We’ll be happy to help you If you’ve questions about this Addendum. Please email them to [email protected] and we’ll do our best to give you practical answers.
(A) References to the term "Data Processing Addendum" means this Addendum and the following schedules attached hereto:
Services, Processing, Personal Data and Data Subjects
(B) This Data Processing Addendum (DPA) forms part of the Salesorder.com .
(C) The Parties have agreed to enter into this Agreement to ensure compliance with the said provisions of the applicable data protection legislation (“Data Protection Legislation”) relating to the processing of Personal Data in relation to all processing of Personal Data by the Processor for the Controller.
The terms and expressions set out in this Agreement shall have the following meanings:
1.1. Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
1.2. “Controller”, “Processor”, “Processing” and “Data Subject” shall have the meanings given to them in the Data Protection Legislation; For the avoidance of doubt we Salesorder.com are the Processor and you our Customer are the Controller.
1.3. ICO means the Information Commissioner’s Office;
1.4. Personal Data means all such “personal data” as defined in the Data Protection Legislation as is, or is to be, processed by the Processor on behalf of the Controller;
1.5. Services means those services described in Schedule 1 which are provided by the Processor to the Controller and which the Controller uses for the purpose[s] described in Schedule 1.
1.6. “Security Measures” means the security measures set out in Schedule 2
1.7. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.8. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.9. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.10. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.11. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.12. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.13. Agreement and Addendum are one and the same.
Acceptance of our means you agree to this Salesorder.com Data Processing Addendum (DPA) which forms a part of the Salesorder.com .
The Parties agree that in the event of any conflict between the and this Addendum, the provisions of this Addendum shall control.
4. Scope of Processing
4.1. The Controller determines the purposes and means of the processing of Personal Data. The Controller shall comply with its obligations pursuant to Data Protection Legislation, including responsibility to ensure necessary legal basis for collecting, processing and transfer of Personal Data.
4.2. The terms of this Agreement supersede any other arrangement, understanding or agreement made between the Parties at any time relating to protection of Personal Data.
4.3. This Agreement concerns the Processor's processing of Personal Data on behalf of the Controller in connection with the Processor's provision of the Services or otherwise as described in Schedule 1.
4.4. The nature and the purpose of the processing, including operations and activities, are specified in Schedule 1 but the Processor is only to carry out the Services, and only to process Personal Data received from the Controller:
(a) for the purposes of those Services and not for any other purpose;
(b) to the extent and in such manner as is necessary for those purposes; and
(c) strictly in accordance with the express authorization and instructions of designated contacts at the Controller (which may be specific instructions or instructions of a general nature or as otherwise notified by the Controller to the Processor).
4.5. The Processor, its Sub-processors, and other persons acting under the authority of the Processor who has access to the Personal Data shall process the Personal Data only on behalf of the Controller and in accordance with the Processing Agreement, unless otherwise stipulated in applicable statutory laws.
4.6. The Processor shall immediately inform the Controller if, in the Processor's opinion, an instruction infringes the Data Protection Legislation.
4.7. The Processor shall promptly respond to any request from the Controller requiring the Processor to amend, transfer or delete the Personal Data.
4.8. The Processor agrees to comply with any reasonable measures required by the Controller to ensure that its obligations under this Agreement are satisfactorily performed in accordance with the Data Protection Legislation and all applicable legislation from time to time in force and any best practice guidance issued by the ICO.
4.9. Where the Processor processes Personal Data (whether stored in the form of physical or electronic records) on behalf of the Controller it shall:
(a) process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Controller or as is required by law or any regulatory body including but not limited to the ICO;
(b) 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 Processor shall, with regard to Personal Data, implement and maintain appropriate technical and organizational security measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR
(c) in assessing the appropriate level of security, the Processor shall take account in particular of the risks that are presented by the nature of such Processing activities, and particularly those related to possible Personal Data Breaches.
(d) any transfer of Personal Data is subject to the Data Protection Legislation’s standard contractual clauses or other legal basis for such transfer or disclosure;
4.10. The Processor shall notify the Controller (within two working days) if it receives:
(a) a request from a data subject to have access to that person’s Personal Data; or
(b) a complaint or request relating to the Controller’s obligations under the Data Protection Legislation.
4.11. The Processor agrees to provide the Controller with full cooperation and assistance in relation to any complaint or request made, including by:
(a) providing the Controller with full details of the complaint or request;
(b) complying with a data access request within the relevant timescale and in accordance with the Controller’s instructions;
(c) providing the Controller with any Personal Data it holds in relation to a data subject (within reasonable timescales required by the Controller);
(d) providing the Controller with any information requested by the Controller;
(e) notify the Controller immediately if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any of the Personal Data.
5.1. Where the Controller is entitled to and desires to review the Processor's compliance with the EU Data Protection Laws, the Controller may request, and the Processor will allow the Controller (subject to obligations of confidentiality) or an independent auditor appointed by the Controller to conduct audits (including inspections) to verify the Processor's compliance with its obligations under this Data Processing Agreement in accordance with Section 5.2 (Additional Business Terms for Reviews and Audits). The Controller will be responsible for any fees charged by any auditor appointed by the Controller to execute any such audit.
5.2. Additional Business Terms for Reviews and Audits. The Processor may object in writing to an auditor appointed by the Controller to conduct any audit under Section 5.1 if the auditor is, in the Processor's reasonable opinion, not suitably qualified or independent, a competitor of the Processor, or otherwise manifestly unsuitable. Any such objection by the Processor will require the Controller to appoint another auditor or conduct the audit itself.
5.3. No Modification of MCCs. Nothing in this Section 4 (Controllers Audit Rights) varies or modifies any rights or obligations of the Controller or the Processor under any Model Contract Clauses entered into as described in Section 9.2 (Transfers of Data Out of the EEA).
6.1. The Processor shall implement appropriate technical and organisational measures as stipulated in Data Protection Legislation and/or measures imposed by the ICO to ensure an appropriate level of security and these are outlined in Schedule 2.
