References in this agreement to “You” and “Your” are references to the person accepting these terms and conditions, references to “We”, “Us” and “Our” are to Buyerdock Limited a company incorporated in England and Wales with registered number 11995777 and whose registered office is at Electra House, 1a Gilberd Road, Colchester, Essex, United Kingdom, CO2 7LR and references to “Buyerdock” are to the software as a service developed and hosted by Us with the intention of creating a cost-efficient and effective platform for wholesale buyers and sellers.
1 Right to use and fees
1.1 Right to use: Subject to the terms and conditions of this agreement We grant You a non-exclusive, non-transferable right to use Buyerdock for so long as You pay the fees to Us in accordance with the terms of this agreement.
1.2 Fees: You agree to pay Us the fees as calculated by Us each month (such calculation to be in accordance with the current charges agreed by Us at the outset or other charging mechanism stated on the Buyerdock pricing web page from time to time). We are obliged to charge VAT and this shall be added to the fees at the applicable prevailing rate. All fees are payable within 14 days of Our notifying You of the amount due. We may raise invoices monthly in advance. As part of the signing up process You authorise Us to deduct payment by standing order, direct debit or other automated payment process. You agree that We may request such payment as and when it falls due. Failure by Us to collect payment does not relieve You from any liability to pay Us.
1.3 Changes to fees: We shall give You at least one month’s notice if the charging mechanism stated on the Buyerdock pricing web page or otherwise applicable to you is to change while You continue to use Buyerdock. If the relevant price increase (other than any “pass-through” increase) that is more than 2% above the increase in the Retail Prices Index published by the Office for National Statistics of the United Kingdom Government (calculated since the date of this agreement or, if later, the last such increase) then You may give notice to terminate this agreement by giving Us at least three months’ written notice (ending at the end of a calendar month in which the next anniversary of the date of this agreement falls) within one month of Our notifying You of the increase. If You properly give Us notice in accordance with this clause 1.3 the notified increase shall not apply to You during the notice period.
2 Parties’ obligations
2.1 Warranty: We warrant that We have and will maintain all necessary licences, consents, and permissions necessary for the performance of Our obligations under this agreement. Buyerdock is made available on an “as is” basis and any configuration advice or development is subject to separate charge.
2.2 Your information: You represent that the information provided by You in the course of contracting with Us is true.
2.3 Your own use only: You agree to use Buyerdock solely for the purpose of (i) if You are a distributor, managing the distribution of Your own products, or (ii) if You are a retailer, discovery of products listed on the Buyerdock platform by distributors. In each case You agree to use Buyerdock in accordance with the guideline issued by Us from time to time. No other use is permitted. If You use Buyerdock in Your capacity both as a distributor and a retailer, You may be required to agree to pay two sets of fees (one in respect of each usage capacity).
2.4 Responsibility for hardware and network connections: You agree that You are solely responsible for procuring and maintaining Your network connections and telecommunications links and any devices that You use in conjunction with Buyerdock. You are responsible for providing and maintaining all hardware that You use.
2.5 Ownership of data: You shall own all right, title and interest in and to all of the personal data created by You using Buyerdock. You agree that We may use Your personal data on an anonymous aggregated basis and You agree that We are free to use any other data that We collect as a result of Your usage of Your Buyerdock account or any other interaction You or Your representatives have with Us. We shall not be responsible for any loss, alteration or disclosure of Your data. You agree that Your sole and exclusive remedy resulting from any loss or damage to data, shall be for Us to use reasonable commercial endeavours to arrange for lost or damaged data to be restored through any back-up controlled by Us.
2.6 Restrictions: You agree:
2.6.1 not to re-publish or re-purpose any information screen produced by Us or presented by Buyerdock (and, in particular, but without limiting the generality of this provision, not to obscure any copyright or similar notice published by Us);
2.6.2 not to reverse engineer or to attempt to amend, copy or emulate any part of Buyerdock and not to attempt to gain unauthorised access to Buyerdock or any connected system (and to use all reasonable endeavours to prevent any unauthorised access to, or use of, Buyerdock);
2.6.3 not to use any service that copies, emulates or integrates with Buyerdock or seeks to circumvent Buyerdock or uses any functionality offered by any part of Buyerdock’s API (other than services that we confirm to You in writing have been developed to integrate with Buyerdock);
2.6.4 not to use Buyerdock to facilitate any illegal activity; and
2.6.5 (except to the extent We expressly agree in writing) not to onward provide any service facilitated by Buyerdock to any third party (other than provision of information to prospective buyers of Your products).
