SkuSpring Retailer Supply of Service Agreement
Last Updated: December 21, 2020
Please read this Retailer Supply of Service Agreement carefully as it constitutes a legally binding agreement between you (hereinafter the “Supplier” ) and SkuSpring Ltd (hereinafter the “Customer”). If you are using the SkuSpring platform on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to this Retailer Supply of Service Agreement. By accessing the SkuSpring platform, you indicate that you have read and accept this Retailer Supply of Service Agreement. If you do not accept these terms, then you may not access or use the SkuSpring platform or services.
The terms of the Agreement are subject to change by SkuSpring in its sole discretion at any time to the fullest extent permitted by applicable law. When changes are made, SkuSpring will make a new copy of the Retailer Supply of Service Agreement available on the SkuSpring platform. We will also update the “Last Updated” date at the top of the Agreement. Please regularly check the SkuSpring platform to view the most current version.
1. In this Agreement, the following words are defined:
2. In this Agreement, unless the context requires a different interpretation:
a. the singular includes the plural and vice versa;
b. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
c. a reference to a person includes firms, companies, government entities, trusts and partnerships;
d. "including" is understood to mean "including without limitation";
e. reference to any statutory provision includes any modification or amendment of it;
f. the headings and sub-headings do not form part of this Agreement; and
g. "writing" or "written" will include fax and e-mail unless otherwise stated.
Provision of Services
3. The Supplier shall provide the Services to the Customer on the terms and conditions of this Agreement from the Effective Date and as set out in Schedule 1.
4. The Services will be provided by the Supplier on an on-going basis.
5. The Agreement begins on the Effective Date and will continue unless terminated earlier by either party under the clause below (Termination).
6. The Supplier shall provide the Services in accordance with the Specification and the Service Levels in all material respects.
7. The Supplier shall perform the Services with reasonable care and skill, in accordance with:
a. generally recognised commercial practices and standards in the applicable industry; and
b. all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection.
8. No amendment shall be made to Schedule 1 except on terms agreed in writing by the Parties.
9. The Customer must:
a. co-operate with the Supplier in all matters relating to the Services;
b. provide, in a timely manner, any Equipment, materials and any information as the Supplier may reasonably require; in the case of Equipment, the Customer shall ensure that it is in good working order and suitable for the purposes for which it is used, and in the case of information, the Customer shall ensure that it is accurate in all material respects;
c. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start;
10. The Supplier shall promptly notify the Customer of:
a. any delays or problems from time to time in the provision of the Services of which the Supplier becomes aware;
b. any circumstances from time to time which may prevent the Supplier from providing the Services in accordance with this Agreement together with (where practicable) recommendations as to how such circumstances can be avoided; and
c. any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Customer or which may result in any adverse publicity for the Customer.
11. The Customer shall, without limiting any right or remedy of the Customer, promptly report to the Supplier any defects in the Supplier's performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Customer.
12. Where any defect in the provision of the Services is reported to the Supplier by the Customer or otherwise comes to the attention of the Supplier, the Supplier shall, without limiting any other right or remedy of the Customer, use its reasonable endeavours to provide such further services as are necessary in order to rectify the default as soon as is reasonably practicable.
Charges And Payment
13. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Service Charges as set out in Schedule 2.
14. The Customer shall pay the Supplier, in full and in cleared funds, to a bank account nominated in writing by the Supplier.
15. The Supplier shall indemnify the Customer against any claim by any other person that the provision of the Services to the Customer in accordance with this Agreement infringes any Intellectual Property Rights of that other person.
16. If the Supplier's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
17. Nothing in this Agreement limits or excludes either party's liability for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation; or
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
d. any other liability which cannot be limited or excluded by applicable law.
18. Subject to the above clause and the clause above (Indemnity), neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of or damage to goodwill;
f. loss of use or corruption of software, data or information;
g. any indirect or consequential loss.
19. Subject to the two preceding clauses and the clause above (Indemnity), the total liability of either party for any other loss of the other party in respect of any one event or series of connected events shall not exceed £0.
20. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
21. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
a. where required by law, court order or any governmental or regulatory body;
b. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
c. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
d. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
e. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.
Circumstances beyond the control of either party
22. Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
23. Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
24. The party affected by a circumstance beyond its control shall use all reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
25. The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
26. If the delay continues for a period of 90 days, either party may terminate or cancel the Services to be carried out under this Agreement.
27. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
a. does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
b. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied);
c. persistently breaches any term of the Agreement;
d. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
e. is a company over any of whose assets or property a receiver is appointed;
f. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
g. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
h. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
i. (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
Consequences of Termination
28. On termination of this Agreement:
a. the Customer shall pay to the Supplier all of the Supplier's unpaid commissions.
b. the Supplier shall, within a reasonable time, return all of the Customer's Equipment and any relevant Deliverables remaining the property of the Customer. Until they have been returned or repossessed, the Supplier shall be solely responsible for their safe keeping.
29. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
30. Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
31. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
32. No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
33. No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
34. The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
35. Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
36.A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
37. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
38. Unless specifically provided by the parties, nothing in the Agreement will establish any employment relationship, partnership or joint venture between the parties, or mean that one party becomes the agent of the other party, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
39. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing by email to the other party's main business email address as notified to the sending party. Notices sent by email will be deemed to have been received on the next Working Day after sending.
Governing law and jurisdiction
40. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND AND AGREE TO BE BOUND BY AND COMPLY WITH ALL OF ITS PROVISIONS. YOU ACKNOWLEDGE THAT YOU HAVE HAD REASONABLE OPPORTUNITY TO REVIEW THIS AGREEMENT CONTAINING THE TERMS OF OUR AGREEMENT AND HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT LEGAL ADVISORS OF YOUR OWN CHOICE BEFORE AGREEING.
SPECIFICATION OF SERVICES
The Supplier hereby agrees to provide SkuSpring with the following Services:
SkuSpring will provide the following to the Supplier: a SkuSpring device, a manual, technical support, the sourcing of local advertisements.
SkuSpring will pay the Supplier for Services as follows:
For each local advertisement run, SkuSpring will pay revenue sharing of 33% of net revenue (after transaction fee, tax, commission, legal charges, currency conversion, etc.) to the Supplier.
Revenue sharing is available with a 1 month hold back after the month in which an advertisement completes it's run. Advertisements are booked with a 30 day run and paid for by the Advertiser at the time of purchase. Revenue sharing is available after that run completes in 30 days, plus one month holdback. Advertisements that complete in April, will be held in May and payable on June 1st.
The Supplier will only receive payment for advertisements which were displayed.
The Supplier will not be reimbursed for any expenses incurred in connection with providing the Services of this Agreement.
The Supplier must ensure the following Service Levels are maintained: