Standard Terms of Business
Cloud Retail LTD (trading as Native Commerce)
1. Interpretation
1.1 Interpretation
These standard terms (“Standard Terms”) govern the relationship between Cloud Retail Ltd (trading as Native Commerce) and the Client. These Standard Terms, together with each Order Form and any schedule, data processing agreement or service level agreement referred to in an Order Form, form the agreement between the parties (the "Agreement"). In these Standard Terms, “we” or “us” refers to Cloud Retail Ltd (trading as Native Commerce) providing services for any specific matter.
1.2 Definitions
For the purposes of these Standard Terms:
a) References to “Native Commerce” shall be understood as a trading name used by Cloud Retail Ltd;
b) No separate legal entity named “Native Commerce” exists;
c) All obligations, rights, liabilities, and benefits arising under this Agreement are held by Cloud Retail Ltd, regardless of whether the brand name “Native Commerce” is used in documentation, communication, or marketing materials.
d) “Background IP” means the Platform, software, source code, APIs, tools, integrations, templates, methodologies, know-how and other materials, technology and components owned or developed by us independently of the Services or the Client’s specific requirements, including any modifications, enhancements and improvements thereto.
e) “Bespoke Deliverables” means all bespoke developments, customization, designs, documentation and other deliverables specifically created by us for the Client under the Agreement and identified as deliverables in the applicable Order Form.
f) "Business Day" means a day other than a Saturday, Sunday or public holiday in England;
g) "Client Data" means all data (including personal data) input into, uploaded to or generated through the Services by or on behalf of the Client or its customers;
h) “Client Materials” means pre-existing materials, product information, content, branding and data of the Client;
i) "Confidential Information" means all information of a confidential nature disclosed (whether before or after the Effective Date, and in whatever form) by or on behalf of a party, including the terms of the Agreement, pricing, technical information, business plans, Client Data and the Platform;
j) "Data Protection Legislation" means the UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and, where applicable, Regulation (EU) 2016/679 (EU GDPR), in each case as amended or replaced from time to time;
k) “Gross Merchandise Value” or “GMV” means the total monetary value of transactions generated and successfully processed through the Platform during the relevant billing period, calculated on a gross basis in accordance with clauses 23.2 and 23.3, including the amounts specified in clause 23.2 and subject only to the exclusions and adjustments expressly set out in clause 23.3. A transaction is “successfully processed” when payment has been authorised and captured or, where payment is taken offline or on delivery, when the order has been confirmed on the Platform.
l) "Order Form" means an order form, proposal or statement of work that references these Standard Terms and is signed by both parties;
m) "Platform" means our e-commerce software platform, together with associated applications, APIs, integrations and documentation made available as part of the Services;
n) "Services" means the services described in an Order Form, which may include access to the Platform, setup and implementation, and technical support, and "Service" shall be construed accordingly;
o) "SaaS" means the service model in which we host the Platform, and "On-Premises" means the service model in which the Platform is deployed in an environment controlled by or on behalf of the Client (the "Dedicated Environment"); and
n) the words "including", "include" and "in particular" are illustrative and do not limit the words that precede them.
2. The Service
2.1 We shall provide the Services specified in the applicable Order Form, subject to these Standard Terms. Each Order Form and any schedules, appendices, annexes or other documents incorporated into or expressly referenced in the Agreement, including any Data Processing Agreement (DPA), shall form part of the Agreement. In the event of any inconsistency, the Order Form shall prevail to the extent of that inconsistency, provided that any express amendment to these Standard Terms is clearly identified in the Order Form.
2.2 We may engage subcontractors in providing the Services and remain responsible for their performance under this Agreement. Where subcontractors process personal data on our behalf, the applicable data processing terms shall govern their appointment and access.
3. Commencement & Duration
3.1 The Agreement commences on the date the Order Form is signed by both parties (the “Effective Date”), unless another date is expressly specified in the Order Form. The initial term is specified in the Order Form. Unless otherwise stated there, the Agreement automatically renews for successive periods equal to the initial term unless either party gives written notice at least three months before the end of the then-current term. We may increase the fees with effect from the start of any renewal term by giving the Client written notice at least four months before the end of the then-current term.
