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GFS Standard Conditions
1 The structure of these Conditions
1.1 These Conditions are divided into five parts, as follows:
1.1.1 Part A sets out the terms which are specific to Carriage Services, including the rules on Prohibited Goods and how the Customer can claim compensation for Goods lost or damaged in transit;
1.1.2 Part B sets out the terms which are specific to Software, including the grant of licence, implementation arrangements, and the Customer’s entitlement to technical support;
1.1.3 Part C sets out the terms which are specific to the Hardware which GFS may supply such as label printers, including delivery, maintenance, and allocation of risk for loss or damage;
1.1.4 Part D sets out various provisions and legal terms which apply to everything, including provisions on payment, liability, and termination as well as compliance matters such as data protection; and
1.1.5 Part E defines some of the terms used in this Agreement and sets out some rules on how this Agreement is to be interpreted.
2 Special Terms
2.1 The Special Terms set out in the Order Form (if any) form part of the terms of this Agreement. If and to the extent that one or more Special Terms included in an Order Form signed by GFS addresses the same subject matter as one or more terms of these Conditions, then any inconsistency or contradiction between the Special Terms and these Conditions will be resolved in favour of those Special Terms.
Part A – Carriage Services and Carrier Management
3 Service Provision, sub-contracting, and Carrier substitution
3.1 Subject to payment of the applicable Carriage Fees, GFS will perform the Carrier Management Service using reasonable skill and care and will provide (or cause to be provided) the Carriage Services, on and subject to the terms of this Agreement.
3.2 GFS sub-contracts the provision of the Carriage Services to the relevant Carriers. Each Carrier may in turn sub-contract Carriage of any Consignment to further corporate or individual sub-contractors (for example, to aid in capacity planning). Notwithstanding that sub-contracting, GFS remains primarily responsible to the Customer for GFS’ obligations under this Agreement, subject to the limitations and exclusions of its liability set out in this Agreement.
3.3 GFS reserves the right at any time to discontinue or suspend the provision of some or all Carriage Services by a particular Carrier. For example, GFS may exercise this right if GFS believes that a Carrier does not have sufficient capacity or is not performing adequately, or if it consistently refuses to accept Goods for Carriage which it ought properly to accept, or if GFS’ agreement with the Carrier is terminated or GFS believes the Carrier is in financial difficulties. If GFS exercises this right, then it will give the Customer as much advance warning as is reasonably practicable, will provide reasonable assistance and advice to the Customer as part of the Carrier Management Service, and will act reasonably within the constraints of the available time and prevailing market conditions in seeking to provide a replacement Carriage Service or Carrier which is comparable in terms of features and price. The Customer acknowledges that this right is inherent to the nature of the complex and rapidly changing Carriage Service market and is an important tool in GFS’ provision of the Carrier Management Service. Nonetheless, if a replacement Carrier is unacceptable to the Customer and GFS is unable to address the Customer’s concerns to the Customer’s reasonable satisfaction within 14 days of GFS’ notification to the Customer of discontinuance or suspension of the relevant Carrier, then the Customer will be entitled to terminate this Agreement immediately by notice to GFS, such right to be exercised within 7 days of the end of such 14 day period.
4 Carriers’ terms and conditions also apply
4.1 This Agreement sets out the terms that apply in respect of all Carriage Services provided through GFS. It is designed to be reflective of industry standards and the typical content of a Carrier’s terms and conditions, but particular Carriers may nonetheless impose different or additional terms and conditions in respect of their Carriage Services and may update them from time to time. For example, a Carrier may from time to time impose new or different rules on Goods that it will or will not accept for Carriage, or it may change its compensation claims procedures. The Customer can find each Carrier’s current terms and conditions at the locations indicated in the relevant Carriage Pricing Schedule, and the Customer is encouraged to review them. GFS will, as part of the Carrier Management Service, provide the Customer with as much notice as is reasonably practicable (having regard to when GFS is informed of or finds out about changes by the Carrier) of changes to Carriers’ terms and conditions, and changes to Carriers’ compensation claims procedures will be reflected in the “GFS Seeker” Software and/or its accompanying Documentation.
4.2 Nonetheless, because Carriers may also impose different limitations and exclusions of their liability, in clause 31 (Liability) GFS limits its liability to the Customer in respect of the acts and omissions of Carriers to the liability of the Carrier to GFS.
5 Acceptance of Goods for Carriage
5.1 GFS is not a “common carrier” like the Royal Mail, and so it accepts or does not accept Goods for Carriage in its sole discretion, by agreement with the Customer in each instance (which agreement may be by way of automated process through the Software). GFS’ acceptance of Goods offered for Carriage is always subject to the terms of this Agreement.
5.2 Whenever the Customer (or, if different, the Consignor) offers Goods for Carriage, the Customer will ensure that it has full power and authority to deal with such Goods, and in particular to offer them or cause them to be offered for Carriage on and subject to the terms of this Agreement.
5.3 GFS or the Carrier may (but need not) sign a document prepared by the Customer acknowledging receipt of a Consignment. If it does so, that document will not be evidence of the condition of any of the Goods comprising such Consignment or of its or their nature, quantity, volume, or weight at the time received for Carriage, or of GFS’ or the Carrier’s inspection of them.
6 Labelling Requirements
6.1 Subject to clause 6.2 (which deals with certain dependencies which the Customer has on GFS in relation to correct labelling), it is the Customer’s sole responsibility to ensure, and the Customer will ensure, that all Goods offered for Carriage are properly, accurately, and sufficiently classified, packaged, marked, labelled, and documented:
6.1.1 in a manner which clearly and accurately shows the full address, postcode and (where relevant) contact name of Consignor and Consignee;
6.1.2 in accordance with the labelling requirements of the relevant Carrier; and
6.1.3 in accordance with applicable laws, conventions, and treaties, including laws, conventions, and treaties on the correct labelling of Dangerous Goods, Fragile Goods, liquids, powders, perishables, foodstuffs, batteries, and other Goods subject to particular labelling requirements.
6.2 Where GFS also provides the Customer with Hardware and Software for producing labels under this Agreement, the Customer will not be in breach of clause 6.1.1 or 6.1.2 in respect of a label produced using that Hardware and Software so long as:
6.2.1 the Locally Installed Software is up to date and has access to the Internet, the Hardware has adequate labels, ink and other consumables installed and neither the Locally Installed Software nor the Hardware nor any system or machinery connected to it is malfunctioning in a manner which would be apparent upon reasonable inspection;
6.2.2 the Customer has entered or imported all information correctly, completely and accurately in the Software and has used the Software and the Hardware correctly and in accordance with its documentation and GFS’ reasonable instructions from time to time;
6.2.3 the resulting label is not upon reasonable inspection plainly illegible; and
6.2.4 the Customer has correctly and prominently affixed the label to the relevant Goods, and no material part of the label is obscured.
7 Loading and unloading
7.1 Except for ordinary delivery by hand of individual Parcels to the door of the delivery address, the Customer is solely responsible for providing all necessary plant, power and labour for loading or unloading at the collection or delivery point (as the case may be), and neither GFS nor any Carrier will be under any liability whatsoever in respect of any labour or other assistance in loading or unloading which GFS or any Carrier or any of its or their respective employees, workers, subcontractors or agents may be asked to provide.
