Terms and Conditions
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10.
Contract: the contract between the Supplier and the Customer for the supply of the Services in accordance with these Conditions and the Order.
Customer: the person or firm who purchases the Services from the Supplier.
Data: the Customer’s materials in respect of which the Supplier is providing Services.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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: review of Customer’s needs, budgets and timescales as agreed at the Initial Consultancy Meeting, such Order shall form part of the Contract.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, of which the Company is the Data Controller and in relation to which the Processor is providing services under this Agreement.
Processing and process: have the meaning set out in section 1(1) of the Data Protection Act 1998.
Services: the services defined at clause 3 to be provided by the Supplier under this Agreement as set out in the Order, together with any other services which the Supplier provides or agrees to provide to the Customer.
Supplier: Information Protection Solutions Ltd, registered office 44 High Street, Snodland, Kent ME6 5DA, Company No. 08452379.
Third Party Supplier: independent contractor who offers services to the Supplier and who may be instructed to assist in the provision of the Services
A person includes a natural person, corporate or unincorporated body and a reference to a statute is a reference to such statute as in force.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer with these Conditions and the Order shall be accepted in writing at which point the Contract is formed.
2.2 The Order and these Conditions constitute the entire agreement between the parties (the “Contract”). The Customer acknowledges that it has not relied on any representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.3 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.
3.1 The Supplier shall provide the Services to the Customer in accordance with the Order in all material respects and the Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but time shall not be of the essence for the performance of the Services.
3.3 Store-a-box Archiving Services
3.3.1 Our minimum contracted storage period is 48 consecutive months, unless otherwise agreed as set out in the Order.
3.3.2 Termination of the Contract or permanent withdrawal of all or any of the archived materials requires 4 months’ written notice to the Supplier. Failure to give 4 months’ written notice shall result in a charge equivalent to the agreed storage charges for the period of notice that the Customer failed to give, taking into account notice actually given.
3.3.3 The permanent removal of boxes is charged at £4.25 per box plus VAT at the prevailing rate plus ancillary costs to be agreed with the Customer prior to the exit.
3.3.4 Invoices will include any additional or ancillary costs incurred by the Supplier in the provision of the Archiving Services.
3.3.5 The Supplier reserves the right to re-box the Customers archived materials if existing boxes are or become unsafe. A charge will be applied at the prevailing rate.
3.3.6 The Supplier may use any of its designated storage facilities.
3.4 Data Protection Consultancy
3.4.1 Services which shall include audits, consultancy and training shall be agreed on a project basis from time to time, which shall be recorded in an Order.
3.4.2 Termination of the Services provided under clause 3.4 shall be as per the Order subject to clause 12 below.
3.5 Electronic Information Management Services (“EIMS”)
3.5.1 Services shall include the provision of cloud-based information management flow and shall be agreed on a bespoke basis, subject the 3.5.2 to 3.5.4, and recorded in an Order.
3.5.2 EIMS shall be provided for a minimum period of 12 months and shall be invoiced monthly.
3.5.3 Additional project works relating to or arising out of the provision of EIMS shall be agreed in advance and charged separately.
3.5.4 Termination of EIMS following the expiry of the minimum period shall be on one month’s written notice subject to clause 12 below.
3.6 Paper and Data Destruction Services (“PDDS”)
3.6.1 PDDS shall be agreed either on a periodic retainer or project basis, such agreement shall be recorded in an Order.
3.6.2 Charges for PDDS shall be agreed on a bespoke basis
4 SUPPLIER’S GUARANTEES
The Supplier warrants that it will:
4.1 Its sites are assessed as secure, such assessment can be provided if required.
4.2 implement appropriate technological measures to protect against accidental loss, destruction, damage or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Data which the Supplier is providing Services in respect of.
4.3 Take reasonable steps to ensure the reliability of any third party service provider who have access to the Data and ensure that any such third party service provider is informed of the confidential nature of the Data and the content of this Contract.
4.4 The Supplier shall take reasonable steps to ensure the reliability of any of the Supplier's employees who have access to the Personal Data.
5 DATA PROTECTION
5.1 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the Data Controller and the Supplier is the data Supplier of any Personal Data.
5.1.1 The Supplier shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Services and in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any other purpose. The Supplier will keep a record of any processing of personal data it carries out on behalf of the Customer.
5.1.2 The Supplier shall promptly comply with any request from the Customer requiring the Supplier to amend, transfer or delete the Personal Data. Such requests may incur costs which the Supplier shall add to the monthly invoices.
5.1.3 If the Supplier receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Act 1998 and the data protection principles set out therein, it shall immediately notify the Customer and it shall provide the Customer with full co-operation and assistance in relation to any such complaint, notice or communication.
5.1.4 At the Customer's request, the Supplier shall provide to the Customer a copy of all Personal Data held by it in the format and on the media reasonably specified by the Customer. Such requests may incur costs which the Supplier shall add to the monthly invoices.