4. Setup & Installation
4.1 We shall perform the setup, configuration and implementation of the Services described in the Order Form. Implementation shall commence following receipt of the applicable setup fee and the information, access, approvals and cooperation reasonably required from the Client. Any target delivery date is an estimate unless expressly agreed as binding in the Order Form. We shall not be responsible for delay caused by the Client, its suppliers or circumstances beyond our reasonable control. Setup fees are non-refundable once implementation has commenced.
4.2 The Client shall promptly provide the information, access, decisions, approvals, personnel and reasonable cooperation required for implementation. Delays in doing so may require a corresponding adjustment to the implementation timetable and any agreed additional work shall be subject to written agreement on fees.
4.3 The Client shall ensure their workstation and IT facilities, including internet speed, are compatible with the requirements of the setup and installation.
4.4 Changes to the agreed implementation scope, integrations, customisations or delivery timetable shall be documented and may result in additional charges and revised target dates, subject to written agreement.
5. Data Storage & Handling
5.1 Each party shall comply with the Data Protection Legislation in connection with personal data processed under the Agreement. Where we process personal data on the Client’s behalf, the respective roles, responsibilities and obligations of the parties as controller and processor, together with the specific terms governing such processing, shall be set out in a separate Data Processing Agreement (“DPA”), which shall form part of the Agreement and comply with the requirements of Article 28 UK GDPR, where applicable.
5.2 Client Data shall be hosted in the environment and location specified in the Order Form or applicable technical documentation, subject to any agreed data processing terms. We shall implement appropriate technical and organisational security measures.
5.3 Access to Client Data by our personnel and authorised subcontractors shall be limited to what is reasonably necessary to provide, secure and support the Services, subject to confidentiality and applicable data protection obligations.
6. Intellectual Property
6.1. Background Intellectual Property and Client Materials
We and our licensors retain all rights, title and interest in and to the Background IP (the “Background IP”), excluding Client Materials and Bespoke Deliverables (as defined below).
The Client retains all rights, title and interest in and to its Client Materials. The Client grants us a non-exclusive licence to use the Client Materials solely to the extent necessary to perform the Agreement, including the right to sub-license such use to our subcontractors for that purpose.
6.2. Bespoke Deliverables
Upon payment in full of all fees due for the relevant Bespoke Deliverables (the “Bespoke Deliverables”), can be assigned to the Client, together with all intellectual property rights subsisting therein to the extent such rights are legally assignable in accordance with the Agreement and the applicable Order Form.
For the avoidance of doubt, the Bespoke Deliverables do not include any Background IP incorporated into, used in or necessary for the operation of the Bespoke Deliverables. Ownership of the Background IP shall remain with us or our licensors, subject to Clause 6.3.
6.3. Licence to Background IP and Other Components
To the extent that any Background IP, software, tools, libraries, modules or other components owned or licensed by us are incorporated into, supplied with or necessary to use the Bespoke Deliverables, and the Client reasonably requires continued use of such components following expiry or termination of the Agreement, we shall grant, or procure the grant of, a non-exclusive licence to the Client to use such components for the purpose of using and exploiting the relevant Bespoke Deliverables.
The scope, duration, territory, permitted uses, sublicensing rights and any applicable fees for such licence may be agreed separately in writing by the parties. Unless otherwise agreed in writing, no ownership of such Background IP or other components shall transfer to the Client.
6.4. Aggregated and Anonymised Data
We may collect and use aggregated and anonymised data derived from the use of the Services, provided that such data does not identify the Client, its customers or any individual, to operate, maintain, improve and develop our services and for benchmarking purposes, during and after the term of the Agreement.
6.5. Feedback
If the Client provides suggestions or feedback about the Services, we may use such suggestions or feedback without restriction or obligation to the Client, provided that such use does not disclose the Client’s Confidential Information.
7. Territorial Scope
7.1 Our services may only be used in the geographical area stipulated in the Order Form.
7.2 The Client shall comply with all applicable export control and sanctions laws and shall not use, or permit the Services to be used, in any sanctioned territory, by or for the benefit of any sanctioned person, or in breach of those laws.
