Services Terms and Conditions (“Terms”)

IMPORTANT NOTES: 

• These Terms apply to your use of the Services (as defined below) from the date you start to use them (or any part of them) unless and until you have expressly agreed and signed a specific services contract with us, in which case, the terms and conditions of that contract apply 
• Clause 9 limits Huboo’s liability, please read it carefully 
• Huboo has insurance in place to the extent described in the KOA. For all other risks, including liability which we exclude under these Terms, you must insure the Goods (as defined below). Huboo does not underwrite their value and Huboo’s charges reflect this. The limitation of liability in clause 9 minimises the amount that the Company would otherwise need to charge to recover its insurance costs (or an amount in lieu to reflect risk) 
• Clause 5 sets out our rights to change or make charges 
• Huboo may update these Terms from time to time and will notify you of any update on (or when logging into) the Dashboard. Your continued use of our Services will constitute acceptance of our updated Terms. 

1. DEFINITION AND INTERPRETATION
   1.1. In these Terms the following terms shall have the following meanings unless the context requires otherwise:
   
   Account Manager has the meaning in clause 6.1.
   
   Business Conduct Laws means the United Kingdom Bribery Act 2010, Modern Slavery Act  2015, laws relating to failure to prevent fraud or facilitation of tax evasion in an applicable organisation or money laundering, or any similar laws relating to business conduct, and associated guidance published under such laws and all applicable equivalent laws, legislation, statutory instruments and regulations in relation to the matters dealt with in such laws applicable to (i) the Goods; (ii) any territory in which Services are provided; and/or (iii) the Customer as a result of the country it is registered or established or operates in.
   
   Business Day means any day (other than a Saturday or Sunday) when banks are generally open for normal business in the location where warehousing services are provided except in clause 5.10 in which case London shall be the location.
   
   Charges means the prices and charges charged by Huboo for or in connection with the Services as set out in the KOA or in the absence of one, on our Website, and where relevant charges are not included (for example where a Huboo service is not specified or included in such places), shall be as referred to or included in the Dashboard from time to time, as reviewed, changed and supplemented in accordance with these Terms.
   
   Confidential Information means all information, data, know-how, trade secrets and software in whatever form relating to either Huboo or you, whether tactical, technical, commercial, scientific, statistical or financial where the information is (a) identified as confidential at the time of disclosure, or (b) ought reasonably to be considered to be confidential or have commercial value given the nature of the information or the circumstances of disclosure.
   
   Dashboard means the password protected online portal for use by customers in connection with the Services.
   
   Data Protection Legislation means as applicable and binding on the relevant Party or the Services: (i) the GDPR (meaning General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of applicable domestic law (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time)); (ii) the Data Protection Act 2018 (in respect of the UK); (iii) any local laws which implement or supplement any such laws; and (iv) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; (v) any relevant data protection laws and regulations applicable to (a) the Goods; (b) any territory in which Services are provided; and/or (iii) the Customer as a result of the country it is registered or established or operates in.
   
   Deliverables means the forecasts, data and other information required from you and third parties in order for Huboo to provide the Services.
   
   Extraordinary Activity means a rise of 20% or more above the predicted weekly activity contained in the Initial Forecast or most recent Quarterly Forecast, as the case may be.
   
   Force Majeure Event has the meaning in clause 14.3.
   
   Goods means the goods (including any associated documents and packaging materials) to which these Terms and the Services relate.
   Group Company means a subsidiary or holding company of the relevant Party, or a subsidiary of that holding company, all as defined by Section 1159 of the Companies Act 2006.
   
   Huboo (us, we) means Huboo Technologies Limited a company incorporated and registered in England and Wales under company number 09727464 whose registered office at 41 Corn Street, Bristol, England, BS1 1HT.
   
   Inappropriate Content means any services, goods, contents or other materials which infringe any applicable laws, regulations or third party rights, including any goods, services or contents which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party intellectual property rights or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise be unlawful.
   
   Initial Forecast means the forecast provided by you to Huboo in relation to anticipated volumes of Goods and related Services requirements as set out in the KOA.
   
   Insolvency Proceedings means, in relation to a Party, that there is (save in relation to a solvent reorganisation, reconstruction or amalgamation) the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into of a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution to wind it up, or it becomes unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986 or there are any analogous proceedings in any jurisdiction.
   
   Intellectual Property Rights means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, trade secrets, business names and domain names, trade-marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, and database rights.
   
   Inward TUPE Transfer means a situation where Huboo is (or is expected to be) a transferee for the purposes of TUPE as a result of providing services to or for the benefit of you (or intending to do so)
   
   KOA or Key Operating Assumptions means the information provided about the scope of our Services, your business requirements and anticipated levels of activity in respect of which Huboo will provide the Services.
   
   Onboarding Documents means the pricing proposal, KOA, goods in requirements, billing guide, transfer of stock process and any other document or information setting out required information or processes in connection with the Services provided to you before the commencement of the Services.
   
   Outward TUPE Transfer means a situation where Huboo is (or is expected to be) a transferor for the purposes of TUPE as a result of the transfer of operations carried out for you.
   
   Product Loss means loss (including theft), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery, or unauthorised delivery of, or non-compliance with instructions or obligations in respect of, Goods.
   
   Prohibited Goods means any items prohibited by any carrier used by Huboo (details of which are available on request) but includes the following items: animals and wildlife products; bootleg recordings; counterfeit currency and stamps; credit cards; drugs and drug paraphernalia; firearms, ammunition, replicas and militaria; government identification, licences and uniforms; government, transit and postal-related items; hazardous or contaminated materials; human parts and remains; items encouraging illegal activity; items encouraging infringement or enabling duplication of copy protected material; lock-picking devices; offensive material; items requiring any official consent or licence (or would be illegal for Huboo) to handle, possess, deal with or carry; items that may cause pollution of the environment or harm to human health if they escape from their packaging; items that may at any time whilst in the care or control of Huboo constitute waste; replica, counterfeit and unauthorised copies; stolen property; stocks, bonds, securities and related certificates; tobacco; and weapons and knives.
   
