Ecommerce Nurse Limited, a
company registered in the United Kingdom with company registration number
1078755 whose registered office is 46 Hullbridge Rd,
South Woodham Ferrers, Chelmsford, Essex, CM3 5NG, United Kingdom (“ECN”).
The
Client’s attention is drawn in particular to the
provisions of
Clause 8 (LIMITATION OF LIABILITY).
The
following definitions and rules of interpretation apply in these Conditions.
Amazon: Amazon.Com, Inc., or its affiliates
(including, but not limited to Amazon.co.uk, Inc.).
Business
Day: a day other than a Saturday, Sunday
or public holiday in England, when banks in London are open for business and business hours shall be construed
accordingly.
Charges: the charges payable by the Client
for the supply of the Services in accordance with 5.
Client: the person or firm who purchases
Services from ECN.
Client
Default: has the meaning set out in 4.2.
Client
IP: the Intellectual Property Rights existing in any materials belonging to the Client or its licensors
which is supplied to ECN to enable ECN to perform the Services.
Commencement
Date: has the meaning given in 2.4.
Conditions: these terms and conditions as
amended from time to time in accordance with 11.5.
Contract: the contract between ECN and the
Client for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section
1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Deliverables: the deliverables set out in the
Order produced by ECN for the Client.
ECN
IP: the Intellectual Property Rights subsisting in any
Deliverables created or held by ECN for the Client in the
course of providing the Services.
Extended
Term: has the meaning set out in clause 2.5(a).
Force
Majeure: has the meaning set out in clause 11.1(a).
Formatting
Fee: The additional fee for providing the Deliverables in an
alternative format in accordance clause 5.8.
Initial
Term: has the meaning set out in clause 2.5(a).
Intellectual
Property Rights: patents, utility models, rights to
inventions, copyright and neighbouring and related rights, moral rights, trade marks 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, rights in computer
software, 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.
Online
Marketplace: any online digital marketplace or platform upon which the
Services may be delivered (including but not limited to Amazon, or any other
such platform as specified in the Order, Scope of Work or as confirmed in
writing between the parties).
Order:
the Client's order for Services as set out in Client's written acceptance of
the Scope of Work by ECN as the case may be.
Project Services: the project services, including the
Deliverables, supplied by ECN to the Client as set out in the Scope of Work.
Project
Term: has the meaning given in clause 2.5(b)
Retainer
Services: the retainer services, including the Deliverables, supplied
by ECN to the Client as set out in the Scope of Work.
Scope
of Work: the description, scope or specification of the Services
provided in writing by ECN to the Client.
Services:
the Project Services, the Retainer Services, and general services, including
the Deliverables, supplied by ECN to the Client as set out in the Scope of
Work.
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c)
A reference to writing or written
excludes fax but not email.
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any specification submitted by you is complete and accurate.
2.3 If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Services, we will refund you the full amount.
2.4 The Order shall only be deemed to be accepted when ECN issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.5 Unless terminated earlier in accordance with these Conditions:-
(a) where ECN is providing Retainer Services, this Contract shall continue for a period of 12 months from the initial Commencement Date (Initial Term) and shall automatically extend for 3 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term;
(b) where ECN is providing Project Services, the Contract shall continue until completed delivery of the Project Services (Project Term).
2.6 Any samples, drawings, descriptive matter or advertising issued by ECN, and any descriptions or illustrations contained in ECN's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.7 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.8 Any quotation given by ECN shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3.1 ECN shall supply the Services to the Client in accordance with the Scope of Work in all material respects.
3.2 ECN shall use all reasonable endeavours to meet any performance dates specified in the Scope of Work, but any such dates shall be estimates only whereby time shall not be of the essence for performance of the Services, and failure to perform the Services by such dates will not give you the right to terminate the Contract.
3.3 ECN reserves the right to amend the Scope of Work and make substitutions where necessary, including but not limited to amendments to ensure compliance with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and ECN shall notify the Client in any such event.
3.4 Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract nor have any contractual force.
3.5 Subject to our right to amend the Scope of Work (see 3.3) we will supply the Services to you in accordance with the Scope of Work for the Services appearing on our website at the date of your order in all material respects.
3.6 The Deliverables shall be provided in the format as specified in the Scope of Work. In the event that the Client requests the Deliverables to be provided in an alternative format, the Client shall:-
(a) give ECN written notice of the alternative format desired; and
(b) pay to ECN the Formatting Fee in accordance with clause 5.8.
3.7 On receipt of a written request referred to in clause 3.6, ECN shall use reasonable endeavours to provide the Deliverables in the requested alternative format as soon as reasonably practicable.
