Terms and Conditions of Supply
These terms and conditions (as amended under clause 24.2) (“Conditions”) govern the supply/leasing of hardware and/or supply of services and licensing of software by Pressac Communications Limited, registered in England and Wales with no. 05623170, with registered address at 145 Glaisdale Drive West, Bilborough, Nottingham, NG8 4GY (“Pressac”) to the person/firm who buys such hardware and services (“Customer”). These Conditions apply to the exclusion of any other terms that Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing.
***Note particularly clause 16 (Limitation of Liability)***
1.1. In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to Pressac or Customer includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Legislation; and (vii) the following definitions apply:
“Acceptable Use Policy”: the acceptable use policy (if any) applicable to the relevant Services, as mandated by Pressac from time to time on written notice to the Customer.
“Affiliates”: each agent, employee, contractor or sub-contractor of a party or the party’s Group.
“Applicable Law”: the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or industry codes which apply to the performance of each party’s obligations under the Contract.
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Change Procedure”: the procedure detailed in clause 23.
“Change Request”: a request to change the terms of this Agreement, as made in accordance with the Change Procedure.
“Charges”: the charges payable by the Customer to Pressac, as set out in the Order Form.
“Confidential Information”: information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure.
“Configuration and Installation Services”: those Configuration and Installation Services detailed in the Order Form, if any.
“Contract”: each contract (as defined in clause 2.1) between the Customer and Pressac relating to one or more of the following: (i) the supply of Hardware; and/or(ii) the supply of Services.
“Customer Content”: any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to Pressac by or on behalf of the Customer, in order to perform its obligations pursuant to a Contract.
“Customer Materials”: any and all materials, other equipment (including cabling, network interfaces, power and power adapters) and software necessary for Pressac to perform its obligations pursuant to a Contract, save to the extent the same is expressed to be supplied by Pressac pursuant to the applicable Contract.
“Customer Obligations”: the obligations described in clause 3.
“Customer Personnel”: employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not Pressac Personnel.
“Data Processing Particulars”: the following details, as provided in the schedule to these Conditions: (i) the subject matter, duration, nature and purpose of the Processing; (ii) the type of personal data being Processed; and (iii) the categories of Data Subjects.
“Data Protection Legislation”: any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their personal data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.
“Data Subject”: has the meaning set out in the Data Protection Legislation.
“Default”: any act or omission of a party, or failure by a party to perform a relevant obligation under this Agreement.
“Delivery Location”: the relevant location identified in the Order Form (where applicable).
“Deliverables”: all software code, documents, products and materials in any form: (i) developed by Pressac or its agents, contractors and employees; and/or (ii) licensed by Pressac to the Customer and its Affiliates, as part of or in relation to the performance of its obligations under a Contract, including all Intellectual Property Rights as may be embodied therein.
“Documentation”: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Pressac.
“DPA”: the Data Protection Act 2018.
“End User Agreement”: in respect of any Open-Source Software, the specific licence under which the relevant Open-Source Software is distributed, (as varied from time to time in accordance with the terms of such End User Agreement).
“Group”: each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.
“GDPR”: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.
“Hardware”: the Hardware manufactured and supplied or leased by Pressac as set out in the Order Form.
“Hardware Specification”: the specification for the applicable Hardware, as set out (or referred to) in the Order Form (including in any applicable statement of work).
“Hardware Usage Restrictions”: the usage restrictions for the Hardware, as set out in the applicable Hardware Specification.
“Initial Licence Term”: in respect of any element of the Licensed Software, the initial term for such element where specified in the Order Form, otherwise the Initial Term.
“Initial Services Term”: in respect of any element of the Services, the initial term for such element where specified in the Order Form, otherwise the Initial Term.
“Initial Term”: the period of time described as such in the Order Form (and if none, 1 Year).
“Insolvency Event”: (a) the Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) the Customer starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with the winding up of the Reseller; (d) the Reseller is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Reseller attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over the Reseller; (g) a floating charge holder over the assets of the Reseller becomes entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.
“Installation Services”: those installation Services described in clause 6 and detailed in the Order Form, if any.
“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related 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, rights in designs, 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.
“Lease Commencement Date”: the date on which the Lease Period commences for the applicable Leased Hardware, as set out in the Order Form.
“Lease Period”: the lease period for the Leased Hardware, as set out in the Order Form.
“Lease Payment Plan”: the payment plan for the Leased Hardware, as set out in the Order Form.
“Leased Hardware”: Hardware leased by the Customer pursuant to a Contract, as set out in the Order Form together with all substitutions, replacements or renewals of the same.
“Leased Hardware Deposit”: the deposit amount set out in the Order Form in respect of any Leased Hardware.
“Leased Hardware Location”: the location at which the Leased Hardware is to be held, as set out in the Order Form.
“Leased Hardware Risk Period” means the Lease Period and any further term during which the Leased Hardware is in the possession, custody or control of the Customer.
“Leased Hardware Total Loss”: the Leased Hardware is, in Pressac’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
“Licensed Software”: any Pressac Software (except any Open-Source Software).
“Location”: the location for performance of the applicable Services set out in the Order Form (if any), or any other location agreed between the parties in writing from time to time.
“Maintenance Services”: the maintenance Services set out or referred to in the Order Form.
“Maintenance Services Specification”: the document describing the maintenance Services, as located at www.pressac.com/maintenance-services.
“Normal Business Hours”: [8.30am to 5.00pm] UK time, each Business Day.
“Open-Source Software”: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, Pressac Software, or with which Pressac Software is compiled or to which it is linked.
“Order”: Customer’s agreement to the terms of an Order Form, which may include a communication from the Customer to Pressac agreeing to the terms of the Order, (within the period during which the terms of the Order Form remain valid).
“Order Acceptance”: Pressac’s acceptance of an Order, which shall consist of a communication from Pressac to the Customer expressly accepting the Order.
