Terms and Conditions
1.1 wnDirect Limited, a company incorporated in England and Wales with company number 07704460 and having its registered office at 2 A C Court, High Street, Thames Ditton, Surrey KT7 0SR ("wnDirect") accepts goods for carriage and provides Services subject to the terms of the Contract only.
1.2 These Conditions will apply from the moment that the Contract is formed in accordance with Condition 2.1.5.
1.3 The terms and conditions set out in the Contract shall apply to all goods carried and services provided by wnDirect to the exclusion of all other terms and conditions including, but not limited to those, which may be purported to apply under any purchase order, receipt, confirmation or similar document.
2.1 In these Conditions the following terms will have the following meanings:
2.1.1 "Charges" means the charges payable by the Customer to wnDirect, as set out in a Statement of Work;
2.1.2 "Conditions" means these terms and conditions;
2.1.3 "Confidential Information" means non-public information of the parties hereto relating to their and their affiliates' business activities, financial affairs, technology, marketing or sales plans that is exchanged or otherwise made available by the parties in the formation and implementation of the Contract. Confidential Information includes the terms and pricing of the Contract and the content of all reports which have been produced pursuant to the Contract. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Contract by the receiving party; (ii) is received by the recipient from a third party not under a duty of confidence; or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information;
2.1.4 "Consignment" shall mean, collectively, all Parcels sent at the same time in the same load by or for the same Customer to be delivered to the same Delivery Location pursuant to the terms of the Contract;
2.1.5 "Contract" means the terms as defined in a Statement of Work, incorporating the terms of these Conditions, which shall be formed when a duly authorised representative of the parties executes a Statement of Work;
2.1.6 "Customer" shall mean the person, firm, company or other entity that enters into the Contract with wnDirect, as identified in a Statement of Work;
2.1.7 "Dangerous Goods" means goods listed as dangerous in the Carriage of Dangerous Goods & Use of Transportable Pressure Equipment Regulations 2009, the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009, Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 2011, the Classification and Labelling of Explosives Regulations 1983 (as amended), goods classified as hazardous material, dangerous goods, prohibited or restricted articles by IATA (International Air Transport Association), ICAO (International Civil Aviation Authority), ADR (European Road Transport Regulation on dangerous goods) and any other goods which are considered as dangerous or hazardous by regulatory bodies governing transport by road or air in any applicable laws, regulations and/or guidelines or which wnDirect or its subcontractors are not otherwise entitled to transport due to restrictions placed by airline carriers;
2.1.8 "Deliverables" means all documents, products and materials developed or provided by wnDirect or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts) and whether or not created before or after the Commencement Date as defined in a Statement of Work;
2.1.9 "Delivery Location" means the location, as specified in a Statement of Work, where wnDirect shall deliver a Consignment;
2.1.10 "Frequency" means the frequency, as specified in a Statement of Work, with which wnDirect shall collect Parcels from the Pick-up Locations;
2.1.11 "Illegal Items" means goods prohibited to be imported, exported, carried and/or used by the law or regulation of any government or public or local authority of any country where the goods are to be carried, stored or transported;
2.1.12 "Insolvency Event" means:
(a) the defaulting party becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
(b) a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the defaulting party;
(c) an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the defaulting party and/or over all or any part of the assets of the defaulting party;
(d) the defaulting party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
(e) anything equivalent to any of the circumstances stated in (a) - (d) (inclusive) occurs in any jurisdiction;
2.1.13 "Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
2.1.14 "Parcels" shall mean any parcel which the Customer requests that wnDirect shall transport pursuant to the terms of the Contract which, in any case, must weigh less than 30kg and unless expressly agreed otherwise by wnDirect in writing, the maximum volume of a Parcel that may be sent using the Services shall be 0.064 cubic metres (equivalent to 40cm x 40cm x 40cm) with no single side greater than 100cm in length. Parcels with any larger dimensions shall be carried by wnDirect at its discretion and are subject to additional charges.
