Supply of Goods and Consultancy Services Contract
TruStack Limited a limited company incorporated and registered in England with company number 11624287 whose registered office is at Cirrus House, 1 Berrymoor Court, Northumberland Business Park, Cramlington, Northumberland, NE23 7RZ (TruStack)
1. Definitions and Interpretation
The following definitions and rules of interpretation apply in these conditions:
Applicable Laws means the laws of any member of the European Union or any laws applicable to TruStack with regard to the Customer and the processing of personal data;
Business Day any day other than a Saturday, Sunday or public holiday when the banks in London are open for business;
Contract the Customer’s order and TruStack’s acceptance of it in accordance with condition 3.3;
Customer the person, firm or company who purchases Equipment and Services (if applicable) from TruStack;
Data Processor, Data Controller, Personal Data have the meanings as defined in the Data Protection Legislation; and Processing
Data Protection Legislation means all applicable laws and regulations relating to the processing of personal data and privacy in any relevant jurisdiction including without limitation the GDPR, the Privacy and Electronic Communications Regulations, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and any order, guidelines and instructions issued by a relevant national or judicial authority in England or the European Union;
Equipment the equipment agreed in the Contract to be purchased by the Customer from TruStack (including without limitation any Software any part or parts of the Equipment or Software);
GDPR means the General Data Protection Regulation (CEU 2016/679) and any national implementing laws, regulations and secondary or related legislation (including as transposed into domestic legislation);
Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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;
Services the Services to be provided by TruStack under the Contract (if any);
Software any operating system or application installed on the Equipment;
Statement of Work the project document issued by TruStack after the Contract is formed to the Customer specifying the scope of work, deliverables and timelines for delivering the Services and the quantity, description and full details of all Equipment to be supplied under the Contract;
Sub-processors means a natural or legal person, public authority, agency or other body contracted by TruStack to process personal data for the purpose of carrying out a specific processing activity on behalf of the Customer; and
VAT value added tax chargeable under English law for the time being and any similar additional tax.
- 1.2 Condition and paragraph headings shall not affect the interpretation of this Contract.
- 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- 1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- 1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
- 1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- 1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
- 1.8 A reference to writing or written includes email.
- 1.9 References to conditions are to the conditions of this Contract.
2. Application of Conditions
- 2.1 These conditions shall:
- 2.1.1 apply to and be incorporated in the Contract; and
- 2.1.2 prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
- 2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on TruStack unless in writing and signed by a duly authorised representative of TruStack.
3. Basis of Sale
- 3.1 TruStack will use its reasonable endeavours to ensure that a quote is valid for a period of 14 days. The Customer acknowledges that each quote may contain products which are provided by third parties and, as such, the quotes from these third parties cannot always be guaranteed for 14 days and, therefore, each quote will set out the period for which it is valid. TruStack may withdraw a quote at any time by notice to the Customer.
- 3.2 Each order or acceptance of a quotation for Equipment and/or Services by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.
- 3.3 A binding contract shall not come into existence between TruStack and the Customer unless and until TruStack issues a written order acknowledgement to the Customer, or TruStack delivers the Equipment and/or Services to the Customer (whichever occurs earlier).
- 3.4 Errors in orders must be notified in writing to TruStack and such notice received by TruStack within 3 Business Days of receipt of the order acknowledgement. After this period the information on the order acknowledgement shall be considered to be correct.
- 3.5 TruStack may deliver the Equipment and/or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
- 3.6 No order which has been acknowledged by TruStack may be cancelled by the Customer, except with the agreement in writing of TruStack and provided that the Customer indemnifies TruStack in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by TruStack as a result of cancellation.
- 3.7 All orders are subject to credit approval by TruStack, which may, in its sole discretion at any time, change the Customer’s credit and payment terms. If TruStack believes that the Customer’s ability to make payments may be impaired, TruStack may suspend delivery until the Customer has provided a bank guarantee in accordance with condition 10.8.
4 Quantity and Description of the Equipment and/or Services
- 4.1 The quantity and description of the Equipment and/or Services shall be as set out in TruStack’s acknowledgement of order or (if there is no acknowledgment of order) quotation.