8 Prohibited Goods
8.1 Subject to clause 8.2, the Customer acknowledges and agrees that GFS does not knowingly accept for Carriage, and the Customer will therefore ensure that it does not offer for Carriage, any of the following:
8.1.1 any Dangerous Goods;
8.1.2 any Goods the Carriage, possession or supply of which is prohibited by law in any jurisdiction in which they will be reasonably likely to pass through or be present in during Carriage;
8.1.3 any Goods the Carriage of which is prohibited by any applicable Sanctions or international trade agreements;
8.1.4 any Fragile Goods unless they are correctly labelled as such, and the Customer has selected a Carriage Service expressly stated to be suitable for the Carriage of Fragile Goods;
8.1.5 any Goods incorrectly labelled in breach of clause 6 (Labelling); or
8.1.6 any Goods listed in GFS’ prohibited goods policies as updated from time to time, or the corresponding policies of the relevant Carrier as updated from time to time, as made available to the Customer,
(each and together, Prohibited Goods). In determining whether any Goods are Prohibited Goods, GFS’ and/or the relevant Carrier’s interpretation of applicable laws, regulations, treaties, and policies shall be determinative.
8.2 As an exception to clause 8.1, GFS may, in its absolute discretion, agree to accept certain specified Prohibited Goods for Carriage. That agreement will only be valid if it is validly included in the Special Terms, and may be of such scope and subject to such conditions and pre-requisites as GFS may in its absolute discretion determine.
8.3 GFS or a Carrier may reject any Consignment (or part Consignment) if, in its reasonable opinion, it is unsuitable for the Carriage Service selected by the Customer.
8.4 GFS or a Carrier may reject, or levy an additional Carriage Fee in respect of, any Consignment which, in its reasonable opinion, exceeds the specifications of the Form Factor which the Customer presents it or has labelled it as conforming to.
8.5 GFS reserves the right on behalf of itself and each Carrier to open packaging and to inspect Goods if it has reason to suspect the presence of any Prohibited Goods, and to alert and cooperate with the police or other government authorities as GFS may deem appropriate. GFS will have no liability to the Customer whatsoever arising out of or in connection with the activities contemplated by this clause 8.5.
8.6 The Customer acknowledges that, while GFS uses reasonable efforts to keep its Prohibited Goods policies and information up to date with the policies and terms and conditions of third-party Carriers, third party Carriers may reject a Consignment for reasons other than its comprising or containing Prohibited Goods as defined in this Agreement. If that happens, then GFS will provide reasonable assistance and advice to the Customer as part of the Carrier Management Service, and will do what can reasonably be expected of a carriage aggregator within the available time and prevailing market conditions to provide a replacement Carriage Service which is comparable in terms of features and price, failing which it will credit the Customer’s account for any amount of the relevant Carriage Fee which the Customer has already paid (and such alternative or credit will be the Customer’s sole and exclusive remedy for the rejection of such Consignment).
9 Carriage
9.1 For each Consignment, unless a director of GFS agrees otherwise in writing:
9.1.1 Carriage will begin when the Carrier takes possession of the Consignment from the Consignor at the point of collection or at the Carrier’s premises or drop-off point (as the case may be) and has scanned the label successfully;
9.1.2 subject to the rules on unclaimed and undelivered Consignments in clause 11, Carriage will end when the Consignment is offered for delivery at the usual place of delivery at the Consignee’s address during the customary delivery hours of the relevant Carriage Service; and
9.1.3 GFS is entitled to Carry (or procure the Carriage of) each Consignment by any means of conveyance and by any route.
10 Duties, levies, taxes, detention, and demurrage
10.1 The price of the Carriage Services does not include any duties, levies, or taxes. If GFS does pay or is compelled to pay any duty, levy or taxes imposed by any government authority in respect of any Consignment then it does so as the Customer’s agent, the Customer agrees that GFS will have full authority to do so and the Customer will immediately reimburse GFS for the full amount of such duty, levy or tax (regardless of whether or not Carriage of that Consignment is at that point complete, or of whether Carriage of that Consignment is ever completed). This clause does not prevent the Customer subsequently disputing the validity of any such duty, levy or tax with the relevant government authority, and GFS will, where it is permitted to do so, provide the Customer on request with copies of any documents it may have in its possession which are relevant to that dispute.
10.2 GFS is not a firm of accountants or tax advisers, and while GFS may as a courtesy assist the Customer in complying with the rules, regulations and laws relating to duties, levies or taxes, GFS does not thereby assume any liability arising out of or in connection with any such assistance.
10.3 The Customer is responsible for and will be liable to GFS for all losses, damages, costs, and expenses which GFS and/or a Carrier suffers or incurs by reason of any unreasonable detention of any vehicle, trailer, container, sheet, pallet or other equipment or returnable packaging, including any Carrier demurrage charges.
10.4 The Customer shall defend, indemnify and hold harmless GFS and its affiliates, officers and employees from and against any and all losses, damages, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs and expenses (including legal expenses) arising out of, or related to, tariff related claims associated with any Consignment including where tariff related liabilities arise that were not reasonably foreseeable at the time of contracting. The Customer shall have the right to control the defence of any claim for which indemnification is sought by GFS under this clause provided the Customer shall not settle any claim in any manner that admits fault or wrongdoing by GFS or imposes obligations on GFS without GFS’s prior written consent. Customer shall maintain complete and accurate records related to tariff classifications, country of origin determinations, custom entries and other import/export documentation for all products included in any Consignment for a period of 6 years after the import or export. On reasonable request, the Customer shall provide a copy of such records. The Customer shall be liable under this clause for providing incorrect information related to tariff classification, country of origin or product composition and failure to comply with custom regulations.
11 Unclaimed and undelivered Consignments
11.1 If for any reason a Consignment is held by the Carrier or by GFS (as the case may be) as “held for re-delivery” or “to be held until called for”, or upon any like instructions, and the Customer does not give those instructions or the Consignment is not called for and removed within the time period prescribed by the relevant Carrier (or if no such time period is so prescribed, 7 days), then Carriage will be deemed to end. GFS or the Carrier (as the case may be) may return such Consignment to the Consignor or store such Consignment, in each case at the Customer’s sole cost and risk, and after a reasonable amount of time has passed without further instruction GFS may dispose of it (or cause it to be disposed of) in accordance with clause 14.
12 Compensation for loss of or damage to Goods
12.1 Subject to the exceptions set out in clause 12.2, the Customer will be entitled to claim through GFS compensation for the replacement cost of Goods lost or damaged during Carriage, up to the applicable compensation limits and subject to the relevant compensation conditions for the relevant Carrier and Carriage Service, as set out at https://gfsdeliver.com/claims-terms-conditions/ or in the Carriage Pricing Schedule and as the Carrier may update them from time to time (Damaged Goods Compensation). If the Carriage Pricing Schedule does not specify an applicable limit on Damaged Goods Compensation in respect of the relevant Carrier, the default limits in the Carriage Pricing Schedule will apply. Damaged Goods Compensation will be the Customer’s sole and exclusive remedy for any and all losses, claims, damage, costs, expenses and liabilities arising out of or in connection with loss of, or damage to, Goods during Carriage, the Customer acknowledging that the applicable Carriage Fees are set at a level reflecting the corresponding level of Damaged Goods Compensation and that any greater level of protection which the Customer may require is properly achieved through the Customer’s goods in transit insurance arrangements. As a condition of paying Damaged Goods Compensation, GFS will be entitled to require proof of the damage to and/or value of the relevant Goods, and to make such proof available to the relevant Carrier.
