THIS FRAMEWORK CONTRACT COMPRISES OF

1. The Statement of Work(s); and

2. These Extended Terms and Conditions (previously special terms) and

3. The Data Processor Agreement: that governs the processing of Personal data by Us.

The Extended Terms and Conditions are for clients on signed contracts with a duration that exceeds 6 months. Clients on rolling terms agree to the standard Terms and Conditions.

We strongly advise you to pay careful attention to Section 15 which deals with limitations of liabilities and Section 16 which deals with auto renewal.

1. Definitions

In this Agreement, except to the extent expressly provided otherwise:

1.1 “Acceptance Criteria” means: (a) the Platform and Hosted Services conforming in all material respects with the Hosted Services Specification; and (b) the Hosted Services being free from Hosted Services Defects;

1.2 “Acceptance Period” means a period following the making available of the Hosted Services to the Customer for the purposes of testing the length of the period to be agreed in the relevant Statement of Work.

1.3 “Acceptance Tests” means a set of tests designed to establish whether the Hosted Services meet the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Provider acting reasonably, and communicated to the Customer in advance of the first Acceptance Period.

1.4 “Account” means an account enabling the Client to access and use the Hosted Services; the Service may include an unlimited number of sub-accounts where staff from the client can access the service;

1.5 “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

1.6 “Agreement” means this agreement including any Schedules and any amendments to this Agreement from time to time;

1.7 “Business Day” means any weekday other than a bank or public holiday in England;

1.8 “Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

1.9 “Change” means any change to the scope of the Services;

1.10 “Charges” means the following amounts: (a) the amounts specified in the statement of work; (b) such amounts as may be agreed in writing by the parties from time to time; and (c) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement and/or updated from time to time) by the time spent by the Provider’s personnel performing the Support Services; (d) usage in excess of the agreed limits (listed in the Statement of Work(s)).

1.11 “Credit” means bookkeeping units that describe the use of a function of the Hosted Service;

1.12 “Order” means the addition of a record in a Despatch Cloud System that has data (in full or in part) that would enable goods to be shipped to a recipient.

1.13 “Label” means a single API request sent to a courier to generate a label for the dispatch of a letter or packet;

1.14 “Hub” means a single instance of a Despatch Cloud Order Management or Warehouse Management system, which is connected to the main client system and provided to be utilised by the End Users of the client;

1.15 “Confidential Information” means the Confidential Information of either party or the Client’s End User, provided as part of the relationship that is either described as confidential or would reasonably be understood to be confidential;

1.16 “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

1.17 “Client Data Subject(s)” means the entities whose data is processed (Data Processing) by Despatch Cloud on behalf of the client;

1.18 “Client End User(s)” means the entity to which the Client resells the service to, or otherwise enters into a contract with, to access the service or allows to use the Service;

1.19 “Client Data” means all data, works and materials uploaded to or stored on the Platform by the Client; transmitted by the Platform at the instigation of the Client; supplied by the Client to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Client (but excluding analytics data relating to the use of the Platform and server log files);

1.20 “Client Personal Data” means any Personal Data that is processed by the Provider on behalf of the Client in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;

1.21 “Client Systems” means the hardware and software systems of the Client that interact with, or may reasonably be expected to interact with, the Hosted Service;

1.22 “Customisation” means customisation of the Hosted Services, whether made through the development, configuration or integration of software or otherwise;

1.23 “Data Processing” has the meaning given to it by UK GDPR and the Data Protection Act 2018;

1.24 “Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) or UK equivalent;

1.25 “Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

1.26 “Effective Date” means the date of execution of this Agreement;

1.27 “End User” means a third party which is provided access to the Hosted Service by the client, for the purpose of utilising the Hosted Service;

1.28 “Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under this Agreement;

1.29 “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected;

1.30 “Hosted Services” means the Despatch Cloud service, as specified in the Statement of Works, which will be made available by the Provider to the Customer as a service via the Internet in accordance with this Agreement;

1.31 “Hosted Services Defect” means a defect, error or bug in the Hosted Service or Platform having a material and negative effect on the operation, functionality or performance of the Hosted Services;

1.32 “Insolvency Event” means the occurrence of any of the events listed in Clause 1.32(a) to 1.32(c);

1.33 “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered;

1.34 “Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

1.35 “Initial Term” means, in respect of this Agreement, the period stated in the Statement of Works beginning on the Effective Date;

1.36 “Mobile App” means any mobile application made available by the Provider via app stores or optimised websites;

1.37 “Order Form” means the part of the Statement of Works or Custom Work Scoping documentation, or other document entered into between the parties confirming an order with Despatch Cloud Ltd;

1.38 “Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom;

1.39 “Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services;

1.40 “Remedy Period” means a period of 20 Business Days or such other period as agreed, for rectifying Hosted Services Defects;

1.41 “Schedule” means any schedule attached to the main body of this Agreement;

1.42 “Security Incident” means an unauthorised access or breach of data security, as defined in Clause 1.42;

1.43 “Services” means any services provided by the Provider under this Agreement;

1.44 “Set Up Services” means the configuration, implementation and integration of the Hosted Services;

1.45 “Support Services” means support for the Hosted Services, excluding training services;

1.46 “Term” means the term of this Agreement;

1.47 “Third Party Services” means any hosted or cloud services provided by a third party that interact with the Hosted Services;

1.48 “Update” means a hotfix, patch or minor version update to any Platform software;

1.49 “Upgrade” means a major version upgrade of any Platform software;

1.50 “User” means an individual authorised by you to access the Hosted Services;

1.51 “We”, “Us”, “Our”, “Provider”, “Supplier” or “Despatch Cloud Ltd” means Despatch Cloud Ltd registered in England under number 09615192;

1.52 “Website” means https://thedespatchcompany.com/, https://helmwms.com/, https://heyvoila.io/ or https://channelapi.co.uk/;

1.53 “You” means the entity entering into a Statement of Work or Order Form as the “Client”.

1.54 "Further Term" means each successive 12-month renewal period following the expiry of the Initial Term, unless otherwise stated in a Statement of Work.

1.55 "Wind Down" means the period after a downgrade request or service termination notice is submitted, during which services are reduced or phased out in accordance with the terms of the Agreement.

