General Terms & Conditions and Data Protection Schedule
Preact General Terms and Conditions
1. Terms and Conditions
1.1 These are our general terms and conditions (“PGTC”) and will apply to any orders you make from us if referred to in our order form or other relevant contractual document. They set out our respective roles and obligations in relation to the services that we will deliver to you (“Services”) and any deliverables that we provide to you (“Deliverables”).
1.2 PGTC will prevail over any inconsistent terms or conditions contained in, or referred to in, your purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. Your standard terms and conditions (if any) forming part of, attached to, enclosed with, or referred to in the purchase order or otherwise shall not form part of or govern the agreement between us (“Agreement”).
1.3 In relation to data protection and, in particular, GDPR, our relationship will be governed by the “Data Protection Schedule” at the end of these PGTC.
2. Our obligations
2.1 We shall use reasonable endeavours to meet any performance dates that we agree with you but any such dates shall be estimates only and time shall not be of the essence of the Agreement.
2.2 We shall appoint a nominated individual to liaise with you on all matters relating to the Services.
2.3 In terms of remote and on-site access to your premises and systems, our staff will abide by your security protocols to the extent that they have been notified by you thereof.
2.4 We shall abide by the terms of the Data Protection Schedule.
3. Your obligations
3.1 You shall:
3.1.1 co-operate with us in all matters relating to the Services and appoint a nominated individual, who shall have the authority to bind you contractually on matters relating to the Services;
3.1.2 provide in a timely manner such access to your premises and data, and such office accommodation and other facilities, as is requested by us;
3.1.3 provide in a timely manner such information as we may request, and ensure that such information is accurate in all material respects; and
3.1.4 be responsible (at your own cost) for preparing the relevant premises for the supply of the Services;
3.1.5 make sure that you have all appropriate consents and approvals for the provision of information and data to us;
3.1.6 make sure that where you enable us to use any software that such use is authorised by the licensor of such software;
3.1.7 make sure you abide by the terms of any software or hardware manufacturer or licensor whose products you use whether at our recommendation or otherwise;
3.1.8 abide by the terms of the Data Protection Schedule.
3.2 If the performance of our obligations under the Agreement is prevented or delayed by any act or omission by you or your agents, sub-contractors or employees, you shall be liable to pay to us all reasonable costs, charges or losses sustained or incurred by us, subject to us confirming such costs, charges and losses to you in writing.
3.3 You shall not, without our prior written consent, at any time from the date of the Agreement to the expiry of 12 months after the completion of the Services, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged in the provision of the Services.
3.4 Where the Services are to be delivered at your premises, you will make sure that our members of staff are covered by your employers’ liability insurance.
3.5 You hereby agree to indemnify in respect of any claims, losses, liabilities, costs or expenses that we may incur as a result of any breach by you of any of your obligations hereunder.
4. Terms relating to orders received from you
4.1 All prices quoted are exclusive of VAT unless otherwise stated and are valid 30 days from the date shown on the document.
4.2 All software or hardware which we provide to you is manufactured by third parties and will be subject to any licence terms and conditions of use imposed by such third party. You are obliged to familiarise yourselves with such terms. We will have no liability for any malfunction or defect in such third party items but where requested will use our reasonable endeavours to liaise with the relevant third party to remedy the issue.
4.3 Delivery dates for all software and hardware are subject to availability.
4.4 We cannot confirm dates for fixed price projects, training or technical consultancy until payment in full has been received or a payment plan has been agreed by both parties.
4.5 Unless otherwise agreed, all orders and bookings will be invoiced in full at the time of confirmation of order or booking.
4.6 Orders and bookings will only be confirmed upon receipt of a signed Preact Sales Order Form or an official purchase order (which will be subject to clause 1.2 above).
4.7 We reserve the right to withhold, suspend, reschedule, or cancel the delivery of goods or Services in any instances we deem such action necessary.
4.8 In the event that you cancel or postpone any booking for our Services, the following fees will apply:
- 0 – 5 working days’ notice - full fee;
- 6 – 10 working days’ notice - 50% of fee;
- 11 – 15 working days - notice 25% of fee;
- 15 working days or more notice - no fee.
