Software as a Service Agreement
These terms, together with any schedules or appendices attached (collectively referred to as the “Terms”), take effect from 02 April 2025 and are entered into on the effective date specified in the relevant Order Form (“Effective Date”) between:
Downton Tech Ltd, company number 16249160, a company registered in England and Wales with its principal office at Ventura House 2 Arlington Square, Downshire Way, Bracknell Berkshire, England RG12 1WA (“AlphaMax” or “Supplier”), and
the Customer identified on the Order Form (“Customer” or “Client”),
collectively referred to as the “Parties”.
AlphaMax may also engage in contractual relationships with a Customer through agreements that do not incorporate an Order Form. Regardless of the structure, these Terms shall govern all services provided by AlphaMax to any Customer, unless expressly agreed otherwise in writing.
1. Definitions and Interpretation
“Agreement”
refers to this Software as a Service agreement, which includes the Terms, the Order Form (if applicable), and any amendments or variations made in accordance with this Agreement.
“Authorised Users”
means the Customer’s employees, officers, agents, and independent contractors who are authorised by the Customer to access and use the Services, Software, and Documentation for the Customer’s benefit.
“Business Day”
refers to any day other than a Saturday, Sunday, or public/bank holiday in England.
“Channel(s)”
means any sales channels used by the Customer and approved for integration with the Software in accordance with this Agreement, the Order Form (if applicable), or any other related documents.
“Charges”
refers to the fees payable by the Customer to AlphaMax under this Agreement, as specified in the Order Form and subject to any adjustments as outlined in sections 2 and/or 7.
“Confidential Information”
means all information (in any format or medium, whether written, oral, visual, or electronic) labelled or described as “confidential” and relating to the disclosing party (the “Disclosing Party”) or its employees, officers, clients, or suppliers, which is disclosed (directly or indirectly) to the other party (the “Recipient”) in connection with this Agreement, whether disclosed before or after the Commencement Date, excluding:
(a) information that becomes public knowledge other than through a breach of this Agreement;
(b) information lawfully received by the Recipient from a third party who is not under a duty of confidentiality in respect of that information; or
(c) information independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information.
“Customer Content”
means all data, works, and materials uploaded or provided by or on behalf of the Customer, or by any person, application, or automated system accessing the Customer’s account, for the purpose of using the Services or Software.
“Customisations”
has the meaning set out in Clause 3 (“Customisations”).
“Data Protection Legislation”
means the UK General Data Protection Regulation (UK GDPR), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and all other applicable UK laws and regulations relating to data protection and privacy, including any binding guidance or codes of practice issued by the Information Commissioner’s Office (ICO), as amended or replaced from time to time. Terms such as “Controller”, “Processor”, “Data Subject”, “Personal Data”, and “Processing” shall carry the definitions set out in the applicable Data Protection Legislation.
“Documentation”
means the user manuals, technical guides, and training materials made available by AlphaMax to the Customer, outlining the proper use of the Services and Software.
“Force Majeure Event”
refers to any event or series of related events beyond the reasonable control of the affected party, including (but not limited to) internet failures, cyber-attacks, malicious software infections, power outages, third-party industrial disputes, legal changes, natural disasters, explosions, fires, floods, riots, acts of terrorism, or war.
“Intellectual Property Rights”
refers to all intellectual property rights existing now or in the future anywhere in the world, whether registered or unregistered, including applications or rights to apply for such rights, renewals, extensions, and rights of priority. These rights include, but are not limited to, copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, rights in passing off or unfair competition, patents, utility models, semi-conductor topography rights, design rights, and all similar or equivalent forms of protection.
“Malware”
means any item or device (including software, code, files or programmes) that may: prevent, impair, or otherwise negatively affect the operation of any computer software, hardware, or network; impact any telecommunications service, equipment or network; or hinder the operation or accessibility of any programme or data. This includes, but is not limited to, worms, trojan horses, viruses, and similar harmful items.
“Onboarding Services”
refers to any implementation, integration, or training services designed to assist the Customer in optimising their use of the AlphaMax platform and software, as specified in the Order Form (if applicable). Such services may be discussed via email, telephone, or documented in brochures or materials prepared by AlphaMax explaining the onboarding process and available service levels.
“Order Form”
means the document relating to the Services, either:
(a) signed by both the Customer and AlphaMax; or
(b) completed online on behalf of the Customer.
“Service(s)”
means the services to be provided by AlphaMax to the Customer under this Agreement, as detailed in the Order Form, which may include:
(a) access to and use of the Software;
(b) Support Services;
(c) Onboarding Services, where applicable; and
(d) Customisation Services, where applicable.
“Service Start Date”
means the earlier of:
(a) the ‘Service Start Date’ specified in the Order Form; or
(b) the date the Customer’s subscription with AlphaMax becomes active.
