INMAR POST-PURCHASE SOLUTIONS PLATFORM TERMS AND CONDITIONS (USA)

These Terms and Conditions govern your procurement and use of the Platform, as defined below, operated by Inmar Post-Purchase Solutions, LLC (“Inmar”). By executing a Customer Order, you (hereafter “Customer” or “you”) agree to these Terms and Conditions. If you are entering into a Customer Order, including these Terms and Conditions, on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to the terms and conditions hereunder Customer and Inmar hereby agree as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this Section apply in the Agreement.
 

Acceptable Usage Policy	Inmar’s acceptance usage policy in relation to use of the Platform by Customer and its End Users;
Affiliate	in respect of a party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party from time to time;
Agreement	these Terms and Conditions and the Customer Order;
Applicable Law	any (a) legislation (including statute, statutory instrument, treaty, regulation, order, rules, directive, by-law, decree), common law and regulatory requirements; and (b) mandatory directions, codes, guidelines and requirements of any regulator having legal effect;
Business Day	any day which is not a Saturday, Sunday or public holiday;
Confidential Information	information that is proprietary or confidential and is either clearly labelled as such or, given its nature, ought reasonably to be considered confidential, including but not limited to the Platform Documentation;
Contract Year	the twelve (12) month period starting on the Effective Date, and each subsequent twelve (12) month period during the Term;
Control	the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change in Control shall be construed accordingly;
Custom Branding	has the meaning given in Section 3.8;
Customer	the entity identified as the ‘Customer’ in the Customer Order;
Customer Data	means all data which are uploaded to the Platform by Customer pursuant to the Agreement;
Customer Order	the document headed ‘CUSTOMER ORDER’ executed by the parties;
Customer Representative	Customer’s representative as identified in the ‘Parties’ Representatives’ section of the Customer Order;
Data Protection Legislation	all applicable Federal and State data privacy laws, including but not limited to the Children’s Online Privacy Protection Act (COPPA), the California Consumer Privacy Act (CCPA), as well as the Data Protection Act 2018;
Inmar Representative	Inmar’s representative as identified in the ‘Parties’ Representatives’ section of the Customer Order;
Effective Date	the date set out as the ‘Effective Date’ on the Customer Order;
End User	an employee, agent or representative of; Customer; or a Customer Affiliate (or other member of Customer’s or its Affiliate’s organisation) who is permitted to use the Platform Materials under the terms of the Agreement;
Fees	the fees payable by Customer to Inmar under this Agreement;
Force Majeure Event	an event beyond the reasonable control of the relevant party, including flood, fire, explosion, the elements, epidemic, disease, war, civil commotion, terrorist activity, shortage of raw materials, power or fuel, breakdown of plant or machinery, computer, software and hardware failure, or any failure in a communications network;
Infringement Claim	has the meaning given in Section 11.3;
Infringing Material	has the meaning given in Section 11.2;
Initial Term	the period set out in the ‘Initial Term’ section of the Customer Order;
Intellectual Property Rights	patents, trademarks, service marks, trade names, design rights, copyright, database rights, rights in know-how and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights;
Marks	means (i) any trademarks, trade names, service marks, trade dress, logos, URLs and domain names; and (ii) any identifying slogans and symbols, in each case whether or not registered;
Personal Data	has the meaning given in paragraph 1.3 of Schedule 3;
Platform	Inmar’s proprietary hosted retail and logistics software platform, as the same is further described in Schedule 1 (Platform Description);
Platform Documentation	the operating manuals, user instruction manuals, technical literature, Acceptable Usage Policy, and other related supporting materials relating to the Platform, available at http://www.doddle.com/documentation/;
Platform Materials	collectively the Platform and the Platform Documentation;
Professional Services	means ad hoc consultancy and related services that Inmar agree to provide to Customer from time to time which are not provided as part of the Set-Up Services or the Support Services;
Professional Services Agreement	has the meaning given in in Section 5.3;
Services	collectively, the Set-Up Services and the Support Services (and, for the avoidance of doubt, not including any Professional Services);
Set-Up Services	means the initial configuration and implementation services (if applicable) relating to a Customer Order that may be required in order to make the Platform Materials available to Customer, as set out in Schedule 4;
Support Services	has the meaning given in Schedule 2 (Support Services);
Term	has the meaning given in Section 2.1;
Terms and Conditions	these terms and conditions, including the schedules and appendices attached to these terms and conditions;
Virus	anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

 

1.2 Section, schedule and paragraph headings shall not affect the interpretation of the Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.4 Words in the singular shall include the plural and vice versa.

1.5 A reference to one gender shall include a reference to the other genders.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.7 Any negative obligation imposed on any party shall be construed as if it were also an obligation not to permit or suffer the act or thing in question and any positive obligation imposed on any party shall be construed as if it were also an obligation to procure that the act or thing in question be done.

1.8 The words “include” or “including” shall be construed without limitation to the words following.

1.9 A reference to a “party” means Customer or Inmar (as applicable) and “parties” means both of them.

1.10 References to Sections and schedules are to the Sections and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.

1.11 The schedules form part of this Agreement and shall have effect as if set out in full in the body of these Terms and Conditions and any reference to the Agreement shall include the schedules.