- 4.2 All samples, drawings, descriptive matter, specifications and advertising issued by TruStack, and any descriptions or illustrations contained in TruStack’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
- 4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by TruStack shall be subject to correction without any liability on the part of TruStack.
- 4.4 TruStack reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment and/or Services which are required to conform with any applicable legislation or, where the Equipment and/or Services is to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where TruStack is not the manufacturer of the Equipment, TruStack shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to TruStack.
- 4.5 TruStack’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment and/or Services.
5. Supplier’s Obligations in respect of the Services (if any)
- 5.1 TruStack shall use reasonable endeavours to manage and complete the Services, in accordance in all material respects with the Contract.
- 5.2 TruStack will, in accordance with clause 3.3, produce a Statement of Work and issue the same to the Customer.
- 5.3 TruStack shall use reasonable endeavours to meet the performance dates specified in the acknowledgement of order and Statement of Work for delivery of the Services, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
6. Customers Obligations
- 6.1 The Customer shall:
- 6.1.1 co-operate with TruStack in all matters relating to the Services and Equipment;
- 6.1.2 provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by TruStack;
- 6.1.3 provide in a timely manner such information as TruStack may request (including but not limited to shipping address, bank account numbers, TruStack name of the Customer and financials), and ensure that such information is accurate in all material respects;
- 6.1.4 be responsible for the safeguarding of all data and shall take appropriate precautions against any loss of data;
- 6.1.5 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and Equipment;
- 6.1.6 assume full responsibility with regard to any licence agreement affected by, involved in or related to the use of the Equipment and/or Services and shall comply with all licence terms provided by the manufacturer of the Equipment; and
- 6.1.7 comply with the applicable manufacturer’s guidelines for the Equipment.
- 6.2 The Customer shall not, at any time from the date of the Contract to the expiry of six months after the completion of the Services, actively solicit or canvass the employment of any person who is, or has been, engaged as an employee or sub-contractor of TruStack. If the Customer is in breach of this clause the Customer (recognising that TruStack will suffer substantial damage) will pay to TruStack by way of liquidated damages and not by way of penalty a sum equal to 50% of the gross annual sum paid to that person as salary or for services by TruStack, or, if higher, 50% of the gross annual sum to be paid by the Customer to that person as salary or for services, in the immediately preceding 12 months.
7 Cancellations or delay
If TruStack’s performance of its obligations under the Contract is prevented or delayed by any act or omission of or cancellation by the Customer or the Customer’s agents, sub-contractors or employees:
- 7.1 TruStack reserves the right to charge the Customer:
- 7.1.1 where such cancellation, prevention or delay falls within 48 hours of the scheduled start date for the installation or commencement of the Services (Start Date), the full amount payable by the Customer for the Products and Services;
- 7.1.2 where such cancellation, prevention or delay falls within 48 hours to 1 week of the Start Date, fifty percent (50%) of the amount payable by the Customer for the Products and Services; or
- 7.1.3 where such cancellation, prevention or delay falls within one week to two weeks of the Start Date, twenty five percent (25%) of the amount payable by the Customer for the Products and Services;
- 7.1.4 where such cancellation, prevent or delay falls no less than two weeks prior to the Start Date, TruStack will only seek to recover losses and expenses from the Customer pursuant to term 7.2 below.
- 7.2 The Customer shall in all circumstances be liable to pay to TruStack on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, expenses, loss or damage to property, injury to or death of any person and loss of opportunity to deploy services elsewhere), subject to TruStack confirming such costs, charges and losses to the Customer in writing.
8. Change of Control
- 8.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
- 8.2 If either party requests a change to the scope or execution of the Services, TruStack shall, within a reasonable time, provide a written estimate to the Customer of:
- 8.2.1 the likely time required to implement the change;
- 8.2.2 any variations to TruStack’s charges arising from the change;
- 8.2.3 the likely effect of the change on the Statement of Work; and
- 8.2.4 any other impact of the change on the terms and conditions of the Contract.
- 8.3 If TruStack requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
- 8.4 If the Customer wishes TruStack to proceed with the change, TruStack has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
- 9.1 All prices shall be as stated in TruStack’s acknowledgement of order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT, expenses and any release certificates and other charges and duties.
