Terms of Service
V1 – Version date: 01/02/2024

Terms & Jurisdiction

This Contract is between:

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1. Professional Cloud Solutions Ltd of Collar Factory, 112 St Augustine Street, Taunton, Somerset, TA1 1QN (Company Number: 09475562) (the "Company"); and

2. The Customer specified in the “Contract details” section on the Order Form. For the purposes of this contract will be referred to as the “Customer”

(together the "parties").

 

The initial term of this agreement shall begin on the date specified in the order form under the heading “Order Form Start Date”.

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WHEREAS the Company carries out the business of providing managed IT services and Technical Support relating to the agreed services in the Order Form. The Customer wishes to purchase one or more of the Services specified in the Order Form for which it requires Technical Support, it is now hereby agreed:

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Customer duties

In order to use Pro Cloud services, the Customer is required to provide current and factual identification, contact and other information as part of the registration process. The Customer is responsible for the accuracy of the information relating to the Customer provided on the Order Form.

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INTERPRETATION

1.1. In this Contract the following expressions shall have the following meanings:

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"Account Manager" means the account manager of each party specified in the Order Form;

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"Allowed Storage" means the total space specified in the Order Form and provided at no extra cost to the Customer for storing data belonging to the Customer on the computer running the Customer’s Remote Desktops;

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“Archived Storage” means the total extra amount of space as specified in the Order Form for the storage of the Customer’s old data that will not change and therefore will not need to be included in the back-up copies of the computer running the Customer’s Remote Desktops;

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“Archived Storage Rate” means the rate as set out in the Order Form;

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“Basic Storage” means 50GB of NAS (Network Access Storage) provided by the Company to add more slower but cheaper storage than Enterprise to the server.

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"Business Days" means Mondays to Fridays when banks in London are open for business;

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"Change" means a change to the Order Form;

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"Clause" means a clause in this Contract;

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"Confidential Information" means any information, however it is conveyed, received or obtained in connection with this Contract which relates to:

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(i)          the provision of this Contract;

(ii)         the negotiations relating to this Contract;

(iii)        the customers and prospective customers of the Company;

(iv)        the Services and any information supplied as part of the Services; and

(v)         all other trade secret and proprietary Intellectual Property Rights;

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"Contract" means the Order Form and the Terms and Conditions;

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"Data Protection Legislation" means the Data Protection Act 1998, the Privacy and Electronic Communications Regulations 2003 and any related act or regulation in the UK, including statutory modification or re-enactment of it, and where "Data Controller", "Personal Data", "Data Processor", and "Process" are referred to in this Contract, they shall have the meaning specified in the Data Protection Act 1998;

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"Dedicated Server" means a server for the exclusive use of the Customer;

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"Documentation"  means all documentation and materials in whatever form created and/or provided by the Company to the Customer as part of the Services;

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“Enterprise Storage” means 50GB of SSD (Solid-state Storage Device) running at a minimum of 12Gbps provided by the Company to add more fast access storage to the server.

"Excess Storage" means the total extra space from month to month in excess of the Allowed Storage specified in the Order Form hereto and required for storing data belonging to the Customer on the computer running the Customer’s Remote Desktops;

“Excess Storage Rate” means the rate as set out in the Order Form;

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"Hours of Support" means between 9 am and 5 pm on Business Days;

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“Hours of Use” means any time except for periods deemed necessary by the Company to undertake reasonable maintenance work and also for any period outside of the Company’s control when the computer hosting the Hosted Desktops is unavailable for any reason;

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"Intellectual Property Rights" means copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trademarks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals;

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"Law" means:

(i)          any applicable laws, regulations, regulatory constraints, obligations proclamations or rules (including binding codes of practice and statement of principles incorporated and contained in such rules);

(ii)         any enforceable community right within the meaning of section 2(1) of the European Communities Act 1972; or

(iii)        any applicable judgment of a relevant court of law which is a binding precedent in England and Wales,

and in each case in force in England and Wales;

 

"Order Form"    means a contract for Services substantially in the form made freely available by the Company on request;

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"Order Form Start Date" means the Order Form start date specified in the Order Form; The initial term of this agreement shall begin on the date specified in the order form, agreed in this section

"Payments" means the fees specified in the Order Form;

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"Remote Desktop" means a version of the Windows computer program published by Microsoft and installed on a computer rented by the Company in a data centre, which the Customer may access via the Internet using the Remote Desktop Connection computer program provided by Microsoft, for which log-in details are provided to the Customer.