1.12 In the event and only to the extent of any conflict between the Sections of these Terms and Conditions, the schedules of these Terms and Conditions and the terms of the Customer Order, the following order of precedence shall apply: firstly, the special terms section of the Customer Order; secondly, the Sections of these Terms and Conditions; thirdly, the schedules of these Terms and Conditions; and fourthly, the terms of the Customer Order other than the special terms section of the Customer Order.

2. COMMENCEMENT AND TERM

2.1 The Agreement shall commence on the Effective Date, continue for the Initial Term and at the end of the Initial Term continue unless or until terminated by either party in accordance with the terms of the Agreement (the “Term”).

2.2 After the expiration of the Initial Term, either party may terminate the Agreement by giving at least thirty (30) days’ prior written notice to the other party.

3. LICENCES AND IPR OWNERSHIP

3.1 All Intellectual Property Rights in the Platform Materials shall belong to and remain the sole and exclusive property of Inmar. All Intellectual Property Rights in any modifications to the Platform Materials, whether made by or on behalf of Inmar independently of the Agreement, pursuant to its terms or otherwise in the course of the Agreement, shall belong to and remain the property of Inmar.

3.2 As between Inmar and Customer, all Intellectual Property Rights in the Customer Data shall be owned by Customer. Inmar shall have a perpetual, royalty-free, non-exclusive license to use Customer Data to perform the Services and to aggregate, or otherwise manipulate or create derivative works from, Customer Data in a form that is not identifiable to Customer.

3.3 Subject to payment by Customer of the Fees and the terms of the Agreement, Inmar hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable and revocable licence during the Term for Customer (and its End Users, if applicable) to use the Platform Materials solely as follows:

1. subject in each case to any additional restrictions or limitations contained in the Customer Order:
   1. to remotely access and use the Platform in accordance with the Platform Documentation for the internal business purposes of Customer; and
   2. to make and use only such number of copies of the Platform Documentation as is reasonably necessary for Customer’s use of the Platform in accordance with the Agreement (provided that such copies and the media on which they are stored shall be the property of Inmar and Customer shall ensure that all such copies bear the Inmar’s proprietary notices).

3.4 Inmar and its licensors reserve any and all rights (including Intellectual Property Rights) in and to the Platform Materials other than the limited licence rights expressly granted in the Agreement. For the avoidance of doubt and without limitation, the licences granted under Section 3.3 do not permit Customer to:

1. grant any sub-licence to the Platform Materials to any person; or
2. use itself or grant any sub-licence to the object code or source code of the Platform, which shall remain hosted by or on behalf of Inmar at all times;

3.5 Customer shall ensure that all End Users are aware of Customer’s obligations under this Agreement and comply with the applicable terms of the Agreement (including the Acceptable Usage Policy) at all times when using the Platform Materials.

3.6 Customer shall be responsible for all acts and omissions of End Users during their usage of the Platform Materials and any such act or omission that would breach the terms of the Agreement had the same been undertaken by Customer shall be deemed to be a breach by the Customer of the relevant provision(s) of the Agreement.

3.7 Except to the extent such activities are either expressly agreed by the parties or otherwise prohibited from being restricted by Applicable Law, Customer shall not, and shall procure that no party to which Customer grants access to the Platform Materials shall not:

1. copy, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Platform Materials;
2. copy, frame or mirror any part of the Platform;
3. reverse engineer, decompile, translate, disassemble or attempt to discover any source code or underlying ideas or algorithms in the Platform or the software (or any part of it) that is used to provide the Platform;
4. observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Platform;
5. access the Platform to copy its features, functions or graphics to develop a competing platform or software;
6. use, or authorise or permit any other person to use, the Platform Materials in any manner which infringes any law or regulation, or which infringes the rights of any third party under the laws of any jurisdiction;
7. post, link to or transmit, or allow posting, linking or transmission by any third party through the Platform, any material, which is unlawful, threatening, libellous or otherwise tortious, abusive, malicious, defamatory, obscene, pornographic, or that contains a Virus or other hostile computer program, or which constitutes, or encourages the commission of, a criminal offence, or which infringes any right of any person which may subsist;
8. use the Platform or allow the transfer, transmission, export, or re-export, of the Platform or portion thereof, in violation of any applicable export control laws or regulations;
9. use the Platform Materials for any purpose which is reasonably likely to bring the businesses of Inmar into disrepute;
10. interfere or attempt to interfere with the integrity of the Platform Materials; or
11. attempt to gain access to third-party data contained on the Platform.