1.56 "Scoping Document" means the document attached to a Statement of Work or App Development Agreement that outlines the functional, technical, and delivery requirements of a Development Service.

1.57 "Custom Work Scoping Documentation" means a document used to specify custom development, integrations, or bespoke features agreed between the Client and Despatch Cloud Ltd.

1.58 "App Development Agreement" means a written agreement between the Client and Despatch Cloud Ltd specifically governing the design and development of a mobile or web-based application.

1.59 "Hosted Service defect" means a failure of the Hosted Services to operate in accordance with the service levels or technical expectations agreed in the Statement of Work or described in Clause 3.3.

1.60 "Statement of Works" means one or more documents titled as such that describe the specific Hosted Services, Support Services or Development Services to be delivered under this Agreement.

1.61 "Development Service(s)" means any service involving the design, development, or implementation of software or related materials provided by Despatch Cloud Ltd under a Statement of Work.

1.62 "Deliverables" means any software, configuration, documentation, report, or other work product created or provided by Despatch Cloud Ltd as part of a Development Service.

1.63 "Change Request" means a documented request by either party to modify the scope, specification, timeline or cost of any agreed Deliverable or Service.

1.64 "Change Control" means the process by which Change Requests are assessed, approved, or rejected in writing by Despatch Cloud Ltd.

1.65 "Overage Rate" means the fee charged for any usage in excess of the stated fair usage policy or contract limits, as published by Despatch Cloud Ltd.

1.66 "Dispute Resolution Mechanism" means the procedures outlined in Clause 23 for resolving any disputes arising under this Agreement.

1.67 "Enterprise Plan(s)" means a tier of enhanced support or service level agreement provided to a Client, as specified in the relevant Statement of Work.

1.68 "Alternative Dispute Resolution" means non-judicial methods of resolving disputes including mediation and arbitration as outlined in Clause 23.

2. Term & Statement of Work

2.1 This Agreement is for the Initial Term and will continue for consecutive Further Terms or as set out in a Statement of Work unless terminated in accordance with clause 14.

2.2 This Agreement shall subsist for as long as at least one Statement of Work subsists. Termination of any one Statement of Work shall not affect any other Statement of Work, save where specified therein, although if grounds to terminate apply to the Agreement or to multiple Statements of Work, then each affected Statement of Work may be terminated simultaneously.

2.3 For the supply of further Despatch Cloud services, the parties shall agree a new Statement of Work. Unless an express statement to the contrary is included in a new Statement of Work, all Statements of Work will be governed by the Terms and Conditions of this agreement.

2.4 If there is any conflict or inconsistency between any provision of these Extended Terms and any Statement of Work, these Extended Terms shall prevail unless specifically stated in writing in a Statement of Work, with explicit reference to the conflicting clause.

2.5 Each Statement of Work will be effective on execution by authorised signatories from each party and the Effective Date shall be deemed to be the date on which You executed the Statement of Work or such other date as set out on the Statement of Work

2.6 Despatch Cloud Ltd reserves the right to update or change this Agreement, the Data Protection Agreement & any Statement of Work with 6 months’ written notice, provided in written form to the customer (either as a physical letter or an email to the nominated point of contact). Subject to
2.6.1 For a period of 90 days after the client was made aware of any changes, the client will at their sole discretion, have the right to terminate any agreements for the provision of services that are affected by any change(s), immediately or within a set timeframe, in the event that, following any discussions with Despatch Cloud regarding changes made by Despatch Cloud to the agreement, the client (at their sole discretion acting reasonably) considers that such changes will have a material adverse impact on them.
2.6.2 The client will have a period of 9 months to terminate according to clause 2.6.1, during which time the changes will not be in force and for the avoidance of doubt the Client will not be liable to any further charges other than those previously agreed. After 9 months the changes will be deemed to have been accepted.

3. Description of Service

3.1 The Hosted Service(s) shall be provided to you as set out in the applicable Statement of Work. Any new features which are subsequently added to the Hosted Service(s) during the Term shall also be, unless agreed otherwise in writing, subject to this Agreement.

3.2 Despatch Cloud Ltd cannot guarantee that the Hosted Service(s) will be continuously available as the Hosted Service(s) may be unavailable from time to time due to either:

(a) scheduled downtime for Hosted Service(s) upgrades and/or maintenance; and/or

(b) any circumstances which are beyond Our reasonable control such as technical failures, subject to Despatch Cloud having taken reasonable steps to identify and mitigate such risks

3.3 Despatch Cloud will guarantee a 99.8% uptime, and failure to achieve this average over a 3-month period will be considered a Hosted Service defect:

3.4 Despatch Cloud Ltd cannot guarantee any aspect of the Service which is reliant on third party services, such as Channels, Couriers, Hosting, ISPs, Internet Security Providers, Power, or critical sub-contracted services, beyond those guarantees provided by the relevant supplier. This is subject to reasonable care and attention by Despatch Cloud being applied to the selection of a vendor and taking reasonable steps to verify their competencies.

3.5 Where the Statement of Work or any addendum does not specify a limit on usage (such as the number of Orders or the number of Users) there is a fair usage cap that may be negotiated between the parties in good faith. For the Client or End Users, the number of users will be capped at 500 per account unless otherwise mutually agreed in writing between the parties.

4. Terms of Use

4.1 In order to subscribe to our Service, each account must be connected to an individual person. In the circumstance where you are an organisation, each account must be assigned to an individual employee at that organisation. We cannot accept any subscriptions where accounts are registered or run through automated methods.

4.2 You must provide your

full legal name

a valid email address for the main point of contact

your registered address

Correspondence address (if different from the above)

Contact details for your accounts department

VAT number

Credentials to access the systems required for the service to be provided

Other information may requested by Despatch Cloud Ltd in order to complete the signup process, or to access services, or are required by agreed third parties (such as couriers) .

4.3 You are responsible for maintaining the security (including the accounts of those who you resell to) of your account login information (username & password and any third-factor authentication service) Despatch Cloud Ltd cannot and will not be liable for any loss or damage from failure to comply with this security obligation. You must notify Us immediately in the event of loss of your username and password.

