Introduction
1.1 This page sets out the general customer terms and conditions (Conditions) which apply to any Service and/or Equipment (as defined below) which Supplier (as defined below) provides to any Customer (as defined below), unless Customer has entered into a separate written contract with Supplier signed by both parties in respect of the Services.
1.2 The parties’ agreement for the licensing, use and provision of the Services is made up of: (i) these Conditions; (ii) the Order; and (iii) the SLA; and (iv) any other written document either issued by Supplier (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Contract and apply to the contract between the parties to the exclusion of any other terms that Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 These Conditions are published on Supplier’s website. Customer should print or save a copy of these Conditions for its records. Supplier may amend these Conditions from time to time and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. Every time Customer agrees a new Proposal with Supplier it should check these Conditions to ensure that it understands the terms which will apply to the Contract at that time. This version one of these Conditions was most recently updated on 28 June 2023. Historic versions may be obtained by contacting Supplier.
Interpretation & Definitions
2.1 The following definitions and rules of interpretation apply in these Conditions.
Business Day means a day other than a Saturday, Sunday or public holiday in Northern Ireland, when banks in Belfast are open for business;
Charges mean the charges specified in the relevant Quotation, which may include the Service Fee, Subscription Fee and/or Usage Fee, as applicable.
Commencement Date has the meaning given in clause 3.2;
Conditions means these terms and conditions as amended from time to time in accordance with clause 18.9;
Contract has the meaning set out at clause 3.2;
Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
Customer means the person or firm who purchases the Equipment and/or as identified above;
Controller, Processor, Data Subject and Personal Data, Sensitive Data, processing and appropriate technical and organisational measures shall have the meanings given to them in the Data Protection Laws;
Data Protection Laws means: (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the parties are subject, which relates to the protection of personal data;
Data Security Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data;
Deliverables means the deliverables set out in the Order produced by the Supplier for the Customer;
Delivery Location has the meaning given in clause 5.2;
Domestic Law means the law of the United Kingdom or a part of the United Kingdom;
Equipment means the Equipment (or any part of it) set out in the Order;
Equipment Charges has the meaning given in clause 10.3.
Equipment Specification means any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier;
EU GDPR means the General Data Protection Regulation (EU) 2016/679;
EU Law means the law of the European Union or any member state of the European Union;
Force Majeure Event has the meaning given to it in clause 0;
Initial Term has the meaning given to it in the Contract;
Intellectual Property Rights means 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;
Order means the Customer’s order for the supply of Equipment and/or Services as set out in the Quotation;
Quotation means any quotation for Services and/or Equipment issued to a Customer by the Supplier;
Renewal Period has the meaning given to it in the Contract;
Representatives means in relation to the Supplier its officers, employees, professional advisers, consultants and contractors that need to know the Confidential Information to enable the Supplier to comply with the terms of the Contract;
Restricted Person means any person employed or engaged by the Supplier during the term of the Contract who has been engaged in the provision of the Services or the management of the Contract either as principal, agent, employee, independent contractor or in any other form of employment or engagement;
Service Fee means the fee payable by the Customer to the Supplier for the Services, which is made up of the Subscription Fee and any applicable Usage Fee as set out in the Quotation;
Services means the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Quotation;
Subscription Fee means that regular part of the Service Fee;
Supervisory Authority means any regulator, authority or body responsible for administering Data Protection Laws;
Supplier means Wilson Computers Limited, a Northern Irish company (registration number NI657433) with registered address at Unit 42, Enterprise House, 2-4 Balloo Avenue, Bangor, Down, United Kingdom, BT19 7QT;
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
Usage Fee means that variable part of the Service Fee based on actual Usage for a period.
2.2 Interpretation: (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; (d) a reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision; (e) 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; (f) a reference to writing or written includes fax and email.
