Terms & Conditions

 

1. THE CONTRACT

1.1       Our agreement (the “Contract”) is made up of the following documents (which shall apply in the following order of priority in the event of any conflict between them):

1.1.1    Your Order

1.1.2    These Terms

1.1.3    The Service Level Agreement

1.2       This Contract is the entire agreement between us. No other terms, conditions or warranties are included in the Contract. This Contract supersedes any prior agreements, arrangements, understandings and representations (whether oral, written or otherwise) made by or between us.

1.3       The Customer has not relied on any representation made by KhooCommerce unless that representation is expressly included in this Contract.

2. DEFINITIONS

2.1       In this Contract, the following expressions shall have the following meanings:

2.1.1    Additional Services has the meaning set out in clause 5.1.

2.1.2    Business Hours means the hours between 9:00 and 17:00 between Monday and Friday, excluding public holidays, in the United Kingdom.

2.1.3    Contract has the meaning set out in clause 1.1.

2.1.4    Customer means the customer identified in the Order.

2.1.5    Fees means the Setup Fee and the Monthly Fee identified in the Order.

2.1.6    Insolvent has the meaning set out in clause 7.6.

2.1.7    KhooCommerce means Khoo Commerce Limited (company number 13933401).

2.1.8    Minimum Term means the duration of the minimum term as identified in the Order, beginning on the date that the first Monthly Fee becomes due.

2.1.9    Monthly Fee means the monthly fee from time to time as identified in the Order.

2.1.10  Order means the KhooCommerce Order Form signed by the Customer.

2.1.11  Services means the services identified as being included in the Order.

2.1.12  Setup Fee means the setup fee identified in the Order.

3. OUR OBLIGATIONS

3.1       KhooCommerce will use reasonable care and skill in providing the Services to the Customer.

3.2       KhooCommerce gives the warranties set out in the Service Level Agreement. Save as provided for the Service Level Agreement the Customer shall have no other rights or entitlements in respect of any breach of the Service Level Agreement or this clause 3.2.

4. YOUR OBLIGATIONS

4.1       The Customer will provide KhooCommerce any information and co-operation reasonably required by KhooCommerce for the provision of the Services.

4.2       The Customer will take reasonable security precautions in connection with its use of the Services.

4.3       The Customer will not use the Services for any illegal or improper uses or in a way which breaches another person’s rights, including copyright or other intellectual property rights.

4.4       The Customer will be liable for and will pay the Fees as follows:

4.4.1    100 per cent (100%) of the Setup Fee is due and payable on the date that this Contract is agreed.

4.4.2    The Monthly Fee is due from the date that the Customer begins to use the Services (or such other date as agreed by the parties) and every calendar month thereafter. KhooCommerce has the right to increase the Monthly Fee on an annual basis in line with CPI.

4.4.3    The Monthly Fee will be invoiced monthly and is payable within 30 days of the date that it is invoiced.

4.5       In the event that the Customer fails to make any payment that is due KhooCommerce will charge interest on the outstanding sum at the rate of four per cent (4%) above the prevailing Bank of England Base Rate. 

5. ADDITIONAL SERVICES

5.1       The Customer may request a change to the scope of the Service or request additional services from KhooCommerce (in either case, the “Additional Services”). In the event of such a request:

5.1.1    KhooCommerce will agree the scope of the Additional Services with the Customer in writing.

5.1.2    KhooCommerce will agree a fee in writing for the Additional Services. That fee may be a one-off fee, an additional monthly fee, or both.

5.2       Unless and until KhooCommerce receives the Customer’s written agreement to the Additional Services, KhooCommerce shall have no obligation to carry out the Additional Services.

5.3       Any Additional Services shall be subject to these Terms and the Service Level Agreement.

6. SUSPENSION

6.1       KhooCommerce has the right to suspend its provision of the Services in the event that the Customer is in breach of this Contract (including through the non-payment of any Fees or interest due).

6.2       Where the Customer’s breach is capable of remedy, before KhooCommerce is entitled to suspend in accordance with clause 6.1, KhooCommerce must give the Customer a written notice specifying the Customer’s breach and providing the Customer an opportunity to remedy the breach. In the event that the breach is not remedied within seven (7) days of the notice, KhooCommerce is entitled to suspend the Services.

