UNBOX COMMERCE LTD TERMS OF SERVICE
These Terms of Use set out the terms and conditions upon which Unbox provides the Services.
Please read these Terms of Use carefully before clicking "accept" or entering into an Order Form (as applicable). If you do not accept the Terms of Use set out below, you will not be able to use the Services.
1. GENERAL
1.1
Unbox enter into our agreements with you when:
1.1.1 you and Unbox sign an order form ("Order Form") which incorporates these Terms of Use ("Custom Deal Customers"); or
1.1.2 in the absence of an Order Form ("Click-to-accept Customers"):
- (a) you click "accept" to these Terms of Use, which constitutes an offer by you to enter into an agreement with Unbox, on the terms set out in these Terms of Use, and in accordance with any options which you have selected during the sign-up process (including selecting the monthly rolling option or annual rolling option); and
- (b) Unbox has confirmed that your sign-up process is complete, and your offer to enter into an agreement with Unbox has been accepted, by email.
1.2
In the Terms of Use, references to:
1.2.1 "Agreement" shall refer to either: (i) (for Custom Deal Customers) the Terms of Use, the Order Form and any options which they have selected during the course of the sign-up process; or (ii) (for Click-to-accept Customers) the Terms of Use and any options which you have selected during the course of the sign-up process.
1.2.2 "Customer" shall refer to either a Click-to-accept Customer or Custom Deal Customer, and each Customer may either be:
- (a) a social commerce merchant who is selling products or services via social media; or
- (b) an agency who is receiving the Services on behalf of, or in relation to, a third party social commerce merchant ("Merchant").
1.3
Customer (if acting in the capacity of an agency who is receiving the Services on behalf of, or in relation to, a Merchant) shall:
1.3.1 procure compliance with the terms the Agreement by the relevant Merchant (where relevant and applicable); and
1.3.2 keep Unbox and any of its Affiliates (from time to time) fully and completely indemnified against all and any losses, costs and expenses howsoever incurred, in relation to the Merchant's acts and omissions, and the Customer's failure to procure the relevant Merchant's compliance with the Agreement.
1.4
Where there is any conflict between the terms of an Order Form (if applicable) and the terms of the Terms of Use, the terms of the Order Form shall take precedence.
2. DEFINITIONS AND INTERPRETATION
2.1
In the Terms of Use, the following capitalised terms shall have the following meanings:
Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
Applicable Law means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice;
Billing Date means the Effective Date, and the corresponding date within each subsequent month (for example, if the Effective Date is 10 January, the subsequent Billing Dates will be on 10th of each subsequent month). If the Effective Date does not have a corresponding date within a given month during the term of this Agreement (for example, if the Effective Date is on 31st), the Billing Date will be on the last day of such month;
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London; Business Hours means 9.00am to 5.30pm local UK time, on a Business Day;
Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being "proprietary", "confidential" or "secret" or could reasonably be understood to be confidential. The term "Confidential Information" shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party;
Consultancy Services means the provision of insight, analysis and advice (and Deliverables in respect of the same) in relation to social commerce strategy concerning the subject-matter set out in the Terms of Use;
Customer Materials means all content (on social media or otherwise), information and data (including Customer Personal Data) (i) provided by Customer or End Users (if applicable) for the purpose of using the Services; or (ii) inputted by Unbox on Customer's behalf for the purpose of facilitating Customer's use of the Services;
Customer Personal Data means all Personal Data Processed in relation to the Agreement, including the following information which you have provided to us in relation to social media content creators: name, social media avatar, any Personal Data contained within video or image content published or uploaded to the individual's social media channel, area(s) of interest, location (city and country), information relating to the individual's social media followers (such as number of followers, age-range of followers and other follower demographic information), and any other information relating to you which is contained on the individual's social media channel;
