BODO TECHNOLOGY LIMITED (“BODO”/ “US”): TERMS OF SERVICE

These terms of service (“Terms”) form a binding agreement between Company (“Brand” or “You”) and Bodo Technology Limited of 55 Loudoun Road, London, England, NW8 0DL registered under company number 13665670 (together, the “Agreement”).

1. The Agreement

 

a. This Agreement governs how Brand may sell Products to Customers using  Bodo via (a) the receipt, counting, storage, packaging, and shipment of Products and (b) use of the Bodo platform that we make available to Brand, in object code format with which Brand may integrate their own storefront for the purpose of Brand being able to fulfil its orders to Customers (the “Bodo Software” and together with paragraph a) the “Bodo Services”). 

b.We may vary these Terms on at least fifteen (15) days’ written notice to Brand (except this period may be shorter where such variation is required by law). Whenever we notify you of a proposed change to the Terms, you will have the right to terminate the Agreement before expiry of the applicable notice period. Your continued use of the Bodo Services after we have sent notice of a change will serve as your confirmation that you agree to the updated Terms and do not want to terminate the Agreement.

c.From time to time Bodo may make further services available to Brand at its discretion, and where Brand opts to use such services, the use of such services may be subject to further terms and conditions that Brand must accept prior to using such services. Such terms and conditions shall be subject to these Terms except where such terms and conditions expressly override a provision of these Terms.

2. Operations

 

a. You agree to provide us with your Products, which we will store in the Warehouse(s) until such time as you instruct us via the Bodo Software to fulfil an order to a Customer. 

b. You are solely responsible for restocking Products. We will use commercially reasonable efforts to notify you when a specific Product is near depletion. If you fail to maintain adequate stock of your Products, we may terminate this Agreement upon written notice. 

c. You will (i) create a shipping manifest in the Bodo Software detailing which SKUs (and how many) will arrive and when (ii) ship Products via a non-palletized delivery method (common courier, self drop off, logistics company) (iii) print/place shipping manifests inside the physical shipment and (iv) provide Bodo with any other information reasonably requested by Bodo (whether via the Bodo Software or not) so it may provide the Bodo Services.

d. Bodo is not the importer of record for Products. We shall not be held liable for complying with your instructions through the Bodo Services. Brand acknowledges that we do not inspect your Products nor does Bodo take any responsibility for the relationship between Brand and its Customers.

 

3. Fees

 

a. Basic Platform Fee. Commencing on the applicable Start Date, you agree to pay the fees set out in the Terms of Service at the start of each month during the duration of this Agreement (“Basic Platform Fees”). Where your Products exceed the amount of space ordered under an Terms of Service, we may charge Brand additional fees (“Additional Storage Fee”) based on the increased shelf space, or return such Products to you at your cost, at our discretion.

 

b. Transaction Fee. In relation to each Product that you instruct us to send to each of your Customers via the Bodo Services, we will charge you a flat fee as set out in the Terms of Service (“Transaction Fee”) in Exhibit 1. Such Transaction Fees shall be payable monthly in arrears for the duration of the Agreement .

 

c. Payment Terms. Unless otherwise stated in the Terms of Service, all fees owed to us are due 14 days from the date of invoice. If your payment is overdue, we may (i) charge interest on the overdue amount at 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full, (ii) suspend or terminate the Bodo Services, and/or (iii) deduct the past due amounts from any amounts we owe to you. You agree that we may use a third party provider to process the Fees payable by you and that in such event that third party payment provider’s standard terms will apply (we will notify you of such terms). You are responsible for all refunds, credits, chargebacks, penalty charges, or any retrieval costs in connection with the sale of the Products (including, order delay or error), excluding any issue caused solely by our gross negligence or wilful misconduct. We may offset amounts you owe to us or our affiliates with the amounts we owe you pursuant to this Agreement.

