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TERMS AND CONDITIONS

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8.

1. INTERPRETATION

1.1 DEFINITIONS:

Applicable Data Protection Laws:

  • a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
  • b) To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which Protos is subject, which relates to the protection of personal data.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change: an amendment to (a) the scope, nature, volume or execution of the Services under this Contract; or (b) any other term of this Contract.

Change Control Note: the written record of any Change agreed or to be agreed by the parties pursuant to the Change Control Procedure.

Change Control Procedure: the procedure for agreeing a Change, as set out in clause 3.6 to clause 3.10 (inclusive).

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 7.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 13.5.

Confidential Information: has the meaning given in clause 13.3(a).

Contract: the contracts between Protos and the Customer for the supply of Services in accordance with the Cover Sheet and these Conditions.

Control: shall be defined in sections 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Cover Sheet: the cover sheet at the beginning of this Contract, setting out the contract particulars.

Customer: the person or firm who purchases Services from Protos and whose details are provided in the Cover Sheet.

Customer Default: has the meaning set out in clause 6.1.

Deliverables: the deliverables set out in the Cover Sheet, produced by Protos for the Customer.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

Fees: the fees payable by the Customer for the Services (including any Deliverables) under this Contract.

Hired Goods: has the meaning given in clause 4.1.

Intellectual Property Rights: patents, rights to inventions, copyright (including in proposals and quotations) and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Minimum Term: the minimum term of the Contract, in months, as set out on the Cover Sheet.

Managed Service: the managing and monitoring of a network by Protos for the Customer as part of the Services as set out in the Specification which may include (but is not limited to) cyber security monitoring and advice and cloud technology monitoring.

Order: the Customer’s order for Services as set out in the Customer’s purchase order form.

Payment Due Date: the Payment Due Date specified in the Cover Sheet.

Protos: PROTOS NETWORKS LIMITED registered in England and Wales with company number 07764959 whose registered office is Poplar House Park West, Sealand Road, Chester, England, CH1 4RN.

Risk Period: has the meaning given in clause 4.4

Service Level Agreement: the service level agreement contained in the Schedule to this Contract.

Services: the services, including the Deliverables, supplied by Protos to the Customer as set out in the Specification.

Specification: the description or specification of the Services set out in the Cover Sheet.

Supplier Materials: has the meaning set out in clause 5.1(g).

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

1.2 INTERPRETATION

a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

c) A reference to writing or written includes e-mail but not fax.

d) Clause, paragraph and Schedule headings shall not affect the interpretation of this Contract.

e) References to clauses and the Schedules are to clauses of and the Schedules to this Contract, and references to paragraphs are to paragraphs of the Schedules to this Contract.

f) The Cover Sheet and Schedules form part of this Contract and shall have effect as if set out in full in the body of this Contract. Any reference to this Contract includes the Cover Sheet and the Schedules.

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when Protos issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

2.3 The Contract shall continue for the Minimum Term, after which it shall automatically extend for an Extended Term at the end of the Minimum Term and at the end of each Extended Term until either party gives notice to the other party in accordance with clause 11 (Termination) to terminate this Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

2.4 Any samples, drawings, descriptive matter or advertising issued by Protos, and any descriptions or illustrations contained in Protos’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by Protos shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue.

 

3. SUPPLY OF SERVICES AND CHANGE CONTROL

3.1 Protos shall supply the Services to the Customer in accordance with the Specification and the Service Level Agreement in all material respects.

3.2 The Customer acknowledges that Protos’ ability to carry out the Services may be limited in accordance with any terms and conditions of relevant third parties that may supply equipment or support to Protos, details of which shall be annexed to the Order.

3.3 Protos shall use all reasonable endeavours to meet any performance dates specified in the Order or Cover Sheet (as the case may be), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4 The risk in any Deliverables (including, but not limited to, any goods or equipment) shall pass to the Customer on completion of delivery. Title to any Deliverables (including, but not limited to, any goods or equipment) which the Customer has paid for (and which, for the avoidance of doubt, are not specified in the Cover Sheet as being on hire to the Customer) shall not pass to the Customer until Protos receives payment in full (in cash or cleared funds) for those Deliverables.

3.5 Protos shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Protos shall notify the Customer in any such event.

3.6 Either party may submit a written request for Change to the other party in accordance with this clause 3, but no Change will come into effect until a Change Control Note has been signed by the authorised representatives of both parties.

