Terms and Conditions Supply of access to DataGuardsman

 (A) The agreement to supply the Product is made on the Effective Date between us, the Reseller and you, the business entity ("the Client"), which upon accepting these terms and conditions and making the agreed payment or other subscriptions to the Reseller will be entitled to use Dataguardsman on-line Data Protection Legislation compliance system.

 (B) Dataguardsman has developed Dataguardsman on-line Data Protection Legislation compliance system (the System) which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of Data Protection Legislation compliance

(C) The Client wishes to use the System in its business operations.

(D) Dataguardsman will provide and the Client has agreed with the Reseller to take and pay for the Dataguardsman System subject to the terms and conditions of this Agreement.

(E) Please read these terms and conditions before subscribing for Dataguardsman. By subscribing to the Dataguardsman System you agree to and accept these terms and conditions.

 

AGREED TERMS

 

  1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this agreement

1.2

The Act: The Data Protection Act 2018 as amended replaced or substituted at any time.

Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.

Client Data: the data inputted by the Client, Authorised Users, the Reseller or Dataguardsman on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services.

Data Protection Legislation: the Act and GDPR as applicable in the United Kingdom.

Documentation: the documents and policies made available to the Client by Dataguardsman online via www.dataguardsman.co.uk or such other web address notified by Dataguardsman to the Client from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date when the first subscription is received by Dataguardsman.

Employees: means full or part time employees of the Client but excludes independent contractors or agents.

GDPR: the General Data Protection Regulation 2016.

Initial Subscription Term: the period of 12 months commencing on and including the Effective Date.

Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Renewal Period: the period described in clause 15.1.

Services: the subscription services provided by Dataguardsman to the Client under this agreement via www.dataguardsman.co.uk or any other website notified to the Client by Dataguardsman from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by Dataguardsman as part of the Services.

Subscription Fees: the annual subscription fees payable by the Client for the User Subscriptions.

Subscription Term: has the meaning given in clause 15.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.

Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices

1.3 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.5 A reference to a Client shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Words in the singular shall include the plural and vice versa.

1.7 A reference to one gender shall include a reference to the other genders.

1.8 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.9 A reference to writing or written includes faxes but not e-mail.

1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

 

  1. USER SUBSCRIPTIONS

2.1 Subject to the Client purchasing the User Subscriptions in accordance with clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Dataguardsman will grant to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Client's internal business operations and not for onwards sharing, use, resale or distribution of any kind including within their own group of companies or related businesses.

2.2 In relation to the Authorised Users, the Client undertakes that:

(a) Each Authorised User shall keep a secure password for his use of the Services and Documentation.

(b) it shall permit Dataguardsman to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Dataguardsman's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;

(c) if any of the audits referred to in clause 2.2(b) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Dataguardsman's other rights, the Client shall promptly disable such passwords and Dataguardsman shall not issue any new passwords to any such individual; and.

(d) if any of the audits referred to in clause 2.2(b) reveal that the Client has underpaid Subscription Fees to Dataguardsman, then without prejudice to Dataguardsman's other rights, the Client shall pay to Dataguardsman an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.

2.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or.

(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;

and Dataguardsman reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.

2.4 The Client shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or

(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and

2.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Dataguardsman.

2.6 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

 

  1. FREE TRIALS

No charge will be made for the use of the services during "free trial" period (IF ANY). The Client is not however entitled to benefit from more than one free trial.

 

  1. SERVICES

4.1 Dataguardsman shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.

4.2 Dataguardsman shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Dataguardsman has used reasonable endeavours to give the Client at least 6 Normal Business Hours' notice in advance.

4.3 Dataguardsman will, as part of the Services and at no additional cost to the Client, provide the Client with Dataguardsman's standard Client support services during Normal Business Hours in accordance with Dataguardsman's Support Services Policy in effect at the time that the Services are provided. Dataguardsman may amend the Support Services Policy in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at Dataguardsman's then current rates.

 

  1. CLIENT DATA

5.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

5.2 Dataguardsman shall follow its archiving procedures for Client Data as set out in its back-up policy as such document may be amended by Dataguardsman in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy shall be for Dataguardsman to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Dataguardsman in accordance with the archiving procedure described in its back up policy. Dataguardsman shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Dataguardsman to perform services related to Client Data maintenance and back-up).

5.3 Dataguardsman shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Client Data as such document may be amended from time to time by Dataguardsman in its sole discretion.

5.4 If Dataguardsman processes any personal data on the Client's behalf when performing its obligations in relation to maintenance of the System under this agreement, the parties record their intention that the Client shall be the data controller and Dataguardsman shall be a data processor and in any such case:

(a) the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the Services and Dataguardsman's other obligations under this agreement;

(b) the Client shall ensure that the Client is entitled to transfer the relevant personal data to Dataguardsman so that Dataguardsman may lawfully use, process and transfer the personal data in accordance with this agreement on the Client's behalf;

(c) the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

 

  1. THIRD PARTY PROVIDERS

The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Dataguardsman makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not Dataguardsman. Dataguardsman recommends that the Client refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Dataguardsman does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

 

  1. DATAGUARDSMAN'S OBLIGATIONS

7.1 Dataguardsman undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Dataguardsman's instructions, or modification or alteration of the Services by any party other than Dataguardsman or Dataguardsman's duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Dataguardsman will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Dataguardsman:

(a) does not warrant that the Client's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client's requirements; and.