 

d. Taxes. You are the legal seller with respect to the sale of any Product you sell to a Customer. You agree to be solely responsible for the payment of any taxes assessed in connection with the sale of the Product (including, but not limited to, all sales, use, VAT or similar taxes) through your storefronts. If we ask, you agree to provide us with reasonable evidence that you are collecting and paying your taxes. If Bodo is required to pay any taxes, duties or levies on behalf of Brand due to any circumstances, including any failure by the Brand to provide complete, clear and correct information and documentation or to hold any permits or licences required in connection with carriage or these Terms, Brand shall be liable for and indemnify Bodo for such amounts.

 

e. Other Fees: Bodo reserves the right to change the date on which payments are issued or introduce new fees for the provision of the services outlined under these Terms or introduce fees for new services on reasonable notice to Seller. If Seller does not wish to accept such fees, Seller shall be entitled to terminate this Agreement, such termination to be notified to Seller not later than thirty (30) days from the date of the notice. If Seller does not provide such notice within such 30 day window, it shall be deemed to have accepted the fees and shall be liable to pay them.

 

f. VAT. Brand agrees that all Fees, or charges payable by Brand to Bodo are exclusive of applicable value added taxes. Where applicable, Brand shall pay all VAT arising in respect of the Fees or other amounts payable by Brand to Bodo. 

4. License 

 

a. Bodo shall own and retain all intellectual property rights in the Bodo Services, the Bodo Software, any Bodo logo and/or trademark, and all materials, software and information made available by it to Brand. Bodo hereby grants to Brand a licence to use the above for the purposes of performing its obligations and exercising its rights under these Terms.

b. Brand shall not permit any third party to access or use the Bodo Services or the Bodo Software, or attempt to reverse engineer, gain access to the source code or modify the Bodo Software in order to build a competitive product or for any other purpose.

5. Warranties

a. Each party represents and warrants that it (i) has full power and authority to enter into this Agreement, (ii) will comply with all laws applicable to the performance of this Agreement, and (iii) the individual signing this Agreement has the right to bind their respective company. 

b. You represent and warrant that: (1) you are the legal owner of the Products and have the sole right to store and direct the delivery thereof, (2) the Products and Your IP will not infringe or misappropriate any rights (including the intellectual property, privacy or publicity rights) of a third party, (3) each Product will be labelled, prepared and packaged in accordance with all applicable laws, (4) the Products will not be adulterated or misbranded and will be merchantable, (5) there are no potential environmental, health or safety risks associated with the storing or delivery of Products by Bodo, (6) the content you provide that depicts the Products are accurate, correct and complete in all material respects, (7) the Products are in conformity with all applicable laws and any Bodo policy relating to banned products, of which you are notified.

 

c. Brand hereby agrees to indemnify Bodo upon demand for any cost, fine, liability and/or third party claim against Bodo where this is due to Brand’s failure to comply with clause 5b above. Without prejudice to Bodo’s other rights under these Terms, Bodo may reject and refuse to delivery any Product that Bodo determines does not comply with clause 5b, and Brand shall be responsible for the costs incurred by Bodo in returning such Products. We are not liable for any loss or damage as a result of Bodo rejecting or not delivering such Products. Brand acknowledges that Bodo has no obligation to verify the Products delivered to it for storage and/or delivery. 

 

d. We do not make any other commitments or warranties about the Bodo Services and/or Bodo Software, other than as expressly stated in this Agreement. Any other warranties, express or implied, such as warranties of non-infringement, merchantability, and fitness for a particular purpose, are excluded to the maximum extent permitted by law.

 

e. You retain title and full ownership to the Products at all times. You assume all liability for risk and loss while transporting the Product to the Warehouse. The Products will be picked up by third party carriers from our Warehouse, and therefore, you agree that we have no control or liability for the Products once they leave the Warehouse. Our liability for any lost or damaged product while in our possession is subject to clause 6 below.

 

f. You acknowledge that you do not have authority to incur any liability or obligation on behalf of Bodo (such as signing or accepting a contract on our behalf).

6. Indemnity; Limitations of Liability

 

a. You agree to indemnify, defend and hold harmless Bodo, our group companies, respective officers, directors, employees and agents of the foregoing, against any claims or legal proceedings (including actions by government authorities), liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) arising out of or relating to: (i) the Products, and (ii) of illness, injury, death, or damage as a result of the consumption or use of any Product.