- 9.2 The price of the Equipment and Services shall be TruStack’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in TruStack’s price list current at the date of acceptance of the order. TruStack’s published export price list shall apply to exports of the Equipment as appropriate.
- 9.3 TruStack reserves the right to charge expenses to the Customer in relation to the provision of the Equipment and / or Services. Such expenses shall be agreed in advance with the Customer and the requirement to charge expenses shall be set out in TruStack’s acknowledgement of order and/or Statement of Work.
- 9.4 TruStack reserves the right, by giving notice to the Customer at any time before delivery of Equipment or commencement of Services, to increase the price of the Equipment and/or Services as has not been delivered to reflect any increase in the cost to TruStack which is due to market conditions or any factor beyond the control of TruStack (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment and/or Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give TruStack adequate information or instructions.
- 10.1 Subject to any special terms agreed in writing between the Customer and TruStack, TruStack may invoice the Customer for the price of the Equipment and/or Services on or at any time after delivery of the Equipment or commencement of the Services, unless: 10.1.1 the Equipment is to be collected by the Customer; or
- 10.1.2 the Customer wrongfully fails to take delivery of the Equipment, and in either case TruStack shall be entitled to invoice the Customer for the price at any time after TruStack has notified the Customer that the Equipment and/or Services is ready for collection.
- 10.2 The terms of payment shall be:
- 10.2.1 in the case of Equipment delivered in the United Kingdom, within 30 days of the date of TruStack’s invoice, whether or not delivery has taken place or title in the Equipment has passed to the Customer; and 10.2.2 in the case of Services, within 30 days of the date of TruStack’s invoice.
- 10.3 Time for payment of the price shall be of the essence of the Contract.
- 10.4 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment and/or Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to TruStack, TruStack shall be entitled to:
- 10.4.1 terminate the Contract or suspend any further deliveries of Equipment and/or Services (whether ordered under the same contract or not) to the Customer;
- 10.4.2 appropriate any payment made by the Customer to such of the Equipment and/or Services (or the Equipment supplied under any other contract between the Customer and TruStack) as it thinks fit (despite any purported appropriation by the Customer);
- 10.4.3 charge interest on the amount outstanding from the due date to the date of receipt by TruStack (whether or not after judgment), at the annual rate of 4% above the base lending rate from time to time of the Royal Bank of Scotland plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. TruStack reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
- 10.4.4 suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;
- 10.4.5 make a storage charge for any undelivered Equipment at its current rates from time to time;
- 10.4.6 stop any Equipment in transit; and
- 10.4.7 a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to TruStack. TruStack shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
- 10.5 All sums payable to TruStack under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition is without prejudice to any right to claim for interest under the law, or any right under the Contract.
- 10.6 TruStack may, without prejudice to any other rights it may have, set off any liability of the Customer to TruStack against any liability of TruStack to the Customer.
- 10.7 The Customer is not entitled to exercise any statutory right of retention, to withhold performance in respect of claims or to offset any amounts unless these rights are based on court decision or the counterclaim has been acknowledged in writing by TruStack.
- 10.8 At TruStack’s request, the Customer shall submit to TruStack a bank guarantee with an established European Credit institution or other security instrument reasonably selected by TruStack with respect to the Customer’s payment obligations. TruStack shall be entitled to request such guarantee at any time, both before any delivery has taken place, as well as during and after delivery. For such time as the Customer has not submitted a bank guarantee after receipt of a request from TruStack, TruStack may suspend any (further) delivery, without any liability to the Customer or to any third party.
11. Delivery of Equipment and Acceptance
- 11.1 TruStack shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in TruStack’s acknowledgement of order and/or Statement of Work, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order.
Time is not of the essence as to the delivery of the Equipment and TruStack is not in any circumstances liable for any delay in delivery, however caused.
- 11.2 Delivery of Equipment to any carrier appointed by the Customer shall constitute delivery to the Customer.
- 11.3 The Equipment may be delivered by TruStack in advance of the quoted delivery date on giving reasonable notice to the Customer.