“Order Form”: Pressac’s written quotation relating to a Contract or potential Contract. Hardware.
“Permitted Purpose”: the purpose of the data processing as set out in more detail in the Data Processing Particulars.
“Pressac Personnel”: Pressac’s employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf of Pressac in relation to the performance of its obligations under the applicable Contract.
“Pressac Software”: any software described as such in the Order Form (including any firmware loaded onto any Hardware), which is licensed directly from Pressac to the Customer pursuant to clause 7 and is provided (or made available) to the Customer without modification, together with any incorporated Open-Source Software, all as amended and updated by Pressac from time to time.
“Purchased Hardware”: Hardware purchased by the Customer pursuant to a Contract, as set out in the Order Form.
“Renewal Period”: the period described as such in clause 17.1.
“Rights Request”: an actual or purported request by a Data Subject to exercise their rights of: (i) access; (ii) rectification; (iii) erasure; (iv) restriction of processing; (v) data portability; or (vi) objection, as set out in articles 15-21 of the GDPR, or any rights analogous thereto as may be enshrined in the Data Protection Legislation from time to time.
“Security Requirements”: the requirements regarding the security of the personal data, as set out in the Data Protection Legislation (including, in particular, the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR) as applicable.
“Services”: the services to be supplied directly by Pressac to the Customer, consisting of either: Configuration and Installation Services, or Training Services as set out in the Order Form.
“Services Specification”: in respect of the Pressac Services, the specification for the same as set out (or referred to) in the Order Form (including in any applicable statement of work).
“Service Term”: the term for the provision of the applicable Services (or where different elements of the Services are to be provided for differing terms, the term for that element), as set out in the Order Form.
“Software”: any Licensed Software.
“Software Specification”: the specification of the applicable Software, as detailed in the Order Form.
“Sourcing Issue”: an inability on the part of Pressac to source particular materials or resources (including Pressac Personnel) on terms similar or identical to those available at the Start Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.
“Standard Rates”: Pressac’s standard rates for the Pressac Services as made available by Pressac from time to time.
“Start Date”: as defined in clause 2.2.
“Term”: the period described as such in clause 17.1.
“Third Party”: a person other than Pressac Personnel or the Customer.
“Training Services”: those training Services detailed in the Order Form, if any.
“Virus”: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Year”: the period of 12 calendar months from the applicable Start Date and each 12 calendar month period thereafter.
2. BASIS OF CONTRACT
2.1. Each Order Form provided to the Customer constitutes an invitation to treat by Pressac.
2.2. Each Order constitutes an offer by the Customer to purchase the Hardware and/or provide Services. Following receipt of an Order, Pressac shall at its option submit an order acknowledgement to the Customer, which shall form a contract subject to the terms of the applicable Order Form and these Conditions (“Contract”). Should the Order (or any other correspondence from the Customer) contradict in any way the Order Form or any of these Conditions (“Contradictory Terms”), such Contradictory Terms shall not be incorporated unless and to the extent that a revised Order Form is issued incorporating any of the Contradictory Terms. A Contract shall come into existence immediately following the sending of an order acknowledgement to the Customer (“Start Date”).
2.3. After the Start Date, a Contract may not be terminated except in accordance with its terms.
2.4. Unless expressly stated to the contrary in the relevant Order Form (or otherwise agreed in writing by Pressac), each Order Form is only valid for 30 days from its date of issue.
2.5. If there is an inconsistency between any of the provisions of a Contract, the following descending order of priority shall apply: (i) the Order Form itself; and then (ii) these Conditions.
2.6. Each party warrants that: (i) it has full capacity to enter into and perform its obligations under a Contract; and (ii) each Contract is executed by a duly authorised representative of that party.
2.7. The warranties set out at clause 2.6 above are deemed to be repeated by each party in respect of a Contract on the applicable Start Date for the same.
2.8. In consideration for the payment of the Charges, Pressac will supply the Hardware, provide the Services and/or grant access to any Licensed Software (as appropriate) in accordance with the Contract, from the applicable Start Date.
3. CUSTOMER OBLIGATIONS
3.1. The Customer shall:
3.1.1. provide all necessary co-operation reasonably required in relation to a Contract;
3.1.2. comply with any and all obligations which are set out in the Order Form, including in the applicable Hardware Specification/Services Specification which are stated to be performed by the Customer and any other obligations which are apparent or would be ordinarily expected to be complied with by the Customer in the ordinary course of receipt of similar hardware/services;
3.1.3. provide such assistance from the Customer Personnel as may be reasonably requested by Pressac from time to time;
3.1.4. ensure that the terms of each Contract (including any specification) are complete and accurate;
3.1.5. respond promptly to any request for a decision, guidance, information or instruction which Pressac may submit in relation to a Contract from time to time;
3.1.6. not to do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of Pressac;
3.1.7. comply with the Acceptable Use Policies (if any);
3.1.8. only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm minors in any way; (iv) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in clause 3.2; (v) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) knowingly transmit any data, send or upload any material that contains a Virus; and (vii) not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any of Pressac’s systems or networks or to breach any of Pressac’s security or authentication measures, whether by passive or intrusive techniques, without Pressac’ prior written consent;
3.1.9. ensure that there are in place all necessary consents, licences and permissions required to permit Pressac to access and use all the Customer Content and Customer Materials and any other items as may be appropriate in connection with each and every Contract; and
3.1.10. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Pressac’s data centres (or, where appropriate, the third-party portal through which Pressac provides Services to the Customer).
3.2. The content standards are as follows.
3.2.1. Content must: (i) be accurate (where they state facts); (ii) be genuinely held (where they state opinions); and (iii) comply with Applicable Law.