12.2 The Customer will not be entitled to Damaged Goods Compensation (or any other remedy whatsoever) if the relevant loss, claim, damage, cost, expense, or other liability arises out of or in connection with:
12.2.1 Force Majeure;
12.2.2 any Consignment containing Prohibited Goods, unless, and only to the extent that, GFS has agreed to Carry such Prohibited Goods pursuant to clause 8.2 and has agreed that Damaged Goods Compensation will be payable in respect of such Prohibited Goods;
12.2.3 the Consignee not taking or accepting delivery within a reasonable time;
12.2.4 the Customer’s breach of this Agreement;
12.2.5 any Consignment containing Fragile Goods, unless the relevant Service is specifically stated by GFS to be suitable for Carriage of Fragile Goods without breakage, and the relevant Consignment is clearly marked as “Fragile”;
12.2.6 any Goods (or any part of any Goods) comprising liquid;
12.2.7 the act or omission of any of the Customer, the Consignor, the Consignee, or any of their respective employees, servants or agents;
12.2.8 inherent liability to wastage in bulk or weight, latent or inherent defect, market price fluctuations, natural deterioration, ordinary wear and tear, depreciation, insects, vermin, or the effect of any cleaning, dyeing or restoring process;
12.2.9 seizure under legal process; or
12.2.10 any other matter stated to apply in respect of a particular Carrier or Carriage Service in the Carriage Pricing Schedule.
12.3 To claim Damaged Goods Compensation, the Customer must:
12.3.1 notify GFS of the claim within the time specified for the relevant Carrier and Carriage Service in the “GFS Seeker” user guide, or if no such time is specified, within 14 days of the date of dispatch;
12.3.2 procure that the relevant Consignment (including wherever possible its packaging) is held for inspection by GFS or the relevant Carrier (as the case may be) at the place of delivery; and
12.3.3 comply with GFS’ then-current claim procedure and GFS’ reasonable instructions in respect of the claim,
failing which the Customer will not be entitled to Damaged Goods Compensation.
13 Customer indemnities in respect of Carriage Services
13.1 The Customer will indemnify and keep indemnified GFS from and against any and all losses, claims, damages, liabilities, costs (including legal fees) and expenses incurred by it, by its Affiliates, or by any Carrier which arise out of or in connection with:
13.1.1 the Customer’s breach of clause 6 (Labelling);
13.1.2 death, personal injury or damage to property caused by any of the Customer, the Consignor or the Consignee, or by any of their respective officers, employees, servants, agents or subcontractors;
13.1.3 any Prohibited Goods (whether or not accepted for Carriage in accordance with clause 8.2);
13.1.4 incorrect Use or configuration of the Software, or entry of incorrect data into the Software;
13.1.5 incorrect use of or failure to maintain any Hardware, including by failure to replenish consumables as required;
13.1.6 any duty, levy, tax, demurrage charge or other amount which GFS pays pursuant to clause 10; and
13.1.7 any cost, expense, liability or penalty which GFS, any Carrier or any of its or their respective employees, workers, subcontractors or agents may incur or suffer in connection with the acts or omissions of any government authority (including police, tax authorities and customs authorities) which arise out of the Customer’s fraud, negligence, unlawful conduct or breach of this Agreement, including costs, expenses, liabilities and penalties incurred in connection with police powers of search and seizure and/or the exercise of powers under the Value Added Tax Act 1994 and/or the Customs and Excise Management Act 1979 (and equivalent legislation in any other relevant jurisdiction).
14 Carrier’s lien and sale of Goods
14.1 GFS will have:
14.1.1 a particular lien on each Consignment; and
14.1.2 a general lien against the owner of each Consignment and each other person having an interest in it,
in each case in respect of all amounts owed to GFS by the Customer and the cost of recovering such amounts.
14.2 If any such lien, whether particular or general, is not satisfied within a reasonable time, GFS may sell any Consignment, or part of it, as agent for the owner, and apply the proceeds towards any amounts unpaid and the expenses of the retention, insurance, and sale. GFS will account to the Customer (on its own account or as the owner’s agent) for any balance thereafter remaining and will thereupon be discharged from all liability whatsoever in respect of each relevant Consignment.
14.3 GFS may exercise its lien regardless of whether Carriage of the relevant Consignment is completed. Where GFS becomes entitled to exercise its lien, it will at that point cease to be under any obligation to perform or complete Carriage (as the case may be).
Part B – Software
15 Software implementation and Go Live
15.1 Within a reasonable time following the Effective Date and subject to the Customer’s payment of the Implementation Fees (if any), GFS and the Customer (acting reasonably) will agree an implementation plan setting out: (i) each task which must be completed to achieve Go Live; (ii) who is responsible for performing it; and (iii) the process for the Customer’s acceptance of implementation (for example, a written document confirming acceptance). Each of GFS and the Customer will then promptly carry out its respective obligations under that implementation plan, using reasonable skill and care. The Customer acknowledges and agrees that implementation may be delayed if it does not promptly perform those tasks which are its responsibility; in particular, the Customer is responsible for ensuring that appropriate and sufficient power and network connections are available at any Customer sites where Software is to be installed or configured, that any hardware not supplied by GFS meets GFS’ requirements for the Software and is in good working order, and that any Customer sites to be visited by GFS during implementation are safe and accessible to GFS.
15.2 Implementation is complete when the acceptance testing process as set out in that implementation plan has been performed successfully, whereupon the parties will agree a mutually convenient date for Go Live falling no later than 30 days following the date on which acceptance testing is complete (and if no such date is agreed, Go Live will be deemed for the purposes of the Licence Pricing Model to be the date falling 30 days after it is complete).
16 The Customer’s right to Use the Software
16.1 Subject to the Customer’s compliance with the terms of this Agreement, GFS grants to the Customer and the Licensed Customer Entities a non-exclusive, royalty-free, non-transferable (save in accordance with this Agreement) right:
16.1.1 to Use the Software within the Licence Scope, in the Designated Territory, and for the Licensed Customer Entities’ own business purposes;
16.1.2 in the case of Locally Installed Software, to make a reasonable number of backup copies of it (up to a maximum of 5 copies) for the sole purposes of business continuity and disaster recovery; and
16.1.3 to make a reasonable number of copies of the Documentation and to distribute those copies to Licensed Users only,
in each case from Go Live and solely during the Term, and provided that all such licences cease upon Termination.
16.2 Save for the express grants in clause 16.1, no Licensed Customer Entity will have any right to access, load, execute, copy, distribute, create derivative works from, sublicense or otherwise enjoy, derive benefit from or exploit the Software (or any of its associated program code, databases, data structures and file structures) or the Documentation, or permit any other person to do so, and all of GFS’s rights in the Software and the Documentation are fully reserved.
16.3 As a particular condition of the rights granted in clause 16.1, the Customer will not (and will procure that no other Licensed Customer Entity will):
16.3.1 Use (or permit any Licensed Customer Entity to Use) the Software beyond the Licence Scope;
16.3.2 reverse engineer, disassemble, decompile or translate the Software, or in any way attempt to derive or access the source code, data structures, resource files or underlying logic of the Software, except and only to the extent: (i) required in order to give effect to a right granted to the Customer to modify the Open Source Software under the licence terms applicable to that Open Source Software; or (ii) explicitly permitted under applicable law without possibility of contractual waiver;
16.3.3 use the Software or the Documentation (or the information contained within it) to develop or market any software or product which competes with the Software;
16.3.4 resell or make the Software available for Use by any third party (other than a Licensed Customer Entity) while providing a service bureau, an outsourced service, or otherwise on a “for hire” basis; or
16.3.5 Use the Software in a manner or for a purpose which is unlawful.
16.4 GFS will be entitled, upon reasonable notice and during the Customer’s normal business hours, to require the Customer to provide it with copies of all information relevant to, and access to premises as necessary for the purpose of, verifying compliance by each Licensed Customer Entity with the Licence Scope and this clause 16.4. This clause 16.4 will not require the Customer to reveal any of its confidential information (or that of any Licensed Customer Entity or any other third party) which is unrelated to such compliance, and the Customer will accordingly be entitled to supervise GFS’ access to any premises pursuant to this clause 16.4.