6.2. The Processor shall assess the appropriate level of security and take into account the risks related to the processing, including risk for accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
6.3. All transmissions of Personal Data between the Processor and the Controller or between the Processor and any third party shall be done by means of adequate encryption agreed between the Parties.
6.4. The Processor shall provide the Controller with general descriptions of the Processor's and its Sub-processors' on the (to the extent that the Processor has access to such Sub-processors information) technical and organisational measures implemented to ensure an appropriate level of security.
6.5. The Processor shall provide reasonable assistance to the Controller, taking into account relevant information available to the Processor, if the Controller is obliged to perform an impact assessment and/or consult ICO in connection with the processing of Personal Data. The Controller shall bear any costs accrued by the Processor related to such assistance.
6.6. The Controller is solely responsible for its use of the Services including:
(a) using the Services appropriately and ensuring a level of security appropriate to the risk in respect of the Personal Data.
(b) securing the Salesorder.com account user’s authentication credential’s systems and devices the Controller and its trading partners including a not restricted to Customers, Suppliers and Advisors.
(c) backing up both its Personal Data, other Data; and
6.7. The Processor has no obligation to protect any Personal Data or other Data the Controller elects to stores outside of systems belonging to the Processor.
6.8. The Controller is solely responsible for reviewing and evaluating for itself whether the Services and the Security measures and the commitments made under this Section 6 will meet the Controller’s needs, including with respect to the any security obligations of the Controller under GDPR or any other Data protection regulation.
7.1. The Controller must provide the Processor with an email address and telephone number (Agreement Acceptance) so as the Processor can notify the Controller about any Breach or Data incident. The Controller is solely responsible for making sure the email address and telephone number is current and valid.
7.2. The Processor shall notify the Controller without undue delay after becoming aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed ("Personal Data Breach"). The Controller is responsible for notifying the Personal Data Breach to the ICO within 72 hours of any such breach.
7.3. The notification to the Controller shall as a minimum describe (i) the nature of the Personal Data Breach including where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (ii) the likely consequences, in the reasonable opinion of the Processor, of the Personal Data Breach; (iii) the measures taken or proposed to be taken by the Processor to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
7.4. The Processor’s notification of or response to a Breach or Data Incident will not be construed as an admission by the Processor of any liability whatsoever.
7.5. In the event the Controller is obliged to communicate a Personal Data Breach to the Data Subjects, the Processor shall assist the Controller, including the provision, if available, of necessary contact information to the affected Data Subjects. The Controller shall bear any costs related to such assistance provided by the Processor and to such communication to the Data Subject. The Processor shall nevertheless bear such costs if the Personal Data Breach is caused by circumstances for which the Processor is responsible.
8.1. Consent to Subprocessor Engagement. the Controller specifically authorizes the engagement of the Processor’s Sub-processors. In addition, the Controller generally authorizes the engagement of any other third parties as Subprocessors
8.2. The Processor shall ensure that its data protection obligations set out in this Agreement and the Data Protection Legislation are imposed to any Sub-processors by way of a written agreement. Any Sub-processor shall in particular provide sufficient guarantees to implement appropriate technical and organisational measures to comply with Data Protection Legislation. The Processor shall not be liable to the Controller for the performance of any Sub-processor.
8.3. Information about Sub-processors. Information about Sub-processors, including their functions and locations, is available on our . (as may be updated by the Processor from time to time in accordance with this Data Processing Addendum).
8.4. Requirements for appointing a Subprocessor. When appointing any Subprocessor, the Processor will ensure via a written agreement that:
(a) the Sub-processor only accesses and uses the Controller Data to the extent required to perform the obligations agreed with it, and does so in accordance with the applicable Agreement (including this Data Processing Addendum) and any Model Contract Clauses entered into or Alternative Transfer Solution adopted by the Processor as described in Section 9.2 (Transfers of Data Out of the EEA); and
(b) if the GDPR applies to the processing of Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in this Data Processing Amendment, are imposed on the Sub-processor; and
(c) remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Sub-processor.
8.5. Opportunity to refuse or object to Subprocessor Changes.
(a) When any new Third Party Sub-processor is engaged during the applicable Term, the Processor will, at least 30 days before the new Third Party Subprocessor processes any Personal Data, inform Controller of the engagement (including the name and location of the relevant subprocessor and the activities it will perform).
(b) Controller may object to any new Third Party Subprocessor by terminating the applicable Master Subscription Agreement immediately upon written notice to the Processor, on condition that the Controller provides such notice within 90 days of being informed of the engagement of the subprocessor as described in Section 8.5(a). This termination right is the Controller’s sole and exclusive remedy if the Controller objects to any new Third Party Subprocessor.
9.1. Processing and Data Storage facilities. Controller agrees that the Processor may, subject to Section 9.2 (Transfers of Data Out of the EEA), store and process the Personal Data in the United States and any other country in which the Processor or any of its Sub-processors maintains facilities.
9.2. Transfers of Data outside of the EEA.
(a) The Processor’s Transfer Obligations. If the storage and/or processing of Personal Data (as set out in Section 9.1 Processing and Data Storage facilities) involves transfers of Personal Data out of the EEA and the European Data Protection Legislation applies to the transfers of such data (“Transferred Personal Data”), the Processor will:
(b) if requested to do so by Controller, ensure that the Processor as the data importer of the Transferred Personal Data enters into Model Contract Clauses with Controller as the data exporter of such data, and that the transfers are made in accordance with such Model Contract Clauses; and/or
(c) offer an Alternative Transfer Solution, ensure that the transfers are made in accordance with such Alternative Transfer Solution, and make information available to Controller about such Alternative Transfer Solution.
9.3. Controllers Transfer Obligations. In respect of Transferred Personal Data, Controller agrees that:
(a) if under the European Data Protection Legislation the Processor reasonably requires the Controller to enter into Model Contract Clauses in respect of such transfers, Controller will do so; and
(b) if under the European Data Protection Legislation the Processor reasonably requires the Controller to use an Alternative Transfer Solution offered by the Processor, and reasonably requests that the Controller take any action (which may include execution of the Controller will do so.