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities

7.3 This agreement shall not prevent Dataguardsman from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

7.4 Dataguardsman warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

 

  1. CLIENT'S OBLIGATIONS

The Client shall:

(a) provide Dataguardsman and the Reseller with:

(i) all necessary co-operation in relation to this agreement; and

(ii) all necessary access to such information as may be required by Dataguardsman or the Reseller;

(a) In order to provide the Services, including but not limited to Client Data, security access information and configuration services;

(b) comply with all applicable laws and regulations with respect to its activities under this agreement;

(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, (d)Dataguardsman may adjust any agreed timetable or delivery schedule as reasonably necessary;

(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;

(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Dataguardsman, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(g) ensure that its network and systems comply with the relevant specifications provided by Dataguardsman from time to time; and

(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Dataguardsman's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.

 

  1. CHARGES AND PAYMENT

9.1 The Client shall pay the Subscription Fees for access to the System for the User Subscriptions in accordance with this clause 9 annually in advance.

9.2 The Client shall pay to the Reseller the subscription fee on or before the Effective Date and then on each anniversary of the Effective Date or the nearest Business Day to it.

9.3 The Client shall continue to pay the Subscription Fee unless and until the agreement is terminated in accordance with clause 13.

9.4 The subscription fee for the Services shall be the amount invoiced by the Reseller.

9.5 If the Reseller has not received payment from the Client (or Dataguardsman not received payment from the Reseller) within 20 days after the due date, and without prejudice to any other rights and remedies of the Reseller or Dataguardsman respectively:

(a) Dataguardsman may, without liability to the Client or the Reseller, disable the Client's password, account and access to all or part of the Services and Dataguardsman shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and.

(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Dataguardsman's bankers in the UK at the date the relevant payment was due regardless of whether an invoice has been issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.6 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 14.4(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to the Subscription Fees at the appropriate rate.

9.7 The Reseller shall be entitled to increase the Subscription Fees, at the start of each Renewal Period upon 60 days' prior notice to the Client.

 

  1. PROPRIETARY RIGHTS

10.1 The Client acknowledges and agrees that Dataguardsman and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 Dataguardsman confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

 

 

  1. CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Dataguardsman's Confidential Information.

11.6 Dataguardsman acknowledges that the Client Data is the Confidential Information of the Client.

11.7 This clause 11 shall survive termination of this agreement, however arising.

 

  1. INDEMNITY

The Client shall defend, indemnify and hold harmless each of the Reseller and Dataguardsman against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Services and/or Documentation.

 

  1. INSURANCE BACKED GUARANTEE

Dataguardsman will pay, subject to the limitations here and paragraph (4) below, an amount equal to any monetary penalty notice served upon the Client pursuant to Section 155 of the Data Protection Act 2018 ("The Act") where there has been contravention of Section 149(2)(a) of the Act But not, for the avoidance of doubt, any other monetary penalty notice under the Act, not arising in relation to breaches of the Privacy And Electronic Communications Act(EC Directive) Regulations as amended by the Privacy And Electronic Communications (EC Directive) (Amendment) Regulations 2004 and by the Privacy And Electronic Communications ( EC Directive (Amendment) Regulations 2011  nor any subsequent amendment, substitution or replacement nor for any fine associated with breach of cyber or other security

PROVIDED THAT:

(1) the Client has paid the relevant fee to the Information Commissioner's Office where required to do so.

(2) the Client is an existing subscribing client of Dataguardsman and the proper subscriptions are fully paid and up to date and have not been cancelled by Dataguardsman or by you the Client.

(3) all the answers given by you the Client or the authorised users to the questionnaire under each of the modules in the Dataguardsman website are true and complete in all respects and you have put in place without exception the actions to be taken as result of such replies.

(4) the total of payments made by Dataguardsman in respect of any one Client shall not exceed £250,000.

(5) Dataguardsman is given prompt notice of any communication from the Information Commissioner which purports to allege the Client is in breach of the Act.

(6) the Client provides reasonable cooperation to Dataguardsman in the defence and settlement of any monetary penalty notice.

(7) Dataguardsman is promptly notified of any communication from the Iiinformoation Commissioners Office regarding any breach, given full access to all papers of the Client in relation to such notified breach and initially given sole authority to defend or settle the relevant notification and any subsequent monetary penalty notice.

(8) notwithstanding the foregoing Dataguardsman is not suitable for internet service provider companies, FTSE 1OO, FTSE 250, Aim companies, companies with more than 249 staff of any kind, NHS Body or Local Authority or government bodies and no liability will be accepted for such entities nor will such parties be considered for cover under this clause or in any other way.

