PASSPORT-IT LIMITED:
Terms of Use
This website (“website”) is owned and operated by Passport-IT Limited (“P-IT” or “we” or “us”). Passport-IT Limited is a company, registered in England under number 08586212 at The Bridge, Queens Road, Immingham, Immingham, N.E. Lincs, DN40 1QN.
Your use of this website will be governed by the Terms of Use set out below and the terms of our privacy policy. Please read them carefully.
We reserve the right to change these Terms of Use at any time without notice by posting changes on the website. It is your responsibility to familiarise yourself with the Terms of Use regularly to ensure that you are aware of any changes. Your use of the website after a change has been posted will signify your acceptance of the modified Terms of Use.
If you do not agree with these Terms of Use, please do not use this website.
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1.1 We do not warrant that the website will be available at all times or that it is virus or error free. Whilst we make all reasonable attempts to exclude viruses from the website, we cannot ensure such exclusion and no liability is accepted for viruses. You are therefore recommended to take all appropriate safeguards before downloading information or images from the website.
1.2 The website is for information purposes only and is provided on an “as is” basis. We accept no liability for the accuracy, completeness, currency or truth (save for fraudulent representations) of any of the information contained in the website or for any reliance placed by any person on such information.
1.3 Any advice given on this website is for guidance purposes only. Any such advice should not be relied upon or used as a substitute for legal or other professional advice on your specific requirements.
1.4 Except as stated herein, all warranties, Terms of Use, whether express or implied, statutory or otherwise relating to information and material on this site or sites accessed through this site are excluded to the extent permitted by law. Any applicable warranties will be set out in our Terms and Conditions relating to the provision of our goods or services.
We will not, and our suppliers and licensors will not, be liable whether in contract, tort or otherwise for any loss or damage which:
- arises other than through our negligence or the negligence of our employees, agents or contractors; or
- is not a reasonably foreseeable consequence of our negligence; or
- is any business loss including, but not limited to, loss of revenue or loss of profits, or loss of anticipated savings or wasted expense, or data being lost or harmed, or for any indirect, special or consequential loss or damage of any kind arising from access to, or any use of the information and material contained on this site, or any site you may access through this site.
We do not restrict or exclude our liability for:
- personal injury or death directly caused by us or our employees whilst acting in the course of their employment with us or for fraud;
- physical damage to your personal property up to £100,000 due to any one event or series of connected events where such damage is due to our negligence or the negligence of our employees, agents or contractors acting in the course of their employment with us;
- any of our liabilities which cannot by law be excluded or restricted.
2 LINKS TO THIRD PARTY WEBSITES
2.1 Certain links on the website may lead to other websites – which are not under our control. The use of third party websites is entirely at your own risk and we accept no liability for the content of any linked site or any link contained in a linked site. Links provided on the website are provided to you only as a convenience and the inclusion of any link does not imply reliability and endorsement by us of the content of any third party’s website.
2.2 These Terms of Use do not apply to any third party website linked to the website. You should read the Terms and Conditions of those websites before using them and direct any questions or comments about the linked website’s contents to the relevant website provider.
2.3 You are not entitled (nor will you assist others) to set up links from your own websites to this website (whether by hypertext linking, deep-linking, framing, toggling or otherwise) without our prior written consent, which we may grant or withhold at our absolute discretion.
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3 COMMUNICATIONS VIA THE WEBSITE
3.1 Where you are given the facility to enter information on to, or communicate via, the website you agree to use the website for lawful and civil purposes only and that you will not (nor allow others to):
3.1.1 post or transit any material which is offensive, racist, abusive, indecent, defamatory, obscene or menacing;
3.1.2 impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any one or any entity;
3.1.3 post or transmit any statements which are intentionally false or misleading;
3.1.4 post or transmit any material which you do not have the right to transmit; or
3.1.5 post or transmit any advertising, promotional materials or other forms of solicitation.
