Updated: March 2025
These terms and conditions were last updated on 17/03/25 (the “Terms and Conditions”)
These represent the Terms and Conditions of ZigZag Global Ltd, a company incorporated in England and Wales under company number 09404819, and with registered office at 14th Floor, 33 Cavendish Square, London W1G 0PW (the “Supplier”, “we” or “us”).
These Terms and Conditions together with any service order (as applicable) (the “Service Order”) provided to “the Company”, as the retailer contracting with the Supplier, shall form the “Contract” between the Company and the Supplier in relation to the Company’s use of the ZigZag Shopify app (the “App”) and all services through it.
In the event of a conflict between the Terms and Conditions and any Service Order (as applicable), the Service Order shall prevail.
We may amend or update these Terms and Conditions from time to time, and such amended terms and conditions shall apply to the Company’s use of the Services. It is the Company’s responsibility to check regularly to ensure the Company is aware of the terms and conditions that apply to the Company’s use of the Services.
1. Licence and Services
1.1 The Company shall pay the Supplier the Charges as detailed within the Service Order and/or App (as applicable). In return, the Supplier will provide the Company with a non-exclusive, non-transferable, royalty-free licence to use the Supplier’s intellectual property (the “Supplier’s IP”), including the App, during the Term solely for the Company’s internal business operations. The “App” is the returns management portal operated by the Supplier.
1.2 The Company shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Supplier’s IP in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Supplier’s IP;
(b) obtain any ownership rights in the Supplier’s IP and shall only acquire limited rights to use the Supplier’s IP as set out in the Contract;
(c) access all or any part of the Supplier’s IP in order to build a product or service which competes with the Supplier’s IP;
(d) use the Supplier’s IP to provide services to third parties (save for enabling and arranging returns in accordance with this Contract);
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Supplier’s IP available to any third party (save for allowing access by consumers to the App via the Company’s website); or
(f) attempt to obtain, or assist third parties in obtaining, access to the Supplier’s IP other than as provided by the terms of this Contract.
1.3 The Supplier shall, whilst trading and the Company is using the Services (“Term”), provide the Company and the Company’s customers (the “Consumers”) access to the App and shall arrange for carriers to collect returns parcels and deliver these to the address which the Company notify to the Supplier from time to time, and as agreed between the parties (the “Services”).
1.4 The Supplier does not make any warranties or guarantees regarding the App.
1.5 The Company is permitted to use certain appointed carriers to provide the Services (the “Carriers”) as nominated by the Supplier or contracted directly with the Company, as determined by the Company from time to time.
1.6 It is the Company’s responsibility to ensure services, account numbers and destinations are correctly mapped.
1.7 In the event that the Company reasonably disputes an invoice from the Supplier, the Company shall notify the Supplier in writing (which may be by email) within fifteen (15) days of receipt of the invoice, providing any relevant evidence to verify the disputed amount. There will be no escalation procedure for App customers, and no further disputes will be entertained beyond the issue of credits. The Company is responsible for checking the accuracy of billing, and any disputes raised after fifteen (15) days from the invoice date will not be considered. For the avoidance of doubt, any agreed credits will be applied to the next billing cycle, and the undisputed portion of any invoice shall remain payable by the due date.
1.8 Where the Company uses the Services for the carriage of dangerous goods (the “Carriage of Dangerous Goods”), the Company warrants and guarantees the following to the Supplier:
(a) it meets the requirements of ADR (European Agreement concerning international carriage of Dangerous Goods by Road), IMDG (International Maritime Dangerous Goods), and IATA (International Air Transport Association) (where applicable) with their own Dangerous Goods Safety Adviser (“DGSA”); and
(b) any goods carried by the Supplier and/or its Carriers containing Dangerous Goods fully comply with the requirements of the relevant ADR / IMDG Special Provision 188 and / or if applicable to the relevant IATA DGR packing instructions including the limits and maximum quantities allowed in each of the relevant packaging standards.
2. The App
2.1 The Supplier shall provide the Services in accordance with the set features and functionalities of the App.
2.2 The Supplier shall ensure the App is available with minimal downtime, except for reasonable periods of planned or unplanned maintenance, which the Supplier will aim to notify the Company about where feasible.
