Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 These Terms and Conditions apply to the Agreement between:
1.1.1 you, the customer named on the Order Form; and
1.1.2 us, Qlic Limited (‘Qlic’), a company registered in England and Wales under company number 04587391 for the service set out in the Order Form.
1.2 The Agreement between you and us is made up of:
1.2.1 These standard Qlic Terms and Conditions;
1.2.2 Any Service Specific Terms contained within the Order Form which are incorporated into these Terms and Conditions;
1.2.3 Any Additional Terms which apply as set out in clauses 4 to 8 (inclusive); and
1.2.4 The other policies or agreements which we provide to you prior to or during the Period of Service.
1.3 The service will start on the Commencement Date which is usually the first billing date.
1.4 Where the following words are capitalised in the Agreement, they have the meanings set out below:
Additional Support: has the meaning set out in clause 11.6.
Additional Terms: means the terms set out in clauses 4 to 5 (inclusive), if applicable.
Agreement: has the meaning set out in clause 1.2.
Agreement Period: the period starting on the Commencement Date and each anniversary of it.
Authorised Representatives: the representatives designated by you and us.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Change Control Procedure: the procedure to modify the scope of a project or ticket as set out in clause 9.
Change Order: has the meaning set out in clause 9.3.
Change Request: has the meaning set out in clause 9.1.
Client IT: means your IT infrastructure, computers, laptops, servers and associated peripheral equipment.
Cloud Services: your order for the provision of cloud services, as set out in the Order Form.
Commencement Date: has the meaning given in clause 2.2.
Completion Notice: has the meaning set out in clause 7.3.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Default: has the meaning given to it in clause 10.2.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.
Deliverables: the deliverables set out in the Order Form produced by us for you.
Delivery Location: the address you specify in the Order Form or another address which you notify us of in writing for the purposes of any delivery under this Agreement.
Employee: as defined in section 230 of the Employment Rights Act 1996.
Equipment: the equipment specified in the Order Form and any other equipment we provide to you during or prior to the Period of Service.
Force Majeure Event: has the meaning given to it in clause 19.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Initial Commitment Period: means the term of this Agreement in respect of each service supplied as set out on the Order Form commencing on the Commencement Date.
Installation Date: is the date we agree to install the Services and deliver the Equipment to your Premises.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance, Equipment and Installation Services: your Order for the provision of maintenance, equipment and installation services, as set out in the Order Form.
Network Services: your Order for the provision of Network Services, as set out in the Order Form.
Order: your order for the supply of Services and/or Equipment, as set out [in the Order Form.
Order Form: means the form which sets out the Services which we will provide to you.
Our Materials: has the meaning given in clause 10.1.8.
Period of Service: means the Initial Commitment Period and any further or Extended Term during which we provide Services to you.
Premises: the address or addresses specified on the Order Form or any other address you notify us of in writing.
Regulatory Change: any change in regulations or law, whether domestic or otherwise, which affect us or this Agreement.
Remote Access Control: means any software used by Qlic for the purposes of administering, supporting or training in the delivery of the support agreement or associated services.
Required Service Level: your service requirements, as agreed by us.
Service Equipment: means the equipment (other than the Equipment ordered) we provide to allow you to use the Service.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specific Terms: means the terms incorporated into this Agreement which are set out in the Order Form. In the event of any conflict between term or terms in this Agreement and a Service Specific Term or Terms then the Service Specific Term or Terms shall prevail.
Service Specification: the description or specification for the Services provided in writing by us to you.
Support Fee: means the fee set out in the specification, or as otherwise agreed in writing by us, for the provision of IT support provided by us to you.
Term: means the duration of the agreement between us and you which shall begin on the Commencement Date and continue until terminated in accordance with these Terms and Conditions.
Termination Date: means the date on which the Agreement expires or is terminated by you or us and where the Agreement does not continue into an Extended Term.
Test Period: has the meaning given to it in clause 7.4.
Third Party Apps: has the meaning given to it in clause 7.13.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Web Design Project: the project prepared in relation to the provision of Web Design Services, as set out in the Order Form.
Web Design Fee: the fee charged for the provision of Web Design Services,
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.