4.4 Despatch Cloud Ltd hereby grants you a limited, non-transferable, (except to authorized assignees under this Agreement) non-exclusive licence to use and access the Hosted Service solely for your internal business purposes, provided that you shall not:

4.4.1 licence, sub-license, sell, resell (except when bound by these terms), rent, lease, transfer, assign, distribute or otherwise exploit the terms of this licence or make the Hosted Service available for access or use by any person(s) other than the End Users, save as for is expressly permitted by this Agreement or authorised by Despatch Cloud Ltd;

4.4.2 use the Hosted Service to process any data unlawfully or for any third party;

4.4.3 allow any unauthorised access to, or use of, the Hosted Service. You must notify us immediately in the event that you become aware of any such unauthorised access to, or use of, the Hosted Service;

4.4.4 modify, adapt, decipher, decompile, reverse engineer or otherwise attempt to determine the source code of the Software which makes up the Hosted Service except as otherwise expressly permitted by law;

4.4.5 use the Hosted Service or allow the Hosted Service to be used in an unlawful manner including, but not limited to, the infringement of any third party intellectual property rights or use of the Hosted Service in breach of any third party’s privacy rights;

4.4.6 use the Hosted Service or allow the Hosted Service to be used in a manner that violates the Documentation or this Agreement, and that interferes or disrupts with the provision of the Hosted Service by Despatch Cloud Ltd to third parties;

4.4.7 use the Hosted Service or allow the Hosted Service to be used to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses;

4.4.8 use the Hosted Service or allow the Hosted Service to be used to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person; or

4.4.9 use the Hosted Service or allow the Hosted service to be used for any transmission, display or publication of any material in breach of the Data Protection Act 2018 (or any amending statute) dealing with data protection or similar legislation in any other country of any material which is confidential or is a trade secret.

4.5 You are responsible for ensuring that the End Users (including those whom you resell to) comply with the terms of this Agreement and that Users do not access or use the Hosted Service in breach of this Agreement.

4.6 You may not transfer your concurrent licence to use and access the Service to any third party;

4.7 You may not use your account, or allow your account to be used for any illegal or unauthorised purpose. You must not, during your use of this Hosted Service, violate any laws in your jurisdiction (including, but not limited to copyright laws).

4.8 You may not adapt the Hosted Service, (or allow the Hosted Service to be adapted) in whole or in part with the intent to, or the outcome of, circumvent the fee structure.

4.9 You agree to indemnify Despatch Cloud Ltd against all and any losses, costs and expenses Despatch Cloud Ltd may incur as a result of any breach by you of this clause 4., up to the limit of the actual amount paid by or payable by you, to Despatch Cloud Ltd during the previous four (4) months of the Hosted Service usage.

4.10 Various services may be required to be set up on your account or data input, you are normally required to set these services and/or input the data up yourself and we may in rare circumstances, and at our sole discretion, set services or input data up on your behalf. In the event that you have set up the service and/or input data you are responsible for the data, both to verify that it is correct and that it is accurately input. Where services or data has been input by us you are solely and strictly liable to verify that the service has been set up and/or the data input correctly.

5. Account Billing, Invoicing and Refunds

5.1 You shall be billed monthly for the Service in advance from the Effective Date of your subscription term for the minimum agreed volume, and monthly in arrears for the actual volume in excess of that volume. Or in advance for any ad hoc development or other mutually agreed work. Payments received from you by Despatch Cloud Ltd shall be on a non-refundable basis, subject to the terms of this agreement and the dispute resolution mechanism herein. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months where you have not used the service.

5.2 Despatch Cloud Ltd reserves the right to limit, suspend or terminate access to the Service upon 14 days written notice to you in the event of late or non-payment of Despatch Cloud Ltd’s invoices (except where late or non-payment relates to a dispute raised by you in good faith in relation to any invoice).

5.3 Notwithstanding the payment schedule for the Services to which you have subscribed, certain Services requested by you, may incur additional charges which will be invoiced monthly to you. We shall notify you in advance in writing of any additional charges applicable to your subscribed Services.

5.4 If you choose to add any additional Service during your Initial or Renewal Period, payment terms for any additional Service shall be agreed in writing with Despatch Cloud Ltd and you and will be set out in a new payment schedule mutually agreed between the parties.

5.5 Additional Users may be added to your account during your Subscription Term (including any Wind Down) and an additional charge per user will be payable in line with your contract terms stated on the order form when added to the Service. These are laid out in the statement of work.

5.6 If you experience account activity over the limits specified in the statement of work(s), Despatch Cloud Ltd will charge in arrears on the excess activity The cost of which will be in the Statement of Works or from our published price list (which every rate is lower will apply). Periods will be measured as complete months.

5.7 At the conclusion of the Initial Term or any Further Term, We reserve the right to revert Fees to the then current list price.

5.8 A client may request an upgrade at any point during this agreement, with 5 days notice, the update can be backdated or take effect at next invoice date, depending on agreement with the client.

5.9 A client may request a downgrade with 30 days notice. The client may only downgrade when they have previously upgraded and may only downgrade to the plan level stated on the contract.

6. Cancellation and Right to Monitor

6.1 Upon cancellation of an Account, payment is to be made up to the end of the billing period you are in. Under no circumstances shall any refunds for non-use of the Hosted Service be given due to early termination of the Hosted Service by you without cause.

6.2 Cancelled Accounts will have their data archived in a secure backup facility for up to 1 month after cancellation, upon the expiry of which it will be automatically deleted. During such 1 month period, you can elect to have this data extracted and supplied to you or alternatively deleted.

6.3 Despatch Cloud Ltd recognises and confirms that the information from you contained in and processed by the Service is confidential. In the normal provision of the Hosted Service Despatch Cloud Ltd would not access or monitor your Account. However, Despatch Cloud Ltd reserves the right to utilise such access in order to support, manage and protect the integrity of the Hosted Service (including but not limited to preventing illegal activity, uploading of virus-infected files or questionable material and for general client support) where permitted by applicable law.

7. Right of Refusal

7.1 Despatch Cloud Ltd acting reasonably has the right to accept or decline trial and paid account requests in its sole discretion with no obligation to detail the reasoning behind such decision.

