WHEREAS:
Hurricane has agreed with the International Post Corporation (“IPC”) that it will make its modular duties & taxes and compliance engine and other services available to IPC members on consistent terms via operation through the IPC’s Dynamic Merchant Platform (“DMP’), with the intent that the same becomes part of a suite of services provided to e-Commerce customers of such IPC members.
1. DEFINITIONS AND INTERPRETATION
API: the application programming interface through which access to the Hurricane duties & taxes and compliance engine is made available to Postal Operator and End Customers as contemplated in this Agreement and “Hurricane API “, “IPC API” and “End Customer API” shall be construed accordingly.
API Call: a separate automated request for information to the Hurricane API made by or on behalf of Postal Operator (whether separately or as part of a bulk request) as recorded by the Hurricane API itself. An API Call is based on a consignment basis for the Hurricane Aura product and for the Hurricane Zephyr product as defined in Hurricane’s product descriptors.
API Consignment: commodities that form part of a single order, placed by an individual, delivered to a final destination address.
API Bulk file: a combination of multiple consignments or commodities
Confidential Information: information that is proprietary or confidential and is clearly labelled as such identified as Confidential Information or is commercially sensitive by its nature including without limitation this Agreement, the API, each individual component of the API, the API Data and the Documentation.
Documentation: means the description produced or authorised by Hurricane and relating to any of the Hurricane Products as such documentation may be updated by Hurricane from time to time and pursuant to clause 4.
DMP: the Dynamic Merchant Platform operated by the IPC that provides IPC Customers (Postal Operators) technological functionality designed to enhance the cross-border on-line shopping experience to be offered by e-Commerce companies that are clients of IPC Customers.
Effective Date: means the date inserted into the issued Order Confirmation Form.
End Customers: customers of the Postal Operator who are provided with access to the Hurricane Products
Hurricane Products: services listed and described in Hurricane’s product descriptors which are made available to the Postal Operator through the DMP and which follow the reporting protocols described therein and the associated documentation relating thereto together with any other products and related documentation developed by Hurricane and which Hurricane may permit the Postal Operator to access via the DMP and market and sell pursuant to this Agreement
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Confirmation Form: means the issued and Postal Operator signed form which confirms and binds the basis of this Agreement.
IPC: means the International Post Corporation SCRL-BVBA of Avenue du Bourgetlaan 44, 1130 Brussels, Belgium.
Terms and Conditions: the terms and conditions subject to which Hurricane will provide Hurricane Products to End Customers as referred to in clause 3.1(b) and as set out in this Agreement.
Territory: All jurisdictions in which the Postal Operator is authorised to carry on business and/or sell services.
Trade Marks: all trademark registrations and applications, together with any further trademarks which Hurricane may permit or procure permission for the Postal Operator by express notice in writing to use in respect of the Hurricane Products.
2. SALE OF HURRICANE SERVICES
2.1 Hurricane hereby agrees to sell to the Postal Operator the Hurricane Products in the Territory on the terms of this Services Agreement. Access to the Hurricane Products will be provided via the IPC API, which, in turn connects to the End Customer’s API. Except as provided for herein or otherwise agreed in writing, Hurricane shall have no liability or responsibility for the effective functioning of the IPC or Postal Operator’s API and, unless agreed otherwise in writing, any Hurricane support or advice related thereto will be remunerated according to the Consultancy Charges set out in the Order Confirmation Form.
2.2 For Classification Services (specifically for Hurricane Direct Products – file exchange classification) Postal Operator will provide Hurricane with full details of the End Customer’s catalogue of goods and commodities intended for export in a CSV file, also stating the End Customers registered name and address details within the CSV file.
2.3 During the term of this Services Agreement, the Postal Operator undertakes:
(a) not to purchase the Hurricane Products from any person other than Hurricane; or
(b) to provide Hurricane on request all access and information reasonably necessary for it to evaluate the functionality and effectiveness of the Postal Operator’s API and the End Customer API.