3.2 You agree to fully and effectively indemnify us and keep us fully and effectively indemnified from and against all costs, claims, liability, expenses (including legal expenses), damages and losses incurred by us as a result of a breach by you of the provisions contained in this clause 4, whether arising under tort, statute or otherwise.
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We are serious about guarding the security of your personal information that we have under our control from unauthorised access, improper use and disclosure, unauthorised destruction or accidental loss. However we cannot guarantee the protection of your personal data as due to the nature of the internet, the website is theoretically accessible by any user of the World Wide Web. You should be aware that when you disclose personal information on the website it may be collected by another user and may result in unsolicited messages from other internet users.
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These Terms of Use represent the entire understanding relating to the use of the website and supersede all other statements, representations or warranties (whether written, made electronically or orally) made by us. Nothing in these Terms of Use shall affect the liability of either party in respect of any misrepresentation, warranty or condition that it makes fraudulently. Any rights not expressly granted in these Terms of Use are reserved by us.
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If any provision of these Terms of Use are found to be invalid or unenforceable by a court, it will be severed from the rest of these Terms and Conditions which shall remain unaffected.
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These Terms and Conditions will be governed by the laws of England and Wales. Disputes arising in relation to this website shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
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PASSPORT-IT LIMITED:
Terms and Conditions
1.1 In these Conditions, the following expressions shall have the following meanings:
Agreed Service Levels means service levels against which Passport-IT’s performance of the IT Services is to be measured (if any), as more particularly set out in the Services Agreement;
Assessed Cost shall have the meaning given to it at Condition 7.5.2;
Change Request shall have the meaning given to it at Condition 3.1;
Conditions means these terms and conditions for the provision of IT Services;
Confidential Information means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, trade secrets, affairs and finances of a party or any of its suppliers, customers, agents, distributors, shareholders or management, which is either marked as “confidential” or which would reasonably be considered to be confidential by a reasonable person based upon the nature of the information and the circumstances of the disclosure;
Contract means the contract between Passport-IT and the Customer for the provision of the IT Services and delivery of the Deliverables comprising these Conditions, the Services Agreement and any documents referred to therein;
Control means the power of a person to direct the affairs of another whether by virtue of ownership of shares, contracts or otherwise;
Customer Equipment means any computer hardware supplied to Passport-IT by the Customer for use in connection with the provision of the IT Services and/or delivery of the Deliverables;
Customer Representative means the employee of the Customer identified as such by the Customer from time to time;
Customer Software and Materials means any software or other materials (in each case whether owned by the Customer or a third party) that the Customer makes available, at any time to Passport-IT, in order for Passport-IT to provide the IT Services, including without limitation those set out in the Services Agreement;
Data Protection Act means the Data Protection Act 1998;
Data Controller shall have the meaning given to it under the Data Protection Act;
Data Processor shall have the meaning given to it under the Data Protection Act;
Deliverables means the deliverables to be delivered to the Customer by Passport-IT in the provision of the IT Services, as more particularly set out in the Services Agreement;
Disclosing Party shall have the meaning given to it at Condition 9.1;
Fee Rates means the day rates to be charged by Passport-IT to the Customer in consideration of the provision of the IT Services as more particularly set out in the Services Agreement, or where no Fees Rates are specified for work carried out on a time and materials basis, Passport-IT’s standard daily rate fees;
Fees means the sums stated in the Services Agreement to be paid to Passport-IT by the Customer in consideration of the provision of the IT Services and/or delivery of the Deliverables, being either a fixed fee, on a time and materials basis or a combination of both;
Force Majeure means any circumstances beyond the reasonable control of either party, including without limitation, fire, flood, extraordinary weather conditions, lightning, war, commotion or insurrection, acts of God, riots, acts of terrorism, government acts, raw materials or labour shortages, industrial relation difficulties, strikes, lock-outs, failure in plant or equipment or similar matters provided that, the parties shall only be entitled to rely on such circumstances if they could not have been avoided by way of reasonable precautions which would be expected of a reasonable and prudent business;
Insolvency Event occurs when:
- A resolution is passed or an order is made for the winding up of the other party (otherwise than for the purpose of solvent amalgamation or reconstruction); or
- the other party becomes subject to an administration order; or
- a receiver or administrator is appointed over the whole or part of the other party’s business; or
- an encumbrancer takes possession of any of the other party’s property or equipment; or
- if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986; or
- if a proposal is made for any other composition, scheme or arrangement with (or assignment for the benefit of ) its creditors; or
- the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
- the other party, being an individual or partnership, is declared or adjudicated bankrupt or enters into any arrangement or composition with its creditors; or
- anything analogous to the events set out in sub clauses (a) to (h) occurs in any jurisdiction.
