Terms & Conditions

Background:

SmartBase (“SmartBase”) provides a portfolio of Logistic Services including but not exclusively Storage, Distribution, Mailing, Freight and Fulfilment Services to business clients (“Client). SmartBase has skills, knowledge and experience in that field. These Terms and Conditions shall apply to the provision of services by SmartBase to its clients.

1. Definitions and Interpretation

1.1. In these Terms & Conditions, unless the context otherwise requires the following expressions have the following meanings:

“Agreement Means the agreement entered into by SmartBase and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) which shall govern provision of the Services;

“Client” Means the party procuring the Services from SmartBase who shall be identified in the Agreement;

“Fees” Means any and all sums due under the Agreement from the Client to I-Fulfilment, as specified in the Agreement;

“Services” Means the services to be provided by SmartBase to the Client in accordance with Clause 2 of the Agreement and subject to the Terms and Conditions of the Agreement;

1.2. Unless the context otherwise requires, each reference in these Terms and Conditions to;

1.2.1. “writing”, and any cognate expression, includes reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2. a statute or provision of a statute is a reference to that statute or provision amended or re-enacted at the relevant time;

1.2.3. “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;

1.2.4. a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a clause of the Agreement, as appropriate; and;

1.2.5. a “Party” or the “Parties” refer to the Parties to the Agreement;

1.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions;

1.4. Words imparting the singular number shall include the plural and vice versa;

1.5. References to gender shall include the other gender;

1.6. References to persons shall include corporations;

2. Provision of the Services

2.1. With effect from the commencement date, SmartBase shall, throughout the Term of the Agreement, provide the services to the Client.;

2.2. SmartBase shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the Logistics sector including but not exclusively Storage, Distribution, Mailing, Freight and Fulfilment business in the United Kingdom;

2.3. SmartBase shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Agreement;

2.4. SmartBase shall be responsible for ensuring that it complies with all statutes, regulations, bye-laws, standards, codes of conduct and any other rules relevant to the provision of the Services;

2.5. SmartBase may, in relation to certain specified matters related to the Services, act on the Client’s behalf, such matters shall not be set out in the Agreement but shall be agreed between the Parties as they arise from time to time;

2.6. SmartBase shall use all reasonable endeavours to accommodate any reasonable changes to the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes;

3. Clients Obligations

3.1. The Client shall use all reasonable endeavours to provide all pertinent information to SmartBase that is necessary for SmartBase’s provision of the Services;

3.2. The Client may, from time to time, issue reasonable instructions to SmartBase in relation to SmartBase’s provision of the Services. Any such instruction should be compatible with the specification of the Services provided in the Agreement;

3.3. In the event that SmartBase requires the decision, approval, consent or any other communication from the client in order to continue with the provision of the Service or any part thereof at any time, the Client shall provide the same in reasonable and timely manner;

3.4. If any consent, licences or other permissions are needed from any third parties acting on the Client’s behalf, it shall be the Client’s responsibility to obtain these in advance of the provision of the Services or the relevant part thereof;

3.5. Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 3 of the Agreement shall not be the responsibility or fault of SmartBase;

4. Fees and Payment

4.1. The Client shall pay fees to SmartBase in accordance with the agreed charge schedule, see Appendix A. All charges are exclusive of Value Added Tax;

4.2. SmartBase shall invoice the Client for Fee’s due in accordance with the provisions of the Agreement and charges schedule;

4.3. All payments required to be made pursuant to the Agreement shall be made within 30 days of the relevant invoice date;

4.4. If payment is not received by SmartBase in cleared funds within 30 days of the invoice date, without prejudice to any other right or remedy;

4.4.1. SmartBase may charge the Client interest on the overdue amount at a rate 5% above the base rate for the time being of The Royal Bank of Scotland;

4.4.2. any out of pocket expenses incurred by SmartBase in obtaining payment and;