3.2.2. Content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful or otherwise inflammatory; (ii) promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) be used to impersonate any person, or to misrepresent your identity or affiliation with any person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that they emanate from Pressac, if this is not the case; or (viii) advocate, promote or assist any unlawful act.
4.1. Hardware Delivery
4.1.1. The terms of this clause 4 apply in respect of any Hardware to be supplied/leased pursuant to a Contract.
4.1.2. Hardware delivery dates are approximate only and time of delivery is not of the essence. Delivery shall be completed on the Hardware’s arrival at the Delivery Location. The Customer is responsible for unloading, and any unloading that takes place shall be at the Customer’s risk, unless this is expressly included as part of any Services to be provided by Pressac pursuant to a Contract.
4.1.3. Pressac shall deliver the Hardware to the Delivery Location after the Hardware is ready.
4.1.4. If the Customer fails to accept or take delivery of the Hardware (including failing to provide appropriate delivery instructions to Pressac), Pressac shall store the Hardware until delivery takes place, and may at its option charge the Customer for all related costs and expenses (including insurance).
4.1.5. Pressac may deliver in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1.6. Risk in the Hardware shall pass to the Customer on completion of delivery at the Delivery Location.
4.1.7. Subject to clause 4.1.11,the Hardware shall, on delivery (and for a period of 12 months thereafter), conform in all material respects with the Hardware Specification. Insofar as the Leased Hardware comprises or contains equipment or components which were not manufactured or produced by Pressac, the Customer shall be entitled only to such warranty or other benefit as Pressac has received from the manufacturer.
4.1.8. The following shall constitute the Customer’s sole remedy in the event any Hardware does not conform to the warranty in clause 4.1.7. Pressac shall at its option:
126.96.36.199. replace such Hardware;
188.8.131.52. take such steps as Pressac deems necessary to bring the Hardware into a state where they confirm to the warranty in clause 4.1.7;
184.108.40.206. take back such Hardware and refund the appropriate part of the purchase price for the same,
provided that (subject to clause 16.5) the liability of Pressac shall in no event exceed the purchase price of such Hardware and performance of any one of the above options shall constitute an entire discharge of Pressac’s liability for any non-conformance to the warranty in clause 4.1.7.
4.1.9. Any Hardware which has been replaced will belong to Pressac.
4.1.10. Any repaired or replacement Hardware will be subject to any unexpired portion of the 12 month warranty period afforded under clause 4.1.7 from the original date of delivery of the Hardware which has been repaired/replaced (as applicable).
4.1.11. The warranty in clause 4.1.7 shall be conditional upon:
220.127.116.11. the Customer giving written notice to Pressac of the alleged defect in the Hardware (such notice to be received by Pressac within 7 days of the time when the Customer discovers or ought to have discovered the defect and in any event within 12 months of delivery of the Hardware; and
18.104.22.168. the Customer affording Pressac a reasonable opportunity to inspect the Hardware and, if so requested by Pressac, returning the allegedly defective goods to Pressac’s works, carriage pre-paid, for inspection to take place there, any returns of allegedly defective goods to be made pursuant to Pressac’s Return Material Authorisation Procedure. For the avoidance of doubt in the event of a conflict between these Conditions and Pressac’s Return Material Authorisation Procedure, these Conditions shall prevail;
22.214.171.124. the Hardware not having been altered or modified in any way whatsoever or not having been subjected to misuse, abuse or unauthorised repair;
126.96.36.199. the Hardware being properly installed and connected (unless Pressac carried out such installation and connection);
188.8.131.52. the Customer complying with its obligations under this or any other contract made with Pressac;
184.108.40.206. the Hardware having been under normal use, operation, maintenance and service;
220.127.116.11. the Hardware having been handled, operated, used and maintained in accordance with Pressac’s instructions (if any);
18.104.22.168. the Hardware having been properly stored and handled (which shall include not being exposed to weather when this is not appropriate for the Hardware in question); and
22.214.171.124. the Hardware (or elements/components thereof) not being normally consumed in operation nor having a normal life inherently shorter than the warranty period stated above.
4.2. Purchased Hardware
4.2.1. In consideration for the payment of all applicable Charges, Pressac shall supply the Purchased Hardware to the Customer pursuant to each Contract.
4.2.2. Where 10 Business Days have elapsed since Pressac attempted to re-deliver the Purchased Hardware to the Delivery Location and/or where Pressac has either notified the Customer to arrange another delivery following failure of the first and the Customer has not engaged with this correspondence then Pressac may resell or otherwise dispose of all of the Purchased Hardware or any part of them, and after deducting reasonable storage and selling costs, charge the Customer for any shortfall below, the price of the Purchased Hardware.
4.2.3. Title to the Purchased Hardware shall not pass to the Customer until Pressac has received payment in full (in cleared funds) for all sums due to Pressac or any part of its Group for which payment is due, under any and all Contracts and any other agreements between the same).
4.3. Leased Hardware
4.3.1. In consideration for the payment of all applicable Charges, Pressac shall lease the Leased Hardware to the Customer pursuant to each Contract.
4.3.2. Use of the Leased Hardware shall be subject to the Hardware Usage Restrictions (if any).
4.3.3. The lease shall commence on the Lease Commencement Date and shall continue for the Lease Period, unless the Contract is terminated earlier in accordance with its terms.
4.3.4. If the Customer fails to accept or take delivery of the Leased Hardware (including failing to provide appropriate delivery instructions to Pressac), the Leased Hardware shall be deemed to be delivered and the Lease Period shall commence.
4.3.5. The Leased Hardware shall remain at the sole risk of the Customer during the Leased Hardware Risk Period.
4.3.6. Title in and to the Leased Hardware shall at all times remain with Pressac, and the Customer shall have no right, title or interest in or to the Leased Hardware (save the right to possession and use of the Leased Hardware subject to the terms of the Contract).
