Definitions

In this agreement unless the context otherwise requires:

“Business Day” means any day (other than Saturday and Sunday) on which the clearing banks are open for business in the City of London;

“Data Protection Legislation”: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

“Equipment” means the servers, PC’s, laptops, blackberries, printers, scanners and other such equipment as set out in the Schedule for which the Company supports and provides the Technical Support and Services for. For the avoidance of doubt the Equipment shall include any hardware that the Customer shall purchase after the date of this agreement, which the Company either procures on behalf of the Customer in accordance with Clause 5, or which the Company confirms in writing that it will provide the Services and Technical Support in respect of;

“Fees” means the fees for the Services set out in the Schedule as the same may be varied from time to time in accordance with this agreement;

“Services” means the provision of Technical Support in respect of the Equipment in accordance with the provisions of this agreement on a Business Day during Working Hours;

“Schedule” refers to the preceding page to this Agreement titled “Prime & Modern Ltd CONTRACT AGREEMENT SCHEDULE”

“Technical Support” means the provision of such categories of technical support set out in the Schedule in respect of the Equipment to include telephone, remote and onsite support;

“Working Hours” means the business hours 09.00 hours to 18.00 hours local time in the United Kingdom, Monday to Friday, exclusive of United Kingdom Bank Holidays.

1.Provision of services

1.1. The Company, where applicable, in consideration of the payment by the Customer from time to time of the Fees in accordance with clause 3 below agrees and undertakes to the Customer to provide the Services in respect of the Equipment upon the terms and conditions of this agreement.

1.2. The Company, where applicable, in consideration of the payment by the Customer from time to time of the Additional Charges in accordance with Clause 3 below agrees and undertakes to the Customer to provide the Additional Services upon the terms and conditions of this agreement.

2. Fees

2.1. The Fees for the provision of the Services shall be as set out in the Schedule and shall be levied by the Company periodically in advance with effect from the date of this agreement as set out in the Schedule. The Customer agrees to pay the Fees (together with value added tax thereon) in advance by periodic standing order into a bank account as nominated by the Company.

2.2 The Additional Charges for the provision of any Additional Services shall be as set out in the Schedule or shall be at the Company’s rates from time to time or such other sum as may be agreed between the parties from time to time. The Additional Charges (together with value added tax thereon) shall be levied by the Company from time to time. The Customer agrees to pay any Additional Charges (together with value added tax thereon) within 10 days of receipt of the Company’s invoice.

2.3. The Company reserves the right to charge the Customer interest in respect of the late payment of any sum due under this agreement (as well after as before Judgement) at the rate of 8 per cent per annum above the base rate from time to time of Barclays Bank PLC from the due date therefor until payment.

3. Technical support

3.1. With effect from the date of this agreement and for the duration of this agreement the Company shall make available and provide the Services within a reasonable response time on Business Days during Working Hours.

3.2. The Company may at its sole discretion provide Additional Services to the Customer in exchange for payment by the Customer of the Additional Charges.

3.3. Technical Support shall comprise all or any of the services set out in the Schedule but shall exclude the Additional Services.

3.4. All communications will be logged by the Company in the Technical Support log when they are received. All technical support queries shall be attended to within a reasonable response time according to either the query or complexity of the issue raised. The Company shall respond to all faults reported via telephone or email within one hour. If issues cannot be resolved remotely, the Company aims to have a representative on site within a maximum of three working hours.

3.5. For the avoidance of doubt, the parties agree that the Technical Support and the Services shall not include the diagnosis and rectification of any fault resulting from any act of God, misuse, fire, flood, rodents and other pests, vandalism, infection by virus, unauthorized repair or alteration or installation of any software of anyone other than an authorized Company representative, or any other frustrating event outside the reasonable control of the Company.

3.6. The Company accepts no liability whatsoever for the Customer’s failure to maintain and safeguard computer systems, to make regular backups, to preserve other relevant security and or maintenance procedures, for any act of improper use or negligence by the Customer or its employees, agents and / or sub-contractors or any losses resulting in the Customer’s failure to comply with any reasonable request of the Company.

