Terms and Conditions
Powa Technologies Limited - eCommerce Services Agreement
This Ecommerce Services agreement (the “Agreement”)
Powa Technologies Limited (Company number 06376989) a company incorporated in England and Wales and having its registered office at The Met Building, 22 Percy Street, London, W1T 2BU (“Powa”); and You (“Customer”).
Powa is a specialist internet and e-commerce business with products that deliver a range of remote business management tools primarily involved in the delivery, management and maintenance of internet based trading platforms for retail business and who is willing to provide such services to Customer on the terms and conditions set out in this Agreement.
IT IS HEREBY AGREED:
1 DEFINITION AND INTERPRETATION
1.1 In this Agreement the following terms shall have the following meanings unless the context requires otherwise:
Acquiring Bank means the organisation with which Customer has a contractual relationship, pursuant to which the organisation authenticates, authorises and settles credit card transactions, including refunds.
Addendum means the written addendum (if any) between, and signed on behalf of, Powa and Customer relating to the Service.
Agreement means these terms, the attached schedules and any Addendum.
Application Incidents – means incidents relating to software developed and maintained by the team of Powa software engineers or third party software providers as appropriate.
Authorised User means anyone identified by Customer to Powa from time to time as an authorised administrator of the Site.
Bankruptcy or Insolvency Proceedings means bankruptcy proceedings (or in Scotland sequestration proceedings), becoming insolvent, making any composition or arrangement with creditors or being levied or enforced (and not being discharged within seven days) an assignment for their benefit, any execution, distress, diligence or service; or if Customer is a company being the subject of proceedings for the appointment of an administrator, going into liquidation (except for the purpose of a solvent amalgamation or reconstruction) or having a receiver or administrative receiver appointed over Customer or any of its assets or, in relation to Customer any event, process or act analogous to any of the above in any jurisdiction in which Customer is incorporated or resident or in which it carries out business or has assets.
Buyer means a person who enters into a transaction for the purchase of Products.
Charges means the charges in respect of the Services set out in Schedule 3.
Commencement Date means the date upon which this Agreement is accepted by Customer.
Confidential Information means all information whether technical or commercial where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Customer Information means any information, including video, graphics, sound, music, photographs, software, records, data, or any other materials (in whatever form) published or otherwise made available (directly or indirectly) by Customer, or by any third party on behalf of Customer, for use in the course of the performance of this Agreement.
Customer URL means the domain name used by Customer in connection with the Service.
Extraordinary Activity means either a rise of 50% above the same month’s activity (measured by total volumes of data accessed by Customer’s users of the Service) in the previous year or the average of the previous 3 months, whichever creates the greater rise. Where a Surge Event occurs in the first three months from go live, Extraordinary Activity is defined as 50% above the activity of the nearest comparable competitor with regards to size and type of business that Powa has under management as defined by Powa in its absolute discretion.
Intellectual Property Rights means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including without limitation copyright, know-how, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, and database rights.
Inappropriate Content means any content that infringes any applicable laws, regulations or third party rights or is otherwise inappropriate in Powa’s opinion (such as, for example, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party intellectual property rights).
Live Environment means where the Site is capable of receiving and processing transactions from Buyers.
Name means any name specifically requested by or allocated to Customer for the provision of the Service including, without limitation, any domain name or mailbox name.
Non-Application Incident means any incident other than as covered under the definition of Application Incident.
Product(s) means the goods, services, information or software (including all software applications) which Customer promotes using the Service and (as applicable) which may be purchased or otherwise acquired by Buyers by means of the Service.
Revenue means all amounts payable to Customer in respect of Transactions including any delivery, VAT or local sales taxes payable in respect of transactions and any other charges.
Sensitive Data means any data that a Buyer provides from his, her or its credit or debit card. This includes PAN (Primary Account Number), Start date, Expiry date, issue number, three/four digit Security Code, and cardholder name. It also includes the Buyer's billing address and any other personal data as may be defined under the Data Protection Act in the UK, or if in any other jurisdiction, any similar applicable legislation governing personal data. At no point should the Customer send Powa, or request that their Buyers send Powa, any PIN data or track data (from the magnetic stripe on the reverse of the card).
Service means the service or, where appropriate, part of the service described in Schedule 1 to this Agreement.
Service Levels means the Service Levels specified in Schedule 2 to this Agreement.
Site means the website to be hosted by Powa pursuant to this Agreement.
Software means any software provided to Customer, or any party acting on behalf of Customer, or used by Powa in fulfilling its obligations under this Agreement or otherwise.
Sufficient Surge Notice means notice sufficient to enable Powa to ensure that the Site can accommodate the increased transactional activity associated with the Surge Event in question, such notice being no less than 21 days before such a Surge Event occurs or is anticipated to occur in accordance with clause 22 of this Agreement.
Surge Event means any event that may cause Extraordinary Activity on the Site. By example only, such events include:
• recurring events such the beginning of school terms, natural seasons with associated increase in a specific commercial activity; and
• non recurring events such as the introduction of a new range of products, a sales promotion, a mass mail shot, or any other promotional activity aimed at causing an increase in sales or activity.