   Property means the Goods, and any other goods or items to be received, stored or despatched by Huboo.
   
   Quarterly Forecast has the meaning in clause 6.2.
   
   Recipient means the intended recipient of Goods using the Services.
   
   Services means the services provided by Huboo relating to the provision of the Dashboard and the receipt, storage, picking, packing, arrangement of carriage and delivery to destinations designated by you, all in respect of the Goods and subject to the scope of services described in the KOA.
   
   Sufficient Surge Notice means notice sufficient for Huboo and the Warehouse and any other part of the Services to accommodate increased transactional activity associated with a Surge Event, such notice being no less than 28 days before a Surge Event occurs or is anticipated to occur.
   
   Surge Event means any event that may cause Extraordinary Activity, including: (a) recurring events such as natural seasons with associated increase in a specific commercial activity, such as swimwear and the summer; and (b) non-recurring events such as the introduction of a new range of products, opening of new stores, a sales promotion, a mass mail shot, a television advertisement, a viral e-marketing campaign or any other promotional activity aimed at causing an increase in your sales and/or deliveries to the Warehouse and/or other increase in use of the Services.
   
   Third Party Information means information or material of any kind in any form or medium, not owned or generated by or on behalf of you, published or otherwise utilised or made available using the Service.
   
   TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (and any amending or successor legislation) in the UK and also includes any local or other legislation under which employment or liabilities arising from employment transfer by operation of law and which are applicable to (i) any territory in which Services are provided; and/or (ii) the Customer as a result of the country it is registered or established or operates in.
   
   Warehouse means the warehouse operated by Huboo from which the Services are provided.
   
   Website means huboo.com including the Dashboard.
   
   Working Hours means 09.00 to 17:00 (local time) Monday-Friday on Business Days.
   
   You (your), Customer means the Huboo customer taking our services as set out on your account on the Dashboard.
   
