Terms & Conditions
Terms & Conditions
The definitions and rules of interpretation in this condition apply in these Conditions:
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Claritas” means Claritas Solutions Ltd, a company registered in England and Wales (number 03191078);
“Claritas Materials” shall have the meaning given to it in condition 8.1.5;
“Client” means the person, firm or company with whom the Contract is made by Claritas, whether directly or indirectly, through an agent or factor who is acting for or instructed by Claritas;
“Commencement Date” shall have the meaning given to it in condition 2.3.2;
“Conditions” means these terms and conditions as amended from time to time in accordance with condition 11.1;
“Contract” means the contract between Claritas and the Client for the supply of Services and/or Hardware in accordance with these Conditions;
“Data Subject Request” means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
“Data Protection Laws” means as applicable, the General Data Protection Regulation (EU) 2016/679 (GDPR), the Data Protection Act 2018 and/or any corresponding or equivalent national laws or regulations and any replacement, amendment, re-enactment or consolidation of the same from time to time together with all subordinate legislation;
“Deliverables” means all products and materials developed or supplied by Claritas under the terms of the Contract in any media, including computer programs, data, diagrams, reports and specifications (including drafts);
“Development Services” means bespoke software and application development services;
“Hardware” means the hardware to be supplied by Claritas to the Client under the terms of the Contract;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Personal Data” means information about an individual that is defined as “personal data” or “personal information” in the applicable Data Protection Laws.
“Protected Data” means Personal Data received from or on behalf of the Client or otherwise in connection with the performance of Claritas’ obligations under the Contract;
“Services” means the services, including (wherever provided by Claritas), hosted and certain hosting services, the Development Services and including the Deliverables, to be provided by Claritas to the Client under the terms of the Contract and “Service” shall be construed accordingly; and
“Service Specific Conditions” means the conditions which pertain to a particular category of Service as set out in condition 6.
1.2 a reference to a statute or statutory provision is a reference to such statute or statutory 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;
1.3 words in the singular include the plural and in the plural include the singular;
1.4 condition headings do not affect the interpretation of these conditions;
1.5 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.6 a reference to a party includes its personal representatives, successors or permitted assigns;
1.7 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
1.8 a reference to writing or written includes faxes and emails.
2.1 Subject to any variation under condition 2.2 these Conditions shall be incorporated into the Contract to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document or which are implied by trade, custom, practice or course of dealing).
2.2 The Contract constitutes the entire agreement between the parties. These Conditions apply to every Contract and to all Claritas’ sales of Services and/or Hardware and any variation to these Conditions and any representations about the Services and/or Hardware shall have no effect unless expressly agreed in writing and signed by an authorised signatory of Claritas. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Claritas which is not set out in the Contract.
2.3 The Client’s purchase order or the Client’s acceptance of a quotation for Services by Claritas (as the case may be) constitutes an offer by the Client to purchase the Services and/or Hardware from Claritas (as the case may be) in accordance with these Conditions. No offer placed by the Client shall be accepted or deemed accepted by Claritas other than:
- by a written acknowledgement issued and executed by Claritas and stated as being an acceptance of the Client’s offer to purchase the Services and/or Hardware; or
- if earlier) by Claritas starting to provide the Services and/ or Hardware, at which point and on which date the Contract shall come into existence (Commencement Date).
2.4 Quotations given by Claritas shall not constitute an offer to the Client and are given strictly on the basis that no Contract shall come into existence except in accordance with condition 2.3. Any quotation is valid for a period of 7 days or until the end of the current month in which the quotation is issued (whichever is the nearer from the date stated), provided that Claritas has not previously withdrawn it.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Claritas and any descriptions or illustrations contained in Claritas’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Services and Hardware described in them. They shall not form part of the Contract or have any contractual force.
2.6 All quotes are subject to a satisfactory credit rating being applied to the Client. Upon request, the Client will provide Claritas with information describing the Client’s financial condition as part of this and ongoing credit control monitoring.
2.7 The Client is responsible for ensuring that the terms of its order and any applicable specification are complete and accurate.
