Lucett - Terms & Conditions For Transport Companies

PLEASE READ THESE TERMS AND CONDITIONS (THE ‘AGREEMENT’) CAREFULLY. BY ACCESSING OR USING THE SERVICES (DEFINED BELOW) IN ANY WAY, CLICKING ON THE THE ‘Yes, I understand and agree to the Lucett Terms of Service, including the User Agreement and Privacy Policy‘ OPTION ON REGISTRATION PAGE YOU ACKNOWLEDGE AND AGREE THAT A LEGALLY BINDING AGREEMENT IS FORMED BETWEEN YOU AND LUCETT LTD AND YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE LEGAL ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM ‘TRANSPORT COMPANY’ OR ‘YOU’ REFERS TO THE LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER DURING THE REGISTRATION PROCESS ON THE WEBSITE.

IF YOU OR THE LEGAL ENTITY DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

THIS AGREEMENT is a legal agreement between the Transport Company and LUCETT LTD incorporated and registered in England and Wales with company number 10889645 whose registered office is at 71-75 Shelton Street, London, Greater London, United Kingdom, WC2H 9JQ (the ‘Supplier’ or ‘we’, and ‘our’ and ‘us’ shall be construed accordingly).

Background

The Supplier wishes to appoint the Transport Company as one of its ‘Approved Transport Companies’ to promote the Supplier’s Services and provide Transport Services to the Supplier’s Customers, and the Transport Company wishes to accept such appointment on and subject to the terms and conditions of this Agreement.