2.3 The Supplier shall not be responsible for managing the Company’s stock or for providing refunds to Consumers.
3. The Supplier’s Obligations
3.1 The Supplier shall not be liable under this Contract to the extent that any non-conformance is caused by use of the Services by the Company, contrary to the Supplier’s express instructions, or modification or alteration of the App by any party other than the Supplier or the Supplier's duly authorised contractors or agents.
3.2 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from service outages by third party suppliers, or from delays in the transfer of data over communication networks and facilities, including the internet, and the Company acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications.
3.3 In the event of a parcel being lost or damaged, the Supplier shall pass through liabilities and service levels as received from third-party suppliers, as if the Company were in direct contract with the third-party supplier. The Supplier will make all reasonable endeavours to support the Company with third-party claims; however, the final decision on whether any claim is accepted or compensated rests solely with the carrier or third-party supplier. The Supplier shall bear no responsibility or liability for any claim that is rejected, reduced, or unpaid by the carrier or third-party supplier, nor shall the Supplier be responsible for any associated costs incurred by the Company as a result of such a decision. Any claims related to lost or damaged parcels must be raised by the Company within seven (7) days of the date of delivery or the expected delivery date, whichever is applicable. The Company may elect to independently purchase additional insurance(s) at its own discretion to mitigate such risks.
3.4 As part of the Services, the Supplier shall collect funds (the “Funds”) from the Consumers via their use of the App. The Supplier collects the Funds on behalf of the Company only, using a payment gateway. The contractual relationship regulating the legal obligations regarding the Funds is between the Consumer and the Company, to which the Supplier is not a party, merely a facilitator. The following mechanisms apply to the Funds:
3.4.1 where the amount the Supplier receives from the Consumers exceeds the amount of Subscription Fees and Charges the Company is due to pay the Supplier for the relevant month, the net balance will be remitted to the Company, within forty-five (45) days of the relevant month end (unless otherwise agreed); and
3.4.2 where the amount the Supplier receives from the Consumers is less than the amount of Subscription Fees and Charges the Company is due to pay the Supplier for the relevant month, the Funds will reduce the monthly invoice due by the Company to the Supplier, and the Company shall remit the balance of Subscription Fees and Charges outstanding for the relevant month in accordance with clause 5).
3.5 The Supplier shall, at all times throughout the Term:
(a) ensure that the Supplier uses all due skill and care in the performance of the Services;
(b)ensure that the Services are of satisfactory quality and fit for purpose; and
(c) on a monthly basis (unless otherwise agreed by the parties), provide to the Company an invoice for the Services provided.
3.6 The Supplier will store any items returned by the Consumer (“Returned Products”) for no longer than one (1) month, and thereafter the Supplier may charge for storage or return the Returned Products at its sole discretion. All costs of returning goods shall be borne by the Company.
3.7 The Supplier warrants that it has or shall obtain at its own cost and will maintain all necessary licences, consents, permissions, authorisations and permits necessary for the performance of its obligations under this Contract.
3.8 The Supplier warrants that it holds all right, title, and interest in and to the Supplier’s IP free and clear of any rights or encumbrances of any third parties in respect of the Supplier’s IP which would adversely affect the rights granted to the Company under this Contract.
3.9 To the extent permitted by applicable law and save as expressly set out elsewhere in this Contract, the Supplier disclaims all other conditions, warranties or other terms which might have effect between the parties with respect to the Supplier’s IP, or be implied or incorporated into this Contract, whether by statute, common law or otherwise, including any implied conditions, warranties, or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose or ability to achieve a particular result.
3.10 The Supplier shall provide the App in accordance with its information security policy, which can be found https://info.zigzag.global/zigzag-global-policy-page
3.11 The Supplier, and/or its appointed carriers, shall be permitted to open parcels containing Returned Products in order to verify the contents, and to ensure such parcels pass border control checks.