Intellectual Property means rights in all intellectual and industrial property rights including patents, registered trademarks, registered designs, utility models, applications for any rights to apply for any of the foregoing, unregistered trademarks, design rights, rights to prevent passing off for unfair competition and copyright (including rights in computer software), moral rights, database rights, know-how, topography rights, rights in get-up and look and feel and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extension;
IT Services means the information technology, network and/or telecommunications services to be provided by Passport-IT to the Customer in accordance with the Contract, as more particularly set out in the Services Agreement;
Passport-IT means Passport-IT Limited (CRN: 08586212) whose registered office is at The Bridge, One Graypen Way, Immingham, North East Lincolnshire, DN40 1QN;
Personal Data has the meaning given to it under the Data Protection Act;
Passport-IT Equipment means any equipment, tools or materials provided by Passport-IT to the Customer and used directly or indirectly in the supply of the IT Services which are not subject to a separate agreement under which ownership of the goods is to pass to the Customer;
Passport-IT Group means Passport-IT and its subsidiaries from time to time and the ultimate holding company (if any) of Passport-IT and every other subsidiary of the same ultimate holding company (if any) from time to time (and “holding company” and “subsidiary” shall have the meaning given to them in section 1159 of the Companies Act 2006;
Passport-IT Services Manager means the representative of Passport-IT with responsibility for the day to day management of the IT Services on behalf of Passport-IT, as more particularly set out in the Services Agreement;
Pre-Existing Materials means all documents, information and materials provided by Passport-IT to the Customer relating to the IT Services which existed prior to the Start Date, including without limitation computer programs, data reports and specifications;
Project Milestones means any date by which an element of the IT Services and/or delivery of the Deliverables is to be completed, as more particularly set out in the Services Agreement;
Receiving Party shall have the meaning given to it at Condition 9.1;
Specification means the specification for the IT Services and/or the Deliverables (if any) as more particularly set out in the Services Agreement;
Services Agreement means the schedule attached to these Conditions setting out the commercial terms agreed between the parties in respect of the provision of IT Services on these Conditions;
Start Date means the date of commencement of the provision of the IT Services, as more particularly set out in the Services Agreement;
Term means the term of the Contract, being the period from the Start Date to the expiry or termination of the Contract in accordance with its terms; and
Working Day means a day (other than a Saturday, Sunday or public holiday) when banks are open for business in London.
- a reference to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof;
- the singular includes the plural and vice versa;
- headings are for ease of reference only and shall not affect the interpretation or construction of these Conditions;
- any list of examples following the word including shall be interpreted without limitation to the generality of the preceding words; and
- references to Conditions are references to the conditions of these conditions.
- If there is any conflict between the provisions of the Services Agreement and these Conditions, these Conditions shall prevail over the Services Agreement.
2.1 With effect from the Start Date, Passport-IT will provide the IT Services and deliver the Deliverables to the Customer for the Term in accordance with the provisions of the Contract.
2.2 Passport-IT warrants to the Customer that it will:
2.2.1 perform the IT Services with reasonable skill, care, and diligence;
2.2.2 perform the Services and deliver the Deliverables in accordance with the Specification in all material respects;
2.2.3 provide the IT Services in accordance with all applicable laws and regulations.