 

b. Nothing in this Agreement excludes or limits each party's liability for (i) any express indemnity contained in this Agreement; (ii) death or personal injury caused by its negligence or that of its personnel; (iii) fraud or fraudulent misrepresentation; or (iv) any other liability which cannot be excluded under English law.

 

c. Subject to clause 6b, Bodo shall not be liable to Brand under or in relation to this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (i) losses which arise from circumstances out of Bodo’s reasonable control (ii) all actual or anticipated loss of profits; (iii) loss of goodwill; (iv) loss of business opportunity; or (v) indirect, special, or consequential loss.

 

d. Subject to clauses 6b and 6c, Bodo's total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in respect of each event or series of connected events, to the total of all Fees paid by Brand to Bodo under this Agreement in the 12-month period immediately preceding the event giving rise to such liability (or, in the case of a series of connected events, the first such event).

 

e. Bodo shall not be liable for any Loss to the extent that it is caused or contributed to by a breach of any of the Customer’s obligations, or by a person for whom Bodo is not responsible, or by any of the circumstances by virtue of which Bodo is relieved of its obligations under Condition 8. 

 

f. Bodo shall not be liable for any claim unless: (i) it has received written notice of it within 10 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee; and it has received, within 21 days of the event giving rise to the claim coming to the knowledge of the Customer or consignee, sufficient detail in writing to enable investigation. In the case of failure to deliver, time shall run from the second working day after the expected date of delivery (ii) No legal proceedings (including any counterclaim) may be brought against Bodo unless they are issued and served within 9 months of the event giving rise to the claim.

7. Term and Termination

 

a. The Agreement will begin as of the date of the acceptance of the Terms of Service  (the “Effective Date”) and, subject to clause 7b shall remain in effect for 6 months (“Initial Term”), and then for successive periods of six months (“Continuing Terms”), until the expiry of not less than 30 days’ written notice by either party to the other that it wishes to terminate, such notice to take effect at the end of the Initial Term or applicable Continuing Term, unless agreed between parties different periods in writing.

b.     A party may terminate by immediate written notice this Agreement in the event of a material breach by the other party, which, if curable, remains uncured after ten (10) days’ notice of such breach. You must arrange to have all leftover Products picked up from all Warehouses within 3 days of termination, or else Bodo may return these to you at your cost or destroy such Products (without liability to you), acting in its discretion. Outstanding payment obligations and Sections 4, 5c, 6, 8, 9, 10, 11 and 13 of this Agreement will survive any termination of this Agreement. In the event we terminate due to your breach, without limiting our right to pursue additional remedies, you agree to pay us all Fees that would have been collected during the Initial Term or applicable Continuing Term.

8. Insurance

a. Unless expressly agreed, Bodo does not insure the Goods and the Customer shall self- insure or make arrangements to cover the Goods against all insurable risks to their full insurable value (including all duties and taxes). The insurance referred to in Condition 8d is insurance against Bodo’s potential liability for breach of its obligations and not to cover the Goods themselves against loss, damage, etc .

 

b. Subject to Condition 8c, Bodo shall have no liability for Loss however arising.

 

c. If and to the extent that Loss is directly caused by negligence or wilful act or default of, or breach of duty owed to the Customer by, Bodo, its employees (acting in furtherance of their duties as employees) or sub-contractors or agents (acting in furtherance of their duties as sub-contractors or agents) and subject to Conditions 8d, 8f and 8g, Bodo will accept liability for Loss assessed on normal legal principles but not exceeding the Limit fixed by Condition 8d. Any quantification of amount or value includes duties and taxes

 

d. In no case shall Bodo be liable for any lost profit, income or savings, wasted expenditure, liquidated damages, or indirect or consequential loss suffered by anyone.