4. The Company’s Obligations
4.1 The Company shall:
(a) provide such information or instructions to enable the Supplier to provide the Services;
(b) comply with all applicable law with respect to the Company’s activities under this Contract, including legally required fields in data feeds including but not limited to providing HTS codes, EORI number, VAT information, tracking information, weights or other data required to facilitate the destruction, consolidation, sale or export of goods;
(c) be solely responsible for providing accurate data;
(d) accept sole responsibility and liability for any losses incurred if inaccurate data or instruction is sent by the Company or any third party acting on behalf of the Company;
(e) carry out all the Company’s responsibilities under this Contract in a timely and professional manner;
(f) ensure that the Company’s use of the Supplier’s IP is in accordance with these Terms and Conditions;
(g) be solely responsible for procuring and maintaining the Company’s network connections and telecommunications links from the Company’s systems to the App, and the Company acknowledge and agree that the Supplier shall not have any responsibility whatsoever for any problems, conditions, delays, delivery failures or any other loss or damage arising from or relating to the Company’s network connections or telecommunications links or caused by the internet;
(h) provide all data requested by the Supplier in order to ensure Returned Products can pass through border control (where appropriate), provided that the Supplier shall be permitted to charge the Company for rectifying any such non-compliant or incomplete data provided.
4.2 The Company is not obliged to provide any information under this clause 4 which the Company reasonably deem may breach the Company’s privacy policy, terms of business or any statutory obligations.
4.3 The Company shall be solely responsible for any decision to refund Consumers at any time. For the avoidance of doubt, the Supplier is not responsible for making payment to any Consumer in respect of a refund. The Supplier will only pass on credits to the Company in respect of claims which are agreed by the Carriers.
4.4 The Company hereby confirms that:
(a) parcels shipped through the App to the Company’s returns address are retail customer and/or stock returns, which have not been altered or advanced in value, from the same origin country, and were in free circulation at the time of export (if applicable);
(b) shipments, as described above, are eligible for duty relief as per the condition of Returned Goods Relief (RGR) described in public Notice 236: Returned Goods Relief;
(c) the Company’s Economic Operator Registration Number is included within the Service Order and/or App (as applicable);
(d) the Company shall inform its local tax and customs authority of any discrepancies which result in underpayment of revenue; and
(e) the Supplier (and its authorised service partners) is authorised to act as the Company’s direct representatives in facilitating returned goods relief on customer returns, as described within this clause 4.5. This instruction is issued on the basis that evidence of relief is available from the Company’s records, and the Company accepts responsibility for ensuring the accuracy of such declarations;
(f) the Company has complied with applicable export control, sanctions, customs laws and regulations or other applicable regulatory requirements and restrictions related to the import, export, transit or transfer of goods;
(g) the Company has declared any controlled dual-use or military goods subject to government authorisations contained in any shipment(s); and
(h) the Company has provided all information, permits, licenses or other government authorisations and documents, as required by applicable law or upon request, and all information, permits, licenses or other government authorisations and documents provided by the Company or its representatives are true, complete and accurate, including the value and description of the goods and shipper and consignee information.
5. Charges and Payment
5.1 The Company shall pay the implementation fees stipulated in the Service Order and/or within the App (as applicable), and the Services shall not commence until such payment has been made. In addition, the Company shall pay the subscription fees detailed in the Service Order and/or the App (as applicable) (the “Subscription Fees”) and such other charges as are applicable for the Services provided to the Company by the Supplier as detailed in the Service Order and/or the App (as applicable) (the “Charges”).
5.2 The Supplier shall collect payment from the Company via debit or credit card within seven (7) days of each invoice. The Company agrees to provide the necessary authorisation details to facilitate the payment process. Unless by separate arrangement, the Supplier will invoice the Company monthly in arrears for the Subscription Fees and any Charges incurred.
5.3 Subject to clause 5.4, if the Supplier is unable to collect payment due to insufficient funds or if the direct debit is cancelled, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Company, disable the Company’s password, account and access to all or part of the App, and the Supplier shall be under no obligation to provide any or all of the Services while payment remains outstanding; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% above the then prevailing base lending rate of the Bank of England, commencing on the due date of payment and continuing until fully paid.