   1.2. Clause headings do not affect the interpretation of these Terms.
   1.3. References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of these Terms.
   1.4. Words in the singular include the plural and in the plural include the singular.
   1.5. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
   1.6. 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 preceding those terms
2. PROVISION OF THE SERVICE
   2.1. Huboo will provide the Services to you subject to these Terms to the exclusion of any terms and conditions you seek to impose.
   2.2. Huboo shall be entitled to subcontract all or any part of the Services. In the event of subcontracting, Huboo shall remain directly liable to you for any breach by subcontractor(s) of such requirements or obligations as if it were its own breach.
   2.3. Huboo shall be the exclusive supplier to the Customer of the Services. The Customer shall not purchase, directly or indirectly, any services which are the same as or similar to the Services from any other person during the Term.
   2.4. Nothing in this Agreement shall restrict Huboo from supplying any services which are the same as or similar to the Services to other customers.
3. YOUR OBLIGATIONS
   3.1. You shall not, nor shall you authorise or permit any other person to:
   3.1.1. use the Services to send or receive any Inappropriate Content or for any unlawful purposes,
   3.1.2. use the Services for or in connection with goods or services which are, or otherwise use the Services, in violation of any laws, regulations or codes of practice or which may bring Huboo into disrepute, and
   3.1.3. use the Services other than in accordance with any stipulations, instructions or user guides issued by Huboo from time to time;
   3.2. You shall use the Website in accordance with its terms of use applicable from time to time as if such terms were set out in full in these Terms and any breach of such terms of use shall be a material breach of these Terms.
   3.3. You shall comply with requirements of you in the Onboarding Documents and not do anything which changes the scope of Services in the KOA without consultation with, and prior written agreement from, Huboo which may be withheld subject to agreement of any applicable change to the Charges.
   3.4. You shall comply with and instruct your suppliers and carriers to comply with Huboo’s goods in procedures and requirements for presentation of deliveries to the Warehouse.
   3.5. You shall promptly provide all Deliverables as required from time to time.
   3.6. You warrant, represents and undertake that at the date the Services commence and on an ongoing basis that:
   3.6.1. you have the right, power and authority to commit to these Terms and a contract with us and to grant to Huboo the rights (if any) contemplated in these Terms;
   3.6.2. none of the Goods contain any Prohibited Goods and the Goods and all information provided on or in relation to them (whether to Recipients or Huboo) comply with any and all applicable laws and regulations in any territory in which they are transported, stored or delivered affecting the manufacture, sale, packaging, labelling and transportation of the Goods from time to time in force and have been appropriately tested and approved as safe for all purposes for which the Goods are intended to be used and any breach of this sub-clause shall be a material breach of these Terms that is not remediable and shall entitle Huboo to immediately terminate the provision of the Services to you by notice under clause 7.2;
   3.6.3. you either own the Goods or have lawful possession of the Goods and all right and authority to store them with Huboo and to direct the release and/or delivery of the Goods to any Recipient and you are accepting these Terms on your own behalf and as agent for and on behalf of the owner (if this is not you);
   3.6.4. the Goods and the provision of services by Huboo in relation to them does not infringe the Intellectual Property Rights of any third party;
   3.6.5. you have supplied to Huboo all information relating to your requirements for the Services and that such information complies with all applicable laws and regulations in any jurisdiction in which it is accessed, and is true, correct and complete in all material respects;
   3.6.6. the Goods shall be presented to Huboo (and/or anyone else dealing with them) securely and properly packed in compliance with any applicable statutory regulations, recognised standards and good practice; and that they and any related pallet, container or other transport items are and will remain in a condition to be safely handled, stored and/or carried and so as not to cause injury, damage, contamination or deterioration (or the possibility of them) to any person, premises, property, the environment, drains or watercourses, equipment or to any other items in any way. Where Huboo is performing an operation or process on the Goods, they will be delivered to Huboo in a condition where that operation or process can be done without further work (other than unpacking) by Huboo. Any breach of this sub-clause shall be a material breach of these Terms that is not remediable and shall entitle Huboo to immediately terminate the provision of the Services to you by notice under clause 7.2;.
   3.6.7. before Huboo assumes any responsibility for or by reference to the Goods, you shall inform Huboo in writing of any relevant matters, including any special precautions necessitated by the nature, size or shape, weight, condition or potential for deterioration of the Goods and any statutory or other requirements relevant to the Goods with which Huboo or others may need to comply, and will, promptly after invoicing, pay Huboo’s reasonable extra charges for complying;
   3.6.8. it shall comply with any reasonable requirements of Huboo relating to handling, packing, carriage, storage or forwarding of Goods (and ancillary matters) which are notified in writing from time to time;
   3.6.9. Unless otherwise agreed, you will be responsible for instructing Huboo on the order in which to pick Goods (including for example where sell or use by dates apply);
   3.6.10. you have any necessary import licences or permits necessary for the entry of the Goods into the territories in which they are to be shipped, and their delivery to Huboo, and you are responsible and shall pay for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable and registrations required in connection with the importation and delivery of the Goods and in all and any dealings with HMRC, for and on behalf of our UK customers (and/or owners of goods if different), Huboo is deemed to be appointed and empowered to act as the appropriate agent, to make customs declarations in your name and to appoint any sufficiently experienced third party to act in such capacity and make such declarations;
   3.6.11. you shall provide all necessary information to allow international customs clearance for Goods to be exported including cost prices, sale prices, HS codes, customs descriptions, instructions, documents, licences, authorisations and permissions;
   3.6.12. information displayed on the website or promotional, marketing or other information relating to or in any way connected with the Services, prepared or used by you or on your behalf or any Group Company of yours or any other third party, complies with all applicable laws and regulations in any jurisdiction in which it is accessed, and is true, correct and complete in all material respects;
   3.6.13. you shall not, by any act or omission, place Huboo in breach of any Business Conduct Laws and shall comply with all applicable Business Conduct Laws and ensure that you have in place adequate or other required procedures to prevent any breach of this clause 3.6.13 and ensure that all of your personnel and your direct and indirect subcontractors and others associated with you so comply;