3.8 Nothing in clause 3.7 shall oblige ECN to provide the Deliverables in the requested alternative format where:-
(a) The Formatting Fee has not been received by ECN from the Client; or
(b) ECN is unable to reasonably do so.
3.9 ECN warrants to the Client that the Services will be provided using reasonable care and skill.
(a) ensure that the terms of the Order and any information it provides in the Scope of Work are complete and accurate;
(b) comply at all times with all of the terms and conditions in relation to the Online Marketplace (including but not limited to any policies, agreements, code of conduct or other ancillary provisions contained on the Online Marketplace’s website or elsewhere);
(c) co-operate with ECN in all matters relating to the Services;
(d) provide ECN, its employees, agents, consultants and subcontractors, with such access and information in relation to ECN’s access to the Client’s Online Marketplace account(s) and other facilities as reasonably required by ECN;
(e) provide ECN with such information and materials as ECN may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(f)
obtain and maintain all necessary
licences, permissions and consents which may be required for the Services
before the date on which the Services are to start; and
(g) comply with any additional obligations as set out in the Scope of Work.
4.2 If ECN's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, ECN shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays ECN's performance of any of its obligations;
(b) ECN shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from ECN's failure or delay to perform any of its obligations as set out in this 4.2; and
(c) the Client shall reimburse ECN on written demand for any costs or losses sustained or incurred by ECN arising directly or indirectly from the Client Default.
5.1 The Charges for the Services shall be as set out in the Order.
5.2 ECN shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom ECN engages in connection with the Services including any associated expenses, and for the cost of services provided by third parties and required by ECN for the performance of the Services, and for the cost of any labour, software and materials.
5.3 ECN reserves the right to increase the Charges for Retainer Services after the Initial Term and the first such increase shall take effect on the first day of the Extended Term.
5.4 ECN shall require an initial upfront payment of whole or part of the Services as specified in the Order which ECN shall raise an invoice to the Client for accordingly. Thereafter, ECN shall invoice the Client:-
(a) In relation to the Project Services, at the end of the Project Term; and
(b) In relation to the Retainer Services monthly in advance; and
(c) In relation to the Services, any agreed commission set out in the Scope of Work monthly in arrears.
5.5 The Client shall pay each invoice submitted by ECN:
(a) within fifteen (15) days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by ECN, and
time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by ECN to the Client, the Client shall, on receipt of a valid VAT invoice from ECN, pay to ECN such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Client fails to make a payment due to ECN under the Contract by the due date, then, without limiting ECN's remedies under clause 9, the Client 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 5.7 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%.
5.8 On receipt of a written request by the Client in accordance with clause 3.6, ECN shall confirm the Formatting Fee payable immediately by the Client.
5.9 Where the Formatting Fee has been paid, but ECN is unable to do so under clause 3.8(b), ECN shall return the Formatting Fee to the Client.
5.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by ECN and form part of ECN IP.
6.2 ECN grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the Deliverables (including the ECN IP, but excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables.
6.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in 6.2.
6.4 The Client grants ECN a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to ECN for the term of the Contract for the purpose of providing the Services to the Client.
6.5 At termination of this Contract (unless terminated by ECN in accordance with clause(s) 9.2 or 9.3):
(a) The licence granted under clause 6.2 shall be terminated;
(b) ECN assigns to the Assignee absolutely all its right, title and interest in and to the ECN IP, including:
(i) the absolute entitlement to any registrations granted pursuant to any of the applications comprised in the registered designs and trademarks;
(ii) all goodwill attaching to the trademarks and that part of ECN's business carried out on behalf the Client that relates to the goods or services (in the course of the Services) in respect of which the trademarks are registered or used; and
(iii) the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the ECN Rights being assigned whether occurring before, on, or after the date of this agreement. For the avoidance of doubt, nothing in this clause 6.5(b) shall entitle the Client to purport to claim any entitlement to any Intellectual Property Rights held by ECN which are not ECN IP, Client IP or otherwise attributable to the Services.
(c) The Client grants ECN a fully paid-up, non-exclusive, royalty-free, non-transferable perpetual and irrevocable licence to copy, modify and publish any materials contained in the ECN IP (and where applicable, Client IP) at ECN’s sole discretion for the purpose of marketing and advertising.
7.1 We will use any personal information you provide to us to:
(b) process your payment for the Services; and
(c) inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us.
7.2 We will process your personal information in accordance with our Privacy Policy and Cookie Policy, the terms of which are incorporated into this Contract.