Agreed Terms

INTERPRETATION
1. The definitions and rules of interpretation in this clause apply in this Agreement.
  1. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  2. ‘Normal Business Hours’ means [9:00am to 5:00pm] local UK time, each Business Day.
  3. ‘Confidential Information’ means information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information.
  4. ‘Control’ means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
  5. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
  6. ‘Data Protection Legislation’ means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party].
  7. ‘Effective Date’ means the date on which the Transport Company accepts these terms by accessing or using the Services in any way, clicking on the ‘I accept’ button, and/or completing the registration process..
  8. ‘Equipment’ means the Hand held scanning device(s) rented or sold to the Transport Company by the Supplier.
  9. ‘Initial Subscription Term’ means the initial term of this Agreement being the [12 months] immediately following the Effective Date.
  10. ‘Introduction’ means the provision to the Supplier of the contact details of an employee at a Prospective Client who knows one or more individuals at the Transport Company and is of sufficient seniority to authorise or recommend the purchase of the Supplier’s Services from the Supplier. Introduce, Introduces, and Introduced shall be interpreted accordingly.
  11. ‘Intellectual Property Rights’ means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  12. ‘Prospective Client’ means a person or company to whom the Supplier has not at any time previously provided the Supplier’s Services and with whom the Supplier has not been in bona fide negotiations to provide the Supplier’s Services in the six months before the introduction by the Transport Company.
  13. ‘Renewal Period’ means the period described in clause 1.
  14. ‘RFID Tag’ means a radio frequency identification tag supplied by the Supplier.
  15. ‘Subscription Fees’ means the subscription fees payable by the Transport Company to the Supplier for the User Subscriptions as set out on the Website or as otherwise notified by the Supplier to the Customer in writing..
  16. ‘Supplier’s App’ means the Supplier’s mobile software application which it makes available on the Apple App Store and Google Play under the name
  17. ‘Suppliers’ Customers’ means a customer of the Supplier who has contracted with the Supplier for the Supplier’s Services.
  18. ‘Supplier’s Logo’ means the logo which can be found at our brand guidelines or such other logo as the Supplier may give the Transport Company permission to use from time to time.
  19. ‘Supplier’s Services’ means the software and software applications which it makes available to customers via the internet on a subscription basis for the purpose of tracking the location and monitoring the condition of fine art, furniture and other assets in transit or storage.
  20. ‘Supplier’s Terms of Use’ means the terms of use for the Supplier’s Services which can be found at Lucett Legal page.
  21. ‘Territory’ means the worldwide.
  22. ‘Trade Marks’ means the mark LUCETT and the Supplier’s Logo, together with any further trade marks which the Supplier may permit or procure permission for the Transport Company by express notice in writing to use in respect of the Supplier’s Service.
  23. ‘Transport Services’ means the storage or transport of an asset owned by the Suppliers’ Customers.
  24. UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
2. Clause and paragraph headings shall not affect the interpretation of this Agreement.
3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
8. A reference to writing or written includes faxes but not e-mail.
9. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
APPOINTMENT
1. The Supplier hereby appoints the Transport Company on a non-exclusive basis as one of its ‘Approved Transport Companies’ to promote the Supplier’s Services. For the avoidance of doubt, the Transport Company shall contract directly with the Supplier’s Customers in relation to the provision of the Transport Services.
2. During the term of this Agreement, the Transport Company undertakes not to distribute, create or promote any products or services which would compete with the Supplier’s Services.
3. The Transport Company shall be entitled to describe itself as an ‘Authorised Transport Company’ of the Supplier but shall not represent itself as an agent of the Supplier for any purpose, nor pledge the Supplier’s credit or give any condition or warranty or make any representation on the Supplier’s behalf or commit the Supplier to any contracts. Further, the Transport Company shall not without the Supplier’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Supplier’s Services which are inconsistent with those contained in the promotional material supplied by the Supplier or otherwise incur any liability on behalf of the Supplier howsoever arising.
4. The Transport Company shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind the Supplier in any way, and shall not do any act which might reasonably create the impression that the Transport Company is so authorised.
5. The Transport Company must disclose to each Prospective Client that it is an introduction agent of the Supplier and that it has no authority to negotiate or vary the Services of the terms of the Services or enter into any contract on behalf of the Supplier.
6. The Transport Company’s appointment under this clause 2 only grants to the Transport Company a licence to promote the Supplier’s Services, and does not transfer any right, title or interest to any such Supplier’s Services to the Transport Company or its customers except as expressly set out in this Agreement. Use of the terms ‘sell’, ‘license’, ‘purchase’, ‘licence fees’ and ‘price’ will be interpreted in accordance with this clause.
TRANSPORT COMPANY'S UNDERTAKINGS
1. The Transport Company undertakes and agrees with the Supplier to:
  1. use its best endeavours to promote the Supplier’s Services and Introduce Prospective Clients to the Supplier;
  2. promptly refer all enquiries relating to the Supplier’s Services to the Supplier;
  3. act in good faith and not allows its interests to conflict with its duties under this Agreement;
  4. use all reasonable endeavours to promptly accept orders for Transport Services from the Supplier’s Customers and to enter into a contract for such Transport Services directly with the Supplier’s Customer in each case;
  5. perform the Transport Services with the highest quality of skill and care and in accordance with all good industry practices;
  6. comply with all applicable laws and regulations in connection with its appointment under this Agreement; and
  7. inform the Supplier immediately of any changes in ownership or Control of the Transport Company and of any change in its organisation or method of doing business which might affect the performance of the Transport Company’s duties in this Agreement.
USE OF THE SUPPLIER’S SERVICES
1. The Transport Company shall have the right to use the Supplier’s Services in connection with the provision of Transport Services to the Supplier’s Customers in accordance with this clause.
2. The Transport Company shall comply with the Supplier’s Terms of Use in connection with its use of the Supplier’s Services.
3. The Transport Company shall only have the right to download and use the Supplier’s App on the Equipment.
COMMISSION / PAYMENT
1. The Transport Company shall pay the Subscription Fees to the Supplier in accordance with this clause 5.
2. The Transport Company shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Transport Company provides:
  1. its credit card details to the Supplier, the Transport Company hereby authorises the Supplier to bill such credit card:
    1. on the Effective Date for the Subscription Fees payable in accordance with clause 5.1 respect of the Initial Subscription Term; and
    2. subject to clause 1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; or
  2. its approved purchase order information to the Supplier, the Supplier shall invoice the Transport Company:
