General Contract Terms & Conditions
Last Updated July 2021
Registered Office:
Technology House,
Library Road,
Clayton Green Business Park,
Chorley,
PR6 7EN.
Registered in England & Wales, Company No. 4307426
PART C – GENERAL CONTRACT TERMS AND CONDITIONS
These General Contract Terms and Conditions are version 1.3, dated 30th July 2021
The Customer’s particular attention is drawn to clauses 3, 4, 6, 9, 11, 14 and 18
1. Definitions and Interpretation
1.1 In this Agreement the following definitions shall have the following meanings:
“AGREEMENT”
The agreement between Orca and the Customer for the supply of the Equipment and/or Services, comprising of Part A, Part B and this Part C.
“CONFIDENTIAL INFORMATION”
Means information that falls within the types of information which has been designated as confidential by either Orca or the Customer or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, Services, developments, trade secrets, IPR, know-how, personnel, customers and suppliers of either Party, all personal data and sensitive personal data within the meaning of the Data Protection Act 2018 and the commercially sensitive information.;
“DATA PROTECTION LEGISLATION”
Any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation and Data Controller, Data Processor, Data Subject and Personal Data shall take the meanings given to them in the Data Protection Legislation.
“DELIVERY DATE”
The delivery date (if any) for the supply of the Equipment as set out in Part A, the Quote or the Order;
“DELIVERABLES”
All of the services, goods, products, work, data, items, materials and property (including without limitation computer programs, data, diagrams, reports, specifications (including drafts) and spreadsheets) to be created, developed, produced, delivered, performed, or provided by or on behalf of, or made available through, Orca (or any agent, contractor or subcontractor of the Orca) in connection with this Agreement.
“DEPOSIT”
The non-refundable deposit to be paid by the Customer to Orca in respect of the Equipment, as set out in Part A or the Order;
“EQUIPMENT”
The Hardware and/or Third Party Software to be supplied by Orca to the Customer under the Agreement, as identified in Part B or the Order;
“GOOD WORKING ORDER”
The Equipment operating in accordance with any applicable operating manuals in all material respects.
“HARDWARE”
The computer hardware listed in Part B or the Order;
“HARDWARE SUPPORT”
The provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Hardware and subject to the limitations set out in this Part C and Part B;
“Orca”
ORCA IT LIMITED a company registered in England and Wales with number 4307426 whose registered address is Technology House, Clayton Green Business Park, Library Road, Chorley, Lancashire PR6 7EN;
“IPR”
Patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“LOSSES”
Actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly;
“ORDER”
The Customer’s written acceptance of the Quote either by way of the Customer signing and returning the Quote to Orca or providing Orca with a signed purchase order for the Services and/or Equipment as outlined in the Quote (providing always that such purchase order shall not seek to modify or replace any aspect of the Quote or the Agreement).
“PART A”
The section of this Agreement headed Part A General Contract Details;
“PART B”
The section of this Agreement headed Part B “Details of Services to be provided”;
“PART C”
These General Contract Terms and Conditions.
“PARTIES”
The Customer and Orca;
“PRICE”
The price payable by the Customer to Orca in respect of the Equipment and/or the Services, as set out in Part A or the Order and payable in accordance with this Agreement;
“PROMOTIONAL MATERIALS”
Orca’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.
“QUOTE”
The section of this Agreement provided to the Customer by Orca which lists amongst other information the Price, Equipment and Services to be provided by Orca.
“SERVICES”
The services to be provided by Orca to the Customer, comprising of the Support, as shall be particularised further within, Part A, Part B or any applicable Order;
“SITE”
The address where the Equipment is to be delivered as detailed in Part B;
“SOFTWARE SUPPORT”
The provision of 8:30am to 17:00pm (Monday to Friday excluding public holidays) help desk support for basic advice on the use and operation of the Third-Party Software and subject to the limitations set out in this Part C and Part B;
“SPECIFICATION”
The specification (if any) agreed by the Parties in respect of Services or Equipment as defined in Part B or the Order;
“STANDARD VARIABLE CHARGE OUT RATES”
Those rates as defined in either Part B or the Order.