2.8 Since under normal circumstances Services and/or Hardware may be ordered the same day on receipt of the Client’s order, Claritas reserves the right to refuse to accept cancellation of orders. Where such cancellation is accepted, the Client indemnifies Claritas for any resultant losses, costs or expenses.
3.1 Restriction on activity: The Supplier shall not engage in any activity, practice or conduct which could constitute, facilitate or cause (in whole or in part) the commission (whether on the part of the Customer or the Supplier) of an offence under the Bribery Act 2010.
3.2 Restriction on giving advantage: The Supplier shall not offer, promise or give the Customer or any officer, employee or representative of the Customer (for the purpose of this Condition 3.2, each a “Customer Delegate”) any financial or other advantage which could, or is intended to, cause the Customer or any Customer Delegate to abuse any position of trust held by the Customer or that Customer Delegate, or fail to act with good faith and/or impartiality in circumstances where it is expected to do so.
3.3 Suitable policies: The Supplier shall ensure that it has and maintains throughout the Contract term, suitable policies and procedures to aim to prevent the commission of any offence under the Bribery Act 2010 (and/or any subordinate legislation introduced under the Bribery Act 2010) by the Supplier or any officer, partner, employee or representative of the Supplier. The Supplier shall, at all times during the Contract term, properly enforce such policies and procedures on an annual or more frequent basis. The Supplier shall, at the Customer’s request, promptly provide to the Customer all such policies and procedures and sufficient evidence so as to satisfy the Customer (acting reasonably) that such policies and procedures are properly enforced and such periodic compliance monitoring is taking place.
3.4 Reporting: The Supplier shall promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Contract.
4 Service Term
4.1 Services supplied under the Contract shall be provided by Claritas to the Client from the date of Claritas’ acceptance of the Client’s offer in accordance with condition 2.3, subject to any different start dates which might pertain to various Services and which may be specified in the Contract.
4.2 Subject to condition 13, the Services supplied under the Contract shall continue to be supplied for the period specified in Claritas’ quotation (the “Initial Period”) and, after that, shall automatically be extended for successive 12 months periods 60 days prior to the end of the initial term or the end of any successive periods unless the client provides Claritas at least 90 days’ notice to terminate services.
5 Supply of Services – General
5.1 Claritas shall supply the Services to the Client in accordance with the Client’s order for Services (provided that such order has been accepted by Claritas in accordance with these Conditions).
5.2 Claritas shall use reasonable endeavors to meet any performance timescales, dates or target installation dates in the Contract but such timescales and dates are estimates only and time for performance shall not be of the essence.
5.3 Claritas warrants that the Services will be provided using reasonable care and skill.
5.4 Claritas warrants that the Services will be provided in compliance with applicable English law and regulation.
5.5 Claritas may temporarily suspend a Service because of an emergency or for operational maintenance or improvements or for the purpose of ensuring network or information security.
6 Service Specific Terms and Conditions
6.1 Provisions in this condition 6 also apply to hosted and certain hosting Services provided to the Client as the case may be, including email, web hosting, domain registration, content filtering and other security related services, data centre services, hardware hosting and software as a service (Saas) (in each case as specified in the Contract). For clarity, the terms in this condition 6 apply IN ADDITION to the General Terms and Conditions in condition 5 above.
6.2 The Client acknowledges that it is technically impractical to provide the Services free of fault or error or uninterrupted and Claritas does not undertake to do so. Accordingly, Claritas does not give any warranty or undertaking that these Services will be uninterrupted or error or virus free. It does not give any guarantee or warranty that the Services or connection will be available for 100% of the time nor does it guarantee the performance of the internet, nor give any guarantee or warranty that the transmission of information over the internet will be secure nor that the internet will be accessible at all times.
6.3 The Client acknowledges that not all information made available by way of these Services (whether on a website or otherwise) will be 100% accurate and no warranty is given by Claritas in this regard.
6.4 Claritas reserves the right to vary the technical specification of the Service when necessary for operational reasons or as it may in its reasonable discretion determine. Such variation may affect connection speeds in which case, Claritas shall not have any liability as a result of any reduced connection speeds arising from variations made in accordance with this condition.