17 Use of Locally Installed Software
17.1 This clause 17 applies where the Software is Locally Installed Software.
17.2 Reasonably promptly following the Effective Date, GFS will make the Software available to the Customer to download. The Customer may instead request that GFS provide physical installation media for the Software, in which case GFS will send the Customer a copy of the Software on suitable digital media to the address in the Order Form. GFS may make a charge for provision and delivery of such physical installation media, in which case it will add such charge to its first invoice for the Licence Fee, and the Customer will pay such charge in accordance with this Agreement. Unless agreed otherwise in an implementation plan made under clause 15.1, the Customer is responsible for installing the Software.
17.3 GFS will use reasonable efforts commensurate with its position as a software developer to ensure that the copy of the Software delivered or made available to the Customer is free of Malware, but the Customer remains responsible for the security and integrity of its own computer systems and GFS will therefore not be liable in respect of any Malware which may enter the computer systems of any Licensed Customer Entity notwithstanding those efforts.
17.4 The Customer is responsible for ensuring that its systems, and those of each other Licensed Customer Entity, function correctly and meet the minimum requirements for Use of the Software (as set out in the Documentation or as otherwise specified by GFS).
17.5 Where GFS distributes Open Source Software to the Licensed Customer Entities together with Locally Installed Software, the Open Source Software is licensed to the Licensed Customer Entities directly by the original owner of the Open Source Software, on the terms of the applicable open source licence to which it is subject. The Open Source Software is not part of the Software but, insofar as it is required to Use the Software in accordance with this Agreement, GFS will support unmodified versions of it through provision of the Support Services as if it were part of the Software.
18 Use of Hosted Software
18.1 This clause 18 applies where the Software is Hosted Software.
18.2 Reasonably promptly following the Effective Date, GFS will create such user accounts for Licensed Users as the Customer may request within the applicable Licence Scope (each, a User Account). To the extent not available to the Customer to do itself through the functionality of the Software, the Customer may request, and GFS will perform, changes to User Accounts and creation of further User Accounts as part of the Support Services (subject always to the limitations of the Licence Scope).
18.3 GFS will use reasonable efforts commensurate with its position as the provider of the Software to maintain the availability of the Software but reserves the right to make the Software unavailable from time to time for maintenance purposes. GFS will use reasonable efforts to inform the Customer in advance of its scheduled maintenance programme. If the Software should be unavailable for any reason other than scheduled maintenance, the Customer’s sole and exclusive remedy will be to receive the Support Services.
18.4 The Customer is responsible:
18.4.1 for ensuring that its systems, and those of each other Licensed Customer Entity, function correctly and meet the minimum requirements for Use of the Software (as set out in the Documentation or as otherwise specified by GFS); and
18.4.2 for maintaining its, and each other Licensed Customer Entity’s, connection to the Internet, and for configuring its firewalls as required to allow the Software to communicate as designed,
it being agreed that Internet connection failures or performance problems whose root cause lies outside either party’s own systems will be deemed to be Force Majeure.
18.5 The Customer will procure that, while Using the Software, each Licensed User will not upload or introduce to it any material:
18.5.1 which is Malware;
18.5.2 which is a trade secret of, or otherwise confidential to, any third party;
18.5.3 in which a third party has Intellectual Property Rights, unless the relevant Licensed Customer Entity has all necessary rights to upload or introduce such material and distribute it to the Licensed Customer Entities and GFS; or
18.5.4 which is unlawful, offensive, obscene, defamatory or which tends to promote discrimination on the basis of a characteristic protected by law.
18.6 As between the Customer and GFS, the access credentials associated with each User Account are the Confidential Information of GFS, and therefore (without prejudice to the generality of clause 37) the Customer:
18.6.1 will not (and will procure that each Licensed User will not) share them with any third party;
18.6.2 will procure that no Licensed User will share the access credentials associated with his or her User Account with any other Licensed User; and
18.6.3 will promptly inform GFS of any breach of this clause 18.6 and take any other reasonable measures within its control to mitigate such breach (including changing passwords, where applicable).
18.7 GFS reserves the right to suspend the Customer’s access to Hosted Software (or the access of any particular Customer Licensed Entity or Licensed User) if, in GFS’ reasonable opinion, it is necessary or advisable in order to protect GFS’ computer systems or those of GFS’ other customers, or if the Customer has failed to pay any Fees when due. If GFS does so, it will promptly inform the Customer of what it has suspended and why and will reinstate the suspended access reasonably promptly following resolution by the Customer to GFS’ reasonable satisfaction of the event or circumstances which prompted the suspension. Suspension of access to Hosted Software in accordance with this clause 18.7 will not relieve the Customer of its obligation to pay the Fees.
19 Updates
19.1 GFS may (but need not) from time to time during the Term release Updates to the Software. Updates may be:
19.1.1 maintenance Updates, designed to correct Errors in the Software or to update the Software to ensure that it continues to operate correctly, (for example, to reflect changes in Carrier requirements); or
19.1.2 functionality Updates, designed to add new features to the Software.
19.2 In order to maintain functionality and to ensure currency and continued compatibility with the systems, practices, and policies of Carriers:
19.2.1 GFS may apply Updates to Hosted Software at any time, using reasonable efforts to inform the Customer first if the Updates make significant changes to the Hosted Software; and
19.2.2 the Customer will procure that it installs all Updates to Locally Installed Software promptly upon release (for example, by enabling the relevant automatic update feature).
19.3 GFS will use reasonable efforts to ensure that any Update does not introduce any Errors, but if any Update should introduce Errors the Customer’s sole remedy will be to receive the Support Services.
20 Support Services
20.1 During the Term and subject to payment of the Fees, GFS will provide Support Services in respect of the Software to the Licensed Customer Entities:
20.1.1 by telephone and email; and
20.1.2 during the Support Availability Hours only,
using reasonable endeavours to resolve (permanently or temporarily) or work around Errors in the Software.
20.2 GFS charges for the Support Services at the Support Rate. Onsite support is not included in the scope of the Support Services.
20.3 Nothing in this clause 20 will oblige GFS to:
20.3.1 provide any technical services to the Customer other than the Support Services; or
20.3.2 resolve or work around any Error arising from or caused by:
(a) any modification (whether by way of alteration, deletion, addition or otherwise) made to any part of the Software by anyone other than GFS;
(b) any equipment or third-party software used in connection with the Software (other than the Third Party Software and the unmodified Open Source Software); or
(c) the Customer’s failure to install Updates; or
20.3.3 make any changes or additions to, or customisations of, the Software, except as is necessary to correct Errors.
20.4 Receipt of the Support Services will be the Customer’s sole and exclusive remedy in respect of the warranties in clauses 23.1.2 and
21 Carrier Data
21.1 Where the Software enables access to Carrier Data, the Customer acknowledges that GFS is not affiliated with, and has no control over, the owners or providers of Carrier Data. Therefore, each Licensed Customer Entity accesses and uses Carrier Data entirely at its own risk and, in particular, GFS makes no promise or representation and gives no warranty that any Carrier Data will be accurate, complete, not misleading, accessible, available or free of Malware.