   3.6.14. neither you nor any of your officers, employees, agents or subcontractors have committed an offence under any Business Conduct Laws (an “Offence”) or been notified that you are subject to an investigation relating to an alleged Offence or prosecution under the Relevant Law or are aware of any circumstances within your supply chain that could give rise to an investigation relating to an alleged Offence or prosecution under the Relevant Law;
   3.6.15. you shall notify Huboo immediately in writing if you become aware or have reason to believe that you, or any of your officers, employees, agents or subcontractors have breached or potentially breached any of the your obligations under clause 3.6 (such notice to set out full details of the circumstances concerning the breach or potential breach of such obligations);
   3.6.16. to the extent that the Goods fall within the ambit of article 4(5) of Regulation (EU) 2019/1020, the Customer has a manufacturer, importer, or authorised representative for the Goods in the EU.
   3.7. Any breach of clauses 3.6.13, 3.6.14 or 3.6.15 by you shall be a material breach of these Terms that is not remediable and shall entitle Huboo to immediately terminate the provision of the Services to you by notice under clause 7.2.
   3.8. You shall indemnify and keep indemnified Huboo, its employees, officers, agents and contractors in relation to all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Huboo arising out of or in connection with:
   3.8.1. Any breach of any of the warranties in clause 3.6;
   3.8.2. any claim brought by a third party resulting from or arising in any way from any information, or any other material provided by you to Huboo;
   3.8.3. any third party claim or the requirements of any competent authority in relation to the Goods; and
   3.8.4. any fine or penalty payable by Huboo wholly or partly as a consequence of compliance with your instructions in relation to the Goods (or your failure to provide relevant instructions or information), or your acts or omissions.
   3.9. If Huboo suspects a breach of clause 3.6 in relation to the nature or condition of, or information provided (or not provided) in respect of the Goods, it may refuse to accept the Goods, demand their immediate removal (in response to which you must comply with Huboo’s requirements), or itself arrange their removal without notice, at your expense. Such refusal, demand or removal shall not be a breach or termination of these terms by Huboo.
4. HUBOO’S OBLIGATIONS
   4.1. Huboo shall:
   4.1.1. provide the Services with reasonable skill and care in accordance with applicable laws and shall have the right to change the Services and Charges and any of these Terms as required by Huboo if there is any change in such laws subject to giving the Customer at least one (1) month’s notice in writing of any such change(s);
   4.1.2. provide the Services except to the extent that Huboo is not able to do so as a result of any act or omission of you or is not required to under clauses 7 or 14.
   4.2. If Huboo’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by you (including insufficient stock to provide Services to you) or a customer or agent, employee or contractor of yours, or failure by you to perform any relevant obligation, or failure to remedy such act or omission within seven (7) days of written notice to do so (Customer Default):
   4.2.1. Huboo shall without limiting its other rights or remedies have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Huboo’s performance of any of its obligations;
   4.2.2. Huboo shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Huboo’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
   4.2.3. you shall reimburse Huboo on written demand for any reasonable costs or losses sustained or incurred by Huboo arising directly or indirectly from the Customer Default including those arising from claims brought against Huboo by Recipients in the exercise of their rights.
   4.3. Subject to clause 4.5, where Huboo’s services involve storage and/or processing (but not carriage) Huboo’s responsibility for Goods starts when Goods are accepted into store and ends when physical control of Goods is taken by you, your agents or subcontractors.
   4.4. Subject to clause 4.5, where Huboo provides carriage to or from the Warehouse (either itself or using subcontractor(s)), Huboo’s responsibility for Goods starts when Huboo (or its subcontractor) takes physical control of the Goods and ends when physical control of Goods is taken by you (or your agent or subcontractor), or a Recipient or where Huboo or its subcontractor relinquishes physical control of the Goods at the proper place of delivery. In all other cases, responsibility for the Goods is yours. 
   4.5. Notwithstanding clauses 4.3 and 4.4, Huboo’s responsibility ends on termination of these Terms or on the expiry of any notice requiring removal of the Goods by you (whichever occurs first).
   4.6. Huboo gives no guarantee or warranty in respect of any aspect of the Services which is reliant on third party services, such as channels with which Huboo integrates for you, carriers, internet service or security providers, beyond those guarantees provided by the relevant supplier. Notwithstanding this, Huboo will apply reasonable care and attention to the selection of a supplier and take reasonable steps to verify their competencies.
5. CHARGES AND PAYMENT
   5.1. Huboo reviews its prices and other charges regularly and may change the Charges at any time subject to Huboo notifying you by not less than one (1) month’s notice via email and the Dashboard. The new Charges shall apply at the beginning of the calendar month following the expiry of such notice.
   5.2. Huboo may include in the Charges from time to time, additional costs incurred by Huboo as a result of (i) any change in carrier, delivery, collection or storage requirements and which arise as a result of any request or action on the part of the Customer or due to the failure of the Customer to provide adequate or correct information and instructions, or comply with its obligations under this Agreement; (ii) deliveries to certain territories; (iii) Goods returned to Huboo by Recipients; or (iv) any cost factors beyond its control including any increase in the national minimum wage and fuel and other surcharges (and correction charges) and general rate increases imposed by its carrier(s) used for the Services and any increase in any carrier’s charges resulting from a change in applicable law.
   5.3. Huboo may review and change the Charges if you do not use the Services at the volumes contained in the KOA (or other applicable Onboarding Document) or as set out in clause 6 or if you change any processes (including packing) or requirements from those notified to Huboo before the commencement of the Services and/or contained in the Onboarding Documents. We will also charge you for our offboarding costs when our Services for you end.
   5.4. Huboo will invoice you for all Charges and any other payments due under this Agreement weekly in arrears. You must pay all invoices in full in cleared funds within seven (7) days of the date of each invoice by direct debit to the bank account nominated by Huboo. If any direct debit payment fails, we will re-present the payment instruction to your bank. If payment is still not made, or if you cancel your direct debit at any time, we will add an administration fee to your Charges (as notified by us from time to time and included in your invoice). If you fail to set up direct debit payment or we believe your payment method has changed from direct debit, we will add a percentage surcharge to your invoice until you pay by direct debit (as notified by us from time to time and included in your invoice). All Charges are exclusive of VAT (or equivalent sales tax) and you must pay the same to Huboo subject to receipt of a valid VAT invoice.
   5.5. You shall pay all sums that you owe to Huboo under these Terms without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