3.7. Notwithstanding the foregoing and that the fault results from any of the circumstances described in clause 4.6 above, the Company may at its sole discretion provide such Technical Support service or Additional Service. The Company shall in such circumstances be entitled to levy Additional Charges.

4. Other services

4.1. On the Customer’s instructions, the Company may from time to time on behalf of the Customer, arrange for the Customer to purchase products and / or services from a third party, including (but not limited to) any purchase of hardware or online data backup services.

4.2. The Company accepts no liability whatsoever for any product and / or service that the Customer purchases from a third party.

4.3. Any product and / or service that the Customer may purchase in accordance with this Clause shall be provided on receipt of the Customer’s written instructions and for which the Customer shall agree to pay for and for which the Company reserves the right to demand a payment on account.

5. Additional charges

“Additional Charges” means those charges set out in the Schedule or at the Company’s rates from time to time for any Additional Service or work undertaken on a time and materials basis or services for charges other than the Fees;

“Additional Services” means any service that the Company may provide at its sole discretion outside the scope of or other than the Services, and / or Technical Support on any day other than a Business Day or outside of Working Hours, and /or in respect of support of any equipment other than the Equipment, and / or any other service that the Company may provide at its sole discretion including but not limited to those set out in the Schedule.

5.1. In this agreement unless the context otherwise requires:

5.2. The Company shall be entitled to levy reasonable Additional Charges in the manner set out in this agreement if the Technical Support is provided in circumstances where any reasonably skilled and competent Company would have judged the Customer’s request to have been unnecessary.

5.3. Additional Charges shall be levied by the Company from time to time in arrears and shall be payable by the Customer (together with value added tax thereon) within ten (10) days of receipt of an invoice

6. Warranty and liability

6.1. Subject to the exceptions and the limitations upon its liability set out in clause below, the Company warrants that it will perform the Services with reasonable care and skill.

6.2. Subject to the foregoing all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the provision of the Services or the provision of any other service (included but not limited to any Additional Services) are hereby excluded.

6.3. The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of its contractual obligations arising under this agreement; and any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement.

6.4. Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within clause above shall for the purposes of this clause be known as an “Event of Default”.

6.5. Subject to the provisions of this clause the Company’s’ entire liability in respect of any Event of Default or this agreement shall be limited to damages of an amount equal to the aggregate of the Fees paid in the immediately preceding period of 3 months in respect if the relevant Service.

6.6. The Company shall not be liable to the Customer in respect of any Event of Default or under this agreement for loss of profits, goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.

6.7. The Company shall have no liability to the Customer in respect of any Event of Default or otherwise under this agreement unless the Customer shall have served notice of the same upon the Company within 3 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.

6.8. The Customer hereby agrees to afford the Company not less than 30 days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.

6.8.Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.

6.10. The Customer hereby agrees to allow the Company (or its employees, agents and sub-contractors) remote access to the Customer’s network and computer equipment, and to install anti-virus protection, and to allow the Company to create any administration accounts that may be required.

6.11. The Customer acknowledges that no reliance is placed on any representation made but not embodied in this Agreement.

7. Confidentiality

7.1. Each of the parties undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is trivial or obvious; already in its possession other than as a result of a breach of this clause; or in the public domain other than as a result of a breach of this clause.

7.2. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 8.1 above by its employees, agents and sub-contractors.

8. Data Protection

8.1. In so far as required, both parties agree that they will comply with all applicable requirements of the Data Protection Legislation. This clause 8.1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

8.2. The Company shall hold all Personal Data (as defined in the Data Protection Legislation) made available to it in the course of this agreement securely. The Company will not process, disclose or transfer any Personal Data held in relation to the Customer unless it is necessary to fulfil the obligations under this agreement. The Company will not transfer any Personal Data outside of the European Economic Area unless the Customer’s prior written consent has been obtained and the conditions set out in the Data Protection Legislation have been met.

8.3. The Company will ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of or damage to Personal Data appropriate to the harm that might result from the unauthorised processing or accidental loss, destruction or damage and the nature of the data to be protected. The Company will ensure that all staff who have access to and/or process Personal Data are obliged to keep the Personal Data confidential.

