BUSINESS TERMS AND CONDITIONS:
This Agreement is made on the Commencement Date, between:
Miribase Ltd, a private limited company, incorporated and registered in England and Wales with company number 07203628, whose registered office is at 1 St Peters Square, Stockport, England, SK1 1NZ trading as Shopblocks (“we”, “us”, “our”); with VAT Number: 140360554.
The Client/Client (“you”, “your”).
Shopblocks builds bespoke websites built to the client’s individual requirements to an Agreed Specification and hosts website using a SaaS model. The Client wishes to engage Shopblocks for the provision of their Services. Shopblocks is willing to provide Services to the Client in accordance with the terms of this Agreement, and as set out in Schedule 1 (“Services”).
BY SIGNING THIS AGREEMENT, THE PARTIES AGREE TO THE FOLLOWING TERMS:
SCHEDULE 1 ORDER FORM is attached to this Agreement.
1.1. The following definitions and rules of interpretation apply in this Agreement:
1.1.1. The Contract Details.
1.1.1. The Agreed Terms.
1.1.1. Schedule 1.
1.2. "Business Day” means 8:30am to 5pm UK time zone, Monday to Friday (excluding public holidays in England).
1.3. "Commencement Date”means the date that this Services Agreement was made, which can be found at the top of this document.
1.4. “Confidential Information”means any information of a confidential nature as described in clause 9.
1.5. “Client’s Equipment”means any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of Services. This is extended to apply to any equipment, systems, or facilities which are accessed remotely.
1.6. “Deliverables”means all Documents, products, and materials developed by Shopblocks or its agents, subcontractors, consultants, or employees in relation to the Services provided in any form.
1.7. “Document” includes (in additional to any document in writing) any drawing, plan, diagram, design, image, tape, disk, or any other device or record embodying information in any form.
1.8. “Force Majeure Event”has its definition in clause 14.1.
1.9. “In-put Material”means all Documents, information, and materials provided by the Client, relating to the Services.
1.10. “Intellectual Property Rights” or “IPR“ means patents; utility models; rights to inventions; copyright, neighbouring, and related rights; trademarks and service marks; business names and domain names; rights in get-up and trade dress, goodwill, and the right to sue for passing off or for unfair competition; rights in designs; database rights; rights to use, and to protective confidentiality of, confidential information (including know-how and trade secrets); and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection, which subsist or will subsist, now or in future, in any part of the world.
1.11. “Pre-existing Materials”means all Documents, information, and materials provided by Shopblocks or its agents, subcontractors, consultants, or employees, relating to the Services, which existed prior to the Commencement Date.
1.12. “Shopblocks’ Equipment”means any equipment including tools, systems, or facilities provided by Shopblocks or its agents, subcontractors, consultants, or employees and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties, under which, title passes to the Client.
1.13. “Shopblocks’ Team” means all directors, managers, employees, consultants, engineers and specialists, agents, and subcontractors engaged in relation to the Services.
1.14. “Schedule 1”means the schedule attached to this Agreement.
1.15. “Schedule 2” means the schedule attached to this Agreement.
1.16. “VAT”means value added tax, chargeable under the Value Added Tax Act 1994.
1.17. References to clauses and schedules are to the clauses and schedules of this Agreement, and references to paragraphs are to the paragraphs of the relevant schedule or appendix.
1.18. Schedule 1 forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes Schedule
1.19. Schedules, clauses, and paragraph headings shall not affect the interpretation of this Agreement.
1.20. Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.
1.21. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.22. Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term, preceding or following those terms.
1.23. A reference to “writing”or “written” includes fax and e-mail.
1.24. A reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.25. A reference to a party shall include that party’s personal representatives, successors, and permitted assigns.
1.26. A reference to a company shall include any company, corporation, or other corporate body, wherever and however incorporated or established.
1.27. A reference to a holding company or a subsidiary means a holding company or subsidiary as defined in section 1159 of the Companies Act 2006, and a company shall be treated for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person, by way of security or in connection with the taking of security, or (b) its nominee.