System Administrator means a person nominated by Customer to be their point of contact with Powa for matters relating to the provision of the Service.
Third Party Information means information, video, graphics, sound, music, photographs, software, data, databases, records, and any other materials (in whatever form) not owned or generated by or on behalf of Customer, published or otherwise utilised or made available using the Service.
Transaction means a process whereby the Powa platform processes an exchange of items of value. For the avoidance of doubt, this therefore includes an authorisation and settlement where they occur at the same time, an authorisation (where separate from settlement); a settlement (where separate from authorisation); a refund; a transaction that is attempted to be completed but fails to be authorised or settled having submitted correct or incorrect payment details (i.e. a declined request) or, where the consideration for the sale is not monetary (e.g. loyalty transactions), the equivalent still counts as a transaction.
Powa Group Company means a group undertaking of Powa as defined by Section 1161 of the Companies Act 2006.
Working Day means any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
Working Hours means 9am to 6pm UK time on a Working Day.
1.2 Clause and schedule headings do not affect the interpretation of this Agreement.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 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.
2 PROVISION OF THE SERVICE
2.1 Powa will provide the Service to Customer on the Terms and Conditions of this Agreement and any Addendum.
2.2 Powa reserves the right to revise, on one month’s prior notice to Customer, the Service Schedule and the Charges Schedule, unless Customer buys the Service through a third party distributor of Powa. In such a case, charging arrangements, and any revisions to those arrangements will be as agreed between the Customer and the third party.
3 SITE CONTENT AND TRANSACTIONS
3.1 Customer may only use the Service for lawful purposes.
3.2 Customer will not, nor will Customer authorise or permit any other person to, use the Service or the Software: (a) to send or receive any Inappropriate Content 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 and (b) to sell or offer for sale goods or services which is in violation of any laws, regulations or codes of practice. Without prejudice to Powa’s other rights and remedies, Customer shall take such corrective action as Powa may require in such circumstances promptly following notification from Powa.
3.3 Customer warrants that Customer Information is and will remain materially accurate and will not include any Inappropriate Content 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 unlawful. Customer will not provide any Customer Information which infringes the intellectual property of any other party. Powa reserves the right to remove any content from the Site where, in its sole discretion, Powa suspects such content to be in breach of this clause 3.3.
3.4 Customer will be solely responsible for the accuracy, completeness, design, creation, maintenance, and updating thereof of all Customer Information either directly or via their representative. Powa shall not be liable for any errors or inaccuracies in any Customer Information.
3.5 Customer shall be responsible for obtaining all necessary licences and consents required to use Customer Information (if any, and including but not limited to those from the owners or licensees of any Third Party Information) on the Site and Customer warrants that such licences and consents have been obtained and will be subject in this regard to the indemnity at 11.2.
3.6 Any breach of this clause 3 by Customer shall be deemed to be a material breach of this Agreement and shall entitle Powa to either suspend any relevant pages or, if it deems it appropriate to suspend the entire Site, or to terminate the Agreement and, for this purpose, it shall be irrelevant whether Customer was aware of the content of any material so transmitted or not. If Powa shall choose to only suspend, it shall make all reasonable endeavours to notify the Customer of such action promptly after it has taken place, and it may refuse to restore the Service until Customer gives Powa an acceptable assurance that there will be no further contravention. Any choice to suspend shall not prejudice Powa’s right to terminate for any such breach or Powa’s other rights and remedies under this Agreement or under applicable law.
3.7 The Powa name and logos shall be displayed on each page of the Site and in accordance with the specifications as set out in the Design Specifications set out in Schedule 4 to this Agreement. Customer shall not make any alterations to the Powa name and logo, nor shall Customer make any other use of the Powa name and logo save as authorised under this Agreement.
4.1 Powa warrants to Customer that:
4.1.1It will provide the Services with all reasonable skill and care and in accordance with good industry practice;
4.1.2 It will take all reasonable measures to provide a robust and resilient infrastructure to provide the Services in accordance with this Agreement;
4.1.3 It will take all reasonable measures to ensure that any employee, agent or contractor of Powa shall be suitably experienced to perform his or her contribution and conform to the standards, skill and ability to be reasonably expected of such performance;
4.1.4 It is authorised to use the Software concerned in connection with its obligations under this Agreement and will remain so authorised for the duration of the Agreement and will remain authorised by the relevant licensors and owners to grant Customer the rights to use the Software;
4.1.5 It has and will maintain in effect all necessary licences and any other authorisations and rights required in providing the Services;
4.2 Save as expressly stated in this Agreement, Powa excludes all warranties, conditions and other terms express or implied, including, but not limited to, implied terms of satisfactory quality and fitness for purpose in relation to the provision of the Service.
5 CHARGES AND PAYMENT
5.1 The Charges will be calculated by Powa in accordance with this Agreement unless Customer buys the Service through a third party distributor of Powa. In such a case, charging arrangements will be as agreed between the Customer and the third party.
