Terms of Service

TERMS AND CONDITIONS OF SUPPLY – these terms and conditions apply to all Master Service Agreements entered into by ARC X-MEDIA LIMITED with Customers and references herein to "this Agreement" and or "this Master Services Agreement" shall be construed accordingly.

In this Agreement, terms and expressions defined in an Order Form will have the same meaning when used in this Agreement and the following words expressions shall have the following meanings:

3PL Operations: means logistics fulfilment, warehousing, inventory management and despatch services;

3PL Provider: means any third party provider of 3PL Operations for the Customer as set out in an Order Form;

API: means an application program interface provided to the Customer by the Supplier for Use for the Purpose to enable the Customer’s IT systems to interact with the Supplier’s System to allow the Supplier to provide the Services to the Customer;

Charges: means the payments due in respect of the supply of the Services under each Contract as set out in the relevant Order Form;

Commencement Date: means the date of this Agreement;

Confidential Information: means all information (whether marked as confidential or which may reasonably be supposed to be confidential by its nature) that is disclosed (howsoever) by either party (the Disclosing Party) to the other (the Receiving Party) whether before or after the date of this Agreement including, without limitation the terms of this Agreement and information relating to the Disclosing Party’s operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, technology, computer software and hardware, information, documentation, data and opinions of whatever nature, market opportunities, customer, supplier and or distributor details, business affairs and shall also include (a) in respect of the confidential information of the Supplier, all information relating to or contained or embodied in the Services, the Equipment, any software made available or supplied by the Supplier under this Agreement whether or not the rights to such software vest in the Supplier or a third party (including without limitation the source codes, operation manuals, specifications and other documentation) and any access codes or passwords that may be allocated in order to allow the Customer to access the Services; and (b) in respect of the confidential information of the Customer, the Data;

Contract: means each contract between the Supplier and the Customer for the supply of Services by the Supplier arising from an Order Form;

Data: means the data that is downloaded or uploaded or delivered to or retrieved or obtained by the Supplier from the Customer and stored, processed and used by the Supplier through the Supplier’s System in delivering the Services;

Data Protection Laws: means the Data Protection Act 1998 and, with effect from the date on which it enters into force, the General Data Protection Regulation, and the enacted version of the Data Protection Bill 2017, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 together with any other additional and/or replacement laws applicable to the protection of personal data in force from time to time in England and Wales and any related or subordinate legislation and regulations made pursuant to any of them. The terms "personal data", "process", "data controller", "data processor" and "data subject" have the meanings attributed to them in the Data Protection Laws. The phrase "and/or" means either of the alternatives and both of the alternatives as the case may be.

End User: means any individual from the Customer or, where applicable, a 3PL who is Qualified on the Equipment and who may thereby use or themselves train and authorise named individuals to use the Equipment on behalf of the Customer or 3PL;

Force Majeure Event: means an event beyond the reasonable control of the affected party including, without limitation, third party strikes; lock-outs; labour disputes; acts of god; war; riot; civil commotion; malicious damage; accident; software failure; breakdown of plant or machinery (including, but not limited to, telecommunications systems, the internet and utility services); fire; flood and storm;

Form of Adherence: means the form of adherence set out in the Schedule hereto or otherwise required by the Supplier;

Equipment: means the printing equipment and other items (including parts, consumables and components for such printing equipment) used by the Supplier for the purpose of delivering the Services as set out in an Order Form and sited at the Location;

Intellectual Property Rights: means

  • (a) all or any intellectual property rights or equivalent including patents, trademarks, service marks, trade names, design rights (whether or not registered), domain names, copyright, rights in social media accounts, rights in designs, rights in inventions, rights in get up, logos, goodwill and rights to goodwill, database rights, rights in data and topography rights;
  • (b) all applications for and the right to apply for registration of any such rights and all renewals or extensions thereof or in relation thereto and all rights that derive priority from any such rights and all rights from which any such rights derive priority;
  • (c) know-how, trade secrets, Confidential Information and any other proprietary knowledge and/or information of whatever nature and however arising;
  • (d) and all accrued rights of action in relation to any of the rights in (a), (b) and (c) above and all rights to sue for past infringements or unauthorised use of such rights, rights to sue for passing off and all rights to claim and retain damages or seek an account of profit, together with any rights or types of protection of the same or similar nature to those listed above which subsist anywhere in the world whether before or after the date of this Agreement;

Liability: means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;

Order Form: means an order form for the supply of Services in the form prescribed by the Supplier from time to time and agreed in writing by the parties;

Purpose: means creating and despatching marketing materials to the Customer's customers and targets, for the Customer's internal business purposes only.

