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CUSTOMER AGREEMENT

This Agreement sets forth the terms and conditions between Customer (as defined below) and Skipper Logistics Ltd t/a Freighthood.com (“Freighthood,” “we,” “our,” or “us”) which govern Customer’s and its Affiliates’ license to access and use Freighthood’s Services. The Agreement is effective as of the date that you sign up for any Service online, submit an Order Form, or sign a Contract Schedule (“Contract Schedule”) that references this Agreement (“Effective Date”).

By accepting this Customer Agreement (“Customer Agreement”), either by clicking a box indicating your acceptance, executing an Order Form, signing a Contract Schedule or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organization, business, or other legal entity for which you act (“Customer,” “you,” or “Your”); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.

If you are accessing or using the Service on behalf of an organization, then your organization is legally and financially responsible for your access to and use of the Service as well as for the use of your Freighthood account by others affiliated with the organization, including any employees, agents or contractors.

TERMS AND CONDITIONS

IT IS AGREED as follows:

1.  DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation set out in Schedule 1 (Definitions and Interpretation) shall apply to this Agreement.

2.  RIGHTS OF USE

2.1 Subject to the terms of this Agreement and the payment of the Charges, Freighthood hereby grants to the Customer a non-exclusive, non-transferrable right (without the right to grant sub-licences) to permit the Authorised Users to use the Services and the Documentation (and any Updates and Upgrades) for the internal business purposes of the Customer during the Term.

3. AUTHORISED USERS

3.1 The Customer is entitled to remove an individual as an Authorised User and replace them with another individual in accordance with the terms of this Agreement, but accounts created for Authorised Users cannot be shared or used by more than one individual at the same time.

3.2 The Customer shall, and shall procure all Authorised Users shall, at all times, comply with all provisions of this Agreement.

3.3 Subject to Clause 9.4, when an individual is removed as an Authorised User for any reason whatsoever Freighthood shall, upon written request from the Customer received within fourteen (14) days following the date of such removal, promptly return to the Customer all data associated with such Authorised User’s access to and use of the Services.  Following expiry of the  fourteen (14) day period, Freighthood shall promptly destroy and delete any copies of such data.  Freighthood reserves the right to charge the Customer a fee for returning to the Customer all data associated with an Authorised User’s access to and use of the Services, in accordance with Freighthood’s standard pricing terms. 

4. SERVICES

4.1 Freighthood shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

4.2 Freighthood may suspend access to the Services to all or some of the Authorised Users if:

4.2.1 Freighthood suspects that there has been any misuse of the Services or breach of this Agreement; or

4.2.2 in accordance with clause 6.5.1 of this Agreement.

4.3 Where the reason for the suspension is suspected misuse of the Services or breach of this Agreement, without prejudice to its rights under this Agreement, Freighthood will take steps to investigate the issue and may restore or continue to suspend access at its discretion.

4.4 Notwithstanding Freighthood’s duties and responsibilities in relation to the Services, the Customer shall retain responsibility and accountability for (and, to the largest extent permitted by law, Freighthood shall have no liability in respect of):

4.4.1 the management, conduct and operation of the Customer’s business and its affairs;

4.4.2 deciding on its use of, choosing to what extent the Customer wishes to rely on, or implementing advice or recommendations or other product of the Services;

4.4.3 making any decision affecting the Services, any product of the Services, the Customer’s interests or the Customer’s affairs; and

4.4.4 the delivery, achievement or realisation of any benefits directly or indirectly related to the Services which require implementation by the Customer.

4.5 Freighthood may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or Freighthood’ operations and for the purposes of the further development and improvement of Freighthood’ services, provided that such activities at all times comply with applicable laws.

5. UPDATES AND UPGRADES

5.1 The Customer acknowledges that Freighthood shall be entitled to modify the features and functionality of the Software by means of an Update or Upgrade. 

5.2 Freighthood shall ensure that such Updates or Upgrades do not adversely affect the use of the Software by the Customer or Authorised Users.

6. CHARGES

6.1 The Charges and any other charges expressly agreed between the parties in writing or specified on the Order Form, shall be paid by the Customer at the rates and in the manner described in the Order Form or the Contract Schedule.

