terms and conditions
PC Mac terms and conditions for service
- Term & Termination
1.1 This Agreement commences on the Start Date and subject to the provisions for earlier termination set out in this Agreement and its Schedule shall run for the Initial Period and shall continue thereafter from year to year unless either of us terminate this Agreement by giving the other at least three months written notice to expire at the end of the Initial Period or on any anniversary of the Start Date. Where You fail to sign this Agreement yet PC Mac start to provide Services at your request, You agree by your conduct, that this Agreement shall commence from the Start Date irrespective of your failure to sign.
1.2 Should you purport to terminate this Agreement during the Initial Period or any extension period, the Costs shall nevertheless continue to be payable as if this Agreement had continued up to the end of the Initial Period or if the Initial Period shall have expired until the next anniversary of the Start Date.
1.3 This Agreement may be terminated:-
a) forthwith by PC Mac if You fail to pay any sum due hereunder within 14 (fourteen) days of the due date for payment;
b) forthwith by either party if the other commits any material breach (which shall include but not be limited to bankruptcy, insolvency, IVA’s, CVA’s) of any term of this Agreement (other than one falling within the above sub-clause and which in the case of a breach capable of being remedied) shall not have been remedied within 14 (fourteen) days of a written request to remedy the same;
and Any termination of this Agreement pursuant to this clause will be without prejudice to any other rights or remedies either party may be entitled to at law and will not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- system maintenance
2.1 We will provide the Service personally to you for the System for the Initial Period and any extension in accordance with the terms and conditions of this Agreement which you agree to be bound by.
2.2 We shall be entitled to make supplementary charges for works we carry out that are not covered by the Service for which you have subscribed and which shall be payable by you upon completion of the works to which the supplementary charges relate.
2.3 Prior to the expiry of the first anniversary of the Start Date and each subsequent anniversary and at any time during this Agreement, We shall be entitled to inspect the System at our own cost for the purpose of auditing the System and the Costs shall be adjusted (upwards or downwards (save that they shall not be reduced below 10% of the initial System size if PC Mac are of the opinion which You agree shall be final and binding that You are attempting to reduce the Costs to nothing or a nominal amount)) to reflect any changes thereto since the Start Date or, as the case may be, the last such audit. Any such adjustment to the Costs shall take effect on from the month after such inspection. In the event you remove hardware from your System, you must inform us in writing prior to removal in sufficient time (minimum 7 days notice) to enable us to remove monitoring and security safeguards and software. It is your responsibility thereafter to dispose of such hardware in accordance with applicable laws and regulations unless you instruct us to do so for which we shall be entitled to charge you a secure disposal fee.
2.4 PC Mac shall where they can, use their remote access software to carry out such audit and subject to clause 2.3 where any equipment which has been online (i.e. our remote access software or security safeguards could connect to or identify) in the 6 months prior to an anniversary of this Agreement or audit shall be included as being part of the System and included in calculating the Costs.
2.5 Where any new equipment and/or software or service is to be covered by the terms of this Agreement following an audit the following provisions shall apply where such equipment has not been installed and commissioned by PC Mac, or if such equipment and/or software or service has been maintained by a third party (“Third Party Products”):
a) We shall be entitled to inspect/test the Third Party Products prior to acceptance for the Service;
b) If such inspection/test reveals that the Third Party Products do not meet the applicable regulatory standards or otherwise, in our reasonable opinion or are incapable of being maintained, We shall provide You with details thereof and the corrective work required for the Third Party Products to be supported. If You shall fail to have the necessary corrective work undertaken within two months of the date upon which We provide details thereof, We shall be entitled to refuse to incorporate the Third Party Products or any part of them within the terms of this Agreement by notice in writing to You and We shall also be entitled to make a supplementary charge for each inspection/test made and in the event we thereafter provide support to such Third Party Products which are not incorporated, such support shall be chargeable in addition to the Costs.
3.1 You shall pay the Costs for the Service as set out in this Agreement for the Initial Period and any extension thereof.
3.2 If you fail to make payment of any of the Costs as and when they fall due, We shall without notice be entitled to:
a) immediately suspend the Service (any such suspension for non-payment shall not be deemed to be a breach of this Agreement);
b) charge you interest at 4% above Barclays Bank Base Rate on the amount unpaid for such period of non-payment;
c) charge you a reasonable administration fee; and
d) cancel this Agreement in accordance with the termination provisions set out herein.
3.3 If in our opinion, your use of PC Mac services is more than that of the average user, we shall notify you of this prior to the expiry of the Initial Period or any extension period and should this Agreement renew for a further year, we shall be entitled to charge you a supplementary charge which shall be added to the Costs that we would charge you for the year. If in our opinion your use of PC Mac is excessive, we shall notify you of this. If in our opinion it continues to be excessive, we reserve the right to make such supplementary charges.