Data Protection Laws means any data protection, privacy or similar laws that apply to Personal Data Processed in connection with the Agreement, including the EU General Data Protection Regulation 2016/679 ("EU GDPR"), the UK General Data Protection Regulation ("UK GDPR"), the UK Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58, the UK Privacy and Electronic Communications (EC Directive) Regulations 2003 (including any replacing or superseding legislation), and any amendments to these laws or replacements of these laws. References in the Agreement to "Processor", "Controller", "Sub-processor", "Data Subjects", "Supervisory Authority", "Personal Data" and "Personal Data Breach" shall have the meanings defined in the Data Protection Laws;
Deliverables means any reports, insights and analysis provided by Unbox as part of the provision of the Services (including any information, materials or other outputs which are created or made available to Customer when using the Platform);
Effective Date shall either be: (i) (for Custom Deal Customers) as set out in the Order Form; or (ii) (for Click-to-accept Customers) the date on which Unbox has confirmed that your sign-up process is complete, and your offer to enter into an agreement with Unbox has been accepted, by email;
End User means those employees, agents and independent contractors of Custom Deal Customers who are authorised by said Customer to use the Services in accordance with the Terms of Use;
Fees means either: (i) (for Custom Deal Customers) as set out in the Order Form; or (ii) (for Click-to-accept Customers) the fees set out in Unbox's standard rate card or, in the absence of any standard rate card, as set out on Unbox's website;
Initial Term means either: (i) (for Custom Deal Customers) as set out in the Order Form; or (ii) (for Click-to-accept Customers) one (1) month (if you have selected "monthly rolling option" during the sign-up process), or one (1) year (if you have selected the "annual rolling option" during the sign-up process);
Intellectual Property Rights means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in designs, rights in computer software, database rights (including any database rights in the Network), moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Platform means Unbox's tools and solutions to support merchants and agencies in delivering social commerce campaigns;
Service(s) means the provision of the Consultancy Services, the Platform (excluding any improvements or additional functionality, in relation to the Platform, which Unbox may develop from time to time, in respect of which Unbox reserve the right to charge additional fees for access to that additional functionality) and basic customer services by Unbox;
Service Data means metadata and other data derived from use of the Service, but excluding any data contained within the Customer Materials;
Unbox means Unbox Commerce Ltd, a company incorporated in England and Wales, with company number 15828338, and with registered address 167-169 Great Portland Street, London, England, W1W 5PF;
Unbox Marks trademarks (whether registered or unregistered), names and/or logos of Unbox; and
Unbox Materials means all inventions, products, designs, drawings, notes, documents, templates, information, improvements, works of authorship, processes, techniques, know-how, algorithms, specifications, biological or chemical specimens or samples, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials of any kind that Unbox has made, created, conceived or first reduced to practice, or may make, conceive, develop or reduce to practice, alone or jointly with others, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection.
3. THE SERVICES
3.1
Unbox will, during the Term, provide the Services materially in accordance with the terms and conditions set forth in the Agreement. Unbox shall provide the Services to Customer on a non-exclusive basis and agrees to use reasonable skill and care in carrying out the Services, and use reasonable endeavours to ensure the accuracy and completeness of the Services (including any Deliverables provided pursuant to the Services).
3.2
The parties agree that time for performance for the Services is material but not of the essence.
Platform
3.3
Before Unbox provides access to the Platform, Customer agrees to comply with any set-up and onboarding instructions relating to the provision of the Services, which may include procuring such access, personnel, cooperation and information as are reasonably required by Unbox to integrate and/or configure the Platform as necessary to supply Customer with the Platform.
3.4
Customer agrees and acknowledges that during Unbox's beta period, Unbox does not make any guarantees around the Platform's availability.
3.5
Custom Deal Customers shall:
3.5.1 not allow any End User subscription to be used by more than one individual End User, unless it has been reassigned in its entirety to another individual End User (in which case the initial End User shall no longer have any right to access or use the Platform);
3.5.2 procure that each End User shall keep a secure password for their use of the Platform, and that each End User shall keep their password confidential; and
3.5.3 maintain a written, up-to-date list of current End Users, and provide such list to Unbox within five (5) Business Days of Unbox's written request.
