MASTER Services Agreement – Terms & Conditions

These terms and conditions of service (the “Terms and Conditions” or the “Agreement”) constitute a legally binding contract among the Parties and shall apply solely to services provided by WAYFINDR.

By offering goods for WAYFINDR services, or by clicking to accept or agreeing to these Terms and Conditions, Customer agrees to be bound by these Terms and Conditions.

The Terms and Conditions are subject to change by Wayfindr, upon posting on Wayfindr’s website from time to time. The most current version of the Terms and Conditions are published at https://wayfindr.io/terms-and-conditions/

1.  Purpose

1.1  General

1) Customer desires to enter into an agreement for the provision by Supplier of the Services to the Customer.

2) Supplier is a company engaged in the business of arranging for the transportation, warehousing, distribution and fulfillment of goods.

2.  Structure of Agreement

2.1  Components of the Agreement

The Agreement consists of:

1) The provisions set forth in this Master Agreement and the Exhibits referenced herein;

2) Statement of Work No(s).

2.2  Definitions

All capitalized terms used in the Agreement shall have the meanings set forth Exhibit 1 (Definitions). Other capitalized terms used in the Agreement are defined where they are used and have the meanings so indicated.

2.3  Statements of Work

The Services will be described in and be the subject of (i) one or more Statements of Work executed by the Parties pursuant to this Master Agreement, and (ii) this Master Agreement. Each Statement of Work shall be substantially in the form as noted in Exhibit 2 (Form of Statement of Work), with such additions, deletions and modifications as the Parties may agree.

This Master Agreement will prevail and take precedence over Statement of Work. In the event of over-reaching terms within this Master Agreement and applicable Statement of Work, the terms and conditions within the Statement of Work shall govern to the extent there is ambiguity. Further, if Services include regions of United Kingdom (“UK”), Netherlands (“NL”) or European Union (“EU”), the Parties acknowledge that certain laws require provisional agreements in place regarding employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) as reference and incorporated herein Exhibit 3.

3.  Term

3.1  Term of Agreement

This Master Agreement shall commence on the Effective Date for two (2) years (“Initial Term”). The Master Agreement, subject as otherwise provided herein, shall continue until terminated by either party upon six (6) months prior written notice of termination to the other, such notice to take effect no earlier than the Expiry of the Initial Term.

3.2

During the Term of the contract the Customer may with the consent of Supplier extend the ranges of goods handled and/or add additional services. Any such changes may impact upon Supplier’s costs and shall be mutually agreed upon through an Amendment.

4.  Services

4.1  Services

1) Services. Starting on the Commencement Date of each Statement of Work, Supplier shall provide Customer with the Services as described in the Statement of Work set forth therein, which shall be substantially in the forms attached hereto as exhibits respectively (each, a “Statement of Work”).

2) Notwithstanding the foregoing, for additional and or New Services which are provided in addition to this Master Agreement, separate terms and conditions applicable to those services and locations are incorporated herein by reference and will control in the event of a conflict with regards to the terms contained therein and the terms of this Master Agreement. https://wayfindr.io/terms-and-conditions/

3) Supplier shall have absolute discretion over the manner in which the Services are to be performed, including, without limitation, engaging or employing any Affiliates, subsidiaries or any independent contractor, subcontractors, common couriers and their agents, and licensees to provide any of all of the Service.

4.2  Compliance

4.2.1  Generally

Supplier shall perform the Services in compliance with:

• All Laws applicable to Supplier in its performance and delivery of the Services; and
• All standard operating procedures of the Supplier.

4.3  Services Performed by Supplier

1) Exclusive Relationship. Customer is engaging Supplier on an exclusive basis to provide the Services under the Agreement.

2) Supplier Cooperation. Supplier shall ensure that it and its subcontractors, agents, independent contractors all appropriate authorizations, permits, certifications, and licenses as necessary to perform the Services in accordance with this Master Agreement and all applicable laws.

4.4  New Services

1) Customer Requests for New Services. During the Term, Customer may request that Supplier provide New Services. New Services or ancillary services may be activities that are performed on a continuous basis for the remainder of the Term or activities that are performed on a project basis. To request a New Service, Customer will deliver a written request with reasonable detail regarding such service (the “New Service Request”) to the Supplier Contract Manager. All New Services and or ancillary services are subject to applicable terms and conditions as referenced in section 3 (ii).

4.5  Facilities

1) Supplier may, at their expense, change the storage location from time to time at their own discretion. Supplier shall notify Customer of the removal and advise the address of warehouse to which the Goods are being relocated, not less than seven (7) days before removal (except in emergency when such notice will be given as soon as practicable).

5.  Charges

Customer agrees to pay to Supplier the Charges as specified in the applicable Statement of Work together with the other amounts as described in this section 4. Supplier charges shall be calculated according to the costs as set out in the applicable Statement of Work hereto. The Supplier reserves the right to review all Charges and may increase the rates. The changes to the fees will become effective immediately upon notice to Customer. In addition, the Charges will be varied in accordance with the volumes and weights of parcels dispatched and the Services used plus any annual carrier increases, peak charges, fuel surcharges and/or currency charges. Any costs outside of the control of Supplier and its suppliers which are subject to significant change such as duties, surcharges, fuel prices or road tolls will be passed onto the Customer as they are incurred. Where the Customer does not in any contract year meet the minimum volume commitments then Supplier shall be entitled within 30 days of the anniversary of the Commencement Date to invoice and the Customer shall pay the difference between the actual Charges paid and payable in the previous contract year and the Charges that would have been payable had the minimum volume commitments been met.

5.1  Taxes

All Charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, duties, and taxes; provided, that Customer shall not be responsible for any taxes imposed on, or with respect to, Supplier’s income, revenues, gross receipts, personnel, or real or personal property.

5.2  Disputes

For disputed invoices, Customer must notify Supplier in writing as soon as reasonably practicable upon receipt of the charges and Customer shall pay any balance of the invoice which is not in dispute by the due date for payment. If a disputed invoice has been resolved, where either party is required to make a balancing payment, it shall do so within five (5) Working Days. Invoices not disputed within thirty (30) days from receipt of invoice shall be considered time barred and waived by Customer.