9.4. The Controller (as “data exporter”) and the Processor (as “data importer”) hereby enter into, as of the Addendum Effective Date, the which are incorporated by this reference and constitute an integral part of this Addendum. The Parties are deemed to have accepted and executed the in their entirety, including the appendices.
10.1. Salesorder.com team members are required to conduct themselves in a manner consistent with Salesorder.com’s business ethics, appropriate usage, and professional standards. We conduct appropriate background checks to the extent legally permissible and in accordance with applicable local labor law and statutory regulations.
10.2. Personnel are required to execute a confidentiality agreement and must acknowledge receipt of, and compliance with, Salesorder.com’s Data Protection, Confidentiality and Privacy policies and guidelines.
11.1. Each party warrants to the other that it will process the Personal Data in compliance with this Agreement and in accordance with the Data Protection Legislation.
11.2. The Parties shall each be liable for and shall indemnify (and keep indemnified) each other against each and every action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and disbursements on a solicitor and client basis) and demand incurred by the other which arise directly or in connection with any data processing activities which are subject to this Agreement.
12.1. The Processor shall maintain the Personal Data processed by the Processor on behalf of the Controller in confidence, and in particular, unless the Controller has given written consent for the Processor to do so, the Processor shall not disclose any Personal Data supplied to the Processor by, for, or on behalf of, the Controller to any third party. The Processor shall not process or make any use of any Personal Data supplied to it by the Controller otherwise than in connection with the provision of the Services to the Controller.
12.2. The Controller is subject to a duty of confidentiality regarding any documentation and information, received by the Processor, related to the Processor's and its Sub-processors' implemented technical and organisational security measures.
12.3. The obligations in this Clause 7 shall continue for a period of five years after the cessation of the provision of Services by the Processor to the Controller. Nothing in this Agreement shall prevent either party from complying with any legal obligation imposed by the ICO or a court. Both parties shall however, where possible, discuss together the appropriate response to any request from the ICO or court for disclosure of information.
13.1. The Processing Agreement is valid for as long as the Processor processes Personal Data on behalf of the Controller.
13.2. In the event of the Processor's breach of the Processing Agreement, the Controller may (i) instruct the Processor to stop further processing of Personal Data with immediate effect; (ii) terminate the Processing Agreement with immediate effect; and/or (ii) claim damages for direct economic loss caused by the Processor's breach, subject always to the provisions (including limitation of liability provisions) of the Master Subscription Agreement and other agreements(s) pursuant to which the Services are provided.
13.3. The Processor shall, upon the termination of this Agreement and at the choice of the Controller, delete or return all the Personal Data to the Controller, unless otherwise stipulated otherwise in the Data Protection Legislation. The Processor shall document in writing to the Controller that deletion has taken place.
14.1. This Agreement may only be amended by the Parties subject to mutual consent and in accordance with the Data Protection Legislation.
14.2. The Processor shall not sub-contract to any third party any of its rights or obligations under this Agreement save for where permitted by the Parties under this Agreement.
14.3. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.4. This Agreement shall be governed by the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.
Services
The “Services” referred to in Sub-Clause 1.5 means the software Salesorder.com as described on the Processor’s website and includes Pre-Sales inquiries and Technical Support.
The Controller uses the Services for the following purposes: Administering the Controller’s Business and providing the Controller’s Products and Services to its Customers.
Processing
The Personal Data will be subject to the following basic processing activities as detailed here on our .
Personal data
The Personal Data processed concern the following type and categories as displayed here on our .
Data subjects
The Personal Data processed concern the following categories of Data Subjects:
The Controller’s employees
Contact persons at the Controller’s Customers
The Controller’s subcontractors’ employees
The Controller’s Customers and Suppliers
The following are the Security Measures referred to in Sub-Clauses 1.6 and section 6:
The Processor will ensure that in respect of all Personal Data it receives from or processes on behalf of the Controller it maintains security measures to a standard appropriate to:
1.1. the harm that might result from unlawful or unauthorised processing or accidental loss, damage or destruction of the Personal Data; and
1.2. the nature of the Personal Data.
In particular the Processor shall:
2.1. have in place and comply with a security policy which:
2.1.1. defines security needs based on a risk assessment;
2.1.2. allocates responsibility for implementing the policy to a specific individual or members of a team;
2.1.3. is disseminated to all relevant staff; and
2.1.4. provides a mechanism for feedback and review.
2.2. ensure that appropriate security safeguards and virus protection are in place to protect the hardware and software which is used in processing the Personal Data in accordance with best industry practice;
2.3. prevent unauthorised access to the Personal Data;
2.4. ensure its storage of Personal Data conforms with best industry practice such that the media on which Personal Data is recorded (including paper records and records stored electronically) are stored in secure locations and access by personnel to Personal Data is strictly monitored and controlled;
2.5. have secure methods in place for the transfer of Personal Data whether in physical form (for instance, by using couriers rather than post) or electronic form (for instance, by using encryption);
2.6. put password protection on computer systems on which Personal Data is stored and ensure that only authorised personnel are given details of the password;
2.7. take reasonable steps to ensure the reliability of employees or other individuals who have access to the Personal Data;
2.8. ensure that any employees or other individuals required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Agreement;
2.9. ensure that none of the employees or other individuals who have access to the Personal Data publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Controller;
2.10. have in place methods for detecting and dealing with breaches of security (including loss, damage or destruction of Personal Data) including:
2.10.1. the ability to identify which individuals have worked with specific Personal Data;
2.10.2. having a proper procedure in place for investigating and remedying breaches of the data protection principles contained in the Act; and
2.10.3. notifying the Controller as soon as any such security breach occurs.
2.11. have a secure procedure for backing up and storing back-ups separately from originals;
2.12. have a secure method of disposal of unwanted Personal Data including for back-ups, disks, print outs and redundant equipment; and
2.13 adopt such organisational, operational and technological processes and procedures as are required to comply with the requirements of ISO/IEC 27001:2013 as appropriate to the Services provided to the Controller.
how the Controller will use Salesorder.com to process Personal data
all the categories of personal data that the Controller will process in Salesorder
all the categories of individuals whose personal data the Controller will process in Salesorder
Security Measures
Once you log into our System or Learn.salesorder.com, we will consider that you have confirmed your acceptance of our Terms of Use.
