TERMS AND CONDITIONS OF SUPPLY – these terms and conditions apply to all Master Service Agreements entered into by ARC X-MEDIA LIMITED with Customers and references herein to "this Agreement" and or "this Master Services Agreement" shall be construed accordingly.
In this Agreement, terms and expressions defined in an Order Form will have the same meaning when used in this Agreement and the following words expressions shall have the following meanings:
3PL Operations: means logistics fulfilment, warehousing, inventory management and despatch services;
3PL Provider: means any third party provider of 3PL Operations for Customers as set out in an Order Form;
API: means an application program interface provided to the Customer by the Supplier for Use for the Purpose to enable the Customer’s IT systems to interact with the Supplier’s System to allow the Supplier to provide the Services to the Customer;
Charges: means the payments due in respect of the supply of the Services under each Contract, as set out in the relevant Order Form;
Commencement Date: means the date of this Agreement;
Confidential Information:means all information (whether marked as confidential or which may reasonably be supposed to be confidential by its nature) that is disclosed (howsoever) by either party (the Disclosing Party) to the other (the Receiving Party) whether before or after the date of this Agreement including, without limitation the terms of this Agreement and information relating to the Disclosing Party’s operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, technology, computer software and hardware, information, documentation, data and opinions of whatever nature, market opportunities, customer, supplier and or distributor details, business affairs and shall also include (a) in respect of the Supplier, all information relating to or contained or embodied in the Services, the Equipment, any software made available or supplied by the Supplier under this Agreement whether or not the rights to such software vest in the Supplier or a third party (including without limitation the source codes, operation manuals, specifications and other documentation) and any access codes or passwords that may be allocated in order to allow the Customer to access the Services; and (b) in respect of the Customer, the Data;
Contract: means each contract between the Supplier and the Customer for the supply of Services by the Supplier arising from an Order Form;
Data: means the data that is downloaded or uploaded or delivered to or retrieved or obtained by the Supplier from the Customer and stored, processed and used by the Supplier through the Supplier’s System in delivering the Services;
Data Protection Laws: means the Data Protection Act 1998 the General Data Protection Regulation, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 together with any other additional and/or replacement laws applicable to the protection of personal data in force from time to time in England and Wales and any related or subordinate legislation and regulations made pursuant to any of them. The terms "personal data", "process", "data controller", "data processor" and "data subject" have the meanings attributed to them in the Data Protection Laws. The phrase "and/or" means either of the alternatives and both of the alternatives as the case may be.
Disclosing Party: means a party who discloses Confidential Information to the other party;
End User: means any individual from the Customer or, where applicable, a 3PL who is Qualified on the Equipment and who may thereby use or themselves train and authorise named individuals to use the Equipment on behalf of the Customer or 3PL;
Force Majeure Event: means an event beyond the reasonable control of the affected party including, without limitation, third party strikes; lock-outs; labour disputes; acts of god; war; riot; civil commotion; malicious damage; accident; software failure; breakdown of plant or machinery (including, but not limited to, telecommunications systems, the internet and utility services); fire; flood and storm;
Equipment: means the printing equipment and other items (including parts, consumables (including paper supplies for use in the printing equipment) and components for such printing equipment) provided and used by the Supplier for the purpose of delivering the Services as set out in an Order Form and sited at the Location;
Initial Period: means the period specified in the Order Form commencing with the Services Start Date;
Intellectual Property Rights: means
Liability: means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgements, penalties and proceedings and any other losses and/or liabilities;
Minimum Service Period: means the minimum service commitment period for the provision of Services which, shall commence on the expiry of the Initial Period and shall continue for the period specified in the applicable Order Form;
Order Form: means an order form for the supply of Services in the form prescribed by the Supplier from time to time and agreed in writing by the parties;
Purpose: means creating and dispatching marketing materials to the Customer's customers and targets, for the Customer's internal business purposes only.
Qualified: means an individual who has satisfactorily completed relevant training from the Supplier in relation to the Equipment and is certified by the Supplier as competent to use the Equipment;
Receiving Party: means a party to whom Confidential Information is disclosed by the other party;
Service(s): means on demand variable data printing services to personalise multi-functional documents for marketing the Customer’s products, services and/or business, generated and delivered via the Supplier’s System as set out in an Order Form, to be supplied to the Customer or its 3PL Provider under the terms of each Contract;
Service Period: means either the Initial Period or the Minimum Service Period;
Services Start Date: means in respect of each Contract, the earlier of (i) the date on which the Customer or its 3PL Provider first makes use of the Services or Equipment, or (ii) the date set out on the relevant Order Form;
Supplier’s System: means the system of hardware (including the API and the Equipment), software and databases known as the Retain.me system used by the Supplier to provide the Services;
Use: means use of the API to transmit Data to the rest of the Supplier's Systems to process instructions to the Equipment for the Purpose.
5.1 In consideration of the supply of the Services, the Customer shall pay the Charges to the Supplier, as directed in each Order Form, without any set-off, deduction, counterclaim and/or any withholding of monies and together with all applicable VAT. Charges subject to annual increases by the Supplier on not less than 21 days notice to cover the increased cost of raw materials to the Supplier.
5.2 Unless agreed otherwise by the Supplier in writing, the Charges exclude any additional costs which are incurred as a result of the failure or delay of the Customer or a 3PL Provider to comply with its obligations under this Agreement, including but not limited to the failure or delay of the Customer or a 3PL Provider or any third party under the control of the Customer or 3PL Provider to execute the preliminary works referred to in clause 2.5 or allow the Supplier to perform the Services and/or install the Equipment at the Location or give the Supplier adequate information or instructions. The Customer will pay any such additional costs within 30 days of invoice.
5.3 The Customer shall pay all Charges within fourteen (14) days of invoice.
5.4 If any Charges or any other payments due under this Agreement are not paid by the Customer when due, the Supplier may, without prejudice to any other rights or remedies available to it in respect of such breach, charge interest both before and after the judgement on the overdue sum at a rate of 4% above the Supplier’s bank’s base rate from time to time, such interest to accrue daily and shall be compounded monthly.
The Customer hereby agrees to indemnify and hold the Supplier harmless from and against all claims, demands, losses, damages, liabilities and expenses (including all legal expenses) which the Supplier may suffer or incur as a result of any breach of any term of this Agreement by the Customer or any relevant 3PL Provider, including as a result of the negligence, fraud, wilful default or breach of statutory duty or as a result of the Supplier carrying out any work required to be done in relation to the Services in accordance with the requirements or specifications of the Customer.
Breach of this clause 15 shall be deemed a material breach which is irredeemable under clause 4.5.1 above.