1.28. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.29. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. COMMENCEMENT AND DURATION
2.1. This Agreement shall commence on the Commencement Date and continue for the period specified in Schedule 1, unless the Agreement is terminated by one of the parties giving the other 1 month notice in writing (unless this Agreement is terminated in accordance with clause 10).
2.2. Unless otherwise stated in Schedule 1, the initial term of the agreement shall be 30 days, and shall automatically renew for successive 30 day periods unless terminated by the Customer by giving 1 month notice in writing (unless terminated in accordance with clause 10).
2.3. Shopblocks shall provide the Services from the Commencement Date and shall continue to provide the Services throughout the term.
3. SHOPBLOCKS’ RESPONSIBILITIES
3.1. Shopblocks shall:
1. Use reasonable endeavours to perform the Services and deliver any Deliverables to the Client in accordance with Schedule 1 and shall allocate sufficient resources (including all equipment, tools, or other items required) to the Services to enable it to comply with this obligation.
2. Ensure that all goods, materials, standards, and techniques used in providing the Services are free from defects in workmanship, installation, and design.
3. Ensure Shopblocks’ Team use reasonable skill and care in the performance of the Services.
4. Comply with all applicable laws and regulations relating to the provision of the Services; and provided that Shopblocks shall not be liable under the Agreement if, as a result of such compliance, they are in breach of any of their obligations under this Agreement.
5. Use commercially reasonable endeavours to meet any deadlines as to performance dates as specified in Schedule 1.
6. Co-operate with the Client in all matters relating to the Services.
7. Take Reasonable care of any of the Client’s Equipment and In-Put Material in Shopblocks’ possession and make them available for collection by the Client on reasonable notice and request. Shopblocks’ may dispose of the Client’s Equipment or In-Put Material if the Client fails to collect them within 3 months following termination or expiry of this Agreement.
8. Provide the client / merchant with a Customer Success Manager, Designer and Data Specialist to take the clients website from concept to completion.
4. CLIENT’S OBLIGATIONS
4.1. The Client Shall:
1. Co-operate with Shopblocks’ in all matters relating to the Services and appoint as it thinks fit a project manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services.
2. Provide such information as Shopblocks may reasonably request in order to carry out the Services in a timely manner and to ensure that it is accurate in all material respects.
3. Provide Shopblocks’ Team with access to the Client’s data, and other facilities as reasonably required by Shopblocks’ Team to supply the Services.
4. Pay all invoices submitted by Shopblocks in accordance with clause 6.
5. If Shopblocks’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, Shopblocks shall:
5.1. Not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
5.2. Be entitled to payment of the charges despite any such prevention or delay.
5.3. Be entitled to recover any additional costs, charges, or losses that Shopblocks sustains or incurs that arise directly or indirectly from such prevention or delay.
5. CHANGE CONTROL
5.1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
5.2. If either party has made any request to make a change to the scope or execution of the Services, Shopblocks shall, within a reasonable time, provide a written estimate to the Client of:
1. The likely time required to implement the change.
2. Any necessary variations to Shopblocks’ charges arising from the change.
3. Any other impact of the change on this Agreement.
5.3. Unless both parties consent to a proposed change, there shall be no change to this Agreement.
5.4. If both parties consent to a proposed change, the change shall be made only after the agreement of the necessary variations to Shopblocks’ charges, the Services, and any other relevant terms of this Agreement has been varied in accordance with clause 15.
5.5. If Shopblocks requests a change to the scope or execution of the Services in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature or scope of, or the charges for the Services, the Client shall not unreasonably withhold or delay consent to it. Unless Shopblocks’ request was attributable to the Client’s non-compliance with the Client’s obligations, neither the Shopblocks’ charges nor any other terms of this Agreement shall vary as a result of such change.
6. CHARGES AND PAYMENT
6.1. In consideration of the provision of the Services by Shopblocks, the Client shall pay the charges as set out in Schedule 1 and in accordance with this clause 6.