2.1.15 "Pick-up Location" means the location, as specified in a Statement of Work, from where wnDirect shall collect Parcels;
2.1.16 "Restricted Items" means tobacco products, works of art, jewellery, cash, glass, negotiable instruments (including cheques and any vouchers with a face value), precious metals, antiques, non-food animal products, furs or any other valuables, wines, beer, spirits, living or dead animals, fish, birds or any other living organism of any type, frozen or perishable food or other perishable items, perfume or cologne (in a total volume in the same Consignment of more than 100ml which will be carried by air), counterfeit goods, real or imitation firearms or other weapons, any Parcels which are over one metre in length (or which have any side over one metre in length) and any other items which wnDirect lists as a restricted item on its website from time to time;
2.1.17 "Services" means the services provided by wnDirect under the terms of the Contract as specified in a Statement of Work;
2.1.18 "Statement of Work" means a statement of work executed by the parties to which the Conditions relate;
2.1.19 "Taxes and Duties" means all taxes, charges, imposts, customs duties, levies, and other fees or charges of any kind payable to any governmental, fiscal or taxing authority anywhere in the world (but excluding any taxes in relation to wnDirect's income);
2.1.20 "Time" means the time specified in a Statement of Work at which wnDirect shall at the Frequency collect Parcels, from the Delivery Location;
2.1.21 "Third Parties" has the meaning set out in Condition 13;
2.1.22 "Transit" has the meaning set out in Condition 7; and
2.1.23 "wnDirect Group" means wnDirect together with each subsidiary and holding company of wnDirect, with a "subsidiary" or "holding company" to be construed in accordance with section 1159 of the Companies Act 2006.
3.1 Unless expressly agreed otherwise in a Statement of Work and subject to Conditions 6.5 and 7.1, wnDirect's Services will be limited to picking up and transporting Consignments for the Customer from the Pick-up Location, at the agreed Frequency and Time for delivery to the Delivery Location.
3.2 wnDirect reserves the right, at its discretion, to inspect all Consignments to ensure that such Consignments are compatible with the terms of the Contract, and are capable of carriage to the country of destination within wnDirect's standard procedures, customs, declarations and handling methods and in compliance with all applicable laws. Notwithstanding anything to the contrary, wnDirect may refuse to pick up and transport any Consignment that does not comply with the terms of the Contract (including, but not limited to, Conditions 5, 6 and 7). In such circumstances, the parties acknowledge and agree that wnDirect shall have no liability (in contract, tort or otherwise) to the Customer.
3.3 wnDirect shall, if so required, sign a document prepared by the Customer, acknowledging receipt of the Consignment, but no such document shall be evidence of the condition or correctness of a declared nature, quantity or weight of the Consignment at the time it is received by wnDirect.
PARTIES AND SUB-CONTRACTING
4.1 Where the Customer is not the owner of some or all of the Consignments and/or Parcels stored or carried he shall be deemed for all purposes to be acting as a fully authorised agent of the owner or owners or any other person who has an interest in the goods. Accordingly, the Customer hereby represents and warrants that it has all necessary rights, licences and permissions to allow wnDirect and its subcontractors to carry, store, export, import and deliver the Parcels as requested by the Customer.
4.2 wnDirect may engage any third party to perform or fulfil any of wnDirect's obligations under the Contract. Any such third party shall have the right to further sub-contract their own obligations.
5.1 The Customer is responsible for ensuring that Consignments are of the type that will be carried by wnDirect in accordance with this Condition 5 and that such Consignments are adequately and securely packed and the contents are properly and clearly identified. Consignments may not include:
5.1.1 Dangerous Goods; or
5.1.2 subject to Condition 5.2, Restricted Items, hazardous goods, flammable goods; or
5.1.3 Illegal Items.
5.2 The Customer shall only be permitted to include Restricted Items in a Consignment if a duly authorised executive of wnDirect has notified the Customer in writing that such items are accepted for carriage in that particular Consignment.
CUSTOMER OBLIGATIONS AND WARRANTY
6.1 The Customer will make Parcels available for collection by wnDirect at the Time and Frequency and at each Pick-up Location and will provide wnDirect with a safe and secure environment for such collection and will inform wnDirect in advance of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's Pick-up Location.