e. on no case shall any liability of Bodo (including inter alia any liability in respect of duties and taxes) exceed the Limit, fixed as follows: 

i. Where potential Loss relates to Goods, the Customer may specify the Limit as an amount (in Sterling, US Dollars or Euros) per tonne weight of the Goods by notice in writing stating the Limit and the nature and maximum value of the Goods, including duty and taxes. The Limit so nominated by the Customer shall apply in respect of any cause of action arising after the Date and in the period in which the nomination remains in effect. It is a condition of the contract that the Customer pays within 7 days of receipt Bodo’s invoices for its costs in insuring against its potential liability up to the Limit, and/or to the extent that Bodo elects to carry the risk itself, its extra charge equivalent to the estimated or likely cost of such insurance. 

ii. If Bodo having made reasonable efforts is unable to obtain insurance on reasonable terms to cover its liability up to the Limit nominated by the Customer, or if the Customer has not yet paid any invoice issued under Condition 8ei., Bodo may give 3 working days written notice, and the Limit for causes of action arising after the giving of the Customer’s notice under 8ei shall be £100 sterling per tonne weight of the Goods. 

iii. Unless and until a higher Limit has been fixed under Condition 8ei and continues in effect, the Limit shall be £100 sterling per tonne. 

iv. Where Loss does not relate directly to Goods (for example alleged negligent advice or data irregularities) the Limit applicable shall be £1000 per incident or series of connected incidents.

9. Confidentiality

During the Agreement, a party (“Disclosing Party”) may disclose certain Confidential Information (defined below) to the other party (“Receiving Party”) to permit the Receiving Party to perform its obligations under the Agreement. Except as required by applicable law, the Receiving Party agrees that (a) it will use Confidential Information of the Disclosing Party solely for the purpose of performing its obligations under the Agreement and (b) it will not disclose the Confidential Information of the Disclosing Party to any third party other than the Receiving Party's employees or agents, on a need-to-know basis, who are bound by obligations of nondisclosure and restricted use at least as strict as those contained in this Agreement, provided that Receiving Party remains liable for any breach of the confidentiality provisions of the Agreement by its employees or agents. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information, but in no event using less than a reasonable standard of care. In the event Receiving Party receives a subpoena or other administrative or judicial demand for any of the Disclosing Party’s Confidential Information, then, to the extent is not prohibited by law, the Receiving Party will give the Disclosing Party prompt written notice of such subpoena or demand and allow Disclosing Party to assert any available defenses to disclosure. Upon request by the Disclosing Party, the Receiving Party will return or destroy all copies of any Confidential Information of the Disclosing Party. Confidential Information of the Disclosing Party will at all times remain the property of that Disclosing Party. The provisions of this clause will expire three years after the expiration or termination of the Agreement, except with respect to Confidential Information that constitutes “trade secrets” under applicable law for which this Clause will survive indefinitely.  Brand hereby agrees that Bodo may use Brand’s name and logos for marketing or promotional purposes on the Bodo website and promotional materials.

10.  Data and Data Protection

 

a. You are solely responsible for the accuracy of shipping addresses provided to Bodo. Brand agrees that we have no obligation to verify any shipping addresses provided by Brand.

 

b. If Bodo discovers an address to be inaccurate or incomplete, Brand will cover any additional fees imposed on Bodo by any third-party carrier or if Bodo discovers the error prior to dispatching, then Bodo shall not be liable for any failure or delay in respect of such Product delivery.

c. For the purposes of applicable data protection legislation (including the Data Protection Act 2018 and UK and EU GDPR) (“Data Protection Laws”), we are both joint controllers of personal data relating to Customer’s delivery details (“Shared Data”). You and we shall only process such Shared Data solely to the extent, and for such period, as is necessary for the purposes of fulfilling the obligations of this Agreement (“Agreed Purpose”).

 

d. Brand is responsible for ensuring the necessary rights and notices are in place to enable lawful transfer of the Shared Data to you for the duration and purposes of this Agreement.