“Software” or “Platform”
refers to AlphaMax’s online order and inventory management system.
“Subscription Term”
means the subscription period specified in the Order Form, calculated from the Service Start Date.
“Support Services”
refers to the support provided by AlphaMax to the Customer by telephone, chat, and email during standard Business Hours (with reasonable efforts made to monitor emergency emails and the support ticket system outside of Business Hours in the case of urgent issues), including:
(a) assisting the Customer with correct use of the Services and Software via pre-arranged online training sessions; and
(b) diagnosing and remedying faults not caused by the Customer or by external factors beyond AlphaMax’s control.
“Term”
means the duration of this Agreement.
2. Term
This Agreement shall take effect on the Effective Date or the Service Start Date, whichever is earlier, and shall remain in force for the duration of the Subscription Term. Thereafter, it shall automatically renew for successive Subscription Terms unless:
either party provides written notice of termination at least 30 days prior to the end of the then-current Subscription Term, in which case the Agreement shall expire at the end of that Subscription Term; or
the Agreement is otherwise terminated in accordance with its terms.
No less than 30 days prior to the expiry of the current Subscription Term, AlphaMax shall notify the Customer of any proposed changes to the Charges applicable for the next Subscription Term. Any such increase will be capped at a maximum of 5% upon renewal. Unless the Customer terminates this Agreement in accordance with its terms, the Customer shall be deemed to have accepted the revised Charges, and AlphaMax shall continue to provide the Services for the renewed Subscription Term on the updated terms.
3. The Services
Subscription Rights and Access
Subject to payment of the applicable fees set out in the Order Form (as may be amended in line with Clause 2) and compliance with this Agreement, AlphaMax grants the Customer a non-exclusive, time-limited right to access and use the Services in accordance with this Agreement. The Customer may permit its Authorised Users to access and use the Services solely for their intended purpose and in line with the Documentation, and within the limits (such as User Count, Order Volume, SKU limits, Feature Sets, Channels, or other restrictions) specified in the Order Form.
Upon payment and compliance, AlphaMax shall provide the Customer with the necessary passwords, security protocols, and network connections to facilitate access. AlphaMax will also provide:
(a) support for the Services; and
(b) access to enhancements and maintenance updates as they are released.
The Customer is solely responsible for ensuring it has the appropriate and compatible hardware, software, telecommunications, and internet services required to access and use the Services.
All rights not expressly granted to the Customer under this Agreement are reserved by AlphaMax.
For clarity, the Customer shall not, under any circumstances, have access to the Software’s source code or object code.
Customisations
The parties may, from time to time, agree that AlphaMax will provide customisations to the Services, as per a specification jointly agreed (“Customisation”). From the date the Customisation is made available, it shall form part of the Software and Services under this Agreement.
The Customer acknowledges that AlphaMax may make such Customisations available to other customers after delivery. All Intellectual Property Rights in any Customisation shall belong exclusively to AlphaMax. The Customer shall procure any necessary third-party cooperation to enable AlphaMax to deliver the agreed Customisation.
Additional terms regarding Customisations may be outlined in a separate schedule to this Agreement.
Onboarding
From time to time, AlphaMax and the Customer may agree to specific Onboarding services in line with a mutually agreed specification (“Onboarding”).
Additional terms relating to Onboarding services may be set out in a separate schedule to this Agreement.
Beta Services
AlphaMax may, from time to time, invite the Customer to trial certain beta services, which may include pilot programmes, limited releases, developer previews, non-production versions, or other evaluation services (“Beta Services”) free of charge.
Participation is optional. Beta Services will be clearly marked as such and are provided “as is” without warranties or guarantees. They are solely for evaluation purposes, not for production use, are not considered part of the “Services” under this Agreement, and may not be supported.
Unless otherwise specified, any Beta Service trial will expire upon the earlier of one year from the start of the trial or the general release of the Beta Service. AlphaMax may discontinue Beta Services at any time and is not obligated to make them generally available.
AlphaMax accepts no liability for any loss or damage arising from the use of Beta Services, and the Customer releases AlphaMax from all associated claims.
Software Updates
AlphaMax may amend, modify, upgrade, or withdraw any aspect or feature of the Software, either wholly or partially. Such changes, upgrades, modifications, additions, or removals shall take immediate effect upon notice, which may be provided via the AlphaMax website (www.alphamax.co.uk) or directly by email to the Customer.
Should AlphaMax modify or withdraw any content or functionality of the Software resulting in a reduction of service capability or a negative impact on the Services, AlphaMax shall ensure the provision of comparable functionality. AlphaMax may also, from time to time, develop new features, which may be offered to Customers for an additional charge.