6.2 The Customer agrees that it is responsible for loading the Consignment into wnDirect's vehicle at the Pick-up Location. If the Customer fails to comply with this requirement, wnDirect shall be under no obligation to carry the Consignment although it may choose to assist the Customer by loading the Consignment. However, the Customer will be liable for and indemnify wnDirect for any loss, damage or liability arising from the loading of the Consignment.
6.3 The Customer undertakes, warrants and represents that:
6.3.1 All Parcels and Consignments have been properly and sufficiently packaged, labelled and accompanied with all necessary dispatch documentation (including, where applicable, in a manner specified by wnDirect) and that the labelling shall include the full postcode or equivalent for the relevant consignee;
6.3.2 no individual Parcel will be over 30kg in weight and that it will not send (or attempt to send) any Dangerous Goods, Restricted Items, hazardous goods, flammable goods or Illegal Items using the Services offered by wnDirect except as permitted under Condition 5.2; and
6.3.3 it will accurately complete all documentation and comply with all customs requirements as required to enable wnDirect to carry, export, import and deliver the Consignments.
6.4 The Customer will:
6.4.1 provide wnDirect with such information as is reasonably required to allow wnDirect to perform its obligations under the Contract;
6.4.2 ensure that it has all necessary consents and licences to allow wnDirect to use the data and information provided by the Customer pursuant to the Contract;
6.4.3 upon pick-up of a Parcel and/or Consignment, provide wnDirect with a data file in a format specified by wnDirect, acting reasonably, which contains details of the:
220.127.116.11 relevant destination address; and
18.104.22.168 accurate details of the contents of the Parcel and/or Consignment; and
22.214.171.124 ensure that all information which is provided by the Customer in relation to each Parcel and/or Consignment is accurate and will indemnify wnDirect from any liability, losses, costs and expenses which wnDirect incurs as a result of any inaccurate information provided by the Customer.
6.5 Any failure by wnDirect to provide the Services as a result of either a Customer's or its consignee's failure to correctly label, package or provide information in relation to the Parcel and/or relevant Consignment or as a result of a failure by the Customer to comply with Conditions 5 and/or 6 shall not be a breach of the Contract.
TRANSIT AND UNCLAIMED GOODS AND UNDELIVERED GOODS
7.1 wnDirect is only responsible for and shall only be liable for Parcels whilst they are in "Transit". For the purposes of these Conditions, Transit shall commence when the Consignment is physically within the possession of wnDirect (or its authorized subcontractor), following loading in accordance with Condition 6.2, whether at the Pick-up Location or at wnDirect's premises.
7.2 Transit shall end when the Consignment is offered for delivery at the Delivery Location (in accordance with the number of delivery attempts wnDirect is required to make in accordance with the Statement of Work); PROVIDED THAT, when for any other reason whatsoever a Parcel is held by wnDirect "to await order" or "to be kept until called for" or upon any like instructions and such instructions are not given by the Customer, or the Parcel is not called for and removed within a reasonable time, then Transit shall be deemed to end. wnDirect shall store such Parcel at the Customer's costs subject to all goods being solely at the Customer's risk and subject to disposal in accordance with Condition 14. A Consignment shall be considered to have been offered for delivery when wnDirect (or its designated subcontractor) attempts delivery at the Delivery Location in a manner which is customary by carriers of that nature in the location where the Parcel is to be delivered to (in accordance with the number of delivery attempts wnDirect is required to make in accordance with a Statement of Work). Accordingly, for example, where it is customary that a parcel may be left outside of premises if physical handover of that item to the consignee is not possible, leaving such item as described shall be considered to be delivery and Transit shall be deemed to have come to an end at that time.
7.3 wnDirect shall use its reasonable endeavours to deliver the Parcels in accordance with the time schedule agreed by the parties. wnDirect is entitled to convey Consignments by any means of conveyance and by any route whatsoever. Time shall not be of the essence in relation to any delivery Time.
7.4 Where, for any reason whatsoever wnDirect is unable to convey the Parcel to the Delivery Location in accordance with Clause 7.3, or to effect delivery at the Delivery Location:
7.4.1 wnDirect shall endeavour to communicate with the Customer and request a new address to which the Parcel can be delivered in the country in which the Parcel is then lying (at the Customer's cost); and
7.4.2 if wnDirect is unable to communicate with the Customer within a reasonable time, or if it is not provided with a new address for delivery by the Customer within a reasonable time, wnDirect shall be at liberty to deal with the goods in accordance with Condition 14. Prior to any disposal or destruction in accordance with Condition 14, the goods shall be held solely at the risk of the Customer.