21.2 The Customer is not licensed to use, must not use, and must ensure that no other Licensed Customer Entity does use, any Carrier Data outside of the Software except to the extent to which it is made available for export through the reporting functions of the Software.
22 Indemnities relating to the Software
22.1 GFS will indemnify each Licensed Customer Entity against any losses, damage, liability, costs (including reasonable legal fees) and expenses incurred by it as a result of any claim brought against it by a third party that the Software, when Used by that Licensed Customer Entity in accordance with this Agreement, infringes the Intellectual Property Rights of that third party (a third-party IP Claim).
22.2 Clause 22.1 will only apply if the Customer (and/or the relevant Licensed Customer Entity, as the case may be):
22.2.1 promptly (and in any event in sufficient time to allow GFS to consider and respond within the prescribed time limits) notifies GFS in writing of such third-party IP Claim, setting out full details;
22.2.2 does not make any admission, agree any settlement or otherwise dispose of such third-party IP Claim without GFS’s prior written consent;
22.2.3 on request by GFS gives to GFS conduct of such third-party IP Claim (including negotiation and settlement thereof);
22.2.4 gives to GFS all reasonable information and assistance to enable GFS to defend or settle such third-party IP Claim; and
22.2.5 takes all other reasonable steps to reduce or mitigate all loss, damage, liability, cost, and expense covered by the indemnity in clause 22.1.
22.3 Clause 22.1 will not apply to:
22.3.1 any claim arising out of combination or use of the Software with any other product or service not provided by GFS, if the claim would have otherwise been avoided; or
22.3.2 any use of the Software other than in accordance with the Documentation and this Agreement.
22.4 In the event of a third-party IP Claim, or if in GFS’s reasonable opinion a third-party IP Claim is likely, GFS may, at its own expense:
22.4.1 procure for each affected Licensed Customer Entity the right to continue Use of the Software in accordance with this Agreement; or
22.4.2 modify or replace the part of the Software which is the subject of the third-party IP Claim so as to avoid the claimed infringement,
and if GFS cannot by reasonable endeavours accomplish either of the above on reasonable terms, it will refund to the Customer any paid but unused portion of the applicable Fees whereupon this Agreement will terminate and save for the indemnity in clause 22.1 above GFS will have no further liability to any Licensed Customer Entity under or in connection with this Agreement.
23 GFS’ warranties in relation to the Software
23.1 GFS warrants to the Customer that:
23.1.1 it is the owner or licensee of the Software, and it has the right to grant the licences which it grants in this Agreement;
23.1.2 during the first 90 days following Go Live, the Software when correctly used in accordance with this Agreement will perform substantially in accordance with the Documentation;
23.1.3 nothing in the terms of GFS’s licence to the third-party Software will invalidate the terms of the licences granted in this Agreement;
23.1.4 it has, in selecting the third-party Software and Open-Source Software, and testing its interoperation with the Software, exercised reasonable skill and care and has (subject to any caveats or known issues specified in the Documentation) found the third-party Software and Open Source Software to interoperate substantially correctly with the Software during such testing; and
23.1.5 it will perform the Support Services with reasonable skill and care and has the necessary capabilities to do so.
Part C – Hardware
24 Supply of Hardware and risk in Hardware
24.1 The Order Form may specify that GFS will provide certain Hardware to the Customer. GFS will deliver that Hardware to the Customer as soon as practicable following the Effective Date, and (subject to stock availability) will do so in line with any implementation plan agreed in respect of the Software under Part B of these Conditions.
24.2 Risk in the Hardware will pass to the Customer upon delivery.
25 Hardware which is sold
25.1 If the Order Form says that the Hardware is sold to the Customer, then GFS agrees to sell, and the Customer agrees to buy the specified Hardware. GFS will invoice the Customer for the purchase price specified in the Order Form and the Customer will pay that invoice in accordance with the Payment Terms. Title to the Hardware will remain with GFS until such payment, whereupon it will pass to the Customer.
25.2 In the event of a defect in or malfunction of Hardware that is sold to the Customer, then the Customer’s sole and exclusive remedy will be under the applicable manufacturer’s warranty. GFS will provide reasonable assistance to facilitate RMA requests and warranty repairs.
26 Hardware which is loaned
26.1 If the Order Form provides that the Hardware is loaned to the Customer, then title to the Hardware will always remain with GFS, and upon Termination of this Agreement the Customer will return the Hardware to GFS in good and clean condition, save for reasonable wear and tear.
26.2 In the event of a defect in or malfunction of Hardware that is loaned to the Customer, then GFS will provide suitable replacement Hardware within a reasonable time. If that defect or malfunction is caused by accidental or deliberate damage to the Hardware or misuse of it, then GFS will be entitled to invoice the Customer for (and the Customer will pay) the replacement cost of that Hardware.
27 Consumables
27.1 The Customer is solely responsible for procuring and ensuring that it has a sufficient stock of consumables of the correct types for all relevant Hardware. Where the Order Form provides for it, the Customer may purchase consumables from GFS at the prices set out in the Order Form.
Part D – Payment and Legal Matters
28 Fees and payment
28.1 GFS will invoice the Customer for the Fees, and the Customer will pay each such invoice without deduction or set-off, in accordance with the Payment Terms. Where VAT is chargeable in respect of any Fees, GFS will add VAT to its invoice at the then-prevailing rate, and the Customer will pay such VAT together with the Fees.
28.2 GFS may change the Payment Terms (for example, by withdrawing credit or requiring the Customer to maintain a pre-paid balance as a condition of continuing to receive Carriage Services or Use the Software) if:
28.2.1 it serves a notice of Termination, or becomes entitled to Terminate this Agreement, in accordance with its terms for reasons other than convenience;
28.2.2 the Customer ceases, or indicates expressly or implicitly its intention to cease, use of the Carriage Services;
28.2.3 there is (in the sole opinion of GFS) a material adverse change in the creditworthiness of the Customer;
28.2.4 the Customer fails to pay to GFS any Fee or other amount payable in connection with this Agreement by its due date for payment;
28.2.5 the Payment Terms include payment by Direct Debit and the Customer cancels the relevant Direct Debit mandate; or
28.2.6 continuing to offer the existing Payment Terms would (in GFS’ reasonable opinion) be capable of having some other material adverse effect on the business of GFS.
28.3 Additionally, and without prejudice to any other right or remedy GFS may have, if the Customer:
28.3.1 fails to pay any Fee or other amount payable in connection with this Agreement by its due date for payment;
28.3.2 stops or suspends payment of any of its debts;
28.3.3 is unable to, or admits its inability to, pay its debts as they fall due;
28.3.4 commences negotiations, or enters into any composition, compromise, assignment or arrangement, with one or more of its creditors because of actual or anticipated financial difficulties; or
28.3.5 takes any action, proceeding, procedure or preparatory step in relation to suspension of payments, a moratorium of any indebtedness, winding up, dissolution, administration, or reorganisation (using a voluntary arrangement, scheme of arrangement or otherwise) of the Customer,
then GFS may take any or all of the actions set out in clause 29.4.
28.4 The actions referred to in clause 29.3 are:
28.4.1 on demand and without prejudice to any other right that GFS may have, to require that all unpaid amounts already invoiced by GFS to the Customer (including any accrued interest on such amounts) become due and payable in full and without set-off or counterclaim, irrespective of any payment date that would otherwise apply, or any prior credit or payment arrangement agreed with the Customer;
28.4.2 exercise of its rights under clause 14; and
28.4.3 termination of this Agreement or suspension of the provision of Carriage Services, the Carrier Management Service, Hosted Software and/or Support Services to the Customer.
