, each account must be assigned to an individual employee at that organisation. We cannot accept any subscriptions where accounts are registered or run through automated methods.
2. You must provide your
  1. full legal name
  2. a valid email address for the main point of contact
  3. your registered address
  4. Correspondence address (if different from the above)
  5. Contact details for your accounts department
  6. VAT number
  7. Credentials to access the systems required for the service to be provided
  Other information may requested by Despatch Cloud Ltd in order to complete the signup process, or to access services, or are required by agreed third parties (such as couriers) .
3. You are responsible for maintaining the security (including the accounts of those who you resell to) of your account login information (username & password and any third factor authentication service) Despatch Cloud Ltd cannot and will not be liable for any loss or damage from failure to comply with this security obligation. You must notify Us immediately in the event of loss of your username and password.
4. Despatch Cloud Ltd hereby grants you a limited, non-transferrable, exclusive licence to use and access the Service solely for your internal business purposes, provided that you shall not:
  1. licence, sub-licence, sell, resell (except when bound by these terms), rent, lease, transfer, assign, distribute or otherwise exploit the terms of this licence or make the Service available for access or use by any person(s) other than the Users, save as for is expressly permitted by this Agreement or authorised by Despatch Cloud Ltd;
  2. use the Service to process any data unlawfully or for any third party;
  3. allow any unauthorised access to, or use of, the Service. You must notify us immediately in the event that you become aware of any such unauthorised access to, or use of, the Service;
  4. modify, adapt, decipher, decompile, reverse engineer or otherwise attempt to determine the source code of the Software which makes up the Service except as otherwise expressly permitted by law;
  5. use the Service or allow the service to be used in an unlawful manner including, but not limited to, the infringement of any third party intellectual property rights or use of the Service in breach of any third party’s privacy rights;
  6. use the Service or allow the service to be used in a manner that interferes or disrupts with the provision of the Service by Despatch Cloud Ltd to third parties;
  7. use the Service or allow the service to be used to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses;
  8. use the Service or allow the service to be used to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person; or
  9. use the Service or allow the service to be used for any transmission, display or publication of any material in breach of the Data Protection Act 2018 (or any amending statute) dealing with data protection or similar legislation in any other country of any material which is confidential or is a trade secret.
5. You are responsible for ensuring that the Users (including those whom you resell to) comply with the terms of this Agreement and that Users do not access or use the Service in breach of this Agreement.
6. You may not transfer your concurrent licence to use and access the Service to any third party;
7. You may not use your account, or allow your account to be used for any illegal or unauthorised purpose. You must not, during your use of this Service, violate any laws in your jurisdiction (including, but not limited to copyright laws).
8. You may not adapt the service, (or allow the service to be adapted) in whole or in part in order to circumvent the fee structure.
9. You agree to indemnify Despatch Cloud Ltd against all and any losses, costs and expenses Despatch Cloud Ltd may incur as a result of any breach by you of this clause 4., up to the limit of the actual amount paid by or payable by you, to Despatch Cloud Ltd during the previous four (4) months of the Service.
10. Various services may be required to be set up on your account or data input, you are normally required to set these services and/or input the data up yourself and we may in rare circumstances, and at our sole discretion, set services or input data up on your behalf. In the event that you have set up the service and/or input data you are responsible for the data, both to verify that it is correct and that it is accurately input. Where services or data has been input by us you are solely and strictly liable to verify that the service has been set up and/or the data input correctly.

5. Account Billing, Invoicing and Refunds

1. 1. You shall be billed monthly for the Service in advance from the Effective Date of your subscription term for the minimum agreed volume, and monthly in arrears for the actual volume in excess of that volume. Or in advance for any ad hoc development or other mutually agreed work. Payments received from you by Despatch Cloud Ltd shall be on a non-refundable basis, subject to the terms of this agreement and the dispute resolution mechanism herein. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months where you have not used the service.
  2. Despatch Cloud Ltd reserves the right to suspend or terminate access to the Service upon 14 days written notice to you in the event of late or non-payment of Despatch Cloud Ltd’s invoices (except where late or non-payment relates to a dispute raised by you in good faith in relation to any invoice).
  3. Notwithstanding the payment schedule for the Services to which you have subscribed, certain Services requested by you, may incur additional charges which will be invoiced monthly to you, . We shall notify you in advance in writing of any additional charges applicable to your subscribed Services.
  4. If you choose to add any additional Service during your Initial or Renewal Period, payment terms for any additional Service shall be agreed in writing with Despatch Cloud Ltd and will be set out in a new payment schedule.
  5. Additional Users may be added to your account during your Subscription Term and an additional charge per user will be payable in line with your contract terms stated on the order form when added to the Service. These are laid out in the statement of work.
  6. If you experience account activity over the limits specified in the statement of work(s), Despatch Cloud Ltd will charge in arrears on the excess activity. Periods will be measured as complete months.
  7. At the conclusion of the Initial Term or any Further Term, We reserve the right to revert Fees to the then current list price.
  8. A client may request an upgrade at any point during this agreement, with 5 days notice, the update can be backdated or take effect at next invoice date, depending on agreement with the client.
  9. A client may request a downgrade with 30 days notice. The client may only downgrade when they have previously upgraded and may only downgrade to the plan on the contract.