   5.6. Time of payment is of the essence. Where sums due are not paid in full by the due date Huboo may, without limiting its other rights, charge interest on such sums at four (4) percentage points a year above the base rate of the Bank of England from time to time in force and interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment. Where the Customer is a French registered company (i) the minimum late payment interest rate is three times the applicable French legal interest rate at the time; and (ii) in the event of late payment, Huboo may claim the automatic lump-sum of EUR40 (as updated from time to time) with respect to debt recovery costs.
   5.7. Huboo may set and vary credit limits and payment terms from time to time and withhold all further Services without liability to you if you exceed such credit limit or payment terms.
   5.8. Huboo reserves the right to suspend or terminate the provision of the Services to you immediately if you are in default of payment of invoices or any other sum due, for more than seven (7) days after the due date. Such suspension or termination does not limit its other rights and remedies.
   5.9. Huboo shall have a general and particular lien (on its own behalf and as agent for any assignee of its invoices) on the Goods in its possession as security for payment of all sums claimed by Huboo from you. The Charges shall continue to accrue on any Goods detained under lien. If an invoice for the Charges is not paid in full on its due date for payment, Huboo may, without prejudice to its other rights and remedies, give notice in writing to you of its intention to sell or otherwise dispose of some or all of the Goods in its possession if the amount outstanding is not paid in full within fourteen (14) days. If the amount due is not paid by the expiry of such period, Huboo may sell or otherwise dispose of some or all of the Goods in its possession, as agent of you and at your expense and risk and shall remit the proceeds of sale or disposal of such Goods to you after deduction of all amounts due to Huboo and the expenses incurred by Huboo for the sale or disposal of the Goods. Huboo shall be entitled to sell Goods at such price (if any) as it considers appropriate. Huboo shall not be liable for any alleged failure to achieve a sufficient sale price for the Goods. Huboo (and any person deriving title to products through it) shall be entitled to use under licence in connection with the disposal of Goods any copyright material or trade marks, and pass on any manufacturer’s standard warranty, relating to them which would be available to an authorised retailer of the Goods. This clause shall survive termination of these Terms.
   5.10. You shall notify Huboo promptly should a query or dispute arise on any invoice upon presentation and Huboo will endeavour to answer any such query or resolve any such dispute within three (3) Business Days. Queries or disputes must be reasonable and raised in good faith providing relevant information (including reasonable supporting evidence) explaining the nature and extent of the dispute. Where any dispute is not resolved in time, you shall pay the undisputed part of any invoices in accordance with these Terms.
   5.11. Any additional services undertaken by Huboo which are not included in the KOA shall be chargeable at rates to be agreed in writing between the parties prior to the provision of such services (and pending agreement as notified to you via email and the Dashboard) or as notified to you as part of the onboarding process. Commencement of any additional services will not affect Huboo’s rights in this clause.
6. BUSINESS REVIEW AND VOLUMES
   6.1. Huboo and you shall each appoint a representative (an “Account Manager”) to act as the main point of contact for the other in respect of all day-to-day and other matters relating to the Services and these Terms.
   6.2. The Parties shall ensure that the Contract Managers meet at quarterly intervals to discuss the volume of Services activity and your service requirements for the next quarter. At least seven (7) days ahead of this meeting, you shall provide Huboo with a written forecast of the expected volume per week of items requiring the Services in the next quarter (“Quarterly Forecast”). To reflect any increase or decrease in volumes outside the anticipated volumes agreed by Huboo before commencement of the Services and any subsequent quarter to which a Quarterly Forecast relates, each Quarterly Forecast is subject to agreement by Huboo (such agreement not to be unreasonably withheld). Without limiting Huboo’s other rights in this clause 6, where any Quarterly Forecast anticipates a volume of Services activity which is twenty (20)% or more different to that in the Initial Forecast or most recent Quarterly Forecast, as applicable, Huboo shall be entitled to review and change the Charges at its discretion.
   6.3. You shall from time to time as necessary give to Huboo Sufficient Surge Notice of any Surge Event promptly after becoming aware of a Surge Event. Notwithstanding that Sufficient Surge Notice is based on not less than 28 days’ notice, you shall maximise the actual notice given, acting reasonably.
   6.4. If you fail to give Sufficient Surge Notice or Huboo reasonably believes that actual notice given was insufficient, given the information reasonably available to Huboo, Huboo shall be entitled to review and change the Charges for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Huboo.
   6.5. Where any Surge Event takes place and Huboo has received Sufficient Surge Notice, but Huboo has been unable, due to a Force Majeure Event, or otherwise (provided Huboo has used reasonable endeavours) to provide the Services, the Parties will, in good faith, endeavour to agree the Charges to apply during the period of Extraordinary Activity, failing agreement of which Huboo shall be entitled to review and change the Charges for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Huboo.
   6.6. Whether or not as a result of a Surge Event, if there is a period of Extraordinary Activity in any week, Huboo shall be entitled to review and change the Charges for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Huboo.
   6.7. If pick, pack and despatch activity under the Services in any week falls below 80% of the amount stated in the Initial Forecast or most recent Quarterly Forecast, as applicable, Huboo shall be entitled to review and change the Charges for the duration of such variance.
   6.8. Without prejudice to the obligations in this clause 6, you shall inform Huboo both orally and in writing as soon as it becomes aware that the Initial Forecast and any Quarterly Forecast has become inaccurate or that its requirements for the Services may differ from any forecast to enable the Contractor to effectively provision for Services. In such event, the Parties shall discuss in good faith and endeavour to agree how to accommodate such variance.
7. TERMINATION
   7.1. Unless provided otherwise in the KOA, either Party may terminate the provision of the Services under these Terms by providing the other Party with at least one (1) month’s notice of termination in writing.
   7.2. You may (without prejudice to any other right or remedy you may have under these Terms or otherwise) immediately terminate the provision of the Services under these Terms by giving notice in writing to Huboo without any further liability to Huboo where the reason for the termination is:
   7.2.1. a material breach by Huboo of these Terms and (if the breach is capable of remedy) Huboo fails to remedy the breach within 14 days of receipt of written notice from you to do so(or 7 days in the case of non-payment of Charges); or
   7.2.2. Huboo becoming subject to Insolvency Proceedings; or
   7.2.3. Huboo ceasing, or threatening to cease, to carry on business; or
   7.2.4. You have the right to do so under clause 13.
   7.3. Huboo may (without prejudice to any other right or remedy it may have under these Terms or otherwise) suspend the Services temporarily without notice for a period not exceeding 28 days (although you remains liable to pay all Charges during such suspension), or terminate the provision of the Services under these Terms by immediate notice in writing without any further liability to you where the reason for the termination is:
