Hurricane is the owner and operator of the Hurricane Duties & Taxes and Compliance Engine whose functionality and other associated services the Customer wishes to incorporate into its own processes and to on-sell to its customers for use in their eCommerce businesses
1. DEFINITIONS AND INTERPRETATION
API: the application programming interface through which access to the Hurricane duties & taxes and compliance engine is made available to Customer and End Customers as contemplated in this Agreement and “Hurricane API”, “Customer’s 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 Customer (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.
Effective Date: means the date inserted into the issued Order Confirmation Form.
End Customers: customers of the Customer 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 Customer directly through the Hurricane API 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 Customer to access directly via the Hurricane API 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 Customer signed form which confirms and binds the basis of this Agreement.
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 Customer is authorised to carry on business and/or sell services).
Trade Marks: all trade mark registrations and applications, together with any further trademarks which Hurricane may permit or procure permission for the Customer 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 Customer the Hurricane Products in the Territory on the terms of this Services Agreement. Access to Hurricane Products will be provided directly via the Hurricane API to the Customer. Except as provided for herein or otherwise agreed in writing, Hurricane shall have no liability or responsibility for the effective functioning of the Customer’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 During the term of this Services Agreement, the Customer undertakes:
(a) not to purchase 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 Customer API and the End Customer API.
2.3 The Customer 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 Customer 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 Customer 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.
2.4 The right of re-sale granted to the Customer under this clause 2 only grants to the Customer a licence to distribute the Hurricane Products, and does not transfer any right, title or interest to any such Hurricane Products to the Customer or the End Customers.
3. CUSTOMER’S UNDERTAKINGS
3.1 The Customer 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 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:
- (i) Storage in order to be used for future, unconnected transactions or,
- (ii) 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.
4.1 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 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 Hurricane Products or materially increase Customer’s costs.
4.2 Hurricane undertakes:
(a) to provide such information and support as may be requested by the Customer to enable Hurricane to discharge its duties properly and efficiently under this Agreement and for the Customer to receive the services and benefits contemplated herein. Such support shall be at no cost to the Customer unless it is required as a result of inadequate resources being committed by Customer 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 Customer within 3 days of receipt: and
(c) to provide support and related services to Customer in accordance with the Service Level Agreement standards set out in Schedule 1.
5. PRICES AND PAYMENT
5.1 The prices payable by the Customer 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 Customer in line with the issued Order Confirmation Form
5.4 The Customer shall pay any undisputed amount invoiced to it by Hurricane in accordance with the issued Order Confirmation Form. If the Customer fails to make a payment due to the Hurricane by the due date, then, without limiting Hurricane’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 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 Customer 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 Customer 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.
6.1 The Customer 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 Customer 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.
7.1 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 Customer acknowledges that no title to any rights is transferred to the Customer. All rights not expressly granted in this Agreement are reserved by Hurricane.
8.2 The Customer 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 Customer hereby grants to Hurricane a non-exclusive, non-transferable, royalty-free licence to use Customer’s name, trademarks and logo solely for the purposes of identifying Customer as a user of the API within internal and external promotional materials.
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.
10.1 Each party shall comply with its respective obligations under the provisions of applicable Data Protection Legislation (including without limitation the General Data Protection Regulation).
11.1 Customer acknowledges that the accuracy of information produced by the API is dependent on:
(a) the completeness and quality of information provided to Hurricane including product descriptions, Stock Keeping Units (SKU’s) and similar information, and
(b) 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 Customer or its customer will be the importer of record 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 Customer to Hurricane under this Agreement to a maximum of 130% of the total fees invoiced to the Customer during the previous twelve months preceding the date on which the claim arose.
12. TERM AND TERMINATION
12. 1 This 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 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 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 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, a material breach shall include, without limitation, failure to provide API access for any 2 consecutive days during the Term
(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 admits inability to pay its debts or is deemed unable to pay its debts
(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 maybe entitled, Hurricane may terminate this Agreement without liability to the Customer if the Customer purports to assign any of its rights or obligations under this Services Agreement.