6.2 The currency of this Agreement is pounds sterling and all amounts due under this Agreement shall be invoiced in pounds sterling, unless otherwise specified on the Order Form or Contract Schedule.

6.3 The Charges are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.

6.4 Unless specified otherwise in an Order Form or Contract Schedule, the Charges shall be due and payable in full at the time of purchase. In the case of non-payment or delinquent payment, and without prejudice to any other rights and remedies of Freighthood:

6.4.1 Freighthood may, without liability to the Customer, disable the Authorised User’s password, account and access to all or part of the Services and Freighthood shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

6.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

6.5 Freighthood shall be entitled to increase the Charges at the start of each Renewal Term upon thirty (30) days’ prior notice to the Customer and the Charges shall be deemed to have been amended accordingly.

7.  WARRANTIES

7.1 Each party warrants and undertakes that:

7.1.1 it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and

7.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under this Agreement.

7.2 Subject to clauses 7.3 and 7.4, Freighthood warrants to the Customer that:

7.2.1 it will provide the Services in accordance with Good Industry Practice;

7.2.2 the Software will incorporate security features reflecting the requirements of Good Industry Practice; and

7.2.3 the Services when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.

7.3 Freighthood disclaims, to the extent permitted by law, all express or implied representations, warranties, guarantees and conditions with regard to the Services’ merchantability, satisfactory quality and fitness for a particular purpose.

7.4 Freighthood does not guarantee that use of the Services will be error-free or uninterrupted, or that Freighthood will correct all errors in the Services.

8. CUSTOMER’S RESPONSIBILITIES

8.1 The Customer shall (and shall ensure all its Authorised Users shall): 

8.1.1 at all times comply with all applicable laws relating to the use or receipt of the Services;

8.1.2 provide Freighthood with all necessary co-operation in relation to this Agreement and access to such information as may be required by Freighthood in order to provide the Services;

8.1.3 comply with all applicable laws and regulations with respect to its activities under this Agreement;

8.1.4 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;

8.1.5 obtain and maintain all necessary licences, consents, and permissions necessary for Freighthood, its contractors and agents to perform their obligations under this Agreement, including the Services;

8.1.6 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of this Agreement;

8.1.7 ensure that any Customer Data that it provides and its network and systems comply with the relevant specifications provided by Freighthood from time to time; 

8.1.8 be, to the extent permitted by applicable law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Freighthood’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;

8.1.9 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify Freighthood.

8.2The Customer shall not (and shall ensure that its Authorised Users shall not) knowingly access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:

8.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

8.2.2 infringes any rights of third parties;

8.2.3 facilitates illegal activity;

8.2.4 depicts sexually explicit images;

8.2.5 promotes unlawful violence;

8.2.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

8.2.7 is otherwise illegal or causes damage or injury to any person or property.

8.3 The Customer shall not:

8.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;

(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; 

(c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; 

(d) use the Services and/or Documentation to provide services to third parties;

(e)  license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Agreement.

9. INTELLECTUAL PROPERTY

9.1  All Intellectual Property Rights in the Software (including any source code), Documentation and the Services, in any developments of or enhancements to the Software or Services (including where created during the provision of services to the Customer), and in any feedback or improvements suggested by the Customer or its representatives in respect of software, products or services provided by Freighthood are, and shall remain, the property of Freighthood. The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that Freighthood may consider necessary or desirable to perfect the right, title and interest of Freighthood in and to the Intellectual Property Rights in the Software, Services and Documentation

9.2 Subject to clause 9.4, all Intellectual Property Rights in and to the information (including Customer Data) that is contained and all other output generated by the Customer’s use of the Services belong to and shall remain vested in the Customer. Freighthood assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights to the Customer.

9.3 To the extent the Customer provides any ideas, feedback or suggestions regarding the Software and/or any of Freighthood’s other products or services (“Feedback”) to Freighthood, the Customer assigns all ownership, right, title and interest in and to such Feedback to Freighthood and acknowledges that Freighthood may freely use and otherwise in any way exploit such Feedback without payment of any royalties or other consideration to the Customer.