4.3.7. During the Leased Hardware Risk Period, the Customer shall:
126.96.36.199. ensure that the Leased Hardware is kept and operated in a suitable environment and used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by Pressac;
188.8.131.52. take such steps (including compliance with all safety and usage instructions provided by Pressac) as may be necessary to ensure, so far as is reasonably practicable, that the Leased Hardware is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
184.108.40.206. not use the Leased Hardware for any unlawful purpose;
220.127.116.11. unless the Customer has contracted with Pressac to provide Maintenance Services in respect of the Leased Hardware, maintain at its own expense the Leased Hardware in good and substantial repair in order to keep it in a condition similar to that at the Lease Commencement Date (fair wear and tear excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Leased Hardware;
18.104.22.168. make no alteration to the Leased Hardware and shall not remove any existing component(s) from the Leased Hardware without the prior written consent of Pressac unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Leased Hardware shall vest in Pressac immediately upon installation;
22.214.171.124. keep Pressac fully informed of all material matters relating to the Leased Hardware;
126.96.36.199. keep the Leased Hardware at all times at the Leased Hardware Location and shall not move or attempt to move any part of the Leased Hardware to any other location without Pressac’s prior written consent;
188.8.131.52. permit Pressac or its duly authorised representative to inspect the Leased Hardware at all reasonable times and for such purpose to enter the Leased Hardware Location (or any premises at which the Leased Hardware may be located), and shall grant reasonable access and facilities for such inspection;
184.108.40.206. not, without the prior written consent of Pressac, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Leased Hardware or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
220.127.116.11. not without the prior written consent of Pressac, attach the Leased Hardware to any land or building so as to cause the Leased Hardware to become a permanent or immovable fixture on such land or building. If the Leased Hardware does become affixed to any land or building then the Leased Hardware must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Leased Hardware from any land or building and indemnify Pressac against all losses, costs or expenses incurred as a result of such affixation or removal;
18.104.22.168. not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Pressac in the Leased Hardware and, where the Leased Hardware has become affixed to any land or building, the Customer must take all necessary steps to ensure that Pressac may enter such land or building and recover the Leased Hardware both during the Lease Period and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Pressac of any rights such person may have or acquire in the Leased Hardware and a right for Pressac to enter onto such land or building to remove the Leased Hardware;
22.214.171.124. not suffer or permit the Leased Hardware to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Leased Hardware is so confiscated, seized or taken, the Customer shall notify Pressac and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Leased Hardware and shall indemnify Pressac on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
126.96.36.199. not do or permit to be done anything which could invalidate the insurances referred to in clause 4.4;
188.8.131.52. deliver up the Leased Hardware at the end of the Rental Period or on earlier termination of this agreement at such address as Pressac requires, or if necessary allow Pressac or its representatives access to the Leased Hardware Location or any premises where the Leased Hardware is located for the purpose of removing the Leased Hardware;
184.108.40.206. give written notice as soon as reasonably practical to Pressac in the event of any loss, accident or damage to the Leased Hardware or arising out of or in connection with the Customer’s possession or use of the Leased Hardware.
4.3.8. The Customer acknowledges that Pressac shall not be responsible for any loss of or damage to the Leased Hardware arising out of or in connection with any negligence, misuse, mishandling of the Leased Hardware or otherwise caused by the Customer or its officers, employees, agents and contractors.
4.3.9. Deposit: Where the Lease Payment Plan includes a Deposit, the Deposit is a deposit against default by the Customer of payment of any Charges due in respect of the Leased Hardware or any loss of or damage caused to the Leased Hardware. If the Customer:
220.127.116.11. fails to pay any Charges in accordance with the Lease Payment Plan; or
18.104.22.168. causes any loss or damage to the Leased Hardware beyond fair wear and tear,
Pressac shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to Pressac any sums deducted from the Deposit within 10 days of a demand for the same. The Deposit (or balance thereof) shall be refundable within 30 days of the end of the Lease Period, provided the relevant Leased Hardware has been returned.
4.4. Retention of Title
4.4.1. The Customer shall: (i) in respect of Leased Hardware, at all times; and (ii) in respect of Purchased Hardware, from delivery until title has passed to the Customer under these Conditions:
22.214.171.124. hold the Hardware on a fiduciary basis as Pressac’s bailee;
126.96.36.199. store the Purchased Hardware separately from all other hardware;
188.8.131.52. ensure the Hardware is readily identifiable as Pressac’ property and wherever possible shall ensure that a visible sign to that effect is attached to the Hardware;
184.108.40.206. not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware;
220.127.116.11. maintain the Hardware in satisfactory condition and keep them insured on Pressac’s behalf against all risks as are prudent and as may be required by law (including loss, damage or destruction by fire, theft or accident for their full price) and the Customer shall, on demand by Pressac, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Pressac and proof of premium payment to Pressac to confirm the insurance arrangements. If the Customer fails to effect or maintain any of the insurances required under the Contract, Pressac shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer; and
18.104.22.168. give Pressac such information relating to the Hardware as Pressac requires, but the Customer may resell/use the Hardware in its ordinary course of business.
4.4.2. Where the Customer is held to be insolvent in accordance with clause 17.3 (or Pressac believes that the same is about to occur) before title to the Hardware passes to the Customer, if the Hardware has not been resold or irrevocably incorporated into another product or service, (without limiting any other right or remedy Pressac may have) Pressac may demand the Customer deliver up the Hardware and, if the Customer fails to do so promptly, enter any premises of the Customer (or a third party) where the Hardware is stored to recover it. The Customer shall ensure that Pressac shall have similar rights of entry with respect to any third party who takes possession of the Hardware prior to the passage of title from Pressac to the Customer.
5.1. The terms of this clause 5 apply with respect to any Services supplied pursuant to a Contract.
5.2. During the applicable Services Term, in consideration for the payment of all applicable Charges, Pressac shall provide the applicable Services to the Customer materially in accordance with the Services Specification.
