In this document, "CC-LTD" refers to "Commerce-Connections Limited and Commerce-Connections Asia Limited".
CC Message Broker Service is the generic term for all CC-LTD EDI/B2B Services.
These Services include:
CC-LTD WebForms Service
• Portal service
• Low cost EDI service
• Trading partners include retailers, manufacturers, financial services, pharmaceuticals, public & private healthcare.
CC-LTD Message Broker Translation Service
• Provides secure message transmission, via API, FTPS, between Customer and CC-LTD
• Provides secure message transmission via API, FTPS, AS2, OFTP2, VAN/X400 Services etc. between Commerce-Connections Ltd / Commerce-Connections Asia Ltd and Customers' Trading Partners
• A Managed Service for collection, translation and delivery of electronic documents exchanged between customers and their business partners
CC-LTD Professional Consultation Services
• Hardware & Software installation and configuration
CC-LTD Disaster Recovery Service
• Dedicated disaster recovery server for Translation Service customers requiring complete resilience
CC MESSAGE BROKER SERVICE TERMS AND CONDITIONS
The CC-LTD Message Broker Service (including CC-MBTS Message Broker Translation Service, CC-MBWS Message Broker WebForms Service and CC-MBPS Message Broker Professional Services),(collectively, the "Service" is provided under the terms and conditions of this Agreement (including the CC Message Broker Service and Translation Services UK Service Description and Price Schedule in force from time to time) ("CC Message Broker Service Price Schedule – Appendix I") chosen by customer ("Customer").
The Service is an electronic commerce service, which is provided to the Customer by CC-LTD, with their place of business at Dukes Court, Dukes Street, Woking, Surrey, GU21 5BH and Room 3009, 30th Floor, Saxon Tower, 7 Cheung Shun Street, Lai Chi Kok, Kowloon, Hong Kong SAR, Hong Kong; respectively. The Service enables customers to electronically exchange business data with trading partners on a computer-to-computer basis in any available chosen format. Access to the Service is available via the public Internet and/or proprietary networks (VANs).
CC-LTD does not act as an agent of Customer in connection with Customers use of the Service. The establishment of the terms of any commercial or legal relationship between Customer and any third party by means of the use of the Service is the sole responsibility of Customer. The provision of such Service by CC-LTD shall not be interpreted as conferring any authority or responsibility on CC-LTD with respect to the establishment, continuation, or binding effect of such terms.
As part of the Service, Customer and its trading partners who are both using the Service can exchange XML documents, EDI data such as UN/EDIFACT, TRADACOMS, ODETTE and ANSI X12, and binary files such as technical documents. In addition, Customer's using the Service can exchange XML documents, EDI data such as UN/EDIFACT, TRADACOMS, ODETTE and ANSI X12 documents with trading partners on other public EDI VAN Services at an additional charge published in the CC Message Broker Service Price Schedule which is supplied as an appendix to the contract.
Access to and use of the Service by Customer, and persons who use Customer's User ID and password to access the Service ("Authorised Users"), will be subject to the following terms and conditions:
1. Charges and Payment
1.1 Customer shall pay, on receipt of CC-LTD's invoices, all fees and charges of the types and amounts stated or referred to on the face of this Agreement and/or in any supplement hereto and/or in CC-LTD's applicable CC Message Broker Service Price Schedule for the time being in force. CC-LTD reserves the right to modify its fees and charges or institute new charges at any time.
1.2 Customer will pay any additional charges in respect of Customer's use of the Service which are applicable at such time that Customer exceeds the usage bands set forth in the CC Message Broker Service Price Schedule. For the avoidance of doubt, such additional charges will become payable in accordance with the provisions of the CC Message Broker Service Price Schedule.
1.3 Prices are exclusive of taxes. Customer will pay any sales, use, excise, value added tax (at the prevailing rate), or similar taxes applicable to its Service. Payment will be made by Customer upon receipt of invoice from CC-LTD. If any payment is overdue for more than thirty (30) days' then CC-LTD reserves the right to suspend the provision of the Service, having given fourteen (14) days notice of its intention to do so and/or charge interest on a daily basis from the original due date until such payment is received by CC-LTD, at the rate of four (4) per cent above the HSBC Bank Base Rate in force at the date of such unpaid invoice.