Basis of Contract
3.1 Each Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with the Contract.
3.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of or email agreement to the Order at which point and on which date the Contract shall come into existence (Commencement Date) and shall continue for the Initial Term. Upon expiry of the Initial Term, the Contract shall automatically renew for successive Renewal Periods unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
3.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Equipment or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force unless stated otherwise in the Contract.
3.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
Equipment
4.1 In consideration for payment by the Customer of the applicable Charges, the Supplier shall provide or procure the provision of the Equipment set out within the relevant Order, or as otherwise agreed in writing between the parties.
4.2 The Equipment is described in the Equipment Specification.
4.3 To the extent that the Equipment (or part of it) is to be manufactured in accordance with an Equipment Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Equipment Specification. This clause 4.3 shall survive termination of the Contract.
4.4 The Supplier reserves the right to amend the Equipment Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
Delivery of Equipment
5.1 The Supplier shall ensure that: (a) each delivery of the Equipment is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Equipment remaining to be delivered; and (b) it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
5.2 The parties may agree either that: (a) the Supplier shall deliver the Equipment to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Equipment are ready; or (b) the Customer shall collect the Equipment from the Delivery Location within three Business Days of the Supplier notifying the Customer that the Equipment are ready.
5.3 Delivery of the Equipment shall be completed on the completion of unloading or loading (as may be appropriate) of the Equipment at the Delivery Location.
5.4 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
5.5 If the Supplier fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. The 1 Supplier shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.
5.6 If the Customer fails to take or accept delivery of the Equipment within three Business Days of the Supplier notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Equipment: (a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Equipment was ready; and (b) the Supplier shall store the Equipment until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
5.7 If ten Business Days after the Supplier notified the Customer that the Equipment was ready for delivery the Customer has not taken or accepted delivery of it, the Supplier may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.
5.8 The Supplier may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Quality of Equipment
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Equipment shall: (a) conform in all material respects with the Equipment Specification; and (b) be free from material defects in design, material, and workmanship.
6.2 Subject to clause 6.3, the Supplier shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full if: (a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Equipment do not comply with the warranty set out in clause 6.1; (b) the Supplier is given a reasonable opportunity of examining such Equipment; and (c) the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business at the Customer’s cost.
6.3 The Supplier shall not be liable for the Equipment’s failure to comply with the warranty in clause 6.1 if: (a) the Customer makes any further use of such Equipment after giving a notice in accordance with clause 6.2; (b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) best practice; (c) the defect arises as a result of the Supplier following any drawing, design or Equipment Specification supplied by the Customer; (d) the Customer alters or repairs such Equipment without the written consent of the Supplier; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (f) the Equipment differs from the Equipment Specification as a result of changes made to ensure that it complies with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 0, the Supplier shall have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 6.1.
6.5 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by the Supplier.
Title and Risk
7.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
7.2 Title to the Equipment shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Equipment.
7.3 Until title to the Equipment has passed to the Customer, the Customer shall: (a) store the Equipment separately from all other equipment held by the Customer so that they remain readily identifiable as the Supplier’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment; (c) maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery; (d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.2; and (e) give the Supplier such information relating to the Equipment as the Supplier may require from time to time.
7.4 If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in clause 15.2 to clause 14.2(d) then, without limiting any other right or remedy the Supplier may have: (a) the Customer’s right to use the Equipment in the ordinary course of its business shall cease immediately; and (b) the Supplier may at any time: (i) require the Customer to deliver up the Equipment; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover it.
Supply of Services
8.1 From the Commencement Date, the Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects. The Services may include applications or other services provided by third parties.
8.2 If specified in the Specification, the Supplier shall provide technical assistance and training for the set-up and provision of the Services.
8.3 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified (including any project work that is time and materials charged) but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.4 The Supplier shall at all times provide the Services in accordance with all applicable laws. The Supplier reserves the right to amend the Services and the Specification: (a) if necessary to comply with any applicable law or regulatory requirement; or (b) where such amendment will not materially affect the nature or quality of the Services, provided that the Supplier shall notify the Customer in any such event.
8.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks that are allocated to them.
