| Data Processing Particulars – you must ensure that your customers are aware of how their personal data will be used for our Services (please see clause 13 for our respective data protection obligations) | |
| Data Subjects | * Your customers * Your employees or other staff or contractors with whom Kun Fulfilment has contact in connection with the Services |
| Categories of Data | Name, Address, Phone, Mobile , Email |
| Processing Operations / Subject Matter | * Data collected and, as applicable, shared with Kun Fulfilment Kun Fulfilment subprocessors (its carriers and service providers in connection with channel integration, returns processing and label printing services) to fulfil your contract of sale and delivery with your customers and processed within the Dashboard and supporting systems * Data retained to enable contract and services management between Kun Fulfilment and you |
| Deletion of Personal Data | * Order data – 12 months after Order processing (subject to any agreed extension in relation to certain Order data) * Other data – 12 months after termination or expiry of this Agreement |
· These Terms apply to your use of the Services (as defined below) from the date you start to use them (or any part of them) unless and until you have expressly agreed and signed a specific services contract with us, in which case, the terms and conditions of that contract apply
· Clause 9 limits (and in some cases excludes) Kun Fulfilment liability, with time limits for claims, please read it carefully
· Kun Fulfilment has insurance in place to the extent described in the KOA. For all other risks, including liability which we limit or exclude under these Terms, you must insure the Goods (as defined below). Kun Fulfilment does not underwrite their value and Kun Fulfilment charges reflect this. The limitation of liability in clause 9 minimises the amount that Kun Fulfilment would otherwise need to charge to recover its insurance costs (or an amount in lieu to reflect risk)
· Clause 5 sets out our rights to change or make charges and clause 6 allows us to change charges due to changes in service activity required
· Kun Fulfilment may update these Terms from time to time and will notify you that an update has happened on (or when logging into) the Dashboard. Your continued use of our Services will constitute acceptance of our updated Terms.
1.1. In these Terms the following terms shall have the following meanings unless the context requires otherwise:
Account Manager has the meaning in clause 6.1.
Business Conduct Laws means the United Kingdom Bribery Act 2010, Modern Slavery Act 2015, laws relating to failure to prevent fraud or facilitation of tax evasion in an applicable organisation or money laundering, or any similar laws relating to business conduct, and associated guidance published under such laws and all applicable equivalent laws, legislation, statutory instruments and regulations in relation to the matters dealt with in such laws applicable to (i) the Goods; (ii) any territory in which Services are provided; and/or (iii) the Customer as a result of the country it is registered or established or operates in.
Business Day means any day (other than a Saturday or Sunday) when banks are generally open for normal business in the location where warehousing services are provided except in clause 5.10 in which case London shall be the location.
Charges means the prices and charges charged by Kun Fulfilment for or in connection with the Services as set out in the KOA or in the absence of relevant prices and charges, on our Website, and where relevant prices or charges are not included (for example where a Kun Fulfilment service is not specified or included in such places), shall be as referred to or included in the Dashboard from time to time, as reviewed, changed and supplemented in accordance with these Terms.
Confidential Information means all information, data, know-how, trade secrets and software in whatever form relating to either Kun Fulfilment or you, whether tactical, technical, commercial, scientific, statistical or financial where the information is (a) identified as confidential at the time of disclosure, or (b) ought reasonably to be considered to be confidential or have commercial value given the nature of the information or the circumstances of disclosure.
Dashboard means the password protected online portal for use by customers in connection with the Services.
Data Protection Legislation means as applicable and binding on the relevant Party or the Services: (i) the GDPR (meaning General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of applicable domestic law (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time)); (ii) the Data Protection Act 2018 (in respect of the UK); (iii) any local laws which implement or supplement any such laws; and (iv) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; (v) any relevant data protection laws and regulations applicable to (a) the Goods; (b) any territory in which Services are provided; and/or (iii) the Customer as a result of the country it is registered or established or operates in.
Deliverables means the forecasts, data and other information required from you and third parties in order for Kun Fulfilment to provide the Services.
Extraordinary Activity means a rise of 20% or more above the Forecast Order volumes and/or pallet storage volumes in the relevant period contained in the Initial Forecast or most recent Updated Forecast, as the case may be.
Force Majeure Event has the meaning in clause 14.3.
Forecast means either the Initial Forecast or Updated Forecast as the context requires;
Goods means the goods (including any associated documents and packaging materials) to which these Terms and the Services relate.
Group Company means a subsidiary or holding company of the relevant Party, or a subsidiary of that holding company, all as defined by Section 1159 of the Companies Act 2006.
Kun Fulfilment (us, we, our) means Kun Fulfilment Technologies Limited a company incorporated and registered in England and Wales under company number 09727464 whose registered office at 41 Corn Street, Bristol, England, BS1 1HT.
Inappropriate Content means any services, goods, contents or other materials which infringe any applicable laws, regulations or third party rights, including any goods, services or contents which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party intellectual property rights or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise be unlawful.
Initial Forecast means the forecast provided by the Customer to Kun Fulfilment in relation to anticipated volumes of Orders and pallet storage and related Services requirements as set out in the KOA.
Insolvency Proceedings means, in relation to a Party, that there is (save in relation to a solvent reorganisation, reconstruction or amalgamation) the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into of a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution to wind it up, or it becomes unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986 or there are any analogous proceedings in any jurisdiction.
Intellectual Property Rights means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, trade secrets, business names and domain names, trade-marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, and database rights.
Inward TUPE Transfer means a situation where Kun Fulfilment is (or is expected to be) a transferee for the purposes of TUPE as a result of providing services to or for the benefit of you (or intending to do so)
KOA or Key Operating Assumptions means the information provided about the scope of our Services, your business requirements and anticipated levels of activity in respect of which Kun Fulfilment will provide the Services.
Onboarding Documents means the pricing proposal, KOA, goods in requirements, billing guide, transfer of stock process and any other document or information setting out required information or processes in connection with the Services provided to you before the commencement of the Services.
Order means an order received and accepted by the Customer for delivery of Goods to a customer of the Customer (Recipient), communicated to Kun Fulfilment and in respect of which Kun Fulfilment will provide the Services.
Outward TUPE Transfer means a situation where Kun Fulfilment is (or is expected to be) a transferor for the purposes of TUPE as a result of the transfer of operations carried out for you.
Product Loss means loss (including theft), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery, or unauthorised delivery of, or non-compliance with instructions or obligations in respect of, Goods.