2.3 Passport-IT shall use reasonable endeavours to meet any Project Milestones and Agreed Service Levels specified in the Services Agreement, but any dates or times specified therein shall be estimates only and time for performance by Passport-IT shall not be of the essence for the purposes of the Contract.
2.4 Passport-IT shall use reasonable endeavours to observe and comply with all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and which are notified to Passport-IT in advance in writing, provided always that Passport-IT shall not be liable for any breach of the terms of the Contract if and to the extent that such breach occurs as a result of compliance with such health and safety regulations and/or security requirements.
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3 CHANGES TO SCOPE OF IT SERVICES
3.1 If the Customer wishes to make a change to the scope of the IT Services and/or the Deliverables or the location and/or manner in which the Services are performed and/or Deliverables are delivered, it shall submit details of the requested change in writing to the Passport-IT Services Manager (a Change Request).
3.2 Any changes requested under Condition 3.1 shall form part of the Contract once an authorised representative of each party has signed an agreement specifically referring to, and noting, the terms of the Change Request and their agreement to it.
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4.1 The Customer acknowledges and agrees that it shall be responsible for obtaining (at its own cost and expense) all necessary rights, licences, approvals, consents and permissions in respect of the Customer Equipment and Customer Software and Materials that may be required by Passport-IT to provide the IT Services and/or deliver the Deliverables and/or otherwise perform its obligations under the Contract (the Consents).
4.2 The Customer hereby grants to, or shall procure the grant of, all Consents to Passport-IT as are necessary for Passport-IT to provide the IT Services and/or deliver the Deliverables and/or otherwise perform its obligations under the Contract.
4.3 The Customer warrants and represents that:
4.3.1 Passport-IT’s use of any Customer Equipment and the Customer Software and Materials in the provision of the IT Services or otherwise in connection with the Contract of shall not cause Passport-IT to infringe the rights, including any Intellectual Property Rights, of any third party;
4.3.2 it shall co-operate in good faith with Passport-IT in all matters relating to the provision of the IT Services and/or delivery of the Deliverables and provide promptly upon request such assistance as may be required by Passport-IT in connection with the provision or receipt of the IT Services and/or delivery of the Deliverables;
4.3.3 it shall provide to Passport-IT all Customer Equipment, Customer Software and Materials and any other documents, data, materials and other information that may be required by Passport-IT in connection with the provision of the IT Services and/or delivery of the Deliverables;
4.3.4 it shall provide, and procure the provision of, such access to the facilities or premises the Customer as may be required by Passport-IT’s employees, agents, sub-contractors and representatives in connection with the provision of the IT Services and/or delivery of the Deliverables;
4.3.5 it shall ensure that all Customer Equipment and Customer Software and Materials is in good working order and suitable for the purposes for which it is to be used by Passport-IT; and
4.3.6 keep and maintain Passport-IT”s Equipment in good condition and in accordance with Passport-IT”s instructions at all times and shall not dispose or use Passport-IT’s Equipment other than in accordance with Passport-IT’s written instructions;
4.4 The Customer shall be responsible (at its own cost and expense) for preparing and maintaining the relevant premises for the supply of the IT Services and/or delivery of the Deliverables, including identifying, monitoring, removing and disposing of any hazardous materials from its premises in accordance with all applicable laws.
4.5 Passport-IT shall not be liable for any delay in performing or any failure to perform its obligations under Contract to the extent that any such delay or failure was caused or contributed to by the act or omission of the Customer or to the extent that such delay or failure is attributable to the proper use of the Customer Equipment and/or Customer Software and Materials.
4.6 The Customer hereby agrees to indemnify, keep indemnified, defend and hold Passport-IT harmless in full, and on demand, from and against any and all any and all loss, damage, penalties, costs and expenses (including legal expenses and disbursements), liabilities, obligations, awards, actions, claims and/or proceedings a whatsoever and howsoever caused or arising as a result of or in connection with:
4.6.1 any claim made against Passport-IT by a third party relating to Passport-IT’s use of the Customer Equipment and/or the Customer Software and Materials; and
4.6.2 any breach by the Customer of its obligations under Conditions 4.1 and 4.4.