   7.3.1. a material breach by you or anyone else under your control, with or without your knowledge or approval, of these Terms and (if the breach is capable of remedy) you fail to remedy the breach within 14 days of receipt of written notice from Huboo to do so; or
   7.3.2. you become subject to Insolvency Proceedings; or
   7.3.3. you cease, or threatening to cease, to carry on business; or
   7.3.4. Huboo having the right to do so under clause 13.
   7.4. Huboo’s election to suspend the Services does not affect its right to terminate the provision of the Services under these Terms.
   7.5. In the event of termination of the provision of the Services under these Terms for any reason whatsoever:
   7.5.1. you agree to cease immediately to use and return to Huboo all materials belonging to or licensed to Huboo;
   7.5.2. Huboo shall ensure that Goods are stored so that they are identifiable by you or your nominee as belonging to you;
   7.5.3. Subject to paying all arrears on your account, you (or your nominee) may, after giving at least 72 hours’ notice to Huboo, and by arranging a suitable appointment, collect your Goods during Working Hours from our Warehouse location; and
   7.5.4. you shall arrange within 14 days of termination (or such lesser period as we shall inform you by email) for the removal and carriage of all your Property from the Warehouse and any other relevant Huboo premises. Such removal and carriage shall be at your expense. If your Property is not removed with this 14 day period, Huboo may dispose of, sell or keep it at its discretion, and in the case of sale, Huboo shall be entitled to sell your Property at such price (if any) as it considers appropriate. Huboo shall not be liable for any alleged failure to achieve a sufficient sale price. Huboo (and any person deriving title to products through it) shall be entitled to use under licence in connection with the disposal of your Property, any copyright material or trade marks, and pass on any manufacturer’s standard warranty, relating to them which would be available to an authorised retailer of such Property. This clause shall survive termination of these Terms.
   7.6. Termination of these Terms for any reason shall be without prejudice to the rights of either Party accrued as at the date of termination.
   7.7. These terms shall not prejudice the rights to terminate the provision of the Services that either we or you have under applicable law to the extent such rights are not set out in these Terms.
8. INSURANCE
   8.1. Unless notified to you in the Onboarding Documents, or as otherwise agreed in writing by the Parties, Huboo does not insure Property and you must, at your cost, either self-insure or make arrangements to provide sufficient cover (including all duties and taxes) for the Goods against all insurable risks with any right of the insurer to bring a subrogated claim being excluded.
   8.2. Huboo limits its liability as set out in clause 9 and in particular, Product Loss is limited as provided in clause 9.3.1. You may (and are recommended to) insure against liability of Huboo above such limit.
9. LIMITATION OF REMEDIES AND LIABILITY
   9.1. Nothing in these Terms shall operate to exclude or limit either Party’s liability for (a) death or personal injury caused by its negligence, or (b) fraud; or (c) any other liability which cannot be excluded or limited under applicable law.
   9.2. Subject to clause 9.1 and except as provided in clause 3.8, neither Party shall be liable, howsoever arising, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms for (i) special, indirect, incidental or consequential losses or (ii) loss of profit, loss of contract, loss of revenue, loss of opportunity, loss of anticipated savings, loss of goodwill, wasted costs or wasted management time (howsoever arising).
   9.3. Subject to clause 9.1, Huboo’s liability to you whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise is limited as follows:
   9.3.1. Huboo’s liability for Product Loss is (i) while the Goods are in the Warehouse and under the physical control of Huboo, limited to £100 per tonne weight of the Goods except to the extent of any insurance effected by Huboo; and (ii) while the Goods are in transit to a Recipient and under the physical control of a carrier, limited to the fees payable by you for such delivery unless Huboo has expressly agreed to a higher limit on its liability for damage to or loss of Goods in transit, on payment by you of an increased amount, in which case, the limit on Huboo’s liability in such circumstances shall be increased in line with that express agreement, subject to the specific terms of that agreement, which shall be deemed incorporated into these Terms;
   9.3.2. Huboo’s liability other than in relation to Goods (by way of example alleged negligent advice or data irregularities) shall be limited to £1000 per incident or series of connected incidents;
   9.3.3. Huboo shall not be liable for any Product Loss or other loss of any kind to the extent that it is caused or contributed to by any act or omission of you;
   9.3.4. Huboo shall have no liability for the acts or omissions of carriers used by you in the transportation of your Property to or from any Huboo location. Carriers used for the Services are independent and not controlled by Huboo; delivery times are aims only and Huboo gives no warranty or guarantee concerning delivery times, notwithstanding the fulfilment option(s) selected in respect of any order intended to be fulfilled by Huboo. Signature on behalf of a Recipient in relation to a relevant delivery is evidence that the Goods have been received in apparently good order (save as noted);
   9.4. The provisions of these Terms and the rights and remedies of the parties under these Terms are cumulative and are without prejudice and in addition to any rights or remedies a Party may have at law or in equity.
   9.5. Huboo reserves the right to remove any of your information or Third Party Information if Huboo reasonably believes such information contains Inappropriate Content. Huboo shall use its reasonable endeavours to notify you in advance of any removal, where possible.
   9.6. Notwithstanding the foregoing, to the extent that Huboo is liable to make any payment to competent authorities or Recipients under law and regulation applicable in the territory in which the Services are provided as a direct or indirect result of any fraud, default or negligence of any kind by you (or any person acting on your behalf), you shall compensate Huboo promptly in full in respect of respect of any such payment.
   9.7. Huboo shall not be liable for any claim unless:
   9.7.1. it has received written notice of it within 10 Business Days of you becoming aware of the event giving rise to the claim and, within 15 Business Days of you becoming aware of the event giving rise to the claim, sufficient detail in writing to enable investigation.
   9.8. No legal proceedings (including any counterclaim) may be brought against Huboo unless they are issued and served within 9 months of the event giving rise to the claim.
10. INTELLECTUAL PROPERTY RIGHTS
    Each Party’s Intellectual Property shall remain the property of the relevant Party and its licensors. Nothing in these Terms shall transfer or grant to the other Party any right, title or interest in any Intellectual Property Rights which are owned or licensed by a Party to these Terms or any Group Company of that Party.
11. TAXATION
    11.1. You acknowledge that you are responsible for checking the accuracy of each transaction or computation carried out using the Services, including the calculation and imposition of any applicable taxes, duties and charges of whatever nature and for all documentation relating to such transactions and computations, including and as applicable the creation of invoices, VAT or other tax records, and shipping documentation.
    11.2. You are solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature applicable to you and/or the Goods or any third party arising out of your use of the Services and will indemnify Huboo fully against liability for any such taxes and duties.
