General Terms of Service Version 1.2

These terms and conditions (these “Terms”) are the terms on which Sana Commerce UK Limited (“Sana Commerce”) supplies software and related services to its customers (“Customers”). By signing or placing an Order with Sana Commerce, you confirm that you agree to these Terms.

1. Definitions and interpretation

In these Terms, the following words have the following meanings.
Additional Fees: the additional fees, being a percentage of the Customer Gross Merchandise Value in excess of the Monthly GMV Threshold, as set out in the Order, which is payable by the Customer to Sana Commerce in the circumstances set out in clause 6.3.
Affiliates: any entity that directly or indirectly controls, is controlled by, or under common control with, the Customer.
Agreement: these Terms and any Order entered into in accordance with these Terms.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours: the hours of 9.00am to 5.00pm on any Business Day.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and the expression change of control shall be construed accordingly.
Confidential Information: all information, material and data (in any format) relating to the disclosing party that is proprietary or designated as “confidential” or which by its nature is clearly confidential (whether or not marked as confidential), including information concerning the disclosing party’s business, operations, affairs, financial information, customers, clients, suppliers, operations, processes, know-how, designs, trade secrets, services, products, software and price lists but not including any information that: (i) is or becomes public knowledge other than by an act or omission of the receiving party; (ii) is or becomes available to the receiving party without an obligation of confidence from a third party having the legal right to disclose the information; or (iii) is already in the receiving party’s possession before disclosure without an obligation of confidence.
Customer Data: means all data (including Personal Data), information and other materials in any form, which is accessed, received, stored or processed by Sana Commerce on behalf of the Customer in the performance of the Services.
Customer Gross Merchandise Value (GMV): means the total value of all sales through the Customer’s Webstores during the relevant period.
Customer System: the ERP (Enterprise Resource Planning) system used by the Customer with which the Software integrates.
Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including and without limitation, the privacy of electronic communications).
Documentation: the documentation made available by Sana Commerce from time to time relating to the Software, including any operating manuals and user instructions.
Fees: the fees payable by the Customer under this Agreement, including the Subscription Fees, any Services Fees, and all other fees, costs and charges payable under an Order and/or this Agreement.
Force Majeure Event: shall have the meaning given in clause 17.1.
GMV Threshold: the anticipated Customer Gross Merchandise Value for the Webstores during each Year, as agreed by the parties and set out in the Order.
Group: in relation to any party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party (as the terms subsidiary and holding company are defined in section 1159 of the Companies Act 2006).
Hosting Services: the hosting of the Software by Sana Commerce on behalf of the Customer, where such service is to be provided by Sana Commerce, as set out in an Order.
Implementation Services: the implementation and set up of the Software and connection of the Software to the Customer System.
Initial Subscription Term: means a period of 36 months.
Insolvency Event: means in respect of a party, that it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986, or enters into a composition, compromise or arrangement to reschedule or restructure its debt with or for the benefit of its creditors (except for the purpose of a bona fide reconstruction or amalgamation), or it compulsorily or voluntarily enters into liquidation or commences negotiations in respect of the same (except for the purpose of a bona fide reconstruction or amalgamation), or it applies to court for, or obtains a moratorium under Part A1 of the Insolvency Act 1986, or it has an administrator, receiver or liquidator or manager appointed over the whole or a substantial part of its assets or any petition or notice is filed or given in respect of the same by any person, or any creditor or encumbrancer attaches or takes possession of or a distress, execution, sequestration or other such process is levied or enforced on or sued against the whole or any part of its assets which is not discharged within 14 days, or it ceases or threatens to cease business or is dissolved, or if any equivalent or similar event occurs or proceeding is taken with respect to that company in any jurisdiction to which it is subject.