9.4 Freighthood may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data (including Customer Data and Customer Confidential Information) from the Services in aggregated form, for security purposes or operations management, or in order to develop and enhance the products and/or services that Freighthood provides or create statistical analyses or for the purposes of carrying out research (“Service Data”). Freighthood may disclose, distribute, transfer or otherwise make available Service Data provided always that Service Data will not incorporate any Customer Data or Customer Confidential Information which has not been anonymised. Freighthood retains all Intellectual Property rights in Service Data.

9.5 Except for the rights expressly granted in this Agreement, the Customer and any Authorised Users and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Software or the Services and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

9.6 This clause 9 shall survive the termination or expiry of this Agreement.

10. FREIGHTHOOD INDEMNITY

10.1 Subject to this remainder of this clause 10, Freighthood shall indemnify and keep the Customer indemnified at all times for all costs and damages awarded or agreed in settlement or final judgment of a Third Party Claim, provided that:

10.1.1 Freighthood is given prompt notice of any such claim;

10.1.2 the Customer provides reasonable co-operation to Freighthood in the defence and settlement of such claim, at Freighthood’s expense; and

10.1.3 Freighthood is given sole authority to defend or settle the claim.

10.2 If Freighthood reasonably determines, or any third party alleges, that the use of the Services or the Documentation by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, Freighthood shall at its own cost and expense:

10.2.1 modify the Services or the Documentation in such a way that they no longer infringe the relevant Intellectual Property Rights; or

10.2.2 procure for the Customer the right to use the Services or the Documentation in accordance with this Agreement.

10.3 Freighthood shall have no liability or obligation under this clause 10 in respect of (and shall not be obligated to defend) any Third Party Claim which arises from:

10.3.1 any breach of this Agreement by the Customer; or

10.3.2 use of the Services (or any part) otherwise than in accordance with this Agreement; or

10.3.3 a modification of the Services or Documentation by anyone other than Freighthood; or

10.3.4 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Freighthood; or

10.3.5 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Freighthood or any appropriate authority.

 

1. Definitons and Interpretations
2. Rights of Use
3. Autorised Users
4. Services
5. Updates an Upgades
6. Charges
7. Warranties
8. Customer's Responsibilities
9. Intellectual Property
10. Freighthood Indemnity
11. Customer Data
12. Confidential Information
13. Limitation of Liability
14. Insurance
15. Term and Termination
16. Consequences of Termination
17. Force Majeure
18. Anti-Bribery and Corruption
19. Entire Agreement
20. Notices
11.  CUSTOMER DATA

11.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

11.2 If Freighthood becomes aware of any allegation that any Customer Data may not comply with any part of this Agreement Freighthood shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any part of this Agreement and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful Freighthood shall notify the Customer before taking such action. The Customer shall indemnify Freighthood for any and all liabilities incurred by Freighthood due to or in connection with any claim that Freighthood is not entitled to use the Customer Data to provide the Services. 

11.3 During the Term and upon a request from the Customer, Freighthood shall provide the Customer with assistance extracting, transferring or recovering data (including Customer Data and Customer Confidential Information). The Customer acknowledges and agrees that Freighthood may: (a) take up to five (5) Business Days to provide Customer with any such data that has been requested; and (b) charge the Customer a fee for providing assistance with such extracting, transfer or recovery of data in accordance with Freighthood’s standard pricing terms.

11.4 The Customer hereby grants to Freighthood a non-exclusive, royalty-free, perpetual, irrevocable licence to copy, modify, reproduce, store, publish, export, adapt, edit and translate the Customer Data, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers strictly to the extent required for the performance of Freighthood’s obligations under this Agreement or to allow Freighthood to exercise its rights under clause 9.4.