8. Modifications to the Service and Prices

8.1 Despatch Cloud Ltd reserves the right to increase prices at the renewal of the contract. Notice will be given of at least 60 days in advance of any price changes. In the event that you do not agree to any price increases of which you are notified, you may terminate this Agreement within the aforementioned 60 day notice period on written notice to Despatch Cloud Ltd.

8.2 In order to fulfil its obligations in managing and upgrading the Service, Despatch Cloud Ltd may at any time amend the Service (where this does not materially impact the core functions relied on by the client) and any documentation relating thereto for any reason including, but not limited to: legal, technical, or business considerations. Should any change have a material impact the Supplier will discuss it with the Client, explain why the change is required and take reasonable steps to mitigate the impact.

8.3 For a period of 90 days after the client was made aware of any changes, the client will at their sole discretion, have the right to terminate any agreements for the provision of services that are affected by any change(s), immediately or within a set timeframe, in the event that, following any discussions with Despatch Cloud regarding changes made by Despatch Cloud to the Service, the client (at their sole discretion acting reasonably) considers that such changes will have a material adverse impact on them.

8.4 You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Despatch Cloud Ltd or any Despatch Cloud Ltd product.

9. Support

9.1 Standard Telephone & Internet based support is available between the hours of 08:00 to 17:00 Monday to Friday

9.2 A support ticket may be raised by you at any time but you acknowledge that Despatch Cloud Ltd will only respond during the hours detailed in section 9.1 above.

9.3 Optional Enterprise Plans are available and the support details and SLA will be attached to the relevant Statement of Work or Ammendum agreement.

10. Code and Data Ownership

10.1 Any data entered in your live Account database or uploaded to the Hosted Service remains yours at all times and can be supplied if needed as a digital file upon request for this there will be a charge of £75 as an administration fee, if you require our support to provide such data. For the avoidance of doubt, the Client has access to their data through the API access provided under this Agreement and through the portal provided to access the Hosted Service with no additional charges.

10.2 Despatch Cloud Ltd does not pre-screen any content but reserves the right to refuse or remove any content available via the Hosted Service which is illegal, subject to civil action, or hosting can reasonably be considered to be materially damaging to Provider, although you acknowledge and accept that Despatch Cloud Ltd are not obliged to monitor such content as a standard part of the Hosted Service provided.

10.3 Despatch Cloud Ltd houses all Software on servers which are either owned by Us or leased from third parties. A list of server locations can be provided on request. All hosting will comply with ISO27001 or equivalent standards. All hosting with be in the UK or EEA for UK and EU-based clients and within the UK or EEA or the US for clients based in the United States of America or Canada.

Unauthorised distribution of the Software without prior consent is strictly prohibited and includes placing our Software on any physical or virtual servers or mediums without special agreement or written consent form Despatch Cloud Ltd.

10.4 The Despatch Cloud Ltd code will not be accessible for any Account.

10.5 Despatch Cloud Ltd shall have the right to collect and analyse data and other information in relation to your use, provision and performance of the Services and Despatch Cloud Ltd will be free to:

10.5.1 use such data and information (during the term of the agreement and thereafter) in an aggregated and anonymised form to create reports and improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Despatch Cloud Ltd offerings, and

10.5.2 in connection with its business disclose data and information on an aggregated and anonymised basis to third party commercial partners and investors.

11. Data Loss & Backups

11.1 Despatch Cloud Ltd will not accept under any circumstances the liability for any loss of client data whether that be through general use, hacking or server failure subject to maintaining such data security standards as are necessary to comply with the Agreement and ensure that you are not in breach of Data Protection Laws.

11.2 Despatch Cloud Ltd will operate one daily backup of the subscription account data and the server itself as a minimum. Additional backups may be listed in the Statement of Work.

11.3 Despatch Cloud will maintain a Security Incident Response plan which outlines the company’s response to a security incident, how to classify and triage the data lost and how to advise stakeholders including clients who are affected and regulatory authorities

11.4 As a minimum Despatch Cloud shall provide all reasonable cooperation with any Security Incident investigation carried out by You (or any end user of Yours), including

(a) making our personnel available; and

(b) providing data and other information. We shall investigate and report to You on the cause of the breach, including proposed corrective action within 24 hours of the Security Incident.

12. Confidentiality

12.1 Duty of Confidentiality; Despatch Cloud Ltd will at all times treat Confidential Information as defined in clause 1.15 with the strictest confidence. We undertake not to use, disclose, or allow access to any Confidential Information except as expressly permitted under this Agreement, as required by law, or in accordance with the Client’s documented instructions.

12.2 Confidentiality Obligations; Each party (the “Recipient”) undertakes to the other party (the “Discloser”) that during the Term and for a period of ten (10) years thereafter, it will:

a. keep all Confidential Information secure and protected against unauthorised access, disclosure, alteration, or destruction;

b. not disclose any Confidential Information to any third party without the prior written consent of the Discloser (save as permitted in clause 12.3);

c. use the Confidential Information solely for the performance of this Agreement and for no other purpose;

d. notify the Discloser immediately upon discovery of any unauthorised access to or use of the Confidential Information.

Confidential Information does not include information which:

i. was lawfully in the possession of the Recipient prior to disclosure by the Discloser without any obligation of confidentiality;

ii. becomes public knowledge other than by breach of this clause or any other confidentiality obligation;

iii. is independently developed by the Recipient without use of the Discloser’s Confidential Information; or

iv. is required to be disclosed by law or a competent regulatory authority, provided that the Recipient (where lawful to do so) gives prompt notice to the Discloser and cooperates in any efforts to restrict disclosure.

12.3 Permitted Disclosure; Each party may disclose the other’s Confidential Information to its employees, officers, professional advisers, auditors, contractors, and sub-processors (including hosting providers) solely to the extent necessary to perform its obligations under this Agreement and provided that those recipients are under binding confidentiality obligations that are no less stringent than those set out in this clause.

The disclosing party shall remain liable for any breach of confidentiality by such recipients.

12.4 Enforcement and Remedies; The terms of each Statement of Work, as well as any pricing, service specifications, or implementation plans not otherwise publicly available, shall be deemed Confidential Information of both Despatch Cloud Ltd and the Client. Each party agrees that a breach or threatened breach of this clause by the other would cause irreparable harm. In such cases, either party shall be entitled to seek interim, injunctive, or equitable relief (without the requirement to post security or prove actual damages) in addition to any other remedies available at law or in equity.