2.4 The Postal Operator shall be entitled to resell the Hurricane Products to End Customers but shall not represent itself as an agent of Hurricane for any purpose, nor pledge Hurricane’s credit or give any condition or warranty or make any representation on Hurricane’s behalf or commit Hurricane to any contracts. Further, the Postal Operator shall not without Hurricane’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Hurricane Products which are inconsistent with those contained in the promotional material supplied by Hurricane (including, without limitation, the Terms and Conditions) or otherwise incur any liability on behalf of Hurricane howsoever arising. The Postal Operator shall not sell any of the Hurricane Products through a sales agent or to a sub-distributor or reseller without the prior express written consent of Hurricane.
2.5 The right of re-sale granted to the Postal Operator under this clause 2 only grants to the Postal Operator a licence to distribute the Hurricane Products, and does not transfer any right, title or interest to any such Hurricane Products to the Postal Operator or the End Customers.
3. POSTAL OPERATOR’S UNDERTAKINGS
3.1 The Postal Operator undertakes and agrees with Hurricane:
(a) To use reasonable endeavours to ensure that End Customers (i.e., Retailers / Merchants) are aware of and accept the Terms and Conditions before using the Hurricane Products;
(b) Not to cache, index, copy, re-utilise, extract or store any Hurricane API Data, save for transaction, or consignment, for which the data was retrieved, or for future archival, audit or reporting purposes. This excludes but is not limited to:
- Storage in order to be used for future, unconnected transactions or,
- for the creation of services that utilise the data in a paid-for or free service, whether this is offered internally within the company, or externally to 3rd parties.
4. HURRICANE UNDERTAKINGS AND SUPPLY OF HURRICANE PRODUCTS
4.1 Hurricane shall within a reasonable period following the Effective Date supply the latest version of the Documentation and thereafter provide such updates or new releases to the Hurricane Products as they become available. For the avoidance of doubt Hurricane is entitled upon reasonable notice to make changes to the Documentation which do not adversely affect the Hurricane Products or materially increase Postal Operator’s costs.
4.2 Hurricane undertakes:
(a) to provide such information and support as may be requested by the Postal Operator to enable Hurricane to properly and efficiently discharge its duties under this Agreement and for the Postal Operator to receive the services and benefits contemplated herein. Such support shall be at no cost to the Postal Operator unless it is required as a result of inadequate resources being committed by Postal Operator to the on-boarding process in which case Hurricane shall be entitled to charge additional Compliance and/or Technical consultancy charges as described in the Order Confirmation Form;
(b) to approve or reject any promotional information or material submitted by the Postal Operator within 3 days of receipt; and
(c) to provide support and related services to Postal Operator in accordance with the Service Level Agreement standards set out in Schedule 3.
5. PRICES AND PAYMENT
5.1 The prices payable by the Postal Operator for the Hurricane Products shall be the fees set out and confirmed in the Order Confirmation Form.
5.2 Hurricane reserves the right to amend the fees as referred to in clause 5.1 above annually in line with prevailing RPI (Retail Prices Index) rate applicable at the point of fee renewal, together with reasonable amendment to fees in line with material Foreign Exchange Rate fluctuations.
5.3 Hurricane will invoice the Postal Operstor in line with the issued Order Confirmation Form
5.4 The Postal Operator shall pay any undisputed amount invoiced to it by Hurricane in accordance with the issued Order Confirmation Form. If the Postal Operator fails to make a payment due to the Hurricane by the due date, then, without limiting Hurricane’s remedies under clause 12, the Postal Operator shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.5 All amounts due and undisputed under this Services Agreement shall be paid by the Postal Operator to Hurricane in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.6 The Postal Operator shall be responsible for the payment if applicable of VAT on all charges for Hurricane Products and other services rendered by Hurricane under this Agreement, upon provision of a VAT invoice.