Prohibited Goods means any items prohibited by any carrier used by Kun Fulfilment (details of which are available on request) but includes the following items: animals and wildlife products; bootleg recordings; counterfeit currency and stamps; credit cards; drugs and drug paraphernalia; firearms, ammunition, replicas and militaria; government identification, licences and uniforms; government, transit and postal-related items; hazardous or contaminated materials; human parts and remains; items encouraging illegal activity; items encouraging infringement or enabling duplication of copy protected material; lock-picking devices; offensive material; items requiring any official consent or licence (or would be illegal for Kun Fulfilment) to handle, possess, deal with or carry; items that may cause pollution of the environment or harm to human health if they escape from their packaging; items that may at any time whilst in the care or control of Kun Fulfilment constitute waste; replica, counterfeit and unauthorised copies; stolen property; stocks, bonds, securities and related certificates; tobacco; and weapons and knives.
Property means the Goods, and any other goods or items to be received, stored or despatched by Kun Fulfilment.
Recipient means the intended recipient of Goods using the Services.
Services means the services provided by Kun Fulfilment relating to the provision of the Dashboard and the receipt, storage, picking, packing, arrangement of carriage and delivery to destinations designated by you, all in respect of the Goods and subject to the scope of services described in the KOA.
Sufficient Surge Notice means notice sufficient for Kun Fulfilment and the Warehouse and any other part of the Services to accommodate increased activity associated with a Surge Event, such notice being no less than 28 days before a Surge Event occurs or is anticipated to occur.
Surge Event means any event that may cause Extraordinary Activity, including: (a) recurring events such as natural seasons with associated increase in a specific commercial activity, such as swimwear and the summer; and (b) non-recurring events such as the introduction of a new range of products, opening of new stores, a sales promotion, a mass mail shot, a television advertisement, a viral e-marketing campaign or any other promotional activity aimed at causing an increase in your sales and/or deliveries to the Warehouse and/or other increase in use of the Services.
Third Party Information means information or material of any kind in any form or medium, not owned or generated by or on behalf of you, published or otherwise utilised or made available using the Service.
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (and any amending or successor legislation) in the UK and also includes any local or other legislation under which employment or liabilities arising from employment transfer by operation of law and which are applicable to (i) any territory in which Services are provided; and/or (ii) the Customer as a result of the country it is registered or established or operates in.
Updated Forecast has the meaning in clause 6.2.
Warehouse means the warehouse operated by Kun Fulfilment from which the Services are provided.
Website means Kun Fulfilment.com including the Dashboard.
Working Hours means 09.00 to 17:00 (local time) Monday-Friday on Business Days.
You (your), Customer means the Kun Fulfilment customer taking our services as set out on your account on the Dashboard.
1.2. Clause headings do not affect the interpretation of these Terms.
1.3. References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of these Terms.
1.4. Words in the singular include the plural and in the plural include the singular.
1.5. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms
2.1. Kun Fulfilment will provide the Services to you subject to these Terms to the exclusion of any terms and conditions you seek to impose.
2.2. Kun Fulfilment shall be entitled to subcontract all or any part of the Services.
2.3. The Customer acknowledges that the Charges reflect its use of Kun Fulfilment for the provision of the Services based on all Orders being Serviced by Kun Fulfilment. Accordingly, Kun Fulfilment shall be the exclusive supplier to the Customer of the Services (including in relation to Services that the Customer may be able to provide for itself directly or indirectly). The Customer shall not purchase (or provide for itself), directly or indirectly, any services which are the same as or similar to the Services from any other person during the Term.
2.4. Nothing in this Agreement shall restrict Kun Fulfilment from supplying any services which are the same as or similar to the Services to other customers.
3.1. You shall not, nor shall you authorise or permit any other person to:
3.1.1. use the Services to send or receive any Inappropriate Content or for any unlawful purposes,
3.1.2. use the Services for or in connection with goods or services which are, or otherwise use the Services, in violation of any laws, regulations or codes of practice or which may bring Kun Fulfilment into disrepute, and
3.1.3. use the Services other than in accordance with any stipulations, instructions or user guides issued by Kun Fulfilment from time to time;
3.2. You shall use the Website in accordance with its terms of use applicable from time to time as if such terms were set out in full in these Terms and any breach of such terms of use shall be a material breach of these Terms.
3.3. You shall comply with requirements placed on you in the Onboarding Documents and not do anything which changes the scope of Services in the KOA without consultation with, and prior written agreement from, Kun Fulfilment which may be withheld subject to agreement of any applicable change to the Charges.
3.4. You shall comply with and instruct your suppliers and carriers to comply with Kun Fulfilment goods in procedures and requirements for presentation of deliveries to the Warehouse. The quantity of your Goods held by us shall be as we determine on presentation at the Warehouse and thereafter according to our updated records as your Orders affect stock levels. You acknowledges that there may be a time lag between our records (including those available on the Dashboard) updating as Orders are received and fulfilled and you must refer to your own Order data (and/or Order data available to you on your sales channel(s)) to assess quantities of Goods we hold. Kun Fulfilment has no responsibility for information made available or held by your sales channel(s).
3.5. You shall promptly provide all Deliverables as required from time to time.
3.6. You warrant, represents and undertake that at the date the Services commence and on an ongoing basis that:
3.6.1. you have the right, power and authority to commit to these Terms and a contract with us and to grant to Kun Fulfilment the rights (if any) contemplated in these Terms and you are not subject to sanctions, embargoes or other legal restrictions which would or may prevent you from entering into a commercial relationship with Kun Fulfilment;
3.6.2. none of the Goods contain any Prohibited Goods and the Goods and all information provided on or in relation to them (whether to Recipients or Kun Fulfilment) comply with any and all applicable laws and regulations in any territory in which they are transported, stored or delivered affecting the manufacture, sale, packaging, labelling and transportation of the Goods from time to time in force and have been appropriately tested and approved as safe for all purposes for which the Goods are intended to be used and any breach of this sub-clause shall be a material breach of these Terms that is not remediable and shall entitle Kun Fulfilment to immediately terminate the provision of the Services to you by notice under clause 7.3;
3.6.3. you either own the Goods or have lawful possession of the Goods and all right and authority to store them with Kun Fulfilment and to direct the release and/or delivery of the Goods to any Recipient and you are accepting these Terms on your own behalf and as agent for and on behalf of the owner (if this is not you);
3.6.4. the Goods and the provision of services by Kun Fulfilment in relation to them does not infringe the Intellectual Property Rights of any third party;
3.6.5. you have supplied and will continue to supply to Kun Fulfilment (including updating) all information and documentation which is relevant to the Goods, to any interest in them, to any services provided or to be provided by Kun Fulfilment, or to any actual or anticipated obligation of Kun Fulfilment related to either the Goods or the Customer, and that such information complies with all applicable laws and regulations in any jurisdiction in which it is accessed, and is true, correct and complete in all material respects;
3.6.6. the Goods shall be presented to Kun Fulfilment (and/or anyone else dealing with them) in accordance with Kun Fulfilment goods in procedures and requirements and securely and properly packed in compliance with any applicable statutory regulations, recognised standards and good practice; and that they and any related pallet, container or other transport items are and will remain in a condition to be safely handled, stored and/or carried and so as not to cause injury, damage, contamination or deterioration (or the possibility of them) to any person, premises, property, the environment, drains or watercourses, equipment or to any other items in any way. This clause applies whether or not Kun Fulfilment has inspected the Goods or opened any packaging. Where Kun Fulfilment is performing an operation or process on the Goods, they will be delivered to Kun Fulfilment in a condition where that operation or process can be done without further work (other than unpacking) by Kun Fulfilment. Any breach of this sub-clause shall be a material breach of these Terms that is not remediable and shall entitle Kun Fulfilment to immediately terminate the provision of the Services to you by notice under clause 7.3;.