 

e. You and we agree to:

 

(i) not disclose or allow access to the Shared Data to anyone other than to people within each organisation who need access to carry out the Agreed Purpose;

 

(ii) ensure that all staff are subject to written contractual obligations concerning the Shared Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;

 

(iii) not transfer any Shared Data received outside the place of establishment unless the transferor complies with the provisions of Data Protection Laws in ensuring the transfer is to a country providing adequate protection pursuant to such legislation or there are appropriate safeguards in place as defined in such legislation;

 

(iv) use processors of Shared Data solely to fulfil the obligations under this Agreement as long as there is a written agreement with such processor that includes the terms set out in this clause 10. A party  will promptly give the other a list of all such processors if asked;

 

(v) assist the other in complying with all applicable requirements of the Data Protection Laws (with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities), in particular, promptly informing the other party about the receipt of any data subject request prior to responding and providing the other party with reasonable assistance in complying with any data subject request;

 

(vi) notify the other party without undue delay on becoming aware of any breach of the Data Protection Laws; and

 

(vii) at the written direction of the discloser, delete or return such Shared Data and copies thereof to the discloser (and on termination of this Agreement) unless required by law to store the Shared Data.

 

f. You and we shall ensure the implementation of appropriate technical and organizational measures within your and our systems and equipment in accordance with Data Protection Laws, and provide evidence of such measures to the other promptly after written request. 

 

g. For information as to how we treat your personal data, please refer to the Privacy Policy.

11.  Miscellaneous


This Agreement contains the entire understanding of the parties regarding your use of the Bodo Services, and supersedes all prior and related contemporaneous agreements and understandings. Each party has certain rights under applicable laws that cannot be limited by this Agreement or any contract; this Agreement will not restrict those rights. If a party breaches this Agreement, and the other party does not take immediate action in response to such breach, the nonbreaching party is not waiving any rights they may have, including the right to take action in the future. If a portion of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will remain in effect. You may not assign, convey, delegate, lease, sublet, sublicense or otherwise transfer in any manner this Agreement, or any of your rights, remedies or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without our prior written consent, and any purported assignment or transfer by you in violation of this provision is void. No third party (except, where applicable, the permitted assign of a party to this Agreement) is entitled to the benefit of this Agreement and the Contracts (Rights of Third Parties) Act 1999 shall not apply. This Agreement will be governed by the laws of England and the parties agree to the exclusive jurisdiction of the courts of England. This Agreement may be executed in counterparts, each of which is an original, and all of which together constitute one and the same instrument. Electronic, PDF, and facsimile signatures will be deemed originals for all purposes.

12.  Force Majeure

a. A party shall have no liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations due to a  Force  Majeure  Event, provided that such party invoking this clause notifies the other party in writing within 5 days of such Force Majeure Event with information relating to such Force Majeure Event and its expected duration, and notifies the other party when such Force Majeure Event has ended. 

b. A Force Majeure Event means acts, events, omissions or accidents beyond a party’s reasonable control, including, without limitation, strikes, lock-outs, epidemics, industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm.

13.  Definitions

“Confidential Information” means information or materials that: (i) are disclosed in writing or orally and are either marked or identified as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (ii) the receiving party knows or has reason to know, by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing, product and financial information, in any form or format; provided, however, that Confidential Information does not include information that: (1) is in or enters the public domain through no act or omission of the receiving party; (2) a party lawfully received from a third party without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (3) a party knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or 4) a party independently developed without use of, or access to, any Confidential Information.

“Warehouse” means the multi-shelf facilities operated by us or our affiliates where we permit you to store your Products.

“Products” means the products that you store at our Warehouse(s) which you may instruct us to deliver to Customers subject to the Agreement. 

“Bodo Services” means the storage, fulfilment, and processing services described in this Agreement.

“Your IP” means your name, trademark, other identifying indicia, your Product descriptions and pictures. 

“Customer” means a third party who has entered into a contract with Brand for the purchase of a Product, and in respect of whom, Brand may direct Bodo to deliver such Product.

“Fees” means the Basic Platform Fee,  Additional Storage Fee, Transaction Fee, and any other fees or charges payable by Brand under this Agreement.

Exhibit 1

                                                                       Transaction Fee                Cost

                                                                       Standard Delivery Fee       £10 per order*        

                                                                       Expedited Delivery Fee     £12 per order*        

* Inclusive of picking, packing and packaging fees