5.7 In Zephyr and Kona a consignment is commodities that form part of a single order, placed by an individual, delivered to a final destination address. For clarity, this does not include multiple of such orders combined for the purposes of bulk shipment, clearance, or any other purposes. Hurricane monitors the usage of Zephyr and Kona API calls closely, including how many contain more than one commodity. On the basis that this facility is abused and used to combine multiple smaller consignments together then Hurricane will have the ability apply a smaller limit to the number of items that can be accepted in a call, including the ability to remove the multi commodity facility and limit the number to 1.
5.8 Services rendered by Hurricane under this Agreement, upon provision of a VAT invoice.
6. ADVERTISING AND PROMOTION
6.1 The Postal Operator shall:
(a) Be responsible for the costs of any advertising and promotion of the Hurricane Products it chooses to undertake provided that the use by the Postal Operator of any advertising materials and promotional literature containing the Trade Marks or other references to the Hurricane Products shall be subject to the prior written consent of Hurricane; and
(b) Observe all directions and instructions given to it by Hurricane in relation to the promotion and advertisement of the Hurricane Products to the extent that such promotions or advertisements refer to the Hurricane Products or otherwise use the Trade Marks, and shall not make any written statement as to the quality or manufacture of the Hurricane Products without the prior written approval of Hurricane.
7. COMPLIANCE WITH LAWS AND REGULATIONS
7.1 Each party shall be responsible for the compliance of its own business operations with applicable law and regulations and shall hold the other party harmless from any losses costs or damages it may incur as a result of any breach of this clause 7.1.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The API and all other copyright, trademarks and other Intellectual Property rights subsisting in or used in connection with the API are and remain the sole and exclusive property of Hurricane, and the Postal Operator acknowledges that no title to any rights is transferred to the Postal Operator. All rights not expressly granted in this Agreement are reserved by Hurricane.
8.2 The Postal Operator shall not:
(a) copy the Hurricane Products or any part of any of them except to the extent and for the purposes expressly permitted by this Services Agreement;
(b) modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Hurricane Products.
8.3 The Postal Operator hereby grants to Hurricane a non-exclusive, non-transferable, royalty-free licence to use Postal Operator’s name, trademarks and logo solely for the purposes of identifying Postal Operator as a user of the API within internal and external promotional materials.
9. CONFIDENTIALITY
9.1 During the term of this Agreement and for three years thereafter, each party undertakes that it will keep confidential and not use or disclose to any person, except as may be required by law or any legal or regulatory authority, any Confidential Information unless that information is public knowledge or subsequently becomes public knowledge other than by breach of this Agreement
10. PROTECTION AND PROCESSING OF PERSONAL DATA
10.1 Each party shall comply with its respective obligations under the provisions of applicable Data Protection Legislation (including without limitation the General Data Protection Regulation).
10.2 Hurricane’s status under data protection legislation is that of a data processor and all personal data transmitted by Postal Operator in respect of the Hurricane Products will be processed by Hurricane in such capacity and in line with the Hurricane Privacy Policy (Privacy Policy | Hurricane Commerce) and Hurricane’s Data Processing / Standard Clauses Clause Agreement located within myhurricane. Postal Operator warrants, represents and undertakes that it has the legal right and authority under all applicable jurisdictions to transfer such personal data to Hurricane and that any instructions to Hurricane to process the same will be lawful in all respects.
11. LIMITATION OF LIABILITY
11.1 Postal Operator acknowledges that the accuracy of information produced by the API is dependent on:
(b) the completeness and quality of information provided to Hurricane including product descriptions, Stock Keeping Units (SKU’s) and similar information, and
(c) local interpretation relating to the classification of goods in the destination country
11.2 Hurricane represents that the API Data will deliver information that is consistent with input information and classification assumptions but in accordance with Clause 11.1 the Parties agree that Hurricane shall have no liability if data produced by the API is not accepted as accurate or compliant by customs authorities in any country to which goods are exported.