“SUPPORT CHARGES”
The charges as set out in Part A and clause 9 below to be paid by the Customer for the provision of support for the Third-Party Software and/or Hardware;
“SUPPORT”
The Hardware Support and the Software Support;
“THIRD-PARTY SOFTWARE”
The computer programmes made available to the Customer by Orca as agreed in writing from time to time.
“THIRD-PARTY SOFTWARE LICENSE”
The software licenses governing the use of the Third-Party Software;
“THIRD-PARTY SOFTWARE TERMS”
Any applicable third-party terms and conditions that apply in respect of the Third-Party Software.
“WARRANTY PERIOD”
The period of 6 months from delivery or such other period of time specified within Part A or the Order.
1.2 The following rules of interpretation shall apply in this Part C:
1.2.1 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 A reference to writing or written includes emails.
2. The Agreement
2.1 Subject to the terms of this Agreement, Orca shall:
2.1.1 Procure the Equipment and deliver it to the Site; and
2.1.2 Carry out the Services.
2.2 This Part C shall:
2.2.1 apply and be incorporated into the Agreement; and
2.2.2 In the event of any inconsistency (save where expressly stated within this Part C), prevail over any inconsistent terms or conditions contained in, or referred to in:
2.2.2.1 Part A;
2.2.2.2 Part B;
2.2.2.3 Any applicable Order; and
2.2.2.4 Any applicable Quote.
2.3 Orca shall not, other than in the exercise of its rights under the Agreement or applicable law, interfere with the Customer’s quiet possession of the Equipment.
2.4 Notwithstanding clause 2.2, this Part C shall apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Provided always that Orca may withdraw or otherwise amend the Quote at its absolute discretion, where applicable the Quote shall remain valid for a period of 30 days from the date specified on it (Order Period), unless otherwise stated within the Quote.
2.6 If the Customer accepts the position set out in the Quote, it shall be required to raise an Order within the Order Period.
2.7 The Order constitutes an offer by the Customer to purchase the Equipment and/or Services in accordance with this Part C and shall not incorporate any other terms and conditions beyond those set out in the Agreement. The Customer is responsible for ensuring and warrants that the terms outlined in the relevant published price list and where applicable, the Quote, the Order and any applicable Specification are complete and accurate.
2.8 Orca may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted when Orca’s authorised representative issues a written acceptance of the Order, at which point the Agreement shall come into existence.
2.9 Once accepted, the Order may not be cancelled by the Customer except with the prior agreement of Orca in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify Orca full against all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential loss) incurred by Orca as a result of such cancellation.
2.10 Any samples, drawings, descriptive matter or advertising produced by Orca and any descriptions or illustrations contained in any of Orca’s promotional materials are produced for the sole purpose of giving an approximate idea of the Equipment and/or Services referred to in them. They shall not form part of the Contract nor have any contractual force.
2.11 Orca’s employees or agents are not authorised to make any representations concerning the Equipment and/or Services unless confirmed by Orca in writing. In entering into the Agreement the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3. Customer’s Obligations – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
3.1 The Customer shall complete in a timely manner the obligations set out in this Agreement.
3.2 The Customer acknowledges that Orca’s ability to perform its obligations under this Agreement is dependent upon the Customer’s full and timely co-operation with Orca and the accuracy and completeness of any information the Customer provides to Orca. The Customer undertakes that it shall, without limitation:
3.2.1 Provide free, unrestricted and uninterrupted access to the Site, and any information, documentation, facilities, working space and personnel deemed necessary by Orca to enable Orca to perform its obligations under the Agreement;
3.2.2 Forthwith upon request by Orca, provide Orca with originals of all permits, consents and/or other authorisations necessary or desirable to enable Orca and/or any of its sub-contractors to perform Orca’s obligations under the Agreement;
3.2.3 Prior to Orca’s performance of its obligations under the Agreement, provide Orca with written identification of any overhead, surface or underground wire, cable, pipe, conduit, channel, obstruction and/or impediment which may restrict, prevent and/or affect the performance of any of Orca’s obligations under this Agreement, and the Customer shall if requested by Orca (at the Customer’s sole cost and expense) promptly mark, remove and/or divert the same;
3.2.4 Appoint one or more representatives (as reasonably required by Orca) in connection with the Services and procure that such representative(s) shall provide professional and prompt liaison with Orca and possess the necessary expertise and authority to bind the Customer in respect of its obligations under the Agreement;
3.2.5 Prepare the Site for the delivery of the Equipment and/or performance of the Services in accordance with any requirements stipulated by Orca in writing;
3.2.6 Fully comply with the terms of any Third-Party Software License; and
3.2.7 Forthwith notify Orca of any problem, error or complaint in respect of the Equipment and the Services giving full details of such problem, error or complaint.