1.4 Customer will be responsible for all charges resulting from the use of the Service, including unauthorised use prior to its notifying CC-LTD of such use and taking steps to prevent a recurrence by changing its User ID and password. Customer's right to use its User ID and password shall terminate immediately upon termination of this Agreement. CC-LTD shall not be responsible or liable for the use or misuse of any User ID and password assigned to Customer. Customer shall be solely and exclusively responsible and liable for any use or access of the CC Message Broker Service by any person or entity who gains access to the CC Message Broker Service through the use of Customer's User ID and password, including, without limitation, any direct or indirect use or access, whether authorised or unauthorised, by Customer. The Customer will not be responsible for such charges where misuse is by CC-LTD or its Agents.
1.5 Customer is responsible for providing and maintaining a personal computer, modem, communication lines, other hardware and/or Internet services (including browser software) required for accessing and using the Service. For Internet access, Customer will pay the service providers separately for all telecommunication and Internet service fees and charges incurred by it in accessing the Service.
1A Translation and Professional Services
1A.2 In relation to the Professional Services, CC-LTD grants to Customer an irrevocable, non-exclusive, worldwide, royalty-free license to use and copy the maps developed by CC-LTD hereunder ("Developed Maps"), which license includes the right to use any pre-existing CC-LTD intellectual property contained in the Developed Maps. Except for any Customer confidential information incorporated in the Developed Maps, which will remain the exclusive property of Customer and will be used by CC-LTD only for purposes of performing the Translation Services, all right, title and interest in the Developed Maps, and any inventions or discoveries developed by CC-LTD as a result of the Translation Services performed hereunder, will rest with CC-LTD. Nothing in this section will be construed to restrain CC-LTD or its personnel from using any techniques and skills of computer operation, system design and programming acquired or used in the performance of the Translation Services.
2. Term; Amendment
2.1 Unless earlier terminated as provided herein, and subject to this Section, this Agreement will continue in effect for an initial period of twelve (12) months commencing on the date CC-LTD countersigns the order form for the CC Message Broker Service; ("Applicable Term"), and will continue thereafter until terminated by either party upon giving the other not less than three (3) months' prior written notice. Notwithstanding the foregoing, if Customer terminates this Agreement prior to the expiry of the Applicable Term, other than in accordance with either Section 9 (a) or 9 (b), Customer shall, prior to the date of termination, pay to CC-LTD the remaining monthly payments (if any) for Translation Services from the date of termination until the expiry of the Applicable Term.
2.2 Except as provided in Section 1.1, CC-LTD may modify this Agreement at any time. Continued use of the Service by Customer after receipt of written notice from CC-LTD will constitute acceptance by Customer of the modifications made by CC-LTD to this Agreement.
2.3 CC-LTD may; (i) supplement or make changes to its rules of operation, access procedures, security procedures and standards for Customer equipment; (ii) change the type and location of the system equipment, facilities and software used by it in providing the Service; and (iii) modify (by correcting errors and/or introducing enhanced facilities) or withdraw any part of the Service. If CC-LTD believes any change will have a material adverse effect on Customer's operations, it will give reasonable notice to Customer and will attempt to negotiate modifications to this Agreement which mitigate the effects of the change for a reasonable period. If the parties are unable to agree to a resolution within thirty (30) days of CC-LTD giving notice of such a change, either party may, upon reasonable notice, terminate this Agreement. If this agreement is terminated for these reasons within the term of this agreement (12 Months) neither party will be liable to the other for charges or damages due to such termination.
2.3.1 CLIENT will supply its standard Change Control form to CC-LTD. This form needs to be completed and acknowledged by both parties before any change is implemented. In an emergency the Change Control form can be filled in retrospectively.
3.1 The following warranties shall apply:
(a) CC Message Broker Service including the Translations Services, if used properly, will perform in all material respects in accordance with the CC Message Broker Service Price Schedule in force at the date of the commencement of this agreement or modified within the terms of this agreement.
(b) Professional Services will be performed in all material respects in accordance with the CC Message Broker Service Price Schedule in force at the date of the commencement of this agreement or modified within the terms of this agreement and/or the applicable task description ("Task Description").