6.5 The Client acknowledges that connection speeds will depend on its own equipment and connection. Accordingly, Claritas will not be liable for any delays in connection speeds if they arise as a result of matters beyond its own reasonable control including those which are the responsibility of the Client.
6.6 A limited level of data transfer may be stipulated by Claritas in connection with these Services and any restrictions on data transfer shall be specified in the Contract. Data transfer in excess of restricted limits will be charged in accordance with Claritas’ standard price list in force from time to time. Further, responsibility for compliance with any bandwidth and speed restrictions shall at all times be those of the Client and such responsibility shall include where any excess arises as a result of any third party actions whether authorised by the Client or not and shall include hacking or other malicious use.
6.7 Claritas reserves the right to undertake maintenance works during planned maintenance downtime. None of the Services is accompanied by service levels but should that be varied at any time by Claritas in writing, any planned maintenance downtime shall be excluded from any downtime referred to in any such service levels.
6.8 Any IP address assigned by Claritas to the Client for use in connection with these Services shall at all times remain Claritas’ sole property and the Client shall have a non-transferable license to use such address only for the duration of the particular Service as relevant. If the Service is terminated for any reason, the Client’s license to use the IP address shall automatically terminate.
6.9 Claritas does not and shall not, except where expressly specified in the Contract, provide any editorial or monitoring function in connection with the Client or other content used in connection with the Services.
6.10 Claritas shall use reasonable efforts to update any hosted content as soon as reasonably practicable but shall not be liable for any delay in doing so. The Client acknowledges that not all content will always be up to date.
6.11 The Client shall be strictly responsible for all website, system and content back up and Claritas shall not under any circumstances be liable as a result of any damages, losses, costs or expenses arising as a result of a Client failure to back up the same.
6.12 Claritas reserves the right in its absolute discretion to remove or disable any content used in connection with the Services at any time and without notice including if it receives a notice of complaint about any such content.
6.13 Where relevant to the Services, Claritas will notify the Client on the release of any operating system critical patches or other software patches or fixes which it may require the Client to install. It will be the responsibility of the Client to request installation of the same by Claritas and patches or other fixes will not be deployed without the explicit permission of the Client. If the Client fails to request the same, any losses, costs, claims, damages or expenses arising as a result shall be entirely the Client’s responsibility.
6.14 Where domain name registration is provided, Claritas will register the same with the relevant naming authority requested by the Client but the Client acknowledges that such matters are beyond Claritas’ reasonable control and that Claritas cannot guarantee that a domain name as the Client may request will be available or approved for use and the Client waives any claims it may have against Claritas in respect of any decision of a naming authority to refuse to register a domain name.
6.15 The Client warrants that it is the owner of or has the right to use any trademark or name requested or allocated or used in connection with the Client’s domain name or otherwise used by the Client in connection with the Services.
6.16 Claritas does not represent, warrant or guarantee that any domain name applied for by the Client or on the Client’s behalf will be registered in the Client’s name or is capable of being registered by the Client or that the use of such name will not infringe any third party Intellectual Property Rights. Accordingly, the Client shall be solely responsible for any action it takes in respect of its requested domain name.
6.17 Registration of any domain name and on-going use by the Client shall at all times be subject to the relevant naming authority’s terms and conditions of use and the Client shall comply with the same. Claritas accepts no responsibility in respect of the use of any domain name by the Client and any dispute between the Client and any other individual organisation regarding a domain name must be resolved between the parties concerned.
6.18 Where any of the Services is licensed or made available on the basis of a restricted number of users, the Client shall ensure that the number of authorised users is not exceeded. If that number is exceeded, additional fees shall be payable and Claritas may also disable access to the relevant Services by disabling passwords.
6.19 The Client shall maintain a list of authorised users / details of the number of users who can access the Services which is shall provide to Claritas on request. Claritas may at any time audit the use of the Services to verify that the scope of Services and other rights granted under the Contract is not exceeded.
6.20 If the Client needs to increase the number of authorised users for the Services it will inform Claritas as soon as it becomes aware of the need to increase and Claritas will inform the Client of the increased fees payable. The increased fees will apply from the date of increased use.
7.1 The price payable for the Services shall, unless otherwise stated in the Contract, be the fee chargeable by Claritas for such Services current at the date of the provision of the Services.