13. Warranty

13.1 Despatch Cloud Ltd warrants that:

13.1.1 it has the right to provide the Hosted Service and any accompanying materials as contemplated under this Agreement and that each of the foregoing, and their provision in accordance with the terms of this Agreement, does not and will not infringe the Intellectual Property Rights or other rights of any third party;

13.1.2 the Hosted Service will operate and function as defined by the Statement of Work (s) or described on the website, or on Despatch Cloud Documentation, or where additional service agreements have been agreed upon by a specification provided in writing;

13.1.3 the Hosted Service will be provided with all due care, skill and diligence and by means of reasonably and appropriately qualified and skilled personnel.

13.2 Despatch Cloud Ltd shall implement industry best practices to prevent the Service from including or permitting vulnerabilities that may lead to any Security Incident or any malicious code. The Client’s reasonable care and attention to the matter of cyber security are expected under this agreement, including the expectation that the Client will have reputable software to mitigate the risk of Security incidents.

13.3 Except as expressly set out in this Agreement and subject only to clause 15.1, no implied conditions, warranties or other terms, including any implied term relating to satisfactory quality or fitness for any purpose, will apply to the Service or to anything else supplied or provided by Despatch Cloud Ltd under this Agreement.

14. Termination

14.1 Either party may terminate this Agreement without cause, with 60 days prior written notice to the other party, to take effect only at the end of each term.

14.2 The Client may terminate this Agreement immediately in writing to Despatch Cloud Ltd if the Hosted Service and/or any material functionality of the Hosted Service is unavailable or inaccessible to you and your Users for either

(a) more than three (3) consecutive days; or

(b) more than five (5) days in any thirty (30) day period as a result of the fault or failure of Despatch Cloud Ltd.

and in the event of such termination, Despatch Cloud Ltd shall refund the Client in respect of any Charges relating to unused Hosted Services on a pro-rata basis.

14.3 Without prejudice to any other rights to which it may be entitled:

14.3.1 either party may terminate this Agreement with immediate effect if the other party commits any material breach of any of the terms herein and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified under this sub-clause

14.3.1 of the breach, such notice to refer to the notifying partys intent to terminate this Agreement unless the breach is remedied; or

14.3.2 either party may terminate this Agreement with immediate effect if the other suffers an Insolvency Event; or

14.3.3 in the case of a force majeure event as specified under the Force Majeure section below, either party may terminate this Agreement with immediate effect pursuant to that Clause, if the force majeure event continues for 30 days or more.

14.4 As an alternative to sub-clause

14.3.1 above, Despatch Cloud Ltd may suspend or terminate your access to the Service with immediate effect if you are in material breach of any obligation under this Agreement, provided that:

14.4.1 Despatch Cloud Ltd shall first provide written notice of the material breach, specifying the nature of the breach in reasonable detail, and allow a period of ten (10) business days for you to remedy the breach (if capable of remedy); and

14.4.2 If the breach is not remedied within the notice period, or if the breach is not capable of remedy, Despatch Cloud Ltd may terminate access immediately by giving further written notice.

14.4.3 Notwithstanding the above, Despatch Cloud Ltd may suspend access without notice if the material breach poses a serious risk to the security, stability, or lawful operation of the Service, but shall notify you promptly and work with you in good faith to resolve the issue.

14.5 You must not engage in any verbal, physical, written, or other abuse (including threats of abuse or retribution) directed towards any Despatch Cloud Ltd employee, contractor, or client.

14.5.1 In the event of such conduct, Despatch Cloud Ltd will issue a written notice requiring you to cease the abusive behaviour immediately and, where applicable, provide assurances that such conduct will not be repeated.

14.5.2 If the abusive behaviour is severe (including threats of violence, harassment, or behaviour causing serious distress), or if it continues after such notice, Despatch Cloud Ltd reserves the right to suspend or terminate your account and this Agreement with immediate effect to ensure the safety and well-being of its staff and other clients.

14.5.3 Despatch Cloud Ltd will act reasonably and proportionately when determining the severity of the conduct and any necessary action.

14.6 Despatch Cloud Ltd reserves the right to terminate or suspend any or all of its client accounts if reasonably necessary, subject to reasonable steps being taken to communicate the reason why, to take reasonable steps to mitigate the effects on the client and outline a time frame or steps needed to restore the service. Use of the clause would only be in extreme circumstances, and where no other reasonable course of action was available, discretion will be used. (Any action may be taken if needed for example, to ensure server integrity for other clients).

14.7 Upon termination of the agreement all amounts owing to Despatch Cloud Ltd, for Services provided in compliance with this Agreement prior to the termination, become due immediately. For the avoidance of doubt under this agreement, there are no new liabilities after the termination of the agreement, except where a subsequent agreement has been mutually agreed between the parties. This clause is subject to the Alternative Dispute Resolution mechanism.

14.8 All written notifications of termination are required to be sent by email to the account management team or by registered mail to the address on our contacts page.

15. Liability

15.1 Despatch Cloud Ltd.’s liability:

(a) for death or personal injury caused by its negligence;

(b) for fraud or fraudulent misrepresentation or any other fraudulent act or omission;

(c) for breach of any obligations implied by section 2 of the Supply of Goods and Service Act 1982;

(d) or for any other liability which may not lawfully be excluded or limited; and under the intellectual property indemnity provided in clause 19.2 ,

is not excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case

15.2 Neither party shall be liable for any indirect, incidental, special, consequential or exemplary damages including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Despatch Cloud Ltd has been advised of the possibility of such damages), whether such liability arises due to an indemnity, tort, negligence, breach of contract, misrepresentation or for any other reason.

15.3 Subject to Clauses 15.1 and 15.2, Despatch Cloud Ltd.’s total aggregate liability for any:

15.3.1 account subscription Service under or in relation to this Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the actual amount paid by or payable by you to Despatch Cloud Ltd during the previous four (4) months of the Service, save in respect of matters pertaining to those addressed in Clause 15.3.2 below for which the liability cap identified therein shall apply; and

15.3.2 Breach of The Data Processing Agreement and/or liability otherwise arising in connection with any breach of any relevant data protection legislation or any security obligations set out in a Statement of Work (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the sum of £100,000, except where such losses or damage resulted from Despatch Cloud’s gross negligence or wilful default.

