Sorted is a game-changing technology company which is harnessing the power of tech to transform the world of deliveries.
Sorted offers access to and use of its Platforms on a Subscription basis, together with various Professional Services which can be ordered from time to time to assist the Customer to get the full benefit from its Subscription.
These subscription terms, together with the Order Form, describes Customer’s Subscription to the Platforms. Together, the subscription terms and the Order Form will form a Subscription Contract, granting the Customer the benefit of a Subscription to the Platforms for the term of that Contract.
The Customer may also wish to order Professional Services, either initially or from time to time during the term of the Subscription Contract. These can be ordered through the execution of a Statement of Work. Each Statement of Work will form a separate legally binding Professional Services Contract.
It is essential that the Customer reads and understands the content of these subscription terms and the applicable order documentation before agreeing to order a Subscription or any Professional Services. By signing the Order Form or Statement of Work the Customer confirms that it has done so and agrees to be bound by the applicable terms.
1. Definition and interpretation
1.1 In these terms, including the introduction and the addendums, and in the Order Form or Statement of Work, the following definitions shall apply unless the context otherwise requires:
any member of Customer’s Group which is either named as an Authorised Affiliate in the Order Form or is subsequently added as an Authorised Affiliate in accordance with clause 3.6;
a provider of parcel carrier services;
such services as Carriers may offer to provide, including collection and delivery of shipments and shipment tracking;
the Customer whose details are set out in the Order Form;
the Customer’s name, logo and any other trade mark or branding of the Customer;
any content that the Customer or a User uploads to the Platform;
the latest general release version of Chrome, Internet Explorer, Microsoft Edge, FireFox or Safari, in each case provided that the browser has no non-standard plug-ins and is configured in accordance with the default settings applicable to that browser, or any other configuration which may be specified by Sorted from time to time as being required to access the relevant Platform via its web portal;
either a Professional Service Contract or the Subscription Contract;
a 12 month period, the first Contract Year commencing on the date of the relevant Contract and each subsequent Contract Year commencing on an anniversary of that date;
a distribution centre or other location of the Customer which is designated for the Services to be provided in respect of, as set out in the Order Form;
any content developed by Sorted for the Customer under a Contract;
the user documentation which describes the Platforms and provides guidance as to proper use of the same, available at docs.sorted.com/pro/ (for Ship) and docs.sorted.com/react/ (for Track) (or such other location as may be notified to the Customer from time to time);
any fees payable by the Customer pursuant to a Contract, as set out in the Order Form or Statement of Work and as revised from time to time in accordance with a Contract;
Force Majeure Event
has the meaning given to it in clause 15;
a company, its holding company and ultimate holding company and each of its subsidiary companies and its holding company’s and ultimate holding company’s subsidiary companies from time to time, “holding company” and “subsidiary” having the meanings given to them in section 1159 of the Companies Act 2006;
the initial term set out in the Order Form and starting from the Subscription Start Date;
a document setting out the details of each API method which will be used by the Customer to integrate their systems to the Platform, details of which will be provided by a link in the Order Form
Intellectual Property Rights
any and all intellectual property rights including patents, trade marks, design rights, copyright, rights in databases, domain names, topography rights, know-how, look and feel, rights in confidential information and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with the right to apply for registration of and/or register such rights and any and all goodwill relating or attached to it and all extensions and renewals of it;
the order form setting out the details of the Customer’s Subscription in the standard format provided by Sorted;
either of Ship (formerly PRO) or Track (formerly REACT);
the fees payable in consideration of the use of the Platform as set out in the Order Form or revised from time to time in accordance with a Contract;
any professional services which Sorted may agree to provide from time to time to assist the Customer to get the full benefit from its Subscription (such as implementation, consultancy, development work or training), as described in the applicable Order Form or Statement of Work;
Professional Services Contract
a contract between Sorted and the Customer under which Sorted agrees to provide Professional Services to the Customer, consisting of these subscription terms and a Statement of Work;
Service Level Agreement
Sorted’s service level agreement, a copy of which can be found at sorted.com/legal/sla;
the services that Sorted provides to the Customer pursuant to a Contract, including the services included within the Subscription and any Professional Services;
Sorted Group Limited, a company incorporated and registered in England and Wales with company number 09060564, and whose registered office is at Fourth Floor, Blackfriars House, St Mary’s Parsonage, Manchester, M3 2JA (VAT number 186009502);
Statement of Work
a statement of work under which Sorted agrees to provide Professional Services (other than implementation services) to the Customer, either in the standard format provided by Sorted or in any such other format as the parties may agree to use;
a subscription entitling the Customer to access and use the Platforms in accordance with these terms (subject to payment of the Platform Fees), which includes the right to receive the Support Services and the hosting of the Platform, as described in more detail in clause 3;
the contract between Sorted and the Customer under which the Customer is granted a Subscription to the Platforms, consisting of these subscription terms and the Order Form;
Subscription Start Date
the subscription start date set out in the Order Form;
the Support Services selected by the Customer, as more fully described in the Service Level Agreement;
Support Start Date
the support start date set out in the Order Form; and
an individual person who accesses the Platform as part of the Customer’s Subscription, whether via its web portal, via API or otherwise.