"Services" means the services specified in the Order Form;

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"Shared Server" means a server used, or available for use, by more than one Customer;

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"Software" means the software specified at Clause 3.4 and any other computer program listed in the Order Form;

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“Supplier Costs” means any costs incurred by The Company from third-party companies, such as but not limited to Microsoft, Iomart and AVG;

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"Technical Support" means advice and assistance with regard to the services provided by the company;

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"Terms and Conditions" means the terms and conditions of this Contract.

1.2.   In this Contract unless the context otherwise requires: (a) words in the singular include the plural and words in the plural include the singular; (b) references to a Clause refer to a clause of these Terms and Conditions; and (c) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.

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ORDER FORM

2.1 A completed Order Form incorporates all terms of this Contract. An Order Form may have multiple Services provided thereunder.

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2.2 If Services are undertaken by the Company on the written request of the Customer and it is not reasonably practicable to populate and execute the Order Form for Services prior to such Services commencing, as soon as reasonably practicable thereafter the Company shall submit to the Customer a retrospective Order Form capturing the additional Services ordered by the Customer, with the fees calculated on a time and materials basis at the Company's then prevailing standard rates. Such an Order Form will not require the Customer’s signature in order for it to be binding on the parties.

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2.3 Either party shall be entitled from time to time to request a Change. Neither party shall be entitled to charge for considering and/or negotiating a Change. A Change will be effective when it is documented and agreed in writing by the Account Manager identified in the relevant Order Form (or, if no Account Manager is identified, such other duly authorised person as is appointed by the relevant party). For the avoidance of doubt, any purported Change which involves a reduction in the number of Services, either by quantity, or by terminating a service altogether shall be considered a partial termination of this Contract and shall only be effective if notice is given in accordance with Clause 9.

 

PROVISION OF SERVICES

3.1.       Technical Support. During the Hours of Support the Company will use commercially reasonable endeavours to provide prompt Technical Support in response to the Customer's requests.

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3.2.       Data Back-ups. The Company will back-up the Customer's data on a daily basis (excluding non-Business Days), in accordance with the Data Back-up Service specified in the Order Form. Such back-ups shall be encrypted and password-protected. Any data back-up shall exclude data stored in Archive Storage.

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3.3.       Disaster Recovery. (a) In the event of a disaster affecting a computer hosting the Remote Desktop and which leads to loss or corruption of the Customer's data, the Company shall use commercially reasonable endeavours to restore the most recent copy of the Customer’s data held in the data centre within a reasonable period of time; and (b) in the event of a disaster affecting the data centre containing the computers hosting the Remote Desktop, and which leads to loss or corruption of the Customer's data, the Company shall use commercially reasonable endeavours to restore the most recent copy of the Customer’s data held on alternative equipment outside of the data centre within a reasonable period of time.

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3.4.       Third Party Software.

(i)          In relation to each Hosted Desktop service, the Company grants to the Customer during the Hours of Use a limited, non-exclusive, revocable and non-sublicensable licence to a version of the following Software (or such similar Software as the Company shall determine in its absolute discretion from time to time) :

(a)         Microsoft Office Standard Edition;

(b)         Business Antivirus and Anti Malware protection

(c)         Backup Software.

(ii)         At the Customer's request, and subject to the Company's absolute discretion, the Company may install any other computer program on the Hosted Desktop server as specified by the Customer in the Order Form. If such further computer program is installed, the Customer acknowledges it is entirely responsible for (a) any damage or loss caused by any means whatsoever to any party arising from the installation and/or use of that computer program; and (b) any licence, subscription or other fees payable to any third party.

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(iii)        While the Company will use commercially reasonable endeavours to keep the Software in a usable configuration and up to date, the Customer acknowledges that the Company shall not be liable for any loss or damage due to any fault or error within the Software, including but not limited to (a) any virus or malware not detected; and (b) any data not backed up correctly.