28.5 The Customer may not rely upon the existence of a claim or counterclaim by the Customer against GFS to withhold payment to GFS of amounts properly due under this Agreement.
29 Changes to Fees, Traffic Profiles and Minimum Volume Commitments
29.1 GFS may by notice to the Customer change the Carriage Fees in the manner set out in the Carriage Pricing Schedule, and the Licence Fees in accordance with the Licence Pricing Model.
29.2 GFS additionally reserves the right to review and revise the Carriage Fees by notice to the Customer:
29.2.1 if the Customer’s actual Consignment traffic falls below any of the volume metrics in the Projected Traffic Profile by more than 20 percent for more than one month;
29.2.2 if the relevant Carrier increases its charges, by an amount reflective of that increase; and
29.2.3 in any event annually, subject to any limits or alternative arrangements set out in the Special Terms.
29.3 If the Order Form specifies a Minimum Volume Commitment and the Customer’s actual Consignment traffic falls below it, then GFS may charge to the Customer the corresponding Minimum Volume Surcharge for the shortfall in the number of Consignments.
30 Liability
30.1 Nothing in this clause 31 will limit or exclude GFS’ liability:
30.1.1 for death or personal injury caused by its negligence;
30.1.2 for fraud or fraudulent misrepresentation; or
30.1.3 for any other matter for which it is unlawful under English law to limit or exclude liability (as the case may be).
30.2 GFS will have no liability arising under or in connection with this Agreement for:
30.2.1 any losses, claims, damage, costs, expenses and liabilities arising out of or in connection with any Prohibited Goods;
30.2.2 any losses, claims, damage, costs, expenses and liabilities arising out of or in connection with loss of, or damage to, Goods during Carriage over and above any Damaged Goods Compensation which may be payable pursuant to clause 12;
30.2.3 any other losses, claims, damage, costs, expenses and liabilities arising out of or in connection with the act or omission of any Carrier, in excess of the amounts which GFS is itself able to recover from the relevant third-party Carrier in respect thereof;
30.2.4 any loss of profits or revenue;
30.2.5 any account of GFS’ profits or those of its Affiliates;
30.2.6 any increased costs;
30.2.7 any loss of anticipated savings;
30.2.8 any loss of opportunity;
30.2.9 any loss, destruction or corruption of data;
30.2.10 any loss of or damage to reputation, brand or goodwill;
30.2.11 any loss of management time or the cost of any increased administrative burden; or
30.2.12 any indirect or consequential loss.
30.3 Subject to clauses 31.1 and 31.2, GFS’s total aggregate liability arising under or in connection with this Agreement will be limited to an amount equal to 125% of the Fees paid to GFS by the Customer in the 12 months preceding the event (or last of the series of events) giving rise to such liability.
30.4 Save for the express warranties set out in this Agreement, GFS gives no other warranty, express or implied, and all representations, warranties and conditions implied by law or trade custom are excluded to the fullest extent permitted. In particular, the Customer acknowledges and agrees that neither the Software nor the Carriage Services have been tailored to its particular needs, and that it is solely responsible for assessing their fitness for the Customer’s intended purpose.
31 Term and Termination
31.1 This Agreement will take effect on the Effective Date and, unless terminated earlier in accordance with its terms, will expire at the end of the Term.
31.2 GFS may terminate this Agreement for convenience by 7 days’ written notice to the Customer.
31.3 Without prejudice to its other rights under this Agreement, GFS may terminate this Agreement by 7 days’ written notice to the Customer if the Customer fails to pay when due any invoice issued to it by GFS, GFS notifies the Customer that the relevant invoice is overdue for payment, and the Customer nevertheless fails to pay the relevant invoice within 14 days of such notification.
31.4 Either party may terminate this Agreement immediately by written notice to the other if the other party: (i) commits any material breach of this Agreement and (if the breach can be remedied) it fails to remedy the breach within 7 days; or (ii) commits a material breach of this Agreement which cannot be remedied. For the purposes of this clause, a breach is remedied only if the breaching party ceases the conduct causing the breach and takes all necessary steps to procure that the other party is not disadvantaged by the breach and is otherwise in the position it would have been in but for the breach.
31.5 Without limitation, any breach by the Customer of clauses 6 (Labelling) or 8 (Prohibited Goods) will be a material breach of this Agreement for the purposes of clause 32.4.
32 Consequences of Termination
32.1 Immediately upon Termination of this Agreement, the Customer will:
32.1.1 cease all use of the Carriage Services (but Carriage Fees will continue to be payable in respect of any Carriage Services actually used by the Customer following Termination, including any Carriage which is in progress as of the effective date of Termination);
32.1.2 cease and will procure that each Licensed Customer Entity promptly ceases all Use of the Software;
32.1.3 return to GFS any Hardware which is loaned to the Customer; and
32.1.4 return to GFS or destroy all copies of the Software and the Documentation then in its possession or control.
32.2 Termination of this Agreement will not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of such Termination.
33 Force majeure
33.1 GFS will not be liable for failures, delays or reduced performance caused by or resulting from any Force Majeure.
34 Intellectual Property
34.1 Nothing in this Agreement or any document referred to in it will change the ownership of the Intellectual Property Rights of either party.
35 Data protection
35.1 Words and phrases which have defined meanings in the Data Protection Laws will have the same meanings when used in this clause 36.
35.2 Each of GFS and the Customer will, in performing this Agreement, comply with the Data Protection Laws applicable to it.
35.3 In performing this Agreement, GFS will necessarily process as processor certain personal data of which the Customer or one or more of the Customer’s Affiliates is a controller, which personal data can be summarised as follows (the “Processor Data”):
35.3.1 in performing the Carriage Services and the Carrier Management Service, GFS will process the name, address and contact details of the Consignee, together with associated delivery and/or collection information such as delivery instructions, delivery attempt history, and evidence submitted in relation to claims for Damaged Goods Compensation containing or revealing personal data;
35.3.2 in providing the Hosted Software, GFS will process the login details of the Customer’s users and such other data as the Customer may upload or import into the Hosted Software in the course of its use, including (as applicable) the personal data processed in the course of provision of the Carriage Services; and
35.3.3 in performing the Support Services, any personal data posted to the support ticket (e.g. user contact details).
35.4 Where GFS processes the Processor Data as processor, it will:
35.4.1 process the Processor Data only on the written instructions of the Customer (and the Customer hereby instructs GFS to process such personal data as is reasonably necessary to perform this Agreement);
35.4.2 take the measures described in the Security Policy to secure the Processor Data from accidental or unauthorised loss, destruction or use;
35.4.3 ensure that its staff who process the Processor Data have committed themselves to confidentiality;
35.4.4 ensure that any sub-processor engaged to process the Processor Data is engaged in compliance with articles 28(2) and 28(4) UK GDPR, provided that it is nonetheless acknowledged and agreed that Carriers will process personal data according to their own terms and conditions and published privacy notices, and GFS’ responsibility in respect of those Carriers is to ensure that its contract with the Carrier contains terms meets the requirements of UK GDPR, including article 28 of UK GDPR insofar as a Carrier acts as a processor;
35.4.5 assist the Customer, at the Customer’s cost, through appropriate technical and organisational measures (insofar as possible) to respond to a request by a data subject to exercise his or her rights in respect of the Processor Data;
35.4.6 assist the Customer, at the Customer’s cost, in ensuring compliance with articles 32 to 36 GDPR in respect of Processor Data, taking into account the nature of the processing and the information available to GFS;
35.4.7 make available to the Customer all information necessary to demonstrate GFS’ own compliance with this clause 36.4, and allow for and contribute to audits, including inspections, of GFS on reasonable notice and during business hours, not more frequently than once per calendar year (unless required by the ICO), conducted by the Customer or another auditor mandated by the Customer, subject always to the confidentiality provisions of this agreement (and where the auditor is not the Customer, the Customer shall be responsible for the auditor’s compliance);
35.4.8 use reasonable efforts to procure for the Customer on request information from the Carriers demonstrating their compliance with their own data protection commitments, including audits and inspections where and to the extent permitted by the applicable Carrier; and
35.4.9 upon expiry of this agreement or termination of this agreement for any reason, delete or return such Processor Data to the Customer (as the Customer may elect), unless the laws of England require its retention.
