This agreement is dated 02nd December 2019 (the Effective Date).
Parties: (1) Bagged2U Ltd, incorporated and registered in England and Wales with company number 11166212 (Bagged2U); and (2) [Name of Retailer], incorporated and registered in England and Wales with company number [Insert Co No.]
1. Authorised Users
1.1 Bagged2U hereby grants to the Retailer a non-exclusive, non-transferable right (without the right to grant sub-licences, save to the Authorised Users when applicable (e.g. where not employees)) to permit the Authorised Users to use the Services and the Documentation solely for the purpose of the Retailer exercising its rights and fulfilling its obligations under this agreement.
1.2 In relation to the Authorised Users, the Retailer undertakes that: (a) it shall not authorise any of its other
Representatives to use the Software; and (b) each Authorised User shall keep the Login Details confidential.
1.3 The Retailer shall, during the course of its use of the Services:
(a) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the
Documentation (and, in the event of any such unauthorised access or use, promptly notify Bagged2U);
(b) not access, store, distribute or transmit any: (i) viruses; or (ii) material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive.
1.4 In the event of any actual or suspected breach of clause 1.3, Bagged2U may (without liability and without prejudice to its other rights) disable the Retailer’s access to the Software and – in such event – shall immediately notify the Retailer.
1.5 The Retailer shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Documentation available to any third party except the Authorised Users (including allowing any third party to offer for sale (or sell) such third party’s goods on the Marketplace).
3. Personal data
3.1 In the course of this agreement, the parties will share personal data. The parties shall be separate controllers (i.e. shall not jointly determine the purposes and means of processing any such personal data).
3.2 In respect of such personal data: (a) each party shall comply with their respective obligations under the Data Protection Legislation; and (b) the parties shall regularly (and at least every six months) discuss whether it would be appropriate to put a data sharing agreement in place between them in order to assist with ensuring compliance with the Data Protection Legislation – and in the event that the parties agree that it would be appropriate – shall promptly do so.
4. Bagged2U’s general obligations
4.1 Bagged2U undertakes that the Services will be performed with reasonable skill and care.
4.2 Bagged2U does not warrant that: (a) the Retailer’s use of the Services will be uninterrupted or error-free; or (b) the Services, the Documentation and/or the information obtained by the Retailer through the Services will meet the Retailer’s requirements.
5. Retailer’s general obligations
The Retailer shall:
(a) provide Bagged2U with such co-operation and information as may reasonably be required by Bagged2U;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) have and maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement;
(d) ensure that: (i) the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach thereof; (ii) one of its Representatives is monitoring each Tablet (which the Retailer shall ensure is powered and connected to the Internet) at all times during Normal Business Hours; (iii) its listed stock of goods for sale on the Marketplace is always kept accurate and updated (including the pricing for such goods).
6. Set-up, training and packaging
6.1 From time to time, the Retailer may request a tablet computer and label printer (but not replacements thereof, the issuance of which shall be governed by the Support Services Policy) for a planned Store and Bagged2U shall deliver, within seven days of such request: (a) such tablet computer and label printer (along with a reasonable level of Branded Packaging and Consumables) to such planned Store and set up such tablet computer and label printer ready for the Retailer’s use; (b) training (at such times and on such dates as may reasonably be agreed) for theRetailer’s nominated Representatives at such store; (c) a set of login details for the Software for use by such
Representatives (i.e. one set of login details per planned store).
7.1 The parties agree that all Orders constitute contracts between the Retailer and the relevant Customers and
Bagged2U shall not have any liability to the Retailer in respect of any such contracts.
7.2 Bagged2U warrants that, prior to placing each Order, each Customer will have unequivocally confirmed their: (a)
7.3 Once an order for Goods is placed by a Customer via the Marketplace, the Retailer shall immediately (and, in any event, within five minutes of such order being placed) accept or decline such order via the Software. If such order is accepted:
(a) Bagged2U shall immediately dispatch a Delivery Driver to the relevant Premises and the Retailer shall immediately (and, in any event, within 15 minutes of such Order being accepted): (i) package the relevant Goods at such Premises in Branded Packaging. Each Good shall be individually packaged and labelled by the Retailer, with the Good(s) in the Order placed into a Bagged2U bag (being part of the Branded Packaging); and (ii) thereafter, make such packaged Goods available for collection by the Delivery Driver;
(b) thereafter, Bagged2U shall deliver such Goods to the relevant Customer within two hours of the Customer having placed the Order and – in the event that such Customer has opted for ‘try before you buy’ delivery in their Order: (i) wait at the delivery location for at least 15 minutes for such Customer to decide whether they wish to keep such Goods; and (ii) accept any Goods which such Customer returns to them.