Qualified: means an individual who has satisfactorily completed relevant training from the Supplier in relation to the Equipment and is certified by the Supplier as competent to use the Equipment;

Service(s): means on demand variable data printing services to personalise multi-functional documents for marketing the Customer’s products, services and/or business delivered via the Supplier’s System as set out in an Order Form, to be supplied to the Customer or its 3PL Provider under the terms of each Contract;

Services Start Date: means in respect of each Contract, the earlier of (i) the date on which the Customer or its 3PL Provider first makes use of the Services or Equipment, or (ii) the date set out on the relevant Order Form;

Supplier’s System: means the system of hardware (including the API and the Equipment), software and databases known as the Retain. me system used by the Supplier to provide the Services;

Use: means use of the API to transmit Data to the rest of the Supplier's Systems to process instructions to the Equipment for the Purpose. The terms "personal data", "process", "data controller", "data processor" and "data subject" have the meanings attributed to them in the Data Protection Laws. The phrase "and/or" means either of the alternatives and both of the alternatives as the case may be.

  • 2.1 The Supplier shall supply the Services to the Customer (or, as the case may be, to the 3PL Provider) on and subject to the terms of this Agreement.
  • 2.2 Where Services are provided to a 3PL Provider, the Customer shall remain liable for the performance of its obligations and those of the 3PL Provider under this Agreement and shall procure that the relevant 3PL Provider abides by the provisions of this Agreement. Without limitation to the foregoing, the Customer shall procure that the 3PL Provider enters into a Form of Adherence. References in this clause 2 to the Customer shall be deemed to include a reference to any relevant 3PL.
  • 2.3 The Customer shall, in time to ensure the Services can commence by the Services Start Date, undergo the training and prepare the Location and the Customer’s information technology systems in accordance with the reasonable instructions of the Supplier to provide proper environmental, technological and operational conditions for the API and Equipment and performance of the Services.
  • 2.4 Without prejudice to the foregoing, the Customer shall only issue user names and passwords to End Users for the purpose of operating the Equipment and acknowledges and agrees that it is solely responsible for procuring, paying for and maintaining access to the internet to enable the Customer to use the Services. The Customer shall procure that no unauthorised access to and/or use is made of the Services and or the Equipment using the user name/or passwords allocated to the End Users or otherwise.
  • 2.5 The Customer acknowledges that the Supplier’s ability to meet its obligations under this Agreement shall depend on the Customer meeting its obligations hereunder and in relation hereto. Consequently in so far as the Supplier is prevented or delayed from fulfilling any of its obligations as a result of a delay or act or omission by the Customer, it shall not be Liable to the Customer for such failure and shall be entitled to an extension of time and recovery of all additional costs incurred by it as a result of any such delay, act or omission.
  • 2.6 The Supplier does not warrant and it is expressly accepted by the Customer that the Supplier shall have no Liability for any materials created through use of the Equipment or the Supplier's Systems.
  • 2.7 The Supplier shall use reasonable endeavours to ensure that access to the Services is available during normal working hours but does not warrant that the Services will be uninterrupted or error free. The Supplier shall wherever reasonably practicable give the Customer at least 24 hours prior written notice of all scheduled interruptions to the Services.
  • 3.1 This Master Services Agreement will come into force on the Commencement Date and continue in force until termination or expiration of the last Contract governed by this Master Services Agreement or until this Agreement is otherwise terminated in accordance its terms.
  • 3.2 Each Contract shall come into effect on agreement of the relevant Order Form and shall continue in force until the end of its Initial Period unless terminated earlier in accordance with this Agreement. If the Customer wishes to extend the Services beyond the Initial Period, it shall serve notice to such effect in writing on the Supplier at least one month before the expiry of the Initial Period. Any extension of the Services shall commence at the end of the Initial Period and continue for the full duration of the Minimum Service Period which shall, subject to agreement on any revised Charges required by the Supplier, thereafter renew automatically for further periods of equal duration to the Minimum Service Period (each a "Renewal Period"") unless and until the relevant Contract is terminated in accordance with the provisions of this Agreement.
  • 4.1 Each Contract shall expire automatically at the end of its Initial Period unless extended in accordance with clause 3.2.
  • 4.2 Either party may terminate a Contract upon the expiry of its Minimum Service Period or upon the expiry of any subsequent Renewal Period by giving at least ninety (90) days' prior written notice to the other party.
  • 4.3 If at any time there are no current Contracts, either party may terminate this Master Services Agreement upon 30 days’ prior written notice to the other party.
  • 4.4 If the Customer wishes to terminate (other than for material breach by the Supplier) any of the Services under a Contract during the Minimum Service Period or during any Renewal Period, the Customer shall pay the Charges for the remainder of the period in which the termination occurs. The Supplier shall notify the Customer in writing of that amount and the date that the payment is due.