3.7 If the Customer requests a Change:

  • a) the Customer will submit a written request to Protos containing as much information as is necessary to enable Protos to prepare a Change Control Note; and
  • b) within 15 Business Days of receipt of a request, unless otherwise agreed in writing by the parties, Protos will send to the Customer a Change Control Note.

3.8 If Protos requests a Change, it will send to the Customer a Change Control Note.

3.9 A Change Control Note must contain sufficient information to enable the Customer to assess the Change, including as a minimum:

  • a) the title of the Change;
  • b) the originator of the Change and date of request;
  • c) description of the Change;
  • d) details of the effect of the proposed Change on:
  • e) the Services;
  • f) the Fees;
  • g) any systems or operations of the Customer which communicate with, or are otherwise affected by, the Services; and
  • h) any other term of this Contract;
  • i) the date of expiry of validity of the Change Control Note; and
  • j) provision for signature by the Customer and Protos.

3.10 If, following the Customer’s receipt of a Change Control Note pursuant to clause 3.7 or clause 3.8:

  • a) the parties agree the terms of the relevant Change Control Note, they will sign it and that Change Control Note will amend this Contract;
  • b) either party does not agree to any term of the Change Control Note, then the parties shall meet as soon as possible to agree terms in relation to the Change.

4. EQUIPMENT HIRE

4.1 Where the Cover Sheet specifies that any Equipment or Deliverables (Hired Goods) will be on hire to the Customer, Protos shall hire the Hired Goods to the Customer for use at the Delivery Location (specified in the Cover Sheet) subject to the terms and conditions of this Contract.

4.2 Protos shall not, other than in the exercise of its rights under this Contract or applicable law, interfere with the Customer’s quiet possession of the Hired Goods.

4.3 The Rental Period starts on the Commencement Date and shall continue unless and until this Contract is terminated earlier in accordance with its terms, or for any shorter period if specified in the Cover Sheet.

4.4 The Hired Goods shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Hired Goods are in the possession, custody or control of the Customer (Risk Period) until such time as the Hired Goods are redelivered to Protos. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:

  • a) insurance of the Hired Goods to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Protos may from time to time nominate in writing;
  • b) insurance for such amounts as a prudent owner or operator of the Hired Goods would insure for, or such amount as Protos may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Hired Goods; and
  • c) insurance against such other or further risks relating to the Hired Goods as may be required by law, together with such other insurance as Protos may from time to time consider reasonably necessary and advise to the Customer in writing.

4.5 All insurance policies procured by the Customer shall be endorsed to provide Protos with at least 20 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on Protos’ request name Protos on the policies as a loss payee in relation to any claim relating to the Hired Goods. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.

4.6 The Customer shall give immediate written notice to Protos in the event of any loss, accident or damage to the Hired Goods arising out of or in connection with the Customer’s possession or use of the Hired Goods.

4.7 If the Customer fails to effect or maintain any of the insurances required under this Contract, Protos 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.

4.8 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Protos and proof of premium payment to Protos to confirm the insurance arrangements.

