Global Freight Solutions Limited

Licence for the use of GFS Checkout and associated modules

MPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: This licence agreement ("Licence") is a legal agreement between you ("you"/”your”) and Global Freight Solutions Limited, a company registered in England and Wales under number 04144492 whose registered office is located at Thomas Eggar LLP, Belmont House, Station Way, Crawley, West Sussex RH10 1JA (" GFS") for this GFS Checkout ecommerce Delivery Options product and associated API and Ecommerce platform extensions/plug-ins (" Software"), which includes computer software, the data supplied with it, the associated media, printed materials and online and/or electronic documentation ("Documentation").

THIS SOFTWARE REQUIRES A PC WITH A MINIMUM OF 4 GB OF MEMORY RUNNING WINDOWS (WINDOWS 7 & ABOVE) OPERATING SYSTEM.

BY DOWNLOADING THE SOFTWARE YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, GFS IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW. IN THIS CASE YOU MUST DISCONTINUE THE SOFTWARE DOWNLOAD OR RETURN THE MEDIUM ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION TO GFS WITHIN 14 DAYS OF ACCEPTING THIS LICENCE.

YOU MUST PROVIDE CUSTOMER REGISTRATION INFORMATION BEFORE DOWNLOADING THE SOFTWARE.

1. Grant and scope of Licence

1.1 In consideration of you agreeing to abide by the terms of this Licence, and subject to clause 1.3, GFS hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation in the United Kingdom ("UK") only on the terms of this Licence.

1.2 You may:

1.2.1 install and use the Software for your internal business purposes only, either (as agreed between the parties):

(a) on one computer if the Licence is a single-user licence or the Software is for single use; or

(b) if the Licence is a multi-user or network licence, for the number of concurrent users agreed between you and GFS;

1.2.2 make up to two copies of the Software for back-up purposes only subject to compliance with the undertakings set out in clause 2.1; and

1.2.3 use any Documentation in support of the use permitted under clause 1.1 and make up to two copies of the Documentation as are reasonably necessary for its lawful use.

1.3 To the extent that any module of the Software constitutes an extension to Magento, then such module shall be licensed by GFS to you under the GPL or such other licence terms as GFS may notify, which shall apply instead of these Licence terms.

2. Your undertakings

2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:

2.1.1 not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;

2.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;

2.1.3 not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

2.1.4 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

(a) is used only for the purpose of achieving inter-operability of the Software with another software program;

(b) is not disclosed or communicated without GFS's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and

(c) is not used to create any software which is substantially similar to the Software;

2.1.5 to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

2.1.6 to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;

2.1.7 to replace the current version of the Software with any updated or upgraded version or new release provided by GFS under the terms of this Licence immediately on receipt of such version or release;

2.1.8 to include the copyright notice of GFS on all entire and partial copies of the Software in any form and to display the Powered by GFS logo or a textual alternate representation including a hyperlink to the GFS Checkout Web page on the Checkout pages of your website and/or the homepage;

2.1.9 not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from GFS; and

2.1.10 to use the Software solely for the display of carrier delivery options and pricing information and ecommerce online checkout only - any other use is strictly prohibited.

2.2 You may use the Software only if the main activity of your business is online retail selling to consumers or other businesses. You must have an active website selling products located in the UK and are required to prove this before this Licence will be granted. The Software is not available under this Licence to any other type of business; please contact GFS to discuss options if you would like to use the Software for a different purpose.

2.2 You must permit GFS and its representatives, at all reasonable times and on reasonable advance notice, to contact you, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.

2.3 You must receive and use with 30 days of release any supplementary software code or update of the Software incorporating "patches" and corrections of errors as GFS may provide from time to time otherwise the free Licence provided herein may be revoked with 7 days notice being issued. If the Software is being used in any way outside of the terms of this agreement GFS reserves the right to immediately terminate provision of the service.

3. Title and risk

3.1 The Software (including any copies of it and related material) and the Documentation shall remain the property of GFS at all times.

3.2 You shall be liable for any loss or damage to the Software and/or Documentation whilst in your possession or under your control except where caused by the negligent acts of GFS, its employees or agents. You shall indemnify and hold GFS harmless from any cost, claim or expense arising from such loss of or damage to the Software.

4. Support

GFS will offer free Internet based support as outlined in the Schedule. GFS reserve the right to charge you for telephone support provided at a rate of £25 per hour.

5. Registration and Monitoring

5.1 GFS's registration scheme provides a number of benefits including access to Software downloads, Software updates and the support services referred to in clause 4 above.

5.2 GFS has the right to monitor your use of the Software at any time and may request information from you regarding your shipping and other logistical requirements.

6. Intellectual property rights

6.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to GFS and its licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.

6.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments .

7. Confidentiality

All information, data, drawings, specifications, source or object codes and other information of a confidential nature which GFS may disclose to you relating to the Software is proprietary and confidential. You agree that you will use such information strictly in accordance with the provisions of this Licence and that you will not at any time, whether before or after expiry of this Licence, disclose such information directly or indirectly to any third party, except with GFS's prior written consent. This restriction does not apply to information which you can establish (to GFS's reasonable satisfaction) is in the public domain other than as a result of breach of this Licence.

8. Warranty

8.1 GFS warrants that it is either the owner of or otherwise authorised to licence the Software and that it has the right to enter into this Licence but gives no further warranty in relation to the operation or performance of the Software when used by you.