- 11.4 Delivery shall be made during normal business hours (excluding bank or public holidays). TruStack may levy additional charges for any deliveries made outside such hours at the Customer’s request.
- 11.5 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location 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 TruStack is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, TruStack may levy additional charges to recover its loss arising from this event.
- 11.6 The Customer shall be deemed to have accepted the Equipment when the Customer has had one week to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 14.
- 11.7 TruStack shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to TruStack (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with TruStack’s stipulations. Any remedy under this condition 11.7 shall be limited, at the option of TruStack, to the replacement or repair of any Equipment which is proven to TruStack’s satisfaction to have been lost or damaged in transit
12. Risk and Property
- 12.1 The Equipment shall be at the risk of TruStack until delivery to the Customer at the place of delivery specified in TruStack’s acknowledgement of order. TruStack shall off-load the Equipment at the Customer’s risk.
- 12.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including without limitation off-loading) either to the Customer or to its appointed carrier, or when TruStack has received in full in cleared funds all sums due to it in respect of:
- 12.2.1 the Equipment; and
- 12.2.2 all other sums which are, or which become due to TruStack from the Customer on any account.
- 12.3 Until ownership of the Equipment has passed to the Customer under condition 12.2, the Customer shall:
- 12.3.1 hold the Equipment on a fiduciary basis as TruStack’s bailee;
- 12.3.2 store the Equipment (at no cost to TruStack) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as TruStack’s property;
- 12.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
- 12.3.4 keep the Equipment insured on TruStack’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of TruStack, ensure that TruStack’s interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for TruStack and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
- 12.4 In the case of delivery direct to an end-customer of the Customer before ownership of the Equipment has passed to the Customer, the Customer shall procure that its end-customer complies with the provision of condition 12.3 above.
- 12.5 The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 20 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to TruStack on the due date.
- 12.6 The Customer grants TruStack, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by TruStack in repossessing the Equipment shall be borne by the Customer.
- 12.7 On termination of the Contract for any reason, TruStack’s (but not the Customer’s) rights in this condition 12 shall remain in effect.
- 12.8 TruStack may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary and may make such appropriation at any time.
13. Export Terms and Compliance with Policies
The Customer will comply with all local, E.U and USA import and export laws and regulations with respect to the Equipment or the Services.
14. Limited Warranty
- 14.1 If it is found, on due examination by the Customer, that the Equipment (or any part thereof) does not meet the relevant manufacturer’s specifications or it does not meet the Customer’s specifications, or if the Services are found not to meet the average quality in the market, TruStack shall be liable under the warranty, which is limited to TruStack (i) refunding the Customer’s at market price for such Equipment or Services (without interest and in any case limited to the purchase or service price), (ii) repairing such Equipment, or (iii) replacing such Equipment or fulfil the Service; provided always, however, that in all cases the Customer must provide acceptable evidence of the defects and that defective Equipment is returned to TruStack. Repair and replacement of Equipment does not prolong the warranty term set out in condition 14.3.
- 14.2 The Customer cannot claim any warranty rights if it is in default with its obligations set out in condition 6. The Customer is also obliged to notify TruStack immediately, but in any event not later than one week after the Customer has obtained knowledge about any fault or defect with its customer or any end user.
- 14.3 Each warranty and / or software agreement expires in accordance with the terms agreed with or the options purchased by the Customer at the point of sale.
- 14.4 Where the Customer wishes to renew or extend its warranty cover with TruStack then it shall request such renewal or extension at least three months prior to expiry. TruStack reserves the right to refuse any such renewal or extension in its absolute discretion.
- 14.5 TruStack shall transfer to the Customer whatever transferable warranties and indemnities it receives from its vendor(s) including any transferable warranties and indemnities respecting patent infringement, in which case no separate warranty as defined under condition 14.1 will be granted by TruStack.
- 15.1 TruStack shall not in any circumstances be liable for any non-delivery of Equipment (even if caused by TruStack’s negligence) unless the Customer notifies TruStack in writing of the failure to deliver within seven days after the scheduled delivery date.
- 15.2 Any liability of TruStack for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
- 15.3 If TruStack’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of Force Majeure under condition 21), the Customer shall in all circumstances be liable to pay to TruStack all reasonable costs, charges or losses sustained by it as a result, subject to TruStack notifying the Customer in writing of any such claim it might have against the Customer in this respect.