4.9 The Customer shall during the Rental Period:

  • a) ensure that the Hired Goods are kept and operated in a suitable environment;
  • b) take such steps (including compliance with all safety and usage instructions provided by Protos) as may be necessary to ensure, so far as is reasonably practicable, that the Hired Goods are at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
  • c) maintain at its own expense the Hired Goods in good and substantial repair in order to keep them in as good an operating condition as they were on the date of delivery (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Hired Goods;
  • d) make no alteration to the Hired Goods and shall not remove any existing component (or components) from the Hired Goods without the prior written consent of Protos;
  • e) keep Protos fully informed of all material matters relating to the Hired Goods;
  • f) keep the Hired Goods at all times at the Delivery Location and shall not move or attempt to move any part of the Hired Goods to any other location without Protos’ prior written consent;
  • g) permit Protos or its duly authorised representative to inspect the Hired Goods at all reasonable times and for such purpose to enter on the Delivery Location or any premises at which the Hired Goods may be located, and shall grant reasonable access and facilities for such inspection;
  • h) maintain operating and maintenance records of the Hired Goods and make copies of such records readily available to Protos, together with such additional information as Protos may reasonably require;
  • i) not, without the prior written consent of Protos, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Hired Goods or allow the creation of any mortgage, charge, lien or other security interest in respect of them;
  • j) not without the prior written consent of Protos, attach the Hired Goods to any land or building so as to cause any Hired Goods to become a permanent or immovable fixture on such land or building. If the Hired Goods do become affixed to any land or building then the Hired Goods must be capable of being removed without material injury to such land or building and Customer shall repair and make good any damage caused by the affixation or removal of the Hired Goods from any land or building and indemnify Protos against all losses, costs or expenses incurred as a result of such affixation or removal;
  • k) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Protos in the Hired Goods and, where the Hired Goods have become affixed to any land or building, the Customer must take all necessary steps to ensure that Protos may enter such land or building and recover the Hired Goods both during the term of this Contract 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 Protos of any rights such person may have or acquire in the Hired Goods and a right for Protos to enter onto such land or building to remove the Hired Goods;
  • l) not suffer or permit the Hired Goods to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Hired Goods are so confiscated, seized or taken, the Customer shall notify Protos and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Hired Goods and shall indemnify Protos on demand against all losses, costs, charges, damages and expenses reasonably incurred as a result of such confiscation;
  • m) not use the Hired Goods for any unlawful purpose;
  • n) ensure that at all times the Hired Goods remain identifiable as being Protos’ property and wherever possible shall ensure that a visible sign to that effect is attached to the Hired Goods;
  • o) deliver up the Hired Goods at the end of the Rental Period at such address as Protos requires, or if necessary allow Protos or its representatives access to the Delivery Location or any premises where the Hired Goods are located for the purpose of removing the Hired Goods; and
  • p) not do or permit to be done anything which could invalidate the insurances referred to in clause 4.4.

 

4.10 The Customer acknowledges that Protos shall not be responsible for any loss of or damage to the Hired Goods arising out of or in connection with any negligence, misuse, mishandling of the Hired Goods or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer shall indemnify Protos in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Protos arising out of, or in connection with any failure by the Customer to comply with the terms of this clause 4.

5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

  • a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
  • b) co-operate with Protos in all matters relating to the Services;
  • c) provide Protos, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Protos;
  • d) provide Protos with such information and materials as Protos may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
  • e) prepare the Customer’s premises for the supply of the Services, including (but not limited to) ensuring there an electricity supply and a stable wifi connection, and sufficient space to rack equipment required for the supply of Services;
  • f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
  • g) keep and maintain all materials, equipment, documents and other property of Protos (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Protos, and not dispose of or use the Supplier Materials other than in accordance with Protos’ written instructions or authorisation;
  • h) abide by the terms and conditions of any relevant third parties that may supply equipment or support to the Customer or Protos as part of the Services, details of which shall be annexed to the Order;
  • i) be responsible for setting out any relevant network or security policies and for enforcing such policies (and the Customer acknowledges that should it disregard any advice provided by Protos in respect of such policies then the provisions of clause 10.3 shall apply);
  • j) be responsible for password control of any guest wifi or network;
  • k) be responsible for complying with any Applicable Data Protection Laws in force from time to time that may affect the network; and
  • l) comply with any additional obligations as set out in the Specification.

6. PROTOS’ OBLIGATIONS

6.1 If Protos’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

  • a) Protos shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Protos’ performance of any of its obligations;
  • b) Protos shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Protos’ failure or delay to perform any of its obligations as set out in this Contract; and
  • c) the Customer shall reimburse Protos on written demand for any costs or losses sustained or incurred by Protos arising directly or indirectly from the Customer Default.

7. CHARGES AND PAYMENTS

7.1 The Charges for the Services shall be on a time and materials basis:

    • a) the Charges for the Services shall include an installation fee as set out in the Order which Protos may invoice at any time on or after the Commencement Date;
    • b) the Charges for the Services shall thereafter be calculated in accordance with Protos’ standard monthly fee rates, and the Service Level (as defined in the Schedule) chosen by the Customer, as set out in the Order;
    • c) Protos shall be entitled to charge an hourly overtime rate as set out in the Order for any time worked by individuals whom it engages on the Services outside the hours referred to in the Order; and
    • d) Protos shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Protos engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Protos for the performance of the Services, and for the cost of any materials.

