Smart Logistics Manager Ltd Logistics Management Software Terms and Conditions
These Terms and Conditions apply to the provision of Software by Smart Logistics Manager Ltd, a company registered in England and Wales under number 11997102, whose registered office address is at C/O Band, 111 Charterhouse Street, London, England, EC1M 6AW (“Company/we/us/our”).
Definitions and Interpretation: In these Terms and Conditions, the following expressions have the following meanings: “Authorised User” means each person authorised to use the Software by the Client; “Client/you/your” means the individual, firm or corporate body purchasing the Software. Where an individual is entering into the Contract on behalf of a business, the individual confirms they have the authority to enter into the Contract on behalf of that business and the business will be the Client in the context of the Contract; “Client Data” means the data inputted to the Software by the Client, Authorised Users, or us on the Client’s behalf, for the purpose of using the Software or facilitating the Client’s use of the Software; “Contract” means the contract formed as detailed in clause 2, which includes the acceptance of these Terms and Conditions; “Quotation” means our written proposal to provide the Software to the Client, which unless otherwise stated, remains open for acceptance for a period of 30 days and sets out our entire scope of works; “Software” means the online logistics management software provided by the Company; and
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing” and “written” includes emails and similar communications;
a statute is a reference to that statute as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
a clause refers to a clause of these Terms and Conditions;
a "party" or the "parties" refer to the parties to these Terms and Conditions.
The headings used in these Terms and Conditions are for convenience only and have no effect upon their interpretation.
Words imparting the singular number include the plural and vice versa. References to any gender include all other genders. References to persons include corporations.
A legally binding Contract is formed as soon as you accept the Quotation provided by us. The Quotation is subject to these Terms and Conditions, which will apply between you and us.
Once the Contract is formed, and provided payment (where necessary) is made in accordance with clause 4, we will grant you a non-exclusive, non-transferrable licence to use our Software solely for your own internal business operations, within the bounds of these Terms and Conditions. The rights provided under this clause 2.2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client without our written permission.
The Contract will continue indefinitely, on a rolling monthly basis, and will be automatically renewed each month on these same Terms and Conditions (with the exception of the price) until notice to terminate is given by either party in accordance with clause 7 below.
No terms or conditions issued or referred to by you in any form will in any way vary or add to these Terms and Conditions unless we agree otherwise in writing.
Use of the Software
Each Authorised User will be sent a separate log-in for the Software. It is your responsibility to ensure that Authorised Users use the Software only in accordance with these Terms and Conditions and are accordingly notified of the same.
You will ensure that any Authorised User who leaves your employment has their access to the Software removed immediately. You will 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, you must notify us promptly. We will be entitled to carry out regular audits to ensure that only Authorised Users have access to the Software.
We recommend you have a separate contract in place with the Transport Exchange Group, as certain key functionality within the Software will not operate without this. Your contract with the Transport Exchange Group will be on separate terms and conditions to those contained in the Contract with us, and we cannot be held responsible for the actions or inactions of this third party.
You will need to have in place certain system and hardware requirements in order to operate the Software effectively. This will be outlined in our Quotation and/or on this Website. The Software also requires a cloud-based server to operate and this is included in the subscription fee. The cloud-based server remains our property at all times and your use and access to it will terminate immediately upon the termination of the Contract.
We reserve the right to carry out maintenance at such times as may be necessary at our discretion but will endeavour to give you advance notice where possible.
You undertake that you will not allow or suffer any password to be used by more than one Authorised User and confirm that you will use reasonable endeavours to ensure that each Authorised User keeps their password confidential. You will also ensure that each password is reasonably strong and secure and is changed regularly, in accordance with cyber-security best practice.
The Software allows only one active log-in per device. If the same account is used to log in on a different device, then the account will be logged out of the other device that is using the same log-in credentials.
You will not access, store, distribute or transmit any viruses, or any material during the course of your use of the Software that:
is unlawful, discriminatory, harmful, threatening, defamatory, obscene, infringing, harassing or offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence; or
causes or may cause damage or injury to any person or property
and we reserve the right, without liability to the Client, to remove any material that breaches the provisions of this clause.
You will be required to pay a set-up fee as stated in the Quotation. The set-up fee is quoted based on the information provided to us at the time. If additional work is required (if, for example, a significant amount of data is to be migrated into the Software), we reserve the right to adjust our fee accordingly.
You will also be required to pay a licence fee per Authorised User for use of the Software, on a monthly basis. The licence fee will be as stated in the Quotation or as otherwise agreed between you and us in writing. Payment is due monthly in advance, by by direct debit via Go Cardless.
If the number of Authorised Users increases from the number set out in the Quotation, we will adjust the licence fee accordingly. If the number of Authorised Users decreases from the number set out in the Quotation, we reserve the right to adjust our fee per Authorised User accordingly. No refunds will be given for unused log-ins by Authorised Users.
Training can be provided remotely, if this is included in the Quotation. We reserve the right to charge additional fees if significant extra training or support time is required.
Time for payment is of the essence of the Contract. If you fail to make any payment to us in full by the due date then, without prejudice to any other rights which we may have, we will have the right to suspend your access to the Software and charge you interest from the due date until payment is made in full, both before and after judgment, at the rate of 8% per annum over the Bank of England base rate from time to time in force, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
We reserve the right to review our licence fees periodically and will provide you with a minimum of 30 days’ notice of any change in the fees before such change will take effect.
All sums payable by either party are exclusive of VAT and are to be made in pounds sterling without any set-off, withholding or deduction.
Intellectual Property Rights, Claims and Disputes
All proprietary rights in the Software remain with us. You must not:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit, or distribute all or any portion of the Software in any form or media or by any means;
attempt to reverse compile, disassemble, or reverse engineer all or any part of the Software;
access all or any part of the Software in order to build a product or service which competes with the Software;
vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software;
sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Authorised Users; or
attempt to obtain, or assist third parties in obtaining, access to the Software other than as provided under this clause 5.