If you accept these terms on behalf of a company or other legal person, you warrant and represent that that company or person fully authorizes you to enter into the Agreement.
Data Privacy: You accept the terms of these Terms of Use (“Agreement”) and, if relevant to you, the , which provides additional clauses to meet Data protection regulations such as GDPR. You or your users must not log into the System if you cannot accept these terms.
“we” means Salesorder Ltd, a limited company incorporated in England and Wales (registration number 05836428) having its registered office at the care of Archer, Evrard & Sigurdsson LLP, Forfar House, 97 Balham Park Road, London SW12 8EB (and “us” and “our” will be construed accordingly); and
“you” means the company, partnership, sole trader, or other person specified as our customer on the Registration Form (and “your” will be construed accordingly).
“Affiliate” means a company, firm, or individual that Controls, or is Controlled by, or is under common Control with the relevant company or firm;
“Agreement” means the agreement between the parties incorporating these Terms and Conditions and any Registration Form and any amendments to it from time to time;
“Authorized User” means your employees, officers, and independent contractors who we authorize to use the System;
“Billing Period” normally means one calendar month or the period agreed with you.
“Business Day” means any weekday other than a bank or public holiday in England or the USA;
“Business Hours” means between 08:00 and 18:00 on a UK Business Day;
“Change” means any change to the terms of this Agreement (including, for the avoidance of doubt, any change to Software Enhancements specified in the requirements specification);
“Confidential Information” means:
(a) any information supplied (whether supplied in writing, orally or otherwise) by us to you marked as “confidential,” described as “confidential,” or reasonably understood to be confidential;
(b) the financial terms of the Agreement, and
(c) Authorized Users' usernames and passwords.
“Control” means:
(a) the legal power to directly or indirectly control the management of a company, firm, or other entity;
(b) the right to select the majority of the directors (or their equivalent) of a company, firm, or other entity and/or
(c) ownership of more than 50% of the voting shares in a company;
And “Controlled” will be construed accordingly;
“Customer Data” means all data, information, documents, databases, software, and other works and materials provided by you for storage in and/or processing via the System;
"Effective Date" means the date this Agreement was executed, which is the date you first accessed the System;
“Enhancement Services” means all the services provided or to be provided by us to us in connection with Software Enhancements;
“Fees” means the fees payable under Clause 8, which include:
Throughput Fee (TFee): calculated by multiplying last month's revenue by the Throughput Percentage Rate (TPR).
Throughput Percentage Rate: the multiplying percentage, i.e. 0.39%.
Minimum Throughput Fee (MTFee): A minimum fee is applied if your last month's revenue is lower than the Throughput Revenue threshold published on our website, Salesorder.com, on the Pricing Page.
Throughput Fee Plus (TFee+):
“First Line Support Services” means support services provided in relation to the configuration of the System and/or the use of the System;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including hacker attacks, denial of services attacks and other malicious user attacks, virus and other malicious software attacks and infections, problems with the internet or a part of the internet, third party network communication problems, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Go Live” means you are using the System to manage your day-to-day operations.
“Go Live Date” means a date confirmed in writing by you to us at which you will commence live operations using our System.
“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 the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Master Administrator” means the person you appoint to be primarily responsible for communicating with us in relation to the Agreement, as specified in the Registration Form and updated from time to time by you in the System;
“Month” means a calendar month (and “Monthly” will be construed accordingly);
“Personal Data” means personal data (within the meaning given to the phrase in the Data Protection Act 1998) comprised in the Customer Data with regards to UK users and information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual (particularly, consumer or household) with regards to US users;
‘Plugins' means additional software code (Software Enhancements or Script) you elect to add to the System or is added by us to the System as you instructed;
“Registration Form” means the HTML form(s) completed by you as part of the process of applying to receive the Services under the Agreement;
“Second Line Support Services” means support in relation to faults and errors in the System, the interoperability of the System with any Third Party System, and other technical issues (excluding First Line Support Services);
“Services” means the services supplied by us to you under the Agreement, including the provision of access to the System and the Support Services;
“Software Enhancements" means one or more enhancements to the System developed and delivered under this Agreement on your behalf;
“STA” means a Salesorder Trusted Advisor;
“Standard Software” means the software as a service (SaaS) for wholesalers branded and sold as "Salesorder.com";
“Storage Charge” is an annual charge we may need to make to enhance our storage and data security policies and environments and remain appropriate to industry conditions, i.e., increased threats.
“Support Services” means First Line Support Services and/or Second Line Support Services;
“System” means our Salesorder software, including the TAP (Trade Acceleration Portal) provided as a service under this Agreement as updated from time to time and where the context permits any part of such service;
“Terms” means these terms and conditions and
“Third Party System” means any third-party software, computer program, application, website, resource, or other system.
1.3. In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated, and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.4. The Clause headings do not affect the interpretation of the Agreement.
1.5. The Agreement defines “persons” as companies, partnerships, limited liability partnerships, unincorporated associations, and trusts.
1.6. The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilized in the Agreement will not be limited by any specific examples or instances utilized in relation to such a concept or category.
2.1. The Agreement will come into force on the Effective Date and will continue indefinitely, whether you are using the System on a paid or evaluation basis, unless and until terminated in accordance with Clause 16.
2.2. Delivery of the Services will commence on the Effective Date.
3.1. Subject to the terms and conditions of the Agreement, we hereby grant you a non-exclusive, non-transferable license to allow Authorized Users to access and use the System via the Internet from anywhere in the world solely for your own internal business purposes during the term of the Agreement.
3.1. We permit you to create, delete, or reassign Authorized User accounts, each associated with a particular individual who is your employee, officer, or independent contractor. You must provide a valid email address for each Authorized User you create in your System.
3.3. You may, subject to payment of the applicable Fees, add Plugins.
3.4. The System will store the Customer Data, subject to such limits as we may specify occasionally.
3.5. We will arrange for the regular backup of the Customer Data and your System configuration. Under normal operating conditions, such backups will usually be made at least once daily. We will arrange for the storage of only the latest backup.