4.4.3. a late payment charge equal to 10% of the outstanding balance;

4.5. All payments required to be made pursuant to the Agreement shall be made in UK Pounds (UK£);

4.6. The Client waives all rights to challenge SmartBase’s invoice if the Client does not contest the relevant invoice by giving notice in writing within 14 days from the date of the invoice;

4.7. Where any payment pursuant to the Agreement is required to be made on a day that is not a business day, it may be made on the next following business day;

4.8. SmartBase shall;

4.8.1. Keep records of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated;

4.8.2. At reasonable request of the Client, allow the Client access to the records, to the extent that they relate to the calculation of these sums;

5. Limitation of Liability

5.1. Nothing in these Terms and Conditions shall limit or exclude SmartBase’s liability for;

5.1.1. Death or personal injury caused by its negligence or negligence of its employees, agents or subcontractors;

5.1.2. Fraud or fraudulent misrepresentation;

5.2. Subject to Clause 5.1, SmartBase shall under no circumstances whatever be liable to the Client, whether in contract for;

5.2.1. Any losses arising as a result of or in connection with;

5.2.1.1. Any latent or inherent characteristic or defect in any stored or shipped item including but limited to any wastage in bulk or weight or natural deterioration;

5.2.1.2. Any electrical or magnetic damage to electronic or photographic images or recordings in any form;

5.2.1.3. Acts of omissions of any Party other than that of SmartBase and/or its sub-contractors;

5.2.1.4. Damage, mis-delivery or late delivery of documents;

5.2.1.5. Any recipient failing to accept delivery;

5.2.1.6. The Client providing inaccurate or misleading information to SmartBase or failing to provide SmartBase in a timely manner with all such information as SmartBase may require in relation to the provision of a Service in a recognisable format;

5.2.1.7. Any breach by the Client of its obligations under the Agreement;

5.2.2. Any loss of income, loss of profits, loss of markets, loss of reputation, loss of customers, loss of use, loss of opportunity even if I-Fulfilment had knowledge that such damages or loss might arise or for any indirect, incidental, special or consequential damages or loss howsoever arising under or connection with the contract;

5.2.3. Any loss or damage excluded by Clause 9;

5.3. Subject to Clauses 5.1, 5.2, 5.4, 8.3 and 7.2 SmartBase’s total liability to the Client in respect of all other losses of whatsoever nature arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the amount of insurance specified in Clauses 6.1 or 7.1 or where the Client has arranged specified cover under Clauses 6.2 or 7.2 the insured amount specified in Clauses 6 or 7;

5.4. Except as set out in these Terms and Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law are excluded from the Agreement;

5.5. Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason; of any delay in performing, or any failure to perform, any of that parties obligations if the delay or failure is due to any cause beyond the Party’s reasonable control;

5.6. Clause 5 shall survive termination of the Agreement;

6. Insurance – Courier Service

6.1. Except where the Client has made specific arrangements for insurance for a higher figure with SmartBase under Clause 6.2 before the commencement of transit of the relevant Consignment, the value of insurance in respect of a Consignment in respect of which the SmartBase is to provide, or has provided, Courier Services is £100 or the value of the relevant Consignment, whichever is the less;

6.2. Special insurance can be arranged on request for items of intrinsic value subject to the Client declaring the true value of the Consignment (on the consignment note) and paying the premium for the special insurance before the commencement of transit;

6.3. Where SmartBase arranges special insurance cover at the Client’s request under Condition 6.2, the value of the insurance in respect of the relevant Consignment shall be whichever is the lesser of the value of the Consignment declared by the Client or the actual value of the Consignment and SmartBase shall be entitled to require independent proof of the value of the Consignment if a claim is made;