3.8 Where the Platform Materials are to be branded utilising the Marks of Customer as described in such Customer Order (“Custom Branding”):

1. Customer grants to Inmar and Inmar’s Affiliates during the Term a limited, world-wide, non-exclusive, non-transferable, non-sublicensable (save to Inmar’s subcontractors) licence to use the Custom Branding (including any trademarks or other Intellectual Property Rights subsisting therein), solely to the extent necessary for Inmar and Inmar’s Affiliates to provide a rebranded version of the Platform Materials for use by Customer and its End Users and such related uses reasonably required by Inmar to discharge its obligations under the Agreement; and
2. as between Inmar and Customer, Customer and/or its licensors shall retain all right, title and interest in and to the Custom Branding and related Intellectual Property Rights, and nothing contained herein shall confer on Inmar or Inmar’s Affiliates any right, title or interest in or to the same, except as set forth in Section 3.8(a).

4. PROVISION OF THE PLATFORM

4.1 Inmar agrees that the Platform will:

1. comply with the description of the Platform set out in Schedule 1;
2. comply with the Platform Documentation, as the same may be updated by Inmar from time to time; and
3. meet the security requirements set out in the Platform Documentation.

4.2 Inmar shall make available to Customer:

1. any login details, password or other form of access credentials required by Customer’s End Users to access the Platform; and
2. any login details, password or other form of access credentials required by Customer to access the Platform and if applicable, provide the first-line technical support to Customer’s End Users as further described in Schedule 2 (Support Services).

4.3 Inmar will use all reasonable endeavours to ensure the Platform is available during the Term in accordance with Schedule 2 (Support Services), but Inmar does not warrant or represent that access to the Platform will be uninterrupted or error free.

4.4 Without prejudice to Inmar’s rights pursuant to Section 12, Inmar may, at its sole and exclusive determination, immediately suspend Customer’s or any End User’s access to the Platform if Inmar, acting reasonably, determines:

1. Customer and/or its End Users are in breach of the Acceptable Usage Policy;
2. Customer is in breach of the terms of the Agreement and such breach has had (or is reasonably likely to have) an adverse impact on:
   1. the performance of Inmar’s IT systems;
   2. the security of Inmar’s IT systems and the security of Inmar’s other customers and their data; and/or
   3. Inmar’s Intellectual Property Rights.

4.5 Inmar shall notify Customer in writing of any such suspension pursuant to Section 4.4, and the same shall continue until the factors giving rise to the suspension have been remedied to Inmar’s reasonable satisfaction. Such suspension shall not place Inmar in breach of its obligations to provide the Platform in accordance with the Agreement and shall not relieve Customer from paying the Fees in accordance with the terms of the Agreement. Inmar shall use reasonable endeavours to provide Customer with such information it is aware of to expedite the remedy the factors giving rise to the suspension.

4.6 Inmar does not warrant or represent that the Platform will be compatible or interoperable with any software, hardware or service other than as expressly set out in the Platform Documentation or the Customer Order.

5. PROVISION OF THE SERVICES

5.1 Inmar may (if required by the Customer) provide the Set-Up Services set out in Schedule 4.

5.2 Following successful completion of the Set-Up Services, Inmar shall provide the Support Services for the remainder of the Term.

5.3 Where Inmar and Customer agree that Inmar shall provide Professional Services to Customer from time to time, Inmar and Customer shall enter into a separate agreement for the provision of Professional Services (“Professional Services Agreement”).

5.4 Inmar shall provide all Services with commercially reasonable care and skill.

5.5 Customer shall:

1. cooperate with Inmar in all matters relating to the Services;
2. appoint a manager for the Services, such person as identified in the Customer Order; and
3. provide to Inmar, in a timely manner, all documents, information, items and materials in any form as may be reasonably required by Inmar in connection with the Services and ensure that they are accurate and complete.

5.6 If Inmar’s performance of the Services is prevented or delayed by any act or omission of Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Inmar may at its option:

1. extend of time to perform its obligations equal to the delay caused by Customer; and/or
2. charge additional Fees in accordance with Inmar’s then-current rate card (as notified by Inmar to the Customer from time to time) equal to the duration of the delay and/or for the additional Services that need to be performed as a result of such delay caused by Customer.

6.0 FEES

6.1 In respect of each Customer Order, Customer shall pay the Fees, as may be applicable, to Inmar for Platform Materials and Services as set out in the Fees section of the Customer Order.

6.2 Any and all expenses, costs and charges incurred by Customer in the performance of its obligations under the Agreement shall be paid by Customer unless Inmar has expressly agreed beforehand in writing to pay such expenses, costs and charges.

6.3 The invoicing frequency and billing arrangements, as may be applicable, will be set out in each Customer Order.

6.4 Customer shall pay the full amount invoiced to it by Inmar in United States Dollars within thirty (30) days of the date of invoice (unless stated otherwise in the Order Form) via ACH debit transmission.

6.5 All amounts due under the Agreement, if any, shall be paid by Customer to Inmar in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). To the extent amounts are subject to withholding tax as required by law, Customer will reimburse Inmar in full for any such withheld amounts. Inmar shall provide Customer with reasonable assistance as it may require to recover the same.

6.6 All payments required hereunder are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and other similar charges. Payment of such taxes and other charges (excluding any taxes based upon Inmar’s income) shall be Customer’s sole responsibility.

6.7 Customer shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, resale or other distribution of the Platform Materials.