3.6.7. before Kun Fulfilment assumes any responsibility for or by reference to the Goods, you shall inform Kun Fulfilment in writing of any relevant matters, including any special precautions necessitated by the nature, size or shape, weight, condition or potential for deterioration of the Goods and any statutory or other requirements relevant to the Goods with which Kun Fulfilment or others may need to comply (including retention of Order data for a specific period for the purposes of batch traceability where Kun Fulfilment has agreed to assist the Customer with such traceability), and will, promptly after invoicing, pay Kun Fulfilment reasonable extra charges for complying;
3.6.8. you shall comply with any reasonable requirements of Kun Fulfilment relating to handling, packing, carriage, storage or forwarding of Goods (and ancillary matters) which are notified in writing from time to time;
3.6.9. Unless otherwise agreed, you will be responsible for instructing Kun Fulfilment on the order in which to pick Goods (including for example where sell or use by dates apply);
3.6.10. you have any necessary import certifications, clearances, licences or permits necessary for the entry of the Goods into the territories in which they are to be shipped, and their delivery to Kun Fulfilment, and you are responsible and shall pay for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable and registrations required in connection with the importation and delivery of the Goods and in all and any dealings with HMRC, for and on behalf of our UK customers (and/or owners of goods if different), Kun Fulfilment is deemed to be appointed and empowered to act as the appropriate agent, to make customs declarations in your name and to appoint any sufficiently experienced third party to act in such capacity and make such declarations;
3.6.11. without prejudice to clause 11, you shall provide all necessary information in relation to international customs clearance for Goods to be exported including cost prices, sale prices, HS codes, customs descriptions, instructions, documents, licences, authorisations and permissions;
3.6.12. all sales processes and information displayed on any website or promotional, marketing or other information relating to or in any way connected with the Services or the Goods, prepared or used by you or on your behalf or any Group Company of yours or any other third party, complies with all applicable laws and regulations in any jurisdiction in which it is accessed, and is true, correct and complete in all material respects and where the Goods are alcohol products, the Customer shall carry out robust age verification checks at the point of sale on any website (or otherwise) in compliance with applicable law, regulation and any retailer guidance or code of practice or recommended best practice (such as the Retail of Alcohol Standards Group). Any breach of this sub-clause shall be a material breach of this Agreement that is not remediable and shall entitle Kun Fulfilment to immediately terminate this Agreement by notice under clause 7.2;
3.6.13. you shall not, by any act or omission, place Kun Fulfilment in breach of any Business Conduct Laws and shall comply with all applicable Business Conduct Laws and ensure that you have in place adequate or other required procedures to prevent any breach of this clause 3.6.13 and ensure that all of your personnel and your direct and indirect subcontractors and others associated with you so comply;
3.6.14. neither you nor any of your officers, employees, agents or subcontractors have committed an offence under any Business Conduct Laws (an “Offence”) or been notified that you are subject to an investigation relating to an alleged Offence or prosecution under the Business Conduct Laws or are aware of any circumstances within your supply chain that could give rise to an investigation relating to an alleged Offence or prosecution under any Business Conduct Laws;
3.6.15. you shall notify Kun Fulfilment immediately in writing if you become aware or have reason to believe that you, or any of your officers, employees, agents or subcontractors have breached or potentially breached any of the your obligations under clause 3.6 (such notice to set out full details of the circumstances concerning the breach or potential breach of such obligations);
3.6.16. to the extent that the Goods fall within the ambit of article 4(5) of Regulation (EU) 2019/1020, the Customer has a manufacturer, importer, or authorised representative for the Goods in the EU;
3.6.17. you will not without the informed prior written consent of Kun Fulfilment consign Goods to Kun Fulfilment(or procure it) in circumstances where Kun Fulfilment may be held or deemed to have placed them on the market for the purposes of the General Product Safety Regulations 2005 or equivalent legislation.
3.7. Any breach of clauses 3.6.13, 3.6.14 or 3.6.15 by you shall be a material breach of these Terms that is not remediable and shall entitle Kun Fulfilment to immediately terminate the provision of the Services to you by notice under clause 7.3.
3.8. You shall indemnify and keep indemnified Kun Fulfilment, its employees, officers, agents and contractors in relation to all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Kun Fulfilment arising out of or in connection with:
3.8.1. Any breach of any of the warranties in clause 3.6;
3.8.2. any claim brought by a third party resulting from or arising in any way from any information, or any other material provided or not provided by you to Kun Fulfilment;
3.8.3. any third party claim or the requirements of any competent authority in relation to the Goods or the application of general average; and
3.8.4. any fine or penalty payable by Kun Fulfilment wholly or partly as a consequence of compliance with your instructions in relation to the Goods (or your failure to provide relevant instructions or information), or your acts or omissions.
3.9. If Kun Fulfilment suspects a breach of clause 3.6 in relation to the nature or condition of, or information provided (or not provided) in respect of the Goods, it may refuse to accept the Goods, demand their immediate removal (in response to which you must comply with Kun Fulfilment requirements), or itself arrange their removal without notice, at your expense. Such refusal, demand or removal shall not be a breach or termination of these terms by Kun Fulfilment.
4.1. Kun Fulfilment shall:
4.1.1. provide the Services with reasonable skill and care in accordance with applicable laws and shall have the right to change the Services and Charges and any of these Terms as required by Kun Fulfilment if there is any change in such laws subject to giving the Customer at least one (1) month’s notice in writing of any such change(s);
4.1.2. provide the Services except to the extent that Kun Fulfilment is not able to do so as a result of any act or omission of you or is not required to under clauses 7 or 14.