3.3 The Customer shall be solely responsible for:
3.3.1 Maintaining an external procedure for reconstruction of lost or altered files, data and/or programs to the extent deemed necessary by the Customer, and for actually reconstructing any and all such materials.
3.3.2 The obtaining of and any cost and expense of obtaining all consents, permits, authorities and/or approvals that may be necessary or desirable to enable Orca and/or any of its subcontractors to fulfil Orca’s obligations hereunder.
3.4 The Customer shall be liable for any delays or failures to the implementation or carrying out of the Services caused by the acts or omissions of the Customer. Orca shall be entitled to levy additional charges against the Customer for any and all costs, expenses and/or Losses suffered or incurred by Orca arising out of or in connection with any such delay(s).
3.5 Save as required by law the Customer shall indemnify Orca and keep Orca at all times fully and effectively indemnified against any and all Losses suffered or incurred by Orca arising out of or in connection with any breach by the Customer of any of its obligations under this Agreement.
4. Price and Payment – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
4.1 Unless otherwise stated within Part A or Part B or any applicable Order, the Price includes the cost of delivery and installation of the Equipment to the Site.
4.2 The Price does not include value added tax payable in respect of the Services, Equipment and any additional charges which shall be payable by the Customer in addition and in the manner and at the rate from time to time prescribed by law.
4.3 In addition to the Price, Orca reserves the right to charge the Customer all reasonable expenses incurred by Orca in relation the delivery of this Agreement. Such costs shall be invoiced in accordance with this clause 4.
4.4 Unless otherwise stated within Part A or Part B, Orca shall raise invoices monthly which will include the Price for all Services and Equipment as used or ordered in the preceding month. Orca shall raise all invoices no later than 10 days after the end of the month.
Orca will provide any credit issued after this point at its absolute discretion and shall have no obligation to do so under the Agreement.
4.5 Payment of the Price (less the Deposit) together with value added tax on it shall be paid by no later than the appropriate payment date as set out in Part A or the Order, or within 30 days after the receipt by the Customer of an invoice, whichever is the earlier. For the avoidance of doubt, Orca shall not be obliged to carry out any of the Services if the Price (or any part of it) remains unpaid after its due date for payment.
4.6 If the Customer disputes any invoice:
4.6.1 The Customer shall notify the Orca in writing within 30 days of the date of receipt of the invoice, specifying the reasons for disputing the invoice. For the avoidance of doubt and allowing for 10 days for delivery of the invoice, Orca reserves the right to reject any query raised against any invoice after the overall 40-day period from date of invoice, except where such error is purely a calculation error.
4.6.2 The Orca shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
4.6.3 The Customer shall pay to Orca all amounts on the due date as set out in clause 4.5;
4.6.4 The parties shall negotiate in good faith to attempt to resolve the dispute promptly; and
4.6.5 If the parties have not resolved the dispute within 30 days of the Customer giving notice to Orca, the dispute shall be resolved in accordance with clause 23.7 (Multi-tiered dispute resolution procedure).
4.7 Orca reserves the right to issue the Customer with credit in relation to a resolved dispute.
4.8 Orca reserves the right to charge the Customer interest in respect of the late payment of any sum due under this Agreement (as well after as before judgment) at the rate of 8%per cent. per annum above the base rate from time to time of Barclays Bank plc from the due date until payment.
5. Delivery and Installation
5.1 Delivery of the Equipment shall be made by Orca or, where applicable, any third-party instructed to deliver the Equipment on Orca’s behalf. Orca shall use reasonable endeavours to effect delivery of the Equipment by the Delivery Date, provided always that the Delivery Date is an estimate only and time shall not be of the essence in this regard.
5.2 The Equipment may be delivered by Orca in advance of the quoted Delivery Date on giving reasonable notice to the Customer.
5.3 Orca may deliver the Equipment by separate instalments. Where applicable, each separate instalment shall be paid for in accordance with the provisions of the Agreement.