6.8 If Customer fails to make any payment due to Inmar under the Agreement by the due date for payment, then, without limiting Inmar’s remedies under Section 12:

1. Customer shall pay interest on the overdue amount at the rate equal to the greater of 1.5% per month or the maximum rate permitted by law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount; and
2. subject to applicable legal requirements, Inmar may, in its ultimate discretion, suspend the Customer’s use of the Platform Materials and provision of the Services.

Deposit

6.9 If requested by Inmar, the Customer shall pay a deposit to Inmar as set out in the Customer Order. Such deposit shall be payable in advance of the Customer go live date via ACH debit transmission.

6.10 The deposit shall be returned to the Customer on termination or expiry of the Agreement, subject to any deductions by Inmar for unpaid Fees.

7.0 WARRANTIES AND REPRESENTATIONS

7.1 Each party warrants and represents to the other party that:

1. it has obtained and shall continue to maintain in effect all rights, licences, approvals, consents and authorisations to enter into, and comply with the terms of, the Agreement; and
2. without affecting its other obligations under the Agreement, it shall comply with all Applicable Law in the performance of its obligations under the Agreement.

7.2 Except as otherwise EXPRESSLY provided in this Agreement, Inmar disclaims all warranties, express or implied, regarding the PLATFORM MATERIALS OR THE services provided by INMAR, including, but not limited to, any warranty that such PLATFORM MATERIALS OR services will be uninterrupted or error free and any warranty arising from a course of dealing, usage, or trade practice. Except as otherwise provided in this Agreement, the PLATFORM MATERIALS AND services provided by Inmar are provided “as is” without warranty of any kind.

8. CONFIDENTIALITY

8.1 Each party may have access to Confidential Information of the other party under the Agreement. A party’s Confidential Information shall not include information that:

1. is or becomes publicly known through no act or omission of the receiving party; or
2. was in the other party’s lawful possession prior to the disclosure; or
3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

8.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by order of a court of competent jurisdiction or by law, and upon prior written notice of the nature and scope of such a request to the non-disclosing party, shall not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

8.3 Each party agrees to take all reasonable steps to ensure that the other Party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

8.4 The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that each Party may, without waiving any other rights or remedies, seek injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

8.5 This Section 8 shall survive termination of the Agreement for any reason.

9. DATA PROTECTION

9.1 The parties agree the provisions of Schedule 3 (Data Protection) shall apply.

10. LIMITATION OF LIABILITY

10.1 Nothing in the Agreement excludes or limits the liability of:

1. either party for fraud or fraudulent misrepresentation, or in respect of any other liability which cannot by law be limited or excluded; or
2. Customer for any breach of Section 3, 6 and/or 15.

10.2 SUBJECT TO SECTION 10.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.

10.3 Subject to Sections 10.1, 10.2 and 10.4, each party’s total aggregate liability to the other party under or in connection with the Agreement whether under contract, tort (including negligence), breach of statutory duty or otherwise, shall not in any Contract Year exceed 100% of the Fees paid by Customer to Inmar in that Contract Year.

10.4 Subject to Section 10.1, the parties agree that the limitations described in Section 10.3 shall not apply to:

1. a breach by either party of Section 8 (Confidentiality) save as described in Section 10.5; or
2. either party’s indemnification obligations in Section 11 (Indemnities).

10.5 Where any event giving rise to a breach of Schedule 3 (Data Protection) also breaches any of the obligations in Section 8 (Confidentiality), Section 10.4(a) shall not apply to such breach of Section 8 (Confidentiality) and the same shall be subject to the limitations set out in Section 10.2 (as applicable).

10.6 For the avoidance of doubt, in no circumstances shall Inmar have any liability to the Customer for any losses arising out of or in connection with information and/or confirmation provided by the Customer to Inmar during the account set up and onboarding phase prior to the Platform going live for consumers, as further detailed in paragraph 2 of Schedule 4.

11. INDEMNITIES

11.1 Except as otherwise limited herein, Inmar shall defend, indemnify, and hold harmless Customer and its officers, directors, and employees from and against any and all Expenses that are made against or incurred by Customer in connection with a third party claim of infringement of copyright, trademark, or patent based solely and exclusively on Customer’s use of the Platform Materials as delivered or Services as provided by Inmar under this Agreement.  Inmar shall not have any liability to Customer for any claim of infringement or other violation of a third party right that is based in any way upon (i) the use by Customer of such Platform Materials or Services that is not in accordance with the terms and conditions of this Agreement, (ii) the modification of any Platform Materials or Services by Customer or any third party, (iii) the operation or use of the Platform Materials or Services in combination with apparatus, data, software, service, computer programs, or other components or software not furnished by Inmar; or (iv)  the use of the Platform Materials or Services after Customer has received notice of such infringement or other violation, and Inmar has offered a replacement, modification or refund therefor, or (v) compliance with an industry standard or communication protocol. The foregoing indemnification obligations shall not apply to the extent any Expenses are caused by the acts or omissions of Customer, its officers, directors, or employees.