PAYMENT AND PRICING
8.1 wnDirect's Charges for the Services shall be payable by the Customer. However, wnDirect shall also have the right to demand and obtain payment from the sender or the consignee, if different from the Customer, or from any other person who may be liable to pay the Charges.
8.2 Where the Charges have been established based upon the requirements that the Customer shall send the minimum number of Parcels to wnDirect pursuant to the Contract per month (as set out in a Statement of Work) and the quantity of Parcels sent by the Customer is below such minimum Parcel volumes for two (2) months in any rolling six (6) month period (a "Minimum Volume Issue"), the parties will, if required by wnDirect, discuss whether the Minimum Volume Issue is likely to be remedied and, if not, the impact of such lower level on the charges. The Customer will not unreasonably withhold its agreement to a proposed increase to the charges if a Minimum Volume Issue occurs.
8.3 The Customer will pay wnDirect's Charges no later than the date specified on wnDirect's invoice/statement or such other period as may be expressly agreed with the Customer in writing and set out in a Statement of Work. If no such time is specified, payment will be due within seven (7) days of the invoice being raised by wnDirect.
8.4 If the Customer disputes any amount invoiced by wnDirect, it must notify wnDirect in writing within seven (7) days of the invoice being raised. In such circumstances, the Customer will pay any undisputed amounts without delay in accordance with Condition 8.3. The Customer will provide reasoning and, where possible, evidence justifying the amount in dispute. wnDirect will act reasonably when considering such information and will inform the Customer within fourteen (14) days whether it agrees that the Customer has been incorrectly invoiced. If wnDirect agrees that the Customer has been incorrectly invoiced, it shall re-issue an invoice for the correct amount (taking into account any sums which have already been paid by the Customer). If wnDirect does not agree that the Customer has been incorrectly invoiced, such sums shall be deemed to have been payable within seven (7) days of the original invoice being raised by wnDirect (and Condition 8.5 shall be applicable accordingly). If the Customer does not notify wnDirect within seven (7) days of an invoice being raised by wnDirect that it disputes it, it shall be deemed to have accepted the invoice (and the sums indicated on the invoice shall be payable within the timescales described in condition 8.3). The Customer agrees that it will only dispute invoices in good faith.
8.5 If any payment under the Contract is overdue, then without prejudice to wnDirect's other rights and remedies, wnDirect reserves the right to place an account on hold, suspend performance of the Services and/or require the Customer to pay interest on the overdue amount (whether before or after judgment) at the statutory rate of interest payable on late payments from time to time, such interest to accrue on a daily basis, from the due date for payment until payment is made in full.
8.6 wnDirect shall be entitled to set-off any monies owed by the Customer to wnDirect from any sums which wnDirect owes the Customer (for any reason). The Customer has no right of set off against wnDirect.
8.7 wnDirect shall be entitled at any time and from time to time to increase wnDirect's charges for carriage or other Services by giving to the Customer not less than seven (7) days' prior written notice to accord with increases in relevant costs of wnDirect's business such as, but not limited to, fuel, exchange rates, licence fees and labour.
8.8 Subject to Condition 8.9, all amounts payable by the Customer are subject to Value Added Tax and any other applicable taxes at the current rate (which shall also be payable by the Customer).
8.9 wnDirect shall pay any Taxes and Duties in respect of the export and/or import of the Consignment during Transit, unless agreed otherwise. Where any amount of Taxes and Duties are payable in respect of such Transit:
8.9.1 wnDirect shall do so on the sole basis that in doing so it is acting as the Customer's fully authorised agent and the Customer shall fully reimburse wnDirect for all such Taxes and Duties plus an amount equivalent to 4% of such Taxes and Duties as a processing fee;
8.9.2 whether or not delivery of the goods is made to the address to which they are consigned, immediately upon receipt of wnDirect's invoice in respect of such Taxes and Duties the Customer shall settle such invoice in full no later than seven (7) days after the issue of that invoice or such other period as may be expressly agreed with the Customer; and
8.9.3 in the event of any Customer failing to comply strictly with Sub-Condition 8.9.2 above, wnDirect shall be at full liberty to deal with the goods in accordance with Condition 14.