11.3 The Postal Operator or its End Customer will be the importer of records and responsible for the preparation of all customs declarations. In no circumstance will Hurricane act as the importer of record nor be liable in any way for the preparation of or information provided in any customs declaration.
11.4 In any event and without prejudice to other provisions of this Clause 11 Hurricane shall not be liable for:
(a) Any loss of revenues, profits, contracts, business or anticipated savings;
(b) Any loss of goodwill or reputation; or
(c) Any special, indirect or consequential losses,
11.5 Nothing in this Agreement excludes the liability of either party for:
(a) death or personal injury caused by negligence; or
(b) fraud or fraudulent misrepresentation.
11.6 Subject to clause 11.5 each party’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Services Agreement shall in all circumstances be limited to the amount actually paid by the Postal Operator to Hurricane under this Agreement to a maximum of 130% of the total fees invoiced to the Postal Operator during the previous twelve months preceding the date on which the claim arose.
12. TERM AND TERMINATION
12.1 This Services Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 12.2 or clause 12.3 shall continue for the period stated in the issued Order Confirmation Form (Initial Term) and shall automatically extend for 12-monthly periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this Services Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Services Agreement with immediate effect by giving written notice to the other party if:
(a) The other party fails to pay any amount due under this Services Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) The other party commits a material breach of any term of this Services Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so. For the purpose of this clause, material breach shall include, without limitation, failure to provide API access for any 2 consecutive days during the Term: or
(c) The other party enters into bankruptcy or suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admit inability to pay its debts or is deemed unable to pay its debts; or
(d) The other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 Without prejudice to any other rights or remedies to which Hurricane may be entitled, Hurricane may terminate the Services Agreement without liability to the Postal Operator if the Postal Operator purports to assign any of its rights or obligations under this Services Agreement.
13. EFFECTS OF TERMINATION
13.1 Upon termination or expiry of this Services Agreement for any reason and without prejudice to other rights contained in this agreement:
(a) Hurricane shall be entitled to prohibit access of the Postal Operator to the Hurricane API either directly or through the IPC API
(b) The Postal Operator shall (at its sole cost) return (or at its option, destroy) all media on which the Hurricane Products are held;
(c) The accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and
(d) Subject to the foregoing provisions of this clause 13.1, all rights and licences of the Postal Operator under this Services Agreement shall terminate.
13.2 The liability provisions in this Services Agreement shall survive termination in respect of acts and omissions occurring before termination but termination (where carried out in accordance with clause 12 above only) shall not of itself give rise to any liability on the part of Hurricane to pay any compensation to the Postal Operator for the loss of profits or goodwill to reimburse the Postal Operator for any costs relating to or resulting from such termination or for any other loss or damage.
14. FORCE MAJEURE
14.1 Neither party shall in any circumstances be in breach of this Services Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Services Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Postal Operator or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Services Agreement by giving 30 days’ written notice to the other party.
15. GENERAL
15.1 This Services Agreement is the entire agreement between the parties and it supersedes any prior agreement whether written or oral relating to the subject matter of this Services Agreement.
15.2 Each party represents, warrants and undertakes to the other that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licences referred to herein and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it.
15.3 This Services Agreement, and any disputes arising from or relating to the interpretation thereof (including non-contractual disputes) shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute or matter arising out of or connected with this Services Agreement.
15.4 Any amendments to this Services Agreement must be made in writing and signed by both parties. For the avoidance of doubt, no modification or variation of this Services Agreement shall be valid if made by email.
15.5 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Services Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
15.6 Nothing in this Services Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in clause 2.
15.7 Neither party may, without the prior written consent of the other party, assign at law or in equity (including by way of charge or declaration of trust), sub-license or deal in any other manner with this Services Agreement or any rights under this Services Agreement, or sub-contract any or all of its obligations under this Services Agreement, or purport to do the same. Any purported assignment in breach of this section shall confer no rights on the purported assignee
15.8 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