4.2. If Kun Fulfilment performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by you (including insufficient stock to meet Orders) or a customer or agent, employee or contractor of yours, or failure by you to perform any relevant obligation, or failure to remedy such act or omission within seven (7) days of written notice to do so (Customer Default):
4.2.1. Kun Fulfilment shall without limiting its other rights or remedies have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Kun Fulfilment performance of any of its obligations;
4.2.2. Kun Fulfilment shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Kun Fulfilment failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3. you shall reimburse Kun Fulfilment on written demand for any reasonable costs or losses sustained or incurred by Kun Fulfilment arising directly or indirectly from the Customer Default including those arising from claims brought against Kun Fulfilment by Recipients in the exercise of their rights.
4.3. Subject to clause 4.5, where Kun Fulfilment services involve storage and/or processing (but not carriage) Kun Fulfilment responsibility for Goods starts when Goods are accepted into store and ends when physical control of Goods is taken by you, your agents or subcontractors.
4.4. Subject to clauses 4.5 and 4.6, where Kun Fulfilment provides carriage to or from the Warehouse (either itself or using subcontractor(s)), Kun Fulfilment responsibility for Goods starts when Kun Fulfilment (or its subcontractor) takes physical control of the Goods and ends when physical control of Goods is taken by you (or your agent or subcontractor), or a Recipient or where Kun Fulfilment or its subcontractor relinquishes physical control of the Goods at the proper place of delivery. In all other cases, responsibility for the Goods is yours.
4.5. In the case of delivery of a bulk Order to a Recipient (including where the Recipient is a business customer of the Customer):
4.5.1. where, but for the absence of Recipient staff to unload, or safe and adequate unloading facilities at the place of delivery, Kun Fulfilment carrier would have relinquished physical control of the Goods for the purposes of clause 4.4, Kun Fulfilment responsibility for Goods shall be deemed to have ended;
4.5.2. the Customer will be responsible for unloading or arranging unloading by the Recipient’s staff;
4.5.3. The Customer shall indemnify and keep indemnified Kun Fulfilment, its employees, officers, agents and subcontractors in relation to all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Kun Fulfilment arising out of or in connection with the unloading of such bulk Order.
4.6. Notwithstanding clauses 4.3, 4.4 and 4.5, Kun Fulfilment responsibility ends on termination of these Terms or on the expiry of any notice requiring removal of the Goods by you (whichever occurs first).
4.7. Kun Fulfilment gives no guarantee or warranty in respect of any aspect of the Services which is reliant on third party services, such as channels with which Kun Fulfilment integrates for you, carriers, internet service or security providers, beyond those guarantees provided by the relevant supplier. Notwithstanding this, Kun Fulfilment will apply reasonable care and attention to the selection of a supplier and take reasonable steps to verify their competencies.
4.8. Except to the extent agreed in writing by the Parties, Kun Fulfilment shall not be required to have any particular resource or configuration of security or surveillance devices on or around its premises. Cameras and other surveillance devices are for the purposes of record keeping only and the Company shall not be required to have them contemporaneously or regularly monitored.
4.9. Except to the extent expressly agreed in writing between the Parties, Kun Fulfilment is not responsible for stock rotation or consolidation in respect of Goods, and it your responsibility to request specific action in writing and to pay Kun Fulfilment charges for it.
5.1. Kun Fulfilment reviews its prices and other charges regularly and may change the Charges at any time subject to Kun Fulfilment notifying you by not less than one (1) month’s notice via email and the Dashboard. The new Charges shall apply at the beginning of the calendar month following the expiry of such notice.
5.2. Kun Fulfilment may include in the Charges from time to time, additional costs incurred by Kun Fulfilment as a result of (i) any carrier, delivery, collection or storage requirements and which arise as a result of any request or action by you or due to your failure to provide adequate or correct information and instructions, or comply with your obligations under this Agreement; (ii) in the case of delivery of alcohol products, use of specific carriers or carrier services for age verification checks including signature required by Kun Fulfilment or the Customer at point of delivery (iii) deliveries to certain territories; (iv) Goods returned to Kun Fulfilment by Recipients; or (v) any cost factors beyond its control including any increase in the national minimum wage and fuel and other surcharges (and correction charges) and rate increases imposed by its carrier(s) used for the Services and any increase in any carrier’s charges resulting from a change in applicable law.
5.3. Kun Fulfilment may review and change the Charges if you do not use the Services at the volumes contained in the KOA (or other applicable Onboarding Document) or as set out in clause 6 or if you change any processes (including packing) or requirements from those notified to Kun Fulfilment before the commencement of the Services and/or contained in the Onboarding Documents. We will also charge you for our offboarding costs when our Services for you end.
5.4. Kun Fulfilment will invoice you for all Charges and any other payments due under this Agreement weekly in arrears. You must pay all invoices in full in cleared funds within seven (7) days of the date of each invoice by direct debit to the bank account nominated by Kun Fulfilment. If any direct debit payment fails, we will re-present the payment instruction to your bank. If payment is still not made, or if you cancel your direct debit at any time, we will add an administration fee to your Charges (as notified by us from time to time and included in your invoice). If you fail to set up direct debit payment or we believe your payment method has changed from direct debit, we will add a percentage surcharge to your invoice until you pay by direct debit (as notified by us from time to time and included in your invoice). All Charges are exclusive of VAT (or equivalent sales tax) and you must pay the same to Kun Fulfilment subject to receipt of a valid VAT invoice.
5.5. You shall pay all sums that you owe to Kun Fulfilment under these Terms without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
5.6. Time of payment is of the essence. Where sums due are not paid in full by the due date Kun Fulfilment may, without limiting its other rights, charge interest on such sums at four (4) percentage points a year above the base rate of the Bank of England from time to time in force and interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
5.7. Kun Fulfilment may set and vary credit limits and payment terms from time to time and withhold all further Services without liability to you if you exceed such credit limit or payment terms.
5.8. Kun Fulfilment reserves the right to suspend or terminate the provision of the Services to you immediately if you are in default of payment of invoices or any other sum due, for more than seven (7) days after the due date. Such suspension or termination does not limit its other rights and remedies.