7.2) Charges for the Managed Service shall be on a time and materials basis:

  • a) the Charges for the Managed Service shall be calculated in accordance with Protos’ standard monthly network support fee rates, and the Service Level (as defined in the Service Level Agreement) chosen by the Customer, as set out in the Order and confirmed on the Cover Sheet;
  • b) Protos shall be entitled to charge an hourly overtime rate as set out in the Order for any time worked by individuals whom it engages on the Managed Service outside the hours referred to in the Order; and
  • c) Protos shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Protos engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Protos for the performance of the Services, and for the cost of any materials.

7.3 Protos reserves the right to increase its Fees, provided that such charges cannot be increased more than once in any 12-month period. Protos will give the Customer prior written notice of any such increase at least 4 weeks before the proposed date of the increase. Any increase shall only take effect from the date of expiration of the Minimum Term or relevant Extended Term.

7.4 Protos shall invoice the Customer monthly on the first day of each calendar month.

7.5 The Customer shall pay each invoice submitted by Protos:

  • a) no later than its Payment Due Date or, if no Payment Due Date is specified on the Cover Sheet, within 28 days of the date of the invoice; and
  • b) in full and in cleared funds to a bank account nominated in writing by Protos, and time for payment shall be of the essence of the Contract.

7.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Protos to the Customer the Customer shall, on receipt of a valid VAT invoice from Protos, pay to Protos such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.7 If the Customer fails to make any payment due to Protos under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per cent per annum above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Protos may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Protos to the Customer.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Protos (to the extent that they are not owned by any third party).

8.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Protos obtaining a written licence from the relevant licensor on such terms as will entitle Protos to license such rights to the Customer. Protos shall not be liable to the Customer if for any reason a third party does not grant either Protos or the Customer a licence for any reason (including the third party entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business) nor shall Protos be liable to the Customer for any losses it suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables.

8.3 All Supplier Materials and Deliverables are the exclusive property of Protos or its licensors and Protos or its licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials and any Deliverables.

 

9. INDEMNITY

9.1 The Customer will indemnify and hold harmless Protos against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Protos arising directly or indirectly from:

  • a) the provision of the Services under the terms of this Contract;
  • b) the breach by the Customer of any of the terms of this Contract including (but not limited to) early termination of this Contract; or
  • c) arising out of or in connection with any claim brought against Protos, its agents, subcontractors or consultants for actual or alleged infringement by the Customer of a third party’s Intellectual Property Rights.

10. LIMITATION OF LIABILITY

THE CUSTOMER’S ATTENTION PARTICULARLY DRAWN TO THIS CLAUSE.

10.1 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

10.2 Nothing in this clause 10 shall limit the Customer’s payment obligations under the Contract.

10.3 Nothing in the Contract shall limit or exclude Protos’ liability for:

  • a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • b) fraud or fraudulent misrepresentation; or
  • c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

10.4 Subject to clause 10.1 and clause 10.3, Protos shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

  • a) loss of profits;
  • b) loss of sales or business;
  • c) loss of agreements or contracts;
  • d) loss of anticipated savings;
  • e) loss of use or corruption of software, data or information;
  • f) loss of damage to goodwill; and
  • g) any indirect or consequential loss.

10.5 The Customer acknowledges that with regard to the Managed Service it is not possible to create a secure system that guarantees absolute security when that system is exposed to network and physical access. The Customer is responsible for defining the security policy for their organisation and the Customer should maintain a heightened level of cyber awareness, including endpoint security, robust user policies, regular software and password updates and secure configuration of servers and other devices in its control. If the Customer chooses not to follow any instructions or advice from Protos that Protos believes may compromise the security of the Customer’s network, the Customer hereby waives all claims it may have against Protos or its employees, officers, representatives, subcontractors or agents arising (whether directly or indirectly) from the Customer’s decision to proceed against Protos’ recommendations. Protos may further require the Customer to sign, and the Customer hereby agrees to sign, a disclaimer stating that the Customer wishes to proceed against Protos’ recommendations and that it shall have no claim against Protos or its employees, officers, representatives, subcontractors or agents arising (whether directly or indirectly) from the Customer’s decision to proceed against Protos’ recommendations.

10.6 Subject to clause 10.1 and clause 10.3, Protos’ total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to £10,000 or an amount equal to the total Charges paid during the preceding 12 months under the Contract, whichever is lower.