Intellectual Property Rights: means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.
License Agreement: the license agreement to be entered into by the Customer and relevant member of the Sana Commerce Group in respect of the use of the Software.
License Date: the license date is the first day of the month following the signature date on the order confirmation.
Monthly GMV Threshold: the anticipated monthly Customer Gross Merchandise Value for the Webstores during each month of a Year, being an equal sum for each month of the Year, calculated as an average based on the annual Gross Merchandise Value set out in the Order.
Order: means an order for Software and/or Services, which is submitted by the Customer and accepted by Sana Commerce in accordance with clause 2.
Sana Commerce Customer Support Agreement: the Sana Commerce support agreement setting out the Support Services, a copy of which is available from Sana Commerce on request.
Services: means those services as are set out in an Order, which are to be provided by Sana Commerce to the Customer, which may include the Implementation Services, training in respect of the Software, customization of the Software, implementation of Software Upgrades, Support Services, each as more particularly described in the Order (if applicable).
Services Commencement Date: means the date of commencement of the Services, as set out in the applicable Order.
Services Fees: the fees payable by the Customer to Sana Commerce in respect of the provision of the Services, as set out in an Order.
Software: means the Sana Commerce software application, available as software as a service, and the version of which is set out in the Order, together with any Sana Commerce ERP connectors and other Sana Commerce add-ons or software components set out in the Order, which the Customer is granted a right to use during the term of the Subscription, subject to the Customer entering into a License Agreement.
Software Updates: a version of the Software which has been produced primarily to overcome any defect or error in the Software.
Software Upgrades: any new release, new version or upgrade of the Software released from time to time, which is produced primarily to extend, alter or improve the Software by providing additional functionality or performance enhancement.
Subscription: a subscription purchased by the Customer to use the Software pursuant to the License Agreement, commencing on the Subscription Commencement Date, in accordance with these Terms.
Subscription Commencement Date: means the first day of the month following the date of signature of the Order;
Subscription Fees: means the fees payable by the Customer to Sana Commerce in respect of a Subscription, as set out in an Order.
Support Services: means the support services set out in the Sana Commerce Customer Support Agreement, which can be found at support.sana-commerce.com/sla.
Term: shall have the meaning given in clause 10.1.
UK GDPR: shall have the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018).
Virus: means any thing or device (including any software, code, file or program) whose purpose or possible function is to deliberately disable a computer or network or impair or adversely affect its performance or prevent or hinder access to any program or data, or impair the operation of any program or the reliability of any data including a computer virus, Trojan horse, worm, logic bomb, back door or similar item.
Webstore: a webstore of the Customer in respect of which the Customer wishes to use the Software.
Year: a period of twelve (12) months commencing on the Subscription Commencement Date, and on each anniversary of that date, during the Subscription.
Unless expressly stated otherwise, a reference to a statute or statutory provision is a reference to legislation in force in England as amended, extended or re-enacted from time to time and shall include reference to all subordinate legislation made from time to time.
Unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) any words following the terms “including” or any similar expression shall be construed as illustrative and shall not limit the generality of the preceding words and shall be construed as if they were immediately followed by the words “without limitation”.
References to clauses are to the clauses of these Terms. The headings in these Terms are for ease of reference only and shall not affect their interpretation.