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3.5.       Security. The Company shall take commercially reasonable precautions to ensure the services specified in the order form are not accessible by third parties and are reasonably secure. The Company shall implement the Security measures specified by the Customer in the Order Form.

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3.6.       Storage. The Company shall provide the Customer with the Allowed Storage specified in the Order Form. Any Excess Storage shall be charged on a monthly basis at the Excess Storage Rate and invoiced in arrears.

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3.7.       Warranties and Claims. The Company makes no representations or warranties with regard to the provision of any of the services specified in the order form or any services pertaining to them or the Technical Support. The Customer hereby agrees that all representations or warranties, whether express or implied and whether arising under statute, common law or otherwise in relation to the provision of the services specified in the order form or any service pertaining them or the Technical Support are excluded to the full extent permitted by law.

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3.8.      Disclaimer of warranties.  The Company does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law the company disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an "as is" basis.

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PAYMENTS

4.1.       The Customer shall pay the Company the Payments in accordance with the relevant Order Form.

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4.2.       Upon entering this Contract, the Customer shall enter into a direct debit mandate allowing the Company to receive the Payments due each month and all other sums due to the Company under this Contract from time to time, unless otherwise agreed with the Company. The Customer shall immediately notify the Company of any changes to the direct debit details.

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4.3.       The Payments shall become due thirty (30) days from the date of an invoice from the Company and shall be paid via direct debit unless otherwise agreed by the parties.

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4.4.       If an invoice is not disputed by the Customer within fourteen (14) days from the date of the invoice, then the invoice shall be deemed to have been accepted by the Customer.

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4.5.       All Payments are exclusive of VAT, which shall be payable by the Customer at the rate prevailing when they fall due.

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4.6.       Any Payments which are not paid by the due date shall bear interest on a daily basis in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).

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4.7.       The Company may increase the Payments by the same as its Supplier costs increase in any year but otherwise by not more than fifteen percent (15%) in any one (1) year, provided it gives the Customer at least one (1) month's written notice.

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4.8.        Any payments not made within 30 days of due date will have the associated services suspended without further notice.

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4.9         Any suspended service will be terminated and destroyed after 30 days suspended without further notice

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4.10      When a payment becomes overdue the company reserves the right to suspend active and paid-for services until such time outstanding unpaid invoices are settled.

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INTELLECTUAL PROPERTY AND LICENCES

5.1.       The Company owns all Intellectual Property Rights in the Documentation except where otherwise specified in this Contract and no provision of this Contract shall transfer to the Customer ownership of: (a) the title in the Documentation; and/or (b) Intellectual Property Rights in the Documentation.

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5.2.       The Customer shall promptly enter into such documentation as is reasonably required by the Company to vest ownership of Intellectual Property Rights in accordance with this Clause 5.

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5.3.       Unless otherwise specified in this Contract, the Company grants to the Customer a non-exclusive perpetual licence to use the Documentation only for its internal business purposes.

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5.4.       The Customer must not: (a) sub-license the use of any Documentation; (b) permit third parties to use (whether directly, or as part of a managed service) any Documentation; or (c) alter, adapt, modify or reverse engineer any Documentation (or permit third parties to do the same).

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5.5.       The Customer shall use all reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the Documentation and shall promptly report to the Company any such infringement that comes to its attention.

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5.6.       The Customer shall comply with all third-party software licences relating to the Software (including the terms of any sub-licence of the Software by the Company to the Customer where the Company is a licensee of a third party in relation to the Software) and shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of such terms howsoever arising.

5.7.       The Company makes no claim of ownership of, and has no responsibility for, any materials stored on or accessed by the Customer through the services specified on the order form, and has no rights in the Intellectual Property or otherwise of such materials. The Customer shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of any third party claiming that any such materials infringe upon its Intellectual Property Rights or any law.