1.2 Headings are included for convenience only and shall not affect the construction or interpretation of a Contract.
1.3 To the extent of any conflict between any provisions of a Contract, the order of precedence shall be as follows:
1.3.1 terms in the Order Form, Integration Design or a Statement of Work which are expressly provided to have precedence over these terms;
1.3.2 terms contained in the addendums to terms;
1.3.3 terms contained in this main body of these terms; and
1.3.4 any other terms contained in the Order Form, Integration Design or a Statement of Work.
1.4 Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders including the neuter gender.
1.5 Any reference to a person shall, unless the context otherwise requires, include individuals, partnerships, companies and all other legal persons.
1.6 The words include, includes, including and included and like words and expressions will be construed without limitation unless inconsistent with the context.
1.7 Any reference to a notice or other communication being in writing shall be satisfied by that notice or communication being sent by email, provided this is permitted by and done in accordance with clause 17 where applicable. A reference to a signature shall include an electronic signature.
1.8 Any reference in a Contract to law or to any statute, statutory instrument, directive, regulation, order or other enactment shall mean the same as shall be amended, enacted, replaced, extended, modified, consolidated or repealed from time to time.
1.9 Working days shall be all days other than Saturdays, Sundays and public holidays in England and working hours shall be 9am to 5pm UK time on working days.
2. Basis of agreement
2.1 This version of the subscription terms is intended for clients wishing to subscribe to either the Ship and Track Platforms or both. The terms set out in the main body of these terms, and the Service Level Agreement, apply equally to both Platforms. In addition, there are specific terms applicable to the use of Ship and Track.
2.2 The signature of the Order Form by both parties shall form a legally binding Subscription Contract between the parties.
2.3 Where a Customer requires Professional Services, either at the time it orders its Subscription or subsequently, the parties shall work together in good faith to prepare a suitable Statement of Work (as applicable), and each party shall sign the Statement of Work to indicate agreement. Each signed Statement of Work shall form a legally binding Professional Services Contract between the parties.
3. The subscription
3.1 The Subscription entitles the Customer and its Authorised Affiliates to a non-exclusive right to access and use the Platforms for its and their own business purposes during the term of the Subscription in accordance with the terms of the Subscription Contract and subject to any restrictions set out in the relevant Order Form.
3.2 The Platforms are offered on a hosted basis and will be made available for the Customer to connect to via the internet in accordance with these terms. The Subscription does not give the Customer any right to a copy of the underlying software to install on its own systems or servers.
3.3 The Subscription includes access to the Documentation and online training modules at no additional charge.
3.4 Sorted offers various Support Services packages, details of which are set out in the Service Level Agreement. The Support Services package selected by the Customer shall be specified in the Order Form. Any contact made with Sorted’s support team shall be dealt with in accordance with the Service Level Agreement.
3.5 Sorted will undertake back-ups of the Customer Content from time to time and, in the event of any data loss or corruption, Sorted will (at the Customer’s request) use its reasonable efforts to recover the lost or corrupted data from such back-ups (this will usually not be possible once more than seven days have elapsed from the data loss or corruption). However, the Customer acknowledges that the Platforms are not intended to be used as a data storage or back-up solution and Sorted shall not be responsible for any losses caused as a result of the Customer’s use of the Platforms for those purposes.
3.6 The Customer may from time to time request the addition of Authorised Affiliates to its Subscription as follows:
3.6.1 provided that the addition will not require the performance of any Professional Services or any changes to the Services, the Customer may submit a written request confirming the identity of the additional Authorised Affiliate, and such Authorised Affiliate will be added from the date of Sorted’s written approval (which shall not be unreasonably withheld or delayed);
3.6.2 if the addition will require the performance of Professional Services (for example implementation services to implement the Platforms within its business, the parties shall negotiate an appropriate Professional Services Contract; and
3.6.3 if the addition will require any changes to the Services, the parties shall negotiate a variation to the applicable Contract.
3.7 An entity shall automatically cease to be an Authorised Affiliate if it ceases to be a member of the Customer’s Group.
3.8 Sorted may from time to time make changes to the Platforms, including to improve functionality or usability, add new features, remove features it reasonably considers to be obsolete, fix errors, improve stability or address feedback received from clients. Sorted shall endeavour to minimise any disruption caused as a result of the implementation of such changes and shall provide reasonable notice of any major version upgrades.
3.9 It may be necessary from time to time for Sorted to disable part or all of the Platforms for maintenance purposes. Where such maintenance is likely to affect the functionality or accessibility of the Platforms, Sorted shall use reasonable endeavours to provide reasonable notice to the Customer of any such maintenance and to perform it outside of working hours.
3.10 The Customer shall promptly notify Sorted if it suspects that (a) it may have breached a Contract, (b) a User (or other person using a User’s access credentials) may have failed to comply with the Acceptable Use Policy or (c) any User’s access credentials may have been compromised.
3.11 Sorted shall be entitled to suspend access to the Platforms (or any part thereof) for any or all Users without liability to the Customer immediately and without notice or to take such action as it may in its discretion think appropriate if it reasonably believes:
3.11.1 not doing so may prejudice the security, integrity or operability of the Platforms or part thereof, cause harm to another client or other third party or give rise to a claim against Sorted;
3.11.2 the Customer or its Users have transmitted, uploaded or downloaded any content which contravenes the restrictions set out in the Acceptable Use Policy; or
3.11.3 the Customer is otherwise in breach of a Contract and fails to promptly remedy that breach on receipt of a written notice from Sorted requiring it to do so,
provided that promptly following such suspension Sorted shall notify the Customer of the suspension, the reason for the suspension and what steps the Customer can take so that the suspension can be brought to an end.