- 15.4 In the event of any claim by the Customer under the warranty given in condition 14, the Customer shall notify TruStack in writing of the alleged defect. TruStack shall have the option of testing or inspecting the Equipment at its current location or moving it to TruStack’s premises (or those of its agent or subcontractor) at the cost of TruStack. If the Customer’s claim is subsequently found by TruStack to be outside the scope or duration of the warranty in condition 14, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
16. Data Protection
- 16.1 Both parties will comply with all applicable requirements under the Data Protection Legislation and this Contract. This Contract is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- 16.2 The parties acknowledge that for the purpose of the Data Protection Legislation and this Contract, the Customer is the data controller and TruStack is the data processor.
- 16.3 Without prejudice to the generality of clause 16.1, the Customer:
- 16.3.1 warrants and represents that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to TruStack for the duration and purposes of this Contract;
- 16.3.2 warrants and represents that all instructions given to TruStack for processing of personal data are lawful and as a minimum include the nature and purpose of the processing, type of personal data and categories of data subjects to whom the personal data related; and
- 16.3.3 acknowledges that as data controller it is solely responsible for determining the lawful processing condition upon which it shall rely in providing instructions to TruStack for the purpose of carrying out the relevant services under this Contract.
- 16.4 Without prejudice to the generality of 16.1, TruStack shall, in relation to any personal data processed in connection with the performance by TruStack of its obligation as data processor under this Contract:
- 16.4.1 process that personal data only on the written instructions of the Client unless TruStack is required by any Applicable Laws. Where TruStack is relying on Applicable Laws as the basis for processing personal data, TruStack shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit TruStack from so notifying the Customer;
- 16.4.2 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, 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);
- 16.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- 16.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- 126.96.36.199 the Customer or TruStack has provided appropriate safeguards in relation to the transfer;
- 188.8.131.52 the data subject has enforceable rights and effective legal remedies;
- 184.108.40.206 TruStack complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- 220.127.116.11 TruStack complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- 16.4.5 assist the Customer, at the Customer’s 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;
- 16.4.6 notify the Customer without undue delay on becoming aware of a personal data breach;
- 16.4.7 notify the Customer without undue delay on becoming aware of a personal data breach;
- 16.4.8 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and maintain complete and accurate records and information to demonstrate its compliance with this clause 16 and allow for audits by the Customer or the Customer’s designated auditor.
- 16.5 The Customer provides their consent for TruStack to use Sub-processors in the delivery of the Services under this Contract. TruStack shall enter into a written agreement with such Sub-processors incorporating terms which are substantially the same as those set out in this clause 16. As between the Customer and TruStack, TruStack shall remain fully liable for all acts and omissions of any Sub-processor appointed by it pursuant to this clause 16.5. Where required by law, TruStack shall inform the Customer of any intended changes concerning the additional or replacement of a Sub-processor with access to personal data and give the Customer the opportunity to object to such changes.
- 16.6 Either party may, at any time of not less than 30 days’ notice, revise this clause 16 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certificate scheme (which shall apply when replaced by attachment to this Contract).
17. Limitation of Liability
- 17.1 The following provisions set out the entire financial liability of TruStack (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: 17.1.1 any breach of the Contract howsoever arising; and
- 17.1.2 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
- 17.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
- 17.3 Nothing in these conditions excludes or limits the liability of TruStack for:
- 17.3.1 death or personal injury caused by TruStack’s negligence;
- 17.3.2 fraud or fraudulent misrepresentation;
- 17.3.3 for a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- 17.3.4 for any matter which it would be illegal for TruStack to exclude or attempt to exclude its liability.
- 17.4 Subject to condition 17.2 and condition 17.3:
- 18.104.22.168 TruStack shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: 22.214.171.124 loss of profits; or
- 126.96.36.199 loss of business; or
- 188.8.131.52 depletion of goodwill or similar losses; or
- 184.108.40.206 loss of anticipated savings; or
- 220.127.116.11 loss of goods; or
- 18.104.22.168 loss of contract; or
- 22.214.171.124 loss of use; or
- 126.96.36.199 loss or corruption of data or information; or
- 17.4.19 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- 17.4.2 TruStack’s total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the level of such professional indemnity insurance in place for TruStack from time to time. 17.5 TruStack shall not be liable for the loss of or damage to software programs during the repair or upgrade of any Equipment whether or not such software is under warranty.