5.9. Kun Fulfilment shall have a general and particular lien (on its own behalf and as agent for any assignee of its invoices) on the Goods in its possession as security for payment of all sums claimed by Kun Fulfilemnt from you. The Charges shall continue to accrue on any Goods detained under lien. If an invoice for the Charges is not paid in full on its due date for payment, Kun Fulfilment may, without prejudice to its other rights and remedies, give notice in writing to you of its intention to sell or otherwise dispose of some or all of the Goods in its possession if the amount outstanding is not paid in full within fourteen (14) days. If the amount due is not paid by the expiry of such period, Kun Fulfilment may sell or otherwise dispose of some or all of the Goods in its possession, as agent of you and at your expense and risk and shall remit the proceeds of sale or disposal of such Goods to you after deduction of all amounts due to Kun Fulfilment and the expenses incurred by Kun Fulfilment for the sale or disposal of the Goods. Kun fulfilment shall be entitled to sell Goods at such price (if any) as it considers appropriate. Kun Fulfilment shall not be liable for any alleged failure to achieve a sufficient sale price for the Goods. Kun Fulfilment (and any person deriving title to products through it) shall be entitled to use under licence in connection with the disposal of Goods any copyright material or trade marks, and pass on any manufacturer’s standard warranty, relating to them which would be available to an authorised retailer of the Goods. Where Goods are held by a sub-contractor or agent of Kun Fulfilment, that constitutes possession and control by Kun Fulfilment for the purposes of any lien asserted by the Company. This clause shall survive termination of these Terms.
5.10. You shall notify Kun Fulfilment promptly should a query or dispute arise on any invoice upon presentation and Kun Fulfilment will endeavour to answer any such query or resolve any such dispute within three (3) Business Days. Queries or disputes must be reasonable and raised in good faith providing relevant information (including reasonable supporting evidence) explaining the nature and extent of the dispute. Where any dispute is not resolved in time, you shall pay the undisputed part of any invoices in accordance with these Terms.
5.11. Any additional services undertaken by Kun Fulfilment which are not included in the KOA shall be chargeable at rates to be agreed in writing between the parties prior to the provision of such services (and pending agreement as notified to you via email and the Dashboard) or as notified to you as part of the onboarding process. Commencement of any additional services will not affect Kun Fulfilment rights in this clause.
6.1. Kun Fulfilment and you shall each appoint a representative (an “Account Manager”) to act as the main point of contact for the other in respect of all day-to-day and other matters relating to the Services and these Terms.
6.2. The Parties shall ensure that the Account Managers meet with the frequency referred to in the forecasting requirements in this KOA to discuss the volume of Services activity and your service requirements (Order volumes and pallet storage volumes). At least seven (7) days ahead of this meeting, you shall provide Kun Fulfilment with a written updated forecast of expected volumes in accordance with forecasting requirements in this KOA agree in writing) in the next quarter (“Updated Forecast”). To reflect any increase or decrease in such volumes outside the anticipated volumes agreed by Kun Fulfilment before commencement of the Services and any subsequent period to which an Updated Forecast relates, each Updated Forecast is subject to agreement by Kun Fulfilment (such agreement not to be unreasonably withheld). Without limiting Kun Fulfilment other rights in this clause 6, where any Updated Forecast anticipates Order volumes and/or pallet storage volumes which are twenty (20)% or more different to that in the Initial Forecast or most recent Updated Forecast, as applicable, Kun Fulfilment shall be entitled to review and change the Charges immediately at its discretion.
6.3. You shall from time to time as necessary give to Kun Fulfilment Sufficient Surge Notice of any Surge Event promptly after becoming aware of a Surge Event. Notwithstanding that Sufficient Surge Notice is based on not less than 28 days’ notice, you shall maximise the actual notice given, acting reasonably.
6.4. If you fail to give Sufficient Surge Notice or Kun Fulfilment reasonably believes that actual notice given was insufficient, given the information reasonably available to Kun Fulfilment, Kun Fulfilment shall be entitled to review and change the Charges for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Kun Fulfilment.
6.5. Where any Surge Event takes place and Kun Fulfilment has received Sufficient Surge Notice, but Kun Fulfilment has been unable, due to a Force Majeure Event, or otherwise (provided Kun Fulfilment has used reasonable endeavours) to provide the Services, the Parties will, in good faith, endeavour to agree the Charges to apply during the period of Extraordinary Activity, failing agreement of which Kun Fulfilment shall be entitled to review and change the Charges for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Kun Fulfilment.
6.6. Whether or not as a result of a Surge Event, if there is a period of Extraordinary Activity in the relevant period of activity for which a Forecast is made, Kun Fulfilment shall be entitled to review and change the Charges immediately at its discretion for the duration of the Extraordinary Activity reflecting the impact of the Extraordinary Activity on Kun Fulfilment.
6.7. If pick, pack and despatch activity under the Services in the relevant period of activity for which a Forecast is madefalls below 80% of the amount stated in the Initial Forecast or most recent Quarterly Forecast, as applicable, Kun Fulfilment shall be entitled to review and change the Charges immediately at its discretion for the duration of such variance.
6.8. Without prejudice to the obligations in this clause 6, you shall inform Kun Fulfilment both orally and in writing as soon as it becomes aware that the Initial Forecast and any Updated Forecast has become inaccurate or that its requirements for the Services may differ from any forecast to enable Kun Fulfilment to effectively provision for Services. In such event, the Parties shall discuss in good faith and endeavour to agree how to accommodate such variance.
7.1. Unless provided otherwise in the KOA, either Party may terminate the provision of the Services under these Terms by providing the other Party with at least one (1) month’s notice of termination in writing.
7.2. You may (without prejudice to any other right or remedy you may have under these Terms or otherwise) immediately terminate the provision of the Services under these Terms by giving notice in writing to Kun Fulfilment without any further liability to Kun Fulfilment where the reason for the termination is:
7.2.1. a material breach by Kun Fulfilment of these Terms and (if the breach is capable of remedy) Kun Fulfilment fails to remedy the breach within 14 days of receipt of written notice from you to do so(or 7 days in the case of non-payment of Charges); or
7.2.2. Kun Fulfilmentbecoming subject to Insolvency Proceedings; or
7.2.3. Kun Fulfilment ceasing, or threatening to cease, to carry on business; or
7.2.4. You have the right to do so under clause 13.
7.3. Kun Fulfilment may (without prejudice to any other right or remedy it may have under these Terms or otherwise) suspend the Services temporarily without notice for a period not exceeding 28 days (although you remains liable to pay all Charges during such suspension), or terminate the provision of the Services under these Terms by immediate notice in writing without any further liability to you where the reason for the termination is:
7.3.1. a material breach by you or anyone else under your control, with or without your knowledge or approval, of these Terms and (if the breach is capable of remedy) you fail to remedy the breach within 14 days of receipt of written notice from Kun Fulfilment to do so; or
7.3.2. you become subject to Insolvency Proceedings; or
7.3.3. you cease, or threatening to cease, to carry on business; or
7.3.4. Kun Fulfilment having the right to do so under clause 13.
7.4. Kun Fulfilment election to suspend the Services does not affect its right to terminate the provision of the Services under these Terms.