8. Responsibility to Backup Data
8.1 The Client shall be responsible for data backup for the On-Premises service model. The data shall be backed up in accordance with their own security policy on the Dedicated Environment.
8.2 For the SaaS service model, we shall perform backups in accordance with the backup arrangements expressly specified in the Order Form or applicable service description. Backups are not a substitute for the Client maintaining copies of data it reasonably needs for its business continuity.
8.3 Subject to clause 18.1, in the event of any loss or corruption of Client Data, our sole obligation shall be to use reasonable endeavours to restore the lost or corrupted Client Data from the latest backup maintained by us under clause 8.2.
9. Technical Support
9.1 We shall provide standard technical support during the support hours specified in the Order Form. Unless otherwise agreed, those hours are 9.00 am to 5.00 pm UK time on business days in England, excluding public holidays.
9.2 We shall use reasonable endeavours to respond to support requests within the response period specified in the Order Form. A response time is not a guaranteed resolution time.
9.3 Resolution times depend on the nature, severity and reproducibility of the issue, third-party dependencies and the Client's cooperation. Any binding service levels or remedies must be expressly agreed in writing.
10. User Licence
10.1 Subject to these terms, we provide the Client with a non-exclusive and non-transferable right to use our services during the term of the Agreement. The Client may not sell, lend, sub-license, assign or otherwise make available the right to use our software to any third party.
10.2 The right conferred in 10.1 is for the sole purpose of enabling the Client to use our services to conduct their business. All materials, software, and know-how received by the Client under the Agreement can be used for this purpose only.
10.3 The number of user licences will be stated in the Order Form. If the number of authorised users exceeds the number of licences purchased, we may invoice the Client for the excess at the rates in the Order Form (or, if none, our then-current list prices) from the date the excess began.
10.4 Authorised users may access the Services using compatible devices, subject to the Client maintaining appropriate access controls and ensuring that credentials are not shared with unauthorised persons.
10.5 The Client shall not reverse engineer, decompile, resell, sublicense or provide the Platform to third parties except to the extent expressly permitted by law or the Order Form.
10.6 The Client shall not use the Services:
(a) to sell, advertise or promote any goods or services that are unlawful;
(b) to upload or transmit any material that is defamatory, infringing, offensive or contains malicious code;
or
(c) otherwise in breach of any applicable law, including consumer protection, product safety, e-commerce, advertising and payment card industry (PCI DSS) requirements.
11. Confidentiality
11.1 Each party (the Receiving Party) agrees that it shall at all times (both during the term of this Agreement and after its termination) keep confidential, and shall not without the prior written consent of the other party (the Disclosing Party) use or disclose to any third party any Confidential Information of the Disclosing Party, unless such information:
a) was public knowledge or already known to the Receiving Party at the time of disclosure;
b) subsequently becomes public knowledge other than by breach of this Agreement;
c) was lawfully received from a third party without a duty of confidence; or
d) was independently developed without use of the Disclosing Party’s Confidential Information.
11.2 The Receiving Party may use the Disclosing Party’s Confidential Information in the performance of its obligations and the exercise of its rights under this Agreement.
11.3 The Receiving Party may disclose the Disclosing Party’s Confidential Information:
a) to its and its group companies' employees, officers, contractors, professional advisers and insurers who need to know it for the purposes of the Agreement; or
b) where necessary to comply with law, regulation, or order of any governmental or regulatory body, provided that, where lawful, the Receiving Party gives the Disclosing Party prompt notice of the disclosure.
11.4 The Receiving Party shall ensure that disclosures under clause 11.3(a) are made only on a need-to-know basis and subject to confidentiality obligations no less protective than those in this clause, and shall be responsible for any breach of this clause by any person to whom it discloses Confidential Information.
11.5 On termination or expiry, or on request, the Receiving Party shall promptly return or destroy the Disclosing Party's Confidential Information, save to the extent it is required to retain it by law or it is held in routine back-up systems (which shall remain subject to this clause).