6.3       Where KhooCommerce suspends the Services in accordance with this clause 6, KhooCommerce shall have no liability to the Customer in respect of any suspension of the Services.

7. TERMINATION

7.1       The Contract commences on the date that the Order is signed and will continue until it is terminated.

7.2       The Customer may terminate this Contract by giving 90 days’ notice of termination to KhooCommerce (provided that no such notice is to be given for the duration of the Minimum Term).

7.3       The Customer also has the specific rights of termination that are set out in the Service Level Agreement.

7.4       KhooCommerce may terminate the Contract as follows:

7.4.1    immediately if the Customer is Insolvent.

7.4.2    by giving 30 days’ notice of termination to the Customer (provided that no such notice is to be given for the duration of the Minimum Term).

7.5       In the event that the Contract is terminated the Customer will remain liable for any Fees that are due.

7.6       For the purposes of these Terms:

7.6.1    a company becomes Insolvent:

7.6.1.1 when it enters administration within the meaning of Schedule B1 to the Insolvency Act 1986;

7.6.1.2 on the appointment or an administrative receiver or a receiver or manager of its property under Chapter I of Part ill of that Act, or the appointment of a receiver under Chapter II of that Part

7.6.1.3 on the passing of a resolution for voluntary winding-up without a solvency under section 89 of that Act: or

7.6.1.4 on the making of a winding-up order under Part IV or V of that Act.

7.6.2    a partnership becomes Insolvent:

7.6.2.1 on the making of a winding-up order against It under any provision of the Insolvency Act 1986 as applied by an order under section 420 of that Act; or

7.6.2.2 when sequestration is awarded on the estate of the partnership under section 12 of the Bankruptcy (Scotland) Act 1985 or the partnership grants a trust deed for its creditors

7.6.3    an individual becomes Insolvent:

7.6.3.1 on the making of a bankruptcy order against him under Part IX of the Insolvency Act 1986; or

7.6.3.2 on the sequestration of his estate under the Bankruptcy (Scotland) Act 1985 or when he grants a trust deed for his creditors.

7.6.4    a person also becomes Insolvent if:

7.6.4.1 he enters into an arrangement, compromise or composition in satisfaction of his debts (excluding a scheme of arrangement as a solvent company for the purposes of amalgamation or reconstruction); or

7.6.4.2 (in the case of a partnership) each partner is the subject of an individual arrangement or any other event or proceedings referred to in this clause.

7.6.5    Each of sub clauses 7.6.1 to 7.6.4 also includes any analogous arrangement, event or proceedings in any other jurisdiction.

8. LIMITATION OF LIABILITY

8.1       Except for liability on the part of KhooCommerce which is expressly provided for in the Contract:

8.1.1    KhooCommerce shall have no liability or responsibility for any loss, or damage of whatever nature due to or arising through any cause beyond its reasonable control;

8.1.2    KhooCommerce shall have no liability or responsibility, whether by way of indemnity or by reason of any breach of the Contract, misrepresentation, or by the commission of any tort (including but not limited to negligence) in connection with the Services, for any of the Customer’s loss of profit, loss of use of any asset or facility, loss of production or productivity, loss of contracts with any third party, liabilities of whatever nature to any third party, and/or any other financial or economic loss or indirect or consequential loss or damage of whatever nature; and

8.1.3    whenever the Contract provides that the Customer is entitled to a refund or partial refund of Fees, that refund shall be the Customer’s sole and exclusive remedy in respect of the circumstances giving rise to the refund.

8.2       In all cases KhooCommerce’s liability is limited and will not exceed the average Monthly Fee in the twelve (12) months prior to the date on which the Customer notifies KhooCommerce of any claim.

8.3       For the avoidance of doubt nothing in this Contract limits or seeks to exclude either KhooCommerce’s liability for claims for death or personal injury, for fraud of for any other liability for which it is not permitted to seek to limit or exclude by operation of law.

8.4       The parties agree that the Fees for the Services properly reflect the delineation of risk between the parties and that each party is responsible for making its own arrangements for the insurance of any loss in excess of the accepted legal liability as necessary.

9. USE OF SERVICES

9.1       The Services provided to the Customer will be delivered through the use of software and intellectual property developed for KhooCommerce. The Customer acknowledges and agrees that:

9.1.1    its use of the Services shall confer no rights in any software or intellectual property used by KhooCommerce or any exclusivity in the same.