6.4. All insurance arranged on behalf of a Client is subject to the insurer’s terms and conditions;

6.5. Where SmartBase arranges for insurance to be provided at the request of the Client, the Client has a right to complain about such insurance to the Financial Conduct Authority. The Financial Conduct Authority can be contacted: by post: The Financial Conduct Authority 25 The North Colonnade Canary Wharf London E14 5HS United Kingdom by telephone: From UK: 0845 606 9966; From Overseas: +44 20 7066 1000 by email: fca@fca.gov.uk;

7. Insurance – Storage Service

7.1. SmartBase will only insure the stored items at the Client’s written request and at the Client’s cost. As between the Client and SmartBase, all Stored Items are at all times at the Client’s sole risk;

7.2. Where SmartBase arranges insurance cover at the Client’s request under Clause 7.1, the value of the insurance in respect of the relevant stored items shall be whichever is the lesser of the value of the stored items declared by the Client or the actual value of the stored items and SmartBase shall be entitled to require independent proof of the value of the stored items if a claim is made;

7.3. All insurance arranged on behalf of a Customer is subject to the insurer’s terms and conditions;

7.4. Where the Supplier arranges for insurance to be provided at the request of the Customer, the Customer has a right to complain about such insurance to the Financial Conduct Authority. The Financial Conduct Authority can be contacted: by post: The Financial Conduct Authority 25 The North Colonnade Canary Wharf London E14 5HS United Kingdom by telephone: From UK: 0845 606 9966; From Overseas: +44 20 7066 1000 by email: fca@fca.gov.uk;

8. Force Majeure

8.1. No party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party on question;

9. Term and Termination

9.1. The Agreement shall come into force on the agreed commencement date and shall continue for a defined term from that date, subject to the provisions of Clause 9 of the Agreement;

9.2. The client shall have the right, subject to the Agreement and consent of SmartBase and exercisable by giving not less than six months written notice;

9.3. When the Client gives notice that it wishes to cease to utilise SmartBase’s Storage Services, the client shall pay SmartBase, in respect of any storage Services provided during the notice period, an amount equal to the greater of;

9.3.1. The amount due from the Client to SmartBase in respect of Storage Services actually provided by SmartBase to the Client during the notice period; and;

9.3.2. An amount equal to the sum payable by the Client to SmartBase in respect of Storage Services provided by SmartBase during the period of six months immediately preceding the service of notice by the Client. For the avoidance of doubt such amount shall be payable whether or not any Storage Services are actually provided by SmartBase to the Client during the notice period;

9.4. SmartBase may immediately terminate or suspend the Agreement by giving written notice to the Client if;

9.4.1. Any sum owing to SmartBase by the Client under any of the provisions of the Agreement is not paid within 3 months of the due date for payment;

9.4.2. An encumbrancer takes possession, or where the Client is a company, a receiver is appointed, of any of the property or assets of the Client;

9.4.3. The Client makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order;

9.4.4. The Client, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or reconstruction and in such manner the company resulting therefrom effectively agrees to be bound by or assume the obligations on that Party under the Agreement);

9.5. Upon termination of the agreement for any reason;

9.5.1. Any sum owing by the Client under any provisions of the Agreement shall become immediately due and payable;

9.5.2. All Clauses which, either expressly or by their nature, relate to the period after the termination of the Agreement shall remain in force and effect.;

10. Assignment

10.1. Neither party may, without the prior written consent of the other party, assign its rights or obligations under the Agreement.;

11. No Partnership or Agency

11.1. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the Parties, or (save to the extent (if any) as expressly stated to the contrary in these Terms and Conditions) to authorise either party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power) save to the extent (if any) as expressly stated to the contrary in these Terms and Conditions;

12. Third Party Rights

12.1. The Contracts (Rights of Third Parties) Act 1999 shall only apply to this agreement in relation to SmartBase’s Subcontractors and to employees and agents of SmartBase and of SmartBase’s Subcontractors and no person other than Client, SmartBase, SmartBase’s Subcontractors and the employees and agents of SmartBase and of SmartBase’s Subcontractors shall have any rights under it.;