    1. subject to clause 5.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Transport shall pay each invoice within 30 days after the date of such invoice.
3. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
  1. the Supplier may, without liability to the Transport Company, disable the Transport Company’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of [the Supplier's bankers in the UK] from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
4. The Transport Company shall be entitled to reductions in its Subscription Fees in accordance with the information available at [INSERT LINK].
5. All amounts and fees stated or referred to in this Agreement:
  1. are, non-cancellable and non-refundable; and
  2. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
6. The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 90 days' prior notice to the Transport Company.
ADVERTISING AND PROMOTION
1. The Transport Company shall:
  1. observe all reasonable directions and instructions given to it by the Supplier in relation to the promotion and advertisement of the Supplier’s Services;
  2. conduct its business in a manner that reflects favourably at all times on the Supplier and the good name, goodwill and reputation of the Supplier and not enter into any contract or engage in any practice that is or may be detrimental to the interests of the Supplier; and
  3. avoid deceptive, misleading or unethical practices that are, or might be, detrimental to the Supplier, the Supplier’s Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to the Supplier or the Supplier’s Services.
ANTI-BRIBERY
1. The Transport Company shall:
  1. comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (‘Relevant Requirements’);
  2. comply with such of the Supplier’s ethics and anti-bribery policies as are notified to it from time to time (‘Relevant Policies’);
  3. have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
  4. promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Transport Company in connection with the performance of this Agreement;
  5. immediately notify the Supplier (in writing) if a foreign public official becomes an officer or employee of the Transport Company or acquires a direct or indirect interest in the Transport Company (and the Transport Company warrants that it has no foreign public officials as officers or employees or direct or indirect owners at the date of this Agreement);
  6. within one month of the date of this Agreement, and annually thereafter, certify to the Supplier in writing signed by an officer of the Transport Company, compliance with this clause 7 by the Transport Company and all persons associated with it and all other persons for whom the Transport Company is responsible under clause 1.3. The Transport Company shall provide such supporting evidence of compliance as the Supplier may reasonably request.
2. Without prejudice to clause 1 the Transport Company shall ensure that any person associated with the Transport Company who is performing services in connection with this Agreement 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 Transport Company in this clause 7 (‘Relevant Terms’). The Transport Company shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Supplier for any breach by such persons of any of the Relevant Terms howsoever arising.
3. Breach of this clause 7 shall be deemed a material breach, which is irredeemable, under clause 2.1.
4. For the purpose of this clause 7, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 7 a person associated with the Transport Company includes but is not limited to any subcontractor of the Transport Company.
INTELLECTUAL PROPERTY RIGHTS
1. Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the Supplier’s Services belong, and shall belong, to the Supplier and/or its licensors.
2. The Supplier makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Supplier’s Services and the Trade Marks nor as to whether the same infringe on any Intellectual Property Rights of third parties.
3. The Supplier grants to the Transport Company a non-exclusive, revocable, personal licence (subject to the terms and conditions of this Agreement and during its term and solely for the purposes of performing the Transport Company’s obligations under this Agreement) to use the Trade Marks in relation to the Supplier’s Services for the purpose of the promotion, advertisement and sale of the Supplier’s Services.
4. The Transport Company shall be entitled to display the Supplier’s Logo on its website containing a hyperlink to lucett.com in strict accordance with the Supplier’s brand guidelines which are available at brand guidelines
5. The Transport Company shall not:
  1. use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Supplier therein;
  2. use in relation to the Supplier’s services any trade marks other than the Trade Marks without obtaining the prior written consent of the Supplier; or
  3. use any trade marks or trade names so resembling any trade mark or trade names of the Supplier as to be likely to cause confusion or deception.
6. Other than the licences expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this Agreement, the Transport Company shall have no rights in respect of any trade names or trade marks used by the Supplier in relation to the Supplier’s Services or their associated goodwill, and the Transport Company hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, the Supplier.
7. The Transport Company shall promptly give notice in writing to Supplier in the event that it becomes aware of:
  1. any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to the Supplier’s Services; and
  2. any claim that any of the Supplier’s Services, whether or not under the Trade Marks, infringes the rights of any third party.
8. In the case of any matter falling within clause 6.1:
  1. the Supplier shall, in its absolute discretion determine what action if any shall be taken in respect of the matter; and
  2. the Supplier shall have sole control over and shall conduct any consequent action as it shall deem necessary; and the Supplier shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action;
9. In the case of any matter falling within clause 6.2:
  1. the Supplier and the Transport Company shall consult to decide what steps shall be taken to prevent or terminate the infringement and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded in their favour or against them; and
  2. failing agreement between the parties, either party shall be entitled to take all action as it shall consider to be necessary or appropriate at its own expense to defend such a claim and shall be entitled and subject to all damages and other sums which may be recovered or awarded against it as a result of any such action.
10. Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.
CONFIDENTIALITY
1. Each party may have access to Confidential Information of the other party under this Agreement. A party's Confidential Information shall not include information that:
  1. is or becomes publicly known through no act or omission of the receiving party; or
  2. was in the other party's lawful possession prior to the disclosure; or
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.
2. Subject to clause 9.4, each party shall hold the other's Confidential Information in confidence and, unless required by law, not 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 Agreement.
3. Each party agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
5. This clause 9 shall survive termination of this Agreement for any reason.
PROTECTION AND PROCESSING OF PERSONAL DATA
1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
2. The parties acknowledge that where the Transport Company processes any personal data on the Supplier’s behalf when performing its obligations under this Agreement, the Supplier is the controller and the Transport Company is the processor for the purposes of the Data Protection Legislation.