4. Professional services
4.1 Professional Services shall be provided to substantially conform to the specification set out in the Statement of Work.
4.2 Any timescales set out for the performance of the Professional Services are for indicative purposes only.
4.3 Where the Professional Services involve the production of any Developments then, once the Developments have been created, Sorted shall make them available for the Customer to review and shall notify the Customer accordingly.
4.4 On receipt of a notice from Sorted in accordance with clause 4.3, the Customer shall promptly test the Developments and shall within 14 days of such notice either confirm to Sorted that the Developments are accepted or notify Sorted of any deficiencies and request that they be remedied. If the Customer does not respond in accordance the timescale set out in this clause 4.4 it shall be deemed to accept the Developments.
4.5 Where the Customer notifies any deficiencies in accordance with clause 4.4 Sorted shall promptly remedy the deficiencies and make the revised Developments available for re-testing in accordance with clause 4.3.
4.6 Sorted shall be responsible for the provision of the consultants who provide the Professional Services. In the event that any individuals become unavailable due to (for example) accident, illness, termination of employment or redeployment, Sorted shall use reasonable endeavours to provide a suitable replacement.
5. User accounts
5.1 The Customer must create a separate User account for every individual User. Under no circumstances must a User account be shared between two or more individuals except where it has been provided specifically for this purpose.
5.2 It is the Customer’s responsibility to ensure that User accounts are used only by the person who is entitled to use such account and the Customer shall be strictly liable for any failure to comply with clause 5.1, whether or not the Customer consented to or was aware of such misuse.
5.3 Unless otherwise specified in the Order Form, there is no restriction on the number of User accounts that can be created and no charge for creating new User accounts.
5.4 Save as otherwise provided in the Order Form, the Customer shall only permit its employees, consultants and/or agents (and those of its Authorised Affiliates) to have access to the Platforms (whether via its web portal, via API or otherwise). Users shall be permitted access only to the extent that they are using the Platforms for the Customer’s or its Authorised Affiliates’ business purposes.
5.5 The Customer shall ensure that all Users use the Platforms in accordance with all of the terms of the Subscription Contract, including the Acceptable Use Policy.
5.6 The Customer shall, and shall procure that each User shall, keep all access credentials for the Platforms confidential and secure. Users must select secure passwords in accordance with recommended best practice.
5.7 If any User ceases to be eligible to access the Platforms, for example as a result of the User leaving the Customer’s (or an Authorised Affiliate’s) employment, the Customer shall immediately disable that User’s account.
5.8 Without prejudice to its other rights or remedies, Sorted may disable any User account at any time where it reasonably believes that the acts or omissions of such User has caused or is likely to cause the Customer to breach a Contract in a manner that would result in damage to the security, integrity or operability of the Platforms (or part thereof), that the User account has been used by multiple people or reallocated contrary to clause 5.1 or that the User is not eligible to use the Platforms.
6.1 Sorted warrants that the functionality of the Platforms will substantively conform to the Integration Design and the Documentation. Sorted will use reasonable endeavours to ensure that the Platform is available for the use of all Users in accordance with the service levels set out in the Service Level Agreement.
6.2 Sorted cannot warrant that the Platforms will be entirely error free. However, Sorted shall use its reasonable endeavours to remedy any material error reported by the Customer as soon as reasonably and commercially practicable following such report. In the event that the Customer does experience issues with either of the Platforms it shall utilise the Support Services in accordance with the relevant Contract, and the Customer agrees that the use of the Support Services shall be its sole and exclusive remedy for any problems or deficiencies with the Platforms.
6.3 There are various methods by which Users can interact with the Platforms, as more fully described in the Documentation. If a User wishes to access the Platforms via the web portal it will need to access it via a Compatible Browser. Sorted gives no warranty or guarantee as to the accessibility or functionality of the Platforms when accessed other than via a Compatible Browser.
6.4 In respect of all other Services (including the Support Services and any Professional Services), Sorted warrants that such Services will be provided with reasonable skill and care. If the Customer is dissatisfied with such Services then the Customer agrees to follow any procedure and rely upon any remedies agreed in respect of those particular Services (as set out in the Order Form, Statement of Work and/or Service Level Agreement as applicable). Where no such procedures or remedies are provided in respect the affected Services, or the Customer is unable to resolve the issue by following those procedures, the Customer should follow the remedy procedure set out in clause 7.
6.5 The Customer warrants that any and all information and documentation provided by it in relation to any Services procured under a Contract is true, complete and accurate.
7.1 If the Customer considers that any of the Services have not been provided materially in accordance with a Contract then:
7.1.1 where the failure is a failure to meet the availability target, the Customer shall be entitled to claim a service credit as described in the Service Level Agreement; and
7.1.2 in any other case, the Customer shall serve a Remedy Notice, setting out full details of the affected Services and the alleged non-compliance.
