4.1 The property and any copyright or other intellectual property rights in any Input Material shall belong to the Subscriber.

Transcription

1 1 Interpretation 1.1 In these Conditions: THE SERVICE PROVIDER means Cutec Remote Backup Terms and Conditions THE SERVICE PROVIDER S STANDARD CHARGES means the charges shown in the Order Sheet or other charges notified in accordance with these Terms and relating to the Service from time to time. DOCUMENT includes, in addition to a document in writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form; INPUT MATERIAL means any Document or other materials, and any data or other information provided by the Subscriber relating to the Service; SERVICE means the automatic and remote encrypted data storage service to be provided by the Service Provider to the Subscriber and referred to in the Order Sheet; SUBSCRIBER means the person named on the Specification Sheet for whom the Service Provider has agreed to provide the Service in accordance with these Terms; TERMS means these Terms and Supply. ORDER SHEET means the sheet to which these Terms are appended; 1.2 The headings in these Terms are for convenience only and shall not affect their interpretation. 2 Supply of the Service 2.1 The Service Provider shall provide the Service to the Subscriber subject to these Terms. 2.2 The Subscriber shall at its own expense supply the Service Provider with all necessary Documents or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable the Service Provider to provide the Service in accordance with the these Terms. The Subscriber shall ensure the accuracy of all Input Material. 2.3 The Subscriber shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Service Provider shall have no liability for any such loss or damage, however caused. The Subscriber acknowledges that the Service should be used in conjunction with and not to the exclusion of its own primary electronic file maintenance and back up. 2.4 The Service shall consist of the right of the Subscriber to electronically transmit and store computer data using either a private data communications network (or the internet) into a data storage location maintained by the Service Provider who shall retrieve the data upon reasonable notice (subject to the supply of the correct password by the Subscriber). The Service will be provided in accordance with the Order Sheet and otherwise in accordance with these Terms. 2.5 The Service Provider may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Service without any liability to the Subscriber. 2.6 The Service Provider may at any time without notifying the Subscriber make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service. 1

2 2.7 The Subscriber shall be solely responsible for: retaining and maintaining the security of any password supplied by the Service Provider for the use of the Service; and all access and use of the Service made via the Subscriber s account and using its password/encryption keys; and the Subscriber further acknowledges that if it loses its password/encryption keys for the use of the Service, due to the nature of the security required for the Service it will not be possible for the Service Provider to supply any replacement passwords and therefore the data stored on the Service will be inaccessible to the Subscriber. the Service Provider reserves the right to delete any data stored using the Service which is held without any password access for the Subscriber as such data will be inaccessible by either the Service Provider or the Subscriber. 3 Charges 3.1 Subject to any special terms agreed, the Subscriber shall pay the Service Provider s Standard Charges and any additional sums which are agreed between the Service Provider and the Subscriber for the provision of the Service or which, in the Service Provider s sole discretion, are required as a result of the Subscriber s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Subscriber. 3.2 The Service Provider shall be entitled to vary the Service Provider s Standard Charges from time to time by giving not less than 90 days written notice to the Subscriber provided that the Subscriber shall have a right to terminate this agreement on 90 days notice within 14 days of receipt of such a notice of increased charges from the Service Provider under this Term. 3.3 All charges quoted to the Subscriber for the provision of the Service are exclusive of any Value Added Tax, for which the Subscriber shall be additionally liable at the applicable rate from time to time. 3.4 The Service Provider shall be entitled to invoice the Subscriber for the Service monthly in advance prior to the start of each month in which the Service is provided, or at other times agreed with the Subscriber. 3.5 The Service Provider s Standard Charges and any additional sums payable shall be paid by the Subscriber (together with any applicable Value Added Tax,) by standing order, BACS transfer or cheque within 10 days of the invoice from the Service Provider unless otherwise agreed in writing. 3.6 If payment is not made on the due date, the Service Provider shall be entitled, without limiting any other rights it may have: to charge interest on the outstanding amount (both before and after any judgement) at the rate of 2% above the base rate from time to time of Natwest Bank Plc from the due date until the outstanding amount is paid in full; and to suspend its performance of the Services under the contract or terminate the contract at its discretion. 2