5.3. Pressac shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Customer’s premises and that have been communicated to it in advance of the provision of the Services, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5.4. Pressac will use its reasonable endeavours to supply all relevant Services in accordance with any performance metrics set out in the Order Form in respect of such Services.
5.5. In respect of the Services, Pressac shall use reasonable endeavours to meet any performance dates specified in the Order Form/Services Specification, but any such dates are estimates only and time is not of the essence for the performance of the Services.
5.6. If performance of the Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, the parties may agree revised dates for performance. At its discretion, Pressac may apply a reasonable increase to the Charges as a result of such delay.
5.7. Pressac shall have the right to make any changes to the Services which: (i) improve the nature or quality of the Pressac Services; (ii) are necessary to comply with Applicable Law; (iii) result from a Sourcing Issue; or (iv) do not materially negatively affect the nature or quality of the Services, and Pressac shall notify the Customer in any such event. Such notification shall include any variations to the Charges which Pressac reasonably considers to be necessary in light thereof.
5.8. Where there is a Default on the part of the Customer, Pressac (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until the Customer remedies the same. The Customer shall be liable for any costs incurred by Pressac.
6. CONFIGURATION AND INSTALLATION SERVICES
6.1. The terms of this clause 6 apply where Pressac has agreed under a Contract to provide any Configuration and Installation Services.
6.2. The Customer shall in a timely manner:
6.2.1. provide all the Customer Content and Customer Materials;
6.2.2. prepare its premises, equipment and existing systems (or those of its third-party contractors); and
6.2.3. facilitate such access to the Customer’s premises, equipment and existing systems (or those of its third-party contractors), as may beneeded for Pressac to perform the Installation and Configuration Services.
6.3. Pressac shall carry out any such Configuration and Installation Services at the Location (or, at Pressac’s option where applicable, via remote access), and subject the results of such services (“Configuration”) to its standard installation and acceptance tests, or such tests as are specified in the applicable Order Form.
6.4. The Customer shall be deemed to have accepted the Installation/Configuration if either: (i) the acceptance testing is certified by Pressac to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Order Form (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Hardware or Services which have been configured/installed by Pressac.
7. LICENSED SOFTWARE
7.1. The terms of this clause 7 apply where the Customer licences any Licensed Software from Pressac.
7.2. In consideration for the payment of all applicable Charges, Pressac hereby grants to the Customer and its Affiliates a non-exclusive, revocable licence for the Licence Term to use the Licensed Software in conjunction with the Hardware.
7.3. Use of the Licensed Software shall be restricted to: (i) the use of the same in conjunction with the Hardware; (ii) object code form; (iii) the normal business purposes of the Customer and the normal business purposes of the Customer’s Affiliates; and (iv) employees of the Customer and third party contractors using the same solely for the benefit of the Customer and/or for the benefit of the Customer’s Affiliates.
7.4. Pressac shall provide to the Customer, from time to time, copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the Licensed Software. Such Documentation may be supplied in electronic form.
7.5. The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of Licensed Software and for training the Customer’s personnel in use of Licensed Software. The Customer shall ensure that all of Pressac’s proprietary notices are reproduced in any such copy. The Customer may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first enters into appropriate confidentiality obligations no less stringent than those contained in these Conditions.
7.6. Any unauthorised modifications, use or improper installation of Licensed Software by the Customer (or on behalf of the Customer, other than by Pressac Personnel) shall render all Pressac’s warranties and obligations under the Contract null and void.
7.7. Notwithstanding any other provision, Pressac specifically denies any implied or express representation that the Licensed Software will:
7.7.1. be fit to operate in conjunction with any hardware items or software products other than with those that are manufactured or expressly stated to be supported by Pressac; or
7.7.2. operate uninterrupted or error-free.
7.8. The Customer may not use the Licensed Software other than as specified in this clause without the prior written consent of Pressac, and the Customer acknowledges that additional fees may be payable on any change of use approved by Pressac.
7.9. Except as expressly licensed, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Licensed Software in order to develop software which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.
7.10. The Customer shall not: (i) sub-license, assign or novate the benefit or burden of the licence to the Licensed Software in whole or in part; (ii) allow the Licensed Software to become the subject of any charge, lien or encumbrance; or (iii) deal in any other manner with any or all of its rights and obligations under the Contract, without the prior written consent of Pressac.
8. OPEN-SOURCE SOFTWARE
8.1. The terms of this clause 8 apply where Open-Source Software is made available to the Customer as part of the Licensed Software.
8.2. The Customer acknowledges and agrees that:
8.2.1. Pressac is making such Open-Source Software available pursuant to the terms of the applicable End User Agreement and such software is provided “as is” and expressly subject to the disclaimer in clause 16.1;
8.2.2. any such Open-Source Software provided by Pressac may only be used according to the terms and conditions of the End User Agreement.
8.3. The Customer shall comply with the terms of the End User Agreement.
9. MAINTENANCE SERVICES
9.1. The terms of this clause 9 apply where Pressac has agreed under a Contract to provide any Maintenance Services
9.2. Pressac shall provide Maintenance Services to the Customer for the period set out in the Order Form of the relevant Contract in respect of the Hardware and Pressac Software ordered under it.
9.3. Pressac shall provide the Maintenance Services in accordance with the Maintenance Services Specification.
10. TRAINING SERVICES
10.1. The terms of this clause 10 apply where the Customer orders Training Services from Pressac.
10.2. The Customer acknowledges and agrees that:
10.2.1. any individual identified in the Order Form or otherwise may be replaced at any time with another qualified individual at Pressac’s option; and
10.2.2. any materials provided in respect of Training Services are licensed to the Customer solely for the purposes of the receipt of such Training Services by the Customer Personnel, unless and to the extent that wider use by other Customer Personnel is stated within the Order Form.