11.2 Customer shall, and shall procure that:

1. the Customer Data does not breach Applicable Law;
2. neither the Customer Data nor any Custom Branding infringes any third-party Intellectual Property Rights; and
3. the Customer Data does not contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous (together “Infringing Material”).

11.3 If either party becomes aware of any claim or potential claim relating to any Infringing Material (“Infringement Claim”), that party will immediately notify the other in writing specifying the particulars of the alleged infringement or unauthorised use.

11.4 Inmar shall have the right to remove any Infringing Material from the Platform without the need to further consult Customer. Where this Section 11.4 applies:

1. Inmar shall be relieved from any obligations to make the Infringing Material available to Customer in conjunction with the Platform Materials; and
2. where applicable, and at Customer’s request, Inmar will change the Custom Branding as it is applied to the Platform Materials in accordance with Customer’s instructions, subject to Customer agreeing to reimburse Inmar’s reasonable charges for doing so.

11.5 Customer shall indemnify, and keep Inmar and its Affiliates, indemnified at all times from and against any and all losses, claims, liability, costs, damages, fines or expenses (including reasonable legal costs) that are incurred, suffered or threatened against Inmar and its Affiliates arising out of or in connection with any Infringement Claim (“Inmar Losses”).

11.6 The Indemnitee shall notify the Indemnitor promptly in writing after obtaining knowledge of the existence or commencement of any claim. The Indemnitor shall assume the defense and settlement of such claim, with counsel reasonably satisfactory to the Indemnitee, at the Indemnitor’s sole risk and expense. The Indemnitee may join in the defense and settlement of such claim and employ counsel at its own expense and shall reasonably cooperate with the Indemnitor in the defense and settlement of such claim.

11.7 The Indemnitor may settle any claim without the Indemnitee’s written consent unless such settlement (i) does not include a release of all covered claims pending against the Indemnitee; (ii) contains an admission of liability or wrongdoing by the Indemnitee; or (iii) imposes any liability or material obligations upon the Indemnitee other than an obligation to stop using any infringing items.

12. TERMINATION

12.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

1. the other party commits any material breach of the Agreement and which shall not have been remedied within thirty (30) days from receipt of a written notice from the innocent party specifying the material breach in reasonable detail and requiring the other party to remedy such breach;
2. an order is made, or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
3. the other party files for bankruptcy or a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
4. the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
5. the other party ceases, or threatens to cease, to conduct business; or
6. the other party takes or suffers any similar or analogous action as (b)-(e) in any jurisdiction in consequence of debt.

12.2 Without prejudice to any other rights or remedies to which Inmar may be entitled, Inmar may terminate the Agreement with immediate effect by giving written notice to Customer if:

1. Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
2. there is a change in Control of Customer involving an entity that Inmar regards as a competitor; or
3. Customer breaches clause 3.3.

12.3 On termination of the Agreement for any reason:

1. except as otherwise set out in the Agreement, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
2. Inmar shall return or delete in accordance with paragraph 2.12(a) of Schedule 3 any Personal Data processed by Inmar pursuant to the Agreement;
3. except as provided for in Section (b), Inmar shall for a period of thirty (30) days from the date of termination make available for download by Customer a full copy of the latest back-up of Customer Data maintained by Inmar and, following such thirty (30)day period, Inmar shall destroy as soon as reasonably practicable all copies of such data in its possession or control except to the extent strictly necessary to comply with Inmar’s legal or regulatory obligations;
4. Customer shall immediately pay all Fees incurred prior to the date of termination; and
5. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

13. AUDIT

13.1 Customer shall grant to Inmar, its agents and representatives, and to any statutory or regulatory auditors of Inmar, the right of access to any of Customer’s premises, systems, personnel and records as Inmar may reasonably require during normal business hours on at least seven (7) days’ notice (unless such audit is for reasons of suspected fraud or non-compliance with agreed security requirements) in order to verify Customer’s compliance with the terms of the Agreement, any legal or regulatory requirements on it or on Inmar and/or to fulfil any request by a regulator in the course of carrying out its regulatory functions.

13.2 If any audit or other inspection by or on behalf of Inmar demonstrates any non-compliance by Customer with its obligations pursuant to the Agreement, Customer shall, without prejudice to any other rights and remedies Inmar may have: (a) remedy the cause of such non-compliance as soon as reasonably practicable; and (b) promptly refund Inmar all costs and expenses relating to such audit or inspection (including those of third party advisers).

14. FORCE MAJEURE

14.1 Notwithstanding any other provision of the Agreement, neither party shall have any liability to the other party for the performance of its obligations under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement by a Force Majeure Event.

14.2 As soon as reasonably practicable after becoming aware of a Force Majeure Event the party affected by the Force Majeure Event shall notify the other party, providing reasonable details of the Force Majeure Event, its impact on that party’s obligations under the Agreement and its anticipated duration. If the period of delay or non-performance continues for six months or longer, the party not affected may terminate the Agreement by giving 30 days’ written notice to the other party.

14.3 Nothing in this Section 14 shall relieve Customer from its obligations to pay the Fees as described in the Agreement.