(f) A reference to signed or signature includes signatures made electronically or physically
2. BASIS OF AGREEMENT
2.1 The sending of the Order Form constitutes an offer by you to purchase Equipment and/or Services in accordance with this Agreement.
2.2 The Order shall only be deemed to be accepted when we issue written acceptance of the Order at which point and on which date the Agreement shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by us and any illustrations or descriptions of the Services contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4 These Terms and Conditions apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 In the event that any Service Specific Terms stated on the Order Form are incorporated into this Agreement then the Service Specific Terms shall prevail in the event of any conflict.
2.6 Any quotation provided by us to you shall not constitute an offer and is only valid for a period of 28 days from its date of issue after which we reserve the right to amend the quotation.
2.7 You warrant to us that you are entering into this Agreement in the course of your business, trade or profession and solely for that purpose.
3. SUPPLY OF SERVICES
3.1 We shall supply the Services to you in accordance with the Agreement in all material respects.
3.2 If it is specified in the Order Form or otherwise agreed that we will supply any of the Services to which clauses 4 to 8 (inclusive) apply, then the relevant clause or clauses will also be applicable to this Agreement. Where a Change Request is made, clause 9 shall apply to this Agreement.
3.3 We shall use all reasonable endeavours to meet any performance dates for the Services specified in the Agreement, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services save as where it is expressly stated otherwise.
3.4 We reserve the right to amend any Services provided under the Agreement if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
3.5 We warrant to you that the Services will be provided using reasonable care and skill.
3.6 Any equipment connected to or used with the Services must bear the European Consumer Equipment Standards “CE” mark. The equipment must also be used in accordance with all relevant instructions, laws, regulations and safety and security procedures. Equipment not supplied by us will only be supported with our prior written agreement.
3.7 We may need to access your Premises from time to time in relation to the provision of Services under this Agreement. If we do, then we will give you advance notice and provided that appropriate identification is produced you agree to allow us access to your Premises. You must take all such steps as may be necessary to ensure the safety of our representative who visits your Premises.
3.8 You acknowledge that licensed operators provide the Services that are utilised by us and we cannot guarantee that Services will not be interrupted or without error.
3.9 The following Additional Terms shall also apply where it is indicated on the Order Form that you have selected the respective Service/s:
4. SUPPORT SERVICES
4.1 Our support policy is available at https://www.qlicit.com/support-service-level-agreement/
4.2 You must report all Fatal, Severe and Out of Hours faults to us by Telephone without delay.
5. CLOUD SERVICES
5.1 You may cancel your Order for Cloud Services at any time prior to the Commencement Date provided that you do so in writing. We will charge you an administrative fee of £120.00 in addition to any Carrier or other charges or costs incurred in relation to your Order and/or cancellation. You agree that the costs incurred in relation to the cancellation by a Carrier may be high and that it may not be possible for us to provide confirmation of the exact costs in advance.
5.2 It is not possible for us to guarantee that Cloud Services will be without fault or interruption. In the event that there is an interruption or fault you must notify us immediately. We accept no liability for any loss or damage in contract or tort for any acts or omissions by the Carrier.
5.3 If we grant to you a Cloud-Based Licence during the period of the Agreement then upon us ceasing to provide Network Services to you, the Cloud-Based Licence and all rights in it will revert to us.
6. MAINTENANCE, EQUIPMENT AND INSTALLATION SERVICES
6.1 The supply of Equipment pursuant to this clause 6 is conditional upon the availability of the Equipment on or prior to the Installation Date and we reserve the right to vary the Installation Date in the event that the Equipment is not available. For the purposes of this clause 6, time shall not be of the essence and we may vary the Installation Date if it is necessary for us to do so.
6.2 You shall be responsible for checking that all details contained in the Order Form are correct. If any details are incorrect you must notify us immediately.
6.3 We may deliver the Equipment in separate deliveries or on different dates. You must accept all deliveries and, in the event that the Equipment is delivered in more than one delivery, this does not entitle you to terminate the Agreement.
6.4 The Equipment is deemed to be delivered for the purposes of this Agreement at the time it arrives at your Delivery Location. The Equipment shall be deemed to be delivered at the time it arrives and is ready to be unloaded from the delivery vehicle.