7.2 The price payable for the Services shall not include any expenses incurred by Claritas when travelling to the Client’s premises. Any such expenses shall be charged to the Client separately.
7.3 The price payable for the Hardware shall, unless otherwise stated in the Contract, be the list price of Claritas current at the date of dispatch.
7.4 Unless otherwise expressly stated to be fixed for a specified period Claritas’ charges in respect of the Services and/or Hardware are subject to amendment by Claritas from time to time.
7.5 Claritas may, by giving notice to the Client at any time before delivery, increase the price of the Services and/or Hardware to reflect any increase in the cost of the Services and/or Hardware that is due to:
- any factor beyond Claritas’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Client to change the delivery date(s), quantities or types of Hardware and/or Services ordered; or
- any delay caused by any instructions of the Client or failure of the Client to give Claritas adequate or accurate information or instructions.
7.6 The price of the Hardware is exclusive of the costs and charges of packaging, insurance, transport and installation of the Hardware, which shall be invoiced to the Client.
7.7 All prices are exclusive of Value Added Tax (VAT) and any other taxation that may be applicable. The Client shall pay the VAT and any additional taxes as set out on the invoice.
8 Client Obligations
8.1 The Client shall:
- ensure that the terms of its purchase order are complete and accurate;
- co-operate with Claritas in all matters relating to provision of the Services and/or the Hardware;
- provide Claritas, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Client’s premises, data and other facilities, including any access to server rooms, as reasonably required by Claritas for its provision of the Services and/or Hardware;
- provide to Claritas, in a timely manner, such information or other in-put material specified in the Contract or as Claritas may reasonably require from time to time and ensure that it is accurate in all material respects;
- keep and maintain all materials, equipment, documents and other property of Claritas (Claritas Materials) at the Client’s premises in safe custody at its own risk, maintain the Claritas Materials in good condition until returned to Claritas, and not dispose of or use Claritas Materials other than in accordance with Claritas’ written instructions or authorisation; and
- obtain and maintain all necessary licences, permissions and consents (if any) which may be required before the date on which the Services are to start.
8.2 If Claritas’ performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Claritas shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
8.3 The Client shall be liable to pay to Claritas, on demand, all reasonable costs, charges or losses sustained or incurred by Claritas (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Claritas confirming such costs, charges and losses to the Client in writing.
8.4 The Client shall not, without the prior written consent of Claritas, at any time from the date of the Contract to the expiry of 6 months after termination of the Contract, solicit or entice away from Claritas or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Claritas in the provision of the Services and/or Hardware.
9 Terms of Payment
9.1 Without prejudice to any contrary provisions in this condition 9, Claritas shall be entitled to invoice the Client at any time.
9.2 Unless otherwise agreed between the parties in writing, payment for Hardware shall be due 30 days from the date of Claritas’ invoice in respect of the same.
9.3 Unless agreed otherwise in writing between the parties, 50% of the fees for Development Services shall be due 30 days from the date of Claritas’ invoice in respect of the same. The remaining 50% shall be invoiced on Claritas’ conclusion of the Development Services and payment shall be due 30 from the date of Claritas’ invoice.
9.4 Unless agreed otherwise in writing, Claritas shall invoice the Client for all other Services quarterly in advance and the Client shall pay such invoices within 30 days of the date of invoice.
9.5 The Client shall pay all invoices in full and in cleared funds. Payment shall be made to the bank account nominated in writing by Claritas.
9.6 Any credit terms offered by Claritas to the Client are subject to review by Claritas from time to time and Claritas may at its absolute discretion suspend or vary any credit terms granted.
9.7 If at any time the Client should default on any credit terms, or payment obligations all sums due under the Contract shall immediately become repayable.
9.8 Claritas may add an advance late payment fee of 5% to every invoice, which Claritas shall:
- repay to the Client if the Client pays within the agreed payment terms; or
- retain if the Client fails to pay within the agreed payment terms,
- and the Client acknowledges that the advance late payment fee is reasonable, not a penalty and represents a genuine attempt to pre-estimate Claritas’ loss in the event that the Client fails to make payment within the agreed payment terms.