6. Cancellation and Right to Monitor

1. 1. 1. Upon cancellation of an account, payment is to be made up to the end of the billing period you are in. Under no circumstances shall any refunds for non-use of the Service be given due to early termination of the Service by you without cause.
    2. Cancelled accounts will have their data archived in a secure backup facility for up to 1 month after cancellation, upon the expiry of which it will be automatically deleted. During such 1 month period you can elect to have this data extracted and supplied to you or alternatively deleted.
    3. Despatch Cloud Ltd recognises and confirms that the information from you contained in and processed by the Service is confidential. In the normal provision of the Service Despatch Cloud Ltd would not access or monitor your account. However, Despatch Cloud Ltd reserves the right to utilise such access in order to support, manage and protect the integrity of the Service (including but not limited to preventing illegal activity, uploading of virus-infected files or questionable material and for general customer support).

7. Right of Refusal

1. Despatch Cloud Ltd acting reasonably has the right to accept or decline trial and paid account requests in its sole discretion with no obligation to detail the reasoning behind such decision.

8. Modifications to the Service and Prices

1. Despatch Cloud Ltd reserves the right to increase prices at the renewal of the contract. Notice will be given of at least 60 days in advance of any price changes. In the event that you do not agree to any price increases of which you are notified, you may terminate this Agreement within the aforementioned 60 day notice period on written notice to Despatch Cloud Ltd.
2. In order to fulfil its obligations in managing and upgrading the Service, Despatch Cloud Ltd may at any time amend the Service (where this does not materially impact the core functions relied on by the client) and any documentation relating thereto for any reason including, but not limited to: legal, technical, or business considerations. Should any change have a material impact the Supplier will discuss it with the customer, explain why the change is required and take reasonable steps to mitigate the impact.
  1. For a period of 90 days after the client was made aware of any changes, the client will at their sole discretion, have the right to terminate any agreements for the provision of services that are affected by any change(s), immediately or within a set timeframe, in the event that, following any discussions with Despatch Cloud regarding changes made by Despatch Cloud to the Service, the client (at their sole discretion acting reasonably) considers that such changes will have a material adverse impact on them.
3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Despatch Cloud Ltd or any Despatch Cloud Ltd product.

9. Support

1. Telephone & Internet -based support is available between the hours displayed at https://dev.despatchcloud.com
2. A support ticket may be raised by you at any time but you acknowledge that Despatch Cloud Ltd will only respond during the hours detailed in section 9.1 above. Email support is available 24 hours, 5 working days per week (Monday to Friday excluding Holidays), and we aim to respond within one working day.
3. Optional Enterprise Plans are available and the support details and SLA will be attached to the relevant Statement of Work or Ammendum agreement.

10. Code and Data Ownership

1. Any data entered in your live account database or uploaded to the Service remain yours at all times and can be supplied if needed as a digital file upon request for this there will be a charge of £75 as an administration fee. For the avoidance of doubt, the client has access to their data through the API access provided under this agreement and through the portal provided to access the service with no additional charges.
2. Despatch Cloud Ltd does not pre-screen any content, but reserves the right to refuse or remove any content available via the Service which is illegal, subject to civil action, or hosting can reasonably be considered to be materially damaging to Provider, although you acknowledge and accept that Despatch Cloud Ltd are not obliged to monitor such content as a standard part of the Service provided.
3. Despatch Cloud Ltd houses all Software on servers which are either owned by Us or leased from third parties. A list of server locations can be provided on request. All hosting will comply with ISO27001 or equivalent standards. All hosting with be in the UK or EEA. Unauthorised distribution of the Software without prior consent is strictly prohibited and includes placing our Software on any physical or virtual servers or mediums without special agreement or written consent form Despatch Cloud Ltd.
4. The Despatch Cloud Ltd code will not be accessible for any account.
5. Despatch Cloud Ltd shall have the right to collect and analyse data and other information in relation to your use, provision and performance of the Services and Despatch Cloud Ltd will be free to:
  1. use such data and information (during the term of the agreement and thereafter) in an aggregated and anonymised form to create reports and improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Despatch Cloud Ltd offerings, and
  2. in connection with its business disclose data and information on an aggregated and anonymised basis to third party commercial partners and investors.