2. Orders

These Terms apply to the supply of the Services and Software to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
In the event that the Customer requires additional Services or a different version of or Upgrade to the Software, the provision of such Services or Software shall be subject to the agreement of the terms of an Order in writing. Sana Commerce shall not be obliged to provide any such additional Services or Software until such Order has been agreed and signed by the Customer.

3. Implementation

Sana Commerce shall provide the Implementation Services where agreed in an Order. Unless otherwise agreed in an Order, the Implementation Services shall not include any customisation or configuration of the Software, or any data conversion.
Any timescales provided in respect of the delivery of the Software or the Implementation Services are estimates only, and Sana Commerce shall not be liable for any delay in the delivery of the Software or Implementation Services. In the event that any timescales provided in respect of the delivery of the Software or Implementation Services are likely to be exceeded, Sana Commerce will notify the Customer of such delay as soon as reasonably possible. Time shall not be of the essence.

4. Services

Sana Commerce shall commence the provision of the Services set out in an Order on the Services Commencement Date and will provide such Services for the duration set out in the relevant Order, unless the Order or the Agreement is terminated earlier in accordance with these Terms.
The Customer’s right to use the Software shall commence on the Subscription Commencement Date, subject to the Customer having entered into the License Agreement. During the Subscription, the Customer shall have the right to use the Software for the Customer’s internal business use, under and in accordance with the terms of the License Agreement, and provided that the Customer complies with the terms of this Agreement. In the event that the Customer does not execute the License Agreement, Sana Commerce shall have the right to suspend the provision of the Services to the Customer and the Customer’s access to the Software, without liability to the Customer, until such License Agreement is entered into.
Sana Commerce shall provide the Services using reasonable care and skill.
The Customer shall provide Sana Commerce with all necessary cooperation and access to such information, premises, systems (including the Customer System) and network, as are required by Sana Commerce in order to perform the Services, and shall ensure that such information is accurate and complete. The Customer acknowledges that Sana Commerce is dependent on the full and timely provision of such cooperation and access, and the accuracy and completeness of any information that the Customer provides.
In the event that the Customer fails to provide the cooperation and access required pursuant to clause 4.4, and Sana Commerce is unable to provide the Services to the Customer as a result of such failure:
(a) Sana Commerce shall not be liable for any such delay or inability to provide the Services to the Customer; and
(b) Sana Commerce shall be entitled to charge the Customer for all time spent and costs incurred (including travel time and travel expenses) by Sana Commerce personnel in attending the Customer’s premises to perform such Services.
Unless expressly agreed in an Order or otherwise in writing, Sana Commerce shall not be obliged to provide any Support Services in respect of the Services and/or Software. Sana Commerce shall provide the Support Services, where provided for in the Order, in accordance with and subject to the terms of the Sana Commerce Customer Support Agreement, which can be found here: support.sana-commerce.com/sla.
Sana Commerce may implement any Software Updates, modifications or additions to the Software and/or Documentation from time to time in its discretion, provided that any such update, change, modification or addition does not have a material adverse effect on the Customer’s use of the Services, Software and/or Documentation. Sana Commerce has no obligation to provide the Customer with any Software Updates. In the event that the Customer hosts the Software, the Customer shall be responsible for implementing any Software Updates issued to the Customer by Sana Commerce. Sana Commerce has no responsibility to support or maintain an older version of the Software where a Software Update has been released and provided to the Customer by Sana Commerce.
Sana Commerce has no obligation to make available to the Customer any Software Upgrade. The provision of any Software Upgrade may be subject to additional fees.

5. Customer’s obligations

Customer shall and shall procure that all Authorised Users shall:
(a) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(b) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient matter and within any agreed timescales. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Sana Commerce may adjust any agreed timetable or delivery schedule as reasonably necessary;
(c) use the Services, Software and Documentation in accordance with these Terms, and the Customer shall be responsible for any Authorised User’s breach of these Terms;
(d) have in place all necessary licenses, consents and permissions in respect of the use of the Customer System and which are necessary for Sana Commerce, its contractors and agents, to perform their obligations under the Agreement; and
(e) ensure that it has all necessary internet and network communications, and that the Customer System and its computer equipment, network and browser meet all technical requirements applicable to the Software which are notified to it by Sana Commerce from time to time.
The Customer shall observe any restrictions on the use of the Software as provided by Sana Commerce to the Customer from time to time, including only using the Software in connection with hardware and software which is compatible with the Software, as notified by Sana Commerce to the Customer from time to time.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, shall immediately notify Sana Commerce and shall give Sana Commerce all assistance that it reasonably requires to prevent such unauthorised access.
The Customer shall not, and shall not allow any Authorised User to:
(a) use the Software in any way that breaches any applicable law, regulation or code of practice;
(b) use the Software to transmit, upload, disseminate or otherwise distribute any material that:
1. is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing, racially, religiously or ethnically offensive or otherwise objectionable;
2. infringes any Intellectual Property Rights, rights of privacy, personality or publicity or other third party rights;
3. contains unsolicited or unauthorised advertising or promotional content;
4. facilitates or promotes illegal activity;
5. threatens the security and/or confidentiality of the Software; and/or
6. causes damage or injury to any person or property;
(c) store, distribute or transmit any Viruses (or attempt to do the same) during the course of its use of the Software, or attack the Software via a denial-of-service attack or a distributed denial-of-service attack;
(d) attempt to access without authority, interfere with, damage or disrupt any part of the Software or Sana Commerce’s IT systems;
(e) except as expressly permitted by these Terms and as may be allowed by any applicable law which cannot be excluded, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form, all or any part of the Software, or copy, modify, translate, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Software and/or Documentation in any form or media or by any means (including by using any robot, spider, or other automated device or manual process);
(f) access all or any part of the Software and/or Documentation in order to build a product or service which competes with the Services and/or Software;
(g) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Software and/or Documentation available to any third party except the Authorised Users, or use the Services and/or Software to process data on behalf of third parties (including through “time-sharing”, “application service provision”, “software as a service” and “outsourcing” services).
Sana Commerce reserves the right, without prejudice to any other rights or remedies to which Sana Commerce may be entitled, and without liability, to suspend and/or terminate access to all or any part of the Software and/or Documentation, and/or suspend the provision of the Services, in the event that the Customer’s or any Authorised User’s use of the Services, Software and/or Documentation is in breach of any of the provisions of clause 5.4.