13.1 Upon termination or expiry of this Agreement for any reason and without prejudice to other rights contained in this agreement:
(a) Hurricane shall be entitled to prohibit access of the Customer to the Hurricane API
(b) The Customer 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 1, all rights and licences of the Customer under this Services Agreement shall terminate.
13.2 The liability provisions in this 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 Customer for the loss of profits or goodwill to reimburse the Customer 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 Agreement nor liable for delay in performing, or failure to perform, any of its obligations hereunder 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 Customer 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.
15.1 This Agreement is the entire agreement between the parties, and it supersedes any prior agreement whether written or oral relating to the subject matter hereof.
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 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.
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.
SCHEDULE 1 – SLA
The purpose of this SLA is to ensure that the proper elements and commitments are in place to provide consistent service support and delivery to the Customer by Hurricane.
The goal of this SLA is to obtain mutual agreement for service provision between Hurricane and the Customer.
The objectives of this SLA are to:
- Provide clear reference to service ownership, accountability, roles and/or responsibilities;
- Present a clear, concise and measurable description of service provision to the Customer; and
- Match perceptions of expected service provision with actual service support and delivery.
This SLA is valid from the Effective Date outlined herein and is valid for thirty-six (36) months or until the Services Agreement is terminated or expires whichever is the earlier.
Both Hurricane and the Customer are responsible for facilitating regular reviews of this document. Contents of this document may be amended as required, provided that any changes agreed to the contents of this document shall be agreed and documented.
The following detailed service parameters are the responsibility of Hurricane in the on-going support of this SLA.
The following Services are covered by this SLA;
- Service availability
- Call Centre support
- Remote assistance using Remote Desktop and a Virtual Private Network where available
- Planned or Emergency Onsite assistance (extra costs apply)
- Monthly system health check
- Customer responsibilities and/or requirements in support of this SLA include reasonable availability of Customer representative(s) when resolving a service-related incident or request.
- Hurricane responsibilities and/or requirements in support of this SLA include:
- Meeting response times associated with service-related incidents.
- Appropriate notification to Customer for all scheduled maintenance.
- Changes to services will be communicated and documented to all stakeholders.
The service will be available for 99% of each month. The following incidents count as downtime to be used in the calculation of system availability:
- Unplanned outages; and
- Emergency maintenance.
The following incidents will not be included in the calculation of downtime:
- Correctly scheduled maintenance
- Customer errors, including but not limited to: code errors, networking errors, DNS errors, configuration error, hosting errors, actions of third party software on the Customer systems.
Hurricane operates on a cloud based multi tenanted architecture, the solution is running in parallel globally. In the highly unlikely event that one of the nodes closest to a customer fail, then no downtime would be noticeable, as any requests would be automatically routed to the next closest node and the service would continue seamlessly.
The following sections provide relevant details on service availability, monitoring of in-scope services and related components.
Coverage parameters specific to the service(s) covered in this SLA are as follows:
- Call Centre support: multi-language 24 hours / 7 days per week (languages to be agreed)
- System language capability: 24 hours / 7 days per week
- Onsite assistance guaranteed within 72 hours during the business week
In support of services outlined in this Agreement, Hurricane will use reasonable endeavours to respond to service-related incidents and/or requests submitted by the Customer within the following time frames:
- Within 30 minutes for issues classified as High priority.
- Within 4 hours for issues classified as Medium priority.
- Within 3 working days for issues classified as Low priority.
Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request and availability of remote service capabilities.
TERMS AND CONDITIONS
Hurricane Terms and conditions
These terms and conditions (“Terms”) set forth the conditions of the use by you (“User”) of the Hurricane Duties & Taxes and Compliance Engine programming interface (“API”) provided by Hurricane Modular Commerce Limited (“Hurricane”) through one or more User intermediaries (“User Service Partner(s)”) and with whom User has entered into a contract for services (“User Contract”).
All rights and contractual remedies of User shall be contained in the User Contract to which Hurricane is not a party and under which it owes no obligations to the User.