3.4 PC Mac operates a fair use policy. This is reviewed annually and levels of use will be available upon your written request. Supplementary charges and PC Mac Service charges (Costs) are set out in the PC Mac price list and may be subject to change. All Costs and charges are exclusive of VAT.
4.1 force majeure
Subject to both parties promptly enacting the disaster recovery and business continuity processes, both parties will be released from their respective obligations in the event of national emergency war or if any other cause beyond the reasonable control of the parties renders performance of the Agreement impossible whereupon:
- a) All money due to PC Mac shall be paid within 10 days
Provided that this clause shall only have effect at Our discretion except when such event renders performance impossible for a continuous period of 6 calendar months.
We may assign this Agreement and the rights and obligations thereunder. This Agreement is personal to You and may not be assigned without Our prior written consent.
4.3.1 We Both warrant that:-
a) We have full power and authority to enter into this Agreement and fully perform our obligations hereunder;
b) We have or undertake that we will have (directly or indirectly) the necessary licences (including all software licences), consents, clearances and permissions required from any third party, governmental authority and/or regulatory authority as is necessary to perform fully our obligations detailed in this Agreement and that we are not in breach of the terms of any such licences, consents, clearances and permissions which we have. Additionally, we both undertake that we will not knowingly do or permit to be done (either by commission or omission) anything, which might cause any such licence, consent, clearance or permission to be suspended or revoked. You confirm that all software on your System that PC Mac have not provided you with is fully licensed and you agree to fully indemnify us for any breaches of any such licenses, consents, clearances, permissions where we have not provided the software and where we provide you with any software that requires a licence or consent, you agree to be bound by the terms and conditions that relate to the software that we provide.
4.3.2 Unless agreed other wise in writing or where we backup your data for the purpose of rebuilding or upgrading your hardware, where PC Mac backup your data, it shall only be stored for a maximum period of 30 days after your computer is returned to you. Such data will not be reviewed (unless you ask us to locate some particular data) or passed on to any other parties and upon the expiry of the 30 day period, your data will be deleted from our records. You agree that you consent to us storing your data for backup purposes only and such storage is not in breach of the Data Protection Act 1998 or other data protection legislation and we shall be considered Data Processors and you the Data Controller.
4.3.3 PC Mac will not be liable to remedy any defect in any equipment or software supplied by PC Mac if the same were not designed or manufactured by PC Mac (when you will be entitled only to the benefit of any such warranty or guarantee, terms and conditions and licenses as is given by the supplier to PC Mac for your benefit).
4.3.4 Where PC Mac give You any advice as to what hardware or software to purchase, such advice shall only be a recommendation and You confirm that You have satisfied yourself as to the suitability of the recommendation made and shall have no claim against PC Mac should such recommendations not meet your requirements.
4.4.1 Any equipment supplied by PC Mac shall remain the property of PC Mac until such time as You have paid for it in full and until such time You shall keep the equipment fully insured and in the same condition as it was supplied to you by PC Mac. You shall have no rights whatsoever in the equipment until full payment is made by You and PC Mac may be entitled to have full and free unfettered access to enter your premises or any such premises where the equipment may be to remove such equipment.
4.4.2 In the event that PC Mac, at our discretion agree to accept the return for credit of unwanted products, the goods must be returned with our prior written agreement within 14 days of delivery. The goods must be unopened, with the manufacturer’s seals intact and in perfect re-saleable condition. All goods returned in these circumstances will be subject to a 25% re-stocking fee of our sale price for the goods. Please ensure that the product(s) you have purchased are to your specification prior to breaking the manufacturer’s seals. This will avoid disappointment and the product(s) being rejected, should you wish to return them.
4.4.3 No contract shall be cancelled once accepted by PC Mac nor shall any goods which are delivered in accordance with the contract be returned without prior written approval of PC Mac and on terms to be determined at the absolute discretion of PC Mac.
4.5 whole agreement
4.5.1 This Agreement contains the entire agreement between Us with respect to the subject matter hereof, supersedes all previous agreements and understandings between Us with respect thereto.
4.5.2 We may at any time vary the terms of this Agreement by giving at least 30 days written notice. Any such variation shall come into effect on the next anniversary date of this Agreement. For the avoidance of doubt such variation may include but not be limited to PC Mac’s Costs and charges and annual inflationary price increases. The Agreement may not be otherwise varied or amended unless signed by both of us in writing. This Agreement includes the terms set out in any proposal documents and application forms however in the event of any conflict, these terms and conditions shall prevail.
If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision will not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability will remain in full force and effect. We Both hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid and unenforceable provision.