9.1.2    KhooCommerce retains all rights, title and interest in its trade secrets, inventions, copyrights and other intellectual property.

9.1.3    any intellectual property developed by KhooCommerce during the performance of the Services shall belong to KhooCommerce unless otherwise agreed in writing.

9.2       The parties do not intend that any of the terms of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a part to the Contract.

9.3       The rights and obligations of the Customer under this Contract are personal to the Customer and the Customer undertakes that it shall not nor purport to assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.

9.4       KhooCommerce may revise these Terms from time to time. Any changes will not be retroactive. KhooCommerce will notify the Customer of any change to these Terms. By continuing to use or access the Services after those revisions become effective, the Customer agrees to be bound by the revised terms.

10. NOTICES

10.1     All notices given under this Contract shall be in writing.

10.2     KhooCommerce may give notice to the Customer as follows:

10.2.1  By email to the email address of the Customer; or

10.2.2  By first class address to the address of the Customer.

10.3     Notices sent by KhooCommerce shall be deemed to have been delivered at the time that they are sent.

10.4     The Customer shall give notice to KhooCommerce as follows:

10.4.1  By email to “info {AT} khoocommerce.com”. Any notice shall be deemed to have been received at the time that it is acknowledged by KhooCommerce; or

10.4.2  By recorded delivery to KhooCommerce’s current address at the date of giving the notice.

11. FORCE MAJEURE

11.1     “Force Majeure” means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that that party proves:

11.1.1  that such impediment is beyond its reasonable control; and

11.1.2  that it could not reasonably have been foreseen at the time of the conclusion of the contract; and

11.1.3  that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

11.2     In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions 11.1.1 and 11.1.2: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilisation; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

11.3     A party successfully invoking this clause is relieved from its duty to perform its obligations under the contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.

12. GOVERNING LAW AND SEVERABILITY

12.1     This Contract is governed by English law.

12.2     Both parties expressly and irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

12.3     If any of these clauses are held to be unlawful, void or unenforceable, then that clause will be deemed severable and will not affect the validity and enforceability of the remaining clauses, to the extent permitted by law.

13. CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS

13.1 Proprietary Rights. Except as expressly set forth herein, KhooCommerce (and its licensors, where applicable) exclusively retains all right, title and interest (including all Intellectual Property Rights) relating to the Services and KhooCommerce Confidential Information, and Customer exclusively retains all right, title and interest (including all Intellectual Property Rights) in its Customer Data and Confidential Information.

13.2 Feedback. Customer may from time to time provide KhooCommerce suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. KhooCommerce will have full discretion to determine whether to proceed with the development of any requested enhancements, new features or functionality. KhooCommerce will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exploit any such Feedback in connection with its products and services.

13.3 Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Notwithstanding the foregoing, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors, contractors, and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement (and for whom each party is responsible for any breach of this Agreement); and (b) as required by law (in which case, to the extent legally permitted, the receiving party will limit the disclosure to that required by law and provide the disclosing party with prior written notification thereof in order to allow disclosing party the opportunity to contest such disclosure). Neither party will disclose the terms of this Agreement to any third party, except that KhooCommerce may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Receiving party agrees to use the same degree of care that it uses to protect its own confidential and proprietary information to prevent the unauthorized use or disclosure of disclosing party’s Confidential Information, but in no event less than a reasonable degree of care. Promptly after disclosing party’s request, receiving party agrees to return or destroy disclosing party’s Confidential Information; provided, however, that receiving party shall be entitled to retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course records retention and backup policies and procedures, or to comply with Applicable Law, provided that such Confidential Information is treated as such for so long as it is retained. Each party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party will be entitled to seek immediate injunctive and other equitable relief, in addition to all other remedies, for any violation or threatened violation of this Section.

14. SERVICE AND RESPONSIBILITIES

14.1 Provision of KhooCommerce Platform. KhooCommerce hereby grants Customer and its authorized employees, contractors, vendors and consultants (“Authorized Users”) a limited non-exclusive, non-sublicensable, non-transferable: (a) right to access and use the Services. The Services are subject to modification from time to time at KhooCommerce’s sole discretion, provided the modifications do not materially diminish the functionality of the Services.