8.2 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

8.3 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.

9. GFS's liability

9.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation.

9.2 Subject to clause 9.1, GFS's liability for losses suffered by you arising out of or in connection with this Licence (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude:

9.2.1 loss of income;

9.2.2 loss of business profits or contracts;

9.2.3 business interruption;

9.2.4 loss of the use of money or anticipated savings;

9.2.5 loss of information;

9.2.6 loss of opportunity, goodwill or reputation;

9.2.7 loss of, damage to or corruption of data; or

9.2.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;

provided that this clause 9.2 shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of sub-clauses 9.2.1 to 9.2.8 inclusive of this clause 9.2.

9.3 Subject to clauses 9.1 and 9.2, GFS's maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to £100.

9.4 Subject to clauses 9.1, 9.2 and 9.3, GFS's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.

9.5 This Licence sets out the full extent of GFS's obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on GFS except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

10. Duration and Termination

10.1 Except as terminated in accordance with clauses 10.2 or 10.3, this Licence shall commence on the date on which the Software is downloaded or despatched to you and shall continue for a period of 12 months and thereafter shall continue until either party has given to the other at least 7 days' written notice to terminate this Licence.

10.2 GFS may terminate this Licence immediately in the event of any breach by you of any term of this Licence, unless such breach is capable of remedy and you remedy the breach within fourteen days of your receiving written notice from GFS specifying the breach and requiring its remedy.

10.3 Either party may terminate this Licence if the other party:

10.3.1 becomes insolvent;

10.3.2 admits its inability to pay its debts or perform its obligations in the ordinary course of business;

10.3.3 has a liquidator receiver or administrator appointed over the whole or any part of its assets or undertakings; or

10.3.4 is in a position which entitles a court or creditor to appoint a receiver or manager or which entitles a court to make a winding up or administrative order over its assets or business.

10.4 On receiving such notice of termination, GFS shall at its own expense disable your access to the Software.

10.5 Upon termination for any reason:

10.5.1 all rights granted to you under this Licence shall cease;

10.5.2 you must cease all activities authorised by this Licence; and

10.5.3 you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to GFS (at GFS's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to GFS that you have done so.

11. Transfer of rights and obligations

11.1 This Licence is binding on you and GFS and on the parties' respective successors and assigns.

11.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without GFS's prior written consent.

11.3 GFS may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.

12. DATA PROTECTION

12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 12, Applicable Laws means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

12.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this agreement.

12.4 Without prejudice to the generality of clause 12.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this agreemen:

1. process that Personal Data only on the written instructions of the Customer unless the Company is required by Applicable Laws to otherwise process that Personal Data.;
2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
5. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data.

12.5 The Customer consents to the Company appointing a third-party processor of Personal Data under this agreement. The Company confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business.

13. Notices

All notices given by you to GFS must be given to GFS at Thomas Eggar LLP, Belmont House, Station Way, Crawley, West Sussex, RH10 1JA or sales@justshoutgfs.com. GFS may give notice to you at either the email or postal address you provided to it when accepting this Licence. Notice will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

14. Events outside GFS's control

GFS will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by an event outside its reasonable control.

15. Waiver

15.1 If GFS fails, at any time during the term of this Licence, to insist on strict performance of any of its obligations under this Licence, or if GFS fails to exercise any of the rights or remedies to which it is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

15.2 A waiver by GFS of any default shall not constitute a waiver of any subsequent default.

15.3 No waiver by GFS of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

16. Severability

If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

17. Entire agreement

17.1 This Licence and any document expressly referred to in it constitute the whole agreement between the parties hereto and supersedes any previous arrangement, understanding or agreement between the parties hereto, relating to the licensing of the Software and Documentation.

17.2 You and GFS each acknowledge that, in entering into this Licence (and the documents referred to in it), neither of the parties relies on any statement, representation, assurance or warranty ("Representation") of any person (whether a party to this Licence or not) other than as expressly set out in this Licence or those documents.

17.3 Each of the parties hereto agrees that the only rights and remedies available to them arising out of or in connection with a Representation shall be for breach of contract as provided in this Licence.

17.4 Nothing in this clause shall limit or exclude any liability for fraud.

18. General

18.1 Clause headings shall not affect the interpretation of this Licence.

18.2 References to clauses and the schedule are to the clauses and schedule of this Licence.

18.3 The schedule forms part of this Licence and shall have effect as if set out in full in the body of this Licence and any reference to this Licence includes the schedule.

18.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

18.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

18.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.

19. Law and jurisdiction

This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.

Global Freight Solutions Limited

September 2014

Schedule

Support Model

GFS shall provide adequate email support for you, this is intended to be a response to your query within 48 hours however this is not guaranteed. GFS can provide support agreements at additional cost, please contact GFS IT for further information.

1st Line

GFS customer support has a Help Desk and is open from 09:00 – 17:00 Monday to Friday. The contact telephone number is 08456 044011 (Option 3). Please not all telephone calls are chargeable at the rate of £25.00 per hour or per incident. Email support is free at support@justshoutgfs.com

2nd Line

GFS developers and support team will offer second line support to your development company or internal IT support team. This will be telephone support only and is available 09:00 – 17:00 Monday to Friday chargeable at £40.00 per hour or per incident.