13. Law and Jurisdiction

13.1. The Agreement and these Terms and Conditions (including any non-contractual matter and obligations arising therefrom or associated therewith) shall be governed by and construed in accordance with the laws of England and Wales.;

DATA PROTECTION AMENDMENT

This amendment to the Terms of Business (“Amendment”) is made and entered into as of now by and between SmartBase (“SmartBase”) and their account customers (“Client”).;

The terms set forth in this amendment amend, supplement and supersede any provisions to the contrary set out in any pre-existing contract and SmartBase’s Terms and Conditions (“Agreement”). Unless expressly provided otherwise herein, all terms defined in the Agreement shall have the same meaning in this Amendment. All terms and conditions of the Agreement not otherwise expressly amended and supplemented herein remain unchanged and in full force and effect. In the event of any conflict between the terms and conditions of this Amendment and the Agreement, the provisions of this amendment shall apply.;

The amendment is required as a result of a change in law in relation to the EU General Data Protection Regulation 2016/679 (“GDPR”).

1. Definitions;

Controller’ means the entity that alone or jointly with others determines the purposes and means of the processing of Personal Data, The Client.

‘Data Protection Laws’ means all applicable laws, rules, regulation, directives and governmental requirements relating in any way to the use, privacy, confidentiality, security, integrity and protection of Personal Data, including without limitation, the EU Data Protection Directive 95/46/EC, the EU General Data Protection Regulation 2016/679, the EU ePrivacy Directive 2002/58/EC as amended by Directive 2009/136/EC, each as may be amended or superseded from time to time and any national implementing legislation.;

‘Personal Data’ means any information provided to SmartBase relating to an identified or identifiable person and in relation to which SmartBase is providing the Services under the Agreement; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.;

‘Personal Data Breach’ means the loss or misuse, by any means of any Personal Data; inadvertent, unauthorised and/or unlawful processing, corruption, modification, sale or rental of any Personal Data; or any other act or omission that compromises the security, confidentiality, or the integrity of any Personal data, whether a physical or technical incident.;

‘Processor’ means the entity which processed Personal Data on behalf of a Controller, SmartBase.;

‘Supervisory Authority’ means any regulatory, supervisory, governmental or other competent authority with jurisdiction or oversight over the Data Protection Laws.;

2. General Processing obligations of SmartBase;

1. SmartBase acknowledges that the Client is subject to Data Protection Laws, which requires them to ensure that SmartBase processes Personal Data in a manner consistent with their obligations under such Data Protection Laws. The Client and SmartBase acknowledge that for the purposes of the Data Protection Laws, the Client is the Controller and SmartBase is the Processor of any Personal Data and that this Amendment constitutes a data processing agreement as required under the Data Protection Laws.;
2. SmartBase agree that it shall process Personal Data solely for the purpose of providing the services in accordance with the agreement and nor for any other purpose or in any other manner, unless specifically instructed by the Client in writing to do so. SmartBase will not process Personal Data for its own commercial benefit or that of a third party. SmartBase will immediately notify the Client if for any reason SmartBase is unable to comply with this provision, in which case the Client shall be entitled to suspend the processing of Personal Data by SmartBase. Any breach of this provision shall be considered a material breach of the agreement permitting the Client to terminate the Agreement.;
3. SmartBase agree that is will process Personal Data in compliance with the Data Protection Laws.;
4. SmartBase shall take steps to ensure that its employees, agents, contractors and any other persons with access to Personal Data are aware of both SmartBase’s duties and their personal duties and obligations under Data Protection Laws and this agreement, in particular with respect to a duty of confidentiality, security and integrity of Personal Data and to the rights of individuals.;

3. Data Security;

SmartBase agree that it shall treat Personal Data as confidential and shall implement and maintain appropriate technical, administrative and organisational security measures to protect the security, confidentiality and integrity of Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Personal Data transmitted, stored or otherwise processed by SmartBase as required by Data Protection Laws. Such technical and organisational security measures must ensure a level of security appropriate to the risk of processing the Personal Data, including as appropriate;;

1. Ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;;
2. Ability to restore he availability and access to Personal Data in a timely manner in the event of a physical or technical incident or disaster;
3. Conduct periodic risk assessments to identify and assess reasonably foreseeable internal and external risks to the security, confidentiality and integrity of records containing Personal Data and develop a process for regular testing, assessing and evaluating the effectiveness of its technical, administrative and organisational measures to ensure the security of processing and limit any internal and external risks.;

4. Cooperation by SmartBase

SmartBase will provide in a timely manner all such necessary and reasonable assistance to the Client;

1. And to any Supervisory Authority, in connection with any investigation, audit or enquiry made by a Supervisory Authority in relation to Personal Data or otherwise necessary for the Clients compliance with the Data Protection Laws;
2. To enable the Client to comply and respond to a request, query or complaint from a data subject in relation to their Personal Data. SmartBase shall notify the Client except where such notification is prohibited by law, if it receives any request in connection with Personal data, supplied by the Client, whether such request is received from the data subject, Supervisory Authority, law enforcement authority or another third party;

5. Cooperation by the Client

The Client will provide in a timely manner all such necessary and reasonable assistance to SmartBase;

1. Clear written instruction for the use of all Personal Data submitted to SmartBase;
2. Confirm in writing on what lawful basis SmartBase will process the Personal Data on behalf of the Client;
3. Written instruction of the period of time any Personal Data should be held prior to erasure or instruction to securely store for any future use.

6. Personal Data Breach

1. SmartBase shall immediately notify the Client of any Personal data Breach involving Personal Data within 48 hours of becoming aware of any Personal Data Breach including where possible the categories and approximate number of affected data subjects;

i.Communicate the name and contact details of SmartBase’s data protection officer or other contact point in relation to the Personal Data Breach,

ii.Describe the likely consequences of the Personal Data Breach;

iii. Describe the measures taken or proposed to be taken by SmartBase to address the Personal Data Breach.

2. SmartBase shall provide reasonable assistance to the Client to facilitate the handling of any Personal Data Breach in an expeditious and compliant manner and shall;

i. Cooperate with the Client in relation to any Personal Data Breach notification to a Supervisory Authority or affected data subject and take all such steps as may be required by the Supervisory Authority;

ii. Not make any public announcements relating to the Personal Data breach without the Client’s written approval;

iii. Permit the Client to participate in any investigation and remediation process relating to the Personal Data Breach.

7. Sub Processing

1. The Client approves I-Fulfilment to use approved sub processors; all sub processors will be subject to a written contract. SmartBase shall conduct initial and periodic assessments of such sub processors compliance with its obligations
2. SmartBase shall remain fully liable to the Client for the performance of its obligations under this Amendment even where a sub processor carries out the Services or any part of the Services on SmartBase’s behalf.
3. SmartBase remain fully responsible for the acts and omissions of its employees, contractors, affiliates and any SmartBase approved sub processor who may process Personal Data.
4. The Client maintains the right to refuse the use of a sub processor by SmartBase.

8. Audit

SmartBase shall Audit its business processes and practices that involve the processing of Personal Data.

9. Data Transfers

SmartBase shall not transfer Personal Data out of the European Economic Area to any country that has not been identified by the European Commission of a Supervisory Authority under Data Protection Laws as a country that provides an adequate level of data protection except on the Client’s prior written permission and where SmartBase has ensured adequate protection for such Personal Data as required by Data Protection Laws, such as agreeing to abide by the EU Standard Contractual Clauses.

10. Return or Deletion of Personal Data

On termination of the Agreement, or otherwise, upon the Client’s written request, SmartBase shall, immediately, either return all Personal Data and copies thereof to the Client or destroy and/or put beyond all Personal Data.