8.6 The Supplier does not warrant that the Services will be error-free or uninterrupted.
8.7 Where data back-up services are included, the following shall apply: (a) the Supplier will provide the Customer with the ability to upload its data from its computer systems and store it on third-party servers for the purpose of offsite backup, and to restore this data if required; (b) the Supplier will allocate to the Customer the designated storage quota for the storage of its data; (c) the Supplier will encrypt the Customer’s data during transit and storage; (d) the Supplier will store the Customer’s data in data centres providing a high level of environmental protection and physical security; (e) the Supplier will automatically upgrade the customer’s allocated storage quota (as notified by Supplier to the Customer) to ensure that its backups will continue uninterrupted should if the storage limit is reached; (f) the Customer agrees not to permit any third party to use the data backup service; (g) the Customer must not store or transmit any unlawful, threatening, defamatory, offensive or pornographic material that constitutes a criminal offence or other unlawful act under any laws; (h) the Customer agrees to securely store its service and access details and will not knowingly allow its service and access details, specifically any security codes or passwords, to be viewed or retrieved by any third parties; (i) the Customer must promptly report any actual or suspected security breaches to support@wilsoncomputers.co.uk; (j) the Customer agrees that it is solely responsible for paying in full any costs due to any third party that result from the use of the backup service.
8.8 Whilst the Supplier will use commercially reasonable efforts to ensure the security and protection of the Customer’s data, no warranties are given that: (a) the backup service will be available at all times without interruption; (b) data centres will be free from 2 unauthorised physical or remote access; (c) data stored will be entirely safe from loss or corruption; and (d) a full restoration of data is always possible.
8.9 The Supplier will maintain all necessary statutory and regulatory license and permits to provide the Services.
Customer's Obligations
9.1 The Customer shall: (a) ensure that the terms of the Order and any information it provides in the Specification is complete and accurate; (b) co-operate with the Supplier as far as reasonable in all matters relating to the Services; (c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services; (d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (e) prepare the Customer’s premises for the supply of the Services; (f) comply with all applicable laws, including health and safety laws; (g) comply with any policies issued by the Supplier including (but not limited to) acceptable use, security and disaster recovery; (h) respond to Supplier enquiries in a professional and timely manner; (i) provide the Supplier with remote and (if requested) physical access to any systems that the Supplier supports; (j) comply with the terms of any licence(s) applicable to the Services; (k) keep all contact information provided to the Supplier up to date and correct in order to enable account management and technical notifications about the Services; (l) if the Services include VoIP services, to keep the Supplier notified of any phone location changes in order to ensure details are correct for the use of 999 emergency services; (m) keep the Supplier up to date with any changes to the infrastructure or environment relating to the Services that might impact on the performance of the Services; (n) maintain any Equipment and insure any rented or loaned Equipment against all risks for its full value from the date of delivery; (o) notify the Supplier as soon as reasonably practicable of any loss of or damage to rented or loaned Equipment (fair wear and tear excepted) and, on request, reimburse the Supplier for the price for any loss or damage to it; (p) establish, maintain and monitor adequate internal security measures for the Customer’s access and use of the Services including the confidentiality and safe storage of all login details, usernames and passwords and updating them regularly; (q) use the Services for the Customer’s business purposes only; and (r) comply with any additional obligations as set out in the Specification; (s) return any loaned or rented Equipment to the Supplier well-packaged and in good condition (fair wear and tear excepted) within thirty (30) days of termination of the Contract; and (t) where the Services include applications or other services provided by third parties, to comply with any terms, conditions and instructions issued by those third parties.