15.4 Except for any fees owing to Despatch Cloud, your total aggregate liability under this Agreement is limited to the actual amount paid by or payable by you to Despatch Cloud Ltd during the previous four (4) months of the Hosted Service.;

15.5 Unless otherwise agreed in writing, if you have software developed for you either by Us or by a third party which is unique to your instance of the service or is not generally available to other clients (bespoke service), you are responsible for ensuring that any update or revision to the service is tested to ensure that both the service we provide and the bespoke service is not in conflict.

16. Renewal

16.1 At the end of the Initial term specified in the Statement of Works, if the agreement has not been terminated within the terms of Clause 14, this agreement will auto-renew for successive periods of 12 months.

17. Restricted Content

17.1 Uploading any restricted content as listed below may result in immediate account termination. You must not upload, post, host, process or transmit the following items to or from the Service including but not limited to:

(a) Unsolicited email, SMS’s, or “Spam” messages, where these are defined as any message irrespective of mode of transmission, which is not directly related to the processing of the clients order;

(b) Worms, viruses or code of a destructive nature; or

(c) Questionable or Illegal material. (Including copyrighted material); or

(d) Data which breaches any provisions of the Data Protection Act 2018 or similar laws of any jurisdiction

18. Data Protection

18.1 Use of our services requires acceptance of our Data Processing Agreement which is found here https://thedespatchcompany.com/data-processing-agreement

19. Intellectual Property Rights

19.1 The Intellectual Property Rights in the Hosted Service and any hardware or software used in connection with the Hosted Service is and will at all times remain Despatch Cloud Ltd’s property or that of Despatch Cloud Ltd’s licensors. 19.1.1 This includes, but is not limited to, the software code, and unique business process.

19.2 In the event that the Hosted Service infringes any third-party rights, Despatch Cloud Ltd will indemnify you against any loss or damage and shall defend and/or settle any third-party claim that the Hosted Service infringes. You must notify Despatch Cloud Ltd of any such claim in writing, give Despatch Cloud Ltd the sole control of any such action or proceedings and give Despatch Cloud Ltd such assistance as it may reasonably require to settle and/or defend such action or proceedings. Any award of costs and/or damages shall be the responsibility and obligation of Despatch Cloud Ltd in such event, Despatch Cloud Ltd shall, at its option:

19.2.1 procure for you the right to continue to use the Service;

19.2.2 make the Service available without infringing so far as Despatch Cloud Ltd is aware any third-party Intellectual Property Rights; or

19.2.3 terminate this Agreement forthwith on written notice to you and refund any amounts pre-paid for use of the Service.

19.3 The indemnity in Clause 19.2 above shall not apply to any infringement resulting from:

19.3.1 use of the Hosted Service which does not comply with the uses permitted under this Agreement;

19.3.2 any modification or change to the Hosted Service carried out by Despatch Cloud Ltd on your request; or

19.3.3 the combination of the Hosted Service with any third-party product and/or Service or modification undertaken by you without the prior written consent of Despatch Cloud Ltd.

19.4 Use of the Hosted Service means that unless you opt-out in writing, Despatch Cloud Ltd has the option at their sole discretion to disclose the existence of the relationship to third parties, for the purpose of the marketing of Despatch Cloud Services. This includes reasonable use of the company name, brand and/or logo.

20. Force Majeure

20.1 The obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by any cause beyond its reasonable control such as an Act of God, flood, fire, earthquake, terrorism, riots, civil disorders, strikes, lockouts or other forms of industrial action on the part of such parties staff. In the event that the cause continues for more than thirty (30) consecutive days, either party may terminate this Agreement immediately upon written notice to the other party in accordance with Clause 14.3.3 under the “Termination” section above.

20.2 The parties acknowledge that routine and foreseeable cyber threats, such as phishing, malware, and unauthorised access attempts, do not constitute Force Majeure Events. Such threats are to be managed through the implementation and maintenance of reasonable and industry-standard cybersecurity practices. Only extraordinary cyber events that are demonstrably beyond the reasonable control of the affected party, such as state-sponsored cyberattacks, widespread internet outages, or zero-day exploits of critical software, may be considered Force Majeure Events under this clause.

20.3 Each party shall take all reasonable steps to mitigate the impact of any such extraordinary event and shall promptly notify the other party in writing if such an event occurs, specifying the nature of the event and its anticipated impact on performance.

21. General

21.1 Nothing in this Agreement is intended to confer on a person any right to enforce any term of this Agreement which that person would not have had but for the Contract (Rights of Third Parties) Act 1999.

21.2 Neither party is entitled to transfer or assign this Agreement without the other party’s prior written consent, except in the case of bona fide corporate merger, restructuring, sale of substantially all of a party’s assets, or change of Control. Consent must not be unreasonably withheld

21.3 All disputes between the parties arising out of or relating to this Agreement or the breach, termination or validity thereof shall be referred by either party in writing, first to each party’s representative. The representatives shall meet and attempt to resolve the dispute within a period of thirty (30) working days from the date of referral of the dispute to them.

21.4 All notices in relation to this Agreement must be in English, in writing, addressed to the other party and sent to your address set out on your Order Form or to our email address (as applicable) or such other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address.

21.5 This Agreement and any Order Form/Statement or work(s) sets out all terms agreed between the parties and supersedes and extinguishes all previous agreements, representations, misrepresentations, arrangements and understandings between the parties, whether written or oral, relating to its subject matter.

21.6 Each party acknowledges that, in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, misrepresentation, representation or warranty (whether made negligently or innocently) and whether made by either party, orally or in writing, prior to the execution of this Agreement and not expressly set out in this Agreement or any Order Form.

