Terms & Conditions

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Terms & Conditions 2019-02-15T09:41:18+00:00

Terms & Conditions

Parties:

1. ThermoPlastic Designs and Lines Limited, registered in England and Wales (company number 07551322) and with its registered address at Monometer House, Rectory Grove, Leigh on Sea, Essex, SS9 2HN (“TPDAL” / “us” / “we”); and

2. The Customer whose details are set out in the applicable Statement of Work (the “Customer” / “you”)

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Terms & Conditions of Business (“Agreement”):

Affiliate: any company which is under common management control of, and of which more than 50% of the shares (or equivalent) are owned by: a party; a subsidiary of that party; its ultimate holding company; or any direct or indirectly owned subsidiary of such ultimate holding company (where “holding company” and “subsidiary” shall be as defined in section 1159 of the Companies Act 2006);

Customer Materials: all information, text, graphics, documents, photos, designs and any other content or materials provided by you to us for use in the provision of the Services;

Data Protection Laws: means all laws that relate to data protection, and the privacy of individuals including, without limitation, the Data Protection Act 2018 and all and any laws and regulations made under that act, all applicable formal or informal guidance, rules, requirements, directions, guidelines, recommendations, advice, codes of practice, policies, measures or publications of the Information Commissioner’s Office, other relevant regulator, and or relevant industry body, in each case in any relevant jurisdiction(s) from time to time and the equivalent in any other relevant jurisdictions all as amended or replaced from time to time;

Deliverables: means all goods and materials supplied or produced by TPDAL or its agents whether or not in relation to the Services and to be supplied to the Customer as set out in the applicable Statement of Work. This may include, but is not limited to, playground markings and play equipment such as clamber stacks, grassmats, safety surfacing, benches, recycled plastic furniture and school playground games;

Delivery Date: any estimated date provided by TPDAL to the Customer in relation to the provision of all or part of the Services;

Fees: any charges payable by you to TPDAL under this Agreement, as set out in the applicable Statement of Work;

Intellectual Property Rights: any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;

Installation Services: the services provided under this Agreement relating to the installation and any other preparatory or ancillary work required to complete the Statement of Work;

Order: means the Customer’s order for the Services from TPDAL as provided by the Customer in response to a quotation;

Services: the Deliverables and the Installation Services; and

Statement of Work: details of the Services to be provided by TPDAL to you under this Agreement, as agreed by the parties in writing.

1.2 Unless the context otherwise requires:

1.2.1 words in the singular shall include the plural and in the plural include the singular;

1.2.2 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;

1.2.3 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;

1.2.4 clause headings are for reference purposes only and do not affect the interpretation of the relevant clause;

1.2.5 a reference to ‘writing’ or ‘written’ includes email unless stated otherwise; and

1.2.6 in the event of conflict between the terms of this Agreement and a Statement of Work, this Agreement shall prevail unless an express statement is made in a Statement of Work stating that a particular clause of the Statement of Work shall take precedence over this Agreement.

 

2. Order and incorporation of the Agreement

2.1 This Agreement will apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are contained in, or referred to in, the Customer Order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2 An Order will be deemed to be an offer by you to purchase Services from TPDAL under this Agreement. TPDAL reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. Orders are not binding until they have been confirmed by us in a Statement of Work.

2.3 Quotations issued by TPDAL are valid for 30 days from the date of issue, after which they may be altered by us without providing prior notice to you. All quotations will be deemed to be an invitation to treat by TPDAL to supply Services on and subject to the Agreement, and do not constitute an offer to sell or supply. If the Customer wishes to purchase Services pursuant to a quotation, it will need to place an Order.

2.4 Marketing, leaflets, specifications, drawings, particulars of price, weight, colour, dimensions, performance and other descriptive matter relating to Services are illustrative only, and do not form part of the Agreement. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by TPDAL not set out in the Agreement.

2.5 No variation of the Agreement or to a quotation or Statement of Work will be binding unless expressly agreed in writing and executed by a duly authorised signatory of TPDAL.