For clarity, this clause does not alter the Services as specified in the Order Form. Updates are intended solely to capture routine enhancements aimed at improving the general functionality of the AlphaMax platform. AlphaMax will uphold the Services detailed in the Order Form regardless of any such updates.
Limitations
The Customer shall not, nor shall it permit any Authorised User to:
(a) rent, loan, or sub-license rights to access and/or use the Services (except as expressly permitted herein);
(b) copy, adapt, disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the Software or Documentation;
(c) share login credentials or passwords with anyone other than Authorised Users or permit account access by anyone who is not an Authorised User;
(d) access or use the Services, or permit third-party access, for the purpose of conducting competitive analysis or developing, offering, or using a competing software or service, or any use that would be detrimental to AlphaMax;
(e) install, knowingly or unknowingly, any malware, spyware, or other harmful software intended to damage or monitor AlphaMax’s Platform;
(f) exceed the monthly or periodic order volume limits set out in the Order Form or utilise Feature Sets not included in the Order Form without incurring additional fees or moving to a higher Service tier; or
(g) utilise the Services in any manner not expressly authorised under this Agreement.
The Customer shall remain fully responsible for all activities undertaken under its account and for the actions of its Authorised Users. Both the Customer and its Authorised Users must use the Services in accordance with this Agreement and any additional terms set out on AlphaMax’s website. Where a conflict arises between this Agreement and any such online terms, this Agreement shall prevail.
The Customer must immediately notify AlphaMax of any unauthorised use of its passwords, account, or any other suspected or known breach of security.
Third-Party Applications
The Customer acknowledges that AlphaMax may facilitate access to content or technical applications provided by third parties (“Third-Party Applications”) either directly via the AlphaMax platform or through third-party websites. Use of and data exchanges with Third-Party Applications are solely between the Customer and the third-party provider. AlphaMax provides no warranty or support for Third-Party Applications or non-AlphaMax products or services.
AlphaMax accepts no liability in connection with the access to, use of, or dealings with any third party, nor for any contract entered into by the Customer with a third party.
Should the Customer install or enable a Third-Party Application for use with the Services, the Customer grants AlphaMax permission to allow that third-party provider access to the Customer’s data and content as necessary to support interoperability. AlphaMax shall not be responsible for any loss, alteration, or deletion of data resulting from such third-party access.
Certain Service features may depend on Third-Party Applications. The Customer may be required to secure independent access to these applications and grant AlphaMax access rights to facilitate integration. If a third-party ceases to support interoperation with AlphaMax, AlphaMax may withdraw that specific feature without offering a refund, credit, or other compensation.
4. Customer Content
AlphaMax shall process, store, and utilise Customer Content as necessary to perform the Services, develop new AlphaMax products or services, or share aggregated, non-identifiable data with partners, affiliates, or Customers. The Customer represents and warrants that it possesses all rights necessary to grant AlphaMax a non-exclusive, worldwide, royalty-free licence to use the Customer Content.
a. Customer Content Warranty
The Customer represents and warrants that it has secured all necessary permissions and authority to provide the Customer Content, which:
(a) does not infringe upon the Intellectual Property Rights or legal rights of any third party;
(b) is not deceptive, defamatory, obscene, or unlawful; and
(c) is free from viruses, worms, malware, spyware, or other malicious code that could damage the Platform or data.
The Customer acknowledges that any misuse of the Services, or breach of these representations and warranties, shall constitute unauthorised use. Such use entitles AlphaMax to suspend or terminate the Customer’s access to the Services, without prejudice to any other rights or remedies.
The Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. AlphaMax does not monitor Customer Content but reserves the right to delete, edit, or relocate any content that it deems to violate this Agreement, applicable laws, or regulations.
b. Anonymous Data
AlphaMax may use aggregated Personal Data, anonymised so as not to identify the Customer or any living person, for reporting purposes, development of new services, and analysis of Service usage levels and revenue. This right shall survive termination or expiry of this Agreement.
c. Data Corruption / Loss
In the event of loss or corruption of Customer Content stored on the Software, and upon notification by the Customer, AlphaMax shall use reasonable endeavours to restore such content from the most recent available backup, where available.
The Customer’s sole remedy for any data loss or damage shall be AlphaMax’s reasonable efforts to recover such data from its latest backup. AlphaMax shall not be liable for any loss, destruction, alteration, or disclosure of Customer Content caused by any third party.
5. Data Protection
Both parties agree to comply with all applicable data protection laws and regulatory requirements relating to the use and processing of Personal Data, including but not limited to the UK GDPR and the Data Protection Act 2018.
For the purposes of the Data Protection Legislation, the Customer is the Data Controller and AlphaMax is the Data Processor in relation to any Personal Data the Customer shares with AlphaMax under this Agreement.