12. Marketing and Publicity
12.1 By signing this Agreement, the Client grants Cloud Retail Ltd a non-exclusive, royalty-free licence to use their name, brand and logo, and publicly available information about their use of the Services, to identify the Client as a customer for marketing and promotional purposes (including on Native Commerce's website, social-media platforms, brochures and other marketing materials), in accordance with any reasonable brand guidelines the Client provides to us. Case studies, testimonials and quotations shall require their prior written approval.
12.2 the Client has the right to terminate this licence at any time by providing written notice. Upon receipt of such notice, Cloud Retail Ltd shall cease using the Client’s name, brand, logo, or any publicly available information in its marketing materials within 30 days, provided that we shall not be required to recall printed materials already distributed, but shall remove references from our website and other online channels under our control.
12.3 This clause does not affect any other rights or obligations regarding Confidential Information under this Agreement.
13. Suspension or Modification of the Service
13.1 We may suspend the Service, in whole or in part, if:
(a) the Client fails to pay any amount due under this Agreement or any Order Form for more than seven (7) Calendar Days after its due date and fails to pay the overdue amount in full in cleared funds within seven (7) Calendar Days after receipt of a written notice from us specifying the overdue amount and demanding payment. If the Client fails to make such payment within that period, we may suspend the Service, in whole or in part, without further notice;
(b) the Client breaches any provision of this Agreement, including any restrictions or requirements relating to the territory in which the Client is authorised to access or use the Service, or in which the Service may be offered, marketed, distributed or made available to end users;
(c) the Client uses, or permits the use of, the Service in breach of clause 10.6, outside the territory authorised under this Agreement or the applicable Order Form, or in any other manner that may expose us, the Platform, our other customers or any third party to security, legal, regulatory, operational or commercial risks;
(d) suspension is reasonably necessary to protect the security, integrity, availability or proper operation of the Service or the Platform, including to prevent unauthorised access, misuse, fraud or harm to us, the Platform, our other customers or any third party;
(e) suspension is required by applicable law or regulation, a binding direction of a competent authority, or is reasonably necessary to enable us to comply with applicable law or regulation; or
(f) suspension is reasonably necessary for maintenance, updates, repairs or other technical or operational reasons, including circumstances beyond our reasonable control.
13.2 We may suspend the Service immediately, without prior notice, where we reasonably consider that immediate suspension is necessary to address an actual or imminent security threat, prevent unlawful use of the Service, address a breach of territorial restrictions that may expose us to legal or regulatory risk, comply with applicable law or a binding direction of a competent authority, or prevent material harm to us, the Platform, our other customers or any third party. In other cases, where reasonably practicable, we may provide the Client with prior notice of the suspension.
13.3 Any suspension of the Service due to non-payment shall not:
a) relieve the Client of their obligation to pay any amounts due under this Agreement or any Order Form;
b) prevent fees and other charges from continuing to accrue during the period of suspension; or
c) affect any other rights or remedies available to us under this Agreement.
13.4 Where the Service has been suspended due to non-payment, we shall not be required to restore the Service until all overdue amounts, including any applicable interest and recovery costs, have been received by us in cleared funds.
13.5 To the extent permitted by law, we shall not be liable for any loss, damage, business interruption, loss of revenue, loss of profits or other consequences arising from a suspension carried out in accordance with this clause.
13.6 Suspension of the Service does not constitute termination of this Agreement or any Order Form. The Agreement and applicable Order Forms shall remain in force during the period of suspension unless terminated in accordance with clause 16.
13.7 We may modify or temporarily suspend the Service where reasonably necessary for maintenance, security, technical or operational reasons. Where reasonably practicable, we will provide advance notice of planned maintenance in order to minimise disruption.
14. Force Majeure
14.1 Neither party shall be liable for delay or failure to perform obligations (other than payment obligations) caused by events beyond its reasonable control (including acts of God, epidemic, war, terrorism, riot, cyber-attack (other than one resulting from the affected party's failure to maintain appropriate security measures), failure of public utilities or telecommunications networks, failure of third-party hosting, cloud or payment providers, and acts of government), provided that it promptly notifies the other party and takes reasonable steps to mitigate the effects. If the event continues for more than 60 consecutive days, either party may terminate the affected Services on written notice.