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5.1 The Customer shall appoint a Customer Representative to oversee the provision of the IT Services who shall be an authorised representative of the Customer and empowered to act on its behalf in all matters under or in connection with the Contract. The Customer Representative may from time to time delegate his/her authority to any employee of the Customer and shall inform the Company of this delegation.
5.2 Passport-IT shall nominate a Passport-IT Services Manager to oversee the provision of the IT Services who shall be an authorised representative of the Customer and empowered to act on its behalf in all matters under or in connection with the Contract. The Passport-IT Services Manager may from time to time delegate his/her authority to any employee of Passport-IT and shall inform the Customer of this delegation.
5.3 The Parties shall procure that the Customer Representative and the Passport-IT Services Manager meet and liaise throughout the continuation of the Term to ensure that the IT Services and/or Deliverables are provided in accordance with the terms of the Contract.
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6.1 In consideration of the provision of the Services and/or delivery of the Deliverables, the Customer shall pay to Passport-IT the Fees.
6.2 Where the Fees are stated to be on a time and materials basis:
6.2.1 the Fees shall be calculated in accordance with the Fee Rates;
6.2.2 the Fee Rates for each employee, agent, sub-contractors and/or representative of Passport-IT shall be calculated on the basis of a Working Day consisting of seven hours and thirty minutes (7.5 hours); and
6.2.3 Passport-IT shall be entitled to increase its Fee Rates on no less than thirty (30) days prior written notice to the Customer. If such increase is not acceptable to the Customer, the Customer may terminate the Contract by giving no less than fourteen (14) days written notice (the Customer Notice Period), provided always that such notice is given prior to the expiry of the notice given by Passport-IT to the Customer indicating the increase of the Fee Rates. For the avoidance of doubt, during the Customer Notice Period, the Fee Rates set out in the Service Agreement shall continue to apply.
6.3 Unless otherwise stated in the Services Agreement:
6.3.1 all sums payable under the Contract are exclusive of VAT or any other applicable duties, which shall be added to invoices at the appropriate rate;
6.3.2 the Fees are exclusive of the cost of hotel, subsistence, travel and any other ancillary expenses reasonably incurred by any employee, agent, sub-contractors and/or representative of Passport-IT in connection with the provision of the IT Services and/or delivery of the Deliverables, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Passport-IT for the provision of the Services and/or delivery of the Deliverables; and
6.3.3 Passport-IT shall invoice the Customer for the Fees on a weekly basis and the Customer shall make payment of such invoice within seven (7) days of receipt. Time for payment shall be of the essence for the purposes of the Contract.
6.4 If the Customer fails to make payment of any sum due under the terms of the Contract (other than in the case of a bona fide dispute), the Customer shall pay interest on any overdue amount at the rate of five per cent (5%) per annum above the base rate of the Bank of England from time to time. Such interest shall accrue on a daily basis from the date due until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with any overdue amount.
6.5 Without prejudice to any other right or remedy to which it may be entitled, where the Customer has failed to pay any Fees when due, Passport-IT shall be entitled to suspend all or part of the IT Services for which payment is in default upon the provision of five (5) Working Days notice of its intention to do so until such Fees are paid in full.
6.6 Without prejudice to any other right or remedy to which it may be entitled Passport-IT may at any time, without notice to the Customer, set off any liability of the Customer to Passport-IT against any liability of Passport-IT to the Customer, whether such liability is present or future, liquidated or unliquidated, whether or not that liability arises under the Contract and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, Passport-IT may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Passport-IT of its rights under this condition shall be without prejudice to any other rights or remedies available to it under the Contract or otherwise.