The remainder of this Clause 5 applies where AlphaMax processes Personal Data on behalf of the Customer while fulfilling its obligations under this Agreement.
a. Processing
The Supplier shall process the Personal Data only for the purposes of providing the Services, gathering feedback about the Services, performing its other obligations under this Agreement and otherwise in accordance with the reasonable and lawful documented instructions of the Customer and applicable laws.
Other than as expressly set out in this Agreement, the Supplier shall not process the Personal Data in any country outside the European Economic Area (“EEA”) (or following the United Kingdom’s departure from the European Union, outside the United Kingdom and the EEA) without the prior written request from, or consent of, the Customer and the Supplier shall comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred by following one of the following safeguards:
entering into the European Commission’s standard contractual clauses for the transfer of Personal Data to processors established in third countries which do not ensure an adequate level of protection, as updated, amended, replaced or superseded from time to time;where the relevant country has been deemed to provide an adequate level of protection for Personal Data by the European Commission; or
If the Supplier is required by applicable laws to transfer the Personal Data outside of the EEA (or following the United Kingdom’s departure from the European Union, outside the United Kingdom and the EEA), the Supplier shall inform the Customer of such requirement before making the transfer (unless the Supplier is barred from making such notification under the relevant applicable law).
The Supplier shall ensure that all persons authorized by it to process the Personal Data are subject to appropriate duties of confidentiality and shall have at all times during the term of this Agreement appropriate technical and organizational measures in place to protect any Personal Data against unauthorized or unlawful processing and against accidental loss, alteration, destruction or damage (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons). The Supplier shall at the Customer’s election, delete or return all Personal Data to the Customer, and delete all existing copies unless applicable law requires their retention.
The Supplier shall (at the Customer’s cost) make available to the Customer all information reasonably necessary to demonstrate compliance with the obligations set out in this paragraph 5a, and at the Customer’s request (and at the Customer’s cost) allow for and contribute to audits, including inspections, conducted by the Customer or its representative.
The Supplier shall without undue delay from becoming aware, notify the Customer of any unauthorized or unlawful processing of any of the Personal Data to which this Paragraph 5 applies and of any loss or destruction or other damage and shall take reasonable steps to mitigate the detrimental effects of any such incident on the Data Subjects and co-operate with the Customer in dealing with such incident and its consequences.
The Supplier shall provide reasonable assistance to the Customer in ensuring its compliance with its obligations under the Data Protection Legislation in respect of security of Personal Data, notifications of breaches of Data Protection Legislation to supervisory authorities, communications of breaches of Data Protection Legislation to Data Subjects, the carrying out of data protection impact assessments and any consultations with supervisory authorities.
The Supplier shall assist the Customer, where reasonably requested by the Customer (and at the Customer’s cost) and to the extent possible, with fulfilling the Customer’s obligations to respond to requests from a Data Subject for access to, rectification, erasure or portability of, or for restriction of, or objections to, the Processing of, that Data Subject’s Personal Data.
b. Sub-Processors
The Customer acknowledges and agrees that the Supplier may engage third party sub Processors in connection with the Processing of such Personal Data and in order to meet its obligations under the Agreement from time to time. In such circumstances the Customer hereby authorizes the Supplier to engage with such third party sub Processors and in respect of the Supplier’s use of sub Processors the Supplier shall inform the Customer of any intended changes concerning the addition or replacement of other sub Processors, thereby giving the Customer the opportunity to object to such changes. The Supplier confirms that it has entered or (as the case may be) will enter with the sub Processor into a written agreement incorporating terms which are substantially similar to those set out in this Paragraph 5. As between the Supplier and the Customer, the Supplier shall remain fully liable for all acts or omissions of any sub Processor appointed by it pursuant to this Paragraph 5b.
If the Supplier appoints sub Processors who process Personal Data outside the EEA, the Supplier shall notify the Customer of such sub Processors and the jurisdiction in which Personal Data shall be processed and the paragraph above shall apply in respect of any objection by the Customer.
c. Consent
Where the Customer provides Personal Data to the Supplier, the Customer shall ensure that any disclosure of Personal Data made by it to the Supplier is made with the Data Subject’s consent or is otherwise lawful and any instructions given to the Supplier by the Customer are lawful.
The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
6. Customer Obligations & Acknowledgement
The Customer shall:
- provide the Supplier with all reasonably necessary co-operation in relation to this Agreement;
- ensure that its Authorized Users use the Services, Software and Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;
- ensure that it and any Authorized Users abide by all applicable laws and regulations in connection with their use of the Services;
- ensure that it and any Authorized Users abide, do not abuse, attempt to circumvent, or violate any rules, regulations, or terms of service of the Channels, Marketplaces, Storefronts, Couriers, Non-AlphaMax Applications, and any other systems or software connected to the Platform;
- agrees to enter into agreements with its Authorized Users that contain terms that impose no less restrictions in all material respects than those imposed on Customer herein, including, but not limited to, the provisions regarding the use of the Services and protection of Supplier’s Intellectual Property Rights, and that include additional terms as reasonably requested by Supplier.