11.5 Where Freighthood processes Personal Data on the Customer’s behalf when performing its obligations under this Agreement (“Customer Personal Data”), the parties agree that the Customer shall be the Controller and Freighthood shall be a Processor and in any such case:

11.5.1 Freighthood shall not Process such Personal Data other than on the Customer’s documented lawful and reasonable instructions unless Processing is required by applicable laws to which Freighthood is subject, in which case Freighthood shall to the extent permitted by applicable laws inform the Customer of that legal requirement before the relevant Processing of that Personal Data;

11.5.2 such Processing shall be in accordance with Schedule 4 (Data Processing Details);

11.5.3 Freighthood shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to such Personal Data, ensuring in each case that access is limited to those individuals who need to know/access the relevant Personal Data, as reasonably necessary for the purposes of this Agreement, and ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;

11.5.4 without prejudice to clause 22.2, the Customer agrees that Freighthood may use those Subprocessors already engaged by Freighthood as at the Effective Date. Freighthood shall give the Customer prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 14 days of receipt of that notice, the Customer notifies Freighthood in writing of any objections (on reasonable grounds) to the proposed appointment, Freighthood shall not appoint that proposed Subprocessor until reasonable steps have been taken to address the objections raised by the Customer and the Customer has been provided with a reasonable written explanation of the steps taken. If Freighthood is unable to address the objections raised by the Customer within a reasonable period of time, which shall not exceed sixty (60) days, the Customer may terminate this Agreement with respect only to those Services which cannot be provided by Freighthood without the use of the objected-to new Subprocessor by providing written notice to Freighthood. Freighthood shall ensure that the arrangement between it and each Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Agreement;

11.5.5 taking into account the nature of the Processing, Freighthood shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations, as reasonably understood by the Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws;

11.5.6 Freighthood shall notify the Customer without undue delay upon Freighthood becoming aware of a Personal Data Breach affecting such Personal Data and provide the Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws;

11.5.7 Freighthood shall, at the Customer’s cost, provide reasonable assistance to the Customer in connection with (i) any data protection impact assessments, and (ii) prior consultations with any applicable Supervisory Authority or other competent data privacy authorities, which are reasonably required of the Customer by the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to the Processing of such Personal Data, and taking into account the nature of the Processing and information available;

1.5.8 upon cessation of any Services involving the Processing of Customer Personal Data (“Cessation Date”) Freighthood shall delete and procure the deletion of such copies of Customer Personal Data (if any) as are held by Freighthood or within its custody or control save that Freighthood may retain Customer Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that Freighthood shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose;

11.5.9 Freighthood shall provide to the Customer such information and assistance as may be reasonably required by the Customer to demonstrate Freighthood’s compliance with this clause 11.5 and allow audits and/or inspections by the Customer, or an auditor appointed by the Customer, in relation to the Processing of Customer Personal Data by Freighthood provided that: (i) the Customer shall give Freighthood reasonable prior notice (of not less than 60 days) of its wish to carry out any such audit or inspection and the parties will discuss and agree the timing, scope, duration and other aspects in advance of the audit or inspection; (ii) all personnel appointed by the Customer (including any personnel of any third party auditor) to carry out any such audit or inspection (“Personnel”) must provide suitable written undertakings to Freighthood, including undertakings regarding confidentiality and compliance with Freighthood’s codes of practice and regulations, including any relating to security or health and safety; (iii) all Personnel must produce evidence of their identity and authority; (iv) the Customer shall not cause any damage, injury or disruption to Freighthood’s premises, equipment, personnel and business while its Personnel are on those premises in the course of such an audit or inspection; (v) any such audit or inspection shall be carried out only during Freighthood’s normal business hours; (vi) any such audit or inspection may be carried out no more than once in any calendar year; and (vii) the extent of access permitted to Personnel will be only that strictly required to establish Freighthood’s compliance with this clause 11.5 and under no circumstances will the Personnel be entitled to access any data, systems, equipment or premises which may cause Freighthood to breach any obligations to any third party, including breach of any contractual or confidentiality obligations;

11.5.10 the Customer acknowledges and agrees that such Personal Data may be transferred or stored outside the EEA or the country where the Customer and/or the Authorised Users are located in order to carry out Freighthood's obligations under this Agreement;

11.5.11 the Customer shall ensure that it is entitled to transfer the relevant Personal Data to Freighthood so that Freighthood may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf;

11.5.12 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by Data Protection Laws; and

11.5.13 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of such Personal Data or its accidental loss, destruction or damage.