5.1.5 The Supplier shall not transfer the Personal Data outside the European Economic Area without the prior written consent of the Customer.
5.1.6 The Supplier shall promptly inform the Customer if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
5.2 RIGHTS OF THE DATA SUBJECT
5.2.1 The Supplier shall notify the Customer within 7 working days if it receives a request from a Data Subject for access to that person's Personal Data.
5.2.2 The Supplier shall provide the Customer with full co-operation and assistance in relation to any request made by a Data Subject to have access to that person's Personal Data.
5.2.3 The Supplier shall not disclose the Personal Data to any Data Subject or to a third party other than at the request of the Customer or as provided for in this Agreement.
5.3 RIGHTS OF THE CUSTOMER
5.3.1 The Customer is entitled, on giving at least 7 days' notice to the Supplier, to inspect or appoint representatives to inspect all facilities, equipment, documents and electronic data relating to the processing of Personal Data by the Supplier.
5.3.2 The requirement under clause 4.1 to give notice will not apply if the Customer believes that the Supplier is in breach of any of its obligations under this Agreement.
5.4.1 The Supplier warrants that:
18.104.22.168 it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments; and
22.214.171.124 it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of personal data and against the accidental loss or destruction of, or damage to, personal data to ensure the Customer's compliance with the seventh data protection principle.
5.5 The Supplier shall notify the Customer immediately if it becomes aware of:
5.5.1 any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Data;
5.5.2 any advance in technology and methods of working which mean that the Customer should revise the security measures set out in the Order.
6 CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
6.1.1 warrant that the person arranging and entering into the Contract on its behalf has authority to do so;
6.1.2 ensure that the terms of the Order are complete and accurate;
6.1.3 co-operate with the Supplier in all matters relating to the Services;
6.1.4 provide the Supplier with access to the Customer's premises as reasonably required by the Supplier to provide the Services;
6.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the start date;
6.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented by any act/omission by the Customer (Customer Default):
6.2.1 the Supplier has the right to suspend performance until the Customer remedies the Customer Default and shall not be liable for any costs or losses sustained or incurred by the Customer arising as a consequence; and
6.2.2 the Customer shall reimburse the Supplier on written demand for any costs or losses incurred by the Supplier arising directly or indirectly from the Customer Default.
7 CHARGES AND PAYMENT
7.1 The price for the Services shall be the price set out in the Order and subject to VAT at the prevailing rate and shall not include any third party charges for which the Customer is solely responsible.
7.2 Without limiting any other right of the Supplier, if the Customer fails to make any payment due to the Supplier, the Supplier shall be entitled to apply interest to the due sum at 8% above HSBC’s rate until payment is made.
7.3 The Customer shall pay all amounts due under the Contract without deduction.
7.4 Costs may increase on an annual basis in line with inflation, notice of such increases shall be given to the Customer on the invoice preceding the increase.
8 INTELLECTUAL PROPERTY RIGHTS
All intellectual property subsisting in and arising out of the Services belongs to the Supplier.
9.1 A party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party, except insofar as is necessary to discharge its obligations under this Contract and such information shall be used only in connection with this Contract.
9.2 This clause 9 shall survive termination of the Contract.
10 LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
10.2 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.
10.3 This clause 10 shall survive termination of the Contract.
11 THIRD PARTY LIABILITY
11.1 From time to time, we may instruct third parties in the pursuance of your objective. We are not liable for any act or omission of any third party.
11.2 If we need to incur costs in this way, we may ask you for monies on account before engaging their services.
12.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a remediable breach that is not remedied within 7 days of notification or the other party becomes insolvent or suspends/threaten to suspend its business.
12.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer one months' written notice.
12.3 The Customer may terminate the Contract by giving the Supplier not less than three months' written notice.
13 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
13.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.2 where the Services consisted of Storage under clause 3.3 above, the Supplier shall return to the Customer all boxes which shall be charged in accordance with clause 3.3.3.
14 FORCE MAJEURE
14.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 The Supplier shall not be liable to the Customer as a result of any delay/failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Data Solution for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
15.1 Assignment and subcontracting. The Supplier may at any time deal in any manner with all or any of its rights under the Contract and may subcontract any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of the Supplier dispose of in any other manner with its rights or obligations under the Contract.
15.2 Notices.Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and may include email and fax, which shall be deemed to be served immediately, or post which shall be deemed to be served two Business Days after postage.
15.3 Waiver. If the Supplier fails to insist that the Customer performs any of its obligations under these Terms or delays in doing so, that will not mean that the Supplier has waived its rights against the Supplier. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.
15.4 Severance. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15.5 No partnership or agency. Nothing in the Contract shall be deemed to constitute a partnership or joint venture of any kind between any of the parties and no party shall have authority to act as agent for, or to bind, the other party in any way.
15.6 Third parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.7 Variation. Except as set out in these Conditions, any variation to the Contract shall only be binding when agreed in writing and signed by the Supplier.
15.8 These Terms are governed by English law and the parties submit to the exclusive jurisdiction of the English courts.