These warranties will apply only to failures to meet the applicable warranty which are reported to CC-LTD in writing within sixty(60) days after (i) the date of performance in the case of the CC Message Broker Service (including the Translation Services) or (ii) the date of delivery in the case of Professional Services.
3.2 CC-LTD's sole obligations and Customer's exclusive remedy for failure to meet these warranties will be as follows:
(a) In the case of the CC Message Broker Service and the Translation Services, CC-LTD will refund any charges paid for individual service for the period in which the Service did not perform as warranted and will attempt to correct any failure to meet warranted performance which materially impairs the operation of the affected Service. If warranted performance is not restored within a reasonable time, Customer may upon written notice to CC-LTD terminate the applicable specific Schedule for the affected Service.
(b) In the case of Professional Services, CC-LTD will use commercially reasonable efforts to attempt to correct a failure to meet the applicable warranty, provided that Customer makes available to CC-LTD, sufficient data to enable CC-LTD to replicate the failure. If such failure cannot be corrected with reasonable effort and within a reasonable period of time after the receipt by CC-LTD of Customer's report of the failure, CC-LTD will notify Customer and Customer may, at its option, (i) terminate the portion of the applicable Task Description related to the failed Map(s) by written notice to CC-LTD and return the affected Map(s) and all related materials to CC-LTD, or (ii) retain the Map(s) despite the failure. If Customer terminates the applicable Task Description with respect to any of the affected Map(s), CC-LTD will refund to Customer any amounts paid to CC-LTD which relate to any of the Map(s) not provided in conformity with the warranty. If Customer retains the Map(s), the price for the Map(s) will be equitably reduced.
3.3 CC-LTD warrants that where Customer's input data is in all material respects the same as has been tested by CC-LTD, the Service will be provided in accordance with the Service Level Agreement. CC-LTD does not warrant that the Service will meet Customer's requirements or that use and operation of the Service will be uninterrupted or error-free. Customer is responsible for taking appropriate precautions against damage to its operations, which could be caused by defects, interruptions, or malfunctions of the Service and assumes the risk of such occurrences. CC-LTD does not warrant the availability, accuracy, completeness, timeliness or usefulness of any information or materials accessed by use of the Service. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for accuracy of data input and output, and for maintaining a means external to the Service for the reconstruction of any lost data.
3.4 In the event that Customer accesses the Service via the Internet, CC-LTD will not be liable for any damages of any kind or nature whatsoever resulting from, without limitation; (i) the use of the Internet by Customer in connection with the Service or from the inability of Customer to make or maintain online connections through the Internet; or (ii) if electronic mail notification is elected by Customer, failure to receive or inability to read electronic mail notifications.
3.5 The express terms of this Agreement are in lieu of all warranties, conditions, terms 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 by law.
3.6 The Service will provide the "Principle Facilities" as described in the CCMBX Service description in the Commerce-Connections standard Price List, Appendix V.
4. Limitations of Liability
4.1 Notwithstanding anything to the contrary elsewhere herein, as a material condition of receiving Services at the applicable fee(s) and in regard to any and all causes arising out of or relating to this Agreement and/or the use of Services, including, but not limited to, claims of negligence, breach of contract or warranty, or failure of a remedy to accomplish its essential purpose, Customer agrees that (save in respect of death or personal injury suffered as a result of CC-LTD's negligence as defined in section 1 of the Unfair Contract Terms Act 1977), CC-LTD and its licensors' liability to Customer in respect of direct damages shall not exceed:
a) in the case of the CC Message Broker Service and the Translation Services; in the aggregate the total amount paid by the Customer for the affected Service for the last twelve (12) month period in respect of all or any events arising during any consecutive period of twelve (12) months; and
b) in the case of Professional Services; in the aggregate, the total amounts paid by Customer to CC-LTD for the affected Map(s), which is the cause of liability.
4.2 Neither CC-LTD nor its licensors will be liable to Customer for indirect, special, incidental or consequential damages arising from the provision or failure to provide the Service to Customer (even if advised of the possibility of such damages) including, but not limited to: (i) lost profits; (ii) lost savings; (iii) loss of use of the Service; (iv) cost of capital; (v) costs of substitute service; (vi) downtime costs; (vii) wasted or lost management time or time of other employees or (viii) damages and expenses arising out of claims by customers or trading partners of Customer or other third party claims.