3.5. You acknowledge that from time to time, we may need to shut down the System for emergency or scheduled maintenance or upgrades. We will use reasonable endeavors to ensure that scheduled maintenance and upgrades involving the shut-down of the System will be performed outside Business Hours (or, if you are outside the UK, outside business hours in your home jurisdiction).
3.7. We may provide links to or refer you to third-party systems as part of or in connection with the Services. You acknowledge that any such link or referral will not constitute a recommendation and that you are solely responsible for using and dealing with Third-Party Systems.
3.8. We may provide you with Consultancy Services, which include support during your onboarding period (in particular, consultations on launch sequence) and live operations (any consultations during the period of using the System in production).
4.1. You agree to provide us with one individual's name and contact details as our single point of contact for all support requests.
4.2. We will make available an online helpdesk, operational during Business Hours, to provide Support Services. After Business Hours, we will use commercially reasonable endeavors to respond and resolve the issue raised
4.3. You agree to make all requests for Support Services through the helpdesk, and all such requests must include a complete explanation as is reasonably possible and follow the guidelines as stated here: https://salesorder.com/customer-support/
4.4. Concerning First Line Support Services, we will either:
(a) appoint an STA to provide First Line Support Services (in which case we will use commercially reasonable endeavors to ensure that the STA resolves the issue raised); or
(b) ourselves use commercially reasonable endeavors to resolve the issue raised.
4.5. Concerning Second Line Support Services, we will use commercially reasonable endeavors to resolve the issue raised.
4.6. We are not obligated to provide Support Services if you use the Services for free, i.e., evaluating the System.
4.7. From time to time, we may agree to provide you with additional services outside the scope of those services specified in the Agreement. The provision of such additional services will be subject to the payment of additional Fees (to be agreed between you and us).
5.1. Upon your request and subject to a separate Scope of Work, we may develop the Software Enhancements and integrate them with the Standard Software in accordance with the terms of this Agreement.
5.2. We may sub-contract the provision of any of the Enhancement Services without obtaining your consent.
5.3. We may suspend the provision of any Enhancement Services if any amounts due to be paid by you to us in relation to Software Enhancements are overdue by more than 5 Business Days.
5.4. We will use reasonable endeavors to:
(a) attain each milestone by the relevant date set out in the Scope of Work; and
(b) complete the development and integration of the Software Enhancements in the Standard Software and notify you of such completion on or before the required delivery date.
5.5. If we fail to complete the integration of the Software Enhancements in the Standard Software by the end of the required delivery date, then we shall do so as soon as practicable following the required delivery date.
5.6. You will provide us with:
(a) such authorization to access your Standard Software instance and account, and such other co-operation as is required by us (acting reasonably), to enable the performance of our obligations under this Agreement;
(b) all information and documents required by us (acting reasonably) in connection with the provision of the Enhancement Services and
(c) any legal, accountancy, taxation or other advice reasonably required to ensure the Software Enhancements' compliance with applicable laws, regulations, and standards.
5.7. Either party may request a Change at any time. When requesting a Change, the requesting party will notify the other party and provide a change control notice (“CCN”). The CCN will set out (as a minimum):
(a) details of the impact on the timetable for the provision of the Enhancement Services or the Software Enhancements;
(b) details of any additional resources expected to be required as a result of the Change, and
(c) details of any variation to the Fees consequent upon the Change.
5.8. The other party will consider any proposed Change within 3 Business Days.
5.9. Either party may:
(a) accept or reject a CCN issued by the other party;
(b) request further information concerning any aspect of a CCN issued by the other party and/or
(c) request amendments to a CCN issued by the other party.
5.10. Following agreement of a CCN, each party will confirm its agreement to the CCN by:
(a) signing a copy of the CCN and sending the signed CCN to the other party or
(b) otherwise sending its written acceptance of the CCN to the other party.
5.11. Only when a CCN recording a proposed change has been signed or agreed in writing by each party will the proposed change take effect.
5.12. The Customer acknowledges that:
(a) The requirements, specification, and Scope of Work as agreed at the effective date may be outline documents only and will need to be elaborated and amended during the course of the Agreement; and
(b) the elaboration or amendment of the requirements specification may impact the Scope of Work. The elaboration or amendment of the Scope of Work may have an effect upon the requirements specification, and the elaboration or amendment of either the requirements specification or may have an impact upon the Fees, and accordingly, you undertake to give reasonable consideration to any request for a Change made by us where the Change is necessary or desirable for the successful completion of the development of the Software Enhancements.
6.1. You agree to confirm your Go Live Date by email at least 30 days before the Go Live Date to allow us to provision the appropriate technical resources to assist you.
6.2. You will provide to us, or procure for us, any:
(a) support and advice;
(b) information and documentation;
(c) third party co-operation;
(d) licenses of third-party Intellectual Property Rights, and
(e) governmental, legal,, or regulatory licenses, consents,, or permits;
Reasonably necessary to enable us to discharge our obligations under the Agreement.
6.3. You will ensure that all information we hold about you is true, accurate, complete, current, and not misleading (at all times during the term of the Agreement).
6.4. You will ensure that all instructions in relation to the Agreement and notices under the Agreement will be given to us by the Master Administrator, and we:
(a) may treat all such instructions as the fully authorized instructions of you; and
(b) reserve the right not to comply with any other instructions in relation to the Agreement without first obtaining the consent of the Master Administrator.
6.5. You will not act or do anything that would damage our reputation or goodwill or bring us into disrepute.
6.6. You must not access the System by any means other than through the interface(s) we provided.
6.7. You must immediately notify us of any security breach relating to the System (including any unauthorized use of any password or account and any theft of any account and security information).
6.8. You must not use the System to provide services to any third party without our written consent.
6.9. You must not resell the System.
6.10. You must not (and must not attempt to) reverse compile, disassemble, reverse engineer, or otherwise reduce the System or any part thereof to human-perceivable form, except as mandated by applicable law.