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ACCOUNT MANAGERS

6.1.       Each party shall be entitled to appoint an Account Manager as specified on the Order Form. Where a party has appointed an Account Manager, then that party shall ensure that its Account Manager (or, in the Account Manager's absence, a nominated replacement) shall usually be contactable during the Hours of Support using the contact details set out therein (if such details are provided, and as updated by notice to the other party from time to time). Each Account Manager shall: (a) deal with requests for information; and (b) deal with requests for Changes.

6.2.       Each party shall promptly notify the other party of any changes of company name, address, Account Manager contact details, or other information which may reasonably assist the parties in their performance of their obligations under this contract

6.3.       The parties shall escalate any dispute as follows:

(i)          the dispute shall be notified in writing to a party's Account Manager (if any); and

(ii)         if the dispute remains unresolved within three (3) days of receipt of such notification, the dispute shall be escalated to both parties' senior management

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CONFIDENTIALITY AND ANNOUNCEMENTS

7.1.       Each party that receives ("Receiving Party") Confidential Information from the other ("Disclosing Party"), whether before or after the date of this Contract shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with this Clause 7; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract ("Permitted Purpose").

7.2.       The Receiving Party may disclose Confidential Information to its own officers, directors, employees, contractors, agents, and advisers who reasonably need to know for the Permitted Purpose (each a "Permitted Third Party"), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 7 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 7.

7.3.       The terms of Clause 7.1 shall not apply to any information which:

(iii)        is or becomes public knowledge other than by breach of this Clause 7; or

(iv)        is independently developed without access to the Confidential Information; or

(v)         is disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the party making the disclosure, including any requirements for disclosure pursuant to this Clause 7.3.

7.4.       Either party may make a public announcement or other disclosure relating to the fact of this Contract provided such announcement or disclosure is not disparaging or critical of either party.

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DATA PROTECTION

8.1.       With respect to the parties’ rights and obligations under this Contract, the parties acknowledge that, except where otherwise agreed, the Customer is the Data Controller and the Company is the Data Processor.

8.2.       Where the Company, pursuant to its obligations under this Contract, undertakes the Processing of Personal Data on behalf of the Customer, it shall comply with the Data Protection Legislation and more particularly:

(vi)        only Process the Personal Data as required to perform the obligations under this Contract or otherwise as required by Law; and

(vii)       take reasonable technical and organisational precautions and measures to preserve the integrity of the Personal Data and prevent any unlawful processing or disclosure (the "Security Measures"); and

(viii)      keep accurate records of its Security Measures; and

(ix)        notify the Customer within a reasonable period of any breaches of the Security Measures which affect the Personal Data.

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TERM AND TERMINATION

9.1.       This Contract shall commence on the date of signature stated on the Order Form by both parties and shall continue until termination by either party in accordance with this Clause 9.

9.2.       Either party may terminate this Contract, in whole or in part:

(i)          at any time by giving not less than six (6) months' prior written notice to the other; or

(ii)         immediately if the other party commits any material breach of this Contract and fails to remedy such breach within thirty (30) days of receipt of written notice of that breach. The period of thirty (30) days only applies where a breach is capable of remedy. If it is incapable of remedy, this Contract may be terminated by written notice immediately; or

(iii)        immediately if the other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.

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CONSEQUENCES OF TERMINATION

10.1.     On termination of this Contract howsoever caused:

(x)         the rights and duties created by this Clause 10 as well as Clauses 4 (Payments) (including accrued payment obligations of the Customer), 7 (Confidentiality and Announcements), 8 (Data Protection), 12 (Liability) and 14 (General Terms) shall survive;

(xi)         The Services stated on the order form shall cease

(xii)       the licence(s) granted under Clause 3.4(i) shall cease; and

(xiii)      any rights of either party which arose on or before termination shall be unaffected.

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EXIT

11.1.     The Company shall provide the Customer with all reasonable cooperation and assistance to effect transition of the Services to a new supplier in accordance with the Customer's reasonable instructions ("Exit Assistance"). Any Exit Assistance provided by the Company shall be chargeable and paid for by the Customer at the Company's then current standard rates.

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LIABILITY

12.1.     Neither party shall exclude or limit its liability under this Contract for:

(xiii)      death or personal injury caused by its negligence; or

(xiv)      fraudulent misrepresentation.