6.5 If we have attempted to deliver the Equipment and for any reason which is out of our control the Equipment cannot be delivered then, provided that the circumstances giving rise to the failure of the delivery are within your control, we reserve the right to charge you any reasonable and proper costs we incur as a result of storing the Equipment, redelivering or attempting to redeliver the Equipment.
6.6 You are responsible for checking that the items contained within the delivery are correct and, in the event there are any missing or incorrect items, you must notify us immediately.
6.7 Upon delivery of the Equipment, or deemed delivery pursuant to clause 6.4, you are responsible for insuring the Equipment and risk shall pass to you.
6.8 You must notify our service desk as soon as possible of any fault with the Equipment or any work, repair or maintenance that may be necessary.
6.9 Installation and upgrades of software and/or Equipment carried out pursuant to this clause 6 may cause disruption to your business and, whilst we will use our best endeavours to avoid or minimise disruption, you are responsible for taking steps to accommodate the same.
6.10 Title to the Goods shall not pass to the Customer until we receive payment in full (in cash or cleared funds) for the Equipment in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment subject to our written agreement.
6.11 Until title to the Equipment has passed to you, you shall:
6.11.1 store the Equipment separately from all other goods held by you so that they remain readily identifiable as our property;
6.11.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
6.11.3 maintain the Equipment in satisfactory condition and keep it insured against all risks for their full price from the date of delivery;
6.11.4 notify us immediately if it becomes subject to any of the events listed in clause 15.6; and
6.11.5 give us such information relating to the Equipment as we may require from time to time.
6.12 If before title to the Equipment passes to you, you become subject to any of the events listed in clause 15.6, then, without limiting any other right or remedy we may have we may at any time:
6.12.1 require you to deliver up all Equipment in your possession; and
6.12.2 if you fail to do so promptly, enter your premises in order to recover them.
7. WEB DESIGN
7.1 We own all Intellectual Property Rights relating to the Web Design Project including but not limited to computer programs, source codes, documentation and other material which is developed or prepared by us. This includes but is not limited to work to alter the look, functionality, operation or other facet.
7.2 We grant to you, or shall procure the direct grant to you of, a fully-paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the completed web design project upon receipt by us of the Web Design Fee in full.
7.3 We shall notify you when the Web Design Project is ready for final testing (Completion Notice).
7.4 Within 14 days of receipt by you of the Completion Notice (Test Period) you must carry out testing to ensure that the performance of the website is satisfactory.
7.5 We shall be entitled to a reasonable period of time to rectify any defects or issues identified by you and notified to us within the Test Period. Following any defects being rectified we will issue a further Completion Notice to you.
7.6 in the event that we do not agree that there are any defects or issues or if any defects or issues do not require or warrant rectification then we reserve the right to determine, at our absolute discretion, that the Web Design Project has been completed and accepted in accordance with clause 11.
7.7 The Web Design Project shall be deemed to be completed and accepted by you either on the date you confirm in writing your acceptance to us in writing or following the expiry of the Test Period, whichever is earlier. We will issue a final invoice or invoices upon completion and acceptance by you and you will be obliged to pay the invoice in accordance with clause 11.
7.8 We will charge for any work carried out in respect of the website outside the Test Period in accordance with our price list.
7.9 You will be responsible for the re-registration of domain names including where we have undertaken the initial registration of a domain name unless we agree otherwise in writing.
7.10 You permit us to use your name, reference you as a client and use screen shots or images in relation to any Web Design Project supplied by us on our website or in any of our marketing materials. You grant us a fully paid up, worldwide, non-exclusive, royalty free perpetual and irrevocable licence to do so and we will not be liable for any breach of your Intellectual Property Rights or to make any payment to you in respect of our use. We may also, at our discretion, incorporate our name and website link in your website.
7.11 We accept no liability in relation to loss or damage caused by our servers, associated services, domain registration, DNS, routing, backups or associated services unless we agree otherwise in a Service Level Agreement.
7.12 If we issue you with an account you must maintain the confidentiality of your account details and password and you are responsible for any use of your account details whether authorised or not. We may, at our discretion, cease providing Services, suspend or terminate accounts, refuse or otherwise restrict access to any Services we provide in the event that we have reasonable grounds to believe that the Services are being used in breach of clause 10.1.10.