5.2 Customer shall be invoiced in arrears with regards all Charges as set out in Schedule 3.
5.3 All monies invoiced by Powa are to be received by the 28th day following the date of issue of the invoice.
5.4 Where the payments terms as set out at clause 5.3 are not met by Customer, and without prejudice to any other right Powa may have under this Agreement :
A Powa may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of Barclays Bank plc in force from time to time, from the date of the invoice until the date of actual payment. The Charges will be invoiced and paid in pounds sterling unless otherwise stated in Charges Schedule. All charges are subject to Value Added Tax (VAT), or any other applicable sales or use tax or like charge in a country where the Service is provided, which shall be payable by Customer to Powa on settlement of the Charges due.
B Powa shall not be bound by the Service Level Agreements to be found at Schedule 2 of this Agreement for the duration that any such payments have not been paid in accordance with clause 5.3 and any failures to comply with the Service Level Agreements during that period will be disregarded.
A Transaction Charges - in respect of transaction Charges, no refunds shall be made in respect of correctly calculated charges for services already rendered by Powa. Any disputes raised by Customers relating to transaction Charges will be investigated fully and promptly by Powa within 7 days of notification by Customer, and in the event that the Charges are found to be in excess of the correctly due Charges Powa will refund the excess to Customer within 7 days of that finding.
B Service charges and subscriptions – Powa's services are provided under a Software as a Service (SaaS) model and Customer consumes such Services at will. Where Customer engages with Powa under a service charge or subscription contract no refunds are due in respect of already consumed services.
C Physical goods (e.g. Hardware) - where Customer purchases physical goods from Powa, Customer may cancel such order within 7 working days of receipt of the goods. In the event that Customer cancels an order for physical goods, Customer shall return the goods to Powa in resaleable condition and Powa shall provide a full refund of the cost of the goods. Customer shall be responsible for any return shipping costs.
6.1 Customer shall not attempt to circumvent system security or access the source code of the Software.
6.2 Customer shall keep confidential any passwords or other security information relating to the Software.
6.3 Customer is responsible for the security and proper use of all user IDs, passwords, or other security devices used in connection with the Service (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.
6.4 Customer must immediately inform Powa if there is any reason to believe that a user ID, password, or any other security device issued by Powa has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
6.5 Customer must not change or attempt to change a user ID, password, or other security device issued by Powa. If Customer forgets or loses a user ID, password, or other security device issued by Powa, Customer must contact Powa immediately and then complete such security checks as Powa deems appropriate.
6.6 Powa reserves the right to suspend access to the Service if at any time Powa considers that there is or is likely to be a breach of security or if Customer fails to comply with Powa’s instructions or requests in relation to security matters.
6.7 Powa reserves the right (at its sole discretion) to require Customer to change any or all of the passwords used by Customer in connection with the Service.
6.8 Customer must immediately inform Powa of any changes to the information Customer supplied when registering for the Service.
6.9 Any transfer of Sensitive Data between Powa's network and a client or partner network should be encrypted by Customer using a strong encryption protocol to be approved by Powa.
6.10 Under no circumstances should Customer attempt to gain access to Powa data or services using a plain text authentication protocol, or plain text transmission protocols.
6.11 Where Customer accesses Powa's cardholder data network via a VPN or SSL connection, Customer will be required to confirm that the encrypted connection's endpoint resides on the computer on which the authentication credentials are entered, and that the authentication credentials are not relayed in plain text through any part of Customer's network.
6.12 The suitability of any data transmission protocols or authentication protocols must be approved by Powa prior to any connection to Powa's networks. Powa may require the use by Customer of strong encryption technologies when processing or handling Sensitive Data. The determination of sensitivity of any data transmitted to or from Powa's network will be undertaken by Powa, but in all instances any personal data relating to cardholders will be considered to be Sensitive Data for the purposes of this Agreement.
6.13 Powa is audited with respect to the requirements of the Payment Card Industry Data Security Standard (PCI DSS) and, as such, safeguards the confidentiality and integrity of financial account information such as credit card accounts, debit card accounts, transactions and associated information.
6.14 From time to time Powa may provide Customer with such information either in encrypted or unencrypted form at Customer’s request as part of normal business operations, or as part of an exceptional process. Customer agrees that Customer will be responsible for the confidentiality and security of any sensitive account information or transaction information that is provided to it by Powa, and will adhere to the requirements of the PCI DSS with respect to the security of this information. In addition Customer agrees that if it discovers that that there may have been any breach in the confidentiality of any such information during the transmission of the information from Powa to it, that it will immediately notify Powa of the circumstances of the possible breach.
7 TERM AND TERMINATION
7.1 This Agreement will continue until terminated by either party in accordance with this clause 7, unless Customer buys the Service through a third party distributor of Powa. In such a case, duration and termination arrangements will be as agreed between the Customer and the third party provided that Powa may terminate this Agreement under clauses 7.5(b) to (e) inclusive.