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7.1 Except as expressly set out in the Contract, all warranties, conditions and representations relating to the IT Services and/or the Deliverables, whether express or implied, are excluded to the maximum extent permitted by law.
7.2 Neither party excludes or limits liability to the other party for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or where liability cannot be excluded or limited as a matter of law.
7.3 Subject to Condition 7.2, Passport-IT shall not be liable to the Customer for any of the following:
7.3.1 loss of actual or anticipated profits;
7.3.2 loss of actual or anticipated savings;
7.3.3 loss of use;
7.3.4 loss of goodwill or reputation;
7.3.5 loss of sales;
7.3.6 loss of revenue;
7.3.7 business interruption; or
7.3.8 any indirect, consequential or special loss or damage,
and in each case whether arising under or in connection with the Contract, whether in contract, tort (including negligence) or otherwise, and irrespective of whether any of the above are direct or indirect loss or damage.
7.4 Without prejudice to conditions 7.2, 7.3 7.5 and 10.4, the aggregate liability of Passport-IT whether in contract, tort (including for negligence) or for breach of statutory duty (howsoever arising), misrepresentation or otherwise in connection with the Contract, shall be limited to Fees paid by the Customer to Passport-IT in respect of IT Services and/or Deliverables delivered provided by Passport-IT during the six month period prior to the date of the occurrence of the cause of action to which the liability arises.
7.5 If Passport-IT provides the IT Services (or any part of the IT Services) or deliver Deliverables other than in accordance with the terms of the Contract, then Passport-IT may at its sole option:
7.5.1 promptly re-perform the defective IT Services and/or re-deliver the relevant Deliverables (as appropriate) without additional charge to the Customer; or
7.5.2 assess the Fees paid by the Customer in relation to the defective IT Services and/or Deliverables (the Assessed Cost) and deduct from any Fees due to Passport-IT for that element of the IT Services and/or Deliverables, the Assessed Cost.
7.6 The Customer acknowledges and agrees that, subject to the provisions of Condition 7.2, the provisions of Condition 7.5 are its sole and exclusive remedy and Passport-IT’s sole and exclusive liability in relation to any defective IT Services and/or Deliverables.
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8 INTELLECTUAL PROPERTY RIGHTS
8.1 Other than as expressly set out in the Contract, nothing in this Contract shall:
8.1.1 operate to transfer, assign or otherwise grant any party any right or interest in any party’s Intellectual Property Rights; or
8.1.2 affect the ownership of any party’s Intellectual Property Rights existing at the Start Date.
8.2 Unless otherwise agreed in writing between the parties, the Intellectual Property Rights in:
8.2.1 in the Deliverables, the Passport-IT Equipment and Pre-Existing Materials; and
8.2.2 any other software or materials created or developed by Passport-IT after the Start Date,
are and shall remain, the exclusive property of Passport-IT or its licensors. Subject to Condition 8.3, Passport-IT hereby grants or shall procure the grant of a non-exclusive, worldwide, royalty free licence to use such Intellectual Property Rights to such extent as is necessary to enable the Customer to make use of the Deliverables and the IT Services. If the Contract is terminated by Passport-IT pursuant to Conditions 12.3 or 12.4 then such licences shall automatically cease.
8.3 The Customer acknowledges and agrees that, where Passport-IT does not own any of the Pre-Existing Materials and/or Passport-IT Equipment, the Customer’s use of rights in Pre-Existing Materials and/or the Passport-IT Equipment is conditional upon Passport-IT procuring a licence or sub-licence from the relevant licensor or licensors on such terms as will entitle the Customer to obtain the necessary rights in respect of the same. Passport-IT shall have no liability to the Customer if and to the extent it is unable to obtain any such licence or sub-licence from the relevant licensor or licensors.
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9.1 Each party (the Receiving Party) shall treat as confidential and shall not divulge or disclose without prior written consent of the other party (the Disclosing Party) the Confidential Information.