5.4 Delivery costs of Returned Products shall be borne either by the Company or the Consumer, in accordance with the Company’s returns policy. For the avoidance of doubt, the Supplier shall not be responsible at any time for delivery costs of products (“Delivery Costs”) and, in the event that the Company has defrayed any Delivery Costs, howsoever arising, the Supplier shall invoice the Company for such costs and clauses 5.2 and 5.3 shall apply mutatis mutandis.
5.5 The Supplier shall not be responsible for the payment of any taxes or duties with respect to any Returned Products and in the event that any taxes or duties are paid by the Supplier, the Supplier shall be entitled to be reimbursed in full by the Company. The Supplier shall invoice the Company for the reimbursement and clauses 5.2 and 5.3 shall apply mutatis mutandis.
5.7 All amounts stated or referred to in this Contract:
(a) shall be payable in pounds sterling unless otherwise specified;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the rate applicable and chargeable under English law from time to time.
5.8 The parties acknowledge and agree that the Subscription Fees and Charges are as set forth in the Service Order and/or App at the time of sign-up. The Supplier reserves the right to increase the Subscription Fees and Charges at any time by giving the Company no less than thirty (30) days’ prior written notice. In the event the Company does not agree to the price increase, the Company may terminate the use of the Services by providing written notice prior to the effective date of the price change.
5.9 The Company understands that Carriers may subsequently invoice the Supplier for additional carriage costs. The Supplier will pass all Carrier charges directly onto the Company, regardless of when these are incurred.
5.10 Administration charges may apply if inaccurate weights are supplied by the Company and volumetric weights may apply if greater than dead weight.
5.11 The Supplier shall charge the Company for each label fee requested by the Consumer irrespective as to whether it is used or not. Such label fees are specified in the Service Order.
5.12 The Supplier reserves the right to charge for any new features or services not included in the original scope with the Company, subject to a Statement of Work. The Company shall have the right to elect not to use a new feature or service if the Suppliers commercial proposal is not accepted.
5.13 The Supplier may, at its option, set off against sums due to the Company any sums due to the Supplier from the Company (where relevant). This may include, but is not limited to, sums received from consumers, paying for returns, that the Supplier collects on behalf of the Company.
5.14 The Supplier shall have a lien on all goods carried for the Company for any amount due to the Company, whether pursuant to this Agreement or otherwise, and for the cost of recovering the same. In the event that the amounts owing to the Supplier in respect of which it has a lien are not satisfied within a reasonable time of the debt falling due, the Supplier may (at its own discretion):
(a) sell the goods, privately or by auction, and apply the proceedings of sale towards any money owing to the Supplier and the expense of the sale, and will account to the Company for the balance remaining (if any); or
(b) destroy the goods if a sale under subclause (a) above is impractical, in the opinion of the Supplier, due to the value or saleability of the goods in question or otherwise,
and any such sale or destruction (as the case may be) shall be a full discharge of any liability of the Supplier in respect of the goods.
6. Proprietary Rights
6.1 The Company acknowledges and agrees that the Supplier owns all intellectual property rights in the Supplier’s IP. Except as expressly stated herein, this Contract does not grant the Company any rights to, or in patents, copyright, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Supplier’s IP.
6.2 The Supplier recognises that the Company’s trade marks (including the Company’s name and/or any existing or future trademarks, service marks, business name, brand name, logos or associated get-up related to this in each case whether registered or unregistered, together with any improvements, amendments or alterations and/or any other mark, logo or name owned or used by the Company from time to time) (together “the Company’s IP"), and the goodwill associated with the Company’s IP are the Company’s property, and are the Company’s valuable assets and the Supplier shall not, without prior written permission from the Company, make any use of the Company’s IP, nor the Company’s name, for marketing or other purposes, nor register the Company’s IP or any similar mark or logo (whether as a business or trade name, trade or service mark or corporate name or otherwise) in any form or for any purposes whether before or after the termination or expiry of the Services, nor shall the Supplier make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the Company’s IP or any part of it.