 

  1. LIMITATION OF LIABILITY

14.1 Subject to clause 13 this clause 14 sets out the entire financial liability of each of the Reseller and Dataguardsman (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:(a) arising under or in connection with this agreement;(b) in respect of any use made by the Client of the Services and Documentation or any part of them; and.(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

14.2 Except as expressly and specifically provided in this agreement:(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Neither the Reseller nor Dataguardsman shall have any liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the System by the Client in connection with the Services and the Documentation, or any actions taken by the Reseller, the System or Dataguardsman at the Client's direction;(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (c) the Services and the Documentation are provided to the Client on an "as is" basis.

14.3 Nothing in this agreement excludes the liability of either the Reseller or Dataguardsman: (a) for death or personal injury caused by the negligence of either the Reseller or Dataguardsman; or (b) for fraud or fraudulent misrepresentation.

14.4 Subject to clause 13, 14.2 and clause 14.3:

(a) Neither the Reseller nor Dataguardsman shall be liable whether in tort (including for negligence (other than as set out above) or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

(b) Subject to Clause 13 Dataguardsman's total aggregate liability in contract , tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

14.5 FOR THE AVOIDANCE OF DOUBT the Reseller is not liable in any way to meet the sums set out in clause 13, which shall solely the liability of DataGuardsman. The entire liability of the Reseller for any of the matters set out above where liability can be limited is in aggregate to any Client limited to the amount of the Subscription Fee paid in the year of claim(s).

 

  1. TERM AND TERMINATION

15.1 This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party (the Reseller or the Client) notifies the other of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term

15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either the Reseller, Dataguardsman or the Client may terminate this agreement without liability to the other if:

(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or.

(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

(e) the other party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(f) the other party ceases, or threatens to cease, to trade; or

(g) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or

(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

15.3 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(c) Dataguardsman may destroy or otherwise dispose of any of the Client Data in its possession; and.

(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

 

 

 

  1. FORCE MAJEURE

Neither the Reseller not Dataguardsman shall have any liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Reseller of Dataguardsman or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Reseller or Dataguardsman or sub-contractors, provided that the Client is notified of such an event and its expected duration.

 

  1. WAIVER

17.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

 

  1. SEVERANCE

18.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

  1. ENTIRE AGREEMENT

19.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

 

  1. ASSIGNMENT

20.1 The Client shall not, without the prior written consent of Dataguardsman, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20.2 Dataguardsman may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

 

  1. NO PARTNERSHIP OR AGENCY.

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). The Reseller has no authority, nor any sub-seller they may appoint, to make any representation, promise or offer any other obligation on behalf of Dataguardsman.

 

  1. THIRD PARTY RIGHTS

Other than to the extent set out this agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

  1. NOTICES

23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.

23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender.

 

24 LICENCE AND CONDITIONS OF USE OF DATAGUARDSMAN LOGO

The Dataguardsman Logo ("the Logo") is a registered Trade Mark in the UK and other selected marketing territories ("the Territories"). Use of the Logo is restricted to current subscribing members to the Dataguardsman website as recognised in these terms and conditions.

24.1 Dataguardsman grants to the Client a non-exclusive licence to use the Logo in connection with its lawful business activities to recognise the fact that it is a current subscribing Client of Dataguardsman. This Licence shall expire upon suspension or termination of such recognition.

24.2 The Licence is personal to the Client which may neither assign it nor grant any sub licences of the rights granted to it.

24.3 The following conditions shall apply to the use of the Logo. Dataguardsman reserves the right to amend or update the following conditions from time to time at its absolute discretion

  1. You may display the Logo on your advertising printed and on line material. The Logo may not be included your trade or business name, domain name, product or service name, logo, trade dress, design, slogan or other trademarks
  2. Except for size, you may not alter the Logo in any manner, including proportions, colours elements, etc., or animate, morph, or otherwise distort its perspective or two dimensional appearance.
  3. Dataguardsman can provide you with electronic artwork for the Logo.
  4. The full colour, positive, horizontal version of the Logo is the only acceptable treatment as shown below. Ordinarily the Logo must not appear more than once on a single sheet or webpage as duplication an dilute the strength and impact.

<img src="http://www.dataguardsman.co.uk/img/guardsman_shield.jpg" />.

  1. Your trading/company name, trademark or logo must appear in any materials where the Logo is used
  2. The colours within the Accreditation Logo should conform to the following Pantone references: Red 186 C, Cool Grey 6 C, Neutral Black C.
  3. The materials and websites on which the Logo is used must comply with relevant legislation including the British Codes of Advertising and sales promotion and must not contain statements or images which are untrue, misleading objectionable, tasteless, obscene, offensive or disparaging of Dataguardsman.
  4. The Logo must stand alone. The Logo must be given a reasonable amount of clear space around the Logo separating it from any other logo, such as type, photography, borders and edges.
  5. You agree at your own cost and expense to correct any misuses of the Logo upon notice from Dataguardsman.
  6. If permission to use the Logo is withdrawn it shall take effect immediately and the Logo shall be removed from any website and stocks of materials bearing the logo at the Client's expense.

 

25 GOVERNING LAW AND JURISDICTION

25.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

23.4 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).