15. COMPLIANCE WITH APPLICABLE LAWS

15.1 At all times relevant to the performance or this Agreement, each party shall comply with all Applicable Laws. (“Relevant Requirements”).

15.2 Each party shall:

1. not commit any act or omission which causes or could cause the other party and/or its Affiliates to breach, or commit an offence under, any Relevant Requirements;
2. have and shall maintain in place throughout the Term its own policies and procedures, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
3. keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with the Agreement and the steps it takes to comply with this Section.

15.3 Each party shall ensure that any person associated with it who is performing activities in connection with the Agreement (“Associated Person”) is required to abide by the Relevant Requirements.

16. ASSIGNMENT

16.1 Save as set out in Section 16.2, neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

16.2 Inmar shall have the right to subcontract the exercise of its rights and performance of its obligations under the Agreement to third parties, and to also assign, novate or otherwise transfer any of its rights and/or obligations under the Agreement to:

1. an Affiliate, as part of a bona fide reconstruction or amalgamation; or
2. any person as part of a sale of its business or a substantial part thereof.

17. NO PARTNERSHIP OR AGENCY

17.1 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

18. THIRD PARTY RIGHTS

18.1 The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns).

19. ENTIRE AGREEMENT

19.1 The Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

19.2 Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) (‘Representation’) other than as expressly set out in the Agreement.

19.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

20. NOTICES

20.1 Subject to Section 20.2 any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Customer Order (or such other address as may have been notified by that party for such purposes).

20.2 Inmar may give notice by email to Customer of any changes to the list of third party sub-processors engaged by Inmar shown in paragraph 4 of Schedule 3 (Data Protection).

20.3 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. Notices sent by email pursuant to Section 20.2 shall be deemed to have been received at the time the email enters the information system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender.

21. FURTHER ASSURANCE

21.1 Each party will at the request of the other party at its own costs do (or procure others to do) everything necessary to give the other the full benefit of the Agreement.

22. GOVERNING LAW

22.1 The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the State of Delaware.

Schedule 1 - Platform description

1. OVERVIEW

1.1 The Inmar platform includes a suite of capabilities for Customers that enables end-to-end management of their consumer returns experience.

2. MERCHANT INTEGRATION

2.1 Integrations to enable data flows between the Customer E-commerce platform(s) and Inmar. Integrations may be delivered by Inmar API, Secure FTP, or E-Commerce plugins where made available by Inmar.

3. CONSUMER RETURNS PORTAL

3.1 Features and functionality which allow a Customer’s consumers to manage their returns, including, but not limited to, booking a return, generation of a returns label, receipt of notifications, and tracking of returns status.

4. MERCHANT ADMINISTRATION

4.1 Features and functionality which allow merchants to configure and manage their returns processes, including, but not limited to, customization of the Consumer Returns Portal, reporting and statistics, tracking and insights, and user management.

Schedule 2 - Support Services

1. INCORPORATION AND INTERPRETATION

1.1 This Schedule sets out the terms and conditions under which Inmar will provide the Support Services.

1.2 In addition to the definitions set out in Section 1.1 of the Agreement, the following terms shall be defined as set out below:
 

Available	means the Platform is operating in its hosted environment in material compliance with the Platform Documentation and is responding to requests received from the applicable remote website performance and availability monitoring tool used by Inmar (and “Availability” shall be construed accordingly).
Availability Service Level	means the Service Level set out in paragraph 5.1 of this Schedule 2 that sets out the minimum percentage of time during a Measurement Period excluding Permitted Downtime during which the Platform must be Available.
Correction	has the meaning given in paragraph 4.3 of this Schedule 2.
Fault	means a reproducible fault or error in the Platform which hinders or prevents an End User from using the functionality of the Platform.
Fault Classification	has the meaning given in paragraph 4.2 of this Schedule 2.
Initial Response	means following submission of a Fault Report by Customer the initial response from Inmar to Customer acknowledging the Fault Report and confirming the applicable Fault Classification.
Measurement Period	means a whole calendar year during the Term.
Permitted Downtime	means the times when the Platform is not Available for use due to (i) maintenance by Inmar which is notified by Inmar to Customer in advance; and (ii) emergency maintenance required to address any urgent security update(s).
Service Levels	means the Availability Service Levels and the Initial Response Service Levels.
Support Services	means the maintenance and support services to be provided by Inmar in accordance with this Schedule.
Target Initial Response Time	means the applicable target time listed in paragraph 4.2 of this Schedule for Inmar to deliver an Initial Response to Customer, measured from the point a Fault Report is submitted by Customer to Inmar

 

2. SUPPORT SERVICES

2.1 Inmar will provide the Support Services in accordance with the Service Levels.

2.2 The Support Services shall comprise the following:

1. operating and maintaining the Platform;
2. operating the Inmar helpdesk; and
3. providing such other Support Services as agreed in writing between Inmar and Customer from time to time.