6.3 The Company hereby permits the Supplier to use the Company’s name, trademark and information on services provided by the Supplier on its standard marketing material(s) and website(s) for the purposes of illustrating that the Company is a client of the Supplier. The Company agrees to act as a reference on behalf of the Supplier and will also participate in testimonials and case studies when requested by the Supplier.
7. Service Performance
7.1 The Supplier undertakes to monitor Carriers to ensure, as far as it is within the Supplier’s control, that the Carriers comply with the Service Levels when performing the Services.
7.2 The terms and conditions applicable to the Carrier Services are detailed in clause 8 of this Agreement.
8. Carrier Terms
8.1 All prices shown exclude VAT, duties, taxes and surcharges (where applicable);
8.2 Shipments are charged at the greater of actual and volumetric weight;
8.3 Airfreight lanes may be subject to minimum uplift;
8.4 Fuel surcharges are included unless otherwise specified;
8.5 Parcels must fall within the pre-agreed weight and dimension restrictions of the applicable Carrier or surcharges may apply;
9. Data Protection
9.1 In this clause 9:
(a) The “Company’s Personal Data” means all Personal Data which is owned or controlled by the Company, and which is:
(i) provided by or on behalf of the Company to the Supplier; or
(ii) comes into the possession of the Supplier as a result of or in connection with the supply of the Services;
(iii) but excludes any Personal Data which has been irreversibly anonymised and/or which can no longer be used to identify a Data Subject (including when combined with other data) and which is used for the purposes of the Supplier’s analysis and market intelligence;
(b) “Data Controller”, “Data Subject”, “Personal Data” and “processing” shall have the respective meanings given to them in the Data Protection Legislation, as such legislation shall be amended, revised or replaced from time to time;
(c) “Data Protection Legislation” means the UK Data Protection Act 2018, as any such legislation may be amended or varied from time to time;
9.2 The Company and the Supplier represent, warrant and undertake, on their own account, that each party has complied and shall at all times continue to comply with Data Protection Legislation, including (but not limited to) maintaining all relevant notifications.
9.3 To the extent that the Supplier processes the Company’s Personal Data, the Company acknowledges that the Company is the Data Controller in respect of the same, and that the Supplier is the Data Processor, and the Company further acknowledge that the Company’s Personal Data:
(a) relates to Data Subjects who are the Consumers, employees and/or potential employee;
(b) comprises personal identification and address details of such Data Subjects; and
(c) shall be processed by the Supplier in order to supply the Services and only for the duration of this Contract or for such further time as the parties shall both agree in writing.
9.4 The Supplier agrees that it shall:
(a) carry out processing only in accordance with the Company’s written instructions from time to time, including as set out in this Contract, unless required to do otherwise by law, in which case, where legally permitted, the Supplier shall inform the Company of such legal requirement before processing;
(b) ensure that any personnel authorised to process the Company’s Personal Data shall be subject to a binding duty of confidentiality in respect of such data;
(c) implement appropriate technical and organisational measures to protect the Company’s Personal Data against unauthorised or unlawful processing and accidental destruction, damage or loss, so as to allow the Supplier to comply with its obligations under the Data Protection Legislation;
(d) not sub-contract any processing of the Company’s Personal Data without the Company’s prior written consent. Such consent shall only be given where obligations in relation to the processing of the Company’s Personal Data that are the same as those imposed on the Supplier under this Contract are imposed by contract on the sub-processor. The Supplier shall remain fully liable to the Company for any processing of the Company’s Personal Data conducted by a sub-processor appointed by the Supplier in accordance with this clause 9.4;
(e) provide such information and such assistance to the Company as the Company may reasonably require, and within the reasonable written (including by email) timescales specified by the Company, to allow the Company to comply with the Company’s obligations under the Data Protection Legislation in relation to Personal Data held by the Supplier, including assisting the Company to:
(i) comply with the Company’s own security obligations taking into account the nature of processing and the information available to the Supplier and 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 the Data Subjects;
(ii) discharge the Company’s obligations to respond to requests for exercising Data Subjects’ rights;
(iii) comply with the Company’s obligations to inform Data Subjects about serious personal data breaches;
(iv) carry out privacy impact assessments and audit privacy impact assessment compliance;
(v) consult with the applicable supervisory authority following a privacy impact assessment; and
(vi) any other specific requirements, including responsibility for any related costs, as agreed in writing from time to time.