12. CONFIDENTIAL INFORMATION

12.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other party, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.

12.2 Each party undertakes to:

12.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and:

(a) shall procure that such persons are made aware of and agree in writing to observe the obligations in this clause 12; and

(b)  shall be responsible for the acts and omissions of such third parties as if they were that party’s own acts or omissions.

12.3 The provisions of this clause 12 shall not apply to information which:

12.3.1 is or comes into the public domain through no fault of the receiving party, its officers, employees, agents or contractors;

12.3.2 is lawfully received by the receiving party from a third party free of any obligation of confidence at the time of its disclosure;

12.3.3 is independently developed by the receiving party, without access to or use of the disclosing party’s Confidential Information; or

12.3.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the receiving party, where possible, notifies the disclosing party at the earliest opportunity before making any disclosure.

12.4 This clause 12 shall survive the termination or expiry of this Agreement.

13. LIMITATION OF LIABILITY

13.1 Notwithstanding any other provision of this Agreement, neither party’s liability shall be limited in any way in respect of the following:

13.1.1 death or personal injury caused by negligence;

13.1.2 fraud or fraudulent misrepresentation; or

13.1.3 any other liability which cannot be excluded or limited by applicable law.

13.2 Neither party shall be liable to the other party whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:

13.2.1 loss of profit;

13.2.2 loss of goodwill;

13.2.3 loss of business;

13.2.4 loss or corruption of data or information;

13.2.5 loss of anticipated savings; and/or

13.2.6 special, indirect or consequential loss.

13.3 Subject to clauses 13.1 and 13.2, Freighthood’s total aggregate liability howsoever arising under or in connection with this Agreement in each Contract Year shall not exceed the greater of: (i) an amount equal to the Charges paid or payable to Freighthood in the Contract Year in which the event giving rise to the claim arose; or (ii) one thousand pounds (£1,000.00) sterling. 

13.4 Except as expressly and specifically provided in this Agreement:

13.4.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Freighthood shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Freighthood by the Customer in connection with the Services, or any actions taken by Freighthood at the Customer’s direction; and

13.4.2 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.

14. INSURANCE

14.1 Freighthood shall take out and maintain for the Term adequate insurance coverage against all normal business risks including any loss, injury or damage in the performance of the Services and against its liabilities under this Agreement. 

14.2 On reasonable written request by the Customer, Freighthood shall provide the Customer with certificates of insurance which evidence Freighthood’s compliance with this clause 14.

15. TERM AND TERMINATION

15.1 This Agreement shall come into force on the Effective Date and, shall continue for the Initial Term and thereafter the Agreement shall renew for successive periods of equal length (each a “Renewal Term”) unless:

15.1.1 either party notifies the other party of termination, in writing, at least seven (7) days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term; or

15.1.2 otherwise terminated earlier in accordance with this Agreement.

15.2 Either party may terminate this Agreement immediately at any time by giving notice in writing to the other party if:

15.2.1 the other party commits a material breach of this Agreement and such breach is not remediable;

15.2.2 the other party commits a material breach of this Agreement which is not remedied within thirty (30) days of receiving written notice of such breach; 

15.2.3 the other party is subject to an Insolvency Event; or

15.2.4 any Force Majeure Event prevents the other party from performing its obligations under this Agreement for any continuous period of sixty (60) days.

16. CONSEQUENCES OF TERMINATION

16.1 On termination or expiry of this Agreement (for any reason):

16.1.1 the Customer shall, and shall procure that each Authorised User shall stop using the Software, the Documentation and the Services;

16.1.2 the Customer shall make payment of all Charges properly due and payable up to the date of termination; 

16.1.3 subject to clause 9.4 and clause 16.2, Freighthood shall, upon written request from the Customer received within fourteen (14) days following the date of termination or expiry, promptly return to the Customer all Customer Data.  Following expiry of the (14) day period, Freighthood shall promptly destroy and delete any copies of such Customer Data; and

16.1.4 subject to clause 9.4, each party shall destroy and delete any copies of the other party’s Confidential Information in its possession or control (or in the possession or control of any person acting on its behalf).