5.4 The Customer shall be responsible (at the Customer’s cost) for preparing the Site for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If Orca is prevented from carrying out delivery or installation on any specified date because no such preparation has been carried out, Orca may levy additional charges to recover any Loss arising from this event.
5.5 Unless otherwise agreed in writing by Orca, Orca shall not be obliged to install the Equipment (or any part of it) at any other location other than the Site.
5.6 Notwithstanding applicable Warranty Periods in respect of any Equipment supplied, acceptance of the Equipment shall take place if installation is:
5.6.1 Not required by the Customer, once the Equipment has been successfully delivered to the Site; or
5.6.2 Required by the Customer, once, in Orca’s reasonable determination, the Equipment has been properly installed at the Site and that it is functioning materially in accordance with the Specification and any supporting documentation.
5.7 If the Customer fails to accept physical delivery of the Equipment on the Delivery Date, then, except where such failure is caused by Orca’s failure to comply with its obligations under the Agreement:
5.7.1 The Equipment shall be deemed to have been delivered at 9:00am on the Delivery Date; and
5.7.2 Orca shall store the Equipment until delivery takes place and charge the Customer for all related Losses (including insurance) that Orca may suffer as a result.
6. Warranty – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
6.1 Orca warrants that on delivery and for the duration of the Warranty Period, any Hardware shall:
6.1.1 Conform in all material respects with any applicable Specification;
6.1.2 Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended);
6.1.3 Be free from material defects in design, material and workmanship;
6.1.4 Comply with all applicable statutory and regulatory requirements; and
6.1.5 Be fit for any purpose held out by Orca.
6.2 Subject to clause 6.3, if:
6.2.1 The Customer gives notice in writing to Orca during the Warranty Period within a reasonable time of discovery that some or all of the Hardware does not comply with the warranty set out in clause 6.1;
6.2.2 Orca shall be given a reasonable opportunity of examining such Hardware; and
6.2.3 The Customer (if asked to do so by Orca) must return such Hardware in the same condition that it was delivered to the Customer, to Orca’s premises at the Customer’s cost (such reasonable return costs to be refunded to the Customer if the Hardware is found not to comply with the warranty set out at clause 6.1),
Orca shall, at its option, repair or replace the defective Hardware, or refund the Price of the defective Hardware in addition to any reasonable return costs in accordance with clause 6.2.3.
6.3 Orca shall not be liable for the Hardware’s failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.3.1 The Customer makes any further use of such Hardware after giving notice in accordance with clause 6.2;
6.3.2 The defect arises because the Customer failed to follow Orca’s (or any applicable manufacturer of the Hardware’s) oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Hardware or (if there are none) good trade practice regarding the same;
6.3.3 The defect arises as a result of Orca following any drawing, design or Specification supplied by the Customer;
6.3.4 The Customer alters or repairs such Hardware without the written consent of Orca;
6.3.5 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.6 The Hardware differs from the Specification as a result of changes made to ensure it with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, Orca shall have no liability to the Customer in respect of the Hardware’s failure to comply with the warranty set out in clause 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.
6.6 This Part C shall apply to any repaired or replacement Hardware supplied by Orca.
7. Title to and risk in the Equipment
7.1 The risk in the Equipment shall pass to the Customer on its successful delivery accordance with clause 5 (Delivery and Installation).
7.2 Title to any Equipment shall not pass to the Customer until the date that the Price for that Equipment and value added tax thereon has been paid in full to Orca. Title in any Third-Party Software shall remain with the licensor (or such party as may be identified in the Third-Party Software Licence).
7.3 All IPR in any Deliverables produced by Orca shall remain the exclusive property of Orca and no licence in respect of any Deliverables is granted to the Customer under the Agreement.
8. Third-Party Software
8.1 In order for the Customer to use the Hardware the Customer may be required to use Third-Party Software. In such instances, the Customer warrants and undertakes that it shall comply with any applicable Third-Party Terms and the Customer expressly acknowledges that Orca shall have no responsibility whatsoever for any Losses suffered by the Customer as a result of the Customer’s use of any Third-Party Software.
8.2 Orca may treat the Customer’s breach of any Third-Party Terms as a breach of the Agreement.
8.3 The Customer acknowledges that all IPRs in any applicable Third-Party Software belong to the relevant third-party owner(s), and the Customer shall have no rights in or to that Third-Party Software other than the right to use it in accordance with the terms of the Agreement and the any applicable Software Licence.