6.2. There are two fees payable by the client. The Client must pay an upfront onboarding fee (“Professional Services Fee”) and a monthly subscription fee (“Subscription Fee”) in accordance with Schedule 1. In respect of Professional Service Fees, unless otherwise specified in Schedule 1, 50% of fees shall be payable upfront and in advance of Services, with the remaining 50% on delivery as detailed in Schedule 1.
6.3. Subscription Fees shall be billed monthly from the Commencement Date. The subscription fee for the first month shall be waived. The following payments will be every calendar month whilst the Client is an active subscriber. The Client has the option to pay the subscription fees annually.
6.4. Shopblocks may charge for storage based on clients uploads to their website, such fees to be determined at Shopblocks’ absolute discretion and notified to the Client from time to time.
6.5. Shopblocks may charge for use of the support team and / or development resources.
6.6. The charges and payments by the Client exclude VAT, which Shopblocks shall add to its invoices at the appropriate rate.
6.7. The charges shall be paid in GBP, unless otherwise agreed in writing by Shopblocks.
6.8. Shopblocks accepts payment via the method stated on the Invoice. Where no payment method is detailed Shopblocks accepts payment via direct bank transfer to the account nominated in writing by Shopblocks.
6.9. The Client shall pay each invoice which is properly due and submitted to it by Shopblocks, within 7 days or immediately in cases an auto collection, and to a bank account nominated in writing by Shopblocks.
6.10. All amounts due under this Agreement from the Client to Shopblocks shall be paid in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law).
6.11. If Shopblocks requires a deposit and the Client fails to make payment, Shopblocks may suspend all Services until payment has been made. Shopblocks also reserves the right to terminate this Agreement if any money payable to them is not paid on the due date.
6.12. If a party fails to make any payment due to the other party under this Agreement, by the due date for payment, then, without limiting the other party’s remedies under clause 17, the defaulting party shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England base rate. Such interest shall accrue on a daily basis, from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
6.13. In relation to payments disputed in good faith, interest under clause 6.9 is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
6.14. Invoices covering payment in respect of materials purchased by, or services provided to Shopblocks, or for reimbursement of expenses, shall be payable by the Client only if accompanied by relevant receipts and prior written approval was obtained from the Client.
6.15. The parties agree that Shopblocks may review and increase the charges, provided that such charges will not be increased more than once in any 12-month period. Shopblocks will give the Client not less than 30 days’ notice of any increase. If such increase is not acceptable to the Client, it may terminate this Agreement by giving 1 month notice to Shopblocks.
6.16. All Professional Service Fees and Subscription Fees are non-refundable.
6.17. In respect of unpaid fees, or fees which have been charged back following termination of this Agreement, Shopblocks shall be entitled to take legal action against the Client to recover any unpaid fees, along with:
6.17.1. any interest due;
1.17.2. statutory compensation for late payments (as applicable);
1.17.3. any administration fees for the recovery of debts;
1.17.4. any debt recovery or legal fees incurred by Shopblocks for the recovery of the debt.
7. QUALITY OF SERVICES
7.1. Shopblocks warrants to the Client that:
7.1.1. Shopblocks will provide the Services with reasonable care and skill, and in accordance with generally recognised commercial practices and standards in the industry for similar services.
7.1.2. The Services will materially conform with all descriptions provided to the Client by Shopblocks found in Schedule 1.
7.1.3. The Services will be provided in accordance with all applicable legislation from time to time in force.
7.1.4. The Client’s rights under this Agreement are in addition to the statutory terms implied in favour of the Client by the Supply of Goods and Services Act 1982 and any other statute.
7.1.5. The provision of this clause shall survive any performance, acceptance, or payment pursuant to this Agreement and shall extend to any substituted or remedial services provided by Shopblocks.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Shopblocks shall own all Intellectual Property Rights in existence as at the Commencement Date and which are created in the provision of the Services. Nothing in this Agreement is intended to transfer any title, right, or interest in such Intellectual Property Rights to the Client as at this date or in future.