6. Payment

Unless otherwise stated in an Order or agreed by the parties in writing, all Subscription Fees and Support Fees shall be payable annually in advance, and all Services Fees shall be payable in advance.
Fees are quoted on the basis of one Webstore, and any additional Webstores will incur additional Fees.
The Customer and Sana Commerce shall agree the GMV Threshold for the Webstores. The GMV of the Webstores shall be measured on a monthly basis. In the event that the GMV of the Webstores exceeds the Monthly GMV Threshold in three consecutive months or during three months within a six-month period of time, the Additional Fees set out in the Order shall apply with effect from the commencement of the following month.
All invoices shall be payable by the Customer within 14 days of the date of the relevant invoice.
If Sana Commerce has not received payment within 7 days after the due date for payment, Sana Commerce may, without prejudice to any other rights or remedies it may have:
(a) suspend any part of the Services and/or suspend the Customer’s use of and/or access to the Software, and Sana Commerce shall be under no obligation to provide all or any part of the Services and/or Software while the invoice(s) concerned remain unpaid;
(b) charge the Customer interest on a daily basis in respect of the overdue amount at the rate of 4% per annum above EURIBOR’s base rate from time to time, from the due date and continuing until payment of the overdue amount is received in full by Sana Commerce, whether before or after judgment; and
(c) recover from the Customer any fees incurred by Sana Commerce (including debt recovery agency fees, legal fees and court costs) in recovering the overdue amount.
All amounts and fees stated or referred to in the Agreement:
(a) shall be payable in pounds sterling, unless agreed otherwise in an Order;
(b) are non-cancellable and non-refundable and are exclusive of value added tax or any other applicable tax or duty payable upon such sums, which shall be payable by the Customer in addition, at the applicable rate;
(c) shall be paid in full without any deduction, discount, set off or abatement except as required by law and the Customer shall not be entitled to assert any credit, set off or counterclaim against Sana Commerce in order to justify withholding payment of any such amount in whole or in part.
All payments made by the Customer under the Agreement shall be first used to meet the amounts and fees (including any interest) which have remained outstanding for the longest period of time, notwithstanding any instructions provided by the Customer to the contrary.
The Customer acknowledges that the Services Fees are subject to change at any time, and Sana Commerce shall be entitled to modify price lists, brochures, quotations and other documents setting out the Services Fees.
Sana Commerce shall be entitled at any time to increase the Fees and the prices for its products and services annually, by providing three (3) months’ written notice to the Customer.

7. Intellectual Property Rights

The Customer acknowledges and agrees that all Intellectual Property Rights subsisting in and relating to the Software and Documentation are owned by a member of the Sana Commerce Group. The Customer’s right to use the Software and Documentation is granted under and in accordance with the License Agreement, provided the Customer has entered into the License Agreement. No rights in or to the Software or Documentation are granted to the Customer under this Agreement.
The Customer may not remove or obscure any trade marks of Sana Commerce, or any copyright, trade mark or proprietary notices featured, displayed or provided with the Software, and may not use any other trade marks in connection with the Software.
The Customer acknowledges that Sana Commerce may implement technical measures aimed at protecting the Software, and the Customer shall not attempt to remove or circumvent such measures.
If the Software becomes or, in Sana Commerce’s reasonable opinion, is likely to become the subject of any claim that the Software infringes any Intellectual Property Right of a third party, Sana Commerce shall be entitled, at its absolute discretion and without liability:
(a) to modify or replace all or part of the Software as necessary to avoid such claim, provided that the Software continues to function in substantially the same way; or
(b) if Sana Commerce is unable to achieve the option at sub-clause 7.4(a) on reasonable commercial terms, Sana Commerce may terminate the Agreement with immediate effect on written notice to the Customer.
The Customer agrees that Sana Commerce may use the Customer’s name and logo in marketing and promotional materials in respect of the Services and/or Software.