9. Term and duration

9.1. This agreement shall come into force on the date set out at the top of this document for an initial period of 24 months, and, on expiration of that initial 24 month period, shall automatically continue in full force and effect on a rolling annual basis until terminated in accordance with the provisions of this clause below. The Company reserves its rights to increase its Fees and Additional Charges on the expiration of the initial 24 month period and every twelve month period thereafter.

9.2. This agreement may be terminated by the Customer by the provision of three months written notice from the Customer to the Company prior to the end of the initial term.

9.3. This agreement may be terminated by the Company by the provision of three months written notice from the Company to the Customer prior to the end of the initial term.

9.4. Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

10. Force majeure

10.1. Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).

10.2. Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

10.3. If a default due to an Event of Force Majeure shall continue for more than six (6) weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of an Event of Force Majeure.

11. Miscellaneous

11.1. Waiver: The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

11. 2. Third Parties: The parties confirm that no right is conferred to any third party under the agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement.

11.3. Invalidity and Severability: If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

11.4. Entire Agreement: The Company shall not be liable to the Customer for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of this agreement other than those representations, agreements, statements or undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this agreement.

11.5. Successors: This agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.

11.6. Assignment: The Customer shall not be entitled to assign or otherwise transfer this agreement nor any of its rights or obligations hereunder without the prior written consent of the Company. The Company shall be entitled to assign or otherwise transfer this agreement or any of its rights or obligations hereunder.

11.7. VAT: Save insofar as otherwise expressly provided all amounts stated in this agreement are expressed exclusive of value added tax and any value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.

11.8. Headings: Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.

11.9. Set Off: Where one party has incurred any liability to the other party (whether under this agreement or otherwise, and whether such liability is liquidated or unliquidated) each party may set off the amount of liability against any sum that would otherwise be due to the other party under this agreement.

12. Notices

Any notice, request or other communication to be served under this agreement may be delivered or sent by first class prepaid recorded delivery post (or if the recipient is in a different country by airmail post) or by e-mail or fax transmission to the other party to be served at its address appearing in this agreement or in the event that another address is notified in writing to the other party in accordance with and making specific reference to this clause then to that other address provided that a paper copy of any communication which is sent by e-mail or fax transmission is also sent by first class prepaid recorded delivery post (or if the recipient is in a different country by airmail post within 24 hours of the e-mail or fax transmission having been sent.

13. Law

This agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.

Schedule 1 Processing, Personal Data and Data Subjects

1. The reason for this policy

   1. You have legal rights with regard to the way your personal data is handled.

   2. In the course of our business activities we collect, store and process personal data about our customers, suppliers and other third parties and therefore, in order to comply with the law and to maintain confidence in our business, we acknowledge the importance of correct and lawful treatment of this data.

    3. All people working in or with our business are obliged to comply with this policy when processing personal data.

2. Introduction

  1. This policy and any other documents referred to in it sets out the basis on which we will process any personal data we collect from data subjects, for example, customers and business contacts, or that is provided to us by data subjects or other sources.

  2. In this policy when we say “you’ or “your” we are generally referring to the data subjects unless the context requires otherwise.

  3. It also sets out our obligations in relation to data protection under the General Data Protection Regulation 2016 (“the GDPR Rules”).

  4. This policy sets out rules on data protection and the legal conditions that must be satisfied when we obtain, handle, process, transfer and store personal data.

  5. We agree to ensure that all of our directors, employees, consultants and agents comply with this policy.

  6. We aim to ensure the correct, lawful, and fair handling of your personal data and to respect your legal rights.

3. The meaning of key Data Protection terms

  1. data is information which is stored electronically, on a computer, or in certain paper-based filing systems.

  2. data subjects for the purpose of this policy include all living individuals about whom we hold personal data. A data subject need not be a UK national or resident. All data subjects have legal rights in relation to their personal information.

  3. personal data means data relating to a living individual who can be identified from that data (or from that data and other information in our possession). Personal data can be factual (for example, a name, address or date of birth) or it can be an opinion about that person, their actions and behaviour.