3. PLATFORM SUPPORT SERVICES

3.1 In providing the Support Services to Customer Inmar shall:

1. monitor the performance of the Platform except during Permitted Downtime, to ensure that the Platform is operational and Available in accordance with the Service Levels;
2. ensure that Faults are responded to and diagnosed within the applicable notification times (under paragraph 5.1 of this Schedule) and use reasonable endeavours to resolve Faults in accordance with paragraph 4.3 of this Schedule;
3. establish the Inmar helpdesk to enable Inmar to fulfil its commitments relating to the classification, acknowledgment and resolution of Faults as described in this Schedule.

4. FAULT IDENTIFICATION AND RESOLUTION

4.1 In the event that Customer identifies a Fault in the Platform, Customer shall submit a report describing the Fault as concisely and clearly as possible (a “Fault Report”) via email to the Inmar helpdesk.

4.2 Within the applicable Target Initial Response Time, Inmar shall:

1. assign a fault classification to the Fault in accordance with the criteria in the table below (a “Fault Classification”);

 

Fault Classification	Description
Priority 1	Platform is unresponsive. Customer and/or its End Users are unable to access interface. Where a workaround is available and implemented the bug will be downgraded to Priority 2 or 3 and be corrected within those timelines.
Priority 2	Major functional or major cosmetic defect in the Platform which impacts the majority of the functionality of the Platform. Where a workaround is available and implemented the bug will be downgraded to Priority 3 and be corrected within those timelines.
Priority 3	All elements of the Platform can function, however there are minor cosmetic defects with no functional impact and with no impact on Customer and/or its End Users’ use of the Platform.

 

and

1.  
2. provide an Initial Response by notifying Customer of the Fault Classification in response to the Customer’s Fault Report.

4.3 Following the assignment of a Fault Classification, Inmar shall use reasonable endeavours to resolve the Fault by producing a repair or workaround for the Platform (a “Correction”) as soon as reasonably practicable. Such Correction may take the form of:

1. an updated version of the Platform; or
2. a reasonable work-around and accompanying instructions to Customer which if followed, will prevent the Fault from re-occurring.

4.4 Inmar shall inform the Customer once the updated version of the Platform is available, or when the workaround is available.

5. SERVICE LEVELS

5.1 The Service Levels are as follows:

 

Fault Classification	Target Initial Response Time
Priority 1	Within 2 Hours
Priority 2	Within 1 Business Day
Priority 3	Within 5 Business Days
Availability Service Level
99.5%

 

5.2 Inmar shall be relieved of its failure to meet the Service Levels in respect of any Fault to the extent that such Fault is caused by:

1. any breach of the Agreement by Customer and/or any End User, including any use of the Platform other than in accordance with the Platform Documentation;
2. any suspension of Customer’s and/or any End User’s access to the Platform;
3. deficiencies, bugs or errors in any data uploaded to the Platform by Customer and/or any End User;
4. any failure due to any internet connectivity or any telecommunications network;
5. any failure by any subcontractor of Inmar (including Amazon Web Services and/or any email service provider); and/or
6. Inmar following any instructions given by Customer and/or any End User.

Schedule 3 - Data protection

1. In this Schedule 3:

1.1 “Cloud Provider” means a service provider that offers its customers storage or software services that are accessible via the Internet and its affiliates and sub-processors;

1.2 “Data Protection Legislation” means all applicable Federal and State data privacy laws, including but not limited to the Children’s Online Privacy Protection Act (COPPA), the California Consumer Privacy Act (CCPA), as well as the Data Protection Act 2018 (UK GDPR) and

1.3 “Personal Data” means all personal data or personal information, as those terms are defined by Data Protection Legislation, that is provided by Customer to Inmar in connection with the Platform and Services, including Customer Data.

1.4 references to “process(ing)”, “data subject”, “controller”, “processor”, and “pseudonymisation” shall have the meanings given to them in the Data Protection Legislation.

2. Where Inmar processes Personal Data under this Agreement, the parties agree that:

2.1 Customer is the controller and Inmar is the processor, as defined in the UK GDPR;

2.2 Customer is the business and Inmar is the service provider, as defined in the CCPA;

2.3 Inmar shall process Personal Data only as described in the Agreement and only to the extent and in such a manner as is necessary to perform its obligations under the Agreement or as otherwise required to comply with Applicable Law;

2.4 Inmar shall implement appropriate technical and organisational measures designed to ensure a level of security appropriate to the data security risks presented by processing of such Personal Data, including against the risk of accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, and/or access to, any Personal Data. Such appropriate technical and organisational measures may include:

1. pseudonymisation and encryption of Personal Data; and
2. measures designed to (i) enable the ongoing confidentiality, integrity, availability and resilience of processing systems and services, and (ii) restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident.