35.5 Subject to GFS’ compliance with clause 36.4.4, the Customer provides a general authorisation to GFS to engage sub-processors, as follows:
35.5.1 in respect of the Carriage Services, the Carriers and their subcontractors (it nonetheless being acknowledged and agreed that certain Carriers also provide “value add” services such as direct SMS notifications and tracking apps direct to consumers, and that the Carriers act as independent controllers in so doing); and
35.5.2 in respect of the Hosted Software and GFS’ own internal systems used for the purposes described at clause 36.3 above, GFS’ third-party hosting and technology service providers, chiefly the Microsoft Azure platform (further details available on request).
35.6 In addition to the above, GFS uses the data passing through and logged by its systems, including some of the data described at clause 36.3 above, to derive statistical information about parcel carriage and related information. That statistical information is not itself personal data, but some personal data is incidentally processed in the creation of that statistical data. GFS acts as controller in respect of that processing and uses appropriate anonymisation techniques to guard against re-identification.
36 Confidentiality and Publicity
36.1 Each party will keep confidential, and will not use for its own purposes (other than the exercise of its rights and the performance of its obligations under this Agreement) without the prior written consent of the other, or disclose to any third party (except its Affiliates and its and their respective professional advisors or as may be required by any law or any legal or regulatory authority), any and all information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
36.2 GFS may refer to the Customer by name in its sales pitches and publicity material, provided that in doing so it does nothing to damage or bring into disrepute the Customer’s reputation, brand or goodwill. Any more detailed public statements relating to this Agreement (including press releases) must be agreed in writing by both parties.
36.3 The Customer will not and will procure that its staff and those of its Affiliates will not publicly disparage GFS or its staff, including on social media.
37 Changes to this Agreement
37.1 The Customer acknowledges that this Agreement been drafted by reference to the applicable law, Carrier terms and conditions and industry best practices prevailing as at the Effective Date. It may from time to time be necessary or desirable for GFS to amend this Agreement to take account of changes in applicable law, Carrier terms and conditions, industry best practice or matters arising which are beyond GFS’ reasonable ability to predict (each, a Change Event). In response to an actual or anticipated Change Event, GFS may amend this Agreement to take reasonable account of it by posting an updated version of these Conditions to its website (each, an Updated Version).
37.2 By continuing to use the Carriage Services or Use the Software, the Customer will be deemed to accept any Updated Version provided that, if the Customer does not accept any Updated Version, it may within 7 days of its being posted to the GFS website by notice in writing to GFS inform GFS that it does not accept that Updated Version, in which case this Agreement will terminate (and the Customer will promptly pay any amounts then payable to GFS, whether already invoiced or not).
37.3 Nothing in this clause 38 will entitle GFS to make changes to the Fees. Changes to the Fees are governed by clause 30.
38 General
38.1 Any provision of this Agreement that expressly, by implication or by its nature is intended to come into or continue in force on or after Termination will remain in full force and effect following Termination.
38.2 The parties are independent contractors. Consequently, the provisions of this Agreement will not, under any circumstances, be interpreted as creating any association or partnership between the parties. Neither party may bind the other in any manner whatsoever or in favour of anyone whomsoever, except in accordance with this Agreement.
38.3 The Customer will not assign or transfer all or part of its rights and/or obligations under this Agreement to any third party without GFS’s prior written consent, which GFS will not unreasonably withhold or delay. GFS may assign or transfer this Agreement to any of its Affiliates without the Customer’s consent.
38.4 This Agreement contains the whole agreement between the parties, and supersedes all prior agreements, arrangements, and understandings between the parties, relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) (each, a Representation) other than as expressly set out in this Agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation will be for breach of this Agreement. Nothing in this clause 39.4 will limit or exclude any liability for fraud.
38.5 This Agreement applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In particular, any terms or conditions attached to or forming part of any purchase order issued by the Customer will be null and void and of no effect.
38.6 Other than changes made by GFS to this Agreement pursuant to clause 38, no changes to this Agreement will be effective unless made in writing and signed by the parties (or their authorised representatives).
38.7 If any provision of this Agreement is held to be invalid or unenforceable for any reason, that provision will, if possible, be adjusted rather than voided, in order to achieve a result which corresponds to the fullest possible extent to the intention of the parties. The nullity or adjustment of any provision of this Agreement will not affect the validity and enforceability of any other provision of this Agreement.
38.8 Any notice required or permitted to be given under this Agreement must be in writing and either delivered personally or sent by courier such that the notifying party can prove delivery of the notice, in each case to the address of the receiving party set out in the Order Form.
38.9 The failure of a party to enforce a provision of this Agreement or any rights with respect thereto (or any delay in so doing) will not be a waiver of that provision or right, or in any way affect the validity of this Agreement. A waiver of any claim for a breach of this Agreement will not operate to waive any claims in respect of any other breach.
38.10 This Agreement and all non-contractual obligations arising out of or in connection with it are governed by English law and subject to the exclusive jurisdiction of the English courts.
Part E – Defined Terms and Rules of Interpretation
39 Definitions and interpretation
39.1 In this Agreement:
Affiliate means, in respect of a party, any entity directly or indirectly controlling, controlled by or under common control with that party, where control has the meaning given to it in section 1124 of the Corporation Tax Act 2010;
Business Day means any day other than a Saturday, a Sunday or a day which is a public holiday in England;
Carriage means carriage of Goods by GFS or the Carriers (or their subcontractors) pursuant to this Agreement, and Carry and its derivatives will be construed accordingly;
Carriage Fees means the applicable fees for the Carriage Services, calculated according to the Carriage Pricing Schedule as updated in accordance with this Agreement from time to time;
Carriage Services means the Carriage services specified in the Order Form and further described in the Carriage Pricing Schedules.