11. Data Loss & Backups

1. Despatch Cloud Ltd will not accept under any circumstances the liability for any loss of customer data whether that be through general use, hacking or server failure subject to maintaining such data security standards as are necessary to comply with the Agreement and ensure that you are not in breach of Data Protection Laws.
2. Despatch Cloud Ltd will operate one daily backup of the subscription account data and the server itself as a minimum. Additional backups may be listed in the statement of work.
3. Security Incident means where (i) any data which could, reasonably be, expected to remain secure (including but not limited to customer data) is intentionally or unintentionally disclosed to an unauthorised environment or recipient, or (ii) there is an unauthorised access to the data we process, or there is an attempt to do (i) or (ii).
4. Despatch Cloud will maintain a Security Incident Response plan which outlines the company’s response to a security incident, how to classify and triage the data lost and how to advise stakeholders including clients who are affected and regulatory authorities
5. As a minimum Despatch Cloud shall provide all reasonable cooperation with any Security Incident investigation carried out by You (or any customer of Yours), including (i) making our personnel available; and (ii) providing data and other information. We shall investigate and report to You on the cause of the breach, including proposed corrective action within 24 hours of the Security Incident.

12. Confidentiality

1. Despatch Cloud Ltd will at all times be committed to ensuring the confidentiality of information. Any information submitted by the customer will only be used by Despatch Cloud Ltd in accordance with the instructions of the customer or in accordance with the terms of this agreement.
2. Each party agrees and undertakes that during the term of this Agreement and thereafter it will keep confidential, and will not use for its own purposes, any information of a confidential nature (including without limitation trade secrets and information of commercial value) which may become known to that party from the other party („Confidential Information“) nor without the prior written consent of the other party disclose to any third party any Confidential Information unless the Confidential Information:
  1. is in the public domain at the Effective Date of this Agreement;
  2. is already known to that party at the time of disclosure;
  3. becomes public knowledge other than by breach of this Agreement; or
  4. subsequently comes lawfully into the possession of that party from a third party who is under no obligation of confidentiality.
3. To the extent necessary to implement the provisions of this Agreement each party may disclose the Confidential Information to those of its employees and sub-contractors as may be reasonably necessary to perform its obligations under this Agreement, provided that before any such disclosure each party shall make those employees and sub-contractor aware of its obligations of confidentiality under this Agreement and shall at all times procure compliance by those employees and sub-contractors with this clause 12.
4. Specifically, the terms of the Statement of Works and any other individual agreement between Despatch Cloud and You, that is not publicly available is considered confidential. Without prejudice to any other rights or remedies that each party may have, you acknowledge and agrees that damages alone would not be an adequate remedy for any breach of this clause. Accordingly, We shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this agreement.

13. Warranty

1. Despatch Cloud Ltd warrants that:
  1. it has the right to provide the Service and any accompanying materials as contemplated under this Agreement and that each of the foregoing, and their provision in accordance with the terms of this Agreement, does not and will not infringe the Intellectual Property Rights or other rights of any third party;
  2. the Service will operate and function as defined by the Statement of Work (s) or described on the website, or where additional service agreements have been agreed by a specification providing in writing;
  3. the Service will be provided with all due care, skill and diligence and by means of reasonably and appropriately qualified and skilled personnel.
2. Although Despatch Cloud Ltd does not warrant that the Service supplied hereunder shall be free from all unknown viruses, Despatch Cloud Ltd warrants that it has checked the Software for the most commonly known viruses.
3. Except as expressly set out in this Agreement and subject only to clause 15.1, no implied conditions, warranties or other terms, including any implied term relating to satisfactory quality or fitness for any purpose, will apply to the Service or to anything else supplied or provided by Despatch Cloud Ltd under this Agreement.