5.3  Interest

Customer shall pay to the Supplier all sums immediately when due without deduction on account of any claim, counterclaim or set-off. Payment to the Supplier is due as soon as an invoice is rendered to the Customer. For any amount unpaid within 30 days from the date of the invoice, Supplier shall be entitled to interest from the date of the invoice until payment at 4% per month or the maximum amount then allowable by law.

5.4  Lien

Supplier shall have a lien on the Goods tendered by Customer and upon all property belonging to Customer in Supplier’s possession, custody, or control for all charges, advances or amounts of any kind due to Supplier under this Agreement or under any prior or subsequent invoices issued to Customer by Supplier (including charges for storage, handling, transportation, demurrage, terminal charges, insurance, labor, and any other charges incurred). Supplier shall have a lien on the Goods and may refuse to surrender possession of the Goods until all charges or debts are paid in full. If such amounts remain unpaid for thirty (30) days after Supplier’s demand for payment, Supplier may sell the Goods in any reasonable manner, and shall apply the proceeds to the amounts owed. Customer remains responsible for any deficiency outstanding to Supplier.

5.5  Onboarding and Implementation Costs

In the event of early termination of contract by either party for any reason, the Customer shall pay all capital expenditure costs pro-rated from the date of termination to the end of the contract and all costs incurred or expended by Supplier in performance of Services under this Agreement, including winding up or transition of services. Customer shall be responsible for any of Supplier’s investments with regards to startup expenses and other capital investments, including but not limited to: lease commitments associated with this Master Agreement, costs of project management, any integrations with Customer software or integrations and customizations of the Supplier Software, costs incurred by Supplier in winding up or transitioning the Services and any other charges reasonably incurred by Supplier due to the early termination and costs incurred on behalf of Customer.

5.6  Minimum Volumes

Customer has provided an estimate of the Annual Volumes to be handled during the Term as noted in the SOW. It is acknowledged that the Charges are based on the Annual Volumes and that if the actual Volumes vary the specified amount as noted within the SOW, then on the anniversary of the Effective Date, Supplier may revise the Charges by giving 30 days notification of such changes to the Customer.

6.  Covenants

Supplier shall arrange for the Services ensuring personnel have the necessary knowledge, training, skills, experience, qualifications, and resources to provide and perform the Services in accordance with the Agreement, and shall ensure Services are provided in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of such Services.

7.  Representations and Warranties

7.1

On the date of entering into this Master Agreement and continuously throughout the term of this Master Agreement, the Parties warrant and represent to each other as follows:

1) Supplier holds all appropriate authorizations, permits, certifications, and licenses as necessary to arrange for the Services in accordance with this Master Agreement and all applicable laws. Supplier will immediately notify Customer of any suspension, cancellation, or termination of any applicable authorizations, permits, certifications, and licenses. Supplier will perform all Services in compliance with all applicable laws including state, federal and local jurisdictions.

2) Customer warrants that it is either the lawful owner of the Goods or is authorised by such owner to accept these conditions on the owner’s behalf and to arrange for disposition of same. Customer agrees to indemnify and protect Supplier for any third parties claiming rights to, or title to, the Goods, and acknowledges that the Goods are stored subject to this Master Agreement with Supplier.

3) Customer warrants that the Goods shall be securely and properly packed in compliance with any statutory regulations or official or recognised standards and in such condition as not to cause damage or injury or the likelihood of damage or injury property of Supplier or to any other goods, whether by spreading of damp, infestation, leakage or the escape of fumes or substances or otherwise.

4) Customer agrees to inform Supplier in writing of any special precautions necessitated by the nature, weight or condition of the goods and of any statutory duties specific to the goods with which Supplier may need to comply.

5) Customer shall promptly reimburse Supplier for any and all duties, taxes and expenses that Supplier may be required to pay in respect of the Goods.

6) Customer warrants that none of the Goods are or contain substances which would require the obtaining of any consent or license or which, if they escaped from their packaging, would or may cause pollution of the environment or harm to human health.

7) Customer agrees it will be liable for any breach of customs laws, import and export laws, regulations relating to goods warehoused and agrees to indemnify Supplier against all actions, proceedings, costs, claims and demands arising out of any further breach, non-observance or non-performance of the same.

8) If Services originate in the UK, Customer warrants that none of the goods constitute “waste” as defined in the Environmental Protection Act, 1990.

9) In preparing and submitting customs entries, export declarations, applications, security filings, documentation and/or other required data, Supplier relies on the correctness of all documentation, whether in written or electronic format, and all information furnished by Customer. Customer shall use reasonable care to ensure the correctness of all such information and shall indemnify and hold the Supplier harmless from all claims asserted and/or liability or losses suffered by reason of the Customer’s failure to disclose information or any incorrect, incomplete, or false statement by Customer or its agent, representative or contractor upon which Supplier relied. Customer agrees that it has an affirmative non-delegable duty to disclose all information required to import, export, or enter the Goods.

10) Customer agrees to inform Supplier in writing of any special precautions necessitated by the nature, weight, or condition of the Goods and of any statutory duties specific to the Goods with which Supplier may need to comply. Customer warrants that the Goods are not considered hazardous materials and/or dangerous goods at the time the Goods are tendered to Supplier.

7.2  Disclaimer

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY STATEMENT OF WORK, THE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.

8.  Transition

8.1  Agreement on Transition Plan

A “Transition Plan” may be mutually agreed and included in each Statement of Work and shall set forth (i) all Transition Services necessary to completely migrate the Services to, or implement the Services by, Supplier; (ii) an allocation of responsibilities between the Parties for the performance of such Transition Services; (iii) other information and planning as are necessary to ensure that the Transition takes place on schedule (each, a “Transition Plan”).

9.  Contract Managers

9.1  Contract Managers

1) Contract Manager Meetings. During the Term, the Customer and Supplier shall designate Contract Managers which shall meet periodically, at such times and locations as reasonably requested by Customer or Supplier, to review Service Level performance, rates, volumes, forecasts and other matters applicable to the Master Agreement.

10.  Relationship Protocols

10.1  Independent Contractor

Customer and the Supplier acknowledge and agree that this Master Agreement shall not constitute, create or give effect to a joint venture, pooling arrangement, principal/agency relationship, partnership or formal business organization of any kind and neither Customer nor the Supplier shall have the right to bind the other without the other’s express prior written consent.