2.5 Inmar shall ensure that access to the Personal Data is limited to the personnel of Inmar and/or its sub-processors:

1. who are subject to confidentiality commitments with respect to such Personal Data; and
2. whose access to and/or processing of the Personal Data is required in order to provide the Platform Materials and/or the Services to Customer in accordance with the Agreement,
3. and not further disclosed except as necessary to comply with Applicable Law or a valid and binding order of a governmental body;

2.6 Inmar shall notify Customer of Inmar:

1. receiving any queries or requests from a data subject (including those relating to rights of access, rectification, erasure, portability, and the right to restrict or object to certain processing), regulator or any other supervisory authority it may receive in relation to any Personal Data; and/or
2. becoming aware of any loss, damage, destruction, or unauthorised processing or accidental disclosure of Personal Data and provide reasonable assistance in relation thereto, as may be required by the Data Protection Legislation with respect to the notification to and subsequent correspondence with regulators, supervisory authorities and data subjects;

2.7 Inmar shall provide reasonable assistance to Customer to conduct privacy impact assessments (and any related consultations) where required under Data Protection Legislation, subject to Customer reimbursing Inmar’s reasonable charges in doing so;

2.8 Inmar may provide Personal Data to the third party sub-processors described in paragraph 4 and such sub-processors may process Personal Data on Inmar’s behalf. Inmar will not engage any other sub-processor to process Personal Data provided by Customer without obtaining Customer’s consent to the extent required by Data Protection Legislation;

2.9 where Inmar uses sub-processors to process the Personal Data on Inmar’s behalf, Inmar shall contractually require any such sub-processor to be engaged by under a written agreement to comply with data protection obligations that are materially equivalent as those described in this Schedule 3. For Cloud Providers and similar commonly engaged vendors over whom Inmar exercises little control, the foregoing obligation shall be deemed satisfied if the vendor maintains and publishes industry standard information security policies;

2.10 subject to Customer reimbursing Inmar’s reasonable charges for doing so, Inmar will:

1. provide such information reasonably requested by Customer to demonstrate Inmar’s compliance with the obligations as set forth in this paragraph 2; and
2. in respect of any person having regulatory or supervisory authority in relation to the processing of Personal Data under the Agreement (“Regulator”), contribute to any audits being mandated by such Regulator; and

2.11 Inmar shall allow for and contribute to audits, including inspections, conducted by the Customer or a mutually agreed upon third party auditor who has executed a confidentiality agreement with Inmar to demonstrate Inmar’s compliance with its obligations set out in this paragraph 2 provided that any audit and/or inspection in respect of the Cloud Provider’s security measures and/or its physical data centres shall be limited to Inmar requesting an audit report produced by the Cloud Provider’s independent third party auditors;

2.12 when Inmar ceases to provide services relating to the processing of Personal Data pursuant to the Agreement:

1. at the Customer’s option (and provided that the Customer notifies Inmar of such option within 60 days of termination of the Agreement for any reason), delete or return to the Customer all Personal Data in Inmar’s possession or control that relates to the Agreement and Inmar shall comply with any such request within 30 days of the applicable request; and
2. subject to paragraph (a) promptly and in any event within 90 days of the termination of the Agreement for any reason delete all copies of the Personal Data in Inmar’s possession or control that relates to the Agreement except insofar as Inmar is required by Applicable Law or its standard document retention practices to continue to store such copies.

3. Customer warrants that:

3.1 it has provided (or will provide) all necessary notices to data subjects whose Personal Data comprises part of the Personal Data processed by or on behalf of Inmar in connection with the Agreement; and

3.2 it has (or will have) one or more valid grounds for Inmar’s (and any of Inmar’s sub-processors’) processing of the Personal Data in accordance with the Agreement, so that Inmar’s processing of the Personal Data in accordance with the Agreement will comply with the Data Protection Legislation.

4. Inmar may use the following sub-processors to process Personal Data provided by Customer under the Agreement:

4.1 third party sub-processors engaged by Inmar and set out at http://www.doddle.com/documentation/ (as such list is updated from time to time by Inmar on written notice to Customer in accordance with Section 20.2);

4.2 the third party sub-processors engaged by the Cloud Provider listed at https://aws.amazon.com/compliance/sub-processors/ (as such list is updated from time to time by the Cloud Provider, provided that the Cloud Provider will update such list for any addition or replacement of any sub-processor at least 30 days before such change takes effect); and

4.3 such other third-party sub-processors engaged by Inmar as described in the applicable Customer Order.

Schedule 4 - seT-up sERVICES

1. Set-up and Onboarding:

1.1 Inmar will assist the Customer with the setup of its account on the Platform.

1. Inmar and the Customer may complete an initial kick-off call to discuss on-boarding requirements and next steps.
2. Inmar shall provide the Customer with all necessary on-boarding documentation.
3. Inmar shall provide the Customer with technical support and end-to-end testing assistance to confirm integration is completed prior to the Customer go-live date.
4. After the Customer is live, Inmar shall transition the Customer to an Inmar Customer Success Manager for continued support.

2. Customer Responsibilities:

1. Attend Inmar kick-off call with a member of their development team.
2. Complete and verify the Inmar account build-out via the Platform, including providing details of delivery options to be offered to consumers and embedded on the Platform, and be responsible for confirming those delivery options are accurate prior to go live.
3. Complete Inmar technical configuration and testing and submit results to Inmar for review.
4. Maintain, monitor, and manage Inmar Platform account.
5. Contact Inmar with any inquiries or updates.