4.3 The remedies specified in this Agreement are exclusive.
5.1 Subject to clause 4, CC-LTD shall indemnify Customer against all liabilities, costs, expenses, damages and losses (not including any indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Customer arising out of or in connection with:
a) any breach of the warranties contained in clause 3;
b) CC-LTD's material breach or grossly negligent performance or material non-performance of this agreement;
c) any claim made against Customer by a third party arising out of or in connection with the provision of the Services to the extent that such claim rises out of the material breach, grossly negligent performance or material non-performance of this agreement by CC-LTD, its employees, agents or subcontractors;
d) any claim made against Customer by a third party for death, personal injury or damage to property arising out of or in connection with defective Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of CC-LTD, its employees, agents or subcontractors;
5.2 This indemnity shall not cover Customer to the extent that a claim under it results from Customer's negligence or wilful misconduct.
5.3 If any third party makes a claim, or notifies an intention to make a claim, against Customer which may reasonably be considered likely to give rise to a liability under this indemnity (a Claim), Customer shall:
a) as soon as reasonably practicable, and in any event within 14 days give written notice of the Claim to CC-LTD, specifying the nature of the Claim in reasonable detail;
b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of CC-Limited;
c) give CC-LTD and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Customer, so as to enable CC-LTD and its professional advisers to examine them and to take copies (at CC-LTD's expense) for the purpose of assessing the Claim; and
d) subject to CC-LTD providing security to Customer to Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as CC-LTD may reasonably request to avoid, dispute, compromise or defend the Claim.
5.4 Nothing in this clause shall restrict or limit Customer's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity
6. Force Majeure
Except for the failure to make payments when due, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of any third party, acts of governmental authority, fires, strikes, delays in transportation, riots or war, or any cause beyond the reasonable control of that party.
7. Notices; Business Records
Any notice which is required or permitted to be given by either party to the other under this Agreement must be in writing and may be given by personal delivery, by registered mail or by electronic transmission (i.e., telex, cable, fax or electronic mail), properly addressed to the other, and in the case of CC-LTD, should be addressed for the attention of the Commercial Manager, CC-LTD Limited, Jubilee House, Station Approach, Woking, Surrey, GU22 7LH. All notices will be effective upon the date of receipt.
8. Intellectual Property
8.1 Customer accepts that all copyright and other intellectual property rights in specifications, computer programs, manuals and other material written or provided by CC-LTD for, or in connection with, the Service shall remain vested in CC-LTD or its licensors.
8.2 Customer will follow all such reasonable instructions as CC-LTD gives from time to time with regard to the use of trademarks or other indications of the property and other rights of CC-LTD or its licensors.
8.3 No copies may be made of manuals or other documentation without the written consent of CC-LTD.
8.4 CC-LTD hereby warrants that it or its licensors are the sole proprietary owners of all such copyright and intellectual property rights subsisting in the said specifications, computer programs, manuals and other materials and undertakes to indemnify the Customer at all times against any liability in respect of claims from third parties for infringement thereof.
8.5 If any unauthorised use is made of any material or computer program written or provided by CC-LTD and such use is attributable to any act or default of the Customer then without prejudice to CC-LTD's rights or remedies, the Customer will immediately be liable to pay CC-LTD an amount equal to the fees and/or charges which would have been payable had CC-LTD contracted with the unauthorised user at the beginning of the period of unauthorised use.
8.6 CC-LTD shall be entitled to refer to the Customer in its promotional material as a user of the Service.
9. Use of the Service
9.1 Use of the Service is subject to all laws and government regulations and to CC-LTD's standard conditions of use applicable to the Service. Where applicable, Customer is solely responsible for all information or content provided to CC-LTD in connection with the Service. Customer represents to CC-LTD that Customer has all necessary rights to use all such material. CC-LTD reserves the right to reject for posting or to remove any materials, which do not comply with the requirements of this Section 9.1.
10. Termination On Insolvency
10.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); or
(e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; or
(f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11. Governing law and jurisdiction
a) This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
b) The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
© Copyright CC-LTD 28th October 2011