  • 4.5 Either party may terminate this Master Services Agreement and all related Contracts, at any time on written notice to the other party with immediate effect, in the event that:
    • 4.5.1 the other party is in breach of any of its material obligations under this Agreement or under any Contract which is not remediable or, if remediable, which it has failed to remedy within fourteen (14) days' written notice requiring it to do so;
    • 4.5.2 the other party ceases to do business, becomes unable to pay its debts, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of bona fide solvent amalgamation or reconstruction) or any equivalent or similar action or proceeding is taken or suffered in any jurisdiction.
  • 4.6 The Supplier may terminate this Master Services Agreement and all related Contracts at any time on written notice to the Customer with immediate effect in the event that the Customer fails to pay any Charges under any Contract when due.
  • 4.7 Without prejudice to Clauses 4.5 and 4.6, the Supplier may, in its sole discretion, suspend with immediate effect all or any Services under any or all Contracts in the event that:
    • 4.7.1 the Customer is in material breach of this Agreement, including but not limited to any failure to pay any Charges when due under any Contract;
    • 4.7.2 or the Supplier needs to carry out any emergency maintenance or repairs to any part of the Supplier’s System, the Equipment or any networks or other infrastructure used to provide the Services (in which case the Supplier will use its reasonable endeavours to give as much notice of the suspension as is reasonably possible).
  • 4.8 In the event of a suspension pursuant to Clause 4.7.2, the Charges for the Services being suspended shall be temporarily suspended for the duration of the suspension of the Services. For the avoidance of doubt, no Charges shall be suspended under or in relation to any Contract in the event of a suspension under Clause 4.7.1 or for any planned maintenance.
  • 4.9 The Supplier shall not be liable for any loss or damage caused by its suspension or disconnection of any and all Services in accordance with Clause 4.7 or during any period of planned maintenance.
  • 4.10 On termination of this Agreement or any Contract for any reason, all licenses granted pursuant to this Agreement or the relevant Contract shall cease forthwith and the Customer shall (and shall procure that each 3PL Provider shall) immediately:
    • 4.10.1 cease all use of the relevant Services, Equipment and Confidential Information of the Supplier;
    • 4.10.2 return all copies of any Confidential Information of the Supplier (including but not limited to the API, any Supplier data, software and documentation) in its possession as directed by the Supplier (or at the Supplier’s option, destroy all such copies and certify such destruction in writing);
    • 4.10.3 and return the Equipment or, at the Supplier's discretion, permit the Supplier to access the Location at any time and remove all the Equipment at the Customer's cost.
  • 4.11 Termination shall be without prejudice to the accrued rights and liabilities of the parties.
  • 4.12 Clauses 1, 2.3, 2.4, 2.7, 4, 5, 7, 8, 10.2, 10.3, 10.4, 10.7, 10.8, 10.10, 10.11, 10.12, 10.13, 11, 12, 13.2, 13.4, 13.6, 13.10, 13.11, 13.12, 13.13, 14 and 15 shall survive termination of this Agreement.
  • 5.1 In consideration of the supply of the Services, the Customer shall pay the Charges to the Supplier, as directed in each Order Form, without any set-off, deduction, counterclaim and/or any withholding of monies and together with all applicable VAT.
  • 5.2 Unless agreed otherwise by the Supplier in writing, the Charges exclude any additional costs which are incurred as a result of the failure or delay of the Customer or a 3PL Provider to comply with its obligations under this Agreement, including but not limited to the failure or delay of the Customer or a 3PL Provider or any third party under the control of the Customer or 3PL Provider to execute the preliminary works referred to in clause 2.5 or allow the Supplier to perform the Services and/or install the Equipment at the Location or give the Supplier adequate information or instructions. The Customer will pay any such additional costs within 30 days of invoice.
  • 5.3 The Supplier may alter the Charges on not less than sixty (60) days’ prior written notice if the rates payable by the Supplier for obtaining any goods or services required to provide the Services are materially altered. If, following such notification, the revised Charges are not acceptable to the Customer, the Customer may terminate the applicable Contract by written notice served at least 30 days before the altered Charges are to take effect and shall pay all Charges up to termination at the rates applicable prior to the notification of the altered rates. If the Customer does not so terminate the applicable Contract, the Customer shall be deemed to have accepted the altered Charges from the date they were deemed to take effect as set out in the Supplier’s notice.
  • 5.4 The Customer shall pay all Charges within thirty (30) days of invoice.
  • 5.5 If any Charges or any other payments due under this Agreement are not paid by the Customer when due, the Supplier may, without prejudice to any other rights or remedies available to it in respect of such breach, charge interest both before and after the judgment on the overdue sum at a rate of 4% above the Supplier’s bank’s base rate from time to time, such interest to accrue daily and shall be compounded monthly.
  • 6.1 The Supplier warrants that it will exercise reasonable care and skill in performing the Services and its obligations under this Agreement.
  • 6.2 Each Party warrants and represents to the other that it will perform its obligations under this Agreement in compliance with all applicable laws (including health and safety laws), enactments, orders, regulations, industry-specific regulations, guidance and all applicable changes in law.