12.2.     The Customer shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur, including any claims by third parties, as a result of the Customer introducing any computer virus onto the Company’s systems.

12.3.     The Company shall not be liable for loss of profit, loss of revenue, loss of anticipated savings, loss of goodwill, or loss of data under this Contract.

12.4.     The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it (including those made negligently) upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).

12.5.     The Company's Contractual Liability to the Customer shall not exceed the amounts payable by the Customer during the six (6) months preceding the first event giving rise to liability. "Contractual Liability" means liability howsoever arising under or in relation to the subject matter of this Contract in respect of any claim or series of connected claims that is not: (a) unlimited by virtue of clause 12.1; or (b) excluded pursuant to clauses 3.4(iii), 12.3 or 12.4.

12.6      In any given month, if the Hosted Desktop service specified in the order form is offline due to the companies outsourced hardware failing, or an unscheduled failure of the outsourced network for more than one hour, the customer can request a pro-rata credit for the down time. Specific exclusions exist where the Companies outsourced network and infrastructure is working normally, but upstream issues, such as a Datacentre or Carrier failure or DDOS is impacting customer routes to the cloud. This does not apply to any planned maintenance announced by the company to the customer via email.

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ASSIGNMENT AND SUB-CONTRACTING

13.1.     The Customer may not assign any of the benefits of this Contract or transfer or sub-contract any of the burdens of this Contract without the prior written consent of the Company. This Contract will be binding on the successors and on the assignees of the Customer.

13.2.     The Company shall be entitled to freely assign, transfer, delegate, and/or novate any or all of its rights and obligations under this Contract.

13.3.     All rights and licences granted under this Contract shall be non-transferable subject to the terms of this Clause 13 unless otherwise stated

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GENERAL TERMS

14.1.     Force Majeure. Neither party shall be in breach of this Contract to the extent that it is prevented from performing its duties and obligations thereunder directly as a result of any event beyond its reasonable control including act of God, explosion, flood, tempest, fire, or accident; war or threat of war, sabotage, insurrection, civil disturbance, or requisition; acts, restrictions, regulations, byelaws, prohibitions, or measures of any kind on the part of any governmental agency or local authority; or strikes, lock-outs, or other industrial actions or trade disputes.

14.2.     No Waiver. No failure or delay by either party to exercise any right, power or remedy shall operate as a waiver of that right, power or remedy nor shall any partial exercise preclude any further exercise of the same, or of any other right, power or remedy.

14.3.     Capacity. Each party warrants and represents to the other that it has full authority, power and capacity to enter into this Contract and that all necessary actions have been taken to enable it lawfully to enter into this Contract.

14.4.     Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.

14.5.     Notices. All notices and other communications under this Contract shall be delivered by hand, courier, or first-class pre-paid mail (either recorded delivery or registered) and will be deemed to have been communicated upon the date of actual delivery, provided that the parties may agree to serve notices by ordinary first-class pre-paid mail, fax and/or email. The addresses for service of notices under this Contract shall be as specified on the Order Form.

14.6.     Severability. Any provision of this Contract which is held invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms hereof.

14.7.     Remedies. No right or remedy conferred by either party is exclusive of any other right or remedy contained in this Contract or as the Law may provide, but each shall be cumulative of every right or remedy given in this Contract now or hereafter existing and may be enforced concurrently therewith or from time to time.

14.8.     Third Party Rights. The rights of any third party under this Contract, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, are hereby excluded.

14.9.     Relationship. Nothing in this Contract shall constitute or imply, or be deemed to constitute or imply, any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Contract. Nothing in this Contract shall be deemed to constitute either party the agent of the other party, and neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.

14.10.   Counterparts. This Contract may be entered into in any number of counterparts and by the parties to it on separate counterparts, each of which when so executed and delivered shall be an original.

14.11.   Jurisdiction. This Contract shall be governed by the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England.

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SPAM AND UCE

15.1    The company has a zero-tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM via our services. Very simply this means that customers to the company may not use or permit others to use services provided by the company to transact in spam messages. Customers to the company may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.