14.2 Data Protection. KhooCommerce maintains a commercially reasonable security program that is designed to: (a) ensure the security and integrity of Customer data provided by or on behalf of Customer to KhooCommerce in connection with the Services (“Customer Data”); (b) protect against threats or hazards to the security or integrity of Customer Data; and (c) prevent unauthorized access to Customer Data. Solely if and to the extent KhooCommerce processes Customer personal data that is subject to applicable data protection laws (as defined in the DPA), the Data Processing Agreement provided at https://www.khoocommerce.com/156/ (“DPA”) is hereby incorporated into, and shall be fully governed by, this Agreement

14.3 Restrictions. Customer will not, and shall ensure that any Authorized Users will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create derivative works of or otherwise create, attempt to create or derive the source code, object code or underlying structures, ideas or algorithms of the Services or any data related thereto; (b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization, or render any part of the Services unusable; (c) use or access the Services to develop a product or service that is competitive with KhooCommerce’s products or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell, lease, license, sublicense, make available or otherwise offer the Services on a standalone basis; (e) remove any proprietary notices from the Services or related Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in connection with the Services (any such content may be reported using KhooCommerce’s content dispute policy located at https://KhooCommerce.com/websiteterms); (g) use the Services or related Documentation in any manner or for any purpose that violates this Agreement or Applicable Law, or infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person (collectively, the “Restrictions”).

14.4 Privacy and Data Rights. All Customer Data collected through the Services is subject to the privacy policy located at  https://www.khoocommerce.com/26/Privacy-Policy. Customer acknowledges and agrees that the Services will require Authorized Users to share with KhooCommerce certain information which may include personal data regarding Authorized Users (such as names, usernames, hashed passwords, email address and/or online identifiers) solely for the purposes of providing and improving the Services. Prior to providing any personal information to the Services, Customer is fully responsible for obtaining the consent of the associated individual, in accordance with Applicable Law, to the use of his/her information by KhooCommerce in accordance with this Agreement. Customer represents and warrants that it has all rights necessary, including any consents required hereunder or by Applicable Law, to provide or make available the Customer Data (including personal data) or other materials in connection with its use of the Services, and to permit KhooCommerce to use the same as contemplated hereunder. Customer will not use the Services to transmit or provide to KhooCommerce any financial or medical information of any nature, or any sensitive personal data (such as social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, or credit card numbers).

14.5 Suspension. KhooCommerce reserves the right to suspend Customer’s (or any Authorized User’s) access to the Services, or delete or disable any content submitted thereto, immediately: (a) if Customer breaches Section 2 or Section 4 of this Agreement, or breaches any other provision and fails to correct that breach within the applicable cure period; or (b) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect KhooCommerce or its customers or users.

14.6 Customer Responsibilities. Customer is solely responsible for: (a) all uses of the Services under its account (whether or not authorized); (b) all acts and omissions of Authorized Users, including ensuring that it and its Authorized Users only use the Services in compliance with this Agreement and all Applicable Law (any breach of this Agreement by an Authorized User shall be deemed a breach by Customer); (c) the entry, accuracy, integrity and legality of Customer Data and the means by which it acquires and uses such Customer Data; (d) using commercially reasonable efforts to prevent unauthorized access to or use of the Services (and promptly notifying KhooCommerce in the event of any such unauthorized access or use); and (e) determining whether the Services are suitable or sufficient for its business purposes. KhooCommerce’s relationship is with Customer and not individual Authorized Users or third parties using the Services through Customer, and Customer will address all claims raised by its Authorized Users directly with KhooCommerce.

14.7 Third-Party Services. Customer’s use of third-party products or services that are not licensed to Customer directly by KhooCommerce (“Third-Party Services”) shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. KhooCommerce does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Services, including the privacy practices, data security processes and other policies related to Third-Party Services. Customer agrees to waive any claim against KhooCommerce with respect to any Third-Party Services. Customer may enable integrations between the Services and Third-Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third-Party Services, Customer is instructing KhooCommerce to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing all instructions to any Third-Party Service provider relating to Customer Data. KhooCommerce and Third-Party Service providers are not sub-processors of each other.

 

 Last Updated: June 2024