15. Acknowledgement & Warranties
15.1 We warrant that the Services will be provided with reasonable care and skill. Except as expressly set out in the Agreement, and to the fullest extent permitted by law, all other warranties and conditions are excluded.
15.2 The Client acknowledges that:
(a) it is responsible for assessing the suitability of the Services for its business requirements;
(b) the Services may be subject to maintenance and interruptions;
(c) no uninterrupted or error-free operation is guaranteed unless expressly stated in an applicable service level agreement;
(d) the Client is responsible for its authorised users, products, prices, consumer-facing obligations and lawful use of the Services;
(e) third-party services remain subject to their own terms and availability;
(f) it has conducted its own due diligence regarding the fitness and suitability of the Services; and
(g) it will use the Services only for lawful purposes and in accordance with clause 10.6, and will not use them in any manner likely to bring us into disrepute.
15.3 The Client warrants that: (a) it has full power and authority to enter into the Agreement; (b) it owns or is licensed to use the Client Materials and Client Data, and their use by us in accordance with the Agreement will not infringe the rights of any third party; and (c) it will comply with all laws applicable to its business, products and sales to its customers, including consumer protection, product safety and data protection law.
15.4 The Client shall indemnify us against all losses, damages, costs (including reasonable legal fees) and liabilities arising from any claim by a third party (including the Client's customers or any regulator) arising out of the Client Materials, the Client's products or services, or the Client's breach of clause 10.5, 10.6 or 15.3.
16. Termination
16.1 Either party may exercise any express termination right in the Order Form or these Standard Terms. Non-payment may also give rise to suspension under clause 13 and termination where it constitutes a material breach that remains unremedied following the applicable notice period.
16.2 Each Order Form continues for its term (including any renewals under clause 3.1), and these Standard Terms continue to apply for as long as any Order Form remains in force, unless terminated earlier in accordance with the Agreement.
16.3 Either party may terminate the affected Order Form or, where the relevant breach affects the Agreement as a whole, the Agreement by giving written notice to the other party if:
(a) the other party commits a material breach of the Agreement or the affected Order Form and fails to remedy that breach within thirty (30) days after receiving written notice specifying the breach and requiring it to be remedied; or
(b) the other party commits a material breach that is incapable of remedy, in which case the non-breaching party may terminate the affected Order Form or, where the breach affects the Agreement as a whole, the Agreement, with immediate effect by written notice, subject to applicable law.
16.4 Either party may terminate the Agreement with immediate effect by written notice if the other party suspends or threatens to suspend payment of its debts, is unable to pay its debts as they fall due, makes any composition or arrangement with its creditors, has an administrator, receiver or liquidator appointed, passes a resolution for winding up (other than for a solvent reorganisation), or suffers any analogous event in any jurisdiction, in each case to the extent permitted by law.
16.5 Without affecting clause 16.3, we may terminate the Agreement or any Order Form by written notice if any undisputed amount remains unpaid for more than 30 days after its due date.
16.6 If we terminate the Agreement or an Order Form under clause 16.3 or 16.5, then, without prejudice to our other rights and remedies:
(a) all fees and charges accrued up to the date of termination, including transaction fees on GMV processed up to that date, shall become immediately due and payable;
and
(b) the Client shall pay, as compensation for the loss of the bargain and not as a penalty, an amount equal to the fixed subscription and licence fees that would have been payable for the lesser of (i) the remainder of the then-current term of the affected Order Form(s) and (ii) 12 months, reduced by [10]% to reflect costs we will save and early receipt of payment.
No amount shall be payable under clause 16.6(b) in respect of transaction fees or other variable charges.
17. Consequences of Termination
17.1 On expiry or termination, the Client's right to access and use the terminated Services ceases, subject to any expressly agreed transition period. Termination shall not relieve either party of obligations accrued before termination.
17.2 Provisions which by their nature are intended to survive expiry or termination shall survive, including accrued payment obligations, intellectual property rights, confidentiality, data protection obligations for as long as applicable, limitations of liability, dispute resolution and provisions governing the consequences of termination.
17.3 For 30 days after termination or expiry, and provided all undisputed fees have been paid, we shall make the Client Data available for export in a standard machine-readable format. After that period we may delete Client Data, save to the extent we are required by law to retain it. Personal data shall be returned or deleted in accordance with the data processing agreement.