(f) on expiry or termination of this Contract, at the Company’s choice, promptly and securely, return or delete the Company’s Personal Data;
(g) at no additional cost, keep or cause to be kept such information as is necessary to demonstrate compliance with its obligations under this clause 9.4 including full and accurate records relating to the processing of the Company’s Personal Data and shall, upon reasonable notice, make available to the Company or grant to the Company and the Company’s auditors and agents, a right of access to and to take copies of any information or records kept by the Supplier pursuant to this clause 9.4. The Company’s audit rights under this clause 9.4(g) shall continue throughout the Term, and for a period of six (6) years thereafter;
(h) inform the Company immediately if, in the Supplier’s opinion, any instruction issued the Company pursuant to this clause 9.4 breaches any provision of the Data Protection Legislation; and
(i) not transfer the Company’s Personal Data outside of the European Economic Area (the “EEA”) or the United Kingdom (the “UK”) without the Company’s prior written consent which (subject to the obligations in this clause 9.4(i) being complied with). Any such transfer outside the EEA or the UK is subject to the Supplier entering into standard contractual clauses with the party receiving the Company’s Personal Data, including incorporating equivalent terms as stipulated under this clause 9.
9.5 The Supplier shall notify the Company without undue delay (which shall not exceed twenty-four (24) hours) after becoming aware of any accidental, unauthorised or unlawful destruction, loss, alteration, or unauthorised disclosure of, or access to the Company’s Personal Data.
9.6 The Supplier shall notify the Company without undue delay if it receives from any Data Subject whose personal data forms part of the Company’s Personal Data:
(a) any communication seeking to exercise rights conferred on the Data Subject by the Data Protection Legislation; or
(b) any complaint or any claim for compensation arising from or relating to the processing of the Company’s Personal Data.
9.7 Unless required to do so by a competent authority, the Supplier shall not make any payment or any offer of payment to any Data Subject in response to any complaint or any claim for compensation arising from or relating to the processing of the Company’s Personal Data, without the Company’s prior written agreement.
9.8 If and to the extent that the Company pass any Personal Data to the Supplier, the Company warrants to the Supplier that the Company has obtained consent from all individuals to whom the Personal Data relates, to pass such Personal Data to the Supplier and for the Supplier to process it for its intended purposes.
9.9 Any breach of this clause 9 shall entitle the other party to terminate the Contract immediately on written notice.
10. Confidentiality
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract “Confidential Information”. Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third-party who is not subject to restriction on disclosure;
(d) is independently developed by the receiving party and that such development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, and subject to clause 10.1, shall not (and will ensure that their employees, agents or sub-contractors shall not) disclose, distribute or make the other's Confidential Information available to any third-party, or use the other's Confidential Information for any purpose other than the implementation of this Contract and the provision of the Services.
10.3 The Company acknowledges and agrees that details of the Supplier’s IP constitutes the Supplier's Confidential Information.
10.4 This clause 10 shall survive termination of the Contract.
11. Indemnity, Limit of Liability and Insurance
11.1 The Company shall indemnify and keep the Supplier indemnified in full against claims, actions, losses, damages, expenses, liabilities and costs (including but not limited to reasonable legal fees and other professional fees) actions, proceedings, judgments awarded and damages suffered or incurred by the Supplier arising out of or in connection with the Company’s use of the Supplier’s IP, provided that:
(a) such claims, losses, costs, proceedings, penalties, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by the Company are not the result of the Supplier’s breach of its obligations in clause 3;
(b) the Company is notified of any such claim immediately; and
(c) the Supplier provides reasonable co-operation to the Company in the defence and settlement of such claim.