 

15.2    Violation of the companies SPAM policy will result in severe penalties - Upon notification of an alleged violation of our SPAM policy, the company will initiate an immediate investigation (within 12-24 hours of notification). During the investigation, the company may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, the company may, at its sole discretion, restrict, suspend or terminate the customer’s services provided by the company. Further, the company reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. The company will notify law enforcement officials if the violation is believed to be a criminal offense.

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First violations of this policy may result in an Administrative Fee of £100 at the discretion of management and the customer’s account will be reviewed for possible immediate termination. A second violation will result in an Administrative Fee of £400 and immediate termination of the customer’s account. Customers who violate this policy agree that these fees will be paid on request. The Company reserve the right to charge up to a total of £1500 For spam related violations due to costs which may be enforced on the company by data carriers or data center administration fines.

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Prohibited content:

• Threatening, abusive, harassing, defamatory statements.

• Promotion of illegal activities (info on hacking, cracking etc).

• Information, instructions, links, etc containing malicious code.

• Hate speech or hate propaganda.

• Scripts or systems that cause server performance issues.

• Misrepresentation of member’s identity, or impersonation.

• Collection of personal information for illegal purposes.

• Collection of personal information without users permission.

• Content that is deemed by the company, in its sole discretion, to be harmful to The company.

• Solicitation or sale of any harmful/illegal products or service

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ABUSIVE BEHAVIOUR

16.1    The company does not tolerate abusive, threatening or inappropriate behaviour towards its staff or agents. The customers account and services relating to the customer can be suspended or terminated without warning for any such behaviour.

 

DATA PRIVACY ADDENDUM

17.1      This Addendum shall amend and supplement any provisions relating to the processing of User Personal Data contained in the Agreement, and shall be effective for the term of the Agreement.

17.2      This Data Privacy Addendum (“Addendum”) is subject to the terms of, and fully incorporated and made part of, the Professional Cloud Solutions Limited Terms and Conditions of Use (the “Agreement”) as agreed and signed for by the Customer via the Order Form.

17. 3     Pursuant to the provision of the Services by the Company to the Customer the following Processing activities may take place depending on the nature of the Services, as defined in the ADDENDUM DETAILS below…

• Working on data when providing Technical Support, acting as an aggregator / intermediary between the Customer and its insurers / investment fund providers, provisions of this Addendum shall apply to such Processing.

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ADDENDUM DEFINITIONS 

18.1.     For the purposes of this Addendum the meanings of the Capitalized terms below are:

 

"Data Protection Laws": The General Data Protection Regulation (EU) 2016/679, together with any national supplementary legislation in any Member State of the European Union (including the Data Protection Act 2018 in the UK), as amended, repealed, consolidated or replaced from time to time will each have the meaning given to them in the Data Protection Laws.

 

“Data Subjects”:  Shall have the meaning as defined by the Data Protection Laws.

 

“Data Protection Impact Assessment”:  Shall have the meaning as defined by the Data Protection Laws.

 

“Controller/Controlling”: Shall have the meaning as defined by the Data Protection Laws.

 

“Customer Contacts”: The Customer’s clients or prospects, suppliers, business partners, vendors and other end users.

 

“Personal Data”:  Shall have the meaning as defined by the Data Protection Laws.

 

“Personal Data Breach”:  Shall have the meaning as defined by the Data Protection Laws.

 

“Processor/Processing” and “sub-Processor/Processing”: Shall have the meaning as defined by the Data Protection Laws. 

 

“Services”: License of the Software, Technical Support and any other service covered by the Agreement.

 

“Supervisory Authority”:  Shall have the meaning as defined by the Data Protection Laws.

 

"User Personal Data": Personal Data originating from the Customer or its Customer Contacts uploaded to or published, displayed or backed up through the Services, as further described in this Addendum.  User Personal Data may include Personal Data contained in any applications, files, data, or other content uploaded to or published, displayed or backed up by the Customer, or its clients, through the Services.