7.5. In the event of termination of the provision of the Services under these Terms for any reason whatsoever:
7.5.1. you agree to cease immediately to use and return to Kun Fulfilment all materials belonging to or licensed to Kun Fulfilment;
7.5.2. Kun Fulfilment shall ensure that Goods are stored so that they are identifiable by you or your nominee as belonging to you;
7.5.3. Subject to paying all arrears on your account, you (or your nominee) may, after giving at least 72 hours’ notice to Kun Fulfilment, and by arranging a suitable appointment at a time agreed, subject to the availability to Kun Fulfilment of staff, equipment and relevant capacity without incurring additional cost or causing disruption to Kun Fulfilment normal operations, collect your Goods during Working Hours from our Warehouse location; and
7.5.4. you shall in any event within 14 days of termination (or such lesser period as we shall inform you by email) pay any arrears on your account and remove all your Property from the Warehouse and any other relevant Kun Fulfilment premises, subject to paying applicable fees up to the date of collection. Such removal shall be at your expense. If your Property is not removed within the relevant period, Kun Fulfilmrnt may, at your cost (which you must pay promptly), dispose of, sell or keep it at its discretion, and in the case of sale, Kun Fulfilment shall be entitled to sell your Property at such price (if any) as it considers appropriate. Kun Fulfilment shall not be liable for any alleged failure to achieve a sufficient sale price. Kun Fulfilment (and any person deriving title to products through it) shall be entitled to use under licence in connection with the disposal of your Property, any copyright material or trade marks, and pass on any manufacturer’s standard warranty, relating to them which would be available to an authorised retailer of such Property. This clause shall survive termination of these Terms.
7.6. Termination of these Terms for any reason shall be without prejudice to the rights of either Party accrued as at the date of termination.
7.7. These terms shall not prejudice the rights to terminate the provision of the Services that either we or you have under applicable law to the extent such rights are not set out in these Terms.
8.1. Unless notified to you in the Onboarding Documents, or as otherwise agreed in writing by the Parties, Kun Fulfilment does not insure Property and you must, at your cost, either self-insure or make arrangements to provide sufficient cover (including all duties and taxes) for the Goods against all insurable risks with any right of the insurer to bring a subrogated claim being excluded.
8.2. Kun Fulfilment limits its liability as set out in clause 9 and in particular, Product Loss is limited as provided in clause 9.3.1. You may (and are recommended to) insure against liability of Kun Fulfilment above such limit. The parties agree that the limitations in clause 9 are reasonable given each party’s respective commercial position and their ability to obtain insurance in respect of the risks arising under or in connection with these Terms.
9.1. Nothing in these Terms shall operate to exclude or limit either Party’s liability for (a) death or personal injury caused by its negligence, or (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be excluded or limited under applicable law.
9.2. Subject to clause 9.1 and except as provided in clause 3.8 or in the case of your wilful default, neither Party shall be liable, howsoever arising, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms for (i) special, indirect, incidental or consequential losses or (ii) loss of profit, loss of contract, loss of revenue, loss of opportunity, loss of anticipated savings, loss of goodwill, business interruption, wasted costs or wasted management time, or liquidated damages (howsoever arising and whether direct or indirect or foreseeable or advised by a party as being in their contemplation).
9.3. Subject to clause 9.1, Kun Fulfilment liability to you arising under or in connection with our commercial relationship with you (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) is limited as follows:
9.3.1. Kun Fulfilment liability for Product Loss is (i) while the Goods are in the Warehouse and under the physical control of Kun Fulfilment, limited to the replacement cost or invoice cost, whichever is less (subject to receipt of evidence) up to £100 per tonne weight of the Goods except to the extent of any insurance effected by Kun Fulfilment; and (ii) while the Goods are in transit to a Recipient and under the physical control of a carrier, limited to the fees payable by you for such delivery unless Kun Fulfilment has expressly agreed to a higher limit on its liability for damage to or loss of Goods in transit, on payment by you of an increased amount, in which case, the limit on Kun Fulfilment liability in such circumstances shall be increased in line with that express agreement, subject to the specific terms of that agreement, which shall be deemed incorporated into these Terms;
9.3.2. Kun Fulfilment liability other than in relation to Goods (by way of example alleged negligent advice or data irregularities) shall be limited to £1000 per incident or series of connected incidents;
9.3.3. all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law;
9.3.4. Kun Fulfilment shall not be liable for any Product Loss or other loss of any kind to the extent that it is caused or contributed to by any act or omission of you;
9.3.5. Kun Fulfilment shall have no liability for the acts or omissions of carriers used by you in the transportation of your Property to or from any Kun Fulfilment location. Carriers used for the Services are independent and not controlled by Kun Fulfilment; delivery times are aims only and Kun Fulfilment gives no warranty or guarantee concerning delivery times, notwithstanding the fulfilment option(s) selected in respect of any order intended to be fulfilled by Kun Fulfilment. Signature on behalf of a Recipient in relation to a relevant delivery is evidence that the Goods have been received in apparently good order (save as noted).
9.4. Notwithstanding any other of these Terms, Goods in transit may be held overnight or temporarily at such interim destination as Kun Fulfilment or a carrier chooses;
9.5. Any degree of performance by Kun Fulfilment of its obligations shall negate any allegation that it is refusing to perform them.
9.6. The provisions of these Terms and the rights and remedies of the parties under these Terms are cumulative and are without prejudice and in addition to any rights or remedies a Party may have at law or in equity.
9.7. Kun Fulfilment reserves the right to remove any of your information or Third Party Information if Kun Fulfilment reasonably believes such information contains Inappropriate Content. Kun Fulfilment shall use its reasonable endeavours to notify you in advance of any removal, where possible.
9.8. Notwithstanding the foregoing, to the extent that Kun Fulfilment is liable to make any payment to competent authorities or Recipients under law and regulation applicable in the territory in which the Services are provided as a direct or indirect result of any fraud, default or negligence of any kind by you (or any person acting on your behalf), you shall compensate Kun Fulfilment promptly in full in respect of respect of any such payment.
9.9. Kun Fulfilment shall not be liable for any claim unless it has received written notice of it within 10 Business Days of you becoming aware of the event giving rise to the claim and, within 15 Business Days of you becoming aware of the event giving rise to the claim, sufficient detail in writing to enable investigation.
9.10. No legal proceedings (including any counterclaim) may be brought against Kun Fulfilment unless they are issued and served within 9 months of the event giving rise to the claim.