9.2 The Customer shall not access or use the Services for any unlawful purpose including: (a) in any way which is likely to infringe the Intellectual Property Rights of a third party; (b) for the transmission, display, downloading or uploading of any material which is or is likely to be construed as defamatory, threatening, offensive, abusive, obscene or which will or is likely to cause unnecessary anxiety or inconvenience to a third party or which is otherwise unlawful; (c) attempting to gain unauthorised access to the Services; (d) attempting to modify, distribute, reverse engineer or otherwise attempting to decipher any code in connection with the Services and/or any other aspect of the Supplier’s or the Supplier’s licensor’s technology; (e) in any way that is likely to cause damage or adversely affect the operation of the Services or interfere with or disrupt the Customer’s website, other websites, servers or networks; and (f) in any way that will or is likely to interfere with the use and enjoyment of the Services for other users.
9.3 Unless the Supplier has appointed the Customer as a partner or reseller the Customer agrees that it will not market, offer to sell or resell the Services to any third party.
9.4 If the Services include any third-party services, the Customer agrees to be bound by the third-party terms and conditions applicable to such services.
9.5 If the Services include any project work that is time and material charged the Customer accepts that: (a) any failure by the Customer to adhere to the terms of this Contract that leads to delays will result in target dates being extended so as to accommodate fully the effects of such delay; and (b) any delay that is directly or indirectly caused by any act or omission by the Customer may result in the Supplier charging the Customer for the effects of such a delay on a time and materials basis at its standard published day billing rates.
9.6 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default): (a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.6; and (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.7 In order to protect the legitimate business interests of the Supplier, the Customer shall not during the term of the Contract, and for a period of 12 months after its termination or expiry of the Contract (except with the prior written consent of the Supplier) attempt to solicit or entice away or solicit or entice away from the employment or service of the Supplier, or attempt to employ or employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services (a Restricted Person), other than by means of a national advertising campaign open to all-comers and not specifically targeted at such Restricted Person.
9.8 If the Customer commits any breach of clause 8.7 the Customer shall, on demand, pay to the Supplier a sum equal to one year’s basic salary or the annual fee that was payable by the Supplier to the Restricted Person plus the recruitment costs incurred by the Supplier or relevant in replacing such person. The Customer acknowledges that it has had the opportunity to obtain independent legal advice on the implications of this clause and agrees to be bound by it.
Charges and Payment
10.1 In consideration of the provision of the Services and/or Equipment by the Supplier, the Customer shall pay the applicable Charges.
10.2 In addition to the Service Fee, the Supplier shall be entitled to charge (on a time and materials basis) where: (a) on-site support is required; (b) no fault is found; (c) out-of-scope Services are required; or (d) the cause of the incident that gave rise to the Support Request is one or more of the following: (e) that power has been switched off or disconnected from a socket, device or external power supply unit; (f) that a network cable is disconnected at device, data point, switch or hub including at the communications cabinet; (g) that that the fault relates to a telephone line and/or broadband circuit unless the telephone line and/or broadband service has been supplied and is currently supported by the Supplier under a managed services agreement; (h) that the fault relates to a Wi-Fi router unless that Wi-Fi router has been supplied and is currently supported by the Supplier under a managed services agreement; or (i) the Supplier reasonably believes that the fault has been caused (wholly or in part) by damage or interference with equipment or software by the Customer.
10.3 The Equipment Charges: (a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order; and (b) unless otherwise stated, shall be exclusive of all costs and charges of packaging, insurance, transport of the Equipment.
10.4 The Supplier reserves the right to: (a) increase the Charges for the Services on written notice to the Customer: (i) in line with the percentage increase in the Retail Prices Index in the preceding 12- month period and the first such increase shall take effect on the first 3 anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index or Average Earnings Index; and / or (ii) in line with any price increase levied upon the Supplier by a third-party supplier; (b) increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to the Supplier that is due to: (i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; (iii) any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment; or (iv) any price increase levied upon the Supplier by a third-party supplier.
10.5 Unless the parties otherwise agree, the following shall apply: (a) the Supplier shall invoice the Customer on or at any time after completion services; and (b) where the Services include applications or other services provided by third parties, the Customer shall be liable for full payment in respect the entire term of each service even where the term of that service exceeds the term of the Contract; (c) for the avoidance of doubt, the Customer acknowledges that termination of the Contract for any reason will not avoid its liability under clause 9.3(b) above.