The Customer hereby agrees to indemnify and hold the Supplier harmless from and against all claims, demands, losses, damages, liabilities and expenses (including all legal expenses) which the Supplier may suffer or incur as a result of any breach of any term of this Agreement by the Customer or any relevant 3PL Provider, including as a result of the negligence, fraud, wilful default or breach of statutory duty or as a result of the Supplier carrying out any work required to be done in relation to the Services in accordance with the requirements or specifications of the Customer.

  • 8.1 The Supplier shall have no Liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s or the 3PL Provider’s continued use of defective Equipment and/or Services after a defect has become apparent or suspected.
  • 8.2 The Customer shall give or procure the Supplier is given a reasonable opportunity to remedy any matter for which the Supplier may be liable.
  • 8.3 The Supplier shall have no Liability to the Customer or the 3 PL Provider for any:
    • 8.3.1 expenses, loss of profits and/or damage to goodwill;
    • 8.3.2 pure economic and/or other similar losses;
    • 8.3.3 special damages;
    • 8.3.4 aggravated, punitive and/or exemplary damages;
    • 8.3.5 loss of communications;
    • 8.3.6 consequential losses and/or indirect losses;
    • 8.3.7 loss of and loss of use of software;
    • 8.3.8 security breach by any third party in relation to any communications network; and/or
    • 8.3.9 business interruption, loss of business, loss of contracts, loss of opportunity and/or production.
  • 8.4 The Supplier's total aggregate Liability to the Customer and or any 3PL Provider in relation to any claim or series of linked claims shall not exceed the aggregate of the Charges paid to the Supplier under the Contract giving rise to the claim during the 12 month period immediately preceding the relevant claim arising.
  • 8.5 Nothing in this Contract shall exclude or limit a party’s Liability for death or personal injury due to its negligence or the negligence of any of its agents or any Liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
  • 9.1 If a party is prevented, hindered or delayed from performing any of its obligations under this Agreement or any Contract (other than a payment obligation) by a Force Majeure Event, that party’s obligations under this Agreement are suspended while the Force Majeure Event continues to the extent that it is so prevented, hindered or delayed.
  • 9.2 If the Force Majeure Event continues for more than two (2) months, either party may terminate this Agreement or any relevant Contract by giving no less than fourteen (14) days’ notice to the other party.
  • 10.1 in consideration of and conditional on the payment by the Customer to the Supplier of the Charges, the Supplier grants to the Customer and/or the 3PL Provider a non-exclusive, non-transferable licence to Use the API for the Purpose (and for no other purpose) in accordance with and subject to the terms of this Agreement.
  • 10.2 the Customer shall not and shall procure that the 3PL Provider shall not:
    • 10.2.1 modify, translate, create or attempt to create derivative copies of or copy the Supplier’s Systems, the API or any software used to provide the Services in whole or in part;
    • 10.2.2 reverse engineer, decompile, disassemble or otherwise reduce the object code of the Supplier’s Systems, the API or any other software used to provide the Services to source code form otherwise than as and unless permitted by law; or
    • 10.2.3 distribute, sub-licence, assign, share, timeshare, sale, rent, lease, transmit, grant a security in trustee or otherwise transfer the Supplier Systems, the API or any other software used to provide the Services or any of the Services.
  • 10.3 The Customer shall procure all third party rights, licences and consents required to enable it and/or the 3PL Provider to use the Services and the Supplier to provide them (including all software licences (except for the licence required for the API which the Supplier shall procure) and consents and licences to use all the Data).
  • 10.4 The Customer warrants that:
    • 10.4.1 it owns all rights in the Data, all rights required to create the Data and any work from the Data and has the necessary permissions to allow the Supplier to carry out its obligations pursuant to this Agreement; and
    • 10.4.2 neither the Data nor any work created from the Data contravenes or breaches, or would contravene or breach, any applicable law, regulation, code of practice, or directive including, without limitation, consumer or trade regulations or data protection legislation or regulations; and
    • 10.4.3 neither the Data nor any work created from the Data infringes, or would infringe, any Intellectual Property Rights or other rights of any third parties nor are either of them obscene, defamatory, libellous or slanderous, nor will either of them cause injury to, invade the privacy of or otherwise violate any rights of any person.