4.9 In the event of non-attendance by you at an arranged booking, consulting engagement or course, this will be deemed as a cancellation by you and the full fee will apply.
5. Service Changes
5.1 If you wish to change the details or scope of the Services, you shall submit details of the requested change to us in writing.
5.2 We shall, within a reasonable time, provide a written estimate to you of whether we can accommodate your request, the likely time required to implement the change, any variations to our charges arising from the change and any other impact of the change on the terms of the Agreement.
5.3 If you wish us to proceed with the change, we have no obligation to do so unless and until you and we have agreed in writing on the necessary variations to the Agreement arising from such change.
5.4 We may change the Services without your consent if such changes would have no material impact on what we are doing for you or we are obliged to do so by law or regulations.
6. Charges and payment
6.1 Where the Services are provided on a time-and-materials basis:
6.1.1 the charges payable for the Services shall be calculated in accordance with our standard daily or hourly fee rates as amended from time to time;
6.1.2 our standard daily fee rates are calculated on the basis of a seven-hour day worked between 9.30 am and 5.30 pm on weekdays (excluding weekends and public holidays);
6.1.3 we shall ensure that all members of the Services team complete time sheets recording time spent on the Services, and we shall use such time sheets to calculate the charges covered by each weekly invoice;
6.1.4 unless otherwise agreed, we shall invoice you weekly in arrears for your charges for time, expenses and materials (together with VAT where appropriate) for the period concerned. Each invoice shall set out the time spent and provide a breakdown of any expenses and materials, accompanied by the relevant receipts.
6.2 Where the Services are provided for a fixed price, we shall notify you of such price and the total price shall be paid to us (without deduction or set-off) in full or in instalments as agreed by you and us in writing.
6.3 Any fixed price excludes the cost of any ancillary expenses reasonably incurred by the Services team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by us for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us provided that both parties have agreed such costs in writing.
6.4 All prices whether fixed or variable are quoted exclusive of travel expenses. Travel expenses are billed at £0.45 per mile. Hotels, flights, subsistence and other ancillaries will be at economy level and billed at cost.
6.5 All invoices are subject to VAT, which we shall add to your invoices at the appropriate rate.
6.6 You shall pay each invoice submitted to you by us in full, and in cleared funds, by the due date as stated on the invoice, or in the absence of a due date, within 30 days of the date of invoice.
6.7 Without prejudice to any other right or remedy that we may have, if you fail to pay us by the due date we may:
6.7.1 charge interest on a daily basis on any sums outstanding from the invoice date until payment (both before and after judgement) at an annual rate 4% above the Base Rate for the time being in force of Barclays Bank plc; and
6.7.2 suspend all Services until payment has been made in full.
6.8 Time for payment shall be of the essence of the Agreement.
6.9 All payments payable to us under the Agreement shall become due immediately on termination of the Agreement, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
7.1 We warrant that we shall use our reasonable care and skill in the provision of the Services and use our reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to you, in accordance in all material respects with any specific targets that we agree with you.
7.2 We do not warrant that the provision of the Services will be uninterrupted or error-free.
7.3 The warranties set out in clauses 7.1 and 7.2 are exclusive of and in lieu of all other conditions and warranties, either express or implied, statutory or otherwise, including without limitation those relating to satisfactory quality or fitness for purpose.
7.4 You hereby warrant that you have not been induced to enter into this Agreement by any prior representations whether oral or in writing except as expressly contained in this Agreement and waive any claim for breach of any such representations which are not so expressly mentioned.
8. Limitation of liability
8.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of any breach of the Agreement, any use made by you of the Services, the Deliverables or any part of them and any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
8.3 Nothing in these conditions excludes our liability for death or personal injury caused by our negligence or for fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3, we shall not be liable, whether in tort (including for breach of statutory duty), contract, misrepresentation or otherwise for loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.5 No matter how many claims are made and whatever the basis of such claims, our maximum aggregate liability to you under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clause 8.3 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to £5 million.
8.6 You agree that you are in a better position than we to foresee and estimate any loss you may suffer in connection with this Agreement and that the sums due hereunder have been set after taking full account of the limitations and exclusions in this clause 8. You are recommended to effect suitable insurance having regard to your particular circumstances and the terms of this clause 8.