14. Termination

1. Either Party may terminate this Agreement without cause, with 60 days prior written notice to the Other Party, to take effect only at the end of each term.
2. The customer may terminate this Agreement immediately in writing to Despatch Cloud Ltd if the Service and/or any material functionality of the Service is unavailable or inaccessible to you and your Users for either
  1. more than three (3) consecutive days; or
  2. more than five (5) days in any thirty (30) day period as a result of the fault or failure of Despatch Cloud Ltd.
  and in the event of such termination, Despatch Cloud Ltd shall refund the customer in respect of any Charges relating to unused Services on a pro rata basis.
3. Without prejudice to any other rights to which it may be entitled:
  1. either party may terminate this Agreement with immediate effect if the other party commits any material breach of any of the terms herein and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified under this sub-clause 14.3.1 of the breach, such notice to refer to the notifying party’s intent to terminate this Agreement unless the breach is remedied; or
  2. either party may terminate this Agreement with immediate effect if the other suffers an Insolvency Event; or
  3. in the case of a force majeure event as specified under the “Force Majeure” section below, either party may terminate this Agreement with immediate effect pursuant to that Clause.
4. Despatch Cloud Ltd may, as an alternative to sub-clause 14.3.1 above, cancel your access to the Service with immediate effect if you are in material breach of any obligation in this Agreement.
5. Verbal, physical, written or other abuse (including threats of abuse or retribution) directed towards any Despatch Cloud Ltd customer or employee will result in immediate account termination.
6. Despatch Cloud Ltd reserves the right to terminate or suspend any or all of its customer accounts if reasonably necessary, subject to reasonable steps being taken to communicate the reason why, to take reasonable steps to mitigate the effects on the client, and outline a time frame or steps needed to restore the service. Use of the clause would only be in extreme circumstances, and where no other reasonable course of action was available, discretion will be used. (Any action may be taken if needed for example, to ensure server integrity for other customers).
7. Upon termination of the agreement all amounts owing to Despatch Cloud Ltd, become due immediately. For the avoidance of doubt under this agreement, there are no new liabilities after the termination of the agreement, except where a subsequent agreement has been mutually agreed between the parties. This clause is subject to the Alternative Dispute Resolution mechanism.
8. All written notifications of termination are required to be sent by email to [email protected] or by registered mail to the address on our contacts page.

15. Liability

1. Despatch Cloud Ltd.’s liability:
  1. for death or personal injury caused by its negligence;
  2. for fraud or fraudulent misrepresentation or any other fraudulent act or omission;
  3. for breach of any obligations implied by section 2 of the Supply of Goods and Service Act 1982;
  4. or for any other liability which may not lawfully be excluded or limited; and under the intellectual property indemnity provided in clause 19.2 , is not excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case
2. Neither party shall be liable for any indirect, incidental, special, consequential or exemplary damages including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Despatch Cloud Ltd has been advised of the possibility of such damages), whether such liability arises due to an indemnity, tort, negligence, breach of contract, misrepresentation or for any other reason.
3. Subject to Clauses 15.1 and 15.2, Despatch Cloud Ltd.’s total aggregate liability for any:
  1. account subscription Service under or in relation to this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the actual amount paid by or payable you to Despatch Cloud Ltd during the previous four (4) months of the Service, save in respect of matters pertaining to those addressed in Clause 15.3.2 below for which the liability cap identified therein shall apply; or
  2. breach of Clause 18 and/or liability otherwise arising in connection with any breach of the Act and/or any other relevant data protection legislation or any security obligations set out in a Statement of Work (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the sum of £100,000, except where such losses or damage resulted from Despatch Cloud’s gross negligence or wilful default.
4. Except for any fees owing to Despatch Cloud, your total aggregate liability under this Agreement is limited to the actual amount paid by or payable you to Despatch Cloud Ltd during the previous four (4) months of the Service.;
5. Unless otherwise agreed in writing, if you have software developed for you either by Us or by a third party which is unique to your instance of the service or is not generally available to other clients (bespoke service), you are responsible for ensuring that any update or revision to the service is tested to ensure that both the service we provide and the bespoke service is not in conflict.

16. Renewal

1. At the end of the Initial term if the agreement has not been terminated within the terms of Clause 14, this agreement will auto renew for a period of 12 months.

17. Restricted Content

1. Uploading any restricted content as listed below may result in immediate account termination. You must not upload, post, host, process or transmit the following items to or from the Service including but not limited to:
  1. Unsolicited email, SMS’s, or “Spam” messages, where these are defined as any message irrespective of mode of transmission, which is not directly related to the processing of the clients order;
  2. Worms, viruses or code of a destructive nature; or
  3. Questionable or Illegal material. (Including copyrighted material); or
  4. Data which breaches any provisions of the Data Protection Act 2018.