7.2 Other than as set out in clause 7.3 or as agreed separately between the parties, either party may terminate this Agreement by giving a minimum of one (1) months’ notice in writing at any time.
7.3 Customer may terminate this Agreement where the reason for the termination is:
(a) the material breach by Powa of its obligations under this Agreement where Powa has failed to remedy such breach within 28 days of being notified by Customer of the breach in writing; or
(b) Powa becoming subject to Bankruptcy or Insolvency Proceedings; or
(c) Powa has been fraudulent or attempted to be fraudulent or has committed any other criminal offence in connection with the provision of the Service.
7.4 Unless the reason for termination is as set out in clause 7.3 (in which case no further Charges shall be payable from the point of such termination other than are outstanding at such time), if the Customer terminates this Agreement an amount equal to the last 12 months' Charges will be payable to Powa (or, where this Agreement has run for less than 12 months, an amount equal to the Charges payable over the term) ("Termination Fee"). The Termination Fee will apply unless Customer ceases trading online for a period of at least twelve months from the date of termination. If during that period, Customer directly and/or indirectly and whether itself or through any successors, group companies, representatives, agents, distributors or other third parties continues or re-commences (or permits others to continue or re-commence) online sales of any products or services of the same or a similar nature to any sold by Customer during this Agreement through the Service, the Termination Fee will become payable..
7.5 Powa may, without prejudice to any other right or remedy it may have under this Agreement, suspend the Service temporarily without notice or terminate this Agreement by notice effective immediately if:
(a) Customer does not pay any valid invoice within 28 days of service; or
(b) Other than in the instances set out in 7.5 (a), materially breaches this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 28 days of receipt of written notice from Powa to do so; or
(c) Customer becomes subject to Bankruptcy or Insolvency Proceedings; or
(d) Customer has been fraudulent or attempted to be fraudulent or has committed any other criminal offence in connection with the use of the Service; or
(e) Customer or anyone else under Customer’s control, with or without Customer's knowledge or approval, uses the server capacity of the Site or the Software made available to it in any way which, in Powa’s opinion, is, or is likely to be, detrimental to the provision of the Service to Customer or any other customer and fails to take corrective action within a reasonable period of receiving notice from Powa, Powa may terminate this Agreement and/or Service without notice.
7.6 If Powa chooses to temporarily suspend the Service rather than to exercise its right to terminate under clause 7.5 above, any such suspension shall be without prejudice to its right to terminate this Agreement, and Customer shall remain liable to pay any Charges due during such suspension.
7.7 In the event of termination of this Agreement for any reason whatsoever, Customer agrees to either immediately return any tangible property to Powa or to destroy any such property, at Powa’s discretion.
7.8 Termination of this Agreement for any reason shall be without prejudice to the rights of either party accrued as at the date of termination.
7.9 In the event of the termination of this Agreement, Powa shall provide Customer with all reasonable assistance to migrate to another service provider which shall be subject to Powa’s reasonable charges.
8 LIMITATION OF REMEDIES AND LIABILITY
8.1 Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence; or
(c) under an express indemnity in this Agreement; or
(d) any other liability which cannot be excluded or limited under applicable law.
8.2 Subject to clause 8.1, neither party shall be liable (in contract tort, including negligence, misrepresentation or otherwise) to the other or any third party for any loss of profit, business earnings or opportunity, loss of anticipated savings or indirect, incidental or consequential loss or damages arising under or in connection with this Agreement.
8.3 Subject to clause 8.1, Powa's liability under or in connection with this Agreement (and whether such liability arises due to breach of contract tort, including negligence, misrepresentation or otherwise) shall be limited as follows:
(a) for or in relation to any given event or series of connected events, to an amount equal to the total charges payable to Powa under this Agreement in the period of six months immediately preceding the month in which the event (or first in the series of connected events) occurs;
(b) in the aggregate, to £25,000 (twenty-five thousand pounds) (so that, subject to clause 8.1, under no circumstances will Powa's total aggregate liability under or in relation to this Agreement exceed £25,000 (twenty-five thousand pounds)).
8.4 The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity.
8.5 Customer accepts that Powa is neither obligated nor able to edit, review or modify Customer Information or Third Party Information and that Powa does not examine the use to which Customer puts the Service. However, Powa reserves the right to remove any Customer Information or Third Party Information if Powa reasonably believes such information breaches any laws or regulations or any third party’s rights.
8.6 Subject to clause 8.1, Powa excludes all liability of any kind in respect of Customer Information, Third Party Information, any other material which can be accessed using the Service and is not responsible in any way for any goods (including software) or services provided advertised, sold or otherwise made available by means of the Service.