6.11. You must not use the System:
(a) in any way which is unlawful, illegal, fraudulent, or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
6.12. You must not use the System in any way that causes, or may cause, damage to the System or impairment of the availability or accessibility of the System or any of the areas of, or services on, the System.
6.13. You must not attempt to gain unauthorized access to the System or any other computer system owned or operated by us.
6.14. You will not use the System in or in connection with any business or operation that competes with our business or to conduct any research or testing for the purposes of such a business or operation.
6.15. You must not impersonate any other person when using the System or in connection with your use of the System.
6.16. You must not publish or republish the System, include it in a “frame” or “mirror,” or incorporate it into any other internet-based system or service.
6.17. You must notify us in advance if you fall within the Control of our competitor or a person who competes with us.
6.18. You must ensure that all Authorised Users, your employees, officers, independent contractors, and persons within your power or control comply with the provisions of Clauses 6 and 7 of the Agreement.
7.1. You warrant, represent, and undertake that you will not use the System to store, host, copy, distribute, display, publish, promote, transmit, or send Customer Data which:
(a) is illegal or unlawful;
(b) infringes a third party's legal rights, or
(c) could give rise to legal action against you or us or a third party; in each case under any applicable law.
7.2. Without prejudice to the generality of Clause 7.1, you warrant, represent, and undertake that Customer Data (and its use on the System) will not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any Intellectual Property Rights;
(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime;
(g) be in contempt of any court or breach of any court order;
(h) be in breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) be in breach of official secrets legislation or
(k) be in breach of any contractual obligation owed to any person.
7.3. You must not use the System to transmit or send unsolicited commercial communications.
7.4. You must not use the System to store, host, copy, distribute, display, publish, promote, transmit, or send any software, programs, routines, applications, or technologies that will or may negatively affect the performance of a computer or network or introduce security risks to a computer or network (including viruses, Trojans and rootkits).
7.5. If we reasonably suspect that Customer Data may:
(a) breach the terms of the Agreement; or
(b) cause damage or loss to us, any other person, the System, or any other computer system; we may remove the relevant Customer Data from the System.
7.6. Subject to Clause 17.3, we are not obligated to retain your Customer Data after the Agreement's effective termination.
7.7. GDPR & Data Processing Addendum: This Agreement also includes the Salesorder.com , incorporated herein by reference. If you are using the System to process ANY personal data belonging to an EU citizen as defined in the DPA and by the GDPR, you also agree to the terms of our DPA.
For the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreement to these Terms of Service shall be treated as your signature on the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
You may opt out of the DPA in its entirety by emailing [email protected]. If you opt out of the DPA, you will be prohibited from using the Services to process data regulated by the General Data Protection Regulation of the European Union (GDPR). In the event of a conflict between our DPA and that of our subprocessors, our DPA will take precedence.
We agree to promptly notify you if we become unable to satisfy our obligations under Section 7 on Data Protection or Section 13 on Confidentiality.
Unless you are evaluating our system, we charge you fees after you Go Live as follows:
Throughput fee (TFee): calculated by multiplying your revenue made through our platform by a Throughput Percentage Rate (TFRate). If you use the standard version of our system, we will use the percentage rate displayed on our website.
Minimum Throughput Fee (MTFee) is a fixed fee charged when your revenue is less than the monthly revenue threshold specified by us on our website or notified to you.
Throughput Fee Plus (TFee+) is a discretionary uplift to the Throughput Percentage rate. We may apply these when we add Software Enhancements to your system that are specific to your business operations and incur long-term additional costs for us to maintain.
8.1. We agree to use reasonable commercial endeavors to notify you in writing 20 days in advance of any changes to our Fees.
8.2. You agree we have the right to charge, and you will pay Onboarding Services Fees if you decide to not start live operations on your go-live date for your own reasons and not as a result of our actions. For the avoidance of doubt, we will not charge a fee for Onboarding Services in case your failure to use the System for live operations is due to force majeure or delays in providing Enhancement Services.
8.3. You will pay the Fees to us within five business days in accordance with Clause 8.
8.4. You confirm that you understand we may suspend access to your System if you do not pay any fees within the period stated in 8.3.
8.5. To calculate the Throughput Fee (TFee), you agree to provide us with information concerning your monthly revenue by the 10th of the month after the previous month in which you used the System.
8.6. The Throughput fee will be charged starting at the end of the month after you begin using the system for your day-to-day operations.
8.7. Where applicable, we will issue VAT invoices for the Fees at the end of each Billing Period.
8.8. All amounts stated in or in relation to the Agreement are (unless the context requires otherwise) stated exclusive of all sales, value-added, withholding and other taxes and duties which will be payable by you (except for taxes payable on our net income, which will be payable by us).
8.9. You must inform us within five days of receipt of the relevant invoice if you believe you have been incorrectly billed.
8.10. We may vary the throughput percentage rate (TPR) by giving you up to 20 days written notice of the variation expiring at the end of any Billing Period.
8.11. If you do not pay any amount properly due to us under or in connection with the Agreement, we may charge you:
(a) interest on the overdue amount at the rate of 8% per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand); and
(b) the full costs and expenses incurred by us in relation to the collection or attempted collection of any overdue amount under the Agreement (including legal fees and the fees of any debt collection agency we may instruct) on an indemnity basis.
(c) A Reinstatement fee to restore your access to the System.
8.12. You agree that you are solely responsible for covering any international banking fees or expenses associated with paying Fees.
9.1. We warrant to you that:
(a) we have the legal right and authority to enter into and perform our obligations under the Agreement and
(b) the Services will be performed with reasonable care and skill.
9.2. You warrant to us that:
(a) you have the legal right and authority to enter into and perform your obligations under the Agreement;
(b) all information provided to us when you on our online registration form is true, accurate, complete, current, and not misleading;
(c) you are not our competitor, and you do not compete with us.
9.3. All of the parties' liabilities and obligations regarding the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no warranties, conditions, or other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
9.4. Without prejudice to the generality of Clause 9.4, and to the extent permitted by applicable law, we do not guarantee, warrant, or represent that:
(a) the Services will meet your expectations or requirements;
(b) the System will be error-free;
(c) the Services and the System will be uninterrupted;
(d) the System will be compatible or interoperable with any Third Party System;
(e) the Services will result in cost savings, revenue increases, or profits;
(f) The system will be free from viruses and other malicious software programs;
(g) the System will comply with, or will assist you to comply with, any applicable laws or regulations; and
(h) the Services or the System will be fit for any particular purpose.