3.6
Unbox will, as part of its provision of the Platform and at no additional cost to Customer, provide Customer with basic customer support services in relation to the Platform during Business Hours. Any additional customer support provided by Unbox shall be as agreed between the parties, from time to time.
Consultancy Services
3.7
In the event of any delay or non or partial performance in Unbox's performance of the Consultancy Services hereunder caused by Customer (or any employee or consultant of Customer):
3.7.1 the due dates for such performance of the Consultancy Services (and all subsequent dates) shall be extended by such period as is reasonably necessary to reflect the cause of such delay or non or partial performance; and
3.7.2 Unbox shall not be liable for such delay, non or partial performance of the Consultancy Services. Unbox agrees to use its reasonable efforts to mitigate the effect of such Customer failure or delay.
3.8
In the event of any shortcomings in Unbox's performance of the Consultancy Services hereunder caused by the provision of inaccurate information from Customer (or any employee or consultant of Customer) or assistance from Customer (or any employee or consultant of Customer), Unbox shall not be liable for such shortcomings in Unbox's performance of the Consultancy Services. Unbox agrees to use its reasonable efforts to mitigate the effect of such Customer inaccuracy.
4. PRICE AND PAYMENT
4.1
Unbox will charge the Fees to Customer's nominated payment method on each Billing Date during the term of this Agreement.
4.2
Customer acknowledges that, in accordance with the foregoing, it may be liable to pay the Fees in respect of Services which are not available if such non-availability arises from its delay or default.
4.3
Failure to pay Fees when due shall be a material breach of the Agreement which entitles Unbox to suspend Customer's access to the Platform or terminate the Agreement (pursuant to Clause 11.3.1). This, in turn, will affect Customer's access to the Services. If Unbox terminates the Agreement due to Customer's material breach, Unbox will require Customer to pay all unpaid Fees without delay.
4.4
If Customer fails to pay any amount due under the Agreement, Unbox may charge Customer interest on the overdue amount, payable by Customer on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly.
5. WARRANTIES
5.1
Customer warrants, represents and undertakes that it shall:
5.1.1 comply with all Applicable Laws (and shall be responsible for obtaining all licences, clearances and consents) which apply to its use of the Services;
5.1.2 only use the Services or any component thereof (including without limitation the Platform and any Deliverables) in accordance with the terms of the Agreement;
5.1.3 not use the Services or any component thereof for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Platform;
5.1.4 not (and shall not permit any End User, if applicable, to) copy, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Platform in whole or in part, except to the extent permitted by law or with Unbox's prior written consent.
5.1.5 not introduce any virus and/or any other contaminant that may be designed to have a material, adverse effect on the Platform;
5.1.6 not infringe, misappropriate or violate Unbox's Intellectual Property Rights;
5.1.7 not do, or omit to do, anything which disparages, defames or puts into disrepute Unbox, its Intellectual Property Rights and/or the Service; and
5.1.8 be and are fully entitled to enter into and grant all rights granted under the Agreement and that entering into the Agreement shall not in any way conflict with any of Customer's existing obligations, either at the date hereof and/or throughout the Term.
5.2
Subject to the remaining provisions in this Clause, Unbox warrants that:
5.2.1 the Services (excluding any third party software or any Customer Materials) shall not infringe any third party's Intellectual Property Rights; and
5.2.2 it has the authority and right to license all rights to and in the Service as set out in the Terms of Use,
however the warranties in Clause 5.2 do not cover or apply to failures or shortcomings in the provision of the Platform caused by, arising out of or due to: (i) Customer or any End User's (if applicable) connection to the Internet; (ii) patents of which Unbox are not aware; (iii) accident, abuse or use of the Platform in a manner inconsistent with the Terms of Use; or (iv) events beyond Unbox's reasonable control.