8.10 If the goods are not ready for collection by wnDirect at the place and time agreed or wnDirect is prevented from performing the Services because of restricted access to the Pick-up Location or a last minute cancellation, wnDirect will make a charge for "Nothing to Collect" at wnDirect's prevailing rates.
LIABILITY FOR LOSS AND DAMAGE
9.1 Subject to the provisions of this Condition 9 and of Conditions 5 and 10 wnDirect shall not be liable for any physical loss of, or physical damage to, Consignments or other non-compliance with the Contract if such loss, damage or non-compliance has arisen from:
9.1.1 the Customer or consignee not taking or accepting delivery within a reasonable time; or
9.1.2 insufficient or improper packing, labelling or addressing, including incorrect or missing postcode information; or
9.1.3 any breach of the Customer warranties set out in Condition 6; or
9.1.4 damage or breakage of articles, or for that part of any articles that comprise of fragile materials and/or liquids, unless the Customer has properly declared the contents of the relevant Parcel and the Parcel is correctly packaged in a manner that would reasonably prevent such damage or breakage; or
9.1.5 damage caused by Consignments containing any form of liquid, or damage to containers containing liquids or loss of liquids themselves, unless the Customer has properly declared the contents of the relevant Parcel and the Parcel is correctly packaged in a manner that would reasonably prevent such loss or damage; or
9.1.6 any other act or omission of the Customer or owner of the goods or of the servants or agents of either; or
9.1.7 seizure of goods under legal process or refusal to allow the goods through Customs.
9.2 In addition, wnDirect shall not be under any liability of any kind for a Consignment or other goods:
9.2.1 where there has been fraud by the Customer or the owner of the goods or the servants or agents of either; and/or
9.2.2 when the Consignment is not in Transit.
LIMITATION AND EXCLUSION OF LIABILITY
10.1 Subject to Conditions 5, 6, 9, 10.2, 10.3 and 11 hereof, and to the extent permitted by law, the total aggregate liability of wnDirect (or any member of the wnDirect Group) (whether in contract, breach of statutory duty, misrepresentation, tort, negligence or otherwise) under or in connection with the Contract for the loss of or damage to any Consignment or any other breach of these Conditions shall be limited to the lesser of the following:
10.1.1 for all claims relating to a Consignment, the declared value of the Consignment capped at a maximum of £1,000;
10.1.2 where the claim relates to a Parcel or Parcels, an amount equivalent to the lessor of the cost of the goods or £50 per Parcel, subject to the overall caps described in Condition 10.1.1;
10.1.3 where any or all of (i) the Convention on the Contract for the International Carriage of Goods by Road (CMR) May 1956 (as amended); (ii) the Warsaw Convention of 1929 (as amended); and/or (iii) the Montreal Convention 1999 (as amended) (the "Conventions") allow wnDirect to limit its liability for the type of loss or damage in question, the amount described in the applicable Convention(s) or any applicable national law which has implemented such Convention(s).
10.2 Notwithstanding Condition 10.1, but subject to 10.3, wnDirect (or any member of the wnDirect Group) shall, in no circumstances whatsoever, (unless required by the Conventions), be liable to the Customer for any of the following (whether in contract, tort, statutory duty, misrepresentation, negligence or otherwise):
10.2.1 any indirect or consequential loss or damage of any kind (including, without limitation, loss of business and loss of goodwill), or
10.2.2 for any loss of profits, loss of business or future custom, loss of contracts, loss of anticipated savings, loss of goodwill, or loss of revenue or any wasted expenditure (regardless of whether any of these types of loss or damage are direct, indirect or consequential).
10.3 Nothing in these Conditions shall operate so as to exclude or limit the liability of either party to the other for death or personal injury arising out of negligence, or for any other liability which cannot be excluded or limited by law.