  4. data controllers are the people who or organisations which determine the purposes for which, and the manner in which, any personal data is processed. They are responsible for establishing practices and policies in line with the Act. We are the data controller of all personal data used in our business for our own commercial purposes.

  5. processing is any activity that involves use of personal data. It includes obtaining, recording or holding the data, or carrying out any operation or set of operations on the data including organising, amending, retrieving, using, disclosing, erasing or destroying it. Processing also includes transferring personal data to third parties.

4. Summary of the Data Protection Principles

This Policy aims to ensure compliance with the GDPR Rules.  The GDPR Rules sets out the following principles with which any party handling personal data must comply.  All personal data must be:

Processed fairly and lawfully – it must be processed fairly and lawfully and it must be processed – in relation to you as the data subject – in a transparent manner

  a) Processed for limited purposes and in an appropriate way –  the purposes for which it is collected must be explicit, specified and legitimate

  b) Adequate, relevant and not excessive for the purpose

  c) Accurate – as well as being accurate it must be kept up to date with inaccurate data deleted

  d) Not kept longer than necessary for the purpose

  e) Processed in line with data subject’s rights

  f) Security – there must appropriate technical or organisational measures to ensure appropriate security

  g) In addition, personal data must not be transferred outside the European Economic Area (the “EEA”) without adequate protection.

Section B:  Data Protection Principles

5. Notifying Data Subjects

As part of complying with the principles in para 4 above, if you provide us with personal data we will always try to tell you:

  1. the purpose or purposes for which we intend to process that personal data

  2. the types of third parties, if any, with which we will share or to which we will disclose that personal data

  3. how you can limit our use and disclosure of their personal data

  4. if we receive personal data from other sources.

6. Lawful, Fair, and Transparent Data Processing

The GDPR Rules are not intended to prevent the processing of personal data but to ensure that it is done fairly and without adversely affecting your rights.  The processing of personal data is lawful if one (or more) of the following applies:

  a) (consent) the data subject has consented for a specific purpose;

  b) (contract) if the data subject requests the processing with a view to entering into a contract or the processing is necessary for the performance of a contract

  c) (legal obligation) if the processing is necessary for the compliance with a legal obligation to which the data controller is subject

  d) (protection) processing is necessary to protect your vital interests or those of another natural person

  e) (public interest) it is in the public interest for a task to be carried out which requires such processing, or the task is to be carried out as a result of the exercise of any official authority held by the data controller;

  f) (legitimate interests) for the legitimate interest of the data controller or the party to whom the personal data is disclosed.

7. Processed for limited purposes and in an appropriate way

  1. In the course of our business, we may collect and process the personal data set out above. This may include personal data we receive directly from you (for example, by completing forms or by corresponding with us by mail, phone, email or otherwise) and data we receive from other sources (including, for example, business partners, sub-contractors in technical, payment and delivery services, credit reference agencies and others).

  2. We will only process personal data for the specific purposes set out above or for any other purposes specifically permitted by the GDPR Rules. We will notify those purposes to you when we first collect the personal data or as soon as possible thereafter.

8. Adequate, Relevant and not excessive for the purpose

We will only collect and process personal data for the specific purpose(s) set out above.

9. Accuracy of Data and Keeping Data Up To Date

We will keep your personal data accurate and up-to-date.  We will check its accuracy regularly.   When we find inaccurate or out-of-date data we will take reasonable steps to amend or erase that data.

10. Timely Processing

We will only keep your personal data for a period of time which we judge is relevant and necessary taking into account the purpose(s) of collecting the personal data which are specified above.

11. Processing that is secure

In addition to the measures above:

  1. we will make sure that the personal data we collect is securely kept and we stop unauthorised processing and prevent its loss, destruction or damage

  2. we will ensure that only people who are authorised to use personal data can access it and that we have entry controls to our premises and systems, lockable desks and cupboards for confidential personal data and destruction of hard copy documents and digital storage devices

  3. all authorised persons must ensure that individual monitors do not show confidential information to passers-by and that they log off from their PC when it is left unattended.