2.6 No Statement of Work may be cancelled without our prior written consent, and if we provide such consent, you hereby agree to indemnify us against all losses and expenses (including but not limited to loss of profit) incurred by TPDAL and its Affiliates, officers, employees, consultants, agents and sub-contractors fully and effectively indemnified on demand in respect of any type of liability, loss, damage, claims, fines, demands, actions, charges, costs (including legal fees) and expenses suffered or incurred by TPDAL and/or its Affiliates arising out of or in connection with the cancellation of the Order.

2.7 Pursuant to clause 2.2, a contract will be formed upon the earlier to occur of written acceptance by TPDAL of the Customer’s Order in the form of a Statement of Work.

 

3. Provision of the Services

3.1 We will provide the Services to you using reasonable care and skill and will use reasonable efforts to deliver the Services to you in accordance with the applicable Statement of Work.

3.2 We will use reasonable efforts to complete the Services within any timeframe agreed with you, but for the avoidance of doubt, time shall not be ‘of the essence’ for the performance of the Services unless previously agreed by us in writing. All timeframes provided by us shall be estimates only.

3.3 Where the Services and/or Deliverables are to be delivered by instalments, each instalment shall constitute a separate contract into which the terms of this Agreement shall be incorporated and failure by us to deliver any instalment shall not entitle you to treat this Agreement as repudiated.

3.4 We may deliver the Services in advance of the quoted Delivery Date upon giving you reasonable notice, and may also deliver at a date earlier than the proposed installation date. You must advise us at the time of placing your Order if this is not acceptable as subsequent variations will affect the Delivery Date, installation date and the Fees.

3.5 TPDAL reserves the right to alter the Delivery Date and time for performance of the Services at our discretion and without prior notice being provided to the Customer.

3.6 The risk in the Deliverables shall pass to the Customer on completion of delivery.

3.7 Title to the Deliverables shall not pass to the Customer until TPDAL receives payment of the Fees in full (in cash or cleared funds) for the Services in respect of which payment has become due, in which case title to the Deliverables shall pass at the time of payment of all such sum

3.8 Until title to the Deliverables has passed to the Customer, the Customer shall:

3.8.1 prior to installation, store the Deliverables separately from all other goods held by the Customer so that they remain readily identifiable as TPDAL’s property;

3.8.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;

3.8.3 maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

3.8.4 notify TPDAL immediately if it becomes subject to any of the events listed in clause 11.2; and

3.8.5 give TPDAL such information relating to the Deliverables as TPDAL may require from time to time.

3.9 If before title to the Deliverables passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2 or payment for Services is overdue whether in whole or in part, then, without limiting any other right or remedy TPDAL may have TPDAL may at any time:

3.9.1 require the Customer to deliver up all Deliverables in its possession that have not been resold, or irrevocably incorporated into another product; and

3.9.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Deliverables are stored in order to recover them.

3.10 We shall only accept the return of any Deliverables of faulty manufacture within seven days of the date of delivery or within a reasonable time after discovery of the defect (but not more than one year after delivery) and such Deliverables shall be returned with written notification which must state the nature of the fault of each item and the invoice number in relation to the purchase of each item.

3.11 We will at our discretion replace whenever possible Deliverables found to be of faulty manufacture after examination provided that the Deliverables have been returned in accordance with this Agreement, We will return goods after examination if they are found to have no fault or defect.

3.12 All transportation charges relating to the return of Deliverables will be borne by you unless otherwise agreed by us in writing, and the risk in the Deliverables shall remain with you until the Deliverables are received by us and any Deliverables so returned are despatched by you at your own risk.

3.13 You shall not be entitled to reject part only of the Deliverables delivered in accordance with this Agreement.

3.14 Any claims against us for Deliverables not credited or replaced will only be considered where you can provide proof of delivery to us.