11.2 The Supplier shall indemnify and hold the Company harmless from all claims, losses, costs, proceedings, penalties, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Company as a result of or in connection with:
(a) any claim made against the Company by a third-party for any alleged or actual infringement of any third party's intellectual property rights relating to the Supplier’s IP including the Company’s actual use of the App; and
(b) any breach by the Supplier of clauses 9 (Data Protection) or 12 (Anti-Bribery and Business Ethics), provided that:
(i) such claims, losses, costs, proceedings, penalties, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by the Supplier are not the result of the Company’s breach of the Company’s obligations in clauses 4 or 9);
(ii) the Supplier is promptly notified of any such claim; and
(iii) the Supplier provides all reasonable co-operation to the Company in the defence and settlement of such claim.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Supplier under clause 11.2 to the extent that the alleged infringement is based on:
(a) a modification of the Supplier’s IP by anyone other than the Supplier (unless such modification was authorised by or carried out at the instruction of the Supplier);
(b) the Company’s use of the Supplier’s IP in a manner contrary to this Contract or the reasonable instructions given to the Company by the Supplier; or
(c) the Company’s use of the Supplier’s IP after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.4 In no event shall the Company, the Company’s employees, agents and sub-contractors be liable to the Supplier under clause 11.1 to the extent that the Company’s use of the Supplier’s IP is in accordance with the Supplier’s written (which shall include via email) instructions, advice or guidance.
11.5 Further, the Company assumes sole responsibility for the accuracy of the information inputted whether manually, automatically or otherwise, into the App, and the Supplier shall have no liability for any loss or damage caused by errors or omissions in any information, instructions, scripts or feeds provided by Supplier in connection with the Services, howsoever provided.
11.6 The total aggregate liability of each party under or in connection with this Contract (whether in contract, for negligence, breach of statutory duty or otherwise) for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed fifty thousand pounds sterling (£50,000) in each year during the Term (for the avoidance of doubt this figure is not cumulative). However, the limitations and exclusions of liability set out in this clause 11.6 shall not apply to the indemnities given under clauses 11.1 and 11.2 or to data protection or confidentiality breaches.
11.7 Neither party shall be liable to the other for any of the following types of loss or damage arising under or in connection with this Contract, whether arising for breach of contract, misrepresentation, tort (including negligence), breach of statutory duty or otherwise:
(a) any indirect or consequential loss or damage whatsoever; or
(b) any indirect or consequential loss of profits, business, contracts, anticipated savings, loss or depletion of goodwill, or loss of revenue.
11.8 Nothing in this Contract shall operate to exclude or limit in any way:
(a) either party’s liability for death or personal injury caused by its own negligence;
(b) either party's liability for fraud or fraudulent misrepresentation; or
(c) any liability which cannot be excluded by law.
11.9 The Supplier’s liability under indemnities in respect of this Contract, or for data protection, intellectual property or confidentiality breaches, shall be limited to £50,000 per claim.
12. Anti-Bribery and Business Ethics
12.1 The Supplier shall, and shall procure that its directors, employees and officers shall:
(a) comply with all applicable law (including without limitation the Modern Slavery Act 2015), and statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010;
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) prepare a slavery and human trafficking statement each financial year in accordance with Section 54 of the Modern Slavery Act 2015, if applicable;
(d) have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010 and Modern Slavery Act 2015, to ensure compliance with the same;
(e) comply with all applicable laws, regulations, codes and sanctions relating to anti-money laundering in accordance with the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007, as amended from time to time; and
(f) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Contract.
12.2 The Supplier shall ensure that any person associated with it who is performing services in connection with this Contract (including but not limited to agents and subcontractors) does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this clause.
12.3 Breach of this clause 12 shall be deemed a material breach of this Contract, provided that, notwithstanding the provisions of clause 13 (Term and Termination), the Company shall be immediately entitled to terminate this Contract if the Supplier, or any member of the Supplier’s group shall, in relation to the Contract, have committed any act on or after the date of this Contract which is an offence under any applicable law, relating to proper business practices and payment of inducements that are in force in any country to which the Services relate.