8.4 The Customer shall indemnify Orca, keep Orca indemnified and hold Orca harmless against any Losses which Orca may suffer or incur as a result of the Customer’s:
8.4.1 Breach of any Third-Party Terms;
8.4.2 Possession and use of any software (including any Third-Party Software),howsoever arising and unless otherwise set out in writing by Orca, Orca provides no warranty or assurances that the Customer’s use of any Third-Party Software will:
8.4.3 Not infringe the rights (including the IPRs) of any third party;
8.4.4 Conform to any Specification; or
8.4.5 Be suitable for the Customer’s intended use of any Hardware.
9. Support Charges and automatic renewal – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
9.1 Orca shall be entitled to increase the Support Charges on giving the Customer no less than three months’ notice in writing.
9.2 Unless otherwise specified within Part A, the:
9.2.1 Services will continue for a period of one year from the date of this Agreement; an
9.2.2 Shall (subject to clause 14) automatically renew for a further period of equal to the original term of this agreement on a rolling basis (at revised renewal rates provided within 1 month of each applicable renewal date) unless terminated by either Party on giving no less than one month’s notice in writing to the other prior to the date of renewal.
9.3 Unless specified as a Service within the Agreement, Orca will not keep any form of asset register for the Customer and such will remain the responsibility of the Customer at all times.
9.4 Calls made to Orca in respect of the Support (or any other matter relating to the Agreement) may be recorded or monitored for record keeping, training or quality assurance purposes. By using the telephone services as provided by Orca the Customer expressly consents for Orca to record such calls.
10. Support
10.1 Orca shall provide the Support in accordance with Part B or the Order (as the case may be) in all material respects.
10.2 Any Support requested by the Customer in addition to those provided for in Part B or the Order shall be subject a separate written agreement between the parties and, unless otherwise agreed, Orca’s Standard Variable Charge Out Rates. For the avoidance of doubt, Orca shall only be obligated to provide any additional Support where a written agreement between both parties has been entered.
10.3 Where Orca is required to attend the Site(s) to perform Support, the Customer shall provide free, safe and unencumbered access to, egress from and movement around the Site(s) to Orca.
10.4 Where Orca is performing or has performed the Support in circumstances where it is established that the Equipment was not in Good Working Order due to any of the misuse, Orca may charge, and the Customer shall pay any applicable additional charges as invoiced to it by Orca in respect of that Support.
10.5 The ‘under-use’ of any allowances under this Agreement by the Customer shall not result in any credit from Orca of any kind.
11. Support warranties – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
11.1 The Orca shall use its reasonable endeavours to meet any timeframes and/or service levels relating to Support quoted in Part B or the Order, but any such timeframes shall be estimates only and time shall not be of the essence for the provision of the Support under the Agreement.
11.2 Any request for Support by the Customer which are not specified in Part B or the Order shall be subject to clause 10.2 and dealt with by Orca on a reasonable endeavours basis.
11.3 Orca warrants that Support shall be provided:
11.3.1 By an appropriate number of suitably qualified and experienced personnel;
11.3.2 Using reasonable skill and care; and
11.3.3 In accordance with all applicable laws and regulations in force from time to time.
11.4 Orca shall accept no responsibility for goods or services supplied by third parties. Where the Customer agrees to take such services, the Customer is responsible for agreeing to said goods or services’ terms and conditions and it is the Customer’s responsibility to ensure it has read and understood those terms and conditions.
12. Data protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Orca is the Data Processor.
12.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Orca for the duration and purposes of the Agreement.
12.4 Without prejudice to the generality of clause 12.1, Orca shall, in relation to any Personal Data processed in connection with the performance by Orca of its obligations under the Agreement:
12.4.1 Process that Personal Data only on the written instructions of the Customer unless Orca is required by the Data Protection Legislation to otherwise process that Personal Data. Where Orca is relying on laws of a member of the EU or EU law as the basis for processing Personal Data, it shall promptly notify the Customer of this before performing the processing required by the applicable laws unless Orca is so prohibited from notifying the Customer;
12.4.2 Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.4.3 Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