10.2  Use of Subcontractors

Supplier is authorized to select and engage carriers, drayage, labor, custom brokers, agents, warehousemen and other third parties (“Subcontractors”) to perform the Services. Subcontractors shall be entitled to the same contractual rights, limitations of liability, indemnification, and other terms in this Master Agreement to which Supplier is entitled.

10.3  Change Requests

Change Requests shall include a request to change (including to cease) any Service or add new services to the Services; or request to amend this Master Agreement or any document attached to it or referred to in this Master Agreement. Any Change Request shall not be deemed binding or effective until signed in writing by the authorized representatives of both parties through an Amendment.

11.  Technology; Intellectual Property Rights

During the Term, Customer may have a limited, revocable, non-transferable, and non-exclusive right to use Supplier Software, if applicable to the Services. Supplier Software may be available to Customer for the sole purpose of allowing Customer to track and obtain information about shipments during transit and for a reasonable period after delivery, and for no other purpose. Customer agrees to only use the Supplier Software for the limited scope of use and purpose described herein. Customer further agrees to keep all passwords to the Supplier Software confidential and to limit its disclosure only to those employees with a need-to-know and who are bound by written confidentiality obligations for such information. Customer will not provide its login or password to any third party and will not alter or remove any copyright notice or other proprietary rights that may appear in the Supplier Software. Customer will not reproduce, copy, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Supplier Software and will not challenge Supplier’s rights in the Supplier Software. Supplier Software shall always remain the sole and exclusive property of Supplier. Supplier may terminate Customer’s access to Supplier Software, at its convenience without notice or cause. Supplier shall retain all rights, title, and ownership into all its’ Intellectual Property.

Customer shall not use Supplier’s name, logo, trademarks or trade names in publicity releases, promotional material, lists, advertising, marketing, or business generating efforts, whether written or oral, without obtaining Supplier’s prior written consent.

12.  Confidentiality, Data and Non-Solicit

12.1  Obligations

1) The Parties hereby acknowledge that while performing its obligations hereunder, the disclosure of certain information and know-how of a technical, financial, sales, suppliers, operational, processes, research, customers, or other sort of information that is nonpublic and otherwise confidential or proprietary to the disclosing party, including Trade Secrets (collectively the “Confidential Information”). Each party acknowledges that disclosure of Confidential Information is of considerable commercial value and that the disclosing party would likely be economically or otherwise disadvantaged or harmed by the direct or indirect use or disclosure thereof, except as specifically authorized by the disclosing party.

2) Confidential Information does not include such information that: (i) is now, or hereafter, becomes publicly known without violation of this Agreement; (ii) was known to the recipient prior to the time of disclosure without obligation to preserve confidentiality; (iii) was received by the recipient from a third party without obligation to preserve confidentiality; (iv) is authorized to be disclosed by the disclosing party; or (v) is any information that, bar codes, or text on any packaging; or (B) package level detail or smart label information, including but not limited to, consignees, delivery address, weight and zone, and postal barcode, current routing code, appropriate service level icon, a tracking number bar code and address details related thereto and delivery information.

3) In addition, if the recipient receives a subpoena or other process demanding the disclosing Party’s Confidential Information, the recipient may comply with the demand, in which case the recipient shall inform the disclosing Party and allow the disclosing Party reasonable time to seek a protective order.

4) The party receiving Confidential Information agrees to: (i) not disclose the Confidential Information for a period of two (2) years from the date of disclosure except as permitted herein; (ii) not disclose any Confidential Information that is also considered a trade secret under the applicable law for as long as the information remains a trade secret; and (iii) exercise the same degree of care to avoid disclosure of Confidential Information as it employs with respect to its own Confidential Information, but not less than reasonable care.

12.2  Security

The Parties shall implement and maintain commercially reasonable administrative, physical, and technical safeguards and measures to protect against unauthorized access to confidential data, personal data, and any proprietary software. Both parties undertake to comply with the applicable data protection laws, including any applicable common law.

12.3  Data Privacy

Supplier shall take all necessary steps to ensure that data or information belonging to Customer which comes into its possession or control in the course of providing the Services is protected in accordance with Supplier’s security policy. In particular, Supplier shall not use the data or information nor reproduce the data or information in whole or in part in any form except as may be required by this Master Agreement, or otherwise misappropriate or disclose the information to third parties without a need to know. Furthermore, to the extent that any data or information belonging to Customer is personal data within the meaning of the Data Protection Act 1998, Supplier shall comply with the legal requirements of the Act for protection of such information. Customer shall be and remain the controller of the Customer Data for purposes of all applicable laws relating to data privacy, personal data, transborder data flow and data protection.

12.4  Data Processing

1) The Parties acknowledge that for the purposes of Data Protection Legislation, the Customer is the Data Controller and Supplier acts as a Data Processor.

2) Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data that is transferred to Supplier for the duration and purposes of this Master Agreement.

3) Supplier shall, in relation to any Customer Personal Data processed in connection with the performance by Supplier of its obligations under this Agreement:

• process that Personal Data only on the written instructions of the Customer or where processing is required by applicable laws and Data Protection Laws;
• ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Customer’s Personal Data and against accidental loss or destruction of, or damage to, the Customer’s Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• without prejudice to the confidentiality obligations in clause 11 (a) (Confidentiality), ensure that all personnel who have access to and/or process the Customer Personal Data are obliged to keep such Personal Data confidential; and
• not transfer any Customer Personal Data outside of the European Economic Area unless the following conditions are fulfilled:

  –  the Customer or Supplier has provided appropriate safeguards in relation to the transfer;

  –  the Data Subject has enforceable rights and effective legal remedies;

  –  Supplier complies with its obligations under Data Protection Legislation by providing an adequate level of protection to any Customer Personal Data that is transferred; and

  –  Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer’s Personal Data;

• assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• notify the Customer without undue delay, and in any event within 48 hours, on becoming aware of a Personal Data breach involving the Customer’s Personal Data; and
• at the written direction of the Customer, delete or return the Customer’s Personal Data and copies of such to the Customer on termination of the agreement unless required by the Data Protection Legislation or other applicable laws to store the Personal Data.
• Customer authorises Supplier to appoint third-party processors and SUPPLIER confirms that where it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 14. As between the Customer and SUPPLIER, SUPPLIER shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 14.
• Upon the Customer’s written request, Supplier will make available to the Customer information reasonably necessary to demonstrate Supplier’s compliance with this section. Where Customer reasonably determines that the information provided is not sufficient to demonstrate Supplier’s compliance, Supplier will allow for and contribute to inspections by a qualified, independent third-party auditor appointed by Customer to confirm Supplier’s compliance with this section. The Customer will give Supplier reasonable notice of any audit or inspection to be conducted under this section and will (and ensure that each of its mandated auditors will) take all reasonable steps to avoid causing any damage, injury or disruption to the premises, equipment, personnel and business of Supplier or any third party processor during the course of such an audit. Any audit or inspection will be conducted within normal business hours no more than once in any calendar year unless the Customer has a reasonable belief that Supplier is not complying with this section. Subject always to any mandatory disclosure required by applicable laws or any supervisory authority, any information obtained under this section will be kept confidential and not disclosed to any person without the express consent of Supplier, and the Customer will ensure that any auditor, agent, personnel or other person or entity that participates in such audit is subject to appropriate written confidentiality obligations.

12.5  Non Solicit

The Customer agrees that Supplier may be disclosing names and confidential information, including but not limited to services it provides through third parties, related to employees, suppliers, subcontractors etc. Therefore, information related to Supplier’s employees, third parties including agents, subcontractors etc, shall be deemed a material purpose to this Agreement. As such, during the Term and for a period of two (2) years after termination or expiration of the Term, for any reason whatsoever, Customer agrees that they will not directly or indirectly contact or solicit any employee, third party, supplier, or subcontractor etc. which became known to them through the services provided by Supplier.

13.  Termination

1) Either party may terminate this Master Agreement forthwith by notice in writing to the other party where the other party has committed two (2) instances of material breach(s) within the immediately prior twelve (12) months, and where such breach is capable of remedy and the other party has failed to remedy such breach within sixty (60) days of receiving notice specifying the breach and requiring its remedy.

2) Either party may terminate this Master Agreement by notice in writing to the other party when the other party is unable to pay its debts as they fall due or if any action, application or proceeding is made with regard to it for: a voluntary arrangement or composition or reconstruction of its debts; the presentation of an administrative petition; its winding-up or dissolution; the appointment of a liquidator, trustee, receiver, administrative receiver or similar officer; and/or any similar action, application or proceeding in any jurisdiction to which it is subject.

3) Supplier may terminate this Master Agreement, by giving at least sixty (60) days advanced written notice should the Customer fail to meet the minimum volume commitments. Supplier may terminate this Master Agreement for convenience by giving at least thirty (30) days notice to Customer.

4) In the event that the Customer terminates this Master Agreement or any relevant and current Statement of Work for convenience prior to the expiration of the Initial Term, or the Master Agreement is terminated due to Customer’s breach, Customer shall be responsible for termination charges as noted in section 12 (d).

13.5  Termination Charges

1) Upon Termination by Customer. In the event of an early termination by Customer, Customer shall pay Supplier for any of Supplier’s investments with regards to startup expenses and other capital investments, including but not limited to: lease commitments associated with this Master Agreement, costs incurred by Supplier in winding up or transitioning the Services and any other charges reasonably incurred by Supplier due to the early termination and costs incurred on behalf of Customer plus the remainder of the Chargers for the Initial Term. All outstanding Charges rightfully owed and due to Supplier shall be paid immediately by Customer.

13.6  Termination Cooperation

1) Each party shall return to the other party any equipment, documents or other materials belonging to the other party, which it has no legal right to retain.

2) Supplier may at any time by notice in writing to Customer require the removal of the goods no less than sixty (60) days from the date of such notice.

3) Termination Assistance Services provided by Supplier requires the Customer to pay any and all Charges to Supplier for such performance of the Transition Services prior to the final stock out. For the avoidance of doubt, until all Charges are paid in full, stock shall not be Transitioned or relocated without Supplier’s written consent.

13.7  Survival of Selected Provisions

1) Survival. Notwithstanding the expiration or earlier termination of the Services, the Master Agreement or any Statement of Work for any reason however described, the following Sections of the Master Agreement shall survive any such expiration or termination: Section 4, Section 6, Section 11, Section 12(c), Section 12(d), Section 12(e), Section 12(f), Section 13, Section 14, Section 16, and Section 17. Upon termination or expiration of the Agreement, all rights and obligations of the Parties under the Agreement shall expire, except those rights and obligations under those Sections specifically designated to survive in this Section 12(f)(i).

14.  Shrinkage, Liability and Claims

14.1  Shrinkage

Supplier will maintain an inventory accuracy metric of at least ninety-eight and a half percent (98.5%) measured using the verified unit variance against the total number of units stored at the facility within a six (6) month period. In the event there is shrinkage in excess of an allowable one percent (1.5%) (“Shrinkage Allowance”), Supplier shall, subject to the limitations of liability as noted below, reimburse Customer either directly or through the Third Party Provider.

14.2  Liability Caps

1) Supplier Cap. The liability of Supplier to Customer arising out of or resulting from the performance or non-performance by Supplier and the Supplier Representatives of the Services and Supplier’s obligations under the Agreement shall be limited to Direct Damages incurred by the Customer subject to a maximum of three (3) months the total amount paid by the Customer to Supplier in the 12-month period preceding the Commencement of the event.

2) No Consequential Damages.

IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF MARKET, LOSS OF INCOME, DAMAGES ARISING FROM LOSS, ATTORNEYS’ FEES OR PUNITIVE DAMAGES, WRONG DELIVERY, OR DAMAGE TO PROPERTY, DELAYED DELIVERY OR FAILURE TO ATTEMPT DELIVERY, AND DAMAGES ARISING FROM AUXILIARY SERVICES, WHETHER OR NOT SUPPLIER HAD KNOWLEDGE THAT SUCH DAMAGES OR LOSSES MIGHT OCCUR.