10.6 The Customer shall pay each invoice submitted by the Supplier: (a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and (b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
10.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
10.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 0 (Termination), the Customer 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 10.8 will accrue each day at 4% 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%.
10.9 All amounts due under the Contract 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).
Intellectual Property Rights
11.1 Unless stated otherwise, 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 the Customer) shall be owned by the Supplier or a third-party licensor (as applicable).
11.2 The Customer acknowledges that it has no right, title or interest in or to such Intellectual Property Rights other than as expressly set out in the Contract or as permitted by law.
11.3 The Customer shall indemnify and hold the Supplier harmless against any costs, liabilities, losses, and expenses including reasonable legal costs arising from any claim relating to the infringement of any third-party Intellectual Property Rights provided that: (a) the Supplier gives notice of the claim; (b) the Customer has sole control and defence of the claim; and (c) the Supplier provides reasonable cooperation in the defence and settlement of the claim.
11.4 The Supplier shall grant the Customer a royalty free license to use any documents the Supplier has created and provided to the Customer as part of the Services.
Data Protection
12.1 The Customer and the Supplier acknowledge that the Customer is the Controller and the Supplier is a Processor for the purposes of processing Personal Data pursuant to these Conditions. Both parties shall at all times comply with all Data Protection Laws in connection with the processing of Personal Data. Without prejudice as to the generality of this clause 12.1, the Customer shall ensure that all instructions that it gives to the Supplier in respect of Personal Data are in accordance with Data Protection Laws. This clause 12.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation
12.2 The Supplier confirms that it has a valid registration with the Supervisory Authority. A copy of the Supplier’s registration certificate is available for inspection on request.
12.3 Without prejudice to the generality of clause 12.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract: (a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law or EU Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law or EU Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits the Supplier from so notifying the Customer; (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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 its 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); (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and (d) not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (e) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; (f) the data subject has enforceable rights and effective legal remedies; (g) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (h) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; (i) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (j) notify the Customer without undue delay on becoming aware of a Personal Data Breach and shall use all reasonable endeavours to rectify it or mitigate against its effects. The Supplier will also report such Data Security Breach to the Supervisory Authority where required by Data Protection Laws. The Customer agrees to provide all necessary assistance at its own expense to the Supplier to facilitate the handling and resolution of the Data Security Breach in an expeditious and compliant manner; (k) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law or EU Law to store the Personal Data; and (l) maintain complete and accurate records and information to demonstrate its compliance with this clause 12.3.
12.4 Without prejudice to the generality of clause 12.1, the Customer shall, in respect of Personal Data, ensure that its privacy notices are clear and provide sufficient information to the Data Subjects for them 4 to understand what of their Personal Data the Customer is sharing with the Supplier, the circumstances in which it will be shared, how such data will be processed and either the identity of the Supplier or a description of the type of organisation that will receive the Personal Data and the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of the Contract
12.5 The Supplier shall not retain or process Personal Data for longer than is necessary. Any Personal Data in the Supplier’s possession on the termination or expiry of the Contract will be returned to the Customer unless the Supplier is required by law to retain such Personal Data for a specified period.
12.6 The Customer acknowledges that, subject to clause 12.3 above, the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly or indirectly from the Customer’s instructions.
12.7 The Customer consents to the Supplier appointing each entity specified in the Specification as a third-party processor of Personal Data under the Contract. Otherwise, the Supplier may authorise with the Customer’s prior written consent (but not otherwise) a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract with the Supplier incorporates terms which are substantially the same as those set out in this clause 11.
12.8 In the event of a dispute or claim brought by a Data Subject or the Supervisory Authority concerning the processing of Personal Data against either or both parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
12.9 The parties agree to respond to any generally available non- binding mediation procedure initiated by a Data Subject or by the Supervisory Authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
12.10 The Supplier may, at any time on written notice to the Customer, unilaterally amend this clause 11 to comply with changes in Data Protection Laws.