12.4.4 Not transfer any Personal Data outside of the EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
12.4.4.1 The Customer or Orca has provided appropriate safeguards in relation to the transfer;
12.4.4.2 The Data Subject has enforceable rights and effective legal remedies;
12.4.4.3 Orca complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
12.4.4.4 Orca complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
12.4.4.5 At the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by applicable law to store the Personal Data; and
12.4.4.6 Maintain complete and accurate records and information to demonstrate its compliance with this clause.
12.5 The Customer consents to Orca appointing third parties as a third-party processor of Personal Data under the Agreement. Orca confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Customer and Orca, Orca shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
13. Escalation procedures
13.1 In the event that a Customer is dissatisfied with any aspect of the Support, the following procedures shall be followed:
13.1.1 The Customer shall contact the member of staff within Orca who dealt with the Customer’s problem to discuss appropriate solutions;
13.1.2 In the event that this does not resolve the Customer’s issue, the Customer should raise its concerns to Orca’s Service Desk Manager;
13.1.3 In the event that this does not resolve the Customer’s issue, the Customer should raise its concerns to Orca’s Operations Director; and
13.1.4 In the event this does not resolve the Customer’s problem, the Customer should raise its concern with the director within Orca that the Customer normally deals with. If the Customer’s preferred director contact is unavailable, the Customer may ask to speak to any other director of Orca.
13.1.5 In the event this does not resolve the Customer’s problem, Clause 23.7 (Multi-tiered dispute resolution procedure) shall apply.
14. Termination and Suspension – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
14.1 Without limiting its other rights or remedies, Orca may terminate this Agreement or suspend Services with immediate effect by giving written notice to the Customer if:
14.1.1 The Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
14.1.2 The Customer breaches the terms of the Third-Party Software License;
14.1.3 The Customer fails to adhere to advice provided by Orca which in the opinion of Orca is fundamentally central to the services.
14.1.4 The Customer repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Agreement; or
14.1.5 Becomes subject to any of the events listed in clause 14.2.
14.2 For the purposes of clause 14.1, the relevant events are:
14.2.1 The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
14.2.2 The Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.2.3 The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.4 The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
14.2.5 The Customer’s financial position deteriorates to such an extent that in Orca’s opinion the Customer’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; and
14.2.6 The Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
14.2.7 Without limiting its other rights or remedies, Orca may suspend provision of the Services under the Agreement or any other contract between the Customer and Orca if the Customer becomes subject to any of the events listed in clause 14.2.1 to clause 14.2.6, or Orca reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.2.8 Without limiting its other rights or remedies, Orca may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
15. Consequence of Termination
15.1 On termination of the Agreement for any reason, the Customer shall immediately pay to Orca all of Orca’s outstanding unpaid invoices and interest.
15.2 Without prejudice to clause 15.1 title to any Hardware (and, where applicable, Deliverables) which the Customer has not paid in full for shall be retained by Orca and Orca reserves the right to recover any Hardware (and Deliverables) held, but not paid for, by the Customer.
15.3 Termination of the Agreement shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
15.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
16. Confidential Information
16.1 Each Party will not use the other Party’s Confidential Information other than for the purposes provided in this Agreement and will keep in confidence the other Party’s Confidential Information made available to it; provided, however, that such restriction on disclosure shall not apply to any information that:
16.1.1 Is in the public domain through no fault of the Party receiving the disclosure;
16.1.2 Was known to the receiving Party prior to disclosure by the disclosing Party;
16.1.3 Is or was disclosed to the receiving Party by a third party that was not under similar confidentiality provisions; or
16.1.4 Is required to be disclosed by applicable law order of any governmental authority of competent jurisdiction.
16.2 Each Party shall be responsible for its own employees with respect to ensuring that no Confidential Information will be disclosed.
16.3 Orca do not use encrypted email unless specifically enabled. The Customer understands and accepts the risks associated with communication via unencrypted email.
16.4 The Customer understands that it is their responsibility to identify information that they consider confidential and inform Orca of this. Information identified as confidential to Orca will NOT be sent over an unencrypted connection, either via email or other service.