3.15 The following provisions of this clause 3.15 shall only apply where you have purchased the Deliverables as a consumer (i.e. for private, non-commercial use, as opposed to commercial or business use, or where you are purchasing the products on behalf of a company, public authority, partnership or other commercial entity) and the Deliverables are not bespoke:

3.15.1 you are entitled to cancel any Statement of Work within 14 days from the day on which you (or a third party indicated by you other than the carrier) acquire physical possession of the Deliverables;

3.15.2 to exercise the right to cancel, you must inform us of your decision to cancel the Services under a Statement of Work by a clear statement (e.g. by a letter sent by post or by email);

3.15.3 the Deliverables you are returning must be unused and in any original packaging. Unwanted Deliverables need to be in pristine condition with any retail seals unbroken to be benefit from the right of cancellation under this clause;

3.15.4 we may make a deduction from the reimbursement for loss in value of any Deliverables supplied if the loss is the result of unnecessary handling by you;

3.15.5 please note that you must send back the Deliverables by following the instructions provided by our customer services team at the time we receive your notification under clause 3.15.2 and no later than 14 days from the day on which you communicate your cancellation;

3.15.6 if you cancel a Statement of Work, we will reimburse to you all payments received from you, excluding the delivery fees (which will only be reimbursed up to the value of the least expensive common and generally acceptable kind of delivery offered by TPDAL);

3.15.7 we will make the reimbursement without undue delay and not later than:

a. 14 days after the day we receive back from you any Deliverables supplied; or

b. (if earlier) 14 days after the day you provide evidence that you have returned the Deliverables; or

c. if there were no Deliverables supplied, 14 days after the day on which we are informed about your decision to cancel the Statement of Work; and

3.15.8 we will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise. In any event, you will not incur any fees as a result of the reimbursement.

 

4. Fees and Payment

4.1 The Customer agrees to pay any invoices within 28 days of the date of the relevant invoice.

4.2 Where stated in a Statement of Work, we may require you to pay a deposit or advance payment for certain Services.

4.3 Unless otherwise agreed with us in writing, there is a minimum order fee of £850 per Statement of Work.

4.4 The Customer will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.

4.5 The Fees:

4.5.1 do not include transportation or delivery of the Services or any other physical items which will be charged in addition to the Fees;

4.5.2 do not include packaging cases and pallets, which will be charged in addition to the Fees. This charge will be credited in full on return (carriage paid) and in good condition within one month of delivery; and

4.5.3 do not include VAT which will be charged in addition to any Fees (and other charges) at the then applicable rate.

4.6 Any special discount in payment or other terms agreed in the Statement of Work or as part of the Statement of Work is contingent upon your compliance with the terms of this Agreement. Such special terms will immediately cease upon your breach of these terms and revert to our standard terms of business.

4.7 If you do not pay an invoice issued to you by the relevant due date, we reserve the right to take the following actions:

4.7.1 charge interest and compensation on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;

4.7.2 disposing of any Deliverables that we may hold on your behalf. Please note that we will not be responsible for any loss or damage that you may suffer as a result of any disposal; and/or

4.7.3 suspending or cancelling the Services we provide to you.

4.8 We may set-off any liability that you may have to us against any liability that we may have to you.

 

5. Customer’s obligations

5.1 The Customer warrants that it has the legal right and authority to enter into and adhere to the terms of the Agreement.

5.2 The Customer will pay the Fees for the Services and any other charges in accordance with the Agreement and the applicable Statement of Work.

5.3 The Customer shall:

5.3.1 ensure that each Statement of Work is accurate and sufficient to enable completion of the Services in accordance with the applicable specification;

5.3.2 make arrangements to take delivery of the Services or Deliverables whenever they are available for delivery (including outside of normal business hours). You must ensure that an authorised representative is present at the time of delivery to ensure suitable access is provided and delivery is taken;

5.3.3 ensure that an authorised representative is present and available during the entirety of installation of the Deliverables and during any preparatory work being undertaken prior to installation to provide access and confirmation as to design and layout of the Deliverables;

5.3.4 notify us at the time of submitting an Order if you require a specific type of fencing to cordon off the installation area, otherwise our default form of temporary fencing will be used. Any requests for specific fencing may alter the Fees;

5.3.5 prior to delivery, ensure the entire area is cleared of all fixtures, fittings, obstructions and equipment. Failure to provide a clear area suitable for provision of the Services will incur an administration fee; and

5.3.6 unless previously agreed in writing, ensure that the entire area is available as detailed in 5.3.5 for the entire duration of the provision of the Services. Any interruption of the Services for any reason outside the control of TPDAL will incur further fees which TPDAL shall notify to you in writing and you will be responsible for paying for such additional fees.