9.2 Condition 9.1 does not apply to the extent that any information is:
9.2.1 lawfully in the possession of the Receiving Party prior to its earliest receipt from the Disclosing Party;
9.2.2 already in or enters the public domain other than as a result of a breach by the Receiving Party of a confidentiality obligation;
9.2.3 required to be disclosed by the Receiving Party, but only to the extent that such order and the Receiving Party shall promptly inform the Disclosing Party of such requirement prior to disclosure (to the extent permitted by law).
9.3 Each of the parties undertakes that it shall only disclose Confidential Information to its employees, agents, sub-contractors and/or representatives if it is reasonably required for purposes connected with the provision of the IT Services and/or delivery of the Deliverables and only if the same are informed of the confidential nature of the Confidential Information.
9.4 The Receiving Party hereby acknowledges that substantial damage could be done to the Disclosing Party through any breach of this Condition 9 for which damages at law may not be an adequate remedy, and the Receiving Party agrees that Conditions preventing disclosure and use of Confidential Information may be specifically enforced by a court of competent jurisdiction.
9.5 The obligations of the parties under this Condition 9 shall survive termination or expiry (howsoever caused) and continue in perpetuity.
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10.1 Each party shall comply with all provisions of the Data Protection Act when performing its obligations under the Contract in each case in so far as is applicable to such party.
10.2 For the purpose of the Contract, the parties expressly acknowledge and agree that the Customer shall be the Data Controller and Passport-IT shall be the Data Processor.
10.3 Passport-IT warrants to the Customer that it shall:
10.3.1 process the Personal Data received from the Customer in accordance with the reasonable and lawful instructions of the Customer and to the extent, and in such a manner, as is necessary to supply the IT Services in accordance with the Contract or as is required by any applicable law;
10.3.2 take reasonable precautions to safeguard the Personal Data received from the Customer from unauthorised or unlawful processing or accidental loss, destruction or damage; and
10.3.3 procure that each of its employees, agents, subcontractors and representatives is made aware of its obligations in relation to the security of the Personal Data received from the Customer.
10.4 If Passport-IT loses data of the Customer (whether Personal Data or otherwise), which it stores pursuant to the provision of the IT Services, then Passport-IT shall at its own cost use reasonable commercial endeavours to restore such of the Customer’s data to the last available back-up. Passport-IT shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Customer Data caused by any third party (except those third parties subcontracted by Passport-IT to perform services related to Customer Data maintenance and back-up). The foregoing provisions shall be the Customer’s sole and exclusive remedy in the event of loss or corruption of the Customer’s data under or in connection with the Contract.
10.5 Where the loss of data is due to the act or omission of the Customer then Passport-IT shall carry out the foregoing at the Customer’s cost and request.
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11.1 Neither party shall be deemed to be in breach of the Contract or otherwise liable to the other party for any delay in performance of any obligations under the Contract (and the time for performance shall be extended accordingly) to the extent that the delay or non-performance is due to circumstances of Force Majeure.
11.2 During the subsistence of the circumstances of Force Majeure both parties shall take all reasonable steps to minimise any adverse implications (including costs).
11.3 If the circumstances of Force Majeure continue for a period in excess of one (1) month after the date on which it began, either party may give one (1) month’s written notice to the other party terminating the Contract. Neither party shall have any liability to the other in respect of termination of this Contract due to circumstances of Force Majeure, but rights and liabilities which have accrued prior to termination shall subsist
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12.1 Subject to earlier termination in accordance with these Conditions, the Contract shall commence on the Start Date and shall continue for the Term.
12.2 Either party may terminate the Contract upon thirty (30) days’ written notice to the other.
12.3 Without prejudice to any other rights or remedies to which it may be entitled, either party may terminate the Contract immediately on written notice to the other party if:
12.3.1 the other party commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
12.3.2 the other is subject to an Insolvency Event
12.4 Without prejudice to its other rights and remedies, Passport-IT may terminate this Contract on immediately upon written notice to the Customer if the Customer:
12.4.1 is subject to a change of Control; or
12.4.2 fails to pay any sum payable under the Contract within fourteen (14) days from and including the due date for payment.