10.4 The Customer acknowledges that wnDirect is reliant on the Customer's compliance with its responsibilities set out in the relevant Contract in order for wnDirect to provide the Services and that a failure by the Customer will relieve wnDirect from liability for a failure to provide the affected Services.
10.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
CLAIMS FOR COMPENSATION
11.1 The Customer must notify wnDirect of any loss or damage giving rise to a claim under or in connection with the Contract within fourteen (14) days of the date of commencement of Transit and confirm it by notice in writing within twenty eight (28) days of the date of commencement of Transit. If the Customer fails to do so, wnDirect shall not be liable for any loss or damage, save and except where the Customer proves that:
11.1.1 it was not reasonably possible for the Customer to advise wnDirect or make such claim in writing within the time limit applicable; and
11.1.2 such advice or claim was made within a reasonable time.
11.2 In the event of a claim for damage, the Customer must ensure that the Consignment or relevant Parcel (as applicable) and its packaging is held for inspection at the delivery point or is otherwise made available for inspection by wnDirect.
12.1 The Customer shall indemnify wnDirect (and each member of the wnDirect Group) against:
12.1.1 losses suffered by wnDirect arising from any negligent act, negligent omission, negligent misdirection or negligent misstatement by the Customer, consignor or consignee, and each of their servants and agents;
12.1.2 subject to Condition 5.2, claims and demands of any nature for loss or damage resulting from the carriage of Dangerous Goods, Restricted Items, hazardous goods or flammable goods and/or Illegal Goods;
12.1.3 claims and demands of any nature in respect of loss of or damage to the goods made by the Customer and/or any third party additional to or in excess of the limits of liability of wnDirect set out in these Conditions;
12.1.4 any claims made, penalties imposed or sums payable by wnDirect to any customs, governmental or regulatory authority as a result of carrying or delivering the Consignments including, but not limited to, claims made by Her Majesty's Revenue and Customs and/or the Commissioners of Customs and Excise in respect of dutiable goods; and
12.1.5 claims and demands made by any third party attributable to lack of authority on the part of the Customer to enter into the Contract or act on its behalf and/or any breach of Condition 4.1.
RIGHTS OF THIRD PARTIES
13.1 The Customer acknowledges and agrees that the provisions of Conditions 3, 4, 5, 6, 8, 9, 10, 11 and 12 shall extend to protect the members of the wnDirect Group and their respective employees, subcontractors and agents (collectively the "Third Parties"). In addition, the members of the wnDirect Group will be entitled to enforce the rights granted to them pursuant to the terms of the Contract. Accordingly, any reference to "wnDirect" in Conditions 3, 4, 5, 6, 8, 9,10 and 11 shall also be deemed to be a reference to the Third Parties.
13.2 Each of the Third Parties shall be entitled to enforce any right granted to them in these Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999 directly against the Customer. In addition, such Conditions shall be enforceable by wnDirect for itself and as trustee or agent for such Third Parties.
13.3 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.
LIEN AND DISPOSAL OF GOODS
14.1 wnDirect shall have a lien on all goods carried for the Customer for any amount due to wnDirect whether pursuant to the Contract or otherwise and for the cost of recovering the same.
14.2 If the amounts owing to wnDirect in respect of which it has a lien are not satisfied within a reasonable time of the commencement of Transit, then without prejudice to any other rights available to wnDirect, wnDirect shall be at full liberty to:
14.2.1 sell the goods either privately or by auction and to apply the proceeds of any such sale in or towards any monies owing to it and the expense of the sale and shall account to the Customer for the balance remaining if any; or
14.2.2 destroy the goods if any sale under Sub-Condition 14.2.1 is impractical in the opinion of wnDirect due to the value or saleability of the goods in question, or otherwise; and such sale or destruction as the case may be shall be a full discharge of any liability of wnDirect in respect of the goods. The Customer shall indemnify wnDirect for any claims made by third parties which result from wnDirect's exercise of its stated rights pursuant to this Condition 14.
wnDirect shall be relieved of its obligation to perform the Contract to the extent that performance thereof is prevented or delayed by riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, seizure, hijacking, civil war, civil commotion, malicious damage, rebellion, revolution, insurrection of military or usurped power, fire, severe weather conditions, earthquake, flood, lightning, other natural physical disaster, pandemic outbreaks, industrial dispute, labour disturbance, delay by any government or public or local authority, any action of customs, governmental or regulatory authority including the customs of any country where the goods are carried and any other causes beyond the reasonable control of wnDirect and for the avoidance of any doubt wnDirect's charges shall be payable in full in such circumstances, without prejudice to wnDirect's rights at common law to treat the Contract as frustrated.