7.13 We are not liable directly or indirectly for any loss or damage caused by or in connection with any Third party applications (Third Party Apps) which we enable you to install. Any Third Party Apps are used by you in accordance with their own terms of service and privacy policies.
7.14 In order to maintain or enhance the security or performance of your website we may modify its content. For example, we may detect any email addresses and replace them with a script in order to prevent it from being harvested, or the Company may insert code to improve page load performance or to enable a Third Party App. Depending on the features you enable, we may:
7.14.1 intercept requests determined to be threats and present them with a challenge page;
7.14.2 add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page;
7.14.3 add script to your pages to, for example, add services, Apps, or perform additional performance tracking; or
7.14.4 other changes to increase performance or security of your website.
7.15 If you choose to monitor the traffic to certain websites then you must ensure that you comply with clause 13. You agree that we may use this data to improve our service or enable other services such as using visitor traffic logs or data posted through the service to detect threats so as to prevent future attacks
7.16 The purpose of the service provided under this clause 7 is to serve web content, not for the purpose of data storage. Usage of the account primarily for the purposes of online storage, including for the storage or caching of a disproportionate volume of images, movies, audio files or any other non-HTML content, is prohibited. If, at our sole discretion, we determine that it is necessary to suspend or terminate your account due to excessive burden or potential adverse impact on our systems, adverse impact on other customers or users or abuse of the Web Design Service. In that event, we shall not be required to provide prior to you and we shall not be liable for any losses incurred by you.
8. REMOTE ACCESS CONTROL
8.1 If we have remote dial-up or modem access to any part of your equipment in the course of performing our obligations under this Agreement, the following provisions of this clause 8 shall apply.
8.2 We will:
8.2.1 only use a remote access method approved by you, approval not to be unreasonably withheld or delayed; and
8.2.2 provide you with the name of each individual who will have remote access to your equipment and the phone number at which the individual may be reached during dial-in.
8.3 We may record remote access sessions for the purposes of our staff training. The data will be held on secure, encrypted servers and will not be shared with third parties.
9. CHANGE CONTROL
9.1 This clause 9 will apply where you or we make a Change Request. A Change Request is made where you or we make a request to:
9.1.1 change or cease any Service or include additional Services; or
9.1.2 amend the Agreement or any part of the Agreement.
9.2 Any Change Request made by you must be submitted to us using our Change Request Form and submitted to us at the email address specified on the form.
9.3 A Change Request will become a Change Order when agreed in writing and signed by you and us.
9.4 When we submit a Change Request to you we shall provide within 21 days of the date of the request the details of the request, the anticipated impact of the change on the Services, how we intend to implement the change, the service levels, any other anticipated systems or operations which may be affected and any charges or change regarding the Agreement.
9.5 The costs of implementing any change under this clause 9 shall be in accordance with the Service Level Agreement or as otherwise agreed in writing.
9.6 We may charge for any work undertaken by us in reviewing or considering any Change Request made by you provided that we notify you prior to undertaking any such work and you agree to the charges
9.7 This clause 9 does not apply to any changes made by us pursuant to clause 11.9.3.
10.1 You shall:
10.1.1 ensure that the terms and any other information contained in the Order Form are complete and accurate;
10.1.2 co-operate with us in all matters relating to the Services;
10.1.3 provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us to provide the Services;
10.1.4 provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
10.1.5 prepare your premises for the supply of the Services;
10.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
10.1.7 comply with all applicable laws, including health and safety laws;
10.1.8 keep all materials, equipment, documents and other property of the Supplier (Our Materials) at your premises in safe custody at your own risk, maintain the Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation;
10.1.9 agree not to use or allow any other person to use any Equipment or Services we provide to communicate any material that is offensive, abusive, obscene, menacing, illegal or immoral, for hoax calls or spam communications or in any way which might, in our reasonable opinion, damage our reputation in any way;
10.1.10 comply with any Service Specific Terms as set out in the Order Form; and
10.1.11 comply with any policies which we communicate to you. Our current policies are available at https://www.qlicit.com/privacy-policy/ and https://www.qlicit.com/support-service-level-agreement/.