Carrier means, in respect of a Consignment, the carrier of that Consignment, being GFS or its subcontractor (as the case may be);
Carrier Data means any information which is accessible using the Software but which is not published or controlled by GFS or the Customer, including but not limited to Carrier tracking data;
Carrier Management Service means the carriage management and exception handling services to be provided by GFS to the Customer, as described in the Carriage Pricing Schedules;
Consignee means a person to whom the Carrier is to deliver a Consignment by way of Carriage;
Consignment means Goods (in any number of Parcels, Freight Parcels and/or Pallets, as the case may be) offered by the Customer or the Consignor for Carriage at one time, in one load, from one address to one address;
Consignor means the person which offers Goods for Carriage under this Agreement, whether the Customer itself or a third party at the Customer’s behest or on the Customer’s behalf;
Damaged Goods Compensation has the meaning given to it in clause 12.1;
Dangerous Goods means any and all Goods which are, or which can with improper handling become, explosive, toxic, corrosive, radioactive, flammable or otherwise dangerous or hazardous to health or property, including (to the extent relevant) all Goods classified as dangerous under any of: (i) the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR); (ii) the Regulation Concerning the International Carriage of Dangerous Goods by Rail (RID); (iii) the European Agreement concerning the international carriage of dangerous goods by inland waterways (ADN); (iv) Directive 2008/68/EC of 24 September 2008 on the inland transport of dangerous goods; (v) Directive 1999/36/EC of 29 April 1999 on transportable pressure equipment; (vi) the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009; (vii) the IATA Dangerous Goods Regulations; (viii) the International Civil Aviation Organisation Technical Instructions; (ix) the International Maritime Dangerous Goods Code; (x) the Merchant Shipping (Dangerous Goods and Marine Pollutant) Regulations 1997; (xi) the Dangerous Substances in Harbour Areas Regulations 1987; and (xii) any other applicable law or international convention;
Data Protection Laws means, as applicable: (i) the Data Protection Act 2018; (ii) the UK GDPR, as that term is defined in the Data Protection Act 2018; and (iii) such other laws governing the processing of personal data as may apply to the performance of this Agreement and the transactions and activities contemplated by it;
Documentation means the user manuals for the Software, as GFS may update or amend them from time to time;
Effective Date means the date of the last signature on the Order Form;
Error means, subject to clause 21, a verifiable and reproducible failure of the Software to perform substantially in accordance with the Documentation;
Fees means Carriage Fees, Licence Fees, and Implementation Fees, and Fee means any of them;
Force Majeure means an event or circumstance or combination of events or circumstances which adversely affects the performance by GFS or any Carrier or its or their respective agents and subcontractors of GFS’ obligations under this Agreement and which is beyond GFS’s reasonable ability to control, and includes: dangerous or adverse weather; shipping or traffic delays; road traffic accidents; trade disputes and trade route blockages; the effects of pandemics and other public health emergencies, including measures taken to combat them; stoppage, go-slow, work-to-rule or other industrial action by persons other than GFS’ own staff; shortages of labour; shortages of fuel or other materials; acts or omissions of police, customs and tax officials and other government authorities; changes in applicable laws, rules or regulations; and the changing of borders, creation of new borders or new customs checks;
Form Factor means the shipping form factor of the Goods comprising a Consignment, being a Parcel, a Packet, a Freight Parcel or a Pallet, or such other form factor (or definition of that form factor) as the relevant Carrier may accept;
Fragile Goods means Goods comprising (or any part of which comprises) glass, ceramics or similarly fragile materials, regardless of whether or not so labelled;
Freight Parcel means either: (i) a freight parcel corresponding to the relevant Carrier’s definition of a freight parcel; or (ii) if the relevant Carrier does not specify such a definition in its terms and conditions, any non-palletised Goods weighing between 31 kg and 99 kg (inclusive) and/or which are greater in volume than 0.2264 cubic metres and/or are over 1.8 metres in length;
Go Live means the date on which the Software becomes available for Use by the Licensed Customer Entities, as determined in accordance with clause 15;
Goods means any tangible object or thing of any nature, however packed and whether in solid, liquid or gaseous form or otherwise, which is offered by the Customer or the Consignor for Carriage;
Hosted Software means Software which is run and managed by GFS on its own systems, and made accessible to the Customer via the Internet;
Implementation Fees means the implementation fees specified in the Order Form;
Intellectual Property Rights means patents, trademarks, rights in respect of logos and get up, trade names, designs, domain names, copyright, database rights, semi-conductor topography rights, utility models, other intellectual or industrial property rights and any rights therein, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world including any such rights which may now or in the future subsist;
Licence Fee means the licence fee calculated from the Licence Fee Charging Unit in accordance with the Licence Pricing Model;
Licence Fee Charging Unit means the licence fee charging unit set out in the Order Form;
Licence Pricing Model means the Software licence pricing model selected in the Order Form and as further described in GFS’ document titled “GFS Software Pricing Models” (the current version of which is incorporated herein by reference);
Licence Scope means that the Customer may permit no more than the number of Licensed Users specified in the Order Form (taken in aggregate across all Licensed Customer Entities) to Use the Software;
Licensed Customer Entities means the Affiliates of the Customer which are specified as Licensed Customer Entities in the Order Form;
Licensed Users means officers and employees of a Licensed Customer Entity;
Locally Installed Software means Software which is to be installed on the Customer’s systems (or those of a Licensed Customer Affiliate);
Malware means a computer program which is designed to cause damage or mischief to any computer or person, or to retard or degrade the performance of any computer or network, or to facilitate criminal acts or acts of industrial espionage, digital vandalism or “hacktivism”;
Minimum Volume Commitment means the minimum volume commitment specified in the Order Form, if any;
Minimum Volume Surcharge means the minimum volume surcharge specified in the Order Form, if any;
Open-Source Software means software distributed by GFS to the Licensed Customer Entities with Locally Installed Software, and licensed to the Licensed Customer Entities by its owner on the terms of a licence meeting one or both of the OSI’s open source definition and the Free Software Foundation’s free software definition;
Packet means a packet corresponding to the relevant Carrier’s definition of a packet;
Pallet means either: (i) a pallet corresponding to the relevant Carrier’s definition of a pallet; or (ii) if the relevant Carrier does not specify such a definition in its terms and conditions, any Goods weighing in excess of 99kg, up to a maximum weight of 1000kg;
Parcel means either: (i) a parcel corresponding to the relevant Carrier’s definition of a parcel; or (ii) if the relevant Carrier does not specify such a definition in its terms and conditions, any Goods weighing less than 31kg and having dimensions of less than 2.7m girth and less than 2m length, and an overall volume less than 0.17m3;
Payment Terms means the payment terms specified in the Order Form;
Prohibited Goods has the meaning given to it in clause 8.1;
Projected Traffic Profile means the projected traffic profile specified in the Order Form and/or the projected traffic profile in respect of a particular Carrier set out in the relevant Carriage Pricing Schedule (if any and as the case may be);
Sanctions means any sanctions or similar restrictions imposed by national or international law, including by any of the United Nations, the European Union, the United Kingdom or the United States of America;
Security Policy means GFS’ customer-facing information security policy, as made available to the Customer from time to time;
Software means the software specified in the Order Form, whether Locally Installed Software or Hosted Software, and excluding the third-party Software, the Open Source Software and the Carrier Data;
Special Terms means any different or additional terms or conditions set out in the box marked “Special Terms” in the Order Form;
Support Availability Hours means 9am to 5.30pm on Business Days;
Support Rate means the hourly rate which GFS may charge for Support Services, as specified in the Order Form;
Support Services means the support services described in clause 20;
Term means the term of this Agreement, beginning on the Effective Date and lasting for the term specified in the Order Form;
Termination means expiry or termination of this Agreement for any reason;
Third Party Software means software distributed with or linked to the Software, which is licensed to GFS by a third party (and therefore excluding the Open-Source Software);
Updates means patches, fixes or updated releases of the Software;
Use means: (i) in relation to Locally Installed Software, the acts of storing, loading, executing, and interacting with it in the ordinary course of its operation; and (ii) in relation to Hosted Software, the acts of accessing and interacting with it across a network in the ordinary course of its operation; and
39.2 Clause and schedule headings will not affect the interpretation of this Agreement.
39.3 A requirement in this Agreement that a communication be written or in writing includes email but does not include facsimile.
39.4 Wherever the words other, in particular, include, including or for example are used in this Agreement, they are to be construed without limitation.
39.5 A reference to a law or a treaty is a reference to it as it is in force at the relevant time, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation then in force under it.