3) Carrier Liability. The Customer accepts that Supplier will contract with carrier’s on the carrier’s terms and conditions; the Customer accepts that the carrier’s liability to Supplier under those terms in respect of the Goods may not reflect Supplier’s liability to the Customer under this Agreement in respect of the Goods and to the extent that there is any such discrepancy, Supplier’s liability to the Customer under this Agreement shall be no greater than the carrier’s liability to Supplier under the carrier’s terms and conditions. For Services in the UAE, liability is subject to National Association of Freight and Logistics (“NAFL”); for Services in the United Kingdom, liability is subject to British International Freight Association Standard Trading Terms version 2021 (“BIFA”); for Services in the US, liability is subject to subject to a maximum of USD $.50 per pound of Goods stored or $500 per occurrence, whichever is less.

14.3  Claims

Customer acknowledges that Supplier is not responsible for claims however it shall assist with investigation regarding complaints and provide a response with detailed investigation results in accordance with carrier claim policies. Customer recognizes and understands that if Customer fails to comply with any of the requirements listed in this Section and any applicable Exhibit, SUPPLIER will validly deny the claim and Customer will be barred from any recovery.

14.3.1  Inspection and Mitigation

Customer must allow Supplier a reasonable amount of time and access to inspect the Goods. Unless otherwise instructed in writing by Supplier, failure to retain all product and packaging of the damaged Goods may result in non-payment of claim. Customer and all other interested parties shall mitigate the damages to the Goods to the extent that is reasonably possible under the circumstances; including but not limited to: hiring a company to repair damaged Goods; requesting an onsite medic or technician to repair the damaged Goods; and any other measures deemed reasonable and possible to repair damages when the Goods are not a total loss.

14.3.2  Time Limit for Claims

Freight and Transportation Claims: Unless stated otherwise in the attached Exhibits, all transportation claims must be properly and completely filed, in compliance with this Agreement, no later than nine (9) months from the date of delivery for damage claims or for lost shipments, nine (9) months from the expected date delivery. Final Mile Service Claims: For any claims on loss, damage or delay for final mile services, Supplier shall assist with investigation on complaints and give response with detailed investigation results within fourteen (14) working days after receipt of complaints. Notwithstanding the foregoing, Supplier and Customer will adhere to the contracted final mile provider(s) claims policies, including their terms and conditions. Warehousing Claims: For any claims on loss, damage regarding warehousing and or distribution services, Supplier shall assist with investigation on complaints and give response give response with investigation results within fourteen (14) working days after receipt of complaints however all claims must be received within thirty (30) days from Customer.

14.3.3  Freight Charges

Supplier will not process or consider any cargo claims until all invoices have been paid in full.

14.3.4  Filing Claims

Within the time limits specified in this Master Agreement, Customer must file a written communication with Supplier that must include: (i) facts sufficient to identify the shipment; (ii) a copy of the bill of lading, delivery receipt, invoice and any other documents supporting the claim; (iii) an assertion of liability for the alleged loss, damage, injury or delay; and (iv) a demand for a specific or determinable amount of money, including the commercial invoice demonstrating the value of the Goods. Documents that do not constitute a proper claim include order reports, appraisal reports, or any notations of shortage or damage on any document. A broken seal is not evidence of damage or contamination without further evidence supporting such a claim. The Customer’s claim must meet all requirements listed in this subsection otherwise the claim shall be barred from recovery. Receipt of the Goods without a written notation on the bill of lading shall be prima facie evidence that the Goods were delivered in good condition.

14.3.5  Apparent Damage Upon Delivery

If the loss or damage is apparent at the time of delivery, the consignee must immediately notate the bill of lading, delivery receipt or any software used for delivery documentation. Apparent loss or damage shall include, without limitation, shortage in the shipment, damage to the package(s), or possible damage to the contents which is ascertainable without inspection of the contents itself. Consignee may not open package(s) and inspect the contents of the package(s) until the consignee signs for the shipment on the delivery receipt. Notations such as “subject to inspection” and “subject to count” shall not be valid. Failure to note exceptions of actual product loss or damage at the time of delivery on the delivery receipt is prima facie evidence of delivery in good order and condition and shall be an absolute bar to a claim for apparent damage, or concealed damage claims.

14.3.6  No Liability for Concealed Damages

Supplier shall not be liable for any loss or damage to Goods that is not apparent (concealed), at the time of delivery, including perishable Goods.

14.3.7  Delay Claims

The Parties understand that due to the inherent nature of the transportation industry, Supplier does not guarantee pick up, transportation, or delivery by a stipulated time and accordingly, Supplier does not undertake that the Goods shall be delivered at any time.

14.3.8  Refused or Returned Goods

Supplier shall not be liable for any claims regarding returned Goods (a) which have been previously unpackaged by consignee and are no longer in their original sealed condition; or (b) where Supplier did not deliver the original shipment to consignee. Customer shall be responsible for all costs associated with any return shipments, including any transportation charges and fees, together with the original transportation charges and fees, unless such shipment is deemed undeliverable solely due to damage attributable to Supplier in which case Supplier shall be responsible for the return transportation, if any. Customer must provide disposition within forty-eight (48) hours from Supplier’s notice for perishable Goods.

14.3.9  Restricted Commodities

Supplier shall not be responsible for loss or damage to: documents, magazines, newspapers, stamps, securities, artwork, heirlooms, fragile goods, jewelry, goods of high or unusual value, water floatation devices (kayaks, boats, canoes), rugs, mattresses, televisions, bathroom commodities (vanities, toilets, mirrors, shower doors, tubs), furniture shipped on the wrong end, used or refurbished goods, auction items, glass, any goods containing glass, firearms, dangerous goods, antiques, coins, currency, fur, any goods containing fur, gems, diamonds, gold, silver, coined concentrates, securities, time sensitive written material, one-of-a-kind items, models, prototypes, prints, lithographs, household goods, personal effects, livestock, plants, insects, or trade show goods. Customer agrees to pay all expenses, additional freight charges, fines, or penalties for tendering such goods to Supplier or its carriers. Customer agrees to indemnify and hold harmless SUPPLIER from all damages, penalties, liabilities, fines, or costs arising out of the Goods listed in this Section.

14.3.10  Temperature or Humidity Controlled Storage

Supplier shall not be responsible for storage of the Goods in a temperature or humidity-controlled environment. Customer knowingly accepts that the Goods will be warehoused in a non-temperature, humidity-controlled environment.