8.7 Powa expressly excludes, without prejudice to clause 8.1 of this Agreement, all liability for any fraud committed in connection with the Service that may take place on the Site, including, but not limited to fraudulent transactions placed by visitors. Powa may provide functionality to Customer to assist the countering of fraudulent activity by Customer. However, it remains the Customer's responsibility to determine how that information is to be used, and in particular what weighting it will give such information in the process of deciding whether or not to accept or process orders. Furthermore, it remains the Customer's responsibility, should they choose to utilize any functionality provided by Powa to Customer to assist the countering of fraudulent activity by Buyers, to ensure that it is in place, is configured to their satisfaction and specification, and is operational.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in Customer Information (the “Customer Intellectual Property”) are and shall remain the property of Customer and its licensors.
9.2 Except for where provided for at clause 9.1, all Intellectual Property Rights in the Site, the Software, any supporting or associated material to the Software, or any Software developed by Powa in fulfilling its obligations under this Agreement or in connection with this Agreement, whether the Software or material is particular to Customer or not, and any other material provided to or made accessible to Customer by Powa as a result of this Agreement (“Powa Intellectual Property”) are and shall remain the sole property of Powa or, where appropriate, its licensors.
9.3 Customer grants to Powa a non-transferable, royalty free licence to use the Customer Intellectual Property for the purposes of performing its obligations under this Agreement.
9.4 Powa grants Customer a non-exclusive, non-transferable licence for the term of this Agreement to use the Software for the term of this Agreement for the purposes of receiving the Services and for updating Customer Information as may be required.
10.1 Customer acknowledges that it is exclusively responsible for checking the accuracy of each transaction or computation carried out using the Service, 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 without limitation and as applicable the creation of invoices, VAT or other tax records, and shipping documentation.
10.2 Customer is solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature applicable to Customer or any third party arising out of Customer’s use of the Service and will indemnify Powa fully against liability for any such taxes and duties.
10.3 Powa does not provide nor does Powa agree to provide any advisory services to Customer regarding taxation or any customs or other import/export duties. The provision of the Service does not constitute the provision of such advice and all such computations are based solely on data supplied or created by Customer. Accordingly, it is the Customer’s responsibility to check the validity and accuracy of any computations or similar functions performed using the Service.
11 THIRD PARTY TRANSACTIONS; INDEMNITY
11.1 Customer shall remain solely responsible for any transactions of any kind entered into between Customer and Buyers or any other third parties accessing or acting in reliance on the Service, or any information on the site. Powa will not be a party to or in any way responsible for any transaction between Customer and a Buyer or other third party.
11.2 Customer agrees to indemnify and keep Powa indemnified against any losses, expenses and liability suffered or incurred by Powa and arising from (i) any claim brought by a third party resulting or arising from Customer’s use of the Service, (ii) any actual or alleged breach of its obligations under clauses 3 and/or 6 of this Agreement by Customer, (iii) Powa's hosting of the Service, and/or (iv) any claim brought by a third party resulting or arising in any way from any Customer Information, Products, Transactions (including any actual or alleged non-compliance by Customer with tax laws) or any other material provided by Customer to Powa.
11.3 The indemnity at clause 11.2 includes without limitation all costs, expenses, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against Powa arising from any relevant claims. Furthermore, Customer agrees it will provide Powa with notice of such claims, gives Powa full authority to defend, compromise or settle such claims and to give all reasonable assistance necessary to defend such claims, at Customer’s sole expense. Powa agrees that any actions taken in respect of such claims will be taken in consultation with Customer.
12 DATA PROTECTION
12.1 Powa may collect, hold, control, use and transmit data obtained from and about Customer in the course of providing the Services. Customer agrees that any such data may be passed on to other Powa Group Companies even when these companies are based outside the European Union but only where Powa has put in place protections over such data that are of equivalent strength as that it has in place within the UK.
12.2 Both parties shall comply with their obligations under the Data Protection Act with regards to any Personal Data (as defined in the Data Protection Act) it receives as a result of this Agreement. In particular, Customer agrees to: (a) keep secure all information relating to Buyers it acquires using the Service; and (b) keep personal data or other information subject to European, UK, or other applicable Data Protection legislation in accordance with all applicable Data Protection and privacy requirements (of whatever jurisdiction) and (c) not to use or disclose such information for any unlawful purpose.
12.3 In this clause 12, Personal Data has the meaning given in the Data Protection Act 1998.
13 FORCE MAJEURE
13.1 If either party is unable to perform any obligation under this Agreement because of a matter beyond that party's reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (whether or not involving employees of either party) or acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will have no liability to the other for that failure to perform.
13.2 In the event of a refusal or delay by a third party to supply a telecommunications service to Powa and where there is no alternative service available at reasonable cost, Powa will have no liability to Customer for failure to supply the Service.
13.3 If any of the events detailed in paragraphs 13.1 or 13.2, collectively ‘Events of Force Majeure’, continue for more than three (3) months or, in the instance where the Site is unable to process any transactions for a continuous period of five (5) days, either party may serve notice on the other terminating this Agreement. Customer shall be responsible for any Charges incurred to the date of termination which shall become due forthwith on the date of termination.
14.1 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.
14.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, or in the case of Powa the employees of a Powa 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.