TERM AND TERMINATION
16.1 The Contract commences on the Commencement Date and shall continue in full force and effect for a period of two (2) years from the Commencement Date ("Initial Term"), unless it is terminated earlier in accordance with its terms.
16.2 The Contract shall be automatically renewed for additional periods of twelve (12) months (each a "Renewal Period") unless one of the parties provides written notice of its intention to terminate the Contract to the other party by no later than three (3) months before the end of the Initial Term or the current Renewal Period. If such party issues a notice of termination under this Condition 16.2, the Contract shall terminate at the end of the Initial Term or the current Renewal Period (as applicable). For the purposes of the Contract, the "Term" shall mean the Initial Term and any Renewal Period in accordance with this Condition 16.2.
16.3 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
16.3.1 the other party commits a material breach of the Contract (which shall include, in the case of the Customer's breach, failure to pay any Charges by the date due) and (if such breach is capable of remedy) does not remedy such breach within thirty (30) calendar days after receipt of notice from the first party specifying the breach and requiring its remedy; or
16.3.2 the other party experiences an Insolvency Event; or
16.3.3 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
16.4 On termination or expiry of this Contract for any reason:
16.4.1 the Customer shall immediately pay to wnDirect all of wnDirect's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, wnDirect may submit an invoice, which shall be payable immediately on receipt;
16.4.2 the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
16.4.3 Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
If any of these Conditions are held to be invalid for any purpose, it shall for that purpose be deemed to have been omitted, but shall not prejudice the effectiveness of the rest of these Conditions.
INTERPRETATION AND JURISDICTION
The Contract shall in all respects be subject to and construed in accordance with English Law and the parties to the Contract hereby submit to the exclusive jurisdiction of the Courts of England and Wales. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
19.1 Neither party shall, without the prior written consent of the other party, use or disclose the Confidential Information of the other party.
19.2 Each party will take all reasonable precautions to protect the other party's Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information.
19.3 Notwithstanding the foregoing, a party may disclose Confidential Information:
19.3.1 to any employees, directors, consultants, contractors, professional advisers and counsel who have a need to know in connection with this Contract and have executed a reasonably protective non-disclosure agreement with the disclosing party, or
19.3.2 pursuant to legal process; provided that, the disclosing party shall, unless legally prohibited, provide the non-disclosing party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
INTELLECTUAL PROPERTY RIGHTS AND PROMOTIONAL ACTIVITY
20.1 As between the parties, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by wnDirect or its third party licensors. Subject to Condition 20.2, wnDirect licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services during the Term.
20.2 wnDirect hereby provides the Customer with a worldwide, royalty free licence for the Term to use all reports which are provided by wnDirect to the Customer during the term.
20.3 wnDirect shall be entitled during the term of the Contract to refer to its relationship with the Customer on its website and other promotional material, such as case studies and press releases. Accordingly, the Customer hereby grants wnDirect free of charge and on a non-exclusive basis a right to use the Customer's logos and trademarks in a form provided by the Customer in relation to such agreed activity.
ORDER OF PRECEDENCE
21.1 If there is any conflict, ambiguity or inconsistency between the parts of the Contract, then the following order of precedence shall apply:
21.1.1 The relevant Statement of Work;
21.1.2 any additional terms agreed between the duly authorised parties in writing and agreed to form part of the Contract; and
21.1.3 the Conditions.
22.1 The Contract constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties whether oral or written, in relation to that subject matter.
22.2 Each party acknowledges that in entering into the Contract it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of the Contract at any time before its signature (together, "Pre-Contractual Statements"), other than those which are set out in the Contract.
22.3 Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
22.4 Nothing in this Condition shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.