5.3
If the Platform does not meet the warranties in Clause 5.2, Unbox will, at Unbox's sole option and as Customer's sole and exclusive remedy for any breach of such warranties, either:
5.3.1 modify, improve or update the Platform to make it conform;
5.3.2 obtain such clearances, licences and consents at Unbox's cost as may be necessary to enable Customer to use the Platform; or
5.3.3 return Fees for the Platform for the period that they failed to conform.
5.4
Except as expressly and specifically provided in the Agreement, the Services are provided by Unbox to Customer to "as is" and "as available" to the fullest extent permissible pursuant to Applicable Law. Customer acknowledges and agrees that:
5.4.1 Customer is solely responsibility to determine that the Services meet its business requirements;
5.4.2 Unbox is merely a provider of access to the Platform and accepts no responsibility for Customer's use thereof or compliance with Applicable Law or to any End User (if applicable), other than to the extent Unbox are required by Applicable Law;
5.4.3 Unbox does not warrant or guarantee any specific outcomes or results from the use of the Services;
5.4.4 Customer assumes all risks associated with implementing recommendations provided in relation to the Consultancy Services;
5.4.5 Unbox's advice, analysis, insights and Deliverables provided pursuant to the provision of the Services are based on available information at the time of service delivery and Customer acknowledges that circumstances may change and affect the relevance or applicability of the relevant components of the Consultancy Services;
5.4.6 Customer is responsible for verifying the suitability of the Consultancy Services for Customer's specific needs and circumstances; and
5.4.7 Customer shall implement and operate its own commercially reasonable and up-do-date virus prevention precautions and measures when accessing the Platform.
5.5
To the fullest extent permissible pursuant to Applicable Law, Unbox disclaims all warranties, representations, conditions and all other terms of any kind whatsoever (both express and implied by statute or common law), including:
5.5.1 implied warranties of satisfactory quality, fitness for a particular purpose and non-infringement, in relation to the Services, its use and the results of such use;
5.5.2 warranties, representations or conditions that the Services will meet Customer's requirements or be error-free; or
5.5.3 warranties, representations or conditions that the Platform will operate without interruption, be entirely secure, and not transmit viruses or other contaminating or destructive materials or elements to Customer (or their computer system).
6. LIABILITY
6.1
Neither party will be liable to the other party for: losses of profits, business, goodwill, anticipated savings, goods, contract, use or data; or for any special, indirect, consequential, or pure economic loss, costs, damages, charges or expenses.
6.2
Nothing in the Agreement excludes the parties' liability for: death or personal injury caused by the party's negligence; or fraud or fraudulent misrepresentation; or any other liability which cannot be excluded by law.
6.3
The total liability of both parties in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or otherwise arising in connection with the Agreement shall not exceed the total the fees payable in the twelve (12) months preceding the date on which the claim arose.
6.4
Subject to Clause 6.2, Unbox will not be liable under the Agreement for any claim arising out of or in connection with:
6.4.1 a modification of the Platform, or use of the Platform in combination with any third party software or data, by Customer or Customer's agents;
6.4.2 Customer's use (or use by End Users, if applicable) of the Platform in a manner contrary to the instructions given to Customer by Unbox;
6.4.3 Customer's use (or use by End Users, if applicable) of Customer Materials; or
6.4.4 Customer's use (or use by End Users, if applicable) of the Platform after notice of an alleged or actual infringement has been given to Customer by Unbox or by any appropriate authority.
6.5
If Unbox's performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer, Customer's Affiliates, agents, subcontractors, customers, employees, or End Users (if applicable), Unbox shall not be liable for any losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs sustained or incurred by Customer or Customer's Affiliates that arise directly or indirectly from such prevention or delay.
7. INDEMNITY
7.1
Customer shall defend, indemnify and hold Unbox, its Affiliates and their (and Unbox's) respective directors and employees harmless against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) arising out of or in connection with:
7.1.1 Customer's use (or that of its End Users, if applicable) of the Services (including any content supplied by Customer or End Users (if applicable) via the Platform) if not in accordance with the Agreement;
7.1.2 claims from a third party that the Customer Materials is defamatory, obscene, offensive, inaccurate or misleading;
7.1.3 any breach of Customer's warranties or representations under the Agreement;
7.1.4 any breach by Customer of applicable data protection, consumer protection, employment or other law or regulation; and
7.1.5 any claim that Customer Materials infringes, misappropriates or violates any third party's Intellectual Property Rights.