Each Party’s Intellectual Property shall remain the property of the relevant Party and its licensors and all data and other information, including forecasts, created or generated by Kun Fulfilment or arising out of the Services and any tools and software created, generated or used by it (and all Intellectual Property therein) in connection with the Services shall belong to Kun Fulfilment (or its licensees) whether or not you or any other party has paid the costs of origination or development. Nothing in these Terms shall transfer or grant to the other Party any right, title or interest in any Intellectual Property Rights which are owned or licensed by a Party to these Terms or any Group Company of that Party.
11.1. You acknowledge that you are responsible for checking the accuracy of each transaction or computation carried out using the Services, including the calculation and imposition of any applicable taxes, duties and charges of whatever nature and for all documentation relating to such transactions and computations, including and as applicable the creation of invoices, VAT or other tax records, and shipping documentation.
11.2. You are solely responsible for the filing of appropriate returns and the payment of any and all taxes, duties, customs, excise and any other expenses of whatever nature applicable to you and/or the Goods or any third party arising out of your use of the Services and will indemnify Kun Fulfilment fully against liability for any such taxes and duties.
11.3. Kun Fulfilment does not provide nor does Kun Fulfilment agree to provide any advisory services to you regarding taxation or any customs or other import/export duties. The provision of the Services does not constitute the provision of such advice and all such computations are based solely on data supplied or created by you.
12.1. You shall remain solely responsible for any transactions of any kind entered into between you (and/or any third party) and Recipients in relation to the Goods. Kun Fulfilment will not be a party to or in any way responsible for any transaction between you and a Recipient or other third party.
13.1. Both parties shall comply with all applicable requirements of the Data Protection Legislation.
13.2. The parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and Kun Fulfilment is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
13.3. Kun Fulfilment will process personal data supplied by you or on your behalf for purposes appropriate or connected to the performance of Kun Fulfilment obligations. Kun Fulfilment may share data with a subcontractor or subprocessor in connection with the provision of the Services on such terms as are required by Data Protection Legislation, and with any government authority where appropriate. Kun Fulfilment shall, as soon as reasonably practicable following written request from you, provide details of any such subprocessor to you.
13.4. The Important Notes at the beginning of these Terms contain the data processing particulars including the scope, nature and purpose of processing by Kun Fulfilment.
13.5. Without prejudice to the generality of clause 13.1, you warrant, represent and undertake that:
13.5.1. You have all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in Data Protection Legislation) to Kun Fulfilment and its subprocessors for the duration and purposes of this Agreement;
13.5.2. the processing of all Personal Data (if processed in accordance with this Agreement) shall comply in all respects with Data Protection Legislation, including in terms of its collection, use and storage;
13.5.3. fair processing and all other appropriate notices have been provided to Data Subjects (as defined in Data Protection Legislation) and all necessary consents from such Data Subjects obtained and at all times maintained, to the extent required by Data Protection Legislation in connection with all processing activities which may be undertaken by Kun Fulfilment and its subprocessors in accordance with these Terms;
13.5.4. all instructions given by you to Kun Fulfilment in respect of Personal Data shall at all times be in accordance with Data Protection Legislation;
13.5.5. to indemnify and keep indemnified Kun Fulfilment, its employees, officers, agents and contractors in relation to all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Kun Fulfilment arising out of or in connection with any:
13.5.5.1. non-compliance by you with the Data Protection Legislation;
13.5.5.2. processing carried out by Kun Fulfilment (or any subprocessor) pursuant to any instruction from or on behalf of you that infringes any Data Protection Legislation; or
13.5.5.3. breach by you of any of your data protection obligations under these Terms.
13.6. Without prejudice to the generality of clause 13.1, Kun Fulfilment shall, in relation to any Personal Data processed in connection with the performance by Kun Fulfilment of its obligations under these Terms:
13.6.1. process that Personal Data only on the written instructions of you;
13.6.2. ensure we have 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;
13.6.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
13.6.4. not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained (which shall be deemed to have been given hereunder to the extent any Order is intended to be delivered outside of the United Kingdom or European Economic Area and the services of carriers outside such locations is required) and the following conditions are fulfilled:
13.6.4.1. you or Kun Fulfilment has provided appropriate safeguards in relation to the transfer;
13.6.4.2. the data subject has enforceable rights and effective legal remedies;
13.6.4.3. Kun Fulfilment complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
13.6.4.4. Kun Fulfilment complies with reasonable instructions notified to it in advance by you with respect to the processing of the Personal Data;
13.6.5. assist you, at your cost, in responding to any request from a Data Subject and in relation to its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.6.6. notify you without undue delay on becoming aware of a Personal Data breach relating to the Services;
13.6.7. at your written request , delete, anonymise or return Personal Data and copies of it to you on termination of the provision of the Services under these Terms unless required by any applicable laws or its audit requirements to store the Personal Data; and
13.6.8. maintain records and information to demonstrate its compliance with this clause for the purposes of audit and inspection of Kun Fulfilment data processing under the Services.
14.1. If either Party is unable to perform or is hindered or delayed in performing any obligation under these Terms because of a matter beyond that Party’s reasonable control including lightning, flood, ice, frost, extreme weather conditions, earthquake, fire, explosion, utilities failure, disruption to transportation networks (including fuel shortage, road closures, traffic congestion, transport blockades, airline delay), mechanical breakdown, war, acts of terrorism, civil disorder, pandemic, epidemic, industrial disputes (excluding strikes, lock-outs or other industrial action of the affected Party’s own employees), suitable staff shortage, or acts of local or central government or other competent authorities or governmental, regulatory or quasi-governmental action directive or restriction, or events beyond the reasonable control of any carrier used by Kun Fulfilment, that Party will have no liability to the other for that failure to perform.
14.2. In the event of a network failure or refusal or delay by a third party to supply a telecommunications service to Kun Fulfilment and where there is no alternative service available at reasonable cost, Kun Fulfilment will have no liability to you for failure to supply the Services.
14.3. if any of the events detailed in clauses 14.1 or 14.2 (“Force Majeure Event”) prevent Kun Fulfilment from providing the Services, and this continues for a period of more than 28 days, you may engage alternative service providers to provide the affected Services for the duration of the Force Majeure Event and you will not be liable for any Charges for the affected Services during this period. If any Force Majeure Event continue for more than 3 months either Party may serve notice on the other terminating these Terms. You shall be responsible for any Charges, excluding charges for affected Services, incurred to the date of termination which shall become due forthwith on the date of termination.
15.1. Each Party shall protect the Confidential Information of the other Party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
15.2. Confidential Information may be disclosed by the receiving Party to its employees, affiliates and professional advisers, or the employees of either Kun Fulfilment Group Company or your Group Company or their professional advisers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other Party.