9.9 Time for payment of all sums due to Claritas under the Contract shall be of the essence and the Client shall indemnify Claritas against all expenses and legal costs incurred by Claritas in recovering overdue amounts. Interest shall be payable by the Client on amounts which have been overdue for more than 1 year (before as well as after judgement) at the annual rate of 5% above the base lending rate of Lloyds TSB Bank from time to time on the outstanding amount until the fees and/or expenses are paid in full.
9.10 If the Client fails to pay any amount payable by it under the Contract, Claritas may suspend the supply of the Services and/or the Hardware until the overdue amount has been paid in full.
9.11 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Claritas to the Client.
9.12 Claritas may, without prejudice to any other rights it may have, set off any liability of the Client to Claritas against any liability of Claritas to the Client.
10 Intellectual Property Rights
10.1 The Client shall indemnify Claritas against all costs, claims and damages incurred or threatened arising out of any alleged infringements of patents, trademarks, registered designs, design right, copyright or any other intellectual property right occasioned by the provision of the Services and or/ Hardware where such Services and/ or Hardware are provided to the specification or special requirements of the Client.
10.2 All Intellectual Property Rights arising out of or in connection with Claritas’ delivery of the Services are and shall remain the property of Claritas. All such Intellectual Property Rights shall be treated as confidential and shall not be copied or reproduced or disclosed to any third party without the prior written consent of Claritas.
10.3 The Client shall ensure that its employees and all other parties under the Client’s control and supervision shall comply with the obligations of confidentiality contained in condition 10.2.
10.4 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on Claritas obtaining a written license from the relevant licensor on such terms as will entitle Claritas to license such rights to the Client.
10.5 All Claritas Materials are the exclusive property of Claritas.
11.1 Subject to condition 11.2, except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Claritas.
11.2 Claritas may make reasonable variations to the Hardware and or Services, to be provided under the Contract, prior to delivery to the Client and without notice to the Client and any such variations shall not constitute a variation to the Contract.
12 Hardware – Delivery, Risk and Title
12.1 Delivery of the Hardware shall be completed on the Hardware’ arrival at the location for delivery as specified in the Contract.
12.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Claritas shall not be liable for any delay in delivery of the Hardware that is caused by a force majeure event set out in condition 15 or the Client’s failure to provide Claritas with adequate delivery instructions or any other instructions that are relevant to the supply of the Hardware.
12.3 The Hardware is at the risk of the Client from the time of delivery.
12.4 Title to the Hardware shall not pass to the Client until Claritas has received in full (in cash or cleared funds) all sums due to it in respect of:
- the Hardware; and
- all other sums which are or which become due to Claritas from the Client on any
13.1 Claritas shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Client 30 day’s written notice.
13.2 Claritas shall have the right at any time by giving notice in writing to the Client to terminate the Contract forthwith if:
- the Client commits a material breach of any of the terms and conditions of the Contract; or
- any distress, execution or other process is levied upon any of the assets of the Client; or
- the Client has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Client or notice of intention to appoint an administrator is given by the Client or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Client or for the granting of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client; or
- the Client ceases or threatens to cease to carry on its business; or
- the financial position of the Client deteriorates to such an extent that in the opinion of Claritas the capability of the Client adequately to fulfil its obligations under the Contract has been placed in jeopardy.
13.3 On termination of the Contract for any reason:
13.4 the Client shall immediately pay to Claritas all of Claritas’ outstanding unpaid invoices and interest and, in respect of Services and/or Hardware supplied but for which no invoice has been submitted, Claritas may submit an invoice, which shall be payable immediately on receipt;
13.5 the Client shall return all of the Claritas Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Claritas may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
13.6 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected; and
13.7 conditions which expressly or by implication survive termination shall continue in full force and effect.