8. Customer data

The Customer shall own all right, title and interest in and to the Customer Data and shall be fully responsible for the legality, reliability, integrity, accuracy and quality of all such Customer Data. All processing of Customer Data shall be subject to a Data Processing Agreement to be entered into by the parties.
Unless agreed by the parties in an Order, Sana Commerce shall have no responsibility to back up Customer Data held on the Software or for any loss or damage to the Customer Data, and the Customer shall have sole responsibility for ensuring that it has appropriate back ups of the Customer Data.
If the parties have agreed in an Order that the Services shall include back ups:
(a) Sana Commerce will create back ups of the Customer Data held on the Software once a week. Sana Commerce shall retain such back ups for a period of three months, after which period it shall be entitled to delete the back ups without liability to the Customer;
(b) in the event of any loss or damage to Customer Data, Sana Commerce’s sole and entire obligation and liability to the Customer shall be to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back up of such Customer Data maintained by Sana Commerce.
Sana Commerce shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

9. Confidential information

Each party undertakes that it shall maintain the confidentiality of the Confidential Information of the other party and that it shall not, at any time, use or disclose any Confidential Information of the other party to third parties, except with the prior written consent of the other party or as permitted by clause 9.2.
Each party may, for the purposes of performing and/or exercising its rights and/or obligations under the Agreement, use the other party’s Confidential Information and/or disclose the other party’s Confidential Information under obligations of confidence to that party’s directors, officers, personnel, agents, subcontractors and/or professional advisors, provided that it remains responsible for the compliance by such persons with the confidentiality obligations set out in this clause 9.
Each party shall promptly return or destroy any or all of the other party’s Confidential Information upon receiving written notice from that other party to this effect.
This clause 9 shall survive termination or expiry of the Agreement, howsoever arising.

10. Term and termination

The Term of this Agreement shall commence on the date the Order Form is signed by both parties and shall continue for the Initial Subscription Term, unless terminated earlier in accordance with its terms. Thereafter the Agreement shall automatically continue for subsequent periods of 12 months (each a Renewal Term), unless either party gives the other party at least 3 months’ notice of termination prior to the end of the Initial Subscription Term or Renewal Term (as applicable), such notice not to expire prior to the expiry of the Initial Subscription Term or Renewal Term (as applicable).
Either party may terminate the Agreement without liability to the other party, by written notice with immediate effect if the other party:
(a) commits a material breach of any of the terms of the Agreement, which is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so; or
(b) is subject to an Insolvency Event.
Sana Commerce may terminate the Agreement and/or any Order without liability to the Customer by written notice with immediate effect if:
(a) the Customer fails to pay any amount due under the Agreement within 14 days of the due date for payment;
(b) the Customer is subject to a change of Control;
(c) Sana Commerce is unable to continue to provide the Software as a result of a change in applicable laws or regulations; or
(d) Sana Commerce or its Group ceases to provide the Software.
Sana Commerce may terminate this Agreement and/or any Order in respect of a particular software product (including the Software) or any of the Services upon giving the Customer 30 days’ written notice if Sana Commerce decides to cease offering that Software or Service to its customers.
On termination of the Agreement for any reason:
(a) the rights granted to the Customer under this Agreement and the License Agreement shall immediately terminate and the Customer shall immediately cease using, and Sana Commerce may with immediate effect terminate the Customer’s access to and use of, the Services, Software and/or Documentation;
(b) each party shall return and make no further use of any equipment, property, Confidential Information and other items (as applicable), and all copies of them, belonging to the other party;
(c) Sana Commerce will, if requested by the Customer within a period of three months following termination of the Agreement, provide to the Customer a copy of the Customer Data held on the Software, in an industry accepted format;
(d) the Customer shall immediately pay to Sana Commerce all sums due to Sana Commerce under the Agreement, and in respect of any sums which have not yet been invoiced, Sana Commerce may raise invoices for such sums which shall become immediately payable;
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
(f) the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

11. Warranty

Sana Commerce warrants that, subject to clause 11.2, the Software shall be free from any material errors (Warranty) for a period of three weeks following completion of the implementation of the Software or operational use of the Software by the Customer, whichever the earlier (Warranty Period). In the event that any material errors are reported by the Customer to Sana Commerce during the Warranty Period, Sana Commerce will use its best efforts to repair such errors.
The Warranty provided at clause 11.1 shall not apply in respect of any errors, faults or issues in the Software which are caused by or arise as a result of:
(a) user error or misuse of the Software, or the Customer’s use of the Software other than in accordance with the Documentation and/or any instructions provided by Sana Commerce from time to time;
(b) any modifications made to the Software by the Customer;
(c) the hosting environment provided or used by the Customer;
(d) the Customer’s internet and network communications, computer equipment and/or web browser, or any third party software;
(e) the Customer’s use of the Software in combination with any other software not provided by or approved as being compatible for use with the Software by Sana Commerce.