8. CONFIDENTIALITY AND AUDIT
8.1
Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall be deemed not to include information that:
8.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
8.1.2 was in the other party's lawful possession before the disclosure without obligation of confidentiality; or
8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
8.1.4 is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
8.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than for the purposes of the Agreement.
8.3
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees, sub-contractors or agents in violation of the Terms of Use or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
8.4
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party without the participation and/or knowledge of a party hereto.
8.5
Notwithstanding the above, Unbox may:
8.5.1 issue a press release, case study or public announcement (including by way of social media) relating to the subject matter of the Agreement; and
8.5.2 utilise Customer Materials and Service Data in accordance with Clause 10.5.2.
8.6
Clauses 8.1 - 8.5 shall survive termination of the Terms of Use, however arising, for a period of five (5) years.
9. DATA PROTECTION
9.1
The parties will comply with the provisions of the Data Protection Addendum to the Terms of Use.
10. INTELLECTUAL PROPERTY RIGHTS
10.1
Unbox grants to Customer a personal, non-exclusive, non-transferable right for Customer to access and use the Services solely as set out in the Terms of Use.
10.2
Unbox and/or its licensors own all Intellectual Property Rights in and to the Platform and the Deliverables. Except as expressly stated herein, the Terms of Use do not grant Customer any Intellectual Property Rights or any other rights or licences in respect of the Services or any Deliverables.
10.3
Where the Platform comprises features, data, software or other materials which are licensed from a third party, Customer shall (and shall procure that End Users, if applicable, shall) comply with all applicable policies, restrictions and limitations relating to use of such third party features and shall defend, indemnify and hold Unbox, its Affiliates and their (and its ) respective directors and employees harmless against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) suffered and/or incurred by Unbox arising out of Customer's failure to do so, provided Unbox have brought the same to Customer's attention.
10.4
Customer either owns all Intellectual Property Rights in and to the Customer Materials, or warrants that Unbox shall be entitled to use all Customer Materials for the purposes set out in the Agreement. Except as expressly stated herein, the Agreement does not grant Unbox any Intellectual Property Rights or any other rights or licences in respect of the Customer Materials and all such rights are expressly reserved to Customer (or, where applicable, the relevant Merchant).
10.5
Customer grants Unbox:
10.5.1 a non-exclusive, royalty-free licence to utilise Customer Materials for the purposes of providing the Services; and
10.5.2 a perpetual, irrevocable, non-exclusive, royalty-free licence to utilise Customer Materials for its own purposes (including to service its other customers, for benchmarking purposes, for model training purposes, for fine-tuning purposes, for internal analysis, for new product development, and to enable Unbox to administer its relationship with social media content creators).
10.6
Customer warrants that Unbox shall be entitled to use all Customer Materials, branding, marketing materials and other content provided to Unbox by Customer or the End Users (if applicable) or otherwise at Customer's direction, and that Unbox's use of the foregoing in connection with Unbox's provision of the Services shall not infringe the Intellectual Property Rights or any other rights of any third party, and that the foregoing shall not be unlawful, offensive, defamatory or obscene.
10.7
All rights, title and interest in and to the Unbox Materials, including all Intellectual Property Rights are, and shall remain, the property of Unbox. Customer hereby agrees and acknowledges that Customer will acquire no ownership of or rights in and to the Unbox Materials (save as expressly set out otherwise in the Agreement) and Unbox reserves the right to grant a licence to use the Unbox Materials to any other party. Unbox hereby grants to Customer a non-exclusive, royalty-free, limited right and licence to use the Unbox Materials solely to make use of any Deliverables for the duration of the applicable Order Form (if applicable). Any unauthorised reproduction, distribution, or use of Unbox Materials, in whole or in part, without the express written permission of Unbox is prohibited.