7.2 A material failure of the Support Services entitling the Customer to serve a Remedy Notice shall be deemed to have occurred if Sorted fails during any calendar month to resolve more than one critical (severity 1) issue within the applicable target resolution time.
7.3 The Customer agrees that it will serve any Remedy Notice within 30 days of (a) in the case of Support Services, the end of the relevant calendar month or (b) in any other case, the date that the affected Services were provided (or should have been provided).
7.4 Following receipt of a notice in accordance with clause 7.1 Sorted shall, acting reasonably:
7.4.1 conduct a full review of the issues raised by the Customer and report to the Customer as soon as reasonably practicable, including details of any failure it has identified and the causes of such failure;
7.4.2 if any failure is identified as a result of Sorted’s review, prepare a Remediation Plan which shall set out the steps that it will take to rectify the failure, a reasonable timescales for the completion of such steps and details of any assistance or resources reasonably required from the Customer to complete the Remediation Plan; and
7.4.3 Sorted shall provide regular updates to the Customer regarding its progress with the Remediation Plan and shall confirm in writing to the Customer once the Remediation Plan has been fully implemented.
7.5 If Sorted fails to remedy a material failure within 60 days of receipt of a Remedy Notice (other than where this is as a result of the Customer failing to provide the assistance and/or resources that it is required to provide pursuant to the Remediation Plan) then the Customer may terminate the affected Contract on written notice to Sorted and receive a pro rata refund of any pre-paid Fees relating to the unexpired part of the Contract.
7.6 This clause 7 sets out the Customer’s sole and exclusive remedy for any non-compliance in the provision of the Services.
8. Assistance and cooperation
8.1 To enable Sorted to provide the Services, the Customer agrees to provide (or procure that Carriers provide) any information or documentation that Sorted may reasonably request and the reasonable co-operation of its employees, directors, consultants and advisers. Sorted shall not be responsible for any delay caused as a result of the Customer’s failure to comply with this clause 8.1.
8.2 The Customer shall take responsibility for the health and safety of any individual attending its premises on behalf of Sorted, including ensuring that they are made aware of any relevant policies and procedures and that they are not placed in danger in any manner, and the Customer shall indemnify and hold Sorted harmless from and against all costs, claims, damages, liabilities, loss and demands relating to or arising from or in connection with any claim brought against Sorted arising out of the death, personal injury or other loss suffered by an individual attending at the Customer’s premises, save where this was as a result of Sorted’s or that individual’s negligence.
8.3 The Customer agrees that, unless requested otherwise, it shall only provide copies of files or documentation to Sorted and shall maintain the originals, such that it shall suffer no loss if the files or documentation are lost or damaged. Where it is expressly requested to provide originals it shall make a copy prior to providing them such that if the files or documentation were lost or damaged the only loss would be the replacement cost of that copy file or documentation, which shall accordingly be Sorted’s sole liability in such circumstances.
9. Intellectual property rights
9.1 All rights, title and interest (including Intellectual Property Rights) in the Platforms shall (as between Sorted and the Customer) belong to Sorted, and nothing in a Contract shall operate to transfer any such rights to the Customer.
9.2 All rights, title and interest (including Intellectual Property Rights) in Developments shall belong to Sorted, whether the Developments were pre-existing or was developed as part of the Services.
9.3 Subject to clause 9.4, the Customer acknowledges that to the extent it acquires any rights in the Platforms or any Developments it hereby assigns such rights absolutely (by way of present assignment of future rights) to Sorted. To the extent that this clause 9.3 does not operate to automatically assign such rights, or to the extent that Sorted requests a confirmatory assignment of such rights, the Customer shall execute on demand all such documentation as Sorted may reasonably request to give effect to and document this assignment. Where applicable the Customer shall be entitled to use such parts of the Platforms or the Developments in accordance with its Subscription.
9.4 The Customer shall retain all rights in the Customer Branding and Customer Content. The Customer grants Sorted a non-exclusive royalty free licence to use such Customer Branding and Customer Content for the purposes of providing the Services and, in the case of the Customer Branding, in publicity material.
9.5 Sorted will indemnify the Customer against any losses, damages, claims, costs and expenses suffered or incurred by or awarded against the Customer as a result of any claim (a Claim) that use of the Platforms, the Documentation and/or any Developments in accordance with the relevant Contract, and/or receipt of any of the Services, infringes any Intellectual Property Rights subsisting in the United Kingdom and belonging to a third party.
9.6 To obtain the benefit of the indemnity set out in clause 9.5:
9.6.1 the Customer must immediately notify Sorted if it receives notice of any Claim or has reason to suspect that a Claim may be brought;
9.6.2 following such notice the Customer must allow Sorted to take full conduct of such Claim, including any negotiations and including the right to settle the Claim on such terms as Sorted sees fit and shall, at Sorted’s reasonable expense, provide all such co-operation as Sorted may request; and
9.6.3 the Customer must not make any admission, concession or other statement regarding the Claim to any party, other than to acknowledge receipt of documentation and to confirm (where applicable) that Sorted has conduct of the Claim.
9.7 The Customer shall not be entitled to rely on the indemnity set out at clause 9.5 where the Claim arose (wholly or partially) as a result of the Customer or any other User using the Platforms, the Documentation, the Developments, and/or the Services (as applicable) (a) in a way other than permitted by a Contract, (b) in a manner that they knew or suspected may give rise to a Claim or (c) in a negligent manner, or where the Claim arose out of or in connection with any content that the Customer asked Sorted to include within Developments.