15.3. The obligations set out in this clause shall not apply to Confidential Information which the receiving Party can demonstrate, with written evidence:
15.3.1. is or has become publicly known other than through breach of this clause; or
15.3.2. was in possession of the receiving Party prior to disclosure by the other Party; or
15.3.3. was received by the receiving Party from an independent third party who has full right of disclosure; or
15.3.4. was independently developed by the receiving Party without any breach of these Terms as evidenced by written records; or
15.3.5. was required to be disclosed by governmental authority or competent court, provided that the Party subject to such requirement to disclose gives the other Party prompt written notice of the requirement.
15.4. The obligations of confidentiality in this clause shall not be affected by the expiry or termination of these Terms, but will remain in effect for two (2) years after the termination of these Terms.
16.1. A notice given under these Terms shall be (a) in writing in the English language, (b) sent for the attention of our or your usual contact, and (c) shall be sent by email or in the absence of a valid email address, to the address for the Customer given in this KOA by pre-paid first-class post, recorded delivery or commercial courier, or (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail addressed to Kun Fulfilment registered office.
16.2. A notice is deemed to have been received (a) if delivered personally or by email, on the date, and at the time of, delivery or (b) in the case of pre-paid first class post or by recorded delivery or commercial courier 48 hours from the date of posting, or (c) in the case of registered airmail, five days from the date of posting, or (d) in the case of email at the time of transmission.
16.3. If deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the deemed receipt will be the date and time on which business next starts in the place of receipt.
16.4. To prove service, it is sufficient to prove that the envelope containing the notice was properly addressed and posted.
17.1. During the Term of these Terms and for a period of 12 months thereafter, neither Kun Fulfilment nor you may solicit, directly or indirectly seek to employ or otherwise engage the other’s staff, without express permission from the other prior to any such engagement, except where such engagement results from an enquiry in response to a public advertisement.
17.2. Where there is an Inward TUPE Transfer, you will indemnify Kun Fulfilment against all liability and expense which Kun Fulfilment may incur in connection with:
17.2.1. the employment or the termination of employment, before the “Effective Time” (meaning the time at which the employment of any person (or liabilities relating to that person) are transferred to Kun Fulfilment under TUPE), of any “Employee” (meaning a person employed or previously employed by the “Transferor” (meaning a transferor as defined by TUPE) and who is, or whose rights are, affected by the Inward TUPE Transfer);
17.2.2. any failure by the Transferor to comply with its legal obligations in respect of any of the Employees;
17.2.3. the transfer to Kun Fulfilment, by virtue of TUPE or otherwise, of the employment of any person or the applicability of terms of employment, other than those previously notified to, and previously accepted by, Kun Fulfilment in writing;
17.2.4. any act or omission of the Transferor, on or before the Effective Time, for which Kun Fulfilment becomes liable by virtue of TUPE or otherwise;
17.2.5. the employment or termination of the employment of any Employee, whether before, on or after the Effective Time; or
17.2.6. the Transferor’s failure to inform and consult under TUPE or the Trade Union and Labour Relations (Consolidation) Act 1992.
17.3. Where there is an Outward TUPE Transfer, you will indemnify Kun Fulfilment against all liability and expense which Kun Fulfilment may incur in connection with:
17.3.1. the Transferee’s (meaning a transferee as defined by TUPE) failure to comply with its legal obligations, including those under regulation 13 of TUPE;
17.3.2. the employment or termination of the employment of any employee, or any act or omission by you or any replacement service provider at any time on or after the Outward TUPE Transfer;
17.3.3. any claim by any employee arising from any proposed change to working conditions by you or any replacement service provider which is alleged to be to their material detriment.
17.4. Where the Services (or any part) transfer to you or any replacement service provider and TUPE does not apply and/or any Kun Fulfilment employee does not transfer and Kun Fulfilment or any subcontractor terminates the employment of any such employee on the grounds of redundancy in the 3 months after the date of such transfer, you will indemnify Kun Fulfilment against all liability and expense which Kun Fulfilment may incur in connection with such termination provided that you shall not be liable to the extent that liability and expense arises from any act or omission of Kun Fulfilment.
18.1. Kun Fulfilment shall be entitled to use the names, logos and other visual representations used in connection with the Goods in/on communications and other materials and literature relating to the provision by Kun Fulfilment of the Services.
18.2. All other media releases, public announcements and public disclosures by either Party relating to these Terms or its subject matter, including promotional or marketing material, other than as included in clause 18.1, shall be co-ordinated and approved by the parties prior to release.
18.3. Kun Fulfilment (and its carriers) may open any container or packaging to inspect them or Goods they purportedly contain.
18.4. The Parties shall use reasonable endeavours to reach a negotiated resolution of any dispute arising between them out of or in connection with this Agreement through the following procedures (and nothing in this clause 18.4 shall preclude Kun Fulfilment from pursuing any claim or other action in respect of invoices not paid in accordance with these Terms):
18.4.1. This dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen and that includes reasonable information as to the nature of the dispute;
18.4.2. Within seven days of service of such notice, the Contract Managers shall meet to discuss the dispute and attempt to resolve it and if the dispute has not been resolved within seven days of their first meeting, then the matter shall be referred to the Chief Commercial Officer (or persons of equivalent seniority) of each Party who shall meet within seven days to discuss the dispute and attempt to resolve it.
18.5. Neither Party will assign any of its rights or obligations under the terms of these Terms without the prior written consent of the other save that Kun Fulfilment shall be entitled to (i) assign these Terms to any Group Company and (ii) assign (in whole or in part) any part of the benefit or the burden of these Terms to any funder, security trustee or security holder.
18.6. These Terms and the Onboarding Documents set out the entire agreement and understanding between the parties, superseding any previous agreement between them in relation to the subject matter of your agreement with Kun Fulfilment and no representations, statements or inducements, oral or written, not contained herein shall bind either Party.
18.7. No person or undertaking (other than Kun Fulfilment Group Companies) that is not a Party to these Terms shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of these Terms.
18.8. Any variation of this Agreement must be in writing and signed by an authorised signatory of each party to this Agreement. This written form requirement also applies to any deviations from this clause 18.8.
18.9. Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
18.10. The waiver by either party of a breach or default of any of the provisions of these Terms by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power of privilege that it has or may have hereunder operate as a waiver of any breach of default by the other Party.
18.11. If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.12. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.13. Save as expressly provided, nothing in these Terms shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either Party as agent of the other for any purpose whatsoever. No Party shall have the authority to bind the other Party or to contract in the name of, or create a liability against, the other Party in any way or for any purpose.
18.14. These Terms shall be binding upon and endure for the benefit of the successors in title of the parties to it.
18.15. These Terms and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and the parties submit to the exclusive jurisdiction of the English courts.