Subject to these Terms Hurricane hereby grants the User a non-exclusive, non-transferable licence (“Licence”) of the API to use the API through its own web-based application for the Term and throughout the Territory as those terms are described in the Services Agreement (“Access Agreement”) entered into between Hurricane and User Service Partner. The Licence permits the User’s own customers to use the API to view Duties & Taxes and Compliance information through the User’s application. The Licence will terminate automatically upon termination of the Access Agreement for whatever reason or forthwith upon written notice of termination being delivered by Hurricane to User.
Restrictions on the Licence
The User hereby agrees and undertakes (a) not to publish or share any API Key; (b) not to translate, modify, lease, rent, loan, redistribute, sub-lease, sub-license or create derivative works from the API (including, but not limited to the User creating software which has materially the same functionality as the API); (c) not to export, extract, re-utilise or copy any of the information or data sets, or any part thereof, retrieved from the API for any purposes whatsoever, except for the purpose of providing Duties & Taxes and Compliance information to its own customers to support individual ecommerce transactions; (d) to supervise and control use of the API in accordance with the terms of this Agreement; (e) not to display the API Key on a public bulletin board, file transfer protocol (‘ftp’) site, internet site, chat room, file sharing site, instant messaging service or by any other unauthorised means; (f) not to use the API for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, Trojan horse, cancel-bot or any other destructive or contaminating program; (g) not to remove copyright notices or other forms of proprietary notice from the API or any other materials provided by Hurricane; (h) immediately on termination or discontinuance of the Licence for whatever reason cease exploitation of the application that uses the API and remove any and all references to the API; and (i) not to pre-fetch, cache, index, copy, re-utilise, extract or store any API Data, except in relation to a specific transaction for which it has been extracted.
Warranties and Liability
The User acknowledges that all its contractual rights and remedies are owed by its User Service Partner as specified in the User Contract and not Hurricane. Without prejudice to the foregoing User further acknowledges that the API is provided “as is” without any warranty of any kind either express or implied including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, accuracy, reliability, title, interference with quiet enjoyment and non-infringement. Hurricane does not warrant that neither the API nor the API Data will be error-free. Hurricane does not process data for excisable goods. In particular, User accepts and acknowledges that the information provided through the API (including the API Data) is an estimation only and its accuracy (and all calculations related thereto) is dependent upon the information (including SKUs, country of origin, rules of origin, product descriptions and all other required information) provided to Hurricane by User or User Service Partner on its behalf (“Input Information”). User shall ensure that all Input Information is in the format specified by Hurricane.
User or its customer or the person ordering goods will be the importer of record and in no circumstance will Hurricane act as the importer of record nor be liable in any way for the information provided in any customs declaration.
Hurricane shall not be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with these Terms 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 in any case, whether or not such losses were within the User’s contemplation at the date of commencement of the Licence , suffered or incurred by the User arising out of its use of the API
Nothing in these Terms shall limit the liability of either party for death or personal injury arising from that party’s negligence, or for fraud.
The API and all other copyright, trademarks and other intellectual property rights subsisting in or used in connection with the API (including but not limited to all images, documentation, content, text, code, calls or other identifiable material relating to the API) are and remain the sole and exclusive property of Hurricane, and User acknowledges that no title to any rights is transferred to it or any third party. All rights not expressly granted in these Terms are reserved by Hurricane.
Hurricane hereby grants to the User a non-exclusive, non-transferable, royalty-free licence to use its name and trade marks for the purpose of complying with its obligations under the Terms.
The API, each individual component of the API, any API documentation and all data or information generated by the API are confidential to the parties and their advisers During the term of this licence and thereafter, User undertakes to Hurricane that it will keep confidential and not use or disclose to any person, except to its professional representatives or as may be required by law or any legal or regulatory authority, any such confidential information.
The formation, interpretation, and performance of these Terms and any disputes arising thereto shall be governed by the substantive and procedural laws of England without regard to its rules on conflicts or choice of law. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the courts of England and Wales and User hereby submits to the personal jurisdiction of such courts.
Acceptance of these terms
User acknowledges that its duly authorised representative has read and understood these Terms. By using the API, User agrees to be bound by these Terms.
If User has any questions about this Agreement, its authorised representative should contact us at email@example.com