13. Term and Termination
13.1 This Contract shall, unless otherwise terminated as provided in this clause, commence on the date of this Contract and shall continue on an ongoing basis until terminated by either party on thirty (30) days’ written notice on the other, unless otherwise terminated in accordance with the provisions of this Contract.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party as expressly set out elsewhere in this Contract and if:
(a) the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Contract such breach being irremediable or if remediable, fails to remedy such breach within a period of thirty (30) days after being notified in writing to do so;
(c) the other party is unable to pay its debts as they fall due, admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, including if it suspends or threatens to suspend payment of its debts, or commences negotiations with creditors for rescheduling or entering into any compromise or arrangement, except for a solvent restructuring or amalgamation;
(d) a petition, notice, resolution, or order is filed, given, passed, or made for the winding up, administration, or appointment of an administrator over the other party, or a creditor or encumbrancer takes possession of, or enforces a process over, the whole or part of the other party’s assets, which is not discharged within fourteen (14) days;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(d) to clause 13.2(e) (inclusive).
13.3 On termination of this Contract for any reason:
(a) the Supplier shall ensure the fulfilment and successful delivery to the designated return address of all Returned Products which are in process at the time of termination within sixty (60) days of termination (the “Run Off Period”) and, in accordance this Contract (including, for the avoidance of doubt, allowing the continued use of the Supplier’s IP until such time as the in- process Returned Products have been delivered to the return address, and for which the Company will continue to pay the Subscription Fees and Charges);
(b) all licences including but not limited to the Supplier’s IP granted under this Contract, shall immediately terminate;
(c) subject to clause 13.3(a), the Company shall make no further use of the Supplier’s IP and any equipment, property, documentation and any other items and all copies of them belonging to the Supplier; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
13.4 Any Returned Products received by the Supplier after the Run Off Period shall be destroyed by the Supplier, and the Supplier shall be entitled to charge the Company for the cost of doing so.
13.5 In the event that any of the situations in clause 13.2 happen, the Supplier reserves the right to suspend access to the App immediately until any outstanding balance is cleared in full. Advance payment may be required to continue trading at the sole discretion of the Supplier.
14. Force Majeure
Neither party shall have any liability to the other under this Contract if it is materially prevented from or delayed in performing its obligations under this Contract, or from materially carrying on its business by acts, events, omissions or accidents beyond its reasonable control including, without limitation, strikes, lock-outs or other industrial disputes, act of God, act of terrorism, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm (“Force Majeure Event”), provided that the affected party notifies the other of such an event and its expected duration within forty-eight (48) hours of becoming aware of the Force Majeure Event. The affected party shall be entitled to terminate this Contract immediately on written notice in the event that the Force Majeure Event continues for more than fourteen (14) days.
15. Change of Control
In the event of a change of control of the Company, the terms of this Agreement shall continue to apply, including pricing detailed within the Service Order and/or the App (as applicable). The Company shall have no right to amend pricing following a change of control.
16. Waiver
No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. Severance
17.1 If any provision or part of a provision of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, all other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. Entire Agreement
18.1 This Contract and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter.
18.2 Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding whether in writing or not of any person, whether party to this Contract or not, relating to the subject matter of this Contract, other than as expressly set out in this Contract.
19. Assignment and Sub-Contracting
19.1 Subject to clause 19.2, neither party shall, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract, provided that the Supplier shall be permitted to charge its rights under this Contract to a bona fide debt or convertible debt provider in the usual course of business.
19.2 The parties may at any time assign, transfer, charge and/or sub-contract their rights or obligations to a member of that party’s corporate group. In the event that either party sub-contracts any of its obligations under this Contract in accordance with this clause, it will not be relieved of any of its liabilities or obligations under this Contract as a result of entering into any such sub-contracts.
20. No Partnership or Agency
Nothing in this Contract 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).
21. Third Party Rights
This Contract does not confer any rights on any person or party, other than the parties to this Contract and, where applicable, their successors and permitted assigns, pursuant to the Contracts (Rights of Third Parties) Act 1999.
22. Notices
22.1 Any notice required to be given under these Terms and Conditions shall be in writing and shall be sent by email, to the email address notified to the other party.
22.2 A notice delivered by email shall be deemed to have been received when transmitted. This shall not apply to the service of legal proceedings.
23. Governing Law
This Contract, 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.
24. 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 Contract or its subject matter or formation including non-contractual disputes or claims and the parties waive any right to object to proceedings being brought in such courts for any reason.