14.3.11  Exclusions from Liability

Supplier shall not be liable for any loss or damage caused by: (1) acts, defaults, or omissions of the Customer or Consignee, including but not limited to, inadequate or improper packaging, marking, addressing or providing incomplete or inaccurate instructions, documentation, or information; (2) handling, loading, unloading, stowage not performed by Supplier; (3) Carriers or services providers performing Auxiliary Services; and (4) any damage involving rust, oxidation or any like condition due to moisture.

14.3.12  Salvage

In the event Supplier pays a claim, Supplier shall be entitled to possession of the portion of the Shipment for which the claim was made and shall be under no obligation to return any portion of the Shipment to Customer or other Parties. Supplier shall be entitled to salvage any such portion of the Shipment and shall be under no obligation to return any salvaged proceeds to Customer or other Parties. The failure to provide the salvage shall be a bar to recovery of such claim. If Supplier pays a claim and Customer or a third party later salvages that portion of the Shipment for which the claim was made, Supplier shall be entitled to a refund, up to the amount of the claim paid by Supplier.

14.3.13  Lawsuits

Unless otherwise provided in an applicable statute, suit to recover for any loss or damage claims must be instituted within two (2) years from the date the claim has been denied in writing, in whole or in part, by Supplier. Where claims are not filed in accordance with the foregoing provisions, such claims shall be deemed waived, will not be paid, and Customer shall be barred from filing suit.

15.  Indemnity

15.1  Indemnity by Customer

The Customer agrees to indemnify and hold harmless the Supplier against any damages, losses, liabilities, settlements and expenses including without limitation costs and attorneys’ fees caused by Customer’s breach of this Master Agreement.

If there is a breach of this Master Agreement by the Customer, the Customer will indemnify Supplier against any loss or damage it suffers which is related to the breach, and will pay all costs and expenses (including professional fees) incurred in, and Supplier’s reasonable charges for, dealing with the breach and its consequences.

16.  Insurance and Risk of Loss

16.1

During the Term of this Master Agreement, Supplier shall maintain insurance that covers risk throughout the distribution process which includes Freight Liability Insurance with amounts not less than $100,000 (USD) per occurrence, $200,000 (USD) in the aggregate; Office Insurance with Employee Compensation as in accordance with industry standards and applicable law.

During the Term of this Master Agreement, Customer shall maintain insurance as follows: (1) Commercial General Liability Insurance including premises or operations, broad form property damage, covering its obligations hereunder for bodily injury and property damage, with a combined single limit of not less than $1,000,000 per occurrence; (2) Freight liability and or Cargo Insurance in amounts not less than $1,000,000 (USD) per occurrence; (3) Workers’ compensation insurance in statutory amounts required by law. Customer will be responsible for taking out an “All Risks” policy for the Goods.

16.2

All policies will provide that such coverage under these policies will not be canceled or materially changed without at least thirty (30) days prior written notice to the other Party.

16.3

Customer acknowledges that Supplier does not insure the Goods.

17.  Dispute Resolution

17.1  Disputes in General

The Parties will resolve all Disputes in accordance with the procedures described below. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (“Dispute”), then, except as expressly provided in this agreement, the Parties shall follow the procedure set out in this clause:

either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Contract Managers of the Parties shall attempt to resolve the Dispute;

if they are for any reason unable to resolve the Dispute within 20 Business Days of service of the Dispute Notice, the Dispute shall be referred to the Managing Directors or Senior Management (or equivalent role) of both Parties who shall attempt to resolve it;

if the Managing Directors of Parties are for any reason unable to resolve the Dispute within 10 Business Days of it being referred to them, the Parties agree to enter into mediation to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a Party must give notice in writing (“ADR notice”) to the other Party to the Dispute, referring the Dispute to mediation; and

unless otherwise agreed between the parties, the mediation will start not later than 20 Business Days after the date of the ADR notice.

The commencement of mediation shall not prevent the parties commencing or continuing court proceedings.

18.  General

18.1  Relationship of Parties

1) No Joint Venture. This Master Agreement shall not be construed as constituting either Party as partner, joint venture or fiduciary of the other Party or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party, or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other Party.

2) Publicity. Each Party will submit to the other Party all advertising, written sales promotion, press releases and other publicity matters relating to the Master Agreement in which the other Party’s name or marks are mentioned or language from which the connection of such name or marks may be inferred or implied, and will not publish or use such advertising, sales promotion, press releases, or publicity matters without prior written approval of the other Party.

18.2  Entire Agreement, Updates, Amendments and Modifications

This Master Agreement (including the Statements of Work) constitutes the entire agreement of the Parties with regard to the Services and matters addressed therein, and all prior agreements, letters, proposals, discussions and other documents regarding the Services and the matters addressed in the Agreement (including the Statements of Work) are superseded and merged into this Master Agreement (including the Statements of Work). Updates, amendments, corrections, and modifications to the Master Agreement including the Statements of Work may not be made orally, but shall only be made by a written document (Amendment) signed by both Parties.

18.3  Force Majeure

1) Generally. Each Party will be excused from performance under the Master Agreement for any period and to the extent (and only to the extent) that it is prevented from or delayed in performing any obligations pursuant to the Agreement, in whole or in part, as a result of a Force Majeure Event. If either Party is prevented from, or delayed in performing any of its obligations under the Master Agreement by a Force Majeure Event, it shall promptly notify the other Party verbally (to be confirmed in writing within twenty-four (24) hours of the inception of the delay) of the occurrence of a Force Majeure Event and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and of the obligations, the performance of which are thereby delayed or prevented. The Party claiming that a Force Majeure Event has occurred shall continue to use commercially reasonable efforts to mitigate the impact or consequence of the event on the other Party and to recommence performance whenever and to whatever extent possible without delay.

18.4  Waiver

No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof.

18.5  Severability

If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).

18.6  Counterparts

The Master Agreement and each Statement of Work may be executed in counterparts. Each such counterpart shall be an original and together shall constitute but one and the same document. The Parties agree that a photographic or facsimile copy of the signature evidencing a Party’s execution of the Agreement shall be effective as an original signature and may be used in lieu of the original.