8.1 In the event that: (a) a Customer has opted for ‘try before you buy’ delivery in their Order and does not wish to keep some/any of the Goods, on return of such Goods to the relevant Delivery Driver, such Delivery Driver shall promptly return them to the relevant Premises (i.e. from which such Goods were collected by such Delivery Driver); (b) a Customer otherwise wishes to return any Goods, the Retailer warrants that it shall fulfil its obligations with regard to the return of such Goods set out in the version of the Standard T’s & C’s of Sale applicable to the relevant Order.
8.2 On receipt of any Returned Goods in respect of which the Retailer wishes to issue a full or partial refund, the Retailer shall (via the functionality for issuing refunds within the Software) request that Bagged2U does so.
9. Charges and payment
9.1 On the Effective Date: (a) if the Retailer does not have an account with Stripe, it shall immediately procure one and – thereafter – shall immediately inform Bagged2U of the details for such account; or (b) if the retailer has an account with Stripe, it shall immediately inform Bagged2U of the details for such account.
9.2 On or after the Effective Date, Bagged2U shall invoice the Retailer a set-up fee of £99 + VAT, where applicable.
9.3 On the Effective Date and on the same day of each month thereafter, Bagged2U shall charge 5% fee of the retained basket value from the customer’s order.
9.4 All invoices shall be paid within 30 days of receipt.
9.5 In respect of each Order, Bagged2U shall procure that all Prices and Delivery Fees are credited to the Retailer’s
Stripe Account. The Retailer shall bear all transaction fees charged by Stripe in relation thereto.
9.6 In respect of any Returned Goods for which the Retailer has requested (pursuant to clause 8.2) that Bagged2U issue a refund, Bagged2U shall promptly request that Stripe refund the relevant Customer with the portion of the Price attributable to such Returned Goods (with all of such refund to be taken from the Retailer’s Stripe Account).
10. Proprietary rights
10.1 The Retailer acknowledges and agrees that Bagged2U and/or its licensors own all rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Retailer any other rights or licences in respect of the Services or the Documentation.
10.2 The Retailer shall own all right, title and interest in and to all of the Retailer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Retailer Data.
10.3 In respect of all Tablets and Label Printers: (a) risk in such Tablets and Label Printers shall pass to the Retailer on delivery of such Tablets and Label Printers pursuant to clause 6.1; and (b) title of such Tablets and Label Printers shall at all times be retained by Bagged2U.
11. Limitation of liability
11.1 Neither party excludes or limits liability to the other party for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by negligence; (c) any matter for which it would be unlawful for the parties to exclude or limit their liability.
11.2 Subject to clause 11.1:
(a) except as expressly and specifically provided in this agreement:
(iii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
(b) and subject to clause 11.2(a), each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the greater of: (i)
£1,000,000; or (ii) three times the total Prices paid by Customers during the 12 months immediately preceding the date on which the claim arose.
12. Term and termination
12.1 This agreement shall commence on the Effective Date and shall continue indefinitely unless: (a) either party gives the other party not less than 90 days’ notice in writing; or (b) otherwise terminated in accordance with the provisions of this agreement (including this clause 12).
12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party: (a) commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or (b) suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Retailer shall immediately cease all use of the Services and the Documentation;
(b) each party shall immediately: (i) cease to use any equipment, property and other physical items belonging to the other party (including, in the case of Bagged2U, the Tablets and the Label Printers); and (ii) return the same to the other party; and
(c) any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13. Entire agreement
13.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each party acknowledges that in entering into this agreement it does not rely on (and shall have no remedies in respect of) any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
The definitions and rules of interpretation in Schedule 1 apply in this agreement.This agreement has been entered into on the date stated at the beginning of it.
Signed by Erkut Ozer (a director) for, and on behalf of, Bagged2U Ltd ………………………..