12.5 The rights and remedies provided in the Contract are cumulative and not exclusive of any rights or remedies otherwise provided by law.
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13 CONSEQUENCES OF TERMINATION
13.1 Upon the expiry or termination of the Contract or any of the IT Services, howsoever caused:
13.1.1 all accrued Fees, expenses and any other sums payable to Passport-IT under the Contract shall become immediately due and payable;
13.1.2 each party shall promptly return to the other party or destroy (at the other party’s direction) all property, information, materials and data, (including Confidential Information) in its possession or control on the date of termination; and
13.1.3 except as otherwise provided, and subject to any rights or obligations that have accrued prior to termination or expiry, no party shall have any further obligation to any other party in respect of Contract or the terminated IT Services, as the case may be.
13.2 The expiry or termination of the Contract for any reason whatsoever shall be without prejudice to the rights and obligations of the parties accruing up to the date of termination or expiry and any rights or obligations of a party which are expressly stated to survive, or by their nature survive, termination or expiry of the Contract.
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14.1 Each party warrants that it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative on its behalf.
14.2 The Contract and the documents referred to herein set out the entire agreement between the parties in relation to the subject matter hereof and supersedes any previous agreement relating to the subject matter of the Contract, whether written or oral. Each party acknowledges and agrees that in entering into the Contract it places no reliance on any representation or warranty in relation to the subject matter of the Contract, nor shall it have any remedy in relation to the subject matter of the same save as expressly set out in the Contract. The only remedy available to either party for breach of such warranties or representations shall be for breach of contract under the terms of the Contract. Nothing in this condition or in this Contract shall operate to exclude or restrict any remedy or liability for fraud or fraudulent misrepresentation.
14.3 The Customer shall not assign, novate, dispose of, sub-licence, sub-contract or otherwise transfer the Contract nor any or all of its rights and obligations under the Contract to any third party without the prior written consent of Passport-IT. No variation of the Contract shall be effective unless made in writing and signed by or on behalf of both parties.
14.4 No failure or delay in exercising or enforcing any right or remedy under the Contract shall constitute a waiver thereof and no single or partial exercise or enforcement of any right or remedy under the Contract shall preclude or restrict the further exercise or enforcement of any such right or remedy.
14.5 If any provision of the Contract is held by any court or other competent authority to be void or unenforceable (in whole or part), the other provisions of the Contract and the remainder of the affected provisions shall continue to be valid.
14.6 Any notice to be given under the Contract shall be in writing and may be made or delivered by one party hereto to the other at the registered office of the party or to such other address as such party may have notified to the party giving such notice for the purposes of this Condition and shall be deemed to have been made or delivered:
14.6.1 in the case of notice given by facsimile, when a transmission report showing receipt of the whole of the notice on the correct facsimile number is produced, provided that the notice is received in legible form; or
14.6.2 in the case of notice given by letter, when left at the address or, if sent by prepaid first class recorded delivery, forty eight hours (48) after posting
14.7 If such notice arrives on a day which is not a Working Day, it shall be deemed to have been delivered on the next following Working Day
14.8 Subject to Condition 14.9, an entity which is not expressly a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract and the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be expressly excluded from the Contract.
14.9 Any member of Passport-IT’s Group shall be entitled to enforce any term of the Contract.
14.10 Passport-IT is appointed as an independent contractor. The Contract is not intended to create or establish, nor shall be construed as creating or establishing, any agency, partnership or corporate relationship between the parties, and neither party is authorised to bind the other party, contractually or otherwise, or to provide warranties or representations on behalf of the other party.
14.11 The Contract, and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in all respects in accordance with the laws of England and Wales.
14.12 The English courts shall have exclusive jurisdiction in all matters relating to the Contract (whether of a contractual or non-contractual nature).
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