18. Limitation of Liability
18.1 Nothing in the Agreement limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability which cannot lawfully be excluded or limited.
18.2 Subject to clause 18.1, our aggregate liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the total fees paid or payable under the affected Order Form during the 12 months immediately preceding the event giving rise to the claim. This cap is subject to any different limit expressly agreed in the Order Form.
18.3 Subject to clause 18.1, we shall not be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any: (a) loss of profits, revenue, sales or business; (b) loss of anticipated savings; (c) loss of or damage to goodwill or reputation; (d) loss, corruption or destruction of data, save as provided in clause 8.3; or (e) indirect or consequential loss, in each case whether direct or indirect and whether or not foreseeable.
18.4 Nothing in this clause 18 limits the Client's obligation to pay the fees or its liability under clause 15.4.
19. Entire Agreement
19.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous drafts, agreements, arrangements, and understandings, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
19.2 Nothing in this clause excludes or limits liability for fraud or fraudulent misrepresentation.
20. Severance
20.1 If any court or competent authority finds that any provision within these Standard Terms or the Order Form is invalid, illegal, or unenforceable, that provision shall, to the extent necessary, be deemed deleted, without affecting the validity of the remaining provisions.
20.2 If any provision would be valid and enforceable if some part were deleted, the provision shall apply with the minimum modification necessary to make it valid and enforceable.
21. Notices
21.1 Any formal notice under the Agreement shall be in writing and delivered by hand, pre-paid first-class or recorded post, courier or email to the relevant notice address specified in the Order Form or subsequently notified in writing. Email notices shall be deemed received on the next Business Day after transmission unless a delivery failure notification is received; notices of legal proceedings must be served as required by applicable procedural rules.
22. Taxes and Withholding Taxes.
22.1 All fees, charges and other amounts payable under this Agreement or any Order Form are exclusive of VAT and any other applicable sales, use, goods and services, withholding or similar taxes, duties, levies or governmental charges, unless expressly stated otherwise.
22.2 The Client shall be responsible for all taxes, duties, levies and similar governmental charges arising in connection with payments under this Agreement, other than taxes imposed on Cloud Retail Ltd's net income.
22.3 All amounts payable to Cloud Retail Ltd shall be paid in full, free and clear of, and without any deduction or withholding for or on account of, any tax, unless such deduction or withholding is required by applicable law.
22.4 If the Client is required by applicable law to make any deduction or withholding from a payment due to Cloud Retail Ltd, the Client shall increase the amount payable to the extent necessary to ensure that, after the required deduction or withholding has been made, Cloud Retail Ltd receives a net amount equal to the amount it would have received had no such deduction or withholding been required.
22.5 Where any deduction or withholding is required by law, the Client shall:
a) apply any available exemption or reduced rate of withholding under an applicable double taxation treaty or other applicable law;
b) promptly pay the amount deducted or withheld to the relevant tax authority; and
c) provide Cloud Retail Ltd with an official receipt, certificate or other reasonable evidence confirming the amount withheld and its payment to the relevant tax authority.
22.6 Cloud Retail Ltd shall, upon reasonable request, provide such tax residency certificates or other documentation reasonably available to it as may be required for the Client to obtain an available exemption from, or reduction in, withholding tax.
23. Transaction Fees and Gross Merchandise Value (GMV)
23.1 Where transaction fees apply under an Order Form, the Client shall pay the percentage of GMV specified in that Order Form.
23.2 GMV shall include the total amount charged to customers in respect of transactions successfully processed through the Platform, calculated after applying any discounts, discount codes, vouchers or promotional offers applied at the time of the order, including:
(a) the value of the products and services sold;
(b) delivery and shipping charges;
(c) service charges and any other amounts charged to customers in connection with those transactions; and
(d) applicable VAT, sales taxes and other transaction taxes.
23.3 GMV shall not be reduced by any refunds, returns, cancellations, chargebacks, payment processing fees, commissions, costs or other amounts, except to the extent that a specific deduction or adjustment is expressly agreed in writing by the parties or expressly provided for in this Agreement.