3. Without prejudice to the generality of clause 1, the Supplier will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Transport Company (or collection of the personal data by the Transport Company on the Supplier’s behalf) for the duration and purposes of this Agreement so that the Transport Company may lawfully use, process and transfer the personal data in accordance with this Agreement on the Supplier’s behalf.
4. Without prejudice to the generality of clause 1, the Transport Company shall, in relation to any personal data processed in connection with the performance by the Transport Company of its obligations under this Agreement:
  1. process that personal data only on the documented written instructions of the Supplier unless the Transport Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Transport Company and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Transport Company is relying on Applicable Laws as the basis for processing personal data, the Transport Company shall promptly notify the Supplier of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Transport Company from so notifying the Supplier;
  2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Supplier, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
  3. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
    1. the Supplier or the Transport Company has provided appropriate safeguards in relation to the transfer;
    2. the data subject has enforceable rights and effective legal remedies;
    3. the Transport Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
    4. the Transport Company complies with reasonable instructions notified to it in advance by the Supplier with respect to the processing of the personal data;
  4. assist the Supplier, at the Supplier’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify the Supplier without undue delay on becoming aware of a personal data breach;
  6. at the written direction of the Supplier, delete or return personal data and copies thereof to the Supplier on termination of the agreement unless required by Applicable Law to store the personal data; and
  7. maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and immediately inform the Supplier if, in the opinion of the Transport Company, an instruction infringes the Data Protection Legislation.
5. The Supplier does not consent to the Transport Company appointing any third party processor of personal data under this Agreement.
6. Either party may, at any time on not less than 30 days' notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
7. Without prejudice to the preceding provisions of this clause 10, the Transport Company shall provide to the Supplier on request a copy of all personal data held by it pursuant to this Agreement, in the format and on the media reasonably specified by the Supplier, and shall promptly inform the Supplier if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The Transport Company will restore such data at its own expense.
WARRANTIES
1. Each party represents, warrants and undertakes that:
  1. it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licences referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
  2. without affecting its other obligations under this Agreement, it shall comply with all applicable Legislation in the performance of its obligations under this Agreement.
LIMITATION OF LIABILITY
1. Except as expressly and specifically provided in this Agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
2. Nothing in this Agreement excludes the liability of the Supplier:
  1. for death or personal injury caused by the Supplier’s negligence; or
  2. for fraud or fraudulent misrepresentation.
3. Subject to clause 2 the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
  1. loss of profits; or
  2. loss of business; or
  3. depletion of goodwill or similar losses; or
  4. loss of anticipated savings; or
  5. loss of goods; or
  6. loss of use; or
  7. loss or corruption of data or information; or
  8. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
4. Subject to clause 12.2 the Supplier’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the amount actually paid by the Transport Company to the Supplier under this Agreement in the 12 months preceding the date on which the claim arose.
TERM AND TERMINATION
1. This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 13.2 or clause 13.3 or this clause, this Agreement shall continue for 12 months and shall automatically extend for 12-monthly periods (each a ‘Renewal Period’) at the end of the Initial Term and at the end of each Renewal Period. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Renewal Term, to terminate this Agreement at the end of the Initial Term or the relevant Renewal Period, as the case may be.
2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment; or
  2. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
  3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or 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; or
  4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
  5. 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; or
  6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party, as if the words ‘it is proved to the satisfaction of the court’ did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or
  7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
  8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
  9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or
  10. 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 13.2,1 to clause 13.2.9 (inclusive); or
  11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
3. Without prejudice to any other rights or remedies to which the Supplier may be entitled, the Supplier may terminate the Agreement without liability to the Transport Company if:
  1. there is a change of control of the Transport Company; or
  2. the Transport Company purports to assign any of its rights or obligations under this Agreement.
EFFECTS OF TERMINATION
1. Upon termination or expiry of this Agreement for any reason:
  1. all rights and licences granted under this Agreement shall immediately terminate; and
  2. the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;
  3. each party shall return, at their own cost, and make no further use of the Equipment, property, Documentation and other items (and all copies of them) belonging to the other party.
2. The termination of this Agreement shall not of itself give rise to any liability on the part of the Supplier to pay any compensation to the Transport Company for loss of profits or goodwill, to reimburse the Transport Company for any costs relating to or resulting from such termination, or for any other loss or damage.
FORCE MAJEURE
Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Transport Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for [six] months, the party not affected may terminate this Agreement by giving [30 days'] written notice to the other party.
WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
SEVERANCE
1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
2. If any provision or part-provision of this Agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
ENTIRE AGREEMENT
1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
4. Nothing in this clause shall limit or exclude any liability for fraud.
VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
ASSIGNMENT
1. The Transport Company shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
NO PARTNERSHIP OR AGENCY
1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in clause 2.
2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
THIRD PARTY RIGHTS
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
NOTICES
1. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. sent by fax to its main fax number.
2. Any notice or communication] shall be deemed to have been received:
  1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
  3. if sent by fax, at 9.00 am on the next Business Day after transmission.
3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, ‘writing’ shall not include e-mail.
GOVERNING LAW
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.
JURISDICTION
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, its subject matter or its formation (including non-contractual disputes or claims).