18.2.     Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

 

ADDENDUM PROCESSING OF USER PERSONAL DATA 

19.1.     For the purposes of this Addendum, the Customer and the Company agree that the Customer is the Controller of User Personal Data and the Company is the Processor of such data, except when the Customer acts as a Processor of User Personal Data, in which case the Company is a sub-Processor. Whenever the Customer is a Processor, the Customer warrants that its instructions to the Company with respect to that User Personal Data, including the Customer’s designation of the Company as a sub-Processor, have been authorized by the relevant Controller.

 

19.2.     The Company will only Process User Personal Data on behalf of and in accordance with the Customer’s prior written instructions and for no other purpose. The Company is hereby instructed to Process User Personal Data to the extent necessary to enable the Company to provide the Services in accordance with the Agreement.

 

19.3.     Each of the Customer and the Company will comply with their respective obligations under the Data Protection Laws, to the extent applicable to the Processing of any User Personal Data in the context of the provision of the Services. The Customer shall ensure that any User Personal Data Processed pursuant to the provision of the Services is collected and transferred in accordance with Data Protection Laws.

 

19.4.     The Customer consents to the storage of User Personal Data in the United Kingdom. In addition, where necessary to give effect to the Customer’s instructions, the Company may transfer User Personal Data, and access User Personal Data from, around the world, including to and from the United Kingdom.

 

19.5.     For Customers located in the European Economic Area or Switzerland, the Customer acknowledges that the Company may process User Personal Data in countries outside of the European Economic Area and Switzerland as necessary to provide the Services and in accordance with the terms of this Addendum. Where this is the case, the Company will take such measures as are necessary to ensure that the transfer is in compliance with applicable data protection laws.

 

19.6.     The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent to which the Company is entitled to Process User Personal Data on behalf of the Customer in performance of the Services. Consequently the Company will not be liable under the Agreement for any claim brought by a Data Subject arising from any action or omission by the Company, to the extent that such action or omission resulted directly from the Customer’s instructions or from the Customer’s failure to comply with its obligations under the applicable data protection law.

 

19.7.     If for any reason (including a change in applicable law) the Company becomes unable to comply with any instructions of the Customer regarding the Processing of User Personal Data, the Company will

 

19.7.1.  promptly notify the Customer of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and

 

19.7.2.  cease all Processing of the affected User Personal Data (other than merely storing and maintaining the security of the affected User Personal Data) until such time as the Customer issues new instructions with which the Company is able to comply. If this provision applies, the Company will not be liable to the Customer under the Agreement in respect of any failure to perform the Services due to its inability to process User Personal Data until such time as the Customer issues new instructions in regard to such Processing

 

19.8.     Technical Support: where the Company is requested by the Customer to deliver Technical Support the Customer confirms that employees of the Company may copy or download information relating to the Customer or Customer’s Contacts to the extent it is required to deliver such Technical Support. When the Company provides such Technical Support

 

19.8.1.  an electronic ‘Data Download’ note will be added to the Company’s records stating the Customer’s name, who copied the data, and for what purpose;

 

19.8.2.  while in use such copied data will be saved in an encrypted zip file with a password of over seven characters comprising capitals, lower case and numerals, which will only be communicated to those performing the Technical Support work;

 

19.8.3.  the data will only be stored in a single ‘Downloaded Data Location’ on a computer owned by the Company, in a sub-folder that clearly identifies the Customer;

 

19.8.4.  while the data is being used for Technical Support it may be copied to other computers used by the Technical Support staff during the course of the day but will be deleted from all such locations before the end of each day;

 

19.8.5.  all such copied data will be deleted once it is no longer required for the purpose of Technical Support;

 

19.8.6.  the ‘Data Download’ note will be marked as “Done” when the purpose for which the relevant data was copied has been completed and all related data held by the Company has been deleted; and

 

19.8.7.  the Customer may request from the Company copies of all such ‘Data Download’ notes in the Customer’s name, which the Company will provide to the Customer within fourteen days.

 

19.9.     The Customer agrees that the Company may collect and analyse data for analytics purposes provided always that such data does not include Personal Data of the Customer or Customer Contacts.

 

ADDENDUM CONFIDENTIALITY OF PERSONAL DATA 

20.1.     The Company will ensure that any person who it engages to Process User Personal Data commits themselves to the confidentiality of that User Personal Data.