10.7 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.8 Unless the Customer notifies Protos that it intends to make a claim in respect of an event within the notice period, Protos shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

10.9 This clause 10 shall survive termination of the Contract.

 

11. TERMINATION

11.1 Without limiting its other rights or remedies, the Customer may terminate the Contract at the end of the Minimum Term or relevant Extended Term by giving Protos at least 12 weeks’ prior written notice (such notice to expire at the end of the Minimum Term or relevant Extended Term in which notice is given.

11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

  • a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 Business Days of that party being notified in writing to do so;
  • b) the other party 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 within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
  • c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  • e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) [other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
  • g) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
  • h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
  • i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
  • j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(b) to clause 11.2(i) (inclusive);
  • k) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • l) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.3 Without limiting its other rights or remedies, Protos may terminate the Contract with immediate effect by giving written notice to the Customer if:

  • a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
  • b) there is a change of Control of the Customer.

11.4 Without limiting its other rights or remedies, Protos may suspend provision of the Services (including by immediately turning off or withdrawing any system that it provides to the Customer) under the Contract or any other contract between the Customer and Protos if the Customer becomes subject to any of the events listed in clause 11.2(b) to clause 11.2(i) (inclusive) or Protos reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

12. CONSEQUENCES OF TERMINATION

12.1 On termination of the Contract for any reason:

  • a) the Customer shall immediately pay to Protos all of Protos’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Protos shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  • b) in respect of any sums that would have become payable by the Customer to Protos for the remainder of the Minimum Term (or any subsequent 12 month term), Protos shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  • c) any sums that have been previously overpaid by the Customer to Protos shall be used to clear any remaining outstanding sums owed to Protos by the Customer, after which the balance of overpaid sums (if any) shall be paid by Protos to a bank account nominated in writing by the Customer within 14 days of the monies owed to Protos being cleared;
  • d) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Protos may enter the Customer’s premises and take possession of them (though is not obliged to). Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
  • e) Protos shall be entitled to revoke any licences provided to the Customer (including, but not limited to, any software licences, whether or not these are Deliverables) which have not been fully paid for;
  • f) in respect of the Supplier Materials and any Deliverables which have been fully paid for, the Customer shall be solely responsible for their safe keeping and acknowledges that in respect of licenced equipment, such equipment will stop working once the licence expires;
  • g) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
  • h) clauses which expressly or by implication survive termination shall continue in full force and effect.

13. GENERAL

13.1 Force majeure.

  • a) In this Contract, Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
    • i) acts of God, flood, drought, earthquake or other natural disaster;
    • ii) epidemic or pandemic;
    • iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
    • iv) nuclear, chemical or biological contamination or sonic boom;
    • v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
    • vi) collapse of buildings, fire, explosion or accident; and
    • vii) interruption or failure of utility service.
  • b) Provided it has complied with clause 13.1(c), if a party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
  • c) The Affected Party shall:
    • i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
    • ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
  • d) If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this Contract by giving 12 weeks’ written notice to the Affected Party.


13.2 Assignment and other dealings.

  • a) Protos may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
  • b) The Customer shall not, without the prior written consent of Protos, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.


13.3 Confidentiality

  • a) In this Contract, Confidential Information means all confidential information which either party (Discloser) or its employees, officers, representatives, subcontractors or agents directly or indirectly discloses, or makes available, to the other party (Recipient) or its employees, officers, representatives, subcontractors or agents. This includes:
    • i) all confidential or proprietary information relating to the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Discloser;
    • ii) all confidential or proprietary information relating to the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the Discloser;
    • iii) any information, findings, data or analysis derived from Confidential Information; and
    • iv) any other information that is identified as being of a confidential or proprietary nature, but excludes any information referred to in clause 13.3(b).
  • b) Information is not Confidential Information if:
    • i) it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient or its employees, officers, representatives, subcontractors or agents in breach of this Contract;
    • ii) it was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
    • iii) it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient’s knowledge, is not under any confidentiality obligation in respect of that information;
    • iv) it was lawfully in the possession of the Recipient before the information was disclosed by the Discloser; or
    • v) the parties agree in writing that the information is not confidential.
  • c) 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 clause 13.3(d).
  • d) Each party may disclose the other party’s confidential information:
    • i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13.3; and
    • ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • e) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.