  • 10.5 The Customer grants the Supplier a non-exclusive licence and shall procure such a licence from the 3PL Provider, with the right to sub-licence to the Supplier’s sub-contractors, for the duration of this Agreement to use the Customers and/or 3PL Provider’s information technology systems and the Data and all Intellectual Property Rights in any of them to the extent necessary to provide the Services to the Customer including creating works from the Data.
  • 11.1 The Receiving Party will:
    • 11.1.1 not use Confidential Information of the Disclosing Party for a purpose other than the performance of its obligations under this Agreement; and
    • 11.1.2 not disclose Confidential Information of the Disclosing Party to a person except with the prior written consent of the Disclosing Party or in accordance with Clauses 11.2 and 11.3.
  • 11.2 The Receiving Party may disclose Confidential Information to any of its directors, other officers, employees, professional advisors and contractors (a "Recipient") solely to the extent that disclosure is strictly necessary for the purposes of this Agreement.
  • 11.3 The Receiving Party will ensure that each Recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under this Agreement as if the Recipient was a party to this Agreement and shall indemnify the Disclosing Party for all loss and damage incurred as a result of the Recipient’s breach of confidentiality.
  • 11.4 Clauses 11.1 and 11.2 do not apply to Confidential Information:
    • 11.4.1 which is at the date of this Agreement, or at any time after that date becomes general public knowledge other than by the Receiving Party’s or a Recipient’s breach of this Agreement or any breach of confidence;
    • 11.4.2 which can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or
    • 11.4.3 the disclosure of which is required by law, or regulation, or order of court provided that the Receiving Party has taken all reasonable steps to minimise such disclosure.
  • 11.5 Obligations of confidentiality under this Clause shall continue and survive, notwithstanding termination of this Agreement.
  • 11.6 The parties acknowledge and agree that the Customer shall be the data controller in respect of any personal data contained within the Data and the Supplier shall be the data processor. The remainder of this clause will apply to these circumstances, or any other circumstances where the Supplier acts as the data processor of any personal data within the Data, for example where providing support for the Supplier's Systems to the Customer.
  • 11.7 The purposes for the processing of the Data, a description of the processing of the Data, the categories of data subjects covered by the Data and the categories of personal data within the Data are set out in the relevant order form applicable to the Services. The Supplier shall only process the Data for a maximum period which is equal to the duration of this Agreement with the Customer or longer if instructed by the Customer.
  • 11.8 The Supplier agrees to:
    • 11.8.1 only process the personal data for and on behalf of the Customer for the purposes of performing the Services to the Customer and in accordance with any other documented instructions issued by the Customer in writing from time to time (provided that such instructions are within the scope of the Supplier’s obligations under the agreement) unless otherwise required by law or any other regulatory body (in which case the Supplier shall, where permitted, inform the Customer of that other requirement before processing);
    • 11.8.2 not allow such Data to be processed by anyone who is not subject to a binding obligation of confidentiality;
    • 11.8.3 immediately notify and provide full details to the Customer of any potential or actual loss of personal data, take all measures necessary to remedy or address the breach or potential breach and cooperate with the Customer to resolve such issue;
    • 11.8.4 immediately notify the Customer of any contact with or investigation or audit of the Supplier in relation to Data by any regulatory authority prior to providing any information, unless the Supplier is prevented from doing so by law or court of competent jurisdiction;
    • 11.8.5 implement and at all times maintain an information security management system that includes all appropriate technical and organisational measures necessary or desirable to ensure a level of security appropriate to the risk against unauthorised or unlawful processing, accidental loss or destruction of or damage to personal data and enable the personal data to be processed in compliance with obligations equivalent to those imposed on the Customer under the Data Protection Laws and to ensure protection of the rights of the relevant data subjects;