9.8 Without prejudice to the indemnity set out at clause 9.5, where Sorted becomes aware of any claim or potential claim that either of the Platforms, the Documentation or any Developments and/or receipt of any Services infringes any Intellectual Property Rights of any third party, whether or not this constitutes or may constitute a Claim, Sorted may at its option:
9.8.1 suspend access to the affected Platform (or the relevant part), withdraw the Documentation or the Developments (or the affected part) and/or suspend the other Services (or the affected parts);
9.8.2 modify the affected Platform, the Documentation, the Developments and/or the other Services to remedy the infringement;
9.8.3 obtain (at its own cost) the right for the Customer to continue using the affected Platform, the Documentation, the Developments and/or the other Services; and/or
9.8.4 terminate the Customer’s Subscription Contract and/or any affected Professional Services Contract.
9.9 Where access to a Platform or any Developments, or the provision of the other Services, is suspended or terminated pursuant to clause 9.7 Sorted shall make a pro rata refund to the Customer calculated by Sorted (acting reasonably) based on the proportion of the Platform, the Developments or other Services (as applicable) not received and the affected period.
9.10 The provisions of this clause 9 constitute the Customer’s sole and exclusive remedy for any loss, damage, cost or expense caused by a claim falling within the scope of clause 9.5 and/or 9.7.
10.1 The Customer shall pay the Fees to Sorted as specified in the Order Form or Statement of Work. Fees are paid annually in advance.
10.2 Where and to the extent that Services are provided from any location other than Sorted’s own premises, the Customer shall be responsible for all and any reasonable expenses incurred by Sorted in providing the Services including travel, lodging, meals, and miscellaneous out of pocket expenses, as set out in a Statement of Work (or as otherwise pre-approved from time to time). Such expenses shall be invoiced by Sorted from time to time with such invoices being payable within 30 days of the date of the invoice.
10.3 All Fees are exclusive of VAT which is chargeable in additional at the prevailing rate. VAT shall also be payable on expenses where applicable.
10.4 Any changes to Fees shall be subject to mutual agreement between Sorted and the Customer, save that Sorted may increase any Fees relating to the Subscription or on-going Professional Services on not less than 30 days’ written notice:
10.4.1 no more than once in any calendar year, by such amount as equals the percentage increase in the UK Retail Prices Index between the most recently published figure and the figure published twelve months preceding that figure; and
10.4.2 to take account of any material increase to its costs of providing the Services due to a change in legislation, taxation, regulation, guidance or recommended best practice (provided that such increase shall be no more than it reasonably considers necessary to cover the additional costs and that no increase to the Subscription fees shall be made under this clause 10.4.2 prior to the expiry of the Initial Term); and
10.4.3 to bring the Fees in line with current list price for the Subscription (provided that no such increase under this clause 10.4.3 shall be made prior to the expiry of the Initial Term).
10.5 Sorted may suspend access to the Platform or the provision of any of the other Services without liability if any amount due to it from the Customer is more than seven days overdue and may maintain such suspension until all outstanding sums due to Sorted from the Customer have been paid. This does not affect the liability of the Customer to pay for the Subscription and the other Services during any period of suspension.
10.6 The Customer agrees to carefully check any invoice received and to raise any dispute regarding its content within 21 days of the invoice date, such notice to confirm the amount disputed and the reason(s) for the dispute. Invoices will be deemed to have been properly submitted and due for payment where not been disputed within 21 days of the invoice date.
10.7 Notwithstanding the fact that a dispute may have been raised in accordance with clause 10.6 the Customer shall pay to Sorted any undisputed amount(s) as these undisputed amounts become due. The parties shall in good faith attempt to resolve the dispute as to the unpaid amount and, where it is agreed (or ordered by a court) that a further amount is payable, the Customer shall immediately pay this to Sorted.
10.8 All amounts due under any Contract shall be paid by the Customer to Sorted in full without any set-off, counterclaim, deduction or withholding.
11. Terms and termination
11.1 The Subscription Contract is effective from the date of the latter signature of the Order Form and all obligations under the Subscription Contract, including the obligation to pay any Fees, shall commence with effect from this date, save that:
11.1.1 the right to use the Platform shall commence on the Subscription Start Date; and
11.1.2 the Support Services shall commence on the Support Start Date.
11.2 The Subscription Contract shall run for the Initial Term (which shall be calculated from the Subscription Start Date) and shall thereafter continue until terminated in accordance with these terms.
11.3 Either party may terminate the Subscription at any time on twelve month’s written notice to the other, save that such notice shall not seek to bring the Subscription to an end during the Initial Term or any renewal term.
11.4 Each Professional Services Contract is effective from the date of the latter signature of the Statement of Work, and the Professional Services shall commence on such date or within such timescale as is specified in the relevant document (or, if no such timescale is specified, as soon as reasonably practicable following agreement of the relevant Statement of Work).
11.5 Sorted may terminate any or all Contracts immediately on written notice if the Customer:
11.5.1 commits an irremediable breach of any of the Contracts, persistently commits remediable breaches or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same;
11.5.2 fails to pay any amount due to Sorted as it falls due (under any Contract);
11.5.3 experiences a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
11.5.4 makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere.