10.1. You hereby grant us a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, and otherwise use the Customer Data to fulfill our obligations and exercise our rights under the Agreement.
10.2. You acknowledge that the software comprised in the System, all Software Enhancements, and Plugins are provided as a service and are not licensed to you. Accordingly, and subject to Clause 3.1, nothing in the Agreement will constitute an assignment or license of any copyright or other Intellectual Property Rights from us to you.
11.1. Nothing in the Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party's negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability that may not be excluded or limited under applicable law.
11.2. Subject to Clause 11.1, our liability to you under or in connection with the Agreement or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) we will not be liable for any:
(i) pure economic loss or loss of profits, revenue, income, or anticipated savings;
(ii) reputational damage, damage to goodwill, or other intangible loss or damage;
(iii) loss of any contract or commercial opportunity; or
(iv) special, punitive, exemplary, indirect, incidental or consequential loss or damage;
(b) we will not be liable for any losses arising out of a Force Majeure Event;
(c) our liability in relation to any event or series of related events will not exceed the total amount paid or (if greater) paid by you to us under the Agreement during the 30-day period immediately preceding the event or events giving rise to the claim;
(d) we will not be liable in relation to any loss or damage to you arising out of the use of a Third Party System;
(e) we will not be liable for any loss, alteration, corruption, or damage to customer data.
11.3. Without prejudice to Clause 11.2(e) and subject to Clause 11.1, in the event of any loss, alteration, corruption of, or damage to Customer Data for which we are liable, the Customer's exclusive remedy will be for us to use commercially reasonable efforts to restore the relevant Customer Data from the latest backup.
You agree to defend, indemnify, keep indemnified, and hold harmless us, our officers, employees, Affiliates, and sub-contractors from and against any and all claims, losses, liability, costs, and expenses (including legal fees and amounts paid by us in settlement of claims upon the advice of our legal advisers) arising from:
(a) any breach by you of any term of the Agreement;
(b) any breach by you of any applicable laws or regulations;
(c) any infringement by you of any third party's intellectual property rights or other legal rights.
13.1. Subject to Clause 7.5, we will not access or allow any third party to access your Customer Data unless:
(a) we have your prior written consent (including consent by email);
(b) we are required to do so under any applicable law or regulation or pursuant to any judicial or governmental request or order;
(c) we reasonably suspect that the Customer Data may breach the terms of this Agreement; or
(d) we reasonably suspect that the Customer Data may cause damage or loss to us, any other person, the system, or any other computer system.
13.2. You will keep confidential information confidential and will not disclose it except as expressly permitted by Clause 13.
13.3. You will protect the confidentiality of the Confidential Information using at least reasonable security measures.
13.4. You may disclose Confidential Information to your officers, employees, and professional advisers, provided each recipient is legally bound to protect its confidentiality.
13.5. These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of the Agreement);
(b) is known to you and can be shown by you to have been known to you before disclosure by us; or
(c) is required to be disclosed by law or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
13.6. You agree that we may make public disclosures (including press releases, public announcements, and marketing materials) regarding the Agreement (including that you are our Customer ).
14.1. You warrant that you have the legal right to disclose all Personal Data that you do, in fact, disclose to us under the Agreement and that our processing of that Personal Data for the purposes of and in accordance with the terms of the Agreement will not breach any applicable laws (including the Data Protection Act 1998 and California Consumer Privacy Act).
14.2. We warrant that:
(a) we will act only on instructions from you in relation to the processing of any Personal Data performed by us on behalf of you; and
(b) we have in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and loss or corruption of Personal Data processed by us on your behalf.
Without prejudice to our other rights under the Agreement, if you breach the Agreement in any way (including any failure to pay to us any amount due under the Agreement in full and on time) or if we reasonably suspect that you have breached the Agreement in any way, we may suspend your access to the System and Services while we investigate the matter and/or pending resolution of the matter.
16.1. Either party may terminate the Agreement at any time by giving at least 90 days written notice to the other party expiring at the end of any Billing Period.
16.2. Either party may terminate the Agreement immediately by giving written notice to the other party if the other party commits any material breach of any term of the Agreement, and:
(a) the breach is not remediable; or
(b) the breach is remediable, but the other party fails to remedy the breach within 90 days of receipt of a written notice requiring it to do so;
and for this Clause 16.2, any breach by you of Clause 6, 7, 9, or 13 will be deemed a material breach of the Agreement.
16.3. Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, becomes incapable of managing his or her own affairs due to illness or incapacity, or is the subject of a bankruptcy petition or order.
16.4. We may terminate the Agreement immediately at any time by giving written notice to you if:
(a) you fail to pay in full and on time any amount due to us, whether due under the Agreement or otherwise;
(b) you fall within the Control of a competitor of ours or a person who competes with us; or
(c) you are using the System based on free access.
16.5. If we provide the Services to you as part of an evaluation, we may terminate the Agreement at any time by giving you written notice of termination.
17.1. Upon termination, all the provisions of the Agreement will cease to have effect, save that the following provisions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8.7, 11, 12, 13.1 to 13.5, 17, 18, and 22.
17.2. Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as of the date of termination.
17.3. Save where we terminate the Agreement under Clause 16.2, 16.3, or 16.4 or where you are using the System on a free trial basis, within 30 days following the date of effective termination of the Agreement, if you request it in writing, we will provide you with a file containing all the Customer Data that we held as of the date of termination of the Agreement.
17.4. Within 30 days following the date of effective termination of the Agreement, you must:
(a) return to us or dispose of as we may instruct all documents and materials containing Confidential Information; and
(b) irrevocably delete all our confidential information from your computer systems.