Confidentiality
13.1 Confidential Information means all confidential information that the Customer discloses or makes available to the Supplier before, on or after the date of the Contract. This includes: (a) the fact that discussions and negotiations are taking place and the status of those discussions and negotiations; (b) the existence and terms of the Contract; (c) all confidential or proprietary information relating to: (i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Customer; and (ii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Customer; (d) any information, findings, data or analysis derived from Confidential Information; and (e) any other information that is identified as being of a confidential nature or would be thought as such by a reasonable business person; but excludes any information referred to in clause 12.2.
13.2 Information is not Confidential Information if: (a) it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Supplier in breach of the Contract; (b) it was available to the Supplier on a non- confidential basis prior to disclosure by the Customer; (c) it was, is, or becomes available to the Supplier on a non-confidential basis from a person who, to the Supplier’s knowledge, is not under any confidentiality obligation in respect of that information; (d) it was lawfully in the possession of the Supplier before the information was disclosed by the Customer; (e) it is developed by or for the Supplier independently of the information disclosed by the Customer; or (f) the parties agree in writing that the information is not confidential.
13.3 In return for the Customer making Confidential Information available to the Supplier, the Supplier undertakes to the Customer that it shall: (a) keep the Confidential Information secret and confidential; (b) not use or exploit the Confidential Information in any way except for complying with its obligations under the Contract; (c) not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, except as expressly permitted by, and in accordance with the Contract; (d) not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for complying with its obligations under the Contract; and (e) apply the same security measures and degree of care to the Confidential Information as the Supplier applies to its own confidential information, which the Supplier warrants as providing adequate protection from unauthorised disclosure, copying or use.
13.4 The Supplier shall establish and maintain adequate security measures to safeguard the Confidential Information from unauthorised access or use.
13.5 The Supplier may disclose the Confidential Information to its Representatives on the basis that it: (a) informs those Representatives of the confidential nature of the Confidential Information before it is disclosed; and (b) procures that those Representatives comply with the confidentiality obligations in clause 12.3 as if they were the Supplier.
13.6 The Supplier shall be liable for the actions or omissions of the Representatives in relation to the Confidential Information as if they were the actions or omissions of the Supplier.
13.7 If so requested by the Customer at any time by notice in writing to the Supplier, the Supplier shall promptly: (a) destroy or return to the Customer all documents and materials (and any copies) containing, reflecting, incorporating or based on the Customer’s Confidential Information; (b) erase all the Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form; (c) to the extent technically and legally practicable, erase all the Confidential Information which is stored in electronic form on systems and data storage services provided by third parties; and (d) certify in writing to the Customer that it has complied with the requirements of this clause 12.7.
13.8 Nothing in clause 12.7 shall require the Supplier to return or destroy any documents and materials containing or based on the Confidential Information that the Supplier is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject. The provisions of the Contract shall continue to apply to any documents and materials retained by the Supplier pursuant to this clause 12.8.
13.9 The Customer reserves all rights in its Confidential Information. The disclosure of Confidential Information by the Customer to the Supplier does not give the Supplier or any other person any licence or other right in respect of any Confidential Information beyond the rights expressly set out in the Contract.
13.10 Except as expressly stated in these Conditions, the Customer makes no express or implied warranty or representation concerning its Confidential Information including, but not limited to, the accuracy or completeness of the Confidential Information.
13.11 Without prejudice to any other rights or remedies that the Customer may have, the Supplier acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of the Contract. Accordingly, the Customer shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of the Contract by the Supplier.
Limitation of Liability
14.1 Nothing in these Conditions shall limit or exclude either parties liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); and (e) any other liability that cannot be excluded or limited by law. 5
14.2 Subject to clause 14.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for: (a) pure economic loss; (b) loss of profits; (c) loss of sales or business; (d) loss of agreements or contracts; (e) loss of anticipated savings; (f) loss of use or corruption of data; (g) loss of or damage to goodwill; (h) any indirect loss; or (i) any consequential loss.