    • 11.8.6 from time to time on request provide full details in writing of the Supplier's data processing activities in respect of the personal data, including the address of all locations where such processing takes place, and allow its data processing facilities, procedures and documentation which relate to the processing of the personal data to be inspected and audited (on reasonable written notice) by the Customer, a representative or auditor of the Customer or a regulatory body in order to ascertain compliance with Data Protection Laws and the terms of this Agreement; and
    • 11.8.7 on termination of this Agreement return (or, at the Customer’s discretion at any time upon instruction from the Customer, permanently delete) all personal data processed on behalf of the Customer pursuant to this Agreement (and permanently delete any copies, save to the extent retention is required by law or the extent that the Supplier is the data controller of the Data).
  • 11.9 In pursuance of the provision of the Supplier’s System, the Supplier may use some non- identifiable data that will be aggregated, anonymised and used for statistical reporting/providing information on the sector internally and to third parties. For example, the Supplier uses data collected to carry out market studies to support the Supplier’s customers generally. If the Customer does not provide consent to data being used in this unidentifiable manner, express written notification must be provided to the Supplier.
  • 11.10 Where the Customer requires assistance from the Supplier in order to respond to requests, queries and/or investigations in respect of the personal data within the Data or requires that the Supplier help the Customer in reconstructing and/or otherwise safeguarding the personal data within the Data or requires that the Supplier assists the Customer in complying with Data Protection Laws, the Supplier shall provide the Customer (at the Customer’s cost) with such assistance as the Customer reasonably requests within any timescales reasonably specified by the Customer.
  • 11.11 The Customer authorises the Supplier to appoint sub-processors from time to time provided that the Supplier shall notify Customer of any intended changes concerning the addition or replacement of other sub-processors and shall impose upon any sub-processor (and procure any sub-processor’s compliance with) the terms of this clause 11 as if the processing being carried out by the sub-processor was being carried out by the Supplier (and the Supplier shall be liable for the acts and omissions of such sub-processors as if they were the Supplier’s own acts and omissions under this agreement) and the sub-processor’s contract shall be governed by the law of a member state of the European Union or any of the countries within the United Kingdom.
  • 11.12 The Customer warrants that:
    • 11.12.1 all personal data provided by or on behalf of the Customer shall have been lawfully obtained and retained by the Customer (or its nominated third party);
    • 11.12.2 all necessary consents and data privacy notices have been provided in relation to the processing of personal data; and
    • 11.12.3 the Customer is lawfully entitled to provide, procure the provision of or authorise the Supplier to obtain (as the case may be) personal data for the purposes envisaged by this Agreement.
  • 11.13 From time to time during the term of this Agreement the Supplier shall (upon written request from the Customer):
    • 11.13.1 provide details in writing of its data processing activities in respect of the Data;
    • 11.13.2 on reasonable notice allow the Customer to audit its compliance with these terms (subject to any reasonable requirements or restrictions that the Supplier may impose to safeguard the personal data it holds on behalf of other clients and/or avoid unreasonable disruption to the Supplier’s business).
  • 11.14Each party shall:
    • 11.14.1 comply with all Data Protection Laws;
    • 11.14.2 only process personal data in accordance with the relevant principles under the Data Protection Laws;
    • 11.14.3 co-operate with any regulatory authority for data processing; and
    • 11.14.4 not do or omit to do anything which will place the other party in breach of any Data Protection Laws.
  • 11.15 The Customer warrants and represents that:
    • 11.15.1 the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the personal Data held by the Customer. Consequently, the Supplier shall not be Liable for any claim brought by a Data subject or otherwise arising from any action or omission by the Supplier, to the extent that such action or omission resulted from the Customer’s instructions or the instructions of its 3PL Provider.
    • 11.15.2 it has the right to allow the Supplier to process all Data and create works from them as part of the Services and the right to license the Supplier to receive and use the Data it holds, as contemplated by this Agreement; and
    • 11.15.3 the Data contains nothing that is defamatory or indecent; and
    • 11.15.4 all the Data is necessary, accurate and up-to-date.