10.2 If our performance of any of our obligations under the Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default):
10.2.1 without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;
10.2.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 10.2; and
10.2.3 you shall reimburse us immediately on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
10.3 You shall notify our service desk as soon as possible of any interruption, fault or error with any of our services in accordance with this Agreement. We shall use reasonable endeavours to rectify any interruption, fault or error in accordance with our policy and time shall not be of the essence. Our response times will be in line with our policy which is available at https://www.qlicit.com/support-service-level-agreement/.
11. CHARGES AND PAYMENT
11.1 The charges shall be calculated in accordance with the Order Form or otherwise agreed in writing.
11.2 Invoices will be rendered on a monthly, quarterly or annual basis and may be payable in arrears or in advance. Payment must be made in accordance with each invoice rendered.
11.3 Our charges must be paid by the methods of payment set out in the relevant invoice or Order Form. We reserve the right to refuse payment by any other method and we may, at our discretion, apply an additional charge for such payments.
11.4 You must pay any deposit specified in any invoice or in the Order Form to us within 15 [fifteen] days of the date of the invoice or the date stated on the Order Form. Failure to do so may result in a delay to the start of the project. We shall not be liable for any costs or losses arising directly or indirectly from any delay.
11.5 In the event that there are any changes to your business which increase the costs to us of providing the Services, including but not limited to, changes to the number of computers or users you have or if there is a change to your network, then we reserve the right to review and change our Support Fee.
11.6 Any support we provide in addition to the Services set out in the Order Form or Specification (Additional Support) will be charged at the rate set out in the Service Specification or otherwise communicated to you.
11.7 Any Services we provide at your Premises will be charged at the rate set out in the Service Specification and a minimum charge of two hours work will apply.
11.8 If the Service Specification includes Web Design then we will charge a deposit on agreement of the specification which is equal to 50% of the overall fee and the balance of the fee will be due immediately upon completion or expiration of the test period (as set out in clause 7.4).
11.9 We reserve the right to:
11.9.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date;
11.9.2 make one-off charges at any time after giving you 30 days’ notice in writing; and
11.9.3 increase the charges under this Agreement in the event that any Regulatory Change increases our costs of providing Services to you. In the event that we increase charges in accordance with this clause 11.9.3 then we shall provide 30 days’ notice of our intention to do so and any increase in the charges will not exceed the increase in our costs of providing the Services to you. Any increase in charges under this clause 11.9.3 will not entitle you to terminate this Agreement.
11.10 We may reduce our charges at any time without giving you notice and in the event that we do so this will not entitle you to end the Agreement.
11.11 You shall pay each invoice submitted by us:
11.11.1 within 15 days of the date of the invoice;
11.11.2 in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence;
11.11.3 we may charge you a monthly charge of £3.00 if you do not pay by direct debit; and
11.11.4 all amounts payable by you under the Agreement are exclusive of value added tax (VAT) unless it is expressly stated that VAT is included. You shall, on receipt of an invoice from us, pay to us any VAT which is chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
11.12 If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies under clause 17 (Termination), you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.12 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.13 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by the us.
12.2 Subject to clause 7.2, we grant to you, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract]to copy and modify the Deliverables (excluding materials provided by the you) for the purpose of receiving and using the Services and the Deliverables in your business.
12.3 You shall not sub-license, assign or otherwise transfer the rights granted by clause 12.2, without our written permission
12.4 Subject to clause 7.10, you grant us a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.
13. DATA PROTECTION AND DATA PROCESSING
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 13, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
13.2 Both parties acknowledge that for the purposes of the Data Protection Legislation, you are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
13.3 Without prejudice to the generality of clause 13.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to us for the duration and purposes of the Contract.
13.4 Without prejudice to the generality of clause 13.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under the Contract:
13.4.1 process that Personal Data only on your written instructions unless we are required by Applicable Laws to otherwise process that Personal Data. Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
13.4.2 ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
13.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
13.4.4 not transfer any Personal Data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
(a) you or we have provided appropriate safeguards in relation to the transfer;
(b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(c) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) we comply with reasonable instructions notified to it in advance by you with respect to the processing of the Personal Data;
13.4.5 assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.4.6 notify you as soon as reasonably practicable on becoming aware of a Personal Data breach;
13.4.7 at your written direction, delete or return Personal Data and copies thereof to you on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
13.4.8 maintain complete and accurate records and information to demonstrate our compliance with this clause 11.