11.6 Sorted shall also be entitled to terminate any or all Contracts immediately if it reasonably apprehends that any of the events specified in clause 11.5.4 is about to occur in relation to the other and notifies the Customer accordingly.
11.7 For clarity, the following clauses also allow for the termination of a Contract in certain circumstances:
11.7.1 clause 7.5 (Customer’s right to terminate for Sorted’s failure to remedy a material failure of the Services); and
11.7.2 clause 9.8.4 (Sorted’s right to terminate on claim or potential claim for infringement of Intellectual Property Rights).
11.8 In the event of termination of a Contract for any reason:
11.8.1 save where these terms expressly provide otherwise, any Fees already paid shall be non-refundable;
11.8.2 any amounts invoiced under the terminated Contract as at the date of termination shall become immediately due and payable;
11.8.3 Sorted may invoice for any Services provided up until the date of termination and any expenses incurred, and those invoices shall be immediately due and payable; and
11.8.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11.9 Where the Subscription Contract is terminated for any reason:
11.9.1 all Professional Services Contracts shall automatically terminate, unless otherwise agreed;
11.9.2 the right to access Developments shall immediately cease (and all Contracts for those Developments shall immediately terminate) and no further use may be made of the Developments;
11.9.3 the Customer’s (and all Users’) access to the Platforms shall be withdrawn by Sorted and the Customer shall not (and shall ensure that the Users do not) make any further attempt to access the Platforms; and
11.9.4 Sorted shall, subject to the prior payment of its reasonable Fees for doing so, provide the Customer Content to the Customer in such standard format as Sorted may elect.
11.10 The termination of a Contract shall not affect the continuation of any terms which are expressly or implicitly intended to survive termination, including clauses 1, 9, 11, 12, 13, 14, 16, 17 and 18, or the continuation of any other Contracts (except where clauses 11.9.1 or 11.9.2 apply).
12.1 Each party undertakes that it shall keep the other party’s confidential information confidential and shall not at any time:
12.1.1 use such information for any purpose other than to exercise its rights and perform its obligations under a Contract (or such other purposes as the other party may expressly authorise in writing from time to time); or
12.1.2 disclose such information to any third party, except as otherwise permitted by these terms or with the other party’s prior written consent.
12.2 For the purposes of these terms, a party’s confidential information is any know-how, trade secret, documentation or information (whether commercial, financial, technical, operational or otherwise) relating to its and its Group’s business, affairs, operations, processes, intentions, customers or suppliers and which is either marked as “confidential” or which the other party was or ought reasonably to be aware was of a confidential nature, save that this clause 12 shall not apply to any information that the receiving party can demonstrate:
12.2.1 is in the public domain in substantially the same combination as that in which it was disclosed to the receiving party other than as a result of a breach of a Contract or any other obligations of confidentiality;
12.2.2 is or was lawfully received from a third party not under an obligation of confidentiality with respect to it; or
12.2.3 was developed independently of and without reference to confidential information disclosed by the other party.
12.3 A party may disclose the other’s confidential information where and to the extent it is required to do so under operation of law, by court order or by any regulatory body of competent jurisdiction provided that, except where legally prohibited from doing so, it must:
12.3.1 provide the other with at least ten (10) days’ written notice of its intention to make the disclosure, such notice specifying the confidential information concerned and the nature of the disclosure obligation; and
12.3.2 take into account the reasonable requests of the other party in relation to the content, nature and form of the disclosure.
12.4 Each party shall be entitled to divulge the other party’s confidential information as follows:
12.4.1 to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with a Contract; and
12.4.2 in the case of the Customer, to its Authorised Affiliates and Users,
provided that the receiving party shall ensure that such persons are aware of, and shall procure that such persons comply with, these obligations as to confidentiality.
12.5 Sorted reserves the right to use usage and performance metrics for its own internal analysis purposes and in case studies and other publicity material promoting the Platform(s). Improvements may be attributed to named clients but in this case Sorted will publish only relative measures of improvement (improvements in percentage terms), not absolute figures (start and end figures).
13. Data protection
13.1 Each party agrees that, in the performance of its respective obligations under a Contract, it shall comply with the provisions of the General Data Protection Regulation (GDPR), together with the Data Protection Act 2018 and any other law applicable to the protection of personal data in effect from time to time (together, Data Protection Legislation), in each case to the extent it applies to each of them. Where used in this clause 13, the expressions process, personal data, controller, processor and data subject shall bear their meanings given in Data Protection Legislation.
13.2 In undertaking its obligations pursuant to a Contract, it is anticipated that Sorted will process personal data relating to Customer’s customers, including their names and addresses, and to the Customer’s employees, including names, usernames and activities carried out whilst using the Platforms. Where Sorted processes any personal data on the Customer’s behalf pursuant to a Contract (Customer Personal Data) the Customer shall be the controller and Sorted shall be the processor.
13.3 Sorted shall process the Customer Personal Data only:
13.3.1 for the purposes of performing the Services and otherwise undertaking its obligations and exercising its rights under a Contract;
13.3.2 in accordance with the terms of the Contract and the Customer’s instructions (provided that such instructions are within the scope of Sorted’s obligations under the Contract) unless otherwise required by law or any regulatory body (in which case Sorted shall, where permitted, inform the Customer of that legal requirement before processing); and
13.3.3 during the term of the Contract (and following termination to the extent required to perform any post termination obligations).