On or before the earlier of the Effective Date or the Service Start Date, Customer acknowledges and agrees that an authorized representative of Customer has evaluated the features and functionality of the Services in a means satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the features and functionality that have been represented to Customer. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Supplier regarding future functionality or features.
7. Payment
Payment Terms
Customer shall pay Supplier all Charges confirmed in the Order Form (or as otherwise amended in accordance with these Terms) upon receipt of invoice (unless otherwise stated on the Order Form). The Supplier and the Customer may agree more favorable payment terms, but the Customer acknowledges and agrees that the Supplier shall be entitled to charge the Customer a premium in such circumstances.
Except for as otherwise set out in this Agreement, all payments to Supplier are non-refundable and non-cancellable. Specifically, Customer’s loss of business, loss of Services due to non-payment, or Customer’s failure to use the Services will not be cause for any refund to Customer from Supplier. Customer shall reimburse Supplier for Supplier’s collection costs incurred in attempting to collect any overdue payments, including reasonable legal fees.
VAT and Taxes
The Charges confirmed in the Order Form (or as otherwise amended in accordance with these Terms) are exclusive of VAT, or other applicable governmental taxes, duties, fees, excises, or tariffs (“Taxes”) now or hereafter imposed on the Services. Customer shall be responsible for, and shall reimburse, Supplier for all such Taxes on any amounts payable by Customer hereunder, except for Taxes imposed on Supplier’s net income. If Supplier has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, Supplier will add such Taxes to the amount invoiced to Customer.
Compliance and Auditing
Pricing is determined by a number of factors, including User Count, Order Volume, SKU Count, Customizations, Support Services, and other similar factors. Supplier may, from time to time, audit Customer’s account (as specified on the Order Form) without any notice to Customer to ensure compliance with agreed-upon terms and pricing. Supplier will give Customer at least ten (10) days advance notice of any such audit that Supplier expects may interfere with Customer’s normal operations. Supplier will take reasonable precautions to ensure that there is minimal interreference with Customer’s daily business as a result of the audit. Such audit will be at Supplier’s expense; however, if any such audit should disclose any underpayment by Customer, Customer shall immediately pay Supplier such underpaid amount, together with interest thereon at the rate for the usage discovered by Supplier, and Customer shall also pay Supplier for Supplier’s expenses associated with such audit.
Pricing
Charges under this Agreement are based on information shared by Customer to Supplier. The Supplier may be required to adjust the Charges as necessary in the event of any change in product, project scope, increase in User Count, Order Volume, SKU Count, or misrepresentation of facts by Customer. At its discretion, the Supplier reserves the right to adjust the basis and the rate of Charges, including by removing any discounts provided.
In the event of a change to the Charges based on misrepresentation of facts by Customer, Supplier reserves the right to suspend Customer access to the Services until a remedy can be found between parties.
Late Payment
Without limiting any other remedies available to the Supplier, the Supplier may suspend or terminate access to the Software and the provision of the Services if any amounts due to be paid by the Customer to the Supplier under this Agreement are overdue by more than ten (10) days and the Supplier has provided at least ten (10) days’ notice of such suspension.
Overdue payments will be subject to interest from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at the statutory interest rate under the Late Payment of Commercial Debts (Interest) Act 1998.
Future Functionality
The Customer acknowledges that the continued payment for Services and Software does not mean that the Supplier undertakes or promises to provide any future functionality or new features.
8. Indemnities
During the Term, Supplier shall indemnify Customer against a final award of damages resulting from a claim that the Services infringe any Intellectual Property Rights. In addition, if the use of the Services infringes or is enjoined, or Supplier believes it is likely to infringe or be enjoined, Supplier may, at its sole option: (a) procure for Customer the right to continue use of the Services as furnished; (b) modify the Services to make them non-infringing, provided that they still substantially conform to the applicable Documentation; or (c) if Supplier, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate this Agreement and refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. The indemnity provided herein does not apply to the extent the alleged infringement arises from any use of the Services not in accordance with this Agreement or as specified in the Documentation or any unauthorized modification of the Services. This paragraph states Supplier’s sole and exclusive liability and Customer’s sole remedies for any threatened or actual infringement of any Intellectual Property Rights.