    11.3. Huboo does not provide nor does Huboo agree to provide any advisory services to you regarding taxation or any customs or other import/export duties. The provision of the Services does not constitute the provision of such advice and all such computations are based solely on data supplied or created by you.
12. THIRD PARTY TRANSACTIONS
    12.1. You shall remain solely responsible for any transactions of any kind entered into between you (and/or any third party) and Recipients in relation to the Goods. Huboo will not be a party to or in any way responsible for any transaction between you and a Recipient or other third party.
13. DATA PROTECTION
    13.1. Both parties shall comply with all applicable requirements of the Data Protection Legislation.
    13.2. The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and Huboo is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
    13.3. Huboo will process personal data supplied by you or on your behalf for purposes appropriate or connected to the performance of Huboo’s obligations. Huboo may share data with a subcontractor or subprocessor in connection with the provision of the Services on such terms as are required by Data Protection Legislation, and with any government authority where appropriate. Huboo shall, as soon as reasonably practicable following written request from you, provide details of any such subprocessor to you.
    13.4. Schedule 1 sets out the data protection particulars including the scope, nature and purpose of processing by Huboo.
    13.5. Without prejudice to the generality of clause 13.1, you warrant, represent and undertake that:
    13.5.1. You have all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in Data Protection Legislation) to Huboo and its subprocessors for the duration and purposes of this Agreement;
    13.5.2. the processing of all Personal Data (if processed in accordance with this Agreement) shall comply in all respects with Data Protection Legislation, including in terms of its collection, use and storage;
    13.5.3. fair processing and all other appropriate notices have been provided to Data Subjects (as defined in Data Protection Legislation) and all necessary consents from such Data Subjects obtained and at all times maintained, to the extent required by Data Protection Legislation in connection with all processing activities which may be undertaken by Huboo and its subprocessors in accordance with these Terms;
    13.5.4. all instructions given by you to Huboo in respect of Personal Data shall at all times be in accordance with Data Protection Legislation;
    13.5.5. to indemnify and keep indemnified Huboo, its employees, officers, agents and contractors in relation to all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Huboo arising out of or in connection with any:
    13.5.5.1. non-compliance by you with the Data Protection Legislation;
    13.5.5.2. processing carried out by Huboo (or any subprocessor) pursuant to any instruction from or on behalf of you that infringes any Data Protection Legislation; or
    13.5.5.3. breach by you of any of your data protection obligations under these Terms.
    13.6. Without prejudice to the generality of clause 13.1, Huboo shall, in relation to any Personal Data processed in connection with the performance by Huboo of its obligations under these Terms:
    13.6.1. process that Personal Data only on the written instructions of you;
    13.6.2. ensure we have in place appropriate technical and organisational measures, 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;
    13.6.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
    13.6.4. not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained (which shall be deemed to have been given hereunder to the extent any Order is intended to be delivered outside of the United Kingdom or European Economic Area and the services of carriers outside such locations is required) and the following conditions are fulfilled:
    13.6.4.1. you or Huboo has provided appropriate safeguards in relation to the transfer;
    13.6.4.2. the data subject has enforceable rights and effective legal remedies;
    13.6.4.3. Huboo complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    13.6.4.4. Huboo complies with reasonable instructions notified to it in advance by you with respect to the processing of the Personal Data;
    13.6.5. assist you, at your cost, in responding to any request from a Data Subject and in relation to its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    13.6.6. notify you without undue delay on becoming aware of a Personal Data breach relating to the Services;
    13.6.7. at your written request , delete, anonymise or return Personal Data and copies of it to you on termination of the provision of the Services under these Terms unless required by any applicable laws or its audit requirements to store the Personal Data; and
    13.6.8. maintain records and information to demonstrate its compliance with this clause for the purposes of audit and inspection of Huboo’s data processing under the Services.
14. FORCE MAJEURE
    14.1. If either Party is unable to perform any obligation under these Terms because of a matter beyond that Party’s reasonable control including lightning, flood, ice, frost, extreme weather conditions, earthquake, fire, explosion, utilities failure, disruption to transportation networks (including fuel shortage, road closures, traffic congestion, transport blockades, airline delay), mechanical breakdown, war, acts of terrorism, civil disorder, pandemic, epidemic, industrial disputes (excluding strikes, lock-outs or other industrial action of the affected Party’s own employees), suitable staff shortage, or acts of local or central government or other competent authorities, or events beyond the reasonable control of any carrier used by Huboo, that Party will have no liability to the other for that failure to perform.
    14.2. In the event of a network failure or refusal or delay by a third party to supply a telecommunications service to Huboo and where there is no alternative service available at reasonable cost, Huboo will have no liability to you for failure to supply the Services.
    14.3. if any of the events detailed in clauses 14.1 or 14.2 (“Force Majeure Event”) prevent Huboo from providing the Services, and this continues for a period of more than 28 days, you may engage alternative service providers to provide the affected Services for the duration of the Force Majeure Event and you will not be liable for any Charges for the affected Services during this period. If any Force Majeure Event continue for more than 3 months either Party may serve notice on the other terminating these Terms. You shall be responsible for any Charges, excluding charges for affected Services, incurred to the date of termination which shall become due forthwith on the date of termination.
15. CONFIDENTIALITY
    15.1. Each Party shall protect the Confidential Information of the other Party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
    15.2. Confidential Information may be disclosed by the receiving Party to its employees, affiliates and professional advisers, or the employees of either Huboo’s Group Company or your Group Company or their suppliers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other Party.
    15.3. The obligations set out in this clause shall not apply to Confidential Information which the receiving Party can demonstrate, with written evidence:
    15.3.1. is or has become publicly known other than through breach of this clause; or
    15.3.2. was in possession of the receiving Party prior to disclosure by the other Party; or
    15.3.3. was received by the receiving Party from an independent third party who has full right of disclosure; or
    15.3.4. was independently developed by the receiving Party without any breach of these Terms as evidenced by written records; or
    15.3.5. was required to be disclosed by governmental authority or competent court, provided that the Party subject to such requirement to disclose gives the other Party prompt written notice of the requirement.