10.8
Unless expressly agreed otherwise in an Order Form, Customer (where acting in the capacity of an agency who is receiving the Services on behalf of, or in relation to, a Merchant) acknowledges and agrees:
10.8.1 that it shall acknowledge Unbox's authorship of any Deliverables when shared with third parties;
10.8.2 to ensure that Unbox Marks are included on any Deliverables that are shared with third parties;
10.8.3 that it will promptly cooperate with any requests from Unbox to evidence its compliance with this Clause 10.8; and
10.8.4 that failure to comply with this Clause 10.8 will constitute an irremediable material breach of the Agreement.
11. TERM AND TERMINATION
11.1
The Agreement shall:
11.1.1 commence on the Effective Date and continue until the end of the Initial Term; and
11.1.2 following the end of the Initial Term, automatically renew for periods equal to the Initial Term (each a "Renewal Term"),
until terminated in accordance with this Agreement.
11.2
Customer may terminate the Agreement on at least thirty (30) days' written notice to the other Party, and the Agreement shall terminate at the end of the Initial Term or relevant Renewal Term (as applicable).
11.3
Notwithstanding anything else contained in the Agreement, Unbox may:
11.3.1 terminate (or, at its option, suspend) the Agreement or part thereof immediately on giving notice in writing to Customer if Customer fails to pay any sum due under the Agreement (otherwise than as a consequence of any default on Unbox's part) and such sum remains unpaid for fourteen (14) days after written notice from Unbox requiring such sum to be paid; or
11.3.2 suspend access to any part of the Platform immediately without notice if: (i) Customer is in breach of the Agreement; or (ii) Customer's use of the Platform has an adverse impact on Unbox, Unbox's other customers, or any other third party (and any suspension in accordance with the foregoing shall not relieve Customer of any of its liabilities or obligations under the Agreement).
11.4
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on written notice to the other if:
11.4.1 the other party commits a material or persistent breach of any of its obligations under the Agreement and (in the case of a breach capable of being remedied) does not remedy such breach within thirty (30) days of receiving from the other party written notice of the breach and a request to remedy the breach; or
11.4.2 the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
11.4.3 the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
11.4.4 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 11.4.2 to 11.4.3 (inclusive).
11.5
Following termination of the Agreement:
11.5.1 Unbox shall refund Fees paid by Customer on a pro rata basis in respect of the then current Initial Term or Renewal, except in the event that the Agreement is terminated in accordance with Clause 11.4.1 following Customer's material breach;
11.5.2 (for any reason) any rights or responsibilities that either party has already accrued will not be affected. Additionally, any provisions that are meant to remain in effect after termination will continue to do so;
11.5.3 Unbox will promptly deliver to Customer all Confidential Information in Unbox's possession or control, save for Customer Materials and Service Data used in accordance with Clause 8.5.2; and
11.5.4 Customer will promptly deliver to Unbox all Confidential Information in Customer's possession or control.
12. FORCE MAJEURE
12.1
Provided Unbox have complied with the provisions of Clause 12.3, it shall not be in breach of the Agreement nor liable or responsible for any failure to perform, or delay in the performance of, any of Unbox's obligations under the Agreement that is caused by events outside Unbox's reasonable control ("Force Majeure Event").
12.2
Unbox's performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and Unbox will have an extension of time for performance for the duration of that period.
12.3
Unbox will use its reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out its obligations under the Agreement in any way that is reasonably practicable despite the Force Majeure Event and to resume the performance of its obligations as soon as reasonably possible.
13. VARIATIONS AND PRICE ADJUSTMENT
13.1
Subject to Clause 13.2, Unbox may revise and amend the Terms of Use from time to time to reflect changes in market conditions affecting its business, changes in technology, changes in payment methods, changes in the options available in relation to the Services, changes in relevant laws and regulatory requirements, changes in its capabilities and changes in what Unbox are able to obtain from its third party licensors, contractors and other suppliers.