11.1. The price for Hardware, Pressac Software (where applicable) and Services is the price set out in the Order Form. Where no price is quoted, it shall be:
11.1.1. the price set out in Pressac’s published price list as at the date of order of the relevant Hardware or the Start Date for performance of the relevant Services; or
11.1.2. where applicable in respect of Services, on a time and materials basis in accordance with the Standard Rates.
11.2. Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of appropriate receipts.
11.3. If it is reasonably apparent that any of the pricing in the Order Form is incorrect (“Obvious Pricing Error”), the Customer must notify Pressac of the same. When Pressac becomes aware of an Obvious Pricing Error, it shall promptly notify the Customer of the error together with the correct price (“Correct Price”). Following notification of the Correct Price, such price shall apply in place of the Obvious Pricing Error. If the Customer objects to the Correct Price, it may terminate the relevant Contract on written notice to Pressac.
11.4. Where a failure of the Customer to comply with its obligations in the Contract (including those set out in these terms and conditions as well as the Order Form) results in additional costs for Pressac and/or wasted time, Pressac may charge the Customer for the same on a time and materials basis. In order to calculate the same, Pressac’s Standard Rates shall apply.
11.5. Unless otherwise specified in the applicable Order Form, Pressac will invoice the Customer as described in the table below:
Monthly in advance
|Configuration and Installation Services|
Initial deposit on Contract formation. Then monthly in arrears
Initial deposit on Contract formation. Then monthly in advance
Monthly in advance
11.6. If Hardware has not been delivered or Services performed as a result of the acts or omissions of the Customer, Pressac may invoice the same on the date upon which delivery/performance was attempted.
11.7. The Customer shall pay each invoice which is properly due and submitted to it by Pressac within 30 days of invoice date, to a bank account nominated in writing by Pressac. If Pressac has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Law in force at the time which restricts or excludes the same), Pressac may charge interest pursuant to the Late Payment of Debts (Interest) Act 1998.
11.8. All Charges stated or referred to in a Contract are exclusive of:
11.8.1. value added tax or other sales taxes, which shall be added to Pressac’s invoice(s) at the appropriate rate; and
11.8.2. all packing, insurance and transport costs, which shall be paid by the Customer (unless the same is expressly stated to be included within the price in the Order Form).
11.9. Pressac may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by Pressac to the Customer.
12. INTELLECTUAL PROPERTY
12.1. Pressac warrants that it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to the Customer pursuant to a Contract. The Customer warrants to Pressac that Pressac’s possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to Pressac) shall not cause Pressac to infringe the rights, including any Intellectual Property Rights, of any third party.
12.2. The Customer acknowledges and agrees that Pressac and/or its licensors own all Intellectual Property Rights in the Pressac Services, the Licensed Software and the Hardware.
12.3. Except as expressly stated herein, these Conditions do not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Hardware, Services or Software.
12.4. Pressac acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. Except as expressly stated herein or as is necessary to perform Pressac’s obligations under a Contract, these Conditions do not grant Pressac any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Content.
12.5. Nothing in these Conditions shall be construed so as to prevent Pressac from using in the furtherance of its own business general know-how or expertise gained in its performance of a Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 13 or infringement of any Intellectual Property Rights.
13.1. Each party may be given access to Confidential Information from the other party, any member of its Group or any of its Affiliates in order to perform its obligations under a Contract. A party’s Confidential Information shall not include information that:
13.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
13.1.2. was in the other party’s lawful possession before the disclosure;
13.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
13.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2. Subject to clause 13.4 below, each party shall hold the other’s Confidential Information (including any such information originating from any of its Affiliates or any other member of its Group) in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the performance of its obligations under a Contract.
13.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Conditions, save to other members of its Group, its Affiliates, or its professional advisors.
13.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party.
13.6. Pressac acknowledges that the Customer Content is the Confidential Information of the Customer.
13.7. Pressac may publicise its involvement with the Customer for its own marketing purposes, and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this clause 13.
14. DATA PROTECTION ARRANGEMENTS
14.1. The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that the Customer shall act as a controller and Pressac shall act as a Processor and in any such case:
14.1.1. Pressac shall be a controller where it is collecting and using personal data in relation to the management of its Customer accounts; and
14.1.2. Pressac shall be a processor where it is processing personal data in relation to the Data Processing Particulars in connection with performing its obligations under a Contract.
14.2. Pressac shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all personal data that is Processed by it in connection with a Contract.
14.3. Pressac shall be permitted to appoint sub-contractors, and to disclose personal data to them for processing in accordance with the relevant Contract, provided always that the sub-contractor’s right to Process the personal data terminates automatically on expiry or termination (for whatever reason) of the relevant Contract for which the sub-contractor was engaged.
15. DATA PROCESSING OBLIGATIONS
15.1. To the extent that Pressac is acting as a Processor for and on behalf of the Customer, it shall:
15.1.1. process personal data for and on behalf of the Customer for the purposes of performing its obligations under a Contract, and only in accordance with the terms of that Contract and any documented instructions from the Customer;
15.1.2. notify the Customer without undue delay upon becoming aware that any of the Customer’s written instructions infringe the Data Protection Legislation;
15.1.3. implement and maintain appropriate technical and organisational security measures which are sufficient to comply with at least the obligations imposed on the Customer by the Security Requirements;
15.1.4. take all reasonable steps to ensure the reliability and integrity of any Pressac Personnel who shall have access to the personal data;
15.1.5. ensure that access to the personal data is restricted to only those members of Pressac’s Personnel who require it in order to discharge Pressac’s obligations under a Contract;
15.1.6. notify the Customer promptly following its receipt of any Rights Request or correspondence from the UK Information Commissioner’s Office or any other European data protection authority, and together with such notices, shall provide a copy of such Rights Request or correspondence and reasonable details of the circumstances giving rise to it; and
15.1.7. with respect to a Subject Access Request, not disclose any personal data in response without the express written authorisation of the Customer.