    15.4. The obligations of confidentiality in this clause shall not be affected by the expiry or termination of these Terms, but will remain in effect for two (2) years after the termination of these Terms.
16. NOTICES
    16.1. A notice given under these Terms (a) shall be in writing in the English language, (b) shall be sent for the attention of our or your usual contact, and (c) shall be sent by email or in the absence of a valid email address, pre-paid first-class post, recorded delivery or commercial courier, or (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail addressed to Huboo’s registered office.
    16.2. A notice is deemed to have been received (a) if delivered personally or by recorded delivery or commercial courier, on the date, and at the time of, delivery or (b) in the case of pre-paid first class post 48 hours from the date of posting, or (c) in the case of registered airmail, five days from the date of posting, or (d) in the case of email at the time of transmission.
    16.3. If deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the deemed receipt will be the date and time on which business next starts in the place of receipt.
    16.4. To prove service, it is sufficient to prove that the envelope containing the notice was properly addressed and posted.
17. EMPLOYEES
    17.1. During the Term of these Terms and for a period of 12 months thereafter, neither Huboo nor you may solicit, directly or indirectly seek to employ or otherwise engage the other’s staff, without express permission from the other prior to any such engagement, except where such engagement results from an enquiry in response to a public advertisement.
    17.2. Where there is an Inward TUPE Transfer, you will indemnify Huboo against all liability and expense which Huboo may incur in connection with:
    17.2.1. the employment or the termination of employment, before the “Effective Time” (meaning the time at which the employment of any person (or liabilities relating to that person) are transferred to Huboo under TUPE), of any “Employee” (meaning a person employed or previously employed by the “Transferor” (meaning a transferor as defined by TUPE) and who is, or whose rights are, affected by the Inward TUPE Transfer);
    17.2.2. any failure by the Transferor to comply with its legal obligations in respect of any of the Employees;
    17.2.3. the transfer to Huboo, by virtue of TUPE or otherwise, of the employment of any person or the applicability of terms of employment, other than those previously notified to, and previously accepted by, Huboo in writing;
    17.2.4. any act or omission of the Transferor, on or before the Effective Time, for which Huboo becomes liable by virtue of TUPE or otherwise;
    17.2.5. the employment or termination of the employment of any Employee, whether before, on or after the Effective Time; or
    17.2.6. the Transferor’s failure to inform and consult under TUPE or the Trade Union and Labour Relations (Consolidation) Act 1992.
    17.3. Where there is an Outward TUPE Transfer, you will indemnify Huboo against all liability and expense which Huboo may incur in connection with:
    17.3.1. the Transferee’s (meaning a transferee as defined by TUPE) failure to comply with its legal obligations, including those under regulation 13 of TUPE;
    17.3.2. the employment or termination of the employment of any employee, or any act or omission by you or any replacement service provider at any time on or after the Outward TUPE Transfer;
    17.3.3. any claim by any employee arising from any proposed change to working conditions by you or any replacement service provider which is alleged to be to their material detriment.
    17.4. Where the Services (or any part) transfer to you or any replacement service provider and TUPE does not apply and/or any Huboo employee does not transfer and Huboo or any subcontractor terminates the employment of any such employee on the grounds of redundancy in the 3 months after the date of such transfer, you will indemnify Huboo against all liability and expense which Huboo may incur in connection with such termination provided that you shall not be liable to the extent that liability and expense arises from any act or omission of Huboo.
18. GENERAL
    18.1. Huboo shall be entitled to use the names, logos and other visual representations used in connection with the Goods in/on communications and other materials and literature relating to the provision by Huboo of the Services.
    18.2. All other media releases, public announcements and public disclosures by either Party relating to these Terms or its subject matter, including promotional or marketing material, other than as included in clause 18.1, shall be co-ordinated and approved by the parties prior to release.
    18.3. Huboo (and its carriers) may open any container or packaging to inspect them or Goods they purportedly contain.
    18.4. The Parties shall use reasonable endeavours to reach a negotiated resolution of any dispute arising between the Parties out of or in connection with this Agreement through the following procedures (and nothing in this clause 18.4 shall preclude Huboo from pursuing any claim or other action in respect of invoices not paid in accordance with these Terms):
    18.4.1. This dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen and that includes reasonable information as to the nature of the dispute;
    18.4.2. Within seven days of service of such notice, the Contract Managers shall meet to discuss the dispute and attempt to resolve it and if the dispute has not been resolved within seven days of their first meeting, then the matter shall be referred to the Chief Commercial Officer (or persons of equivalent seniority) of each Party who shall meet within seven days to discuss the dispute and attempt to resolve it.
    18.5. Neither Party will assign any of its rights or obligations under the terms of these Terms without the prior written consent of the other save that Huboo shall be entitled to (i) assign these Terms to any Group Company and (ii) assign (in whole or in part) any part of the benefit or the burden of these Terms to any funder, security trustee or security holder.
    18.6. These Terms and the Onboarding Documents set out the entire agreement and understanding between the parties, superseding any previous agreement between them in relation to the subject matter of your agreement with Huboo and no representations, statements or inducements, oral or written, not contained herein shall bind either Party.
    18.7. No person or undertaking (other than Huboo’s Group Companies) that is not a Party to these Terms shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of these Terms.
    18.8. Any variation of this Agreement must be in writing and signed by an authorised signatory of each party to this Agreement. This written form requirement also applies to any deviations from this clause 18.8.
    18.9. Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
    18.10. The waiver by either party of a breach or default of any of the provisions of these Terms by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power of privilege that you have or may have hereunder operate as a waiver of any breach of default by the other Party.
    18.11. If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    18.12. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
    18.13. Save as aforesaid nothing in these Terms shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either Party as agent of the other for any purpose whatsoever. No Party shall have the authority to bind the other Party or to contract in the name of, or create a liability against, the other Party in any way or for any purpose.
    18.14. These Terms shall be binding upon and endure for the benefit of the successors in title of the parties to it.
    18.15. These Terms and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and the parties submit to the exclusive jurisdiction of the English courts.