18.7  Binding Nature and Assignment

The Master Agreement will be binding on the Parties and their respective successors and permitted assigns. Except as provided in this section, neither Party may, or will have the power to, assign the Agreement (or any rights thereunder) by operation of law or otherwise without the prior written consent of the other, except that Supplier may assign its rights and delegate its duties and obligations under the Agreement (i) to an Affiliate or (ii) as a whole as part of the sale or transfer of all or substantially all of its assets and business, including by merger or consolidation to a Person that assumes and has the ability to perform Supplier’s duties and obligations under the Agreement, without the approval of Customer. Any attempted assignment that does not comply with the terms of this section shall be null and void.

18.8  Notices

1) Whenever one Party is required or permitted to give notice to the other Party under the Master Agreement, such notice will be in writing unless otherwise specifically provided herein and will be deemed given when delivered by hand, one (1) day after being given to an express courier with a reliable system for tracking delivery, or five (5) days after the day of mailing, when mailed by official government postal mail services (registered or certified mail, return receipt requested, postage prepaid).

2) Notifications will be addressed as follows:

Either Party hereto may from time to time change its address for notification purposes by giving the other prior written notice of the new address and the date upon which it will become effective.

18.9  No Third Party Beneficiaries

The Parties do not intend, nor will any Section hereof be interpreted, to create for any Third Party beneficiary rights with respect to either of the Parties, except each Affiliate of the Supplier shall be a Third Party beneficiary under the Agreement.

18.10  Exhibits

The following Exhibits are attached hereto and incorporated herein by reference:

1) Definitions

2) TUPE [FOR EU, UK, Netherlands]

18.11  Expenses

Each Party shall be responsible for the costs and expenses associated with the preparation or completion of the Agreement and the transactions contemplated hereby except as specifically set forth in the Agreement.

IN WITNESS WHEREOF, the parties hereto executed this Agreement effective as of the date first set forth above.

Exhibit 1.  Definitions

This is Exhibit 1 – Definitions, to that certain Master Services Agreement between Customer and Supplier.

The following terms used in the Agreement shall have the meanings indicated:

Affiliate

means, with respect to a Party, any entity at any tier that controls, is controlled by, or is under common control with that Party. For purposes of this definition, the term “control” (including with correlative meanings, the terms “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.

Agreement

means the Master Services Agreement, all Exhibits thereto, all Statements of Work, executed pursuant to the Master Agreement, and all Amendments, which documents are incorporated into the “Agreement” by this reference.

Amendment

means the document that amends the Agreement.

Annual Volumes

means the annual volume of activity to be undertaken for each of the Services.

Auxiliary Services

means Customer requested services performed before or after transportation, such as local cartage, loading, unloading, crating, uncrating, packing, unpacking and storage.

Business Days

means each Monday through Friday, other than national holidays recognized by Customer.

Charges

means, collectively, the charges for the Services as set forth in the applicable Statement of Work.

Claim

means any civil, criminal, administrative, regulatory or investigative action or proceeding commenced or threatened by a Third Party, including Governmental Authorities and regulatory agencies, however described or denominated.

Commencement Date

means the date on which Supplier begins to provide Services under a Statement of Work to the Customer as agreed upon by the Parties. There may be a separate Commencement Date with respect to any particular Services or set of Services.

Customer Representatives

means subcontractors, representatives and agents of Customer, and the employees of the foregoing (but excluding Supplier and its Affiliates and Representatives).

Customer Software

means the Customer-Licensed and Customer-Owned Software listed on the “Customer Software” Schedule to each Statement of Work owned or licensed by the Customer that will be used by Supplier in performing and providing Services under the Agreement.

Customer Systems

means the computer hardware, software, data networks and systems used and operated by the Customer for its information technology requirements, excluding the Supplier Information System.

Data Protection Legislation

means any local, national or international laws, rules and regulations of the United States, an EEA Member State or other national or international state/region related to data protection or the Processing of Personal Data or Personal Information, including the California Consumer Privacy Act and EU Directive 95/46/EC, as transposed into the local laws of each Member State and as amended, replaced or superseded from time to time, including (on and after May 25, 2018) by the GDPR and laws implementing or supplementing the GDPR. Personal Data shall mean as defined in the applicable law as noted within the above.

Deliverables

means, as further specified in a Statement of Work, results of the Services to be provided by Supplier to Customer, including output produced in electronic written or verbal form.

Direct Damages Cap

means the Supplier Direct Damages Cap.

Disabling Code

means computer programming code which could have the effect of permitting improper use, access, deletion, or modification of, or disabling, deactivating, damaging or shutting down one or more software programs or systems and/or hardware or hardware systems, including, without limitation, “time bombs,” “protect codes,” “data destruction keys,” “trap doors” and similar code or devices.

Dispute

means any dispute, controversy, or Claim, including situations or circumstances in which the Parties are required to mutually agree on additions, deletions or changes to terms, conditions, or Charges, arising out of, or relating to, the Agreement.

Effective Date

means the date of the execution of the Master Agreement by the Parties thereto as set forth in the first paragraph of the Master Agreement.

Equipment

means customer equipment and Supplier Equipment.

Execution Date

means the date of execution of a Statement of Work by the Parties as set forth on the initial page thereof.

Exhibit

means an attachment to the Master Agreement as such attachment may be amended.

Facilities

means the Customer and/or Supplier facilities at and from which Supplier will provide and perform the Services, as set forth in the applicable Statement of Work.

Force Majeure Event

means acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical or equipment failures; cyber-attacks; pandemics; civil commotions; hazards incident to a state of war; acts of terrorism; acts or omissions of customs or quarantine officials; acts of carriers related to security; the nature of the Goods or freight, or any defects thereof; inherent vice of the goods; perishable qualities of the merchandise; fires; frost or change of weather; floods; wind; storm; moths; public enemies; or other causes beyond Supplier’s control.

Governmental Authority

means any nation or government, any federal, state, province, territory, city, town, municipality, county, local or other political subdivision thereof or thereto, any quasi-Governmental Authority, and any court, tribunal, arbitral body, taxation authority, department, commission, board, bureau, agency, instrumentality thereof or thereto or otherwise which exercises executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Goods

mean any and all items, merchandise, freight, parcel, commodities, or product stored, handled or shipped for Customer by Supplier pursuant to this Master Agreement.

Intellectual Property Rights

means any and all intellectual property rights existing from time to time under any Law, including patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect worldwide.