8.2. In relation to any claim (including threats) or dispute brought to the Client’s attention, the Client shall:
8.2.2. Allow Shopblocks to conduct all negotiations and proceedings to settle the IPR’s claim.
8.2.3. Provide Shopblocks with reasonable assistance regarding the IPR’s claim.
8.2.4. Not, without prior consultation with Shopblocks, make any admission in relation to the IPR’s claim or attempt to settle it, provided that Shopblocks considers and defends any IPR using competent counsel, and in such a way as not to bring the reputation of the Client into disrepute.
9.1. Both parties undertake that each shall not, at any time during this Agreement, and for a period of 5 years after termination of this Agreement, disclose to any person any In-put Material (in the case of Shopblocks),Pre-existing Material (in the case of the Client),technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature, or any other confidential information concerning the disclosing party’s business or its products which the receiving party may obtain in connection with entering into this Agreement, except as permitted by clause 9.2.
9.2. Both parties may disclose Confidential Information:
9.2.1. To its employees, agents, consultants, or subcontractors (and in the case of Shopblocks, Shopblocks’ Team) as is needed for the purpose of discharging its obligations under this Agreement. The party in receipt of such information shall ensure that its employees, agents, consultants, or subcontractors to whom it discloses the Confidential Information, comply with this clause 9.
9.2.2. As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
9.3. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
9.4. All materials, equipment and tools, drawings, specifications, and data supplied by one party to the other, shall at all times be (and remain) the exclusive property of the party supplying such materials, equipment and tools, drawings, specifications, and data, but shall be held by the receiving party in safe custody at its own risk, and maintained and kept in good condition by that party until returned to the supplying party, and shall not be disposed of or used, other than in accordance with any written instruction or authorisation.
10. LIMITATION OF LIABILITY
10.1. Shopblocks’ total liability under or in connection with this Agreement shall be limited to the greater of:
1. 150% the value of this Agreement over the preceding 12 months; or
10.2. This limit shall apply howsoever that liability arises, including, and without limitation, a liability arising by breach of contract, arising by tort (including, and without limitation, the tort of negligence),or arising by breach of statutory duty.
10.3. Nothing within this clause shall exclude or limit liability for:
1. Death or personal injury caused by negligence.
2. Fraud or fraudulent misrepresentation.
10.4. Shopblocks will not be liable to the Client, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:
10.4.1. Loss of profit.
10.4.2. Loss of goodwill.
10.4.3. Loss of business.
10.4.4. Loss of business opportunity.
10.4.5. Loss of anticipated saving.
10.4.6. Loss of corruption of data or information.
10.4.7. Loss of contracts.
10.4.8. Loss of use of money.
10.4.9. Loss of actual savings.
10.4.10. Loss of revenue.
10.4.11. Loss of reputation.
10.4.12. Ex gratia payments.
10.4.13. Loss of operation time.
10.4.14. Loss of opportunity.
10.4.15. Special, indirect, or consequential damage or loss suffered by the Client, arising under or in connection with this Agreement.
5. Nothing in this Agreement shall or shall not be deemed to relieve the Client of any common law duty to mitigate any loss or damage incurred by it.
6. Shopblocks will not be liable for any software API that Shopblocks develops and/or utilises.
7. Shopblocks will not be liable for any third party applications.
8. Shopblocks will not be liable for any technical fault arising as a result of the use of Shopblocks Service.
1. Shopblocks may terminate this Agreement with immediate effect by giving written notice to the Client if:
1.1. The Client fails to pay any amount or fee due under this Agreement on the due date for payment and remains in default for more than 14 days after being notified in writing to make such payment.
1.2. The Client commits a material breach of any term of this Agreement where the breach is irremediable, or if such a breach is remediable, fails to remedy that breach within a period of 14 days.
1.3. The Client repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
1.4. A petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the Client’s business activities.
1.5. An application is made to court (or an order is made) for the appointment of an administrator, or if notice of intention to appoint an administrator is given over the other party.
1.6. If the Client breaches any of Shopblocks’ terms and policies as they exist from time to time, including (but not limited to) Shopblocks’ website terms and conditions.