13.5 You consent to us appointing third-party processors of Personal Data under the Contract. The details of any third party processors will be made available to you upon request. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 11. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 13.
13.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
14.1 Each party undertakes that it shall not at any time during the Agreement, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2 and clause 14.3.
14.2 We may use the information set out in clause 7.10 in accordance with the licence granted pursuant to clause 7.10.
14.3 Each party may disclose the other party’s confidential information:
14.3.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 12; and
14.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.4 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract save as set out in clause 14.2.
15. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
15.1 Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:
15.1.1 death or personal injury caused by negligence;
15.1.2 fraud or fraudulent misrepresentation; and
15.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
15.4 Subject to clause 15.1, our total liability to you in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
15.5 In clause 15.4:
(a) cap. The cap is tone hundred percent [100%] of the total charges in the contract year in which the breaches occurred.;
(b) contract year. A contract year means a 12-month period commencing with the date of the Agreement or any anniversary of it;
(c) total charges. The total charges means all sums paid by you and all sums payable under the Agreement in respect of services actually supplied by the Supplier, whether or not invoiced to you; and
(d) total liability. Our total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
15.6 This clause 15.6 sets out specific heads of excluded loss:
15.6.1 Subject to clause 15.1, the types of loss listed in clause 15.6.2 are wholly excluded by the parties.
15.6.2 The following types of loss are wholly excluded:
(a) Loss of profits or revenue.
(b) Loss of sales or business.
(c) Loss of agreements or contracts.
(d) Loss of anticipated savings.
(e) Loss of use or corruption of software, data or information.
(f) Loss of or damage to goodwill.
(g) Indirect or consequential loss.
(h) Business interruption or staff time.
(i) Loss of working time or expected savings.
(j) Loss or corruption of data, software or information.
(k) Loss of agreements, contracts or opportunities.
(l) Liability to third parties.
(m) Loss of or damage to goodwill
15.7 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.8 This clause 15 shall survive termination of the Contract.
16. SUSPENSION OF SERVICES
16.1 We reserve the right to suspend all or part of the Service:
16.1.1 if you fail to make any payment due to us under the Agreement when it becomes due;
16.1.2 we have reason to believe that the Services are being used fraudulently or for an illegal
purpose by you or a third party;
16.1.3 if we are instructed to do so by the government, emergency service or regulatory authority;
16.1.4 if you have breached the Agreement; or
16.1.5 if there are any other circumstances which entitle us to terminate the Agreement.
16.2 If we suspend the Service in accordance with clause 16.1 then you will continue to be liable for all charges under the Agreement during the period in which the Service is suspended.
17.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than 90 days written notice, to expire no earlier than the day following the last day of the Initial Commitment Period or if the term is extended then the day following the last day of any Extended Term or further Extended Term to which it relates.
17.2 At the end of the Initial Commitment Period or any Extended Term:
17.2.1 If you have 10 Employees or fewer then we will write to you at least 8 weeks prior to the end of the Initial Commitment Period or Extended Term to ask you if you would like the Agreement to continue beyond the Initial Commitment Period or Extended Term. If we do not hear from you or you confirm that you do want the Agreement to continue beyond the Initial Commitment Period or Extended Term then the Agreement will continue for an Extended Term or further Extended Term of 12 months. During any Extended Term either party may terminate the Agreement by giving the other party not less than 90 days’ notice in writing, such notice to expire no earlier than the day following the last day of the Extended Term to which it relates;
17.2.2 if you have 11 Employees or more then the Agreement will automatically continue for an Extended Term or further Extended Term of 12 months. During any Extended Term either party may terminate the Agreement by giving the other party not less than 90 days’ notice in writing, such notice to expire no earlier than the day following the last day of the Extended Term to which it relates;
17.2.3 if you tell us in a valid written notice given more than 90 days before the end of the Initial
Commitment Period that you do not want the Agreement to continue beyond the Initial Commitment Period then the Agreement will terminate on the day following the last day of the Initial Commitment Period; and
17.2.4 the Agreement will continue for successive Extended Terms unless notice is validly given in accordance with this clause 17.