16.2 Freighthood reserves the right to charge the Customer a fee for returning to the Customer all Customer Data in accordance with Freighthood’s standard pricing terms.

16.3 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.

17. FORCE MAJEURE

17.1 Provided that it has complied with clause 17.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.

17.2 The Affected Party shall:

17.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of such Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of such Force Majeure Event on its ability to perform any of its obligations under this Agreement; and

17.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

18. ANTI-BRIBERY AND CORRUPTION

18.1 Freighthood shall:

18.1.1 comply with all applicable laws, statutes, regulations, relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);

18.1.2 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;

18.1.3 have and shall maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements; and

18.1.4 notify the Customer (in writing) if it becomes aware of any breach of this clause 18, or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of this Agreement.

19. ENTIRE AGREEMENT

8.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.

8.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

20. NOTICES

20.1 Any notice given by a party under this Agreement shall be:

20.1.1 in writing and in English; and 

20.1.2 sent to the relevant party at the address set out in the Order Form or Contract Schedule or at the email address set out in the Order Form or Contract Schedule.

20.2 Any notice shall be deemed to have been delivered:

20.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

20.2.2 f sent by pre-paid first-class post or other next working day delivery service, at 8.30am on the third Business Day after posting or at the time recorded by the delivery service; or

20.2.3 if sent by email, at the time of transmission (unless the time of transmission occurs outside of Business Hours, in which case the notice shall be deemed to have been delivered at 8.30am on the following Business Day).

20.3 Any change to the contact details of a party as set out in the Order Form or Contract Schedule shall be effective:

20.3.1 on the date specified in the notice as being the date of such change; or

20.3.2 if no date is so specified five (5) Business Days after the notice is deemed to be received.

21. Variation
22. Assignment and subcontracting
23. No Partnership or Agency
24. Severance
25. Waiver
26. Third Party Rights
27. Dispute Resolution
28. Counterparts
29. No Solicitation
30. Governing Law and Jurisdiction
31. Free Trials and Beta Services
Schedule 1
Schedule 2
Schedule 4
21. VARIATION

21.1 No variation of this Agreement shall be valid or effective unless it is made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

22. ASSIGNMENT AND SUBCONTRACTING

22.1 The Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without Freighthood’s prior written consent.

22.2 Freighthood may at any time assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part under this Agreement without the consent of the Customer.

23. NO PARTNERSHIP OR AGENCY

23.1 The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

24. SEVERANCE

24.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

24.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

25. WAIVER

25.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

25.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.

25.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

26. THIRD PARTY RIGHTS

26.1 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.

27.  DISPUTE RESOLUTION

27.1 Any dispute between the parties that is not resolved informally between the parties must be referred in writing by either party to a representative of the other party. If upon expiry of thirty (30) Business Days following referral to the representative, the dispute remains unresolved, the dispute may be referred to a director of each party to attempt to resolve.

27.2 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 27.1 have been completed. 

28. COUNTERPARTS

28.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed and delivered an executed counterpart to the other party.

28.2 A counterpart of this Agreement may be delivered by a party (the “”) to the other party by:

28.2.1 the executing party printing out and signing the signature page of the agreed final form of the Agreement; and

28.2.2 the executing party scanning that signed signature page to an electronic file (typically but not exclusively a pdf file); and

28.2.3 the executing party (or its legal representative) emailing the file of the scanned signature page together with a copy of the agreed final form of this Agreement to the other party.

29. NON SOLICITATION

29.1 For the Term of this Agreement and for the period of six (6) months thereafter, each party must not, without the prior written consent of the other party, directly induce or attempt to induce from the employment of the other party, or any of its Affiliates, any person directly involved in the provision or receipt of the Services, This clause shall not apply to restrict any person from employing (or offering to employ) any employee who has responded to general recruitment advertising through a publicly available medium.

30.  GOVERNING LAW AND JURISDICTION

30.1 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. 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).