14 Limitations of Liability
14.1 This condition 14 sets out the entire financial liability of Claritas (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
- any breach of the Contract;
- any use made by the Client of the Services, the Hardware, or any part of either of them; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Conditions limits or excludes the liability of Claritas:
- for death or personal injury resulting from negligence; or
- for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Claritas; or
- for any liability incurred by the Client as a result of any breach by Claritas of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
14.4 Subject to condition 14.2 and condition 14.3, Claritas shall not be liable (whether in contract, tort (including negligence or breach of statutory duty), or otherwise) for:
- loss of profits; or
- loss of business; or
- depletion of goodwill and/or similar losses; or
- loss of anticipated savings; or
- loss of Goods; or
- loss of contract; or
- loss of use; or
- loss of corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
- arising under or in connection with the Contract
14.5 Claritas’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price actually paid for the Services and/or Hardware (as the case may be).
14.6 Claritas shall not be liable for imperfect work caused by inaccuracies on diagrams, information or specifications supplied by the Client.
14.7 The parties recognise that neither party has control over how foreign administrations of third party clients establish their rule and conditions pertaining to international telecommunications services. The parties agree that neither party shall be liable for any loss or damage sustained by the other party, its interconnecting carriers or its end users due to any failure in, or breakdown the communications facilities associated with providing services hereunder, or for any interruption or degradation of such services whatsoever.
14.8 This condition 14 shall survive termination of the Contract.
15 Force Majeure
Neither party shall be liable to the other for any delay or non-performance of its obligations if the same is due to a Force Majeure Event. The Client may not rely on a Force Majeure Event
for any delay or non-performance of any obligation to pay. Either party may terminate this Agreement by written notice to the other party if a Force Majeure Event occurs that affects all or a substantial part of the Services and which continues for more than 60 days. Force Majeure Event means an event beyond the reasonable control of either party including strikes, lock-outs or other industrial disputes, failure of a utility service or transport 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 subcontractors.
16 Data Protection
16.1 To the extent that the performance of the Contract involves Claritas Processing any Protected Data, the Client shall be the Data Controller and Claritas, the Data Processor. The parties acknowledge that any such Processing of Protected Data by Claritas will be further to specific instructions of the Client in the performance of rights and obligations under the Contract.
16.2 Where relevant, Claritas shall Process Protected Data in compliance with the obligations of Data Processors under Data Protection Laws.
16.3 The Client shall comply with all Data Protection Laws in connection with the Protected Data including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws.
16.4 The Client warrants, represents and undertakes, that:
- all Personal Data sourced by it for use (including collection, storage and other Processing) in connection with the Contract or the subject matter thereof shall comply in all respects, with Data Protection Laws;
- all instructions given to Claritas in respect of Personal Data shall at all times be in accordance with Data Protection Laws;
- it is satisfied that Claritas’ Processing operations are suitable for the purposes for which the Client engages Claritas and that Claritas has sufficient expertise, reliability and resource to implement technical and organisational measures that meet Data Protection Law requirements taking account in particular of the circumstances in which it will be necessary for Claritas to Process Personal Data and the nature of such Personal Data, including any Special Category Personal
16.5 Where Claritas Processes Protected Data, Claritas:
- unless otherwise required by applicable law, shall Process the Protected Data only in accordance with the Client’s documented instructions as updated from time to time and if Data Protection Law or other applicable law requires it, to Process Protected Data other than in accordance with such instructions, it shall notify the Client of such requirement before Processing the same (unless prohibited on public interest grounds) except that nothing in this condition 16.5.1 shall infer an obligation on Claritas to satisfy itself as to, advise on or otherwise take account of any such legal requirements; and
- shall inform the Client if it becomes aware of an instruction that, in Claritas’ opinion, infringes Data Protection Laws, provided that:
- this shall be without prejudice to conditions 3 and 16.4; and
- to the maximum extent permitted, Claritas shall have no liability (whether in contract, tort (including negligence) or otherwise) for any losses, claims, damages, costs, expenses or liabilities arising from or in connection with any Processing in accordance with the Client’s instructions.
16.6 Claritas shall implement and maintain such technical and organisational measures as required to protect Protected Data from unauthorised damage or loss, and taking into account the nature of the Processing, to assist the Client insofar as is possible in the Client’s obligations to respond to Data Subject Requests relating to Protected Data. The provisions of this condition 16.6 shall be without prejudice to the other obligations of Claritas with regards to matters of Personal Data security as may be otherwise dealt with and set out in the Contract.