15.2. Where Pressac becomes aware (or reasonably should have become aware) of an actual or suspected personal data breach, it shall:
15.2.1. notify the Customer as soon as is practicable, including details of how the breach occurred and what personal data may have been compromised;
15.2.2. implement any measures necessary to restore the security of compromised personal data; and
15.2.3. assist the Customer to make any notifications to the UK Information Commissioner’s Office and affected Data Subjects.
15.3. Except to the extent required by Applicable Law, upon the termination of a Contract for any reason, or earlier if instructed in writing by the Customer to do so, Pressac shall cease Processing all personal data and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by the Customer) all personal data and all copies in its possession or control (and it shall provide the Customer with a certificate signed by a duly authorised representative confirming it has done so). Where the Customer makes any such request prior to the termination of a Contract, and it serves to hinder or prevent Pressac’s obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.
16. WARRANTIES, INDEMNITIES & LIMITATION OF LIABILITY
16.1. All representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, Pressac makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Hardware, Services or Software for any purpose, whether or not such purpose is disclosed to Pressac.
16.2. The Customer hereby indemnifies Pressac from and against any and 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 and other reasonable professional costs and expenses) suffered or incurred by Pressac in connection with:
16.2.1. Pressac’s storage/handling of any Customer Content and the Customer’s use of the same;
16.2.2. any failure of the Customer to obtain appropriate licences and/or consents in accordance with its obligations under these Conditions or any subsequent revocation or non-renewal of any such licence and/or permit;
16.2.3. any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;
16.2.4. any use of the Services or the Licensed Software by the Customer other than as envisaged under the Contract;
16.2.5. the Customer’s breach of any End User Agreement; and
16.2.6. any other Customer Default.
16.3. Pressac shall defend the Customer, its officers, directors and employees against any claim that the Licensed Software or Pressac Services infringe any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against Client in judgment or settlement of such claims, provided that:
16.3.1. Pressac is given prompt notice of any such claim;
16.3.2. the claim does not result from the Customer’s failure to install an update of any Licensed Software as soon as is practicable following its release by Pressac;
16.3.3. the Customer provides reasonable co-operation to Pressac in the defence and settlement of such claim (at Pressac’s expense, provided such expenses are reasonable and can be evidenced to Pressac’s satisfaction); and
16.3.4. Pressac is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Pressac may procure the right for the Customer to continue using the Licensed Software or Pressac Services, replace or modify the Licensed Software or Pressac Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In no event shall Pressac, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Licensed Software or Pressac Services by anyone other than Pressac; (b) the Customer’s use of the Licensed Software or Pressac Services in a manner contrary to the instructions given to the Customer by Pressac; or (c) the Customer’s use of the Licensed Software or Pressac Services after notice of the alleged or actual infringement from Pressac or any appropriate authority. The foregoing states the Customer’s sole and exclusive rights and remedies, and Pressac’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
16.4. The following provisions set out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:
16.4.1. any breach of these Conditions howsoever arising; and
16.4.2. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
16.5. Nothing in these Conditions shall limit or exclude Pressac’s or the Customer’s liability for:
16.5.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
16.5.2. fraud or fraudulent misrepresentation; and
16.5.3. any other liability which cannot be limited or excluded by Applicable Law.
16.6. In the event of a Default by Pressac, Pressac’s liability in respect of loss or damage to tangible property of the Customer shall not exceed £10,000 (ten thousand).
16.7. Subject to clauses 16.5 and 16.6, Pressac’s liability in respect of loss or damage under a Contract in any 12 month period shall not exceed the lower of:
16.7.1. a sum equal to the total Charges paid to Pressac by the Customer under such Contract during the period of 12 months immediately prior to the event giving rise to the claim, or
however that liability arises including breach of contract, tort, misrepresentation or breach of statutory duty.
16.8. Subject to clause 16.5, in no event will Pressac be liable to the Customer (whether in contract, tort, negligence or otherwise):
16.8.1. for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by force majeure (as set out in clause 20);
16.8.2. for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission;
16.8.3. for any loss of profit, revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation;
16.8.4. for any indirect, special or consequential loss or damage;
16.8.5. to the extent that any delay in performing or failure to perform Pressac’s obligations is due to a failure by the Customer to perform its own obligations under a Contract or if delay results from a failure by the Customer to comply with reasonable requests by Pressac for instructions, information or action required by it to perform its obligations within a reasonable time; or
16.8.6. for the consequences of any acts or omissions of the Customer or the Customer Personnel.
16.9. In the event of any loss or damage to Customer Content , the Customer’s sole and exclusive remedy shall be for Pressac to use reasonable commercial endeavours to restore the same from its latest back-up maintained by Pressac in accordance with its archiving procedure.
16.10. In no event shall Pressac be liable for any loss, destruction, alteration or disclosure of Customer Content caused by any third party (except those third parties sub-contracted by Pressac to perform services related to maintenance and back-up).
17. TERM AND TERMINATION
17.1. Each Contract shall commence on the Start Date and continue for the duration stated in the relevant Order (or until the delivery of Purchased Hardware/performance of Services has been completed) (the “Initial Term”) unless terminated in accordance with its terms.
17.2. Without prejudicing any other right or remedy available to it, either party may terminate the relevant Contract with immediate effect by giving written notice to the other party if:
17.2.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
17.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if remediable) fails to remedy it within a period of 10 Business Days after being notified in writing to do so (this clause 17.2.2 only applies if Service Credits are not applicable); or
17.2.3. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms under the Contract.
17.3. Without prejudicing any other right or remedy available to it, Pressac may terminate any Contract should an Insolvency Event occur.