5.4 We reserve the right, by giving notice to you at any time before delivery, to increase the Fees to reflect any increase in the cost of supply to us, which is due to any delay caused by your breach of clause 5.3.

5.5 If you fail to take delivery of the Services or provide inadequate delivery instructions at the time stated for delivery, we reserve the right to either:

5.5.1 store the Deliverables until actual delivery and charge you for the reasonable costs (including insurance) of storage; or

5.5.2 sell the Deliverables at the best price readily obtainable and charge you for costs under 5.5.1 incurred until the point of sale. After deducting all reasonable costs and expenses of sale, we will account to you for any excess over the agreed price or charge you the difference in sale price and agreed price.

5.6 At our discretion, delivery of the Services may be altered up to 48 hours in advance of the agreed Delivery Date. Alterations will be agreed in writing. Any alterations within 48 hours of the agreed Delivery Date will be subject to an administrative fee.

5.7 Each aborted delivery under 5.3.2, 5.5 or 5.6 will incur an administration fee of £350.

5.8 The Customer undertakes to comply with the General Product Safety Regulations 1994 to the extent that they apply to the Services and/or Deliverables.

5.9 If the signing-off of the Services after installation is dependent upon a third party, you must inform us at the time of submitting your Order. Any subsequent notification will affect the Delivery Date, installation date and price.

5.10 You agree to monitor the safety of the Deliverables, to pass on any information relating to the risks of the Deliverables and to cooperate in any action we may choose to undertake to avoid or mitigate those risks identified by you or us.

5.11 You will indemnify TPDAL and keep TPDAL and its Affiliates, officers, employees, consultants, agents and sub-contractors fully and effectively indemnified on demand in respect of any type of liability, loss, damage, claims, fines, demands, actions, charges, costs (including legal fees) and expenses suffered or incurred by TPDAL and/or its Affiliates arising out of or in connection with any of your activities which have resulted in the Deliverables becoming unsafe for use or for any personal injury or death arising from the negligent use or negligent maintenance of the Deliverables.

 

6. Warranty

6.1 For one year after delivery and completion of any Services (“Services Warranty Period”), TPDAL will provide support in relation to the Services supplied at its own cost. For a period of four years after the delivery of any completion of any Services (“Deliverables Warranty Period”), TPDAL will provide support in relation to the Deliverables provided at its own cost. Any repairs or further work that is not directly related to the Installation Services carried out will not be covered by either the Services Warranty Period or the Deliverables Warranty Period, including without limitation, fair wear and tear.

6.2 The Services Warranty Period and/or the Deliverables Warranty Period shall not apply to the extent that a failure is:

6.2.1 caused by the Customer’s unreasonable use of the Deliverables provided by TPDAL;

6.2.2 caused by the Customer’s failure to comply with TPDAL’s instructions in relation to the Services and/or Deliverables;

6.2.3 caused by TPDAL following any specification or other document supplied by, or otherwise instructed by, the Customer;

6.2.4 caused by damage through cars interacting with the results of the Services or the Deliverables;

6.2.5 where the Customer alters the Services and/or Deliverables or the results of the Services without TPDAL’s prior written agreement;

6.2.6 where the Services or Deliverables have been installed onto any surface other than tarmac;

6.2.7 where the Customer uses the Services or the Deliverables after notifying TPDAL that the Services do not comply with the Services Warranty Period and/or the Deliverables Warranty Period; or

6.2.8 where another supplier alters the Services or the results of the Services provided by TPDAL.

 

7. Liability

7.1 This clause 7 sets out the entire financial liability of TPDAL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

7.1.1 arising under or in connection with the Agreement;

7.1.2 in respect of any use made by the Customer of the Services and/or the Deliverables or any part of them; and

7.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

7.2 Subject to clause 7.3, all warranties, conditions and other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by law.

