Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1. Definitions:

• Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Commencement Date: has the meaning given in clause 2.2.
• Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
• Contract: the contract between the Project Introducer and the Customer for the supply of Services in accordance with these Conditions and the LOE.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
• Customer: the person/business or firm who purchases Services from the Project Introducer.
• Customer Default: has the meaning set out in clause 4.2.
• Deliverables: any documents or files produced by the Project Introducer for the Customer in the provision of the Services.
• Fees: the fees payable by the Customer for the supply of the Services in accordance with clause 5.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
• LOE: the letter of engagement issued by the Project Introducer to the Customer confirming the nature of Services to be provided and the Fees agreed between the parties.
• Platform: the website(s) operated by the Project Introducer to facilitate the provision of the Services.
• Project Introducer: Ecomm Hub Limited registered in England and Wales with company number 15458949.
• Services: the provision of the Platform and a dedicated sales team to connect e-commerce Customers with suitable Vendors to enable them to progress their online businesses.
• Specification: the description or specification of the Services required, as stated in the LOE.
• Vendor: a third party supplier of commercial services to support e-commerce businesses within the Project Introducer’s database of vendors.
• Vendor Agreement: a third party agreement between a Customer and a Vendor introduced to the Customer via the Platform and/or the Project Introducer’s sales team.

1.2 Interpretation:

1. (a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
   1. (i) is a reference to it as amended, extended or re-enacted from time to time; and
   2. (ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
2. (b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3. (c) A reference to writing or written includes email.

2. Basis of contract

1. 2.1 The LOE constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2. 2.2 The LOE shall be deemed to be accepted when the Project Introducer receives a signed copy of the LOE, at which point and on which date the Contract shall come into existence (Commencement Date). In the event that the LOE is not signed, but the Customer continues to provide instructions to the Project Introducer after receipt of the LOE, the Customer shall be deemed to have accepted and agreed to the terms of the LOE and the documents referred to therein.
3. 2.3 Any samples, drawings, descriptive matter or advertising issued by the Project Introducer, and any descriptions or illustrations contained in the Project Introducer's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
4. 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. 2.5 Any quotation given by the Project Introducer shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. Supply of Services

1. 3.1 The Project Introducer shall supply the Services to the Customer in accordance with the Specification in all material respects.
2. 3.2 The Project Introducer shall use all reasonable endeavours to meet any performance dates specified in the LOE, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3. 3.3 You understand and agree that each Vendor Agreement is an agreement between the Customer and the Vendor. The Project Introducer is not a party to such agreement, and merely provides the Platform connecting Vendors and Customers, and provides no guarantee in relation to the Vendor’s performance of any Vendor Agreement. Accordingly, you acknowledge that the Vendor (and not the Project Introducer) is responsible for:
   1. (a) the performance and quality of the services provided by the Vendor (including any equipment or advice provided by the Vendor pursuant to a Vendor Agreement);
   2. (b) obtaining all licences, consents, qualifications and insurances that they are required to have under applicable laws, regulations and professional rules or that they are stated on the Platform as having; and
   3. (c) complying with all applicable laws, regulations and professional rules in connection with the services to be provided by the Vendor under the Vendor Agreement.
4. 3.4 The Project Introducer reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Project Introducer shall notify the Customer in any such event.
5. 3.5 The Project Introducer warrants to the Customer that the Services will be provided using reasonable care and skill.

4. Customer's obligations

4.1 The Customer shall:

• (a) ensure that the terms of the LOE are complete and accurate;
• (b) co-operate with the Project Introducer in all matters relating to the Services;
• (c) provide the Project Introducer with such information and materials as the Project Introducer may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
• (d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
• (e) comply with the terms of the LOE, these terms and conditions and the Project Introducer’s website usage terms and conditions.

4.2 If the Project Introducer's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

• (a) without limiting or affecting any other right or remedy available to it, the Project Introducer shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Project Introducer's performance of any of its obligations;
• (b) the Project Introducer shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Project Introducer's failure or delay to perform any of its obligations as set out in this clause 4.2; and
• (c) the Customer shall reimburse the Project Introducer on written demand for any costs or losses sustained or incurred by the Project Introducer arising directly or indirectly from the Customer Default.

5. Fees and payment

• 5.1 The Fees for the Services shall be determined in the LOE.
• 5.2 The Project Introducer reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
• 5.3 The Customer shall pay all Fees due to the Project Introducer:

• (a) within [30] days of the date of the invoice [or in accordance with any credit terms agreed by the Project Introducer and confirmed in writing to the Customer]; and
• (b) in full and in cleared funds to a bank account nominated in writing by the Project Introducer, and time for payment shall be of the essence of the Contract.