17.4. Without prejudicing any other right or remedy available to it, Pressac may terminate any Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
17.5. Without prejudicing any right to terminate which Pressac may have, Pressac will be entitled to suspend any Services without notice if:
17.5.1. there is a Default on the part of the Customer; or
17.5.2. any of the events set out in clauses 17.2, 17.3 or 17.5 occur in relation to the Customer.
17.6. Pressac may rely on the suspension to relieve it from the performance of any of its obligations in each case to the extent the suspension prevents or delays the performance by Pressac of any of its obligations and Pressac shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any failure or delay by Pressac to perform any of its obligations as set out in this clause.
17.7. Where Pressac acquires the right to terminate or suspend Services under a Contract pursuant to this clause 17, such right shall extend to any other Contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Contract under which the right of termination or suspension has arisen.
17.8. The Customer may terminate the Contract immediately if there is an Obvious Pricing Error as detailed in clause 11.3.
18. CONSEQUENCES OF TERMINATION
18.1. On termination for any reason:
18.1.1. all rights granted to the Customer under the Contract shall cease;
18.1.2. for the avoidance of doubt, all rights granted to the Customer under any End User Agreement shall continue in accordance with the terms of that agreement;
18.1.3. the Customer shall cease all activities authorised by the Contract; and
18.1.4. the Customer shall immediately pay any sums due to Pressac (including sums on a time and materials basis for any work in progress) without set off or deduction and in respect of any Leased Hardware, the Customer shall pay to Pressac on demand a sum equal to the whole of the Charges for the Leased Hardware that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Lease Period, less a discount for accelerated payment of 3% per annum. Sums may be partly or wholly recovered from any Deposit.
18.2. Subject to Pressac’s obligations with respect to any other Contract which remains in force:
18.2.1. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party and Pressac may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Leased Hardware and for this purpose may enter the Leased Hardware Location (or any premises at which the Leased Hardware is located); and
18.2.2. provided all sums due to Pressac’s Group from Customer’s Group have been paid, Pressac shall make available to the Customer a copy of all Customer content in a commonly-readable electronic format for a period of no more than 6 days following termination. After such period, Pressac may permanently delete all Customer Content residing on its systems.
19.1. The Customer may not freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the consent of Pressac, such consent not to be unreasonably withheld or delayed.
19.2. Pressac may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the prior written consent of the Customer.
19.3. The Customer agrees that it shall co-operate and undertake all matters at Pressac’s cost and expense that are necessary to novate or assign any Contract or any parts thereof to any third party when requested to do so by the Customer.
20. FORCE MAJEURE
20.1. Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under that Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes (except with respect to that party’s own employees); acts of God; war; riot; civil commotion; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the relevant contract (together with any other Contract between the parties) by giving 10 Business Days’ written notice to the other party.
21.1. A notice given pursuant to the Contract shall be in writing, addressed to the place of business of the relevant party, directed to the named individuals given in the Order Form (if any) and shall be: (i) delivered personally; (ii) sent by e-mail; or (iii) sent by pre-paid special delivery.
21.2. A notice is deemed to have been received:
21.2.1. if delivered personally, at the time of delivery;
21.2.2. in the case of e-mail, at the time of transmission, provided a delivery notification is obtained evidencing delivery of the email; and
21.2.3. in the case of special delivery, the date on which delivery takes place, as evidenced by the acknowledgement from the Royal Mail,provided that, if receipt is not within Normal Business Hours on a Business Day, delivery shall be deemed to be when business next starts in the place of receipt.
22. DISPUTE RESOLUTION
22.1. If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of a Contract (a “Dispute”) then the parties shall follow the procedure set out in this clause 22:
22.1.1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
22.1.2. if the parties are for any reason unable to resolve the Dispute within 20 Business Days from service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.
22.2. If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this clause 22.2 shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.
23. CHANGE PROCEDURE
23.1. Where a party identifies a need to change this Agreement, they may at any time request such a change.
23.2. The party proposing the change shall notify the other party in writing specifying in as much detail as is reasonably practicable the nature of the requested change (“Change Request”).
23.3. Where the Customer has requested the change, Pressac shall, as soon as reasonably practicable, provide a written estimate to the Customer of:
23.3.1. the likely time required to implement the change;
23.3.2. any necessary variations to the Charges arising from the change;
23.3.3. any necessary variations to the resources of either party arising from the change; and
23.3.4. any other impact of the change on the hardware/services provided under this Agreement.
24.1. A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
24.2.1. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Pressac.
24.2.2. A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or Default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
24.3. The construction, validity and performance of each Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
24.4. No delay or omission by the Customer in exercising any of its rights or remedies under a Contract or under any Applicable Law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.
24.5. In the event that any provision of a Contract shall be void or unenforceable by reason of any provision of Applicable Law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Contract so far as possible.
24.6. Nothing in a Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
24.7. Each party undertakes to the other that it will not, and will procure that its employees will not, in the course of performing its obligations under a Contract, knowingly engage in any activity which would constitute a breach of the Bribery Act 2010 and that it has in place a compliance programme designed to ensure compliance with the terms of the Bribery Act 2010 and has and will maintain in place, adequate procedures designed to prevent any of its third party contractors or sub-contractors from undertaking any conduct that would give rise to an offence under the Bribery Act 2010.
|DATA PROCESSING PARTICULARS|
|Subject matter, nature and purpose:|
The subject matter, nature and purpose of the processing is:
Performance by Pressac of its obligations under the applicable Contract, including any support and maintenance (or other) services.
The personal data to be processed concerns the following categories of data subjects:
|Categories Of Personal Data:|
The personal data to be processed falls within the following categories of data:
Name, job title, address, telephone number, email address.
No Special Category Data.
The personal data may only be processed during the following period:
The duration of the applicable Contract.