 

ADDENDUM SECURITY MEASURES 

21.1.     The Company will implement appropriate technical and organisational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to User Personal Data resulting from the Processing by the Company of the User Personal Data.

 

ADDENDUM SUB PROCESSORS 

22.1.     The Customer authorises the Company to engage sub-Processors as listed in the Schedule attached hereto to perform specific services on the Company’s behalf that may require such sub-Processors to Process User Personal Data. If the Company engages a sub-Processor to Process any User Personal Data, it will

22.1.1.  inform the Customer of any intended changes concerning the addition or replacement of such sub-Processors, to the greatest extent permitted by applicable law, and the Customer will have an opportunity to object to such changes on reasonable grounds within thirty (30) business days after being notified. If the parties are unable to resolve such objection, either party may terminate the Agreement by providing written notice to the other party;

 

22.1.2.  keep the Customer informed if there is any change to the role or status of the sub-Processor; and

 

22.1.3.  enter into a written agreement with the sub-Processor that imposes on the sub-Processor equivalent obligations that apply to the Company under this Addendum.

 

ADDENDUM DATA SUBJECT RIGHTS 

23.1.     The Company will, at the Customer’s request and subject to the Customer paying all of the Company’s fees at prevailing rates, and all expenses, provide the Customer with assistance necessary for the fulfilment of the Customer’s obligation to respond to requests for the exercise of Data Subjects’ rights. The Customer shall be solely responsible for responding to such requests.

 

ADDENDUM SECURITY BREACHES 

24.1.     The Company will

 

24.1.2.  notify the Customer as soon as practicable and no later than 48 hours after it becomes aware of any Personal Data Breach affecting any User Personal Data, where the notification shall at least:

a)          describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

b)          communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;

c)           describe the likely consequences of the personal data breach;

d)          describe the measures taken or proposed to be taken by the processor to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects; and

 

24.1.3.  at the Customer’s request and subject to the Customer paying all of the Company’s fees at prevailing rates, and all expenses, promptly provide the Customer with all reasonable assistance necessary to enable the Customer to notify relevant security breaches to the relevant Supervisory Authorities and/or affected Data Subjects.

 

ADDENDUM DATA PROTECTION IMPACT ASSESSMENT 

25.1.     The Company will, at the Customer’s request and subject to the Customer paying all of the Company’s fees at prevailing rates, and all expenses, provide the Customer with reasonable assistance to facilitate

 

25.1.1.  the conduct of Data Protection Impact Assessments if the Customer is required to do so under the Data Protection Laws; and

 

25.1.2.  consultation with Supervisory Authorities, if the Customer is required to engage in consultation under the Data Protection Laws, in each case solely to the extent that such assistance is necessary and relates to the Processing by the Company of the User Personal Data, taking into account the nature of the Processing and the information available to the Company.

 

ADDENDUM DELETION OF PERSONAL DATA 

26.1.     On the expiry or termination of the Agreement, the Customer instructs the Company to permanently and securely delete all User Personal Data in the possession or control of the Company or any of its sub-Processors (unless the applicable law of the EU or of an EU Member State requires otherwise), within a reasonable period of time, except if the Customer requests, prior to expiration of the Agreement, to have access to the Services in order to retrieve User Personal Data in accordance with the Agreement.

 

ADDENDUM INFORMATION 

27.1.     The Company will, at the Customer’s request and subject to the Customer paying all of the Company’s fees at prevailing rates, and all expenses, provide the Customer with all information necessary to enable the Customer to demonstrate compliance with its obligations under the Data Protection Laws, and allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer, to the extent that such information is within the Company’s control and the Company is not precluded from disclosing it by applicable law, a duty of confidentiality, or any other obligation owed to a third party.

 

ADDENDUM ORDER OF PRECEDENCE 

28.1.     With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including the Agreement, the provisions of this Addendum shall prevail.

 

ADDENDUM SCHEDULE OF SUB PROCESSORS 

a)          Iomart Group plc (Data Centres), Lister Pavilion, Kelvin Campus, West Of Scotland Science Park, Glasgow, G20 0SP