  • 12.1 During this Agreement the Supplier shall be entitled to enter the Location on giving reasonable notice and during business hours to inspect, maintain, operate and/or carry out an audit of the Equipment. In the event that any of the Equipment is missing the Services may be immediately suspended and the Customer shall take all necessary steps at its own expense to recover possession and control of the Equipment or any part of which the Customer loses possession or control and if such Equipment cannot be accounted for by the Customer within 14 days then the Supplier shall be entitled to invoice the Customer for the Equipment or those items of Equipment that are missing at the then current price and the Customer shall pay the price to the Supplier within 10 days of invoice.
  • 12.2 Subject to the Customer adhering to the terms of this Agreement the Supplier agrees to install the Equipment at the Location and maintain the Equipment as the Supplier deems necessary and replace any faulty or inoperative parts of the Equipment without further charge to the Customer as to parts or labour excepting only faults or damage arising from:
    • 12.2.1 failure to use the Equipment in accordance with the instructions given by the Supplier; abnormal working conditions;
    • 12.2.2 abnormal working conditions;
    • 12.2.3 a defect where the defect has been caused by the Customer, the 3PL Provider or anyone except the Supplier;
    • 12.2.4 acts of theft or vandalism;
    • 12.2.4 any event which would normally be insured by a commercial insurance policy protecting against risks including but not limited to fire, flood, impact, lightning strikes or power surges and other such perils and/or any event for which the Customer is insured as long as such fault or damage is notified to the Supplier within 7 days of the fault or damage becoming apparent or suspected or when it should reasonably have become apparent to or suspected by the Customer or 3PL Provider.
  • 12.3 The Customer shall for the duration of this Agreement put in place and maintain adequate insurance cover with a reputable insurance company against any loss or damage to the Equipment in a sum agreed with the Supplier and shall when reasonably requested by the Supplier provide evidence to the Supplier that such coverage is in force
  • 12.4 The Customer shall indemnify the Supplier and keep it indemnified against all loss or damage to the Equipment not recoverable under a policy of insurance.
  • 13.1 Governing Law and Jurisdiction This Agreement and all disputes or claims arising out of it including non-contractual claims are governed by and shall be construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute or claim (including non-contractual claims) arising out of or in connection with this Agreement.
  • 13.2 Amendments Except as otherwise provided herein, this Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
  • 13.3 Assignment and Severability The Customer shall not assign its interest in this Agreement or any part of it without the prior written consent of the Supplier. The Supplier may assign its interest in this Agreement or any part of it and may sub-contract any of its obligations hereunder (and references in this Agreement to the Supplier shall be read and construed to include all and any such assignees or subcontractors).
  • 13.4 Notices Any notice required to be given by either party for the purposes of this Agreement will be deemed validly given if sent by prepaid registered letter to the other party at its address set out in this Agreement or as otherwise notified by a party from time to time.
  • 13.5 Remedies The rights and remedies provided under this Agreement are in addition to and not exclusive of any rights or remedies provided by law.
  • 13.6 Entire Agreement This Agreement and the terms of each Order Form constitute the entire agreement and understanding between the parties with respect to its or their subject matter and supersedes to the exclusion of any other agreement, understanding or arrangement between the parties whether oral or in writing (including, but not limited to, any terms and conditions set out in any purchase order or other documentation issued by the Customer). This Agreement is not affected by any other promise, representation, warranty, usage, custom or course of dealing. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement shall exclude liability for any fraudulent statement or act made prior to the date of this Agreement.
  • 13.7 Third Party Rights None of the terms and conditions of this Agreement shall be enforceable by any person who is not a party to it.
  • 14.1The Customer undertakes during the term of this Agreement and for twelve (12) months after its termination not to induce or attempt to entice away (whether directly or indirectly) any person who during the previous twelve (12) months has been employed or engaged by the Supplier to perform the Services.