14.3 The obligations set out in this clause 14 shall not apply to Confidential Information which the receiving party can demonstrate, with written evidence:
(a) is or has become publicly known other than through breach of this clause 14; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party without any breach of this Agreement as evidenced by written records; or
(e) was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
14.4 The obligations of confidentiality in this clause 14 shall not be affected by the expiry or termination of this Agreement, but will remain in effect for 2 years after the termination of this Agreement.
15.1 A notice given under this agreement:
(a) shall be in the English language (or be accompanied by a properly prepared translation into English);
(b) shall be sent for the attention of the person, and to the email address or other location given in this clause 15 (or such other person or address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and
15.2 The addresses for service of notice are:
(a) for Customer, the email address of Customer’s primary contact as given during Customer’s sign-up process (or as later modified in accordance with this clause) or a reasonably prominent part of the Site:
(b) for Powa: E-mail: email@example.com
16.1 From the Commencement Date, Powa shall be entitled to use the name and the logo of the Customer in/on:
16.1.1 the Powa Site (www.powa.com) and in particular on the existing customer webpage;
16.1.2 marketing communications and materials and literature for sales lead generation programmes.
16.2 Powa may request and Customer will provide a reference to Powa for marketing use following the ‘go live’ of the Site.
16.3 Powa may draft a case study for marketing use and sales generation programmes enacted by Powa. This case study will be presented for approval by Customer, and will not be released without the Customer’s express permission.
16.4 Within thirty (30) days following the Commencement Date, and separately the ‘go-live’ of the Site, Powa and Customer may release a joint press release announcing the launch of the Site.
16.5 All other media releases, public announcements and public disclosures by either party relating to this Agreement or its subject matter, including promotional or marketing material, other than as included in this clause 16 and specified in Clause 3.7 above and further in Schedule 4, shall be co-ordinated with Customer and approved by Customer prior to release.
Neither party may assign, resell, sublease or in any other way transfer the Service (or any element thereof), or any of its rights or obligations under the terms of this Agreement without the prior written consent of the other. Contravention of this restriction in any way, whether successful or not will entitle Powa to terminate the Service and/or the Agreement immediately.
18 ENTIRE AGREEMENT
This Agreement sets out the entire agreement and understanding between the parties, it supersedes any previous agreement between them in relation to the subject matter of this Agreement and no representations, statements or inducements, oral or written (and excluding only those made fraudulently), not contained herein shall bind either party. Each party recognises that, in entering into this Agreement, it has not relied on any representation, statement or understanding (whether innocent or negligent) not expressly set out herein.
19 THIRD PARTY RIGHTS
No person or undertaking that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
20.1 Any variation of this Agreement, other than provided for in clause 11 above, shall be in writing by an authorized officer of Powa evidencing unqualified agreement to vary this Agreement.
21 SIGNIFICANT RISE IN ACTIVITY
21.1 The Customer must give Sufficient Surge Notice to Powa of any Surge Event that the Customer anticipates, or can be reasonably expected to anticipate, to cause Extraordinary Activity on the Site.
21.2 If the Customer fails to give Sufficient Surge Notice then:
(a) Powa will not be liable to meet any of the Service Levels in the Agreement during such period of time as a Surge Event has an influence on levels of activity on the Site; and
(b) Powa reserves the right to actively limit resource usage on its shared platform if, in its decision, other customers on the platform itself may be adversely affected; and
(c) the Customer will meet any costs reasonably incurred by Powa in catering for the additional activity on the Site that may occur in preparation for and during the influence of a Surge Event.
21.3 Where any Surge Event takes place and Powa has received Sufficient Surge Notice the parties will agree amended Service Levels for the duration that said Surge Event has influence on the activity on the Site.
22.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23 NO PARTNERSHIP
Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting enter 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.
24 GOVERNING LAW AND JURISDICTION
24.1 This agreement 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.
24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.
SERVICE OUTLINE SCHEDULE
SERVICE DESCRIPTION, WHICH IS SUBJECT TO THE FOREGOING CONDITIONS:
1 The Service allows Customer to offer a catalogue of its Products, including information about the relevant attributes (e.g., weight, dimensions, size, colour, functional description) of Products listed in its catalogue in an electronic format to current and prospective Buyers. Customer can amend and update information about Products.
2 Using the Service, a Buyer can search for Products of interest to it and enter into an agreement with Customer to purchase such Products.
3 Powa may: (a) change the technical specification of the Service, provided that any change to the technical specification does not materially affect the performance of the Service; (b) suspend the Service, without penalty, for operational reasons in the case of emergency for repairs and maintenance which cannot be avoided or delayed. Powa will provide the Customer with written details of the emergency upon request. Powa shall use all reasonable endeavours to minimise the impact of any such interruption to the Service by, where possible, scheduling any necessary work to occur at a time of minimum traffic and by restoring the service promptly upon the conclusion of any such work.
System Administration Powa and its agents will perform routine system administration of the Service (including without limitation server, network and security monitoring, file system integrity checks, disk space checks and monitoring for unattended logins).