17. Representations, Warranties and Limitations
17.1 Orca warrants that it will carry out the Services materially as described in any Specification.
17.2 Orca shall perform the Services with reasonable care and skill.
17.3 For the avoidance of doubt and without prejudice to the generality of the foregoing, Orca gives no warranty that:
17.3.1 The operation of the whole or any part of the Equipment will be uninterrupted or error free;
17.3.2 The Equipment will (in whole or in part) be compatible with future Orca product(s), Services and/or with any Third-Party Software, services and/or system(s); and
17.3.3 Any Third-Party Software will operate in hardware and/or Software combinations selected by Customer.
17.4 For the avoidance of doubt it is the responsibility of the Customer to back-up any information or data that is to be transferred on to the Equipment and to check the accuracy and integrity of such information or date once it has been transferred.
18. Limitation of liability – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
18.1 Nothing in these Terms shall limit or exclude either party’s liability for:
18.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
18.1.2 Fraud or fraudulent misrepresentation; or
18.1.3 Any matter in respect of which it would be unlawful to exclude or restrict liability.
18.2 Subject to clause 18.1:
18.2.1 Orca shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
18.2.1.1 Loss of profit;
18.2.1.2 Loss of goodwill;
18.2.1.3 Loss of business;
18.2.1.4 Loss of business opportunity;
18.2.1.5 Loss of anticipated saving;
18.2.1.6 Loss or corruption of data or information; or
18.2.1.7 Any indirect, special or consequential Loss, that arises under or in connection with the Contract; and
18.2.2 Orca’s total liability to the Customer in respect of all other Losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Price paid or payable by the Customer to Orca in the preceding 12 months under the Agreement.
19. Intellectual property rights
19.1 All IPRs subsisting in any Equipment and/or Services (including any Deliverables) supplied to the Customer by or on behalf of Orca arising out of or in connection with the Agreement shall remain vested in and belong to Orca absolutely.
19.2 Orca makes no warranty and provides no assurance to the Customer that the Customer’s use of the Equipment and/or Services shall not breach the rights (including IPRs) of any third parties.
20. Force majeure
20.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event.
20.2 Orca shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
20.3 If a Force Majeure Event prevents, hinders or delays Orca’s performance of its obligations for a continuous period of more than thirty days, the Customer may terminate the Agreement immediately by giving written notice to Orca and source the Services from a third party supplier.
21. Confidentiality
21.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 21.2.
21.2 Each party may disclose the other party’s confidential information:21.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 21; and
21.2.2 As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
21.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
22. Notices
22.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be:
22.2 Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
22.3 Sent by email to contact details specified in the Proposal or Order or otherwise as notified previously by that party.
22.4 Any notice shall be deemed to have been received:
22.5 If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
22.6 If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
22.7 If sent by email, at 9.00 am on the next Business Day after transmission.
22.8 This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
23. General
23.1 Assignment and other dealings.
23.1.1 Orca may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Agreement.
23.1.2 The Customer may not Transfer any or all of its rights or obligations under the Agreement without the prior written consent of Orca.
23.2 Entire agreement.
23.2.1 The 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.
23.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
23.3 Variation.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
23.4 Waiver.
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.5 Severance.
If any provision or part-provision of the 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 the Agreement.
23.6 Third party rights.
A person who is not a party to the Agreement shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Agreements (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.
23.7 Multi-tiered dispute resolution procedure.
23.7.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Agreement, the parties may at their discretion follow the procedure set out in this clause:23.7.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute; and
23.7.1.2 If the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it.
23.7.2 If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is not registered in the United Kingdom, the parties will attempt to settle it by mediation.
23.7.3 The parties shall have recourse to mediation in accordance with the International Chamber of Commerce (ICC) Mediation Rules (Rules), which are deemed to be incorporated by reference into this clause.
23.7.4 If the Dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the Dispute shall be submitted to the International Court of Arbitration of the ICC whose seat shall be London and shall be finally settled under the Arbitration Rules, of the ICC (Arbitration Rules) by one or more arbitrators appointed in accordance with the Arbitration Rules. The Emergency Arbitrator Provisions under the Arbitration Rules shall not apply.
23.7.5 This clause 23.7 takes the form of an arbitration agreement and is governed by the law of England and Wales.
23.7.6 The language to be used in the mediation and in the arbitration shall be English.
23.7.7 If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is registered in the United Kingdom, the parties may commence court proceedings under clause 23.8 in relation to the whole or part of the Dispute.
23.8 Governing law.
The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
23.9 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
END OF TERMS AND CONDITIONS
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