31. FREE TRIALS AND BETA SERVICES

31.1 This Section describes the additional terms and conditions under which you may access and use certain features, technologies, and services made available to you by Freighthood that are not yet generally available, including, but not limited to, any products, services, or features designated or labeled as “beta,” “early access,” “preview,” “pilot,” or similar designation (each, a “Beta Service”);

31.2 You must comply with all terms related to any Beta Service that Freighthood posts on its website or provides to you. Freighthood may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Service at any time;

31.3 You may provide Freighthood with feedback relating to the Beta Services. Freighthood will own and may use and evaluate all feedback for its own purposes;

31.4 Freighthood may suspend or terminate your access to or use of any Beta Service at any time. Your access to and use of each Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by Freighthood;

31.5 WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT, BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, FREIGHTHOOD PROVIDES BETA SERVICES “AS IS.” FREIGHTHOOD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, FREIGHTHOOD DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT;

31.6 If you register for a free trial, we will make the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period; (b) the start date of any Subscription; or (c) termination of the trial by us. Free trials are for evaluation purposes only. We may terminate your free trial at any time in our sole discretion;

SCHEDULE 1

DEFINITIONS AND INTERPRETATION

 

1. In this Agreement:

Affiliate” means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;

Agreement” means the Order Form or Contract Schedule, the Terms and Conditions and the Schedules;

Authorised Users” means the employees, agents and independent contractors of the Customer (and the total number) who may use the Services, as set out in paragraph 1 Schedule 2 (Services);

Business Day” means a day other than a Saturday, Sunday or bank or public holiday in England;

Business Hours” means between 8.30am to 5.30pm on a Business Day;

Cessation Date” has the meaning given to it in clause 11.5.8;

Charges” means the charges payable by the Customer to Freighthood as set out in the Contract Schedule, Order Form or as otherwise agreed between the parties in accordance with this Agreement and includes the Subscription Charges;

Confidential Information” means information that is either clearly labelled as confidential, is of a confidential nature or would appear to a reasonable person to be confidential, and shall include all (i) know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind, (ii) all information produced or developed in the performance of this Agreement; and (iii) the Software, the Documentation, the Services and the results of any performance tests in relation to the Services;

Contract Schedule” means the terms on a custom physical contract form signed and delivered by Freighthood's sales team;

Contract Year” means the period of twelve (12) months from the Effective Date and each subsequent period of twelve (12) months commencing on the anniversary of the Effective Date;

Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the same meaning as in the applicable Data Protection Laws, and their cognate terms shall be construed accordingly;

Customer” the organization, company, or other legal entity for which you act;Customer Data” means all data (in any form and including all Customer Personal Data) that is provided to Freighthood or uploaded or hosted on any part of the Software by the Customer, or by any Authorised User;

Customer Personal Data” has the meaning given to it in clause 11.5;

Data Protection Laws” means the European Union Regulation on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (Regulation 2016/679) (“GDPR”) to the extent the GDPR applies, the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time), the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as amended), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended), and all other applicable laws and regulations relating to processing of personal data;

Documentation” means the documentation listed in Schedule 3 (Documentation) and any other documentation relevant to this Agreement provided by Freighthood to the Customer from time to time;

Effective Date” means the date the Order Form was submitted, or date set out in the Contract Schedule;

Feedback” has the meaning given to it in clause 9.3;

Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation (a) acts of God, flood, drought, earthquake or other natural disasters; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; and (g) interruption or failure of utility service;

Good Industry Practice” means the degree of skill and diligence which would reasonably be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances;

Initial Term” means the term as set out in the Order Form or the Contract Schedule; 

Insolvency Event” means, where (i) a party becomes insolvent or unable to pay its debts as and when they become due; (ii) an order is made or a resolution is passed for the winding up of a party (other than voluntarily for the purpose of solvent amalgamation or reconstruction); (iii) a liquidator, administrator, administrative receiver, receiver, or trustee is appointed in respect of the whole or any part of a party’s assets or business; (iv) a party makes any composition with its creditors;  (v) a party ceases to continue its business;  or (vi) as a result of debt or maladministration a party takes or suffers any similar or analogous action in any jurisdiction;

“Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(c) including all renewals and extensions of such rights or applications;

(d) whether vested, contingent or future; and

(e) wherever existing;

Order Form” means any ordering documentation or online sign-up or subscription pages, regardless of form, agreed to between the parties which sets forth the Services licensed by the Customer and any relevant pricing. Multiple Order Forms may be entered into under this Agreement.