Any waiver by either of Us of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
4.8 liabilities and indemnities
4.8.1 Except where otherwise expressly stipulated in the Agreement the following provisions set out our entire liability (including liability for the acts and omissions of our employees, agents and sub-contractors) to You in respect of any breach of our obligations arising under the Agreement and any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
4.8.2 We will be liable to you in respect of damage to the tangible property of yours resulting from our negligence or that of our employees, agents and sub-contractors Provided That our entire liability in respect of such damage shall be limited to a maximum of the Costs You have paid to us in the twelve months prior to the claim arising.
4.8.3 Notwithstanding anything to the contrary in this Agreement We shall not, except in respect of death or personal injury caused by Our negligence, be liable to You even if the same were reasonably foreseeable by reason of any representation or implied warranty, condition or other term or any duty at common law, or under the express terms of this Agreement, for any loss, consequential loss or damage (whether for loss of profit, loss of opportunity, loss or reduction of turnover, or damage to goodwill and whether occasioned by Our negligence or of our employees agents or otherwise) arising out of or in connection with any act or omission by PC Mac.
4.8.4 You acknowledge that PC Mac would not enter into this Agreement at the prices herein without the foregoing limitations of liability. We both acknowledge that the allocation of risk in this Agreement (including the exclusions and limitations set out in this Clause 4.8) has been freely negotiated at arm’s length and is regarded by us as reasonable. You acknowledge that you have had an opportunity to consider adequate insurance cover and to obtain professional advice in relation to this Clause 4.8.
4.8.5 We do not warrant or represent that the System is immune from fraudulent intrusion, unauthorised use, viruses, worms, trojans and accordingly we will not be liable for any loss, damage, cost or expense directly or indirectly occasioned thereby.
4.8.6 We shall not be liable to you in any way whatsoever for any lost data on your System no matter how the loss occurs and it is your responsibility to ensure that you have backup.
4.8.7 PC Mac shall not be liable for any claim arising under this Agreement unless You give PC Mac written notice of the claim within twelve months of becoming aware of the circumstances giving rise to the claim, or, if earlier, twelve months from the time You ought reasonably to have become aware of such circumstances.
4.8.8 Nothing in the Agreement shall detract from any of your rights or our obligations which it is under English law prohibited from seeking to exclude or limit.
4.9 Data Protection
4.9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4.9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
4.9.2 The parties acknowledge that:
a) if PC Mac processes any personal data on Your behalf when performing its obligations under this agreement, You are the data controller and PC Mac is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
b) Where applicable to the services being provided a Schedule or such other document as we both may agree will set out the scope, nature and purpose of processing by PC Mac, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
c) the personal data may be transferred or stored outside the EEA or the country where You are located in order to carry out the Services and PC Mac’s other obligations under this agreement.
4.9.3 Without prejudice to the generality of clause 4.9.1, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to PC Mac for the duration and purposes of this agreement so that PC Mac may lawfully use, process and transfer the Personal Data in accordance with this agreement on Your behalf.
4.9.4 Without prejudice to the generality of Clause 4.9.1, PC Mac shall, in relation to any Personal Data processed in connection with the performance by PC Mac of our obligations under this agreement:
a) process that Personal Data only on Your written instructions unless PC Mac is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where PC Mac is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, PC Mac shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit PC Mac from notifying You;
b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by PC Mac, 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).
c) not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:
i) you or PC Mac has provided appropriate safeguards in relation to the transfer;
ii) the data subject has enforceable rights and effective legal remedies;
iii) PC Mac complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv) PC Mac complies with reasonable instructions notified to it in advance by You with respect to the processing of the Personal Data;
d) assist You, at Your cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
e) notify You without undue delay on becoming aware of a Personal Data breach;
f) at Your written direction, delete (for the avoidance of doubt, where deletion is part of a deletion rotation system or similar process, PC Mac shall not interrupt the deletion system to delete Personal Data and as such shall not be in breach of this agreement) or return Personal Data and copies thereof to You on termination of the agreement unless required by Applicable Law to store the Personal Data; and
g) maintain complete and accurate records and information to demonstrate its compliance with this clause 4.9.
4.9.5 You consent to PC Mac appointing such third party processors as are necessary for PC Mac to provide the services as a third-party processor of Personal Data under this agreement. PC Mac confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which may either be substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this Clause 4.9. As between Us, PC Mac shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 4.9.
4.9.6 PC Mac may, at any time on not less than 30 days’ notice, revise this clause 4.9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement)
4.10 contract (rights of third parties) act 1999
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
4.11 governing law and jurisdiction
This Agreement shall be governed by and construed in accordance with the law of England and Wales and we both irrevocably agree the Courts of England and Wales shall have exclusive jurisdiction in relation to any claim dispute or difference concerning this Agreement and any matter arising there from.
Any notice, instruction or other document to be given by either party to the others facsimile transmission (as appropriate) or to the address specified.