1.7. If it comes to Shopblocks’ attention that any part of the Client’s website is, or may be in breach of any law. This includes where Shopblocks’ has reason to suspect that the website may be in breach of a law.
12. CONSEQUENCES OF TERMINATION
12.1. On termination of this Agreement for any reason, the Client shall immediately pay to Shopblocks, all sums due and owing to it in connection with this Agreement.
12.1.1. This also includes all fees payable under the Agreement for the remainder of any ongoing contract term.
12.2. Both parties shall return, destroy, or otherwise deal with, any Confidential Information as the disclosing party shall wish for it to be dealt with.
12.3. On termination or expiry of this Agreement, the following clauses shall continue in force: clause 8, clause 9, clause 12 and clause 22.
12.4. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12.5. The Client acknowledges and agrees that upon termination or expiry of this Agreement, all materials hosted by Shopblocks, including, but not limited to the Client website and domain will be permanently deleted or removed. Shopblocks shall bare no liability to the client for any such deletion or removal following termination or expiry and it is the Client’s responsibility to ensure they have sufficiently backed up any materials that they do not want to be permanently and irretrievably deleted.
13.1. If any Services are not supplied in accordance with Schedule 1 or Shopblocks fails to comply with any terms of this Agreement, the Client shall be entitled (without prejudice to any other right or remedy) to require Shopblocks to carry out such additional work as is necessary to correct its failure.
14. FORCE MAJEURE
14.1. A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
1. Acts of God such as flood, drought, earthquake, tsunami, or other natural disaster, epidemic, or pandemic.
2. War, or threat of or preparation for war (including terrorist attack, armed conflict, civil war, civil commotion, or riots).
3. Imposition of sanctions.
4. Nuclear, chemical, or biological contamination.
5. Sonic boom.
6. Fire, explosion, or accident (including collapse of building).
7. Interruption or failure of utility services.
14.2. Provided it has complied with this clause 14, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3. The corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the affected party.
14.4. The affected party shall:
14.4.1. As soon as practicable after the start of the Force Majeure Event, but no later than 7 Business Days from its start, notify the other party in writing of the event, the date on which it started, its likely or potential duration, and the effect of the event on its ability to perform any obligations under this Agreement.
14.4.2. Use reasonable endeavours to mitigate the effect of the event on the performance of its obligations.
15.1. No variation of this Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
16.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach.
16.2. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy.
17. RIGHTS AND REMEDIES
17.1. The rights and remedies provided under this Agreement are in addition to and not exclusive of any rights or remedies provided by law.
18.1. If any provision or part provision of this Agreement becomes invalid, illegal, or unenforceable, this shall not affect the validity and enforceability of the rest of this Agreement.
18.2. If it comes to the attention of either party that any provision or part provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable.
19. AGREEMENT IN FULL
19.1. This Agreement, including any schedules and appendixes, constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and assurances between them, whether written or oral.
19.2. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party the agent of another party.
20. THIRD PARTY RIGHTS
20.1. No one, other than a party to this Agreement, shall have any right to enforce any of its terms. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.
21.1. Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
21.1.1. Delivered either by hand, by pre-paid first-class post, or by other next working day delivery service, at the receiving party’s postal address provided in this Agreement unless otherwise stated; or
21.1.2. Sent by email to the email address specified in writing by Shopblocks as being a suitable address for service.
21.2. Any notice or communication shall be deemed to have been received:
21.2.1. If delivered by hand, at the time the notice is left at the proper address.
21.2.2. If sent by pre-paid first-class post, or by other next working day delivery service, at 9am on the second Business Day after posting.
21.2.3. If sent by email, at the time of the transmission, or if this time falls outside business hours in the place of receipt, when business hours resume.
3. This clause does not apply to the service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
BY USING OUR SERVICES, THE CLIENT ACCEPTS THE TERMS OF THIS AGREEMENT
THIS CONTRACT HAS BEEN ENTERED INTO ON THE COMMENCEMENT DATE
20. THIRD PARTY RIGHTS
20.1. No one, other than a party to this Agreement, shall have any right to enforce any of its terms. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.