12. Liability

Except as expressly provided in the Agreement, the Customer assumes sole responsibility for results obtained and conclusions drawn from the use of the Software and the Services, and for assessing whether the Services meet its requirements. Sana Commerce shall have no liability for any damage caused by errors or omissions in any information or instructions provided by the Customer in connection with the Services, or any actions taken by Sana Commerce at the Customer’s direction.
Sana Commerce gives no warranty or representation that use of the Software will be uninterrupted, available or error free. The Software is provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, including any implied conditions, warranties or other terms as to merchantability, fitness for a particular purpose, title or non-infringement.
The Customer is solely responsible for all activities conducted through the use of the Software, and all use of the Software by its Authorised Users.
Sana Commerce shall have no liability or responsibility for any fault, failure or unavailability of the Software caused by the Customer System, any third party software, or any customisations to or configuration of the Customer System, or as a result of any fault, failure, unavailability, speed or limitations of the Customer’s internet and network communications, computer equipment and/or web browser.
Sana Commerce’s sole and exclusive liability in respect of any alleged defects or errors in the Software shall be to repair the Software, at Sana Commerce’s discretion, at no cost to the Customer, without prejudice to any obligations of Sana Commerce under the Sana Commerce Customer Support Agreement (if applicable).
Nothing in the Agreement excludes the liability of either party for death or personal injury caused by that party’s negligence, for fraud or fraudulent misrepresentation or for any other liability that cannot be limited or excluded under applicable law.
Subject to clause 12.6:
(a) Sana Commerce shall not be liable whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any: loss of profits; loss of anticipated savings; loss of opportunity; loss of goodwill; loss of corruption of data; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses howsoever arising under the Agreement;
(b) Sana Commerce’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with this Agreement, and the Data Processing Agreement, in aggregate, in each six month period, shall in no event exceed the Fees paid by the Customer during the immediately preceding six month period.

13. Indemnity

The Customer agrees to indemnify, defend and hold Sana Commerce and its Group harmless from and against any and all claims, actions, proceedings, losses, damages, expenses and costs, (including court costs and reasonable legal fees), in connection with or arising out of the Customer’s use of the Software and/or Documentation.

14. Notices

Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or recorded delivery, to the address set out in the Order.
A notice delivered by hand will be deemed to have been received when delivered, or, if outside Business Hours, at 9.00am on the next Business Day. A notice sent by pre-paid first-class post or recorded delivery will be deemed to have been received on the second Business Day after posting.
This clause does not apply to the service of any proceedings or other documents in any legal action.

15. Rights and remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

16. Severance

If any provision or part-provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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 necessary to give effect to the commercial intention of the parties.

17. Force majeure

Neither party shall be in breach of this Agreement, nor liable for any delay in performing or failure to perform any of its obligations under the Agreement, if such delay or failure results from any acts, events or omissions or accidents beyond its reasonable control, including strikes or other industrial action or disputes, epidemic or pandemic, failure of a utility service or transport network, any failure or interruption of any telecommunications network, distributed denial-of-service attacks or any other malicious attacks, act of God, terrorist attack, civil war, war, threat of or preparation for war, armed conflict, civil commotion or riot, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, malicious damage, compliance with any law, order, rule or regulation, accident, breakdown of plant or machinery, collapse of buildings, fire, explosion or accident, flood, storm, earthquake or other natural disaster, or default of suppliers or sub-contractors (each a Force Majeure Event).
If a party is affected by a Force Majeure Event, it shall notify the other party promptly in writing of such a Force Majeure Event and its expected duration, and shall be entitled to a reasonable extension of time for performing its obligations under this Agreement. Either party may terminate this Agreement by giving notice to the other party if a Force Majeure Event continues for more than 60 days.

18. Assignment

The Customer shall not, without the prior written consent of Sana Commerce, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Sana Commerce may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19. Entire agreement

The Agreement and the Orders, and any documents referred to in the Agreement, constitute the entire agreement between Sana Commerce and the Customer and supersede, replace and extinguish any previous arrangement, understanding or agreement between them relating to the subject matter they cover. In the event of any conflict between any provision in the Agreement and any provision of an Order, the terms of the Order shall prevail, and in the event of any conflict between any provision in the Agreement and any other document referred to in the Agreement, the terms of the Agreement shall prevail.
Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person to the subject matter of the Agreement, other than as expressly set out in the Agreement.

20. No waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. Third party rights

Save as provided in clause 21.2, this Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
The relevant member of the Sana Commerce Group shall have the right to enforce the provisions of clause 5, 7 and 13 of this Agreement.

22. No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

23. Governing law and jurisdiction

The Agreement and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement, its subject matter or formation (including non-contractual disputes or claims).