18. Data Protection

Use of our services requires acceptance of our Data Processing Agreement which is found here
https://dev.despatchcloud.com/data-processing-agreement/

19. Intellectual Property Rights

1. The Intellectual Property Rights in the Service and any hardware or Software used in connection with the Service is and will at all times remain Despatch Cloud Ltd’s property or that of Despatch Cloud Ltd’s licensors. This includes, but not limited to, the software code, and unique business process.
2. In the event that the Service infringes any third party rights, Despatch Cloud Ltd will indemnify you against any loss or damage and shall defend and/or settle any third party claim that the Service infringes provided always that you promptly notify Despatch Cloud Ltd of any such claim in writing, give Despatch Cloud Ltd the sole control of any such action or proceedings and give Despatch Cloud Ltd such assistance as it may reasonably require to settle and/or defend such action or proceedings. Any award of costs and/or damages shall belong to Despatch Cloud Ltd in such event, Despatch Cloud Ltd shall, at its option:
  1. procure for you the right to continue to use the Service;
  2. make the Service available without infringing so far as Despatch Cloud Ltd is aware any third-party Intellectual Property Rights; or
  3. terminate this Agreement forthwith on written notice to you.
3. The indemnity in Clause 18.2 above shall not apply to any infringement resulting from:
  1. use of the Service which does not comply with the uses permitted under this Agreement;
  2. any modification or change to the Service carried out by Despatch Cloud Ltd on your request; or
  3. the combination of the Service with any third party product and/or Service or modification undertaken by you without the prior written consent of Despatch Cloud Ltd.
4. Use of the service means that unless you opt out in writing, Despatch Cloud Ltd has the option at their sole discretion to disclose the existence of the relationship to third parties, for the purpose of the marketing of Despatch Cloud Services. This includes reasonable use of the company name, brand and/or logo.

20. Force Majeure

1. 1. The obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by any cause beyond its reasonable control such as an Act of God, flood, fire, earthquake, terrorism, riots, civil disorders, strikes, lockouts or other forms of industrial action on the part of Despatch Cloud Ltd staff. In the event that the cause continues for more than thirty (30) consecutive days, either party may terminate this Agreement immediately upon written notice to the other party in accordance with Clause 14.3.3 under the “Termination” section above.

21. General

1. Nothing in this Agreement is intended to confer on a person any right to enforce any term of this Agreement which that person would not have had but for the Contract (Rights of Third Parties) Act 1999.
2. Neither party is entitled to transfer or assign this Agreement without the other parties prior written consent. Consent must not be unreasonably withheld
3. All disputes between the parties arising out of or relating to this Agreement or the breach, termination or validity thereof shall be referred by either party in writing, first to each party’s representative. The representatives shall meet and attempt to resolve the dispute within a period of thirty (30) working days from the date of referral of the dispute to them.
4. All notices in relation to this Agreement must be in English, in writing, addressed to the other party and sent to your address set out on your Order Form or to our email address (as applicable) or such other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address.
5. This Agreement and any Order Form/Statement or work(s) sets out all terms agreed between the parties and supersedes and extinguishes all previous agreements, representations, misrepresentations, arrangements and understandings between the parties, whether written or oral, relating to its subject matter.
6. Each party acknowledges that, in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, misrepresentation, representation or warranty (whether made negligently or innocently) and whether made by either party, orally or in writing, prior to the execution of this Agreement and not expressly set out in this Agreement or any Order Form.

22. Non-Solicitation

1. You must not, for the duration of the term and for a period of 12 months following termination of this agreement, either directly or indirectly, whether on you own account or on behalf of another person or entity:
2. seek to become, or become, the employer of any staff member or contractor of Despatch Cloud;
3. set up or form a company, partnership, joint venture or other business concern with a staff member or contractor of Despatch Cloud;
4. solicit, entice or procure any staff member or Contractor of Despatch Cloud to leave the employment of the First Party or terminate its commercial relationship with the Despatch Cloud;

23. Dispute resolution

1. A Hosted Service Defect event will trigger an automatic review by the Supplier with the Customer, within 3 working days the Supplier must provide an explanation for the defect and a plan to ensure that the service returns to standard. Failure to comply or remedy effectively could be escalated to a dispute by the customer
2. If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so using a mutually agreed third party registered with https://civilmediation.org. Unless otherwise agreed between the parties the mediation should be entered into within 14 days of notice of the dispute.
3. If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration, the arbitrator will be nominated by the mediator.

24. Governing Law

1. This Agreement shall be governed by and construed in accordance with the laws of England and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts. Notwithstanding the foregoing nothing herein shall preclude either party from seeking injunctions from any court of competent jurisdiction in order to protect its intellectual property rights or confidential information