Fault Monitoring Powa and its agents will provide fault monitoring of the Service 24 hours a day 7 days a week.
Workaround In the case of investigation of a fault, Powa may identify a possible method of using Customer’s Site that avoids the fault or minimises its effect and which does not result in any material detriment to the Site or expense ("Workaround").
Service Availability The Service is scheduled to be available 24 hours per day, 7 days a week but Powa accepts no liability for failure to maintain this level of availability other than where it is in breach of its obligations under this Agreement. Without prejudice to Powa’s rights under clause 3 above, Powa will provide a minimum of 72 hours’ notice of any planned maintenance activity. Where significant Service-affecting maintenance work is planned, Powa will use all reasonable endeavours to provide 7 days’ notice of this work. Powa reserves the right to conduct routine maintenance of the Service (including if necessary the right to render the Service unavailable) without notice between the hours of midnight and 5:00 a.m. (UK time). In the event of disruptions to the Service as a result of an Event of Force Majeure, Powa will use reasonable endeavours to restore Service as soon as it reasonably can but it cannot guarantee when such restoration will occur.
Online Data Backup Powa backs up all databases on a nightly basis and will use reasonable endeavours to restore any data lost or corrupted as soon as it reasonably can but Powa does not guarantee such restoration of data or accept any liability for the failure to restore lost or corrupted data. Powa will ensure that it maintains such backup retention facilities as should be reasonably expected from an ecommerce service provider providing the Services that Powa does under this Agreement.
Domain name registration and transfer As part of the Service, where appropriate Powa shall arrange and register the domain name as requested by Customer on its behalf, with OpenSRS (http://services.tucows.com) or Nominet (http://nic.uk). Powa shall choose between these two providers as it deems appropriate (the “Allocated Provider“) and Customer shall then be so notified. Customer shall, by entering into these terms and conditions, be deemed to have accepted the terms and conditions of the Allocated Provider and to have authorized Powa to enter into those terms and conditions on Customer’s behalf.
If Customer should terminate this Agreement and wishes to transfer its domain name, Customer shall be charged an administration fee per domain name as below:
(a) where Customer is based in the United Kingdom (or any other country or territory not covered in (a) or (b) below), £30.00 + VAT
(b) where Customer is based in the European Union (other than the United Kingdom) €30.00 + Local Sales Tax
(c) where Customer is based in the United States, US$30.00 + Local Sales Tax
Customer Site Content Management: Customer will be responsible for updating and amending Customer Site Content. Powa will not be liable for any Customer Site content provided by Customer beyond its responsibility to accurately reproduce such material on Customer’s Site.
Contacts Customer will provide contact details for all Authorised Users to the Helpdesk. Powa will respond only to queries or fault reports received from Authorised Users, and it is Customer’s sole responsibility to interact with any third parties (including without limitation Authorised Users) in relation to the Service.
Product Catalogues Customer will provide Powa with a current Product catalogue in electronic form only. If Customer does not have an electronic version of the products to be featured in the Service, then Powa may provide additional capabilities to create an electronic catalogue for Customer. This additional capability is not provided under this Agreement. Customer shall provide all Customer Information and any Third Party Information to Powa in a timely manner and shall indemnify Powa against any loss suffered by Powa as a result of using Customer Information or Third Party Information in connection with the Service.
Agreement with Acquiring Bank If Customer wishes to allow Buyers to use credit and/or debit cards when ordering through the Service, it is a condition precedent to this Agreement that Customer must have in place at all times a valid agreement with an Acquiring Bank. Customer must negotiate and agree with its Acquiring Bank the rate at which Card Not Present (CNP) transactions will be acquired on Customer’s behalf. Customer shall authorise the Acquiring Bank to deal with Powa and to provide Powa with such information as Powa requires.
Buyer Access Access to the Service for Buyers is via the Buyer’s Internet service provider (ISP) and is not provided under or the subject of this Agreement.
SERVICE LEVEL SCHEDULE
This Service Level Schedule describes the minimum service Levels to be provided by Powa.
2. Service level indicators and monitoring
Site Availability: 99.5%
Site Availability means the percentage of minutes in the calendar month that the Customers and Buyers can access the Site as a percentage of Availability calculated as follows:
(Actual number of minutes of Site Availability plus minutes of Permitted Downtime) divided by Total number of minutes in month
Permitted Downtime means downtime as permitted under Service Availability in Schedule 1 plus downtime attributed to acts or omissions of parties directly contracted with Customer and / or Customer where Customer acts other than as authorised under this Agreement.
Page Download: 99.5%
Page Download means the percentage of minutes in the calendar month that the Pages are Delivered in less than 5 seconds calculated as follows:
(Actual number of minutes of Page Download plus minutes of Permitted Downtime) divided by Total number of minutes in month.
Delivered or Delivery means the full page download of the relevant page as measured by Powa’s monitoring system.