17.3 Subject to clauses 17.9 and clauses 17.1 to 17.2.4 (inclusive), if you terminate the Agreement in full or in part before the end of the Initial Commitment Period or the Extended Term then you must pay us a sum equal to the losses we incur as a result of your breach of the Agreement. We calculate our losses as the sum which we would have received from you from the date you terminate the Agreement until the end of the Initial Commitment Period or Extended Term with deductions in respect of any savings that we expect to make as a result of not providing Services to you. If it is not possible to determine our exact losses then we will calculate our losses based upon your previous usage. You and we confirm that these liquidated damages are reasonable and proportionate to protect our legitimate interest in performance.
17.4 If you terminate part of the Agreement only then clause 17.3 will apply in relation to the Services cancelled. You will remain liable to pay for any Services not cancelled and we may charge, at our discretion, a proportionate charge for the remaining Services. Alternatively, we may, at our discretion, terminate the entire Agreement in the event that you terminate part of the Agreement.
17.5 If you terminate the Agreement other than in accordance with clause 17.1, 17.2 or 17.9 then we reserve the right to charge you for any reasonable and proper costs we incur as a result of your cancellation. Any charge under this clause 17.5 is in addition to those under clause 17.3 and, if applicable, clause 17.4.
17.6 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
17.6.1 the other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
17.6.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
17.6.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
17.6.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
17.7 Without affecting any other right or remedy available to us, we may terminate the Agreement with immediate effect by giving written notice to you if:
17.7.1 you fail to pay any amount due under the Agreement on the due date for payment;
17.7.2 there is a change of control of you or your business; or
17.7.3 you have broken or we have reason to believe that you may be breaking any law in connection with your use of the Services.
17.8 Without affecting any other right or remedy available to us, we may suspend the supply of Services
under the Agreement if you fail to pay any amount due under the Agreement on the due date for payment, you become subject to any of the events listed in clause 17.6.2 to clause 17.6.4 (inclusive), or we reasonably believe that you are about to become subject to any of them.
17.9 You may terminate the Agreement by giving notice in writing to us if all the circumstances in 20.8.2 and 20.8.3 arise.
18. CONSEQUENCES OF TERMINATION
18.1 On termination of the Agreement:
18.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
18.1.2 you will Pay to us our termination charges on the same basis as is set out in Clause 17.3 to clause 17.5 hereof;
18.1.3 you shall return the Equipment which has not been fully paid for to any address we specify for the purpose of the return. If you fail to do so, then we may enter your Premises, take possession of the Equipment and charge an engineering call out fee. Until it has been returned, you shall be solely responsible for the safe keeping of the Equipment and will not use it for any purpose not connected with this Agreement.
18.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
18.3 Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
19. FORCE MAJEURE
19.1 Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
19.2 Circumstances beyond your or our reasonable control include acts of God, flood, drought, earthquake, natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotions or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations, nuclear or chemical or biological contamination, any law or action taken by a government or public authority (including without limitation imposing an export or import restriction, quota or prohibition), collapse of buildings, fire explosion or accident, industrial action or strikes, interruption or failure of utility service.
20.1 Assignment and other dealings
20.1.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Agreement.
20.1.2 You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without our prior written consent.
20.2.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number or sent by email to the address specified in the Order Form.
20.2.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt [or at the time the notice is left at the proper address;
(b) if sent by post, the next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume; and
(d) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.3 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
20.4 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.5 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
20.6 Entire agreement.
20.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.6.2 Each party acknowledges that in entering into the Contract 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
20.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
20.7 Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20.8.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
20.8.2 We may change the Agreement by giving you not less than 30 days’ written notice. When any change is made we will notify you by publishing a notice or updating the Agreement on our website.
20.8.3 Where a change made under clause 20.8.2 is to your material detriment and is not required by law, you may terminate the Agreement in accordance with clause 17.9.
20.9 Governing law. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
20.10 Jurisdiction. Each party irrevocably agrees 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 the Agreement or its subject matter or formation.