• 5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Project Introducer to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Project Introducer, pay to the Project Introducer such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
• 5.5 If the Customer fails to make a payment due to the Project Introducer under the Contract by the due date, then, without limiting the Project Introducer's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 8% a year above the Bank of England's base rate from time to time in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), but at 8% a year for any period when that base rate is below 0%.
• 5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. Intellectual property rights

• 6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Project Introducer.
• 6.2 The Project Introducer grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
• 6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
• 6.4 The Customer grants the Project Introducer a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Project Introducer for the term of the Contract for the purpose of providing the Services to the Customer.

7. Data protection

• 7.1 The Project Introducer shall process data of the Customer in accordance with the terms of the Project Introducer's Privacy Policy, which is available at www.e-commhub.net

8. Limitation of liability

• 8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
• 8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
• 8.3 Nothing in this clause 8 shall limit the Customer's payment obligations under the Contract.
• 8.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
  • (a) death or personal injury caused by negligence;
  • (b) fraud or fraudulent misrepresentation; and
  • (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

• 8.5 Subject to clause 8.2 (No limitation in respect of deliberate default), and clause 8.4 (Liabilities which cannot legally be limited), the Project Introducer's total liability to the Customer for all loss or damage shall not exceed the Fees received by the Project Introducer from the Customer in the 6 month period preceding the act or omission giving rise to the liability.
• 8.6 Subject to clause 8.2 (No limitation in respect of deliberate default), clause 8.3 (No limitation of customer's payment obligations) and clause 8.4 (Liabilities which cannot legally be limited), this clause 8.6 sets out the types of loss that are wholly excluded:
  • (a) loss of profits.
  • (b) loss of sales or business.
  • (c) loss of agreements or contracts.
  • (d) loss of anticipated savings.
  • (e) loss of use or corruption of software, data or information.
  • (f) loss of or damage to goodwill; and
  • (g) indirect or consequential loss.

• 8.7 Unless the Customer notifies the Project Introducer that it intends to make a claim in respect of an event within the notice period, the Project Introducer shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
• 8.8 This clause 8 shall survive termination of the Contract.

9. Termination

• 9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one month's written notice.
• 9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  • (a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
  • (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • (c) the other party commits any criminal offence, fraudulent act or omission, act of dishonesty, or acts in any manner which in the opinion of the non-defaulting party brings or is likely to bring either party into disrepute or is materially adverse to the interests of the non-defaulting party;
  • (d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • (e) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

• 9.3 Without affecting any other right or remedy available to it, the Project Introducer may terminate the Contract with immediate effect by giving written notice to the Customer if:
  • (a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
  • (b) there is a change of control of the Customer.

• 9.4 Without affecting any other right or remedy available to it, the Project Introducer may suspend the supply of Services under the Contract or any other contract between the Customer and the Project Introducer if:
  • (a) the Customer fails to pay any amount due under the Contract on the due date for payment;
  • (b) the Customer fails to comply with a request from the Project Introducer for a payment on account for a fixed fee service;
  • (c) the Customer becomes subject to any of the events listed in clause 9.2(c) or clause 9.2(d), or the Project Introducer reasonably believes that the Customer is about to become subject to any of them; and
  • (d) the Project Introducer reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2(b).

10. Consequences of termination

• 10.1 On termination of the Contract:
  • (a) the Customer shall immediately pay to the Project Introducer all of the Project Introducer's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Project Introducer shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  • (b) the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Project Introducer may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

• 10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
• 10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11. General

• 11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

• 11.2 Assignment and other dealings.
  • (a) The Project Introducer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  • (b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Project Introducer.

• 11.3 Confidentiality.
  • (a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
  • (b) Each party may disclose the other party's confidential information:
    • (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
    • (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • (c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

• 11.4 Entire agreement.
  • (a) The Contract, along with the relevant LOE, 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.
  • (b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • (c) Nothing in this clause shall limit or exclude any liability for fraud.

• 11.5 Variation.
  • Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

• 11.6 Waiver.
  • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

• 11.7 Severance.
  • If any provision or part-provision of the Contract 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. If any provision or part-provision of this Contract deleted under this clause 11.7 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.

• 11.8 Notices.
  • (a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to the address specified in the LOE.
  • (b) Any notice shall be deemed to have been received:
    • (i) if delivered by hand, at the time the notice is left at the proper address;
    • (ii) 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
    • (iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  • (c) In its performance of the Services, the Project Introducer may wish to send messages and documents electronically. The Customer acknowledges that electronic communication carries with it the possibility of inadvertent misdirection, interception or non-delivery of confidential material. If the Customer does not consent to the use of electronic communication in the course of providing the Services, it should notify the Project Introducer in writing.
  • (d) The Project Introducer does not accept responsibility and will not be liable for any damage or loss caused in connection with the receipt, interception or corruption of an electronic communication or if it contains a virus. The Project Introducer will not be liable for any damage or loss arising as a result of any unauthorised copying, recording, reading or interference with a document, for any delay or non-delivery of any document and for any damage caused by the Customer’s system.
  • (e) This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

• 11.9 Third party rights.
  • (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
  • (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

• 11.10 Governing law.
  • The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

• 11.11 Jurisdiction.
  • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.