During the Term, Customer shall defend, indemnify, and hold harmless Supplier and its officers, directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities, judgments, settlements, losses, costs, or expenses of any kind, including reasonable legal fees, costs and expert witness fees, suffered or incurred by the Supplier and arising out of or in connection with: any breach by the Customer of Paragraph 4a; (b) Customer’s misuse of the Intellectual Property Rights of any third party; and (c) any Customer Content which violates the terms of this Agreement.
In relation to the indemnities given within this Agreement, the applicable indemnified party shall:
- provide notice of any relevant claim to the indemnifying party in a timely manner;
- provide reasonable co-operation to the indemnifying party in the defense and settlement of such claim at the indemnifying party’s expense;
- give the indemnifying party sole authority to defend or settle the claim;
- and use all reasonable endeavors to mitigate its losses.
9. Warranties and Liability
Disclaimer
THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS. SUPPLIER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, THE SOFTWARE AND THE DOCUMENTATION BY THE CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. THE SUPPLIER SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO THE SUPPLIER BY THE CUSTOMER IN CONNECTION WITH THE SERVICES OR THE SOFTWARE, OR ANY ACTIONS TAKEN BY THE SUPPLIER AT THE CUSTOMER’S DIRECTION.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE.
NOTHING IN THE AGREEMENT LIMITS ANY LIABILITY WHICH CANNOT LEGALLY BE LIMITED, INCLUDING BUT NOT LIMITED TO LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; AND (C) BREACH OF THE TERMS IMPLIED BY SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 (TITLE AND QUIET POSSESSION).
Limited Warranty
Each Party warrants that it has all necessary authority to enter into and perform its obligations under this Agreement. Supplier represents and warrants that: (a) the Services will perform in accordance with this Agreement under normal circumstances; and (b) the Services provided hereunder will be performed in a professional manner in accordance with prevailing industry standards.
The Services may contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges and agrees that Supplier is not responsible for the availability of, or the content located on or through, any such external site.
Liability
SUPPLIER WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTIONS, LOSS OF ANTICIPATE SAVINGS, LOSS OF CONTRACT, SHIPPING COSTS ASSOCIATED WITH INVENTORY, DELAYS IN IMPLEMENTATION OR ACCESS TO THE SERVICES, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION) EVEN IF EITHER PARTY WAS AWARE OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MIGHT BE INCURRED BY THE OTHER.
THE SUPPLIER’S MAXIMUM LIABILITY FOR CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT SHALL BE THE GREATER OF: (A) £10,000; AND (B) 100% OF THE CHARGES PAID, OR DUE AND PAYABLE, BY THE SUPPLIER IN THE LAST 6 MONTHS OF THE AGREEMENT PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE JURISDICTIONS, SUPPLIER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE LIMITATIONS SET FORTH IN THIS PARAGRAPH 9 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT ABSENT THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
10. Intellectual Property Rights
All Intellectual Property Rights in the Services (including AlphaMax), the Software and the Documentation shall, as between the parties, be the exclusive property of the Supplier. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licenses in respect of the Services, Software or the Documentation. All proprietary rights in the Services, including in the Software as well as any aggregate usage statistics, traffic patterns, and other non-personally identifiable data collected by Supplier in connection with use of the Services, will be the sole and exclusive property of Supplier. Supplier retains the royalty-free right to use any suggestions, ideas, feedback, or other recommendations provided by Customer or Authorized Users relating to the Services. Supplier may use Customer’s name and/or its logo on Supplier’s website and in its marketing materials to indicate that Customer is a client of Supplier. Customer hereby grants Supplier the right to contact Customer and Authorized Users in connection with their use of the Services unless otherwise stated on the Order Form.
11. Confidentiality and Publicity
Each Party shall, during and after the existence of this Agreement, hold in strictest confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other Party. Each Party shall not disclose Confidential Information without the prior written consent of the other Party, except to its employees, contractors, or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this paragraph. Information will not be deemed confidential if it: (a) was known to the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as evidenced by written records of the receiving Party; (b) is now or later becomes (through no act or failure on the part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (c) is supplied to the receiving Party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving Party without use of or reference to any Confidential Information provided by the disclosing Party. The restrictions on disclosure imposed by this paragraph do not apply to information that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief.
Upon termination of this Agreement, each Party shall promptly cease all further use of Confidential Information, return to the other Party all physical materials containing Confidential Information, whether the materials were originally provided by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information kept by either Party in electronic or other non-physical form. The Parties acknowledge that the receiving Party will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing on the receiving Party’s backup or disaster-recovery systems, or which must be maintained for regulatory or policy purposes. Such termination by either Party will not affect each Party’s continuing obligations under this paragraph.
12. Termination
Either party may terminate this Agreement upon:
(a) any material breach of this Agreement by the other party that (if remediable) is not remedied within thirty (30) days (or within ten (10) days in case of failure to pay) following written notice thereof;
(b) the other party is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case, or ceases substantially all of its business; or
(c) the other party breaches paragraph 13j (“Compliance with Laws”).