Signed by (a director) for, and on behalf of, [Insert Com Name] ………………………..
Schedule 1Definitions and Rules of Interpretation
Authorised Users: those Representatives of the Retailer who are authorised by the Retailer to use the Services and the Documentation, as nominated by the Retailer in accordance with clause 6.1.
1 Branded Packaging: Bagged2U branded packaging.
2 Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
3 Consumables: consumables for Label Printers.
4 Customer: a Visitor that purchases goods from the Retailer via the Marketplace.
Data Protection Legislation: (a) The Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI
2426/2003); (b) the General Data Protection Regulation (EU) 2016/679 (the GDPR); and (c) any UK national implementing law (including the Data Protection Act 2018), unless and until any of the foregoing are no longer directly applicable in the UK and, thereafter, any UK successor legislation.
5 Delivery Driver:a Bagged2U Representative responsible for the delivery of Goods to a
6 Delivery Fee: a delivery fee paid by a Customer in respect of an Order, including any VAT
7 Documentation: the user manual for the Services provided to the Retailer by
Bagged2U (whether in hard copy or in electronic form) from time to time.
8 Goods: goods sold by the Retailer to Customers.
9 Label Printers the label printers (provided to the Retailer by Bagged2U pursuant to clause
6.1 and any replacements thereof from time to time) which, in conjunction with the Tablets allow the Retailer to print delivery labels to be placed on packaged Goods.
10 Login Details: the login details for the Software provided by Bagged2U pursuant to clause
11 Marketplace: the Bagged2U online marketplace where Visitors can purchase goods from various retailers who have listed such goods for sale on such marketplace.
12 Normal Business Hours: 09:00 – 18:00 UK local time, each Business Day.
13 Order: an order for Goods placed by a Customer via the Marketplace and accepted by the
Retailer in accordance with clause 7.3.
14 Price: the cost of the relevant Order (including any VAT paid thereon), less the corresponding Delivery Fee.
15 Representatives: in relation to a party, its employees, officers, directors, agents, representatives and advisers.
16 Retailer Data: content inputted into the Software by the Retailer, its Authorised Users and/or Bagged2U (on the Retailer’s behalf, where the relevant content was provided to Bagged2U for such inputting and/or uploading by the Retailer) for the purpose of using the Services or facilitating the Retailer’s use of the Services but excluding any personal data.
Retailer’s Stripe Account: the Retailer’s account with Stripe, the details of which are provided to Bagged2U pursuant to clause 9.1.
17 Returned Goods: any Goods returned by a Customer to the Retailer.
18 Services: the services provided by Bagged2U to the Retailer under this agreement, including the provision of the Tablets, Label Printers and Software as well as the services provided to the Retailer via the Software (as more particularly described in the Documentation).
19 Software: the software application installed on the Tablets, enabling the Retailer to (among other things): (a) list goods for (or remove goods from) sale on the Marketplace; (b) list the Stores; (c) review Customers and their Orders and the status of such Orders (including the location of the relevant Delivery Driver); (d) request that Bagged2U issue refunds to Customers.
Standard Privacy Notice: the Retailer’s standard privacy notice for Customers, as set out at Schedule 3, and as may be amended by the Retailer (acting reasonably) from time to time by written notice to Bagged2U.
Standard T’s & C’s of Sale: the Retailer’s standard terms and conditions for the sale of goods on the Marketplace, as set out at Schedule 2, and as may be amended by the Retailer (acting reasonably) from time to time by written notice to Bagged2U.
20 Stores: the Retailer’s high street stores from which its goods are available for dispatch.
21 Stripe: Stripe, Inc. and members of its group, which enables online merchants to accept payment over the Internet.
22 Support Services Policy: Bagged2U’s policy from time to time for providing support in relation to the Services.23 Tablets: the tablet computers (provided to the Retailer by Bagged2U pursuant to clause 6.1 and any replacements thereof from time to time) which allow the Retailer’s Authorised Users to use and receive the Services.
24 Visitor: a natural person acting as a consumer that accesses the Marketplace to browse and purchase goods from the retailers who have listed such goods thereon.
Controller, personal data and processing shall have the meaning ascribed to them in the GDPR.
Schedule 2Standard T’s & C’s of Sale
Schedule 3Standard Privacy Notice