13.4 Sorted shall ensure that any processing of Customer Personal Data is undertaken only by persons authorised to process the Customer Personal Data who are subject to a duty of confidentiality in respect of any such Customer Personal Data to which they may have access.
13.5 The Customer warrants that:
13.5.1 all Customer Personal Data provided by or on behalf of the Customer shall have been lawfully obtained and retained by Customer (or its nominated third party);
13.5.2 the Customer is lawfully entitled to provide, procure the provision of or authorise Sorted to obtain (as the case may be) the Customer Personal Data for the purposes envisaged by the Contract; and
13.5.3 any processing of the Customer Personal Data by Sorted in accordance with clause 13.3 shall not contravene any Data Protection Legislation or infringe the rights of the data subject or any third party, and the Customer shall indemnify, keep indemnified and hold Sorted harmless against all claims, demands, penalties, fines, actions, costs, expenses, losses and damages suffered or incurred by or awarded against Sorted arising from or in connection with any breach by the Customer of this clause 13.5 or otherwise from Sorted processing the Customer Personal Data in accordance with clause 13.3.
13.6 Sorted warrants that it shall:
13.6.1 implement such security measures as required to enable the Customer Personal Data to be processed in compliance with the obligations imposed on Sorted by article 32 of the GDPR;
13.6.2 notify the Customer without undue delay on becoming aware of a personal data breach and cooperate with Customer to resolve such issue; and
13.6.3 at the Customer’s expense, provide such assistance as the Customer may reasonably require to assist it to comply with its obligations to keep the Customer Personal Data secure, allow it to inform a regulatory authority or data subject of a personal data breach, conduct a data protection impact assessment, consult with a regulatory authority regarding the processing of the Customer Personal Data and/or respond to requests made by data subjects pursuant to Data Protection Legislation.
13.7 The Customer authorises Sorted to appoint sub-processors from time to time provided that Sorted shall notify the Customer of any intended changes concerning the addition or replacement of other sub-processors and shall impose upon any sub-processor (and procure any sub-processor’s compliance with) the terms of this clause 13 as if the processing being carried out by the sub-processor was being carried out by Sorted (and Sorted shall be liable for the acts and omissions of such sub-processors as if they were Sorted’s own acts and omissions).
13.8 If the Customer is based in the UK or EEA (the Europe Region), Sorted shall not, and shall ensure that its sub-contractors shall not, transfer the Customer Personal Data outside of the Europe Region under any circumstances, save:
13.8.1 where authorised in writing to do so by the Customer;
13.8.2 where such transfer is permitted by applicable Data Protection Legislation (for example where such transfer is to an approved third country or is made pursuant to the standard contractual clauses); or
13.8.3 to a Carrier where the Customer has made a request for Carrier Services.
13.9 Sorted reserves the right to use Customer Content for the purposes of providing support and improving the product and client experience. Sorted may also use anonymised samples of data extracted from the Customer Content for analysis and review purposes and may use such samples as it sees fit.
13.10 The Customer acknowledges that Sorted has no control over (or responsibility for) any processing activities carried out by Carriers involving the Customer Personal Data.
13.11 From time to time during the term of the Contract Sorted shall (upon written request):
13.11.1 provide details in writing of its data processing activities in respect of Customer Personal Data; and
13.11.2 on reasonable notice allow the Customer to audit its compliance with these terms (subject to any reasonable requirements or restrictions that Sorted may impose to safeguard the personal data it holds on behalf of other clients and/or avoid unreasonable disruption to Sorted’s business).
13.12 On termination of the Contract Sorted shall return or delete all Customer Personal Data (and delete any copies, save to the extent retention is required by law).
14.1 The Customer shall indemnify and hold Sorted harmless from and against all costs, claims, damages, liabilities, loss and demands relating to or arising from or in connection with:
14.1.1 any breach by a User of the Acceptable Use Policy;
14.1.2 any claim brought against Sorted by a Carrier arising as a result of or in connection with the Customer’s acts or omissions; and/or
14.1.3 any criminal or civil legal action brought against Sorted as a result of storage or transmission of information or material using the Platforms or otherwise as a result of the use of the Platforms, the Developments or the Documentation or the receipt of the other Services by the Customer or any User other than in accordance with the Documentation and as permitted by the Contract.
14.2 The Customer accepts responsibility for, and shall be liable for, the acts and omissions of each of its Authorised Affiliates, its Users and any other party accessing the Platforms using any User’s access credentials (whether or not with the Customer’s permission), in each case as if such acts or omissions were the acts or omissions of the Customer.
14.3 The express terms set out in the Contracts are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted.
14.4 Save as provided by clause 14.6 below:
14.4.1 each party’s total aggregate liability in respect of all causes of action arising out of or in connection with a Contract (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) shall not in any Contract Year exceed the total Fees paid or payable under that Contract during the preceding Contract Year (save that in respect of any causes of action arising in the first Contract Year, the limit shall be the total Fees paid or payable during the first Contract Year);
14.4.2 for the purposes of clauses 14.4.1, any causes of action arising after the date of termination of a Contract shall be deemed to have occurred immediately prior to the termination of that Contract; and
14.4.3 neither party shall be liable for any claim arising out of or in connection with a Contract to the extent that it relates to loss of profits, goodwill, business opportunity or anticipated savings, loss of data, injury to reputation, wasted management time or indirect, consequential or special loss or damage regardless of the form of action (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) and regardless of whether it knew or had reason to know of the possibility of that loss or damage.