13.2
Unbox may amend the Terms of Use from time to time but only to the extent reasonably necessary to comply with any requirement under or change of Applicable Law or any regulatory requirements affecting rights and/or obligations arising from or connected with the Terms of Use, and after giving to Customer as much as advance written notice as reasonably possible of such amendment and the date upon which it is to be effective. If such amendment materially prejudices Customer's interests under the Terms of Use, Customer may notify Unbox that Customer wishes to terminate the Terms of Use, and such termination shall be effective on the date upon which such amendment to the Terms of Use would otherwise be effective between the parties, unless Unbox notify Customer before that date that such amendment shall not be effective between the parties.
13.3
Customer acknowledges that from time to time, Unbox may apply upgrades to the Services, and such upgrades may result in changes to the appearance and/or functionality of components of the Services.
13.4
Customer shall not be subject to any additional charges arising out of the application of the upgrade, save where the upgrade introduces new functionality, feature or service and Customer is given the opportunity whether or not to accept it.
13.5
From twelve (12) months following the Effective Date, Unbox reserves the right to adjust the Fees, and:
13.5.1 any price adjustment will be fair and reasonable, considering market conditions and service costs;
13.5.2 Unbox will provide at least thirty (30) days' written notice of any price adjustment, specifying the new pricing and effective date;
13.5.3 if Customer disagrees with the adjustment, Customer may terminate the Agreement by notifying Unbox within fifteen (15) days of receiving the notice, and termination will be effective on the date the price adjustment takes effect;
13.5.4 continued use of the Services after the effective date of the price adjustment, without having provided notice of termination, will constitute acceptance of the new pricing; and
13.5.5 price adjustments will not apply retroactively and will only affect future billing periods.
14. GENERAL
14.1
Assignment: Customer may not assign or sub-contract the Agreement or any rights and obligations thereunder without Unbox's prior written consent (such consent not to be unreasonably withheld or delayed). Unbox may assign the Agreement to Unbox's Affiliates. Subject to the foregoing, the Agreement will bind and benefit the parties and their respective successors and assigns.
14.2
Notices: Except as set out in the Order Form (if applicable) , any notice under the Agreement must be in writing and must be delivered by email to the email address notified by a party for such purposes or to such other address as may have been notified by a party for such purposes. Such notice will be deemed to have been received when sent (or, if despatch is not in Business Hours, at 9am on the first Business Day following despatch), unless the sender receives a response to the effect that the e-mail has not been received or the recipient is not available.
14.3
Waiver: The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision.
14.4
Survival. Clauses which by their nature are intended to survive the termination of the Agreement shall remain applicable after such termination. This includes without limitation the sections regarding warranties, limitation of liability, Intellectual Property, confidentiality, Applicable Law, and competent courts.
14.5
Severance: If any provision, or part of a provision, of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the other provisions of the Agreement, which shall remain in full force and effect.
14.6
Third party rights: Other than Unbox's Affiliates, a person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.7
Entire agreement: This Agreement (the Terms of Use, the Data Protection Addendum, and the applicable [Orders]) constitutes the complete and exclusive understanding and agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by the parties hereto.
14.8
Relationship: The Agreement does not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the Parties.
14.9
Subcontracting: Unbox may use subcontractors to provide the Services provided that Unbox remain solely responsible for the Services of such subcontractors. Unbox shall provide Customer with details of Unbox's subcontractors and the Services supplied by them within a reasonable time of Customer's written request.
14.10
Counterparts: This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
14.11
Governing law and jurisdiction: The Agreement is governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom, including both contractual and non-contractual disputes.