3 4 Rights in Input Material 4.1 The property and any copyright or other intellectual property rights in any Input Material shall belong to the Subscriber. 4.2 The Subscriber warrants that any Input Material and its use by the Service Provider for the purpose of providing the Service will not infringe the copyright or other rights of any third party, and the Subscriber shall indemnify the Service Provider against any loss, damages, costs, expenses or other claims arising from any such infringement. 5 Warranties and Liability 5.1 The Service Provider warrants to the Subscriber that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Order Sheet. 5.2 Where the Service Provider supplies in connection with the provision of the Service any goods or services supplied by a third party, the Service Provider does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Subscriber the benefit of any warranty, guarantee or indemnity given by the person supplying the goods or services to the Service Provider. 5.3 The Service Provider shall have no liability to the Subscriber for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Subscriber which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Subscriber. 5.4 The Service Provider does not warrant that the provision of the Service will be uninterrupted or error free. Save for the warranty in clause 5.1 the Service is made available on an as is and all warranties, conditions and other terms implied by statute or by common law (save for the Conditions implied by section 12 of the Sale of Goods Act 1979 and the warranty set out at 5.1 above) are, to the full extent permitted by law excluded. 5.5 Except in respect of death or personal injury caused by the Service Provider s negligence, or as expressly provided in these Terms: the Service Provider shall not be liable to the Subscriber by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Terms, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Service Provider, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service to the Subscriber; and the entire liability of the Service Provider under or in connection with these Terms shall not exceed the price paid for the provision of the Service, except as expressly provided in these Terms. 5.6 The Service Provider shall have no liability to the Subscriber under these Terms if it is prevented from, or delayed in performing, its obligations under the Terms or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Service Provider 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. 3

4 6 Term & Termination 6.1 These Terms shall operate for a minimum term of [two years] and subject to termination in accordance with these Terms shall continue for a further term of [one year] on each anniversary of the commencement of these Terms (the Renewal Date ). 6.2 Either party shall be entitled to terminate these Terms at any time by giving not less than three months written notice to the other such notice only to expire at the end of the minimum term or, if later, on the next Renewal Date (as defined in Term 6.1 above) 6.3 Either party may (without limiting any other remedy) at any time terminate these Terms by giving written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by Written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed. 7 Effect of Termination 7.1 Upon termination of these Terms: the Subscriber s access to store additional data on the Service Provider s servers under the Service shall cease immediately and its access to any data already stored as part of the Service may be permanently terminated upon 7 days notice from the Service Provider; if termination is other than in accordance with term 6.2 or a breach by the Service Provider of term 6.3 above then the Subscriber will be liable for the Service Provider s Standard Charges for the remaining proportion of the annual term of the contract; the Subscriber shall pay to the Service Provider all sums due under and related to these Terms. 8 Confidentiality 8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 8. Each party may disclose the other party s confidential information: to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party s obligations under these Terms. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party s confidential information comply with this clause 8; and as may be required by law, court order or any governmental or regulatory authority. 8.2 No party shall use any other party s confidential information for any purpose other than to perform its obligations under these Terms. 9 General 9.1 The Service Provider may from time to time vary these Terms and the Service, provided that, where practicable, it shall give the Subscriber [1] months written notice. Notice of any variation under this clause shall be given in writing. 9.2 The Subscriber shall not, without the prior written consent of the Service Provider, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Terms. The Service Provider may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights under these Terms and may subcontract or delegate in any manner any or all of its obligations under the Terms to any third party or agent. Each party that has rights under these Terms is acting on its own behalf and not for the benefit of another person. 9.3 All amounts due under these Terms shall be paid in full without any deduction or withholding other than as required by law. The Subscriber shall not be entitled to assert any credit, set-off or counterclaim against the Service Provider in order to justify withholding payment of any such amount in whole or in part. 9.4 A person who is not a party to these Terms shall not have any rights under or in connection with it. 4

5 9.5 These Terms (together with the terms, if any, set out in the Order Sheet or agreed by the parties in writing) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in accordance with clause 9.1. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. 9.6 A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. 9.7 No failure or delay by either party in exercising any of its rights under these Terms shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Terms by the other shall be considered as a waiver of any subsequent breach of the same or any other provision. 9.8 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected. 9.9 English law shall apply to these Terms, and the parties agree to submit to the exclusive jurisdiction of the English courts. 5