3 Payment terms and liability limits
3.1 Payment terms: Amounts payable pursuant to this agreement are non-cancellable and non-refundable. If We have not received a payment by the due date then We may (without prejudice to any other rights and remedies that We may have and without liability to You) disable all Your access to all or any part of Buyerdock. You agree (notwithstanding any action taken by Us pursuant to this clause 3.1) to pay compensation and interest (at the rate provided for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998) in respect of invoices not duly paid. Unless otherwise specifically agreed by Us in writing, You shall pay the highest standard rates as advertised on Our web pages for the use of Buyerdock in the circumstances applicable to Your use of it.
3.2 Right to suspend access: If We have not received a payment by the due date then We may (without prejudice to any other rights and remedies that We may have and without liability to You) disable all Your access to all or any part of Buyerdock.
3.3 Cap on liability: Subject to clause 3.3 and clause 3.4:
3.3.1 We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
3.3.2 the total aggregate liability that We have arising in connection with any type of loss suffered by You shall be limited to the net of VAT amount received by Us from You in respect of the month in which the relevant loss is first suffered.
3.4 Express representations etc only: Except as expressly and specifically provided in this agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
3.5 Non-excluded liabilities: Nothing in this agreement excludes Our liability:
3.5.1 for death or personal injury caused by Our own negligence;
3.5.2 for Our own fraud or fraudulent misrepresentation; or
3.5.3 to the extent that law provides that any liability may not be excluded.
3.6 Your breach: You agree to indemnify Us against all damages and expenses directly or indirectly suffered as a result of Your breach of any provision of this agreement.
4 Term and termination
4.1 Termination on notice: This agreement has immediate effect and continues until either party gives the other at least three months’ written notice of termination terminating at the end of a calendar month in which the anniversary of the date of this agreement falls. Save as provided in clause 1.3 You may not give notice to terminate at any time that You are in breach of this agreement or if We have properly suspended Your access to Buyerdock.
4.2 Early termination: We may terminate this agreement immediately if We believe that You have breached its terms or circumstances arise as a result of which We are restricted in Our ability to make Buyerdock available. You may give notice to terminate in accordance with clause 1.3.
4.3 Effect of termination: On termination of this agreement for any reason all rights to access or use Buyerdock granted under this agreement shall immediately terminate and We may destroy or otherwise dispose of any of Your data in Our possession. Rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination, and undertakings given by You in this agreement shall not be affected or prejudiced and shall continue in full force and effect.
5.1 Force majeure: We shall have no liability to You under this agreement if We are prevented from or delayed in performing its obligations under this agreement, or from carrying on business, by events beyond Our reasonable control.
5.2 Variation: No variation of this agreement shall be effective unless it is in writing and approved by the parties.
5.3 Publicity: You may not without Our prior written consent make any public comment about this agreement or Your dealings with Us. We may announce that We provide services to You.
5.4 Entire agreement: This agreement constitutes the whole agreement between You and Us in relation to Buyerdock and supersedes any previous agreement between You and Us relating to the same subject matter. You acknowledge and agree that in entering into this agreement You do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
5.5 Assignment: You shall not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this agreement. We may assign Our rights or obligations under this agreement.
5.6 No partnership or agency: Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
5.7 No IP transfer: Nothing in this agreement operates to transfer any intellectual property rights between the parties.
5.8 Third party rights: Save as provided in clause 5.9, this agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
5.9 Interpretation: References in this agreement to Us, We or Our in the context of obligations owed to Us or rights or entitlements conferred on Us shall be deemed to include reference also to any sub-contractor nominated by Us or any company which is a subsidiary undertaking or a parent undertaking of Ours or any company which is a subsidiary undertaking of any such parent undertaking (“parent undertaking” and “subsidiary undertaking” having the meanings given to them in section 1162 of the Companies Act 2006) or any officer or employee of any such company.
5.10 Notices: We may give You notice by alert notification through Buyerdock. Any other notice required to be given by You under this agreement shall be in writing and may be given by hand, pre-paid first-class post or recorded delivery post to Us at Our registered office address.
5.12 Governing law: This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
5.13 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).