23.4 Transaction fees shall be calculated monthly using Platform transaction records. Subsequent refunds, returns or cancellations do not retrospectively reduce GMV already recorded. Platform transaction records shall be conclusive evidence of GMV in the absence of manifest error. For the On-Premise service model, the Client shall provide a monthly GMV report in the form we reasonably require within 5 Business Days after the end of each month.
23.5 Client shall ensure that all transaction information provided to or processed through the Platform is accurate and complete, and shall not intentionally manipulate, omit, suppress or misrepresent transaction data for the purpose of reducing the transaction fees payable. We may request reasonable supporting transaction records to verify GMV calculations, and the Client shall provide them within 10 Business Days of our request. In addition, on reasonable notice, and not more than once in any 12-month period unless a discrepancy has previously been identified, we or our independent auditors may inspect the Client's records relevant to GMV. If an underpayment is identified, the Client shall promptly pay the shortfall with interest under clause 24 and, where the underpayment exceeds 5%, the reasonable costs of the audit.
24. Payment and Late Payment Interest
24.1 We shall invoice the fees at the times set out in the Order Form or, if none are stated: setup fees on signature of the Order Form; recurring subscription and licence fees monthly in advance; customisation and other professional services fees monthly in arrears for the work performed in the previous month, at the rates set out in the Order Form or otherwise agreed in writing; and transaction fees monthly in arrears based on the GMV for the previous month.
24.2 The Client shall pay each invoice within 7 days of the invoice date, in the currency stated in the invoice to the bank account nominated by us.
24.3 The Client shall pay all amounts in full without any set-off, counterclaim or deduction (other than as required by law and dealt with under clause 22). If the Client disputes an invoice in good faith, it shall notify us in writing with reasons within 5 days of the invoice date and shall pay the undisputed portion by the due date.
24.4 In the event of late payment, the Client shall be liable to pay interest on the overdue amount at 4% per annum above the Bank of England's base rate from time to time, calculated daily from the due date until actual payment. Interest shall accrue automatically without formal demand, and any additional costs incurred in recovering the overdue amount shall also be payable.
24.5 Where any amount invoiced under the Agreement (including licence and subscription fees, setup and customisation fees, transaction and per order fees) is calculated, quoted or incurred in a currency other than the currency of the Order Form, the amount shall be converted at the XE mid-market exchange rate (as published at www.xe.com) on the date the relevant invoice is raised.
25. Waiver
25.1 No failure or delay by either party to exercise any right or remedy shall constitute a waiver, nor preclude or restrict further exercise of that or any other right or remedy.
26. Assignment
26.1 Neither party may assign or transfer the Agreement without the other's prior written consent, not to be unreasonably withheld or delayed, except that we may assign it to an affiliate or in connection with a merger, reorganisation or sale of substantially all relevant business assets, provided the assignee assumes our obligations. We may subcontract performance while remaining responsible for our subcontractors, subject to applicable data protection requirements.
27. Variation
27.1 No variation of an existing Agreement shall be effective unless recorded in writing and signed by both parties or their authorised representatives. We may publish updated Standard Terms for future Order Forms; publication alone does not amend an existing Agreement unless the parties have expressly agreed an applicable variation mechanism.
28. Third-Party Rights
28.1 No person other than a party to this Agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
29. Governing Law & Jurisdiction
29.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.
29.2 Each party shall comply with the Bribery Act 2010 and all applicable anti-corruption laws in connection with the Agreement.
29.3 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement.
30. General
30.1 Nothing in the Agreement creates a partnership, joint venture or agency between the parties.
30.2 The Agreement and any Order Form may be executed in any number of counterparts and signed electronically, each of which shall constitute an original and which together shall constitute one agreement.
30.3 During the term of the Agreement and for 12 months afterwards, neither party shall, without the other's prior written consent, solicit or employ any employee of the other party who was materially involved in the provision or receipt of the Services. This does not restrict general recruitment advertising not specifically targeted at the other party's staff.
© 2026. Cloud Retail Ltd (trading as Native Commerce). All rights reserved. Version of Standard Terms of Business.