DATA PROTECTION ADDENDUM
1. General
1.1
When each party Processes Customer Personal Data in order to provide or receive the Services:
1.1.1 Customer (if not acting in the capacity of an agency who is receiving the Services on behalf of, or in relation to, a Merchant) shall be a Controller, and Unbox shall be its Processor; or
1.1.2 Customer (if acting in the capacity of an agency who is receiving the Services on behalf of, or in relation to, a Merchant) shall be a Processor (acting on behalf of its Controller, the relevant Merchant), and Unbox shall be its Sub-processor;
("Customer Processing Activities").
1.2
The following activities shall not be subject to the terms of this Data Protection Addendum when Unbox Processes Customer Personal Data:
1.2.1 that has been aggregated or anonymised (where Unbox may use that (non-personal) data for its own purposes);
1.2.2 for the purposes set out in Clause 10.5.2, where Unbox shall be an independent Controller, and shall comply with Data Protection Laws when undertaking such Processing activities.
1.3
This Data Processing Addendum explains Unbox's and Customer's respective responsibilities in relation to the Customer Processing Activities.
2. Customer Obligations
2.1
Where Unbox collects Personal Data from Customer, or on Customer's behalf, Customer shall:
2.1.1 clearly inform the Data Subjects to whom Personal Data relates of such collection, in accordance with the transparency obligations under Data Protection Laws; and
2.1.2 secure and maintain all consents, permissions and licenses required for Unbox to lawfully transfer Customer Personal Data from Customer to Unbox.
2.2
Customer shall indemnify Unbox and keep Unbox indemnified against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) incurred by Unbox arising out of Customer's breach of this Data Protection Addendum or Data Protection Laws.
3. Unbox Obligations
3.1
In relation to the Customer Processing Activities, Unbox shall:
3.1.1 only Process the relevant Customer Personal Data on Customer's documented instructions (which shall include any instructions set out under this Agreement), unless required to do so by Applicable Laws, in which case Unbox shall inform Customer of that legal requirement before Processing (unless prohibited from doing so by Applicable Law);
3.1.2 promptly inform Customer if, in its opinion, an instruction given by Customer infringes Data Protection Laws;
3.1.3 ensure the reliability of any staff or other persons who have access to Customer Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or appropriate statutory obligations of confidentiality;
3.1.4 implement appropriate security measures to ensure a level of security appropriate to the risk in compliance with Article 32 UK GDPR;
3.1.5 taking into account the nature of the Processing, assist Customer by implementing appropriate security measures, insofar as this is possible, for the fulfilment of Customer's obligations to respond to requests to exercise Data Subject rights granted under Data Protection Laws;
3.1.6 assist Customer in ensuring compliance with its obligations pursuant to Articles 32 to 36 UK GDPR, taking into account the nature of Processing and the information available to Unbox;
3.1.7 notify Customer without undue delay on becoming aware of a Personal Data Breach affecting the relevant Customer Personal Data and fully cooperate with Customer in addressing the Personal Data Breach and its effects;
3.1.8 make available to Customer all information necessary to demonstrate compliance with the obligations laid down in this paragraph 3; and
3.1.9 at the choice of Customer, either return (to Customer) or delete all applicable Customer Personal Data, unless domestic law requires storage of any such Customer Personal Data.
4. Sub-processing
4.1
Customer hereby grants a general authorisation to Unbox to engage the Sub-processors listed here, in relation to the Customer Processing Activities.
4.2
Unbox shall procure Customer's prior written consent if it intends to replace any of the Sub-processors listed here or engage any new Sub-processors. Customer shall have thirty (30) days to object to a new Sub-processor, after which the Sub-processor will be deemed accepted by Customer.
4.3
With respect to all Sub-processors:
4.3.1 Unbox shall ensure that the arrangement between Unbox and each Sub-processor is governed by a contract, including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Data Protection Addendum; and
4.3.2 where a Sub-processor fails to fulfil their data protection obligations in respect of Customer Personal Data, Unbox shall remain fully liable to Customer for the performance of the Sub-processor's obligations.
Unbox Commerce Ltd
Registered in England & Wales under company registeration number 15828338
Registered office address: 5th Floor, 167-169 Great Portland Street, London W1W 5PF
hello@unbox-commerce.com