Upon expiration or termination of this Agreement or Services authorized in an Order Form, Customer shall immediately discontinue all access and use of the Services. In the event Customer terminates this Agreement for a material and uncured breach by Supplier, Supplier shall, as Customer’s sole and exclusive remedy, refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. In addition to any other remedies available to Supplier, Supplier may suspend Customer’s or any Authorized Users’ access to the Services, at Supplier’s sole option, in the event of any breach by the Supplier of this Agreement.
Upon termination or expiry of this Agreement, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any applicable interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately upon receipt. All parties shall then return or destroy any and all Confidential Information belonging to either party. A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination or expiry of this Agreement if that party is obliged to retain such document by any law or regulation or other rule enforceable against that party or if such information is explicitly noted to survive the termination of this Agreement.
13. General
a. Anti-bribery
Each Party shall, and shall procure that any person associated with it performing services in connection with this Agreement shall comply with all applicable laws, regulations, codes, and sanctions relating to anti-bribery and anti-corruption in England, including but not limited to the Bribery Act 2010. Breach of this paragraph shall be deemed a material breach, which is irredeemable, under paragraph 12.
b. Force Majeure
Neither party shall be liable to the other as a result of any delay or failure to perform their respective obligations under this Agreement as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 90 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Supplier.
c. Inadequacy of Damages
Without prejudice to any other rights or remedies that a party may have, the Parties acknowledge and agree that damages alone may not be an adequate remedy for any breach of the terms of this Agreement by a party. Accordingly, the parties shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
d. Relationship of the Parties
It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Supplier shall retain the right to perform services for others during the term of this Agreement.
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
e. Subcontracting
Either party may subcontract its obligations under this Agreement.
f. Non-Solicitation
Customer shall not, without Supplier’s prior written consent, during the Term, engage, employ or otherwise solicit for employment any employee, agent or contractor of Supplier who has been involved in the performance of this Agreement.
g. Modification and Amendments
Other than as set out in this Paragraph 13g, no variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized representatives.
Supplier, at its sole discretion, may modify this Agreement to reflect changes to the law, Platform, or Services provided to Customer by Supplier or related third-party. Customer should review this Agreement regularly. Supplier will post notice of modifications to this Agreement on the Supplier’s website, and/or in a similar form of electronic communication to the Customer. If the Supplier considers that the modifications entail a material change to the terms of the Agreement, it shall notify the Customer. No such material change of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized representatives.
If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement.
h. Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
i. Severability
If any provision, or part of a provision, of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable law.
j. Compliance with Laws
Both Parties shall comply with all applicable laws, statutes and regulations from time to time in force in connection with their performance of their obligations and access/use of the Services under this Agreement.
k. Third Party Rights
Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
l. Assignment
Neither party may at any time assign, transfer or otherwise deal in any manner with its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed); except that Supplier may assign, delegate, or otherwise transfer this Agreement without such consent from Customer in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of Supplier’s assets or any other transaction in which more than fifty percent (50%) of Supplier’s voting shares are transferred. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.
Without limiting the Supplier’s rights under paragraph 5b above, either party may subcontract its obligations under this Agreement but not without the prior consent of the other party.
m. Notice
Any notice required to be given to a party under or in connection with this Agreement shall be in English and in writing (which includes email) and shall be delivered to the other party by hand or sent by recorded delivery to the address set out in the Order Form, for the attention of the person who signed such Order Form. Any notice shall be deemed to have been duly received if delivered by hand, when left at the address referred to above or, if sent by recorded delivery, on the second Business Day after posting or if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
n. Governing Law & Jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims), shall be governed by laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims).
o. Entire Agreement / Survival
This Agreement, together with the content of any web pages (as identified by any URLs contained herein), any exhibits, any future non-material modifications, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals, Customer purchase orders, non-disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under this Agreement, regardless of any failure of Supplier to object to such terms, provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of paragraphs: Paragraph 9 (“Warranties and Liabilities”), Paragraph 10 (“Intellectual Property Rights”), Paragraph 11 (“Confidentiality and Publicity”), Paragraph 13d (“Relationship of the Parties”), and Paragraph 13n (“Governing Law & Jurisdiction”) and this Paragraph 13o (“Entire Agreement/Survival”) shall survive any termination of this Agreement.
Schedule 1 – Onboarding Services
General:
Alpha Max may use certified partners to carry out some or all of the Onboarding Services on its behalf to Customers.