14.5 The Customer acknowledges it is aware that these Subscription Terms provide for the exclusion and limitation of certain liabilities of Sorted and that the Fees have been calculated accordingly.
14.6 Nothing in a Contract shall limit or exclude either party’s liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, and/or for any other loss or damage the exclusion or limitation of which is prohibited by English law, or Customer’s liability to pay the Fees.
15. Force majeure
15.1 Sorted shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by events outside its reasonable control (a Force Majeure Event).
15.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Sorted’s reasonable control and includes in particular (without limitation), civil commotion, terrorist attack or threat of terrorist attack, war, threat or preparation for war, fire, malicious damage, epidemic or pandemic, storm, flood, drought, or other natural disaster or adverse weather conditions, strikes, lock-outs, other industrial action or other shortage of available staff, impossibility of the use of public or private telecommunications networks, or interruption or failure of utility service, malicious activity against Sorted’s computer systems such as unauthorised access, computer virus or denial of service attack, other illegal or unlawful actions of third parties, acts or omissions of other clients and/or their users or non-performance by suppliers, subcontractors or agents and the acts, decrees, legislation, regulations, policy or restrictions of any government or public authority.
15.3 Where the Force Majeure Event affects the Platforms or the Developments the Customer accepts that access to the Platforms or the Developments (as applicable) may be unavailable or restricted during the continuance of the Force Majeure Event. Where the Force Majeure Event affects other Services, the Customer’s right to receive such Services is suspended for the period that the Force Majeure Event continues, and Sorted shall have an extension of time for performance for the duration of that period. Each party shall use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under a Contract may be performed despite the Force Majeure Event.
16.1 Except with the prior written consent of the other party, during the term of a Contract and for a period of six (6) months thereafter neither party will knowingly directly or indirectly employ or engage or make an offer of employment or engagement to any person employed or engaged by the other in relation to that Contract, save as a result of a bona fide general recruitment campaign or advertisement.
16.2 If a party breaches clause 16.1 it shall pay to the other the greater of:
16.2.1 the relevant individual’s gross annual salary inclusive of all benefits at the time of their resignation or departure; and
16.2.2 the equivalent of the relevant individual’s new annual salary or fee inclusive of all benefits,
such sum being deemed by both parties to be fair compensation for the loss suffered as a result of breach.
17.1 Each notice given under or in relation to a Contract must be in writing, include the Customer’s full corporate name and either be delivered by hand or sent by pre-paid first class post to the recipient’s nominated address, or sent by email to the recipient’s nominated email address.
17.2 Any notices sent to Sorted must be sent as follows:
17.2.1 by hand or post – to: Sorted Group Limited, Fourth Floor, Blackfriars House, St Mary’s Parsonage, Manchester, M3 2JA, FAO: Chief Executive Officer.
17.2.2 by email – to: firstname.lastname@example.org, cc: the contact email address given in the Order Form (if the notice is related to the Subscription Contract) or Statement of Work (if the notice is related to a Professional Services Contract).
17.3 Any notice sent to the Customer will be sent to the Customer’s postal address or contact email address as set out in the Order Form or Statement of Work.
17.4 Each party may update its nominated contact details by notice to the other from time to time.
17.5 A notice shall be deemed to have been received:
17.5.1 in the case of a delivery made in person, when delivered;
17.5.2 in the case of first class post, two working days after posting; and
17.5.3 in the case of email, at the time of sending if between 9am and 4:30pm on a working day, at 9am on that day if sent before 9am on a working day or otherwise at 9am on the next working day (provided in each case that no email delivery failure notification is received).
17.6 This clause 17 does not apply to the service of legal proceedings or other documents in any legal action.
18.1 A Contract constitutes the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges and accepts that, in entering into a Contract, it has not relied upon any representation, undertaking or promise except as set out in the Contract.
18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in a Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in a Contract.
18.3 The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to a Contract does not constitute and shall not be construed as a waiver of such term or right, remedy, power or privilege and shall in no way affect either party’s right later to enforce or exercise it, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
18.4 The invalidity or unenforceability of any provision of or any part of a provision of or any right arising pursuant to a Contract shall not in any way affect the remaining provisions or rights, which shall be construed as if such invalid or unenforceable part did not exist.
18.5 The Customer may not assign, transfer, sub-contract or otherwise part with a Contract or any right or obligation under it without Sorted’s prior written consent.
18.6 An Order Form or Statement of Work may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed at least one counterpart.
18.7 Nothing in a Contract shall confer any rights upon any person who is not a party to the Contract to bring a claim against Sorted, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Any claims arising out of or in connection with the receipt of the Services by any Authorised Affiliate or User shall be brought only by the Customer.
18.8 Each Contract (including any associated non-contractual disputes or claims) is governed by English law and the parties hereby accept the exclusive jurisdiction of the English courts in relation to any dispute arising under or in connection with a Contract.