16.7 Claritas shall refer all Data Subject Requests it receives to the Client in 3 to 5 working days of receipt. Further, Claritas shall provide such information and cooperation and take such action as the Client requests in relation to a Data Subject Request and shall not respond to any Data Subject Request or complaint without the Clients’ prior written approval.
16.8 Without prejudice to the other provisions of the Contract, Claritas shall provide such reasonable assistance as the Client reasonably requires for the purposes of the Client complying with Data Protection Laws with respect to:
- security of processing;
- Data Protection Impact Assessments;
- notifications to the relevant supervisory authority and/or communications to Data Subjects in response to any Personal Data breach,
- and the Client shall pay Claritas’ charges for such
16.9 Claritas may transfer Protected Data that is relevant to the Contract to countries outside the EU provided all such transfers shall to the extent required under Data Protection Laws, have appropriate safeguards applied and be in accordance with such laws.
16.10 Claritas shall maintain, in accordance with Data Protection Laws binding on Claritas, written records of categories of Processing activities carried out on behalf of the Client in respect of the Protected Data.
16.11 Claritas shall, in accordance with Data Protection Laws, make available to the Client, such information as is reasonably necessary to demonstrate Claritas’ compliance with the obligations of Data Processors under Data Protection Laws, and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose, subject to the Client:
- giving Claritas reasonable prior notice of such information request, audit and/or inspection being required by the Client;
- ensuring that all information obtained or generated by the Client or its auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (except as required by applicable law);
- ensuring that such audit or inspection is undertaken during normal business hours, with minimal disruption to Claritas’ business and the business of other clients of Claritas; and
- paying Claritas’ reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
16.12 Claritas shall, without undue delay and taking account of the relevant timelines for compliance as set out in Data Protection Laws, notify the Client of any Personal Data breach and provide the Client with details of the same.
16.13 Claritas shall not appoint any person to act as a sub-Processor of Protected Data without the prior written consent of the Client but the parties acknowledge that this condition 16.13 is not intended to otherwise preclude any rights of Claritas to sub-contract its obligations as set out otherwise in the Contract.
16.14 The Client shall within two Business Days inform Claritas if it receives a complaint in relation to the use of Claritas Personal Data and provide Claritas with full details of the same.
16.15 From time to time, Claritas may disclose certain Personal Data of which it is a Data Controller to the Client (Claritas Personal Data). To the extent that the performance of the Contract involves the disclosure by Claritas to the Client of any Claritas Personal Data, Claritas shall be the Data Controller and the Client shall undertake the role of a Data Processor in respect of such Claritas Personal Data. The parties acknowledge that such use by the Client of the Claritas Personal Data is incidental to the performance of the Contract and will be limited in scope. Such Claritas Personal Data shall include information relating to Claritas personnel.
16.16 The Client shall comply with all Data Protection Laws in connection with the Claritas Personal Data to the extent necessary in order to adhere to the obligations of Data Processors as set out in Data Protection Laws including the maintaining of appropriate records of the Processing of Personal Data.
16.17 Where the Client processes Claritas Personal Data, the Client:
- unless otherwise required by applicable law, shall Process Claritas Personal Data only in accordance with Claritas’s documented instructions from time to time, and if Data Protection Law or other applicable law requires it to Process Claritas Personal Data other than in accordance with such instructions, it shall notify Claritas of such requirement before Processing the same (unless prohibited on public interest grounds); and
- shall inform Claritas if it becomes aware of an instruction that, in the Client’s opinion, infringes Data Protection Laws.
16.18 The Client shall implement and maintain appropriate technical and organisational measures in relation to the Processing of Claritas Personal Data:
- such that the processing will meet the requirements of Data Protection Laws and ensure the protection of the rights of Data Subjects;
- as required to protect the Personal Data from unauthorised damage or loss, taking into account the nature of the Processing; and
- to assist Claritas insofar as is possible in the Client’s obligations to respond to Data Subject Requests relating to Claritas Personal Data;
- such that the relevant measures to be implemented in accordance with this condition 18.4 are no less stringent than the Client applies to its own Personal Data, taking into account the nature of the same.