18. Intellectual Property Rights
- 18.1 If TruStack manufactures the Equipment, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified TruStack against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by TruStack in connection with, or paid or agreed to be paid by TruStack in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from TruStack’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of TruStack.
- 18.2 The Customer acknowledges that rights in respect of trademarks, trade names, copyrights, patents and other Intellectual Property Rights connected with the Equipment and Services and any value-added work thereto do not pass to the Customer, unless otherwise specifically authorised.
- 18.3 TruStack shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of TruStack.
- 18.4 TruStack’s Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of TruStack, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
- 18.5 In relation to the Software:
- 18.5.1 the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals;
- 18.5.2 nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
- 18.6 If an order includes software or other intellectual property, such software or other intellectual property is provided by TruStack to the Customer subject to the copyright and user licence, the terms and conditions of which are set forth in the licence agreement accompanying such software or intellectual property. Nothing herein shall be construed to grant any rights or licence to use any software in any manner or for any purpose not expressly permitted by such licence agreement. The Customer must comply with any terms and conditions, licences or restrictions which the manufacturer or the owner provides with the Equipment or Services including software licence agreements. Unless otherwise set forth in writing by an authorised signatory of TruStack, TruStack is not the licensor and the Customer acquires the licence directly from the manufacturer or the manufacturer’s licensor.
19. Confidentiality and Supplier’s Property
- 19.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by TruStack or its agents, and any other confidential information concerning TruStack’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging the Customer’s obligations to TruStack, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
- 19.2 All materials, equipment and tools, drawings, specifications and data supplied by TruStack to the Customer shall at all times be and remain the exclusive property of TruStack, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to TruStack, and shall not be disposed of or used other than in accordance with TruStack’s written instructions or authorisation.
- 19.3 This condition 19 shall survive termination of the Contract, however arising.
- 20.1 Without prejudice to any other right or remedy available to TruStack, TruStack may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary immediately on written notice if:
- 20.1.1 the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer’s reasonable control;
- 20.1.2 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- 20.1.3 if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
- 20.2 Without prejudice to any other right or remedy available to it, either party may terminate the Contract immediately on giving written notice if:
- 20.2.1 the other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- 20.2.2 the other party 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 its creditors;
- 20.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party;
- 20.2.4 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- 20.2.5 the holder of a qualifying floating charge over the assets of the other party has become entitled to appoint or has appointed an administrative receiver;
- 20.2.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; 20.2.7 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
- 20.2.8 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 20.2.1 to condition 20.2.8 (inclusive).
- 20.3 TruStack may terminate this Contract by notice in writing to the Customer where exceptional circumstances render impossible any further professional cooperation between the parties.
- 20.4 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
- 20.5 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
21. Force Majeure
TruStack reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered or reduce the provision of the Services, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of TruStack or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors for a period of four weeks or longer.
No failure or delay by a party to exercise any right or remedy provided under this Contract 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. Rights and Remedies
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
- 24.1 If any provision or part-provision of this Contract 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 condition 25 shall not affect the validity and enforceability of the rest of this Contract.
- 24.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Entire Agreement
- 25.1 This Contract 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, including but not limited to any terms contained in the customer’s purchase order.
- 25.2 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
- 25.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
- 25.4 Nothing in this condition 25 shall limit or exclude any liability for fraud.
- 26.1 The Customer shall not, without the prior written consent of TruStack, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
- 26.2 TruStack may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
27. Third Party Rights
No one other than a party to this Contract shall have any right to enforce any of its terms.
- 28.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be 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 by email to [email protected] for TruStack and the email address specified in writing by the Customer.
- 28.2 Any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or 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 (whichever is the earliest) or if sent by email at the time of receipt of a successful transmission report.
- 28.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
29. Governing Law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the laws of England.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).