13.4 Entire Agreement.

  • a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.


3.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


3.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

  • a) waive that or any other right or remedy; or
  • b) prevent or restrict the further exercise of that or any other right or remedy.


3.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.


3.8 Notices.

  • a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party (if sent by pre-paid first class post or other next working day delivery service, or delivered personally) at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause; or (if sent by email) sent to the email address for that party provided on the Cover Sheet, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
  • b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
  • c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.


13.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.


13.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.


13.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.


13.12 Data Protection.

  • a) For the purposes of this clause 13.12, references to personal data, data subject, personal data breach, processing, processor and controller shall have the meaning given to them in the UK GDPR.
  • b) Each party shall comply with the applicable requirements of the Applicable Data Protection Laws. This clause 13.12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
  • c) When Protos processes any personal data collected from or about individuals on the Customer’s behalf when performing its obligations under this Contract, the parties record their intention that the Customer shall be the controller in respect of such personal data and Protos shall be the processor in relation to such personal data and Protos agrees that it will:
    • i) such personal data only in accordance with the Customer’s written instructions;
    • ii) promptly notify the Customer if Protos receives notice of any complaint or communication which relates to the processing of such personal data or to either party’s compliance with Applicable Data Protection Laws unless legally prohibited;
    • iii) take appropriate technical and organisational security measures against unauthorised or unlawful processing of such personal data and against accidental loss of or damage to such personal data in accordance with the Seventh Data Protection Principle as set out in the Data Protection Act 2018 and any legislation replacing or supplementing the same, which shall include the measures set out in this Contract;
    • iv) not engage another processor without the prior specific or general written consent of the Customer;
    • v) as an exception to the requirements of clause 13.12(c)(iv), the Customer agrees that in an emergency situation where disclosure or transfer of such personal data is necessary to preserve the integrity of the personal data, Protos shall be entitled to disclose or transfer such personal data to a third party to the extent only as is required for such purpose. Protos shall inform the Customer of the intended disclosure or transfer, together with the identity of the third party, where possible prior to the event or where pre-notification is not possible as soon as possible after the event, in order to give the Customer the opportunity to object to such disclosure or transfer;
    • vi) ensure that with effect from 25th May 2018 any disclosure or transfer of such personal data to third parties pursuant to sub-clauses 13.12(c)(iv) and 13.12(c)(v) shall be made subject to the same data protection obligations as are contained in this clause 13.12(c) by way of contract or other legal act under EU or Member State law;
    • vii) not cause or permit any personal data to be transferred to countries outside the European Economic Area that have not received a binding adequacy decision by the European Commission or competent national data protection authority unless subject to the terms of the EU Standard Contractual Clauses or other appropriate transfer mechanism that provides an adequate level of protection in accordance with Applicable Data Protection Laws;
    • viii) give reasonable assistance to the Customer to enable it to respond within required timescales to a request made by a data subject to exercise his or her rights under Applicable Data Protection Laws in relation to personal data processed by Protos on behalf of the Customer;
    • ix) taking into account the nature of Protos’ processing and the information available to Protos:
      • a) provide reasonable assistance to the Customer in undertaking data protection impact assessments relating to the Services provided by Protos; and
      • b) provide reasonable assistance to the Customer in ensuring compliance with the Customer’s security and breach notification obligations under Applicable Data Protection Laws;
    • x) ensure that persons authorised on behalf of Protos and its sub-contractors to process such personal data are committed to contractually binding confidentiality commitments or are subject to a statutory obligation of confidentiality;
    • xi) promptly notify the Customer if it becomes aware of any personal data breach that involves personal data processed by Protos on behalf of the Customer;
    • xii) take all reasonable steps to address such a personal data breach, including, where appropriate, measures to mitigate its possible adverse effects and shall consult with the Customer in respect of such resolution or mitigation;
    • xiii) at the Customer’s option, delete or return all such personal data to the Customer on termination of this Contract and delete existing copies except to the extent that retention;
    • XIV) make available to the Customer and its regulators all information necessary to demonstrate compliance with the obligations in this clause 13.12(c).
  • d) Should the determination in clause 13.12(c) change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 13.12.
  • e) Without prejudice to clause 13.12(b), the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Protos and lawful collection of the same by Protos for the duration and purposes of this Contract.

Solutions

Sectors

Services