22. Non-Solicitation

22.1 You must not, for the duration of the term and for a period of 12 months following termination of this agreement, either directly or indirectly, whether on you own account or on behalf of another person or entity:

22.1.2 seek to become, or become, the employer of any staff member or contractor of Despatch Cloud;

22.1.3 set up or form a company, partnership, joint venture or other business concern with a staff member or contractor of Despatch Cloud;

22.1.4 solicit, entice or procure any staff member or Contractor of Despatch Cloud to leave the employment of the First Party or terminate its commercial relationship with the Despatch Cloud;

22.1.5 For the avoidance of doubt, the You shall not be deemed in breach of clause 22 solely because a Despatch Cloud employee, staff member, or contractor responds to a bona fide, public recruitment advertisement that:
(a) is not targeted specifically at Despatch Cloud personnel;
(b) is published through general advertising channels (such as national job boards or newspapers); and
(c) was not brought to the individual’s attention directly or indirectly by the Client or its agents.
In such cases, You must promptly notify Despatch Cloud Ltd in writing if such an engagement proceeds, confirming the source of the application.”

22.2 Should an offer of employment or business be made to any of our employees in breach of these Terms, we reserve the right to charge a fee equivalent to 33% of the individual’s annual earnings with us or you (whichever is the higher), such fee to be paid on or before the first day of their employment with you.

23. Dispute resolution

23.1 A Hosted Service Defect event will trigger an automatic review by the Supplier with the Client, within 3 working days the Supplier must provide an explanation for the defect and a plan to ensure that the service returns to standard. Failure to comply or remedy effectively could be escalated to a dispute by the Client

23.2 If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so using a mutually agreed third party registered with https://civilmediation.org. Unless otherwise agreed between the parties the mediation should be entered into within 14 days of notice of the dispute.

23.3 If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration, the arbitrator will be nominated by the mediator.

23.4 Subject to Clause 3.3, if the Hosted Service experiences a Hosted Service Defect resulting in the complete unavailability of the Service in excess of the guaranteed 99.8% uptime measured over a rolling three-month period, the Client shall be entitled to request a service credit. Such credit shall be calculated on a pro rata basis for the period of unavailability that exceeds the agreed Service Level Agreement (SLA).

To claim the service credit, the Client must make a written request within 30 days of the end of the relevant three-month period, clearly identifying the dates and duration of the alleged unavailability. Upon acceptance of the claim by Despatch Cloud (acting reasonably and based on system logs and monitoring data), Despatch Cloud shall issue a PO number to the Client, following which the Client may raise an invoice for the agreed credit amount.

The service credit shall be the Client’s sole and exclusive remedy in respect of any failure to meet the uptime commitment under Clause 3.3. Service credits will not be payable in respect of any unavailability caused by:

(a) scheduled maintenance (where reasonable prior notice is given),

(b) factors beyond Despatch Cloud’s reasonable control (including force majeure events),

(c) misuse or unauthorised modification of the Service by the Client, or

(d) downtime arising from third-party integrations or services not under Despatch Cloud’s control.

24. Severability

If any provision of this Agreement is or becomes invalid, illegal, or unenforceable under the laws of any jurisdiction, such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision under this clause shall not affect the validity and enforceability of the remainder of this Agreement, which shall continue in full force and effect.

25. Development Services 

At Our Sole Discretion, We may accept commissions to develop software for You (Development Service(s)).  

Such Development Services will be agreed in a Statement of Works or a App Development Agreement. The following clauses govern the Development Services.  

25.1 Client Responsibilities
25.1.1 You agree to cooperate fully with Us and to provide, in a timely manner, all information, materials, decisions, feedback, instructions, and access to personnel, systems, environments, or facilities reasonably required by Us to perform the Development Services under this Agreement. 

25.1.2 You are solely responsible for: 

(a) Ensuring the accuracy and completeness of any information or materials provided to Us; 

(b) Securing all necessary licences, permissions, access and authorisations for any third-party software, data, or systems required for the Development Services; 

(c) Providing prompt and constructive feedback during testing, review, and acceptance processes; 

(d) Making internal decisions and approvals necessary to avoid delay in the provision of the Development Services; 

25.1.3 You acknowledge that any delay or failure by You to meet these responsibilities may impact Our ability to perform the Services, and We shall not be liable for any delay, failure, or additional cost arising as a result. In such cases, We reserve the right to amend timelines and charge for additional time or work reasonably incurred due to such delay or failure. 

25.1.4 The Development Services shall be carried out by Us in accordance with the requirements and specifications set out in the Scoping Document attached to the applicable Statement of Work or App Development Agreement. The Scoping Document forms an integral part of this Agreement and defines the agreed Scope of the work to be undertaken. 

25.1.5 It is Your sole responsibility to ensure that the Scoping Document accurately and clearly reflects Your requirements. We shall not be liable for any misunderstanding, omission, or deficiency in the Deliverables resulting from unclear, incomplete, or inaccurate information provided in the Scoping Document. Any changes to the agreed Scope shall be subject to the Change Request process set out in this Agreement 

25.2 Change Requests for agreed Development Service

25.2.1 If You wish to amend the Scope, Deliverables, functionality, timescales, or any other material aspect of the services under this Agreement, You must submit a written Change Request to Us. Upon receipt, We shall review the proposed change and, if acceptable, provide You with a written Scope including an estimate of the additional time, cost, and any impact on the agreed timelines. 

25.2.2 All Change Requests are chargeable and shall be billed at Our standard hourly rate, unless otherwise agreed in writing. We shall not be obliged to commence any work in relation to a Change Request until You have provided written confirmation accepting the associated estimate and authorising Us to proceed. 

25.2.3. We reserve the right to decline any Change Request that We reasonably consider to be technically unfeasible, commercially unreasonable, or which would materially alter the nature of the Agreement. 

25.2.4 For the purposes of this Agreement, written agreement shall include confirmation by way of email correspondence between authorised representatives of both parties, provided that such emails clearly identify the nature of the change and the associated impact on time and cost (if any). Any Change Request so agreed shall be deemed to form part of, and be legally binding under, this Agreement. 

25.3 Testing and Acceptance

25.3.1 Upon completion of the relevant Development Services or Deliverables, We shall notify You in writing that the Development Service is ready for testing. Unless otherwise agreed, You shall have a period of ten (10) working days from the date of such notification (“Acceptance Period”) to test and evaluate the Deliverables against the agreed Acceptance Criteria. 