Personnel” has the meaning given to it in clause 11.5.9;

Renewal Term” has the meaning given to it in clause 15.1;

Schedule” means each schedule to this Agreement following the Terms and Conditions and “Schedules” shall be construed accordingly;

“Service Data” has the meaning given to it in clause 9.4;

Services” means access to the Software provided by Freighthood to the Customer under this Agreement; 

“Software” means the Freighthood App as further described in paragraph 1 of Schedule 2 (Services) and shall include any Upgrade and/or Update that Freighthood may implement from time to time in its sole discretion;

Subprocessor” means any person (including any third party, but excluding any employees of Freighthood) appointed by or on behalf of Freighthood to Process Personal Data on behalf of the Customer in connection with this Agreement;

“Subscription Charges” means the charges payable by the Customer for access to the Software;

Term” means the Initial Term and any Renewal Term(s);

Terms and Conditions” means clauses 1 – 31 (inclusive);

Third Party Claim” means any claim brought by a third party that its Intellectual Property Rights have been infringed by the Customer or an Authorised User which arises from the Customer or Authorised Users’ use of the Services, including the Software or any Documentation;

Update” means a hotfix, patch or minor version update to the Software;

Upgrade” means a major version upgrade to the Software; and

VAT” means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.

 

2. In this Agreement, unless otherwise stated:

2.1 the clause, paragraph, schedule or other headings are included for convenience only and shall have no effect on interpretation;

2.2 Freighthood and the Customer are together the parties and each a party, and a reference to a “party” includes that party’s successors and permitted assignees;

2.3 words in the singular include the plural and vice versa;

2.4 any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and

2.5 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time. 

SCHEDULE 2

SERVICES

1. SOFTWARE SERVICE DESCRIPTION

1.1 Summary

1.1.1 The Freighthood App is a multi-tenant cloud-based management platform for the management of documents, communications, and contacts for international trade operations/orders.

1.2 Document Management Functionality

1.2.1 The Freighthood App allows for the creation of reusable documents that can be used for any order or operation. 

1.2.2 Once a document is created or uploaded to an order, it is stored in the cloud for easy access and download from any supported web browser. 

1.2.3 Documents can be shared with other “Admin”, “Members”, “Read-Only” and/or “Visitor” users.

1.3 Communication Functionality

1.3.1 The Freighthood App has an integrated chat and gives each Authorised User an email account. It allows Authorised Users to create shareable hyperlinks that allow other external non-Authorised-Users to share documents or generate a chat with Authorised Users.

1.4 Architecture

1.4.1 Each Customer has its own segregated tenant for its organisation.  

1.4.2 For each tenant there are three types of Authorised User:

(a) “Admin” can modify or manage the Customer profile data, add and remove Authorised Users as well as manage, create and modify orders;

(b) “Members” can manage, create and modify orders;

(c) “Read-Only” can only see the part of the order they have been given access to see; and

(d) “Visitors” are third party users that can see and/or modify orders which they have been granted access to by the Customer’s Admins or Members.  Access can be full or partial but is always granted in relation to a particular order.

SCHEDULE 4
DATA PROCESSING DETAILS

1. Subject-matter of processing:

Facilitating the use by users of the Freighthood App to track, communicate and exchange documents in relation to the import/export of goods. 

Duration of the processing: 

Duration of the Agreement.

2. Nature and purpose of the processing:

To enable users to make use of the Freighthood App in order to track, communicate and exchange documents in relation to the import/export of goods. 

3. Type of Personal Data:

Name, e-mail address, telephone number, postal address, User ID

4. Categories of Data Subjects:

Employees, Customers, Suppliers

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