Onboarding services are provided as an add-on service by Alpha Max to train Customers on how to optimize use of the Alpha Max platform. Alpha Max will seek to agree objectives with the Customer regarding what the Customer wishes to achieve on the platform. These objectives will be used to prepare an onboarding plan of action (so-called “Project Plan”) to document focus areas for the training with the aim of achieving the Customer’s overall objectives. The Project Plan may only address limited objectives at a time, depending on Customer’s budget, appetite, and time constraints.
The Alpha Max onboarding team (“onboarding team”) is to provide training and advice on the best use of Alpha Max functionality. The setup and follow-up tasks are to be completed by the Customer unless agreed otherwise.
The onboarding team is to provide advice and assistance regarding the Data/CSV file requirements that will be imported into Alpha Max platform. It is the Customer’s responsibility to compose and provide files in accordance with Alpha Max Import Tool requirements.
It is the Customer’s responsibility to ensure imported data integrity and completeness.
It is the Customer’s responsibility to collect credentials required for channel/courier/3PL integrations during the onboarding process. Integrations that cannot be created due to lack of data required for their creation are considered out of the Onboarding scope and are to be completed by the Customer independently once they become available.
Onboarding duration:
It is the Customer’s responsibility to allocate sufficient time and resources required to complete Onboarding within the agreed-upon timeline (such as but not limited to) attendance of the training sessions, completion of the follow-up tasks (often to be carried out offline, outside of the onboarding training sessions), preparation of the necessary and requested files.
Onboarding project duration is dependent on the scope of work and requirements as agreed to by Alpha Max Onboarding Team and the Customer. Timelines will specifically be detailed in the Onboarding Project Plan. Any deviation to agreed-upon scope will require a Change Order Form (or similar document), which may include additional fees and extended timelines.
In the event of a change in priority or direction of the Customer’s business, the Customer may pause their onboarding project. However, all payments must be honored and remain up to date, and the Customer accepts that resuming the project will occur within availability of the onboarding team, without exception.
If the client ceases to make progress or communicate with the onboarding team for longer than 3 weeks, then the onboarding will be paused automatically and terminated if it exceeds the onboarding duration term.
Onboarding would be considered complete once the client actively starts processing orders through the platform, unless the Project Plan states differently and agreed and confirmed with the Onboarding team at the start of the project.
Outstanding sessions to be delivered by the Onboarding Team after completion must be consumed during the post-GoLive onboarding support period. Please refer to the Onboarding package purchased for more details on post-GoLive support. Requested outstanding sessions after the post-GoLive support period would be charged as per the agreed rate card.
Additional sessions to cover extra modules not included within the Project Plan and/or agreed with the Onboarding Team during the definition of the Onboarding Project Plan discussion would be charged as per the agreed rate card at an hourly rate and will require a Change Order Form or similar document.
Overage on the Onboarding Package will be triggered based on exceeding 10% of the agreed Onboarding sessions or time dedicated by the Onboarding team to support the client through Onboarding. The Onboarding team will notify the Customer in advance of exceeding the overage, and the Customer will be billed based on the agreed rate card for either additional sessions or additional support for enablement services.
Alpha Max and the Onboarding Team are not responsible for missing onboarding deadlines if the Customer has been unavailable/missing sessions or if there is a delay by any third party on the Customer’s side. If this is the case, it will render any release clause relating to deadlines redundant.
Alpha Max functionality:
WMS integration is not included within the Onboarding Training Packages unless clearly specified within the order form.
Onboarding Training Packages include Alpha Max core product functionality, which does not include any client customization, such as but not limited to: SQL, Macros, API Integrations, and any other requests outside of the core product functionality, unless specifically stated within the order form.
3rd Party Integration:
3rd party integration may be subject to additional costs. 3rd party integration pricing is to be discussed with the developer of the application. The 3rd party developer is to facilitate any support related to the application developed.
3rd party integration (such as, but not limited to, app store, channel, or courier integration) is the explicit responsibility of the Customer. Alpha Max onboarding team may assist with documentation if it has been made available for Alpha Max by a 3rd party but cannot provide advice on the integration itself.
UAT:
The Onboarding Team will collaborate fully with the client to ensure that the platform has been both correctly and fully configured prior to “Going live” with Alpha Max, but a final sign-off on the outcome of UAT would be required from the Customer.
Partner
All clauses above are the same for any Customer that is partaking in onboarding through one of our certified partners.
All 3rd party data passed on is the same as clause 8.2 of the Alpha Max privacy policy.
Any further services the Customer wishes to pursue with Alpha Max’s onboarding partners will be acceptable as long as Alpha Max has been notified in advance by the said partner.
Alpha Max must be notified immediately if the Customer is unsatisfied with the onboarding partner so any adjustments can be made to meet agreed deadlines. Any delay in notifying Alpha Max of those concerns is the client’s responsibility, and any impact on deadlines for deliverables would have to be reviewed and adjusted accordingly.