9.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:
9.1.1 the other party commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
9.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
9.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
9.1.4 a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
9.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
9.1.6 the other party ceases, or threatens to cease, to trade.
9.2 Termination of the Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
10.1 Subject to clause 10.2 each party undertakes on behalf of itself and its respective employees, agents and servants that it will not without the prior written permission of the other party, permit the disclosure to or duplication or use by any third party of information received pursuant hereto unless such information at that time is already in the public domain.
10.2 The confidentiality provisions of this Agreement shall not preclude disclosure resulting from legal obligations whether pursuant to data protection legislation or otherwise.
10.3 The parties acknowledge and hereby agree that the terms of this clause shall survive the expiry or termination for whatever reason of this Agreement.
10.4 You undertake to keep secure from third parties any passwords issued to you by us.
11.1 Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default.
11.2 The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
11.3 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post, email transmission (such email transmission notice to be confirmed by letter posted within 12 hours) to the address of the other as notified and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery and (if sent by post) upon the expiration of 48 hours after posting and (if sent by email) upon the expiration of 12 hours after dispatch.
11.4 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
11.5 Subject to clause 11.6, this Agreement together with any purchase order(s) but subject always to clause 1.2 hereof, constitutes the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation.
11.6 No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.
11.7 We shall be entitled to sub contract the whole or any part of our obligations hereunder to any third party but shall remain liable as if we were performing the Services ourselves.
11.8 No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.
11.9 This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
Data Protection Schedule
In the course of providing CRM services, Preact may process personal data on our customer’s behalf where such personal data is subject to EU data protection laws like GDPR.
Our Data Protection Agreement (DPA) is shown below. The DPA will only be legally binding and effective if: (1) it is executed; and (2) you are a Preact customer, or engaged in dialogue to potentially become a Preact customer on the date it is fully executed. For the avoidance of doubt, Preact considers an organisation it is engaged in pre-sales dialogue with to be its customer.
1.1 “Agreement” means The Preact General Terms and Conditions and the related Order Form, which together govern the provision of the Services to Customer.
1.2 “Customer Data” means any Personal Data that Preact processes on behalf of Customer as a Data Processor in the course of providing Services.
1.3 “Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data by Preact pursuant to the Agreement, including, where applicable, EU Data Protection Law.
1.4 “Data Controller” means an entity that determines the purposes and means of the processing of Personal Data.
1.5 “Data Processor” means an entity that processes Personal Data on behalf of a Data Controller.
1.6 “EU Data Protection Law” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
1.7 “EEA” means, for the purposes of this DPA, the European Economic Area, United Kingdom and Switzerland.
1.8 “Personal Data” means any information relating to an identified or identifiable natural person.
1.9 “Processing” has the meaning given to it in the GDPR and “process”, “processes”, and “processed” will be interpreted accordingly.
1.10 “Security Incident” means any unauthorised or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Data.
1.11 “Services” means any product or service provided by Preact to Customer pursuant to the Agreement.
2. Relationship with the Agreement
2.1 The parties agree that this DPA will replace any existing data protection addendum or similar agreement the parties may have previously entered into in connection with the Services.
2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA will prevail to the extent of that conflict.
2.3 Any claims brought under or in connection with this DPA will be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.
2.4 No one other than a party to this DPA, its successors and permitted assignees will have any right to enforce any of its terms.
2.5 This DPA will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
3. Scope and Applicability of this DPA
This DPA applies where and only to the extent that Preact processes Customer Data that originates from the EEA and/or that is otherwise subject to EU Data Protection Law on behalf of Customer as Data Processor in the course of providing Services pursuant to the Agreement.
4. Data Protection Obligations - Roles and Scope of Processing
4.1 Role of the Parties. As between Preact and the Customer, the Customer is the Data Controller of Customer Data, and Preact will process Customer Data only as a Data Processor acting on behalf of the Customer.
4.2 Customer Processing of Customer Data. The Customer agrees that: (i) it will comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Customer Data and any processing instructions it issues to Preact; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Data Protection Laws for Preact to process Customer Data and provide the Services pursuant to the Agreement and this DPA.