7.3 Nothing in this Agreement shall limit TPDAL’s liability:

7.3.1 for death or personal injury caused by TPDAL’s negligence; or

7.3.2 for breach of the term implied by s 2 of the Supply of Goods and Services Act 1982; or

7.3.3 for any damage or liability arising from TPDAL’s fraud or fraudulent misrepresentation; or

7.3.4 under any indemnities contained in this Agreement.

7.4 No claim for damage in transit, shortage of delivery or loss of Deliverables shall be accepted by us whatsoever unless:

7.4.1 in respect of damage in transit or short delivery, you give notice to us within three days of receipt of the Deliverables, and within five days thereof send a complete claim in writing to us;

7.4.2 in respect of loss of the Deliverables you give notice to us in writing, and within ten days of the date of consignment of the Deliverables send a complete claim in writing to us; and

7.4.3 any written claim shall state the advice note number, condition of package, date consignment received and extent of damage or shortage.

7.5 Subject to clause 7.3:

7.5.1 TPDAL will not be liable for loss of profits, loss of business, any loss of income due to error or failure of the Deliverables, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, or any special, indirect, consequential or any form of pure economic loss, costs, damages, charges or expenses; and

7.5.2 TPDAL’s total liability to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with the Agreement will be limited to 110% of the Fees paid or payable by the Customer to TPDAL under the applicable Statement of Work giving rise to such liability.

7.6 Notwithstanding any other provision, this clause 7 does not affect your statutory rights where you are a consumer, nor does it affect your contract cancellation rights (where applicable).

7.7 Although we shall take reasonable steps to avoid causing damage to floor, surfaces and access routes, we shall not be liable for such damage (unless caused by our negligence or wilful default) when you have given us permission to access such floor, surface or access routes.

 

8. Intellectual Property Rights

8.1 Subject to clause 8.3, we hereby grant you a non-exclusive, non-transferable, royalty-free licence to use any Intellectual Property Rights in the Deliverables, as may be reasonably necessary for you to reasonable make use of the Deliverables for your internal business purposes.

8.2 You hereby grant TPDAL a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Customer Materials solely for use in the provision of the Services.

8.3 TPDAL (or its licensors) will retain all Intellectual Property Rights in the Deliverables.

8.4 You acknowledge that TPDAL and its personnel may use any non-confidential details of the Services and the Deliverables for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on our website). You hereby permit TPDAL and other associated parties to publish the name and standard logo of the Customer for such purposes.

8.5 The Customer will indemnify and keep TPDAL and its Affiliates, officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by TPDAL arising out of or in connection with any claim:

8.5.1 in relation to the Customer Materials (or any custom Deliverables made to your instructions) infringing a third party’s Intellectual Property Rights;

8.5.2 in relation to any information provided by you, the Customer Materials (or any custom Deliverables made to your instructions) being inaccurate or incomplete; and/or

8.5.3 for any defamatory, offensive or illegal content, information or materials provided by you either directly or indirectly to us.

8.6 If any claim is made or action brought against you in respect of any infringement of an Intellectual Property Right by the use or sale of Deliverables provided by us, you must immediately give us written notice with full particulars of such a claim or action.

 

9. Confidentiality

9.1 A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).

9.2 In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:

9.2.1 to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;

9.2.2 not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and

9.2.3 to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

9.3 Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:

9.3.1 is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;

9.3.2 the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;

9.3.3 the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;

9.3.4 is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or

9.3.5 is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.

9.4 This clause 9 shall survive termination of this Agreement, however arising.

 

10. Data Protection

10.1 General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.

10.2 Data Specification: The Customer must provide TPDAL with a document setting out the (a) subject matter and duration of any processing to be undertaken by TPDAL; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.