14.3 The Customer acknowledges that its use of the internet to access the Services (or part of the Services) is at its own risk and that the Supplier shall not be liable in respect of any goods, services, information, software or other material that the Customer may obtain from a third party when using the internet.
14.4 Subject to clause 14.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract (including any indemnity under it), shall in no circumstances exceed the total Charges paid to the Supplier by the Customer in the 12 months prior to the relevant cause of action.
14.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.6 The Customer acknowledges that it has read and understood this clause 13 and that it has adequate insurance or other financial means to cover for any losses beyond those set out in this clause.
14.7 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.8 Supplier’s use of the Equipment may require the involvement or supervision of or giving advice by the Supplier to third parties engaged by the Customer. The Supplier strongly recommends that the Customer obtain independent advice before entering into any legally binding commitment with any such third parties. Without limiting any other provision of these Conditions, the Supplier will, where appropriate, use reasonable endeavours to assist the Customer in minimising the risk and additional cost or delay relating to the involvement in the Customer’s project of any third parties involved in manufacturing or the provision of other services or goods to the Customer, however, in no circumstance shall the Supplier liable for any of the acts or omissions, or the negligence, of such third parties.
14.9 The Supplier may, during the supply of the Services and/or Equipment, make statements about or recommendations of third party products or services, or supply third party manufactured products to the Customer. The Supplier gives no warranty in relation to such products or services, and the Customer shall rely solely on the warranties and remedies provided by any such third party with whom the Customer may contract, or given by the relevant third party manufacturer from whom the Supplier may procure the products or services in question.
14.10 This clause 0 shall survive termination of the Contract.
Termination
15.1 The Customer may terminate the Contract or any Service(s) supplied pursuant to it on three (3) months’ written notice to the Supplier.
15.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days after receipt of notice in writing to do so; (b) 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; (c) 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 (d) 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 Contract has been placed in jeopardy.
15.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if: (a) the Customer fails to pay any amount due under the Contract on the due date for payment; or (b) there is a change of control of the Customer.
15.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.2 to clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
Consequences of Termination
16.1 On termination or expiry of the Contract: (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; (b) the Customer shall pay to the Supplier all third party charges for the remainder of the term of the relevant third party subscription, as specified in the relevant invoice(s) submitted by the Supplier to the Customer; and (c) the Customer shall return any Deliverables or Equipment which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry of the Contract shall continue in full force and effect.
Force Majeure
17.1 Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its or, in the case of the Supplier, its own suppliers’ reasonable control. These include: (a) natural disasters or “acts of God,” such as lightening, tornadoes, hurricanes, tsunamis, floods and earthquakes; (b) manmade disasters, such as plant fires or floods; (c) war and civil issues, such as riots, civil unrest, acts of terrorism; (d) labour disputes or strikes; (e) government embargoes or other government actions affecting the supply chain; and (f) power outages or transportation issues.
17.2 Clause 16.1 above shall not apply in respect of any failure or delay by the Customer to make any payment to the Supplier that falls due under the Contract.
General
18.1 Assignment and other dealings: (a) the Supplier shall not at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract ; (b) the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier which shall not be unreasonably withheld, conditioned or delayed.
18.2 Notices : (a) any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by fax to its main fax number or sent by email to the address specified in the Order; (b) any notice or other communication shall be deemed to have been 6 received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission; (c) this clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract 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 Contract.
18.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract 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.
18.6 Entire Contract: (a) 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; (b) 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; (c) nothing in this clause shall limit or exclude any liability for fraud.
18.7 Survival. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect, including, but not limited to, clause 16.
18.8 Third parties’ rights. 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.
18.9 Variation. 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).
18.10 Governing law. The Contract 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.
18.11 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 Contract or its subject matter or formation.
18.12 Execution. Both parties agree that the signing of the Order electronically shall be as valid as if signed in manuscript.