4.3 Preact Processing of Customer Data. Preact will process Customer Data only for the purposes described in the DPA and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to Preact in relation to the processing of Customer Data and processing outside the scope of these instructions (if any) will require prior written agreement between Customer and Preact
4.4 Details of Data Processing.
4.4.1 Subject matter: The subject matter of the data processing under this DPA is the Customer Data.
4.4.2 Duration: As between Preact and the Customer, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.
4.4.3 Purpose: The purpose of the data processing under this DPA is the provision of Services to the Customer and the performance of Preact pursuant to the Agreement (including this DPA) or as otherwise agreed by the parties.
4.4.4 Nature of the processing: Preact provides CRM Services and other related services, as described in the Agreement.
4.4.5 Categories of data subjects: Any individual accessing and/or using the Services through the Customer’s Account (“Users”)
4.4.6 Types of Customer Data: Typically, the CRM system will store: Customer and Users: identification and contact data (name, address, title, contact details, username, email, employment details (employer, job title, geographic location, area of responsibility);
4.6 Information Security Policy. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Preact will implement and maintain appropriate technical and organisational security measures to protect Customer Data from Security Incidents and to preserve the security and confidentiality of the Customer Data, in accordance with Preact security standards.
4.7 Updates to Security Measures. The Customer is responsible for reviewing the information made available by Preact relating to data security and making an independent determination as to whether the Services meet the Customer’s requirements and legal obligations under the Data Protection Laws. The Customer acknowledges that the Security Policy is subject to technical progress and development and that Preact may update or modify the Security Policy from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.
4.8 Customer Responsibilities. Notwithstanding the above, the Customer agrees that, except to the extent expressly provided in this DPA, the Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of the Customer Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Customer Data uploaded to the Services.
4.9 International Transfers. Preact will not transfer any Personal Data outside the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled;
The Customer or the Provider has proved appropriate safeguards in relation to the transfer;
The Data Subject has enforceable right and effective legal remedies;
The Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
The Provider complied with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Person Data.
Preact will at all times provide an adequate level of protection when transferring and processing Personal Data outside the European Economic Area.
5. GDPR Obligations - Additional Security
5.1 Confidentiality of Processing. Preact will ensure that any person who is authorised by Preact to process Customer Data will be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).
5.2 Security Incident Response. Upon becoming aware of any Security Incident, Preact will notify the Customer within 24 hours and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Customer.
5.3 Return or Deletion of Data. Upon termination or expiration of the Agreement, Preact will (at Customer’s election) delete or return to the Customer all Customer Data (including copies) in its possession or control, save that this requirement will not apply to the extent Preact is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data Preact will securely isolate and protect from any further processing, except to the extent required by applicable law.
6.1 Data Subject Requests. Concerning personal data for which Licensee is the data controller, Preact will only act on the written instructions of the Licensee;
Preact will ensure that any personnel processing the Personal Information are subject to a duty of confidence;
Preact will take appropriate measures regarding the security of processing;
Preact will only engage sub-processors with the previous consent of the Licensee and under a written contract with such sub-processors;
Preact will assist the Licensee in providing subject access and allowing data subjects to exercise their rights under the GDPR, in circumstances where the Licensee cannot do so through their access to the Licensed Product;
Preact will assist the Licensee in meeting GDPR obligations concerning the security of processing, the notification of personal data breaches and data protection impact assessments;
Preact will delete or return all personal data to the Licensee as requested at the end of the contract;
Preact will submit to audits and inspections, accepting any such onsite; provided they do not interfere or impact Preact’s obligations of confidentiality under law or contract or disrupt its ordinary course of business;
Within 5 working days from date of request, Preact will provide the Licensee with the applicable information in Preact’s possession that the Licensee needs to ensure that Preact and the Licensee are meeting the obligations for a Processor under Article 28; and
Preact will notify the Licensee promptly if Preact is asked by the Licensee to do something infringing the GDPR or other data protection law of the EU or a member state.
6.2 Data Protection Impact Assessments. To the extent Preact is required under EU Data Protection Law, Preact will (at the Customer’s expense to the extent legally permitted) provide reasonably requested information regarding the Services to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
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