16.19 The Client shall not engage another Data Processor for carrying out any Processing activities in respect of the Claritas Personal Data without Claritas’s prior written consent.
16.20 The Client shall ensure that those of its personnel Processing Claritas Personal Data are properly trained in data handling and are subject to a binding written contractual obligation with the Client to keep the Claritas Personal Data confidential (except where such disclosure is required in accordance with applicable law).
16.21 In the event that the Client receives any Data Subject Request which affects any Claritas Personal Data it shall refer the same to Claritas in 3 to 5 working days. Further, the Client shall provide such information and cooperation and take such action as Claritas requests in relation to a Data Subject Request and shall not respond to any Data Subject Request without Claritas’ prior written approval.
16.22 The Client shall provide such reasonable assistance as Claritas reasonably requires in Claritas complying with Data Protection Laws with respect to:
- security of Processing;
- Data Protection Impact Assessments; and
- notifications to the relevant supervisory authority and/or communications to Data Subjects in response to any Personal Data breach.
16.23 The Client shall not transfer any Claritas Personal Data to any country outside the EU without Claritas’ prior written consent and the parties do not envisage, given the nature of the Claritas Personal Data, any particular requirement to make any such transfer.
16.24 The Client shall maintain, in accordance with Data Protection Laws, written records of all categories of processing activities carried out in respect of Claritas Personal Data (to the extent relevant).
16.25 The Client shall in accordance with Data Protection Laws, make available to Claritas, such information as is reasonably necessary to demonstrate the Client’s compliance with the obligations in accordance with this condition 16.25 and contribute to audits and inspections by Claritas or its representatives, subject to Claritas:
- giving the Client reasonable prior notice of such audit or inspection request and ensuring that the same is undertaken in normal business hours with minimal disruption;
- ensuring all information obtained or generated by Claritas or its representatives is kept strictly confidential (except as required by applicable law); and
- paying the Client’s reasonable costs for assisting with such audits and
16.26 The Client shall, without undue delay and taking account of the relevant timelines for compliance as set out in Data Protection Laws, notify Claritas of any Personal Data breach and provide Claritas with details of the same.
16.27 The Client shall not appoint any person to act as a sub-Processor of Claritas Personal Data without the prior written consent of Claritas but the parties acknowledge that this condition 16.27 is not intended to otherwise preclude any rights of a party to sub-contract its obligations as set out otherwise in the Contract.
16.28 The Client shall promptly within 48 hours inform Claritas if it receives a complaint in relation to the use of Claritas Personal Data and provide Claritas with full details of the same.
16.29 The Processing of Personal Data which is undertaken in accordance with the terms of the Contract, shall unless otherwise agreed between the parties be for the same duration as the duration of the Contract.
16.30 In the event that there is a legal requirement to which either party becomes subject which requires the transfer of Personal Data of which the other party is a Data Controller, outside the EU, that party shall notify the other of the relevant legal requirement before the relevant Processing takes place (unless prohibited on public interest grounds or otherwise as a matter of law).
16.31 In assessing the appropriateness of security measures to be implemented in relation to the Personal Data which it Processes, each party shall take into account the requirements set out in Data Protection Laws.
16.32 Subject to any other rights and obligations in relation to the retention of data which the relevant party may be subject (howsoever arising), the Data Controller may request the return or deletion of Personal Data at the end of the arrangements between the parties as set out in the Contract.
16.33 In this condition 16, Data Subject, Personal Data, Processing, Data Processor, Data Controller, Special Category Personal Data and Data Protection Impact Assessments have the meanings given to them in Data Protection Laws.
17 Confidential Information
The Client 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 Client by Claritas or its agents and any other confidential information concerning Claritas’ business or its products which the Client may obtain.
18.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
18.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 18.1; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
19.1 The Client shall not, without the prior written consent of Claritas, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 Claritas may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
20 No Partnership or Agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
21 Rights of third parties
Except as expressly stated, a person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce it. Any remedy which exists or is available apart from the Act is not affected.
If any provision or part-provision of the 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 this condition shall not affect the validity and enforceability of the rest of the Contract.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the 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.
24 Governing Law
24.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).
Claritas Solutions Limited
Updated 17th January 2019