Pages means the Home Page, and such pages to be agreed between the parties as being a fair representation of the Site (to include Product pages, Category pages and Add to Basket pages but not to include pages whose Delivery is reliant on third parties)
In addition, Powa will utilise a fully automated monitoring system to constantly monitor the network, allowing proactive identification and response to network incidents.
3. Incident resolution
All incidents (identified by Customer or Powa) shall be assigned a priority level in accordance with the following:
|Priority Level||Incident Description|
|A||Incidents where all users of the Services are NOT able to complete any transactions.|
|B||Incidents where only some users of the service are NOT able to complete transactions, and/or incidents where some products cannot be bought by users, or any other substantial function of the site is not functioning.|
|C||Requests for amendments/enhancements to the Service or incidents falling outside priority levels A and B.|
Powa shall resolve incidents within the following timescales (measured from the time Customer incident is reported to Powa):
|Priority Level||Target Incident Resolution / Response Time|
For NON Application-related incidents (i.e. Hardware):
Use all reasonable endeavours to resolve the incident within four (4) hours, plus an additional four (4) hours if the incident is reported outside normal Working Hours.
For Application-related incidents:
Commence resolution of the incident within 30 minutes of identification.
|B||Commence resolution of the incident within four (4) Working Hours of identification.|
|C||To be determined on a case by case basis.|
4. Escalation Process
In the event of a priority ‘A’ incident remaining unresolved for a period in excess of the relevant target incident resolution time or the commencement of resolution not commencing as specified in the table above, the matter in question will be automatically escalated within Powa to the persons as detailed in the table below.
|Duration from notice of incident||Escalation contact within Powa|
|2 hours||Support Manager|
|4 hours||Head of Development|
|8 hours||Chief Technical Officer|
|12 hours||Group Chief Executive Officer|
6.1 As Customer’s sole and exclusive remedy, if Powa fails to achieve any of the following:
(i) Site Availability over a calendar month; or
(ii) Page Download over a calendar month as defined above,
((i) and (ii) being defined as the Target and a failure to achieve both will be deemed as one failure and the lower of the two percentages ("SLA Target") will be used to calculate the remedy to be awarded: ie a Page Download statistic of 99.3% in a month and a Site Availability of 99.2% will lead to a rebate of the Monthly Fee calculated on the basis of an availability target of 99.2%.)
Powa shall credit the Customer (by way of rebate) with a service credit equivalent to one day of the Monthly Fee. For each 0.25% below the Target, a further rebate of one day of the monthly service fee shall be payable.
6.2 The maximum amount of service credits that can be paid in any one month is capped at 25% of the Monthly Fee.
6.3 For the avoidance of doubt, any maintenance work as described and permitted in Schedule 1 shall not be included in any calculation of Site Availability.
All charges are exclusive of VAT.
In respect of all Transactions, including Credit and Debit card transactions, Customer will pay Powa 8% (eight per cent) (or other percentage as set out in Addendum, if any) of Revenue. The revenue share will remain payable regardless of any chargebacks in relation to Transactions.
Transaction charges shall be subject to a minimum monthly payment in respect of each calendar month (or part thereof) regardless of the level of Transactions as follows:
(a) where Customer is based in the United Kingdom (or any other country or territory not covered in (a) or (b) below), £9.99 + VAT
(b) where Customer is based in the European Union (other than the United Kingdom) €9.99 + Local Sales Tax
(c) where Customer is based in the United States, US$9.99 + Local Sales Tax
Payment methods other than credit and debit cards may be subject to a further charge from Powa.
Fair Usage Charge
For each one Mbit/second of bandwidth, or part thereof, used on the Site each month above a threshold of two Mbit/second the following charges will apply:
(a) where Customer is based in the United Kingdom (or any other country or territory not covered in (a) or (b) below), £300.00 + VAT
(b) where Customer is based in the European Union (other than the United Kingdom) €300.00 + Local Sales Tax
(c) where Customer is based in the United States, US$300.00 + Local Sales Tax
Customer will reimburse Powa for all reasonable travel expenses incurred by Powa in attending any meeting with the client or any third party on the client’s behalf, where such meeting is either:
• at the specific request of the client; or
• in the normal course of business other than for any scheduled recurring quarterly review of the Service and/or the relationship between the parties.
Where Powa foresees such expenses being in excess of £150 in any one instance, it will seek the approval of the Client before incurring any such expense.
Powa Logo and PCI Logo Specifications
1. The Powa logo will be of the following design depending on whether the background behind the logo is dark or light:
The background above provided where the greater background is dark will match the colour of the webpage on which it lies.
2. The Powa logo will be displayed, as a minimum, in the dimensions of at least 116 pixels by 24 pixels.
3. The Powa logo will be displayed on every page of the website.
4. The words ‘you’ve got the’ will be displayed in the relevant language for the site it is displayed on.
5. The PCI logo will be of the following design depending on whether the background behind the logo is dark or light:
6. The PCI logo will be displayed, as a minimum, in the dimensions of at least 88 pixels by 28 pixels.
7. The PCI logo will be displayed on every page of the website.