17.5. Subject to Clause 11.1, we will not be obligated to refund any Fees to you upon the termination of the Agreement.
You will not, without our prior written consent, either during the term of the Agreement or within six months after the date of effective termination of the Agreement, engage, employ, or otherwise solicit for employment any employee or contractor of ours who has been involved in the Agreement or the performance of the Services.
Where a force majeure event causes us to fail or delay performing our obligations under the Agreement, those obligations will be suspended for the duration of the force majeure event.
20.1. Save as expressly provided in the Agreement, any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be:
(a) delivered by email to [email protected]
(b) sent by pre-paid first-class post (if within the UK) or by airmail (if sent internationally); or
(c) delivered in person to the address below
For the attention of the relevant person and to the relevant address given below in our case or specified on the Registration Form or in the billing information section of the System in your case (or as otherwise notified by one party to the other in accordance with this Clause).
Person: David Archer, Legal Counsel
Salesorder Limited
Archer, Evrard & Sigurdsson LLP,
Forfar House,
97 Balham Park Road,
London SW12 8EB
Email address: [email protected]
21.1. We may vary any term of the Agreement by giving you at least 20 days written notice before the variation expires at the end of any Billing Period.
21.2. Subject to Clause 21.3, your continued use of the System and/or Services after a notice of variation is issued will constitute your acceptance of the variation.
21.3. You acknowledge that if you do not agree to a variation, you may terminate the Agreement before the variation takes effect in accordance with Clause 16.1. If you disagree with a variation, you agree that such termination will be your exclusive remedy.
21.4. Subject to the preceding paragraphs of Clause 21, any variation of the Agreement must be in writing and signed by or on behalf of each party.
21.5. To avoid doubt, we may vary any element of the Services that is not a term of the Agreement without notice, consent, or explanation.
22.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
22.2. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause is lawful or enforceable, if part of it is deleted, that part will be deemed deleted. The rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
22.3. Nothing in the Agreement will constitute a partnership, agency relationship or employment contract between the parties.
22.4. Neither party will:
(a) incur, assume or create, or purport to incur, assume or create, any obligation, responsibility, or liability in the name or on behalf of the other party; or
(b) bind or purport to bind the other party in any manner whatsoever.
22.5. We may subcontract the provision of any Services without your prior written consent, provided that if we do so, we will remain liable to you for the performance of the subcontracted obligations.
22.6. We may freely assign, transfer, sell, resell, charge, license, sub-license or otherwise dispose of or deal in all or any subset of our rights and obligations under the Agreement without your consent or notice. You may not assign, transfer, sell, resell, charge, license, sub-license, or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement without our prior written consent.
22.7. The Agreement is made for the benefit of the parties and is not intended to benefit or be enforceable by any third party. The parties' rights to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to the Agreement are not subject to the consent of any third party.
22.8. Subject to Clause 11.1:
(a) the Agreement will constitute the entire agreement between the parties in relation to the subject matter of the Agreement and supersedes all previous agreements, arrangements, and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement; and
(c) neither party will have any liability other than pursuant to the Agreement's express terms.
22.9. The Agreement will be governed by and construed in accordance with the laws of England and Wales. Subject to Clause 22.10, the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
22.10 Notwithstanding Clause 22.9, we may commence proceedings against you in connection with any dispute arising under or in connection with the Agreement in the courts of the jurisdiction where you are incorporated, established, or permanently resident or where you have your principal place of business.
Software Enhancement Fees: for development of additional functionality.
Cancellation Fee: we may apply this if you decide to cancel or delay going live. See the explanation in the overview in Clause 8.
Customized System Fee: an alternative to the Throughput Fee you pay to us commensurate with your business situation.
We may shut down the System for maintenance at any time. We will always endeavor to minimize the interruption of your access during Business hours.
We will regularly back up your data.
We will introduce you to partners who are outside our direct control.
Throughput Fee and Rate (TFee and TFRate)
Your last month’s revenue is multiplied by the Throughput percentage rate (TFRate). The result is called the Throughput Fee (TFee).
The Throughput Fee (TFee) is due after you send us your last month’s revenue, and we have calculated and sent you the commensurate Invoice.
Minimum Throughput Fee (MTFee)
If your month’s revenue is below the Throughput Fee Threshold (TFT), we will charge you the Minimum Throughput Fee (MTFee).
Throughput Fee Plus (TFee+)
If we have customized your System, we may apply an uplift to the percentage (TFrate) of your Throughput Fee to cover the costs associated with maintaining esoteric functionality.
Cancellation Fees - Go Live Date cancellation or withdrawal
We will provide you with Onboarding Services to assist you with going live. Unless otherwise agreed upon, these services will be free of charge.
If you decide to cancel or delay going live, you agree we have the right to charge you a Cancellation Fee for all or a portion of the time we’ve spent working with you.
These only apply if the reasons for cancellation or delay are solely attributed to you and not due to reasons on our side.
For the avoidance of doubt, we will not charge this Cancellation Fee in case your failure to use the System for live operations is due to Force Majeure or delays in providing Software Enhancements.
Payment Terms
You agree to pay all fees within five business days from the date of any Invoice we send you.
Suspension for Late Payment or Failure to submit Revenue amount(s)
Timely payment receipt is the cornerstone of prudent cash management. Chasing debtors wastes costly effort and can sometimes be uncomfortable for both parties.
If you fail to provide us with your previous month’s revenue or the notice you cannot provide us with the revenue figure on time, then access to your system will be automatically suspended.
Reinstatement Fee for System Access after Suspension
Restoring access to your System will incur a fee of $100. We don’t want to interrupt your business or cause you to incur additional expenses. So, within a 12-month period, we will waive the $100 fee once if you fail to adhere to this policy.
Customized System Fees
Sometimes, you may have been offered or agreed to Fees commensurate with your business situation. The same Payment Terms and Conditions as stated above apply.
Software Enhancement Fee(s) are determined on a case-by-case basis; See Clause 5. These may apply in agreement with you before or after you go live.
Customized System Fee(s) are determined based on your business situation and in agreement with us.
You provide us with accurate information;
You are not a Competitor or acting on behalf of a Competitor;
We cannot guarantee that our system will work uninterruptedly, but we will try our best to make it accessible to you.