10.3 Data Controller. The Customer acknowledges and agrees that it will be the Data Controller under this Agreement. As TPDAL does not have any control over the Customer’s data protection notices, policies and contracts, the Customer will indemnify and keep TPDAL and its Affiliates indemnified against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by TPDAL arising out of or in connection with any claim in respect of: (a) a breach of clause 10.1, 10.2 or 10.3; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of data subjects for the exportation of any Personal Data outside of the European Economic Area by TPDAL under clause 10.6.

10.4 Data Processor. TPDAL acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Customer strictly confidential (pursuant to clause 9 (Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Customer is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Customer and TPDAL shall not process the Personal Data for any other purpose, unless required by law to which TPDAL is subject, in which case TPDAL shall to the extent permitted by law inform the Customer of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring TPDAL to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Customer during this Agreement; and (e) notify the Customer without undue delay or in any case within 48 hours upon TPDAL or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Customer with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.

10.5 TPDAL agrees to assist the Customer with all subject access requests which may be received from a data subject in a prompt timeframe (at the Customer’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by TPDAL. Upon request, TPDAL shall provide you with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 10. TPDAL shall assist the Customer in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that TPDAL shall be entitled to charge a reasonable fee for such assistance.

10.6 Data Transfers. TPDAL agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection in accordance with Data Protection Laws.

10.7 Return of Data: Upon the termination or expiry of this Agreement for any reason, TPDAL shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent TPDAL from retaining a copy to meet its legal or regulatory obligations.

10.8 Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.

10.9 We will provide such assistance and support as you may require for the purpose of enabling you to comply with the Freedom of Information Act 2000 and associated regulations (“FOIA”), We acknowledge that you may be obliged under the FOIA to disclose information to third parties subject to certain exemptions, We acknowledge that the decision to disclose information under the FOIA is at your discretion, provided that you agree to consult with us prior to any disclosure relating (directly or indirectly) to us, and you will not disclose any information relating (directly or indirectly) to us where we reasonably notify you that:

10.9.1 such information, if disclosed by you, would constitute a breach of clause 9, in accordance with section 41 of the FOIA; or

10.9.2 such information constitutes a trade secret or such information, if disclosed by you, would (or would be likely to) prejudice our commercial interests in accordance with section 43 of the FOIA.

 

11. Termination

11.1 The Agreement will automatically terminate with immediate effect upon the termination or expiry of all Statement of Works incorporated into the Agreement.

11.2 Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:

11.2.1 a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or

11.2.2 an event, including (or similar in nature to) the following:

a. the Defaulting Party is unable to pay its debts as they fall due;

b. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;

c. a receiver is appointed in respect of the whole or any part of the Defaulting Party; or

d. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or

11.2.3 the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

11.3 If this Agreement terminates for any reason:

11.3.1 any Statement of Work in force at the time of termination relating to the terminated Services will automatically terminate;

11.3.2TPDAL shall not have any obligation to repay any charges paid by the Customer; and

11.3.3 notwithstanding any other provision, all charges payable by the Customer to TPDAL under this Agreement or the relevant Statement of Work will become due and payable immediately. This clause is without prejudice to any right by TPDAL to claim for interest or any other right under this Agreement.

11.4 Termination of this Agreement and/or any Statement of Work will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of a breach of this Agreement and/or any Statement of Work which existed at, or before, the effective date of termination.

11.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

 

12. Force Majeure

Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, acts of God, strikes, lock-outs or other industrial disputes (involving the workforce of TPDAL), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event under this clause continues for a period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.

 

13. Miscellaneous

13.1 This Agreement 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. Each party acknowledges that in entering into this Agreement it does not rely on, and 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

13.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.

13.3 You shall not, without the prior written consent of TPDAL, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement. TPDAL 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.

13.4 All notices must be in writing and will be deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s main business address. Serving notice by email or fax will not be accepted as an effective method of providing notice of a claim under this Agreement.

13.5 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

13.6 Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.

13.7 If any provision or part-provision of this Agreement 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 this Agreement.

13.8 If you have any issues with our services, please contact us at [email protected] Please note that the European Commission has established the ODR Platform, which is available at http://ec.europa.eu/consumers/odr/, as a potential means of resolving disputes.

13.9 This Agreement and any Statement of Work may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.

13.10 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

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