25.3.2 If the Deliverables conform in all material respects to the Acceptance Criteria, You shall confirm acceptance in writing. If You fail to provide written notice of acceptance or of any material defects within the Acceptance Period, the Deliverables shall be deemed accepted. 

25.3.3 If You identify any material non-conformities with the Acceptance Criteria during the Acceptance Period, You shall notify Us in writing, providing reasonable detail of the issues. We shall, at no additional cost, use reasonable endeavours to correct such issues within a reasonable timeframe and resubmit the Deliverables for re-testing, after which the Acceptance Period shall recommence. 

25.3.4 Acceptance (whether express or deemed) shall constitute confirmation that the Deliverables meet the agreed specification and that You are satisfied with the relevant stage of the Development Services. 

25.4 Intellectual Property (IP) of Development Services

25.4.1 Unless expressly agreed otherwise in writing, all intellectual property rights, including but not limited to design rights, database rights, patents, and rights in software, code, documentation, designs, methodologies, processes, and any other materials or works created, developed, or provided by Us (whether solely or jointly) in the course of providing the Services ("Developed Materials") shall be and remain the exclusive property of Despatch Cloud Ltd. 

25.4.2 You shall have a non-exclusive, non-transferable, revocable licence to use the Developed Materials strictly for your internal business purposes and only to the extent necessary to receive the benefit of the Services, subject to full payment of all fees listing in the Statement of Works. 

25.4.3 Nothing in this Agreement shall operate to transfer any ownership of Our pre-existing intellectual property or any intellectual property developed independently of this Agreement. 

25.4.3 If any third-party components, open-source software, or licensed materials are incorporated into the Developed Materials, their use shall be subject to the applicable third-party licensing terms, which You agree to comply with. 

25.5 Delays and Dependencies

25.5.1 You acknowledge that the timely provision of information, feedback, access, and other cooperation from You, as well as the availability and reliability of third-party systems, services, software, APIs, platforms, and other dependencies outside Our control (“Third-Party Dependencies”), is essential to Our ability to deliver the Services as agreed. 

25.5.2 We shall not be liable for any delay in the performance of the Services or delivery of any Deliverables to the extent that such delay is caused by: 

(a) Your failure to comply with any of Your obligations under this Agreement; 

(b)  Delays or failures by You in providing required access, materials, approvals, or instructions; 

(c) Interruptions, malfunctions, unavailability, or changes to Third-Party Dependencies, including but not limited to third-party APIs, hosting platforms, and software integrations. 

25.5.3 In the event of any such delay, We shall be entitled to a reasonable extension of time to perform Our obligations and to charge for any additional costs reasonably incurred. We shall use reasonable efforts to mitigate the impact of such delays, but shall not be responsible for any resulting loss, damage, or inability to meet agreed timescales where the cause lies outside Our reasonable control. 

25.6 Warranties and Disclaimers 

25.6.1 We warrant that the Development Services will be performed with reasonable skill and care and in accordance with the description and functional requirements set out in the Scoping Document attached to the applicable Statement of Work or App Development Agreement. 

25.6.2 Except as expressly stated in this Agreement, all warranties, conditions, and representations, whether express or implied by statute, common law, or otherwise, including but not limited to fitness for a particular purpose, merchantability, or non-infringement, are excluded to the fullest extent permitted by law. 

25.6.3 You acknowledge and agree that the Services do not include, and We provide no warranty or obligation in respect of, any matters outside the agreed Scope, including but not limited to: 

1. Any work not expressly described in the Scoping Document; 

2. Change Requests unless agreed in writing and subject to additional fees; 

3. Support for third-party software, systems, or integrations; 

4. Hosting services, infrastructure management, or data storage; 

5. Ongoing maintenance, monitoring, or updates unless expressly agreed in writing. 

25.6.4 We do not warrant that the Deliverables will be entirely error-free or uninterrupted, or that they will meet all of Your specific operational requirements, except as set out in the Scoping Document. You are responsible for testing the Deliverables during the acceptance process and for ensuring compatibility with Your systems and intended use. 

25.6.5 We shall use reasonable efforts to design updates to Our core system in a manner that is backwards compatible with previously delivered Development Service. However, You acknowledge and accept that, due to technical constraints, evolving system architecture, security considerations, or performance improvements, it may not always be possible or practical to maintain full backwards compatibility. 

25.6.6 Accordingly, We do not warrant that any prior Development Service delivered under this Agreement will continue to function without modification following future updates to Our core system. Where such updates result in issues or incompatibilities with previously delivered Development Service, We shall not be obligated to modify or update such work unless otherwise agreed in writing. Any such modifications may be treated as a Change Request and shall be subject to additional charges.

26. Fair Usage
26.1 Where any plan or product is offered with “unlimited” or uncapped usage, this is subject to a fair usage policy intended to prevent abuse or unreasonable consumption of resources that may adversely affect service levels for other clients.

26.2 Fair usage for each core product — Shipping, Channels, and Returns or other service — is capped at 5,000,000 credits per calendar month, or a maximum of 60,000,000 credits per product per calendar year. Credits are calculated based on system actions defined in these terms.

26.3 Clients may not resell, transfer, assign, lease, or otherwise provide access to any part of the Service to third parties. Use of the Service must be solely for the benefit of the subscribing company and may not be shared with affiliated companies, partners, or unrelated parties without prior written consent from Despatch Cloud Ltd.

26.4 Where fair usage is exceeded in respect of any product, the parties agree to enter into good faith negotiations to amend the contract to reflect actual usage. If a revised agreement is not reached within 30 calendar days of fair usage being exceeded, Despatch Cloud Ltd reserves the right to charge for the excess usage at a rate not exceeding the lowest published overage rate for that product as published on our website or otherwise made available to clients.

26.5 Despatch Cloud Ltd reserves the right to monitor usage levels to ensure compliance with this clause and may contact the Client if usage appears likely to exceed fair usage thresholds.

27. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of England and each party hereby irrevocably submits to the exclusive jurisdiction of the English Courts. Notwithstanding the foregoing nothing herein shall preclude either party from seeking injunctions from any court of competent jurisdiction in order to protect its intellectual property rights or confidential information.