Law

means all applicable laws (including those arising under common law), statutes, codes, rules, regulations, reporting or licensing requirements, ordinances and other pronouncement having the effect of law of [INSERT], any foreign country or any domestic or foreign state, county, city, province, or other political subdivision, including those promulgated, interpreted, or enforced by any Governmental Authority. Law includes Privacy Laws.

Losses

means any judgments, settlements, awards, losses, charges, liabilities, penalties, interest claims (including Taxes and all related interest and penalties incurred directly with respect thereto), however described or denominated, and all related reasonable costs, expenses and other charges (including all reasonable attorneys’ fees and reasonable internal and external costs of investigations, litigation, hearings, proceedings, document and data productions and discovery, settlement, judgment, award, interest and penalties), however described or denominated.

New Services

means additional services and or functions, responsibilities, activities, tasks, and projects outside the scope of the Services that Supplier may provide to the Customer on terms to be agreed and set forth in a [SOW/Amendment].

Party or Parties

means Customer and/or Supplier, as parties to the Master Agreement.

Person

means an individual, corporation, limited liability company, partnership, trust, association, joint venture, unincorporated organization or entity of any kind or nature, or a Governmental Authority.

Representatives

means the Customer Representatives and/or the Supplier Representatives, as applicable.

Statement of Work

means a statement of work, in the form of Exhibit 2, entered into by the Parties describing the Services to be provided by Supplier under that Statement of Work.

Statement of Work Term

means the term of an applicable Statement of Work, as set forth therein.

Services

means services, functions, responsibilities, activities, tasks and projects to be performed by Supplier set forth in the Master Agreement, as they may evolve and be supplemented and enhanced during the Term.

Software or software

means any computer programming code consisting of instructions or statements in a form readable by individuals (source code) or machines (object code), and related documentation and supporting materials therefore, in any form or medium, including electronic media.

Supplier Equipment

means all equipment owned or leased by Supplier that is used, directly or indirectly, to provide the Services.

Supplier Information System

means the hardware, software, data network(s) and systems provided and/or used (whether owned, under contract and/or licensed) by Supplier to perform and provide the Services (including the Supplier Equipment) that Supplier uses to perform and/or provide the Services.

Supplier Representatives

means Supplier Affiliates, subcontractors, representatives and agents, and the employees of the foregoing.

Supplier Software

means the Software used by Supplier or any Supplier Representatives in providing the Services and (i) owned by Supplier or such Supplier Representative before the Effective Date or acquired by Supplier or such Supplier Representative after the Effective Date, (ii) developed by Supplier or such Supplier Representative other than pursuant to the Agreement or any other agreement with Customer; or (iii) developed by Third Parties and licensed to Supplier or such Supplier Representative. Supplier Software includes Software licensed by Supplier or Supplier Representatives pursuant to Supplier Third Party Agreements.

Tax

means federal, state, and local sales, use and other similar types of transfer taxes or fees, however designated or imposed, which are in the nature of a transaction tax or fee, but not including any taxes, duties or fees imposed on or measured by net or gross income or gross receipts, capital stock or net worth or in the nature of an income, capital, franchise, or net worth tax.

Third Party

means a business or entity other than the Customer or Supplier or any of their respective Affiliates.

Third Party Agreements

means those agreements for which Supplier has undertaken financial, management, operational, use, access and/or administrative responsibility and/or benefit in connection with the provision of the Services, and pursuant to which the Supplier has contracted with a Third Party Provider to obtain any Third Party products, software and/or services that will be used, accessed and/or managed in connection with the Services for the benefit of the Customer.

Third Party Provider

means a business or entity other than the Supplier or any of their respective Affiliates that provides products, software and/or services under a Third Party Agreement.

Trade Secrets

means with respect to a Party and/or designated group including such Party, information related to the services and/or business of the disclosing Party or such group, and/or of a Third Party, which (a) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts by the disclosing Party and/or such group that are reasonable under the circumstances to maintain its secrecy, including (i) marking any information clearly and conspicuously with a legend identifying its confidential or proprietary nature; (ii) identifying any oral presentation or communication as confidential immediately before, during or after such oral presentation or communication; or (iii) otherwise, treating such information as confidential or secret. Assuming the criteria in sections (a) and (b) above are met, Trade Secrets include, but are not limited to, technical and nontechnical data, formulas, patterns, compilations, computer programs and software, devices, drawings, processes, methods, techniques, designs, programs, financial plans, product plans, and lists of actual or potential customers and suppliers.

Transition

means the transition or implementation of resources and operational responsibilities for performance of the Services to Supplier.

Transition Services

means the tasks described in the Transition Plan.

Exhibit 2.  TUPE

Transfer of Undertakings (Protection of Employment)

1.  Definitions and Interpretation

In this Agreement the words below have the meanings next to them unless the context requires otherwise:

2.  No Transfer

1. The Parties acknowledge and agree that the implementation of this Agreement will not give rise to a transfer of employees from the Customer or any Incumbent Provider to Wayfindr under TUPE.

3.  Customer and Incumbent Personnel

1. Without prejudice to the understanding of the parties set out in Paragraph 2.1 if any employees of the Customer or its Incumbent Provider transfer or should have transferred to Wayfindr then the Customer agrees to indemnify and keep indemnified Wayfindr against Employee Liabilities arising from or in connection with the employment of such employees including termination and litigation, provided always that Wayfindr shall use all reasonable endeavours to avoid and/or minimise any such liability.

4.  Wayfindr Personnel on Exit

1. If TUPE applies following the termination or cessation of all or part of the Services the Parties shall comply with and the Customer shall procure that any Replacement Supplier shall comply with their respective obligations under TUPE (including without limitation the duty to consult).
2. Notwithstanding paragraph 4.1 above, following a change of the Services or following expiry or termination of this Agreement, Wayfindr shall use its reasonable endeavours to redeploy the Personnel elsewhere in its business subject to compliance by Wayfindr with its legal obligations to the Personnel.
3. Wayfindr undertakes that during any notice period to terminate this Agreement it shall, subject to and in accordance with its obligations under the Data Protection Legislation and any other applicable laws, on the Customer’s reasonable written request, provide to the Customer (within 3 weeks from the date such request is given) full written details of the Wayfindr Personnel and their terms and conditions of employment (and any other person, who with the consent of the Customer, is subsequently assigned to or engaged in the provision of the Services).

wayfindr.io