8. Limitation of Liability (PLEASE READ THIS PROVISION CAREFULLY)
8.1 References to liability in this 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Client's payment obligations under the Contract.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(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).
8.4 Subject to clause 8.3, ECN's total liability to the Client for all loss or damage shall not exceed the Charges paid by the Client to ECN.
8.5 Subject to clauses 8.2 and 8.3, this clause 8.5 sets out the types of loss that are wholly excluded:
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.6 ECN has given commitments as to compliance of the Services with relevant specifications in 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.7 Unless the Client notifies ECN that it intends to make a claim in respect of an event within the notice period, ECN shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.8 To the fullest extent permissible under applicable law, the Client understands and agrees that ECN nor any of its respective directors, officers, employees, partners, representatives, contractors or agents shall be liable for any direct, indirect, incidental, special, consequential, punitive, exemplary or any other damages relating to or resulting from:-
(a) use of the Services;
(b) any actions any Online Marketplace takes or fails to take; or
(c) any actions ECN takes or fails to take (notwithstanding clause 8.3(a)).
8.9 The circumstances and actions referred to in clauses 8.8(a) to (c) (inclusive) include but are not limited to damages for errors, omissions, interruptions, defects, delays, computer viruses, lost profits, loss of data, business interruption, unauthorised access to and alteration of transmissions and data (including cybersecurity breaches), and other tangible and intangible losses.
8.10 This clause 8 shall survive termination of the Contract.
9. Termination and Expiry of Contract
9.1 In relation to the Project Services, without affecting any other right or remedy available to either party, the Contract shall expire at the end of the Project Term.
9.2 In relation to the Retainer Services:-
(a) without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party ninety (90) days written notice in advance of the expiry of the Term (or as the case may be, Extended Term);
(b) the Contract shall otherwise renew in accordance with clause 2.5(a).
9.3 Without affecting any other right or remedy available to it, ECN may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of the Client being notified in writing to do so;
(b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Client’s financial position deteriorates to such an extent that in ECN’s opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(e)
the
Client fails to pay any amount due under the Contract on the due date for
payment; or
(f) there is a change of control of the Client.
9.4 Without affecting any other right or remedy available to it, ECN may suspend the supply of Services under the Contract or any other contract between the Client and ECN if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment;
(b) the Client becomes subject to any of the events listed in 9.3(c) or 9.3(d), or ECN reasonably believes that the Client is about to become subject to any of them; and
(c) ECN reasonably believes that the Client is about to become subject to any of the events listed in 9.3(b).
10. Consequences of Termination
10.1 On termination or expiry of the Contract:
(a) the Client shall immediately pay to ECN all of ECN's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ECN shall submit an invoice, which shall be payable by the Client immediately on receipt. Where the Contract relates to Retainer Services, the Client shall be liable to pay for the period from termination to the end of the Initial Term, or the relevant Extended Term;
(b) if terminated by ECN in accordance with clause 9.3, any licences granted by ECN to the Client under clause 6.2 shall be terminated;
(c) the Client shall procure the return of all of materials belonging to ECN together with any Deliverables (including, where applicable, ECN IP) which have not been fully paid for. If the Client fails to do so, then ECN may enter the Client's premises, or take other reasonable actions required to take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
(a) Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. This includes, but is not limited to, cybersecurity-attacks, power outages and strikes (“Force Majeure”).
(b) In the event of any Force Majeure event, ECN reserves the right to postpone delivery of any part of or the whole of the Services affected until such circumstances have ceased.
(c) In the event of that Force Majeure event affects the Services indefinitely, ECN reserves the right to terminate this agreement and any part of or the whole of the Services.
11.2
Assignment
and other dealings.
(a) ECN may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by 11.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5
Variation.
Except as set out in these Conditions, no variation of the Contract shall be
effective unless it is in writing and signed by ECN (or its authorised
representatives).
11.6 Waiver. A waiver of any right or remedy by ECN under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by ECN to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7
Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but
that shall not affect the validity and enforceability of the rest of this
agreement. If any provision or
part-provision of this Contract deleted under this 11.7 the parties shall negotiate in
good faith to agree a replacement provision that, to the greatest extent
possible, achieves the intended commercial result of the original provision.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order or as otherwise made known to the parties.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
(c) This 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9
Language.
This Contract and all correspondence and matters relating to
it shall be made only in the English language.
11.10 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any
rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of the Contract.
11.11
Governing
law. The Contract, and any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection with it or
its subject matter or formation shall be governed by, and
construed in accordance with the law of England and Wales.
11.12
Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection with the
Contract or its subject matter or formation.