The Software, together with any and all intellectual property rights of whatever nature which now or in the future subsist in the Software are and shall remain our property. The Contract does not constitute a sale of the original Software or any copies of it.
You must notify us immediately if you become aware of any unauthorised use of the whole or any part of the Software by any person.
We will defend, at our own expense, any claim brought against you alleging that the use of the Software infringes the intellectual property rights of a third party and we will pay all reasonable direct costs and damages awarded or agreed to in settlement of such a claim provided that you:<
give us the sole authority to defend or settle the claim;
furnish us with prompt written notice of the alleged claim; and
provide us with reasonable assistance in respect of the claim.
We shall have no liability for any such claim resulting from any modification of any part of the Software by any party other than us or an authorised agent of ours.
All personal information that we may process will be collected, used and held in accordance with the provisions of the General Data Protection Regulation 2016 and the Data Protection Act 2018 and any amendments to them.
You agree that you will also comply with current data protection legislation in force from time to time. In particular, in relation to Client Data, you warrant that you have obtained the appropriate consents from any person whose personal data will be uploaded to the Software. We will have access to the Client Data, but will use this only to perform our obligations to you under the Contract.
You own all rights, title and interest in and to all of the Client Data and are solely responsible for its legality, reliability, integrity, accuracy and quality. All Client Data will be deleted from the Software upon termination as detailed in clause 7.
Either party may terminate the Contract at any time by giving to the other party no less than 30 days’ written notice.
Either party may terminate the Contract without liability by giving written notice to the other, if the other party:
commits any other breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 days after being given written notice of the breach and requiring it to be remedied;
goes into bankruptcy, liquidation or administration either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation), if a receiver is appointed in respect of the whole or any part of its assets, or if the other party ceases, or threatens to cease, to carry on business.
For the purposes of clause 7.2.1, a breach will be considered capable of remedy if the party in breach can comply with the provision in question in all respects.
Upon termination of the Contract for any reason:
any sum owing by either party to the other under any of the provisions of the Contract will become immediately due and payable;
the Client’s access and licence to use the Software will terminate immediately; and
we will irretrievably delete any Client Data contained in the Software.
Any and all obligations of the parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of the Contract will survive termination on a pro-rata basis.
The rights to terminate the Contract given by this clause 7 will not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
You are solely responsible for procuring and maintaining adequate network connections and internet access and for all problems, delays, delivery failures and all other loss or damage arising from or relating to this.
We do not warrant that your use of the Software will be uninterrupted or error-free; or that the Software, and/or the information obtained by you through the Software, will meet your requirements. You assume sole responsibility for results obtained from your use of the Software and for conclusions drawn from such use.
Nothing in these Terms and Conditions excludes or seeks to exclude our liability for death or personal injury caused by our negligence, or for fraud or fraudulent misrepresentation.
Except as provided in clause 8.3 above, we will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our servants or agents or otherwise) in connection with the performance of our obligations under the Contract. All warranties or conditions whether express or implied by law are expressly excluded to the maximum extent permitted by law.
We will take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Software.
If we receive written notice from you of any issue with the Software, and we identify that this is due to no fault of your own or of anyone authorised by you (such faults which may include, but not be limited to, your incorrect use, operation, unauthorised access to, modification or alteration of the Software), which results in the Software being materially inoperative, then we will reduce the licence fee on a pro-rata basis for any period of downtime. This will be the sole remedy available to you, and we will accept no liability for any loss of profit or any other consequential losses in accordance with clause 8.4.
In the event of a breach by us of our express obligations under these Terms and Conditions, your remedies will be limited to damages, which in any event, will not exceed the fees paid by you for the use of the Software in the 12 months preceding the date on which the alleged claim arose.
Each party undertakes that throughout the duration of the Contract, the parties may disclose certain confidential information to each other. Both parties agree that they will not use the confidential information provided by the other, other than to perform their obligations under this Agreement. Each party will maintain the confidential information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other party in writing.
Neither party to the Contract will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
Notices and Communications
We may revise these Terms and Conditions from time to time. Revised Terms and Conditions will apply to the use of our Software from the date the new version is published on this Website. Please check this Website regularly to ensure you are familiar with the current version.
Notices will be deemed to have been duly received and properly served 24 hours after an email is sent or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that it was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that it was sent to the specified email address of the addressee.
Other Important Terms
We may transfer (assign) our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (if for example, if we sell our business). If this occurs we will inform you in writing. Your rights under these Terms and Conditions will not be affected and our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.
You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without our express written permission.
Each party acknowledges that, in entering into the Contract, it does not rely on any representation, warranty or other provision except as expressly provided in the Contract. The Contract constitutes the entire agreement between you and us with respect to its subject matter and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter.
The Contract is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
In the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of these Terms and Conditions (and the Contract, as appropriate). The remainder of these Terms and Conditions shall be valid and enforceable.
No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Contract shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Law, Jurisdiction and Dispute Resolution
The Contract and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of England and Wales.
The Client recognises that our business relies upon the protection of our Intellectual Property Rights (“IPR”). In the event of a breach or threatened breach of IPR, we will be caused irreparable damage and may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of our IPR.
With respect to all other disputes which are not IPR related, the parties will attempt to resolve the dispute using an Alternative Dispute Resolution (“ADR”) procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute is not resolved to the satisfaction of both parties within 30 days after it has arisen, the parties will irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of the Contract.
Let us know how we can help your business.
Please do get in touch if you would like to discuss how SmartLM can change the way your business works.
Call us on 0203 946 0006 or email email@example.com