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DataCo International UK Limited (hereinafter "DataCo")

 

Telephone: +44 20 3514 65 57

Email: contact@dataguard.com 

Website: www.dataguard.co.uk

Company Number 12877451

 

Represented by the managing directors Thomas Regier, Kivanc Semen

Registered Office: 2nd Floor, 41 Great Pulteney Street, London, United Kingdom, W1F 9NZ

 

Last updated: 26 March 2021

 

1. Parties to the contract

Parties to the contract are DataCo International UK Limited (hereinafter referred to as "DataCo"), represented by the managing directors Thomas Regier and Kivanc Semen, with a registered office at 2nd Floor, 41 Great Pulteney Street, London, United Kingdom, W1F 9NZ (Company Number 12877451) and the customer, who is acting for the purposes of their trade, business or profession and is not a consumer.

 

2. Subject matter of the contract

2.1 The subject matter of the contract is determined by the relevant customer contract, the provisions of the associated terms of use, performance specifications and price lists as well as these Standard Terms and Conditions (together, the "Agreement").

2.2 Any provisions deviating from the Agreement must be agreed by DataCo and the customer in writing in order to be valid. The assumption of any guarantee shall also require the written confirmation of DataCo in order to be valid.

2.3 Standard terms and conditions of the customer shall not become part of the Agreement even if they are attached to requests for a quotation, orders, declarations of acceptance etc. and are not objected to by DataCo. These are the only terms and conditions applicable to the provision of the services. By accepting delivery of the services, the customer agrees that these terms and conditions apply to the exclusion of all others.

 

3. Contracts and offers

3.1 Unless agreed otherwise, the Agreement will come into effect upon the earlier receipt of the order confirmation from DataCo and when DataCo starts fulfilling the order. This is deemed to be the case even if, prior to an agreement being reached on all aspects of the order, DataCo starts fulfilling the order with the customer’s knowledge and the customer fails to promptly object.

3.2 The dates or periods for services to be provided, as specified in the Agreement, shall only be binding if DataCo has expressly stipulated in writing that they are binding.

3.3 All offers of DataCo are non-binding unless expressly stated otherwise in the offer.

 

4. Sending of documents and transfer of risk

4.1 If documents are sent or transferred in connection with the provision of services by DataCo, the risk transfers to the customer as soon as DataCo has handed the documents to the carrier or transmitted the documents via the telecommunications service provider.

4.2 The customer shall, promptly upon receipt, examine the quality of the documents, raise complaints regarding any transport or transfer damage incurred vis-à-vis the carrier or the telecommunications services provider, collect any evidence in that regard and notify DataCo by telephone and in writing without undue delay.

 

5. Services of DataCo

5.1 DataCo provides advisory, review and other services in the fields of data protection, IT and IT security, in particular by being appointed as the customer’s external data protection officer. The services are based on the current state of the art. The contractual scope of services follows from the description of services as per the customer contract in question.

5.2 DataCo reserves the right to expand, change or improve the services agreed between the parties and to adjust the scope (hereinafter referred to as the “Adjustment of Services”) provided that the fees originally agreed between the parties (excluding taxes) are not increased by more than 10%. DataCo is authorised to implement an Adjustment of Services in particular if such adjustment is due to circumstances which DataCo cannot influence (e.g. changes in the sphere of responsibility of third parties, changes to statutory provisions or changes to market conditions). DataCo shall decide such Adjustment of Services in its sole discretion but taking into account legitimate customer interests, and shall attempt to reach an agreement with the customer where possible. DataCo shall always notify customers without undue delay and in a timely manner about necessary amendments.

The customer has the right to object to any proposed uplifted fees resulting from an Adjustment of Services. If the customer exercises this right, the parties will commence negotiations regarding an adjustment of the fees within ten (10) working days (working day: Monday to Friday) of the customer's objection. If the parties are unable to reach an agreement regarding an adjustment of the fee within twenty (20) working days after commencement of negotiations, DataCo may terminate the Agreement for cause subject to ten (10) working days’ notice following the day on which either of the parties has declared the breakdown of negotiations. Notice to terminate must be given within five (5) working days following the breakdown of negotiations. The notice period shall be deemed complied with if a copy of the notice of termination is received in electronic.

5.3 The services of DataCo are provided solely by way of support for the customer in order to help the customer comply with its obligations under applicable data protection laws. In connection with the provision of the services, DataCo does not assume any responsibility for a specific result or a specific success.

5.4 DataCo is entitled to engage third-parties to provide the services (sub-contractors). DataCo shall be liable for the provision of services by sub-contractors to the same extent as for its own actions.

5.5 In the event of inconsistencies within the Agreement, the following shall apply in the order of priority shown:

  • the customer contract
  • the associated terms of use
  • the associated performance specifications and price lists
  • these Standard Terms and Conditions

 

6. Duties and obligations of the customer

6.1 The customer shall ensure that all necessary equipment is provided and acts of cooperation are carried out in a timely manner, to the necessary extent and free of charge for DataCo.

6.2 The customer shall provide DataCo's employees with all the necessary support in their work at the customer’s premises. This support includes, inter alia, that the customer:

  • ensures that a qualified employee is available to provide support at the place of performance of work;
  • undertakes to comply with occupational health and safety provisions for the benefit of DataCo employees;
  • provides to DataCo employees the information required for their work, in a timely manner; and
  • provides DataCo employees with sufficient and adequate premises, including work equipment, in the event that the employees need to work at the customer’s premises in order to fulfil their contractual obligations.

6.3 Data storage devices and files provided by the customer must be maintained by the customer in perfect condition both in terms of content and technically, and in particular free from malware (e.g. viruses). If this is not the case, the customer shall compensate DataCo for all loss or damage suffered due to the use of these data storage devices and/or files and shall indemnify DataCo against all claims by third parties.

6.4 If the customer fails to fulfil a required obligation to cooperate or if it fails to fulfil it in time or in the agreed manner, the damage and costs incurred as a result (e.g. delays, additional cost) shall be borne by the customer.

6.5 DataCo and its employees and agents shall be indemnified against all claims by third parties, which are based on the customer's unlawful use of any goods or services protected by copyright, other intellectual property rights or which occur with the customer’s approval or which result from any legal dispute under data protection law or any other legal dispute connected to the use of the goods or services. The customer shall notify DataCo in writing without undue delay of any claim against the customer asserted by a third party for a breach of its rights in connection with the services provided by DataCo under this Agreement. The customer shall not acknowledge the breach of law alleged by the third party and shall either let DataCo handle any dispute or only handle it themselves by mutual agreement with DataCo.

6.6 The customer shall report any defects or complaints in writing, including a clear description of the issue and, where possible, including any written reports to be compiled, any hard copies or any other relevant documents.

6.7 The customer warrants and guarantees that it holds, in full, all the necessary rights required for the fulfilment of the Agreement and that, to the extent necessary, it is able to transfer or grant to DataCo such rights without breaching any third-party rights as a result. In doing so, the customer guarantees, in particular, that it holds all the necessary industrial property rights (e.g. copyrights, IP rights) in the content provided by it, and that it is entitled to the publication and transfer to third parties for purposes of publication to the extent required for the contractual obligation to be fulfilled. The customer shall bear sole responsibility for the accuracy of its content and shall be solely liable for any breaches of the law. The customer guarantees that its delivered content and its use by DataCo as well as any links to other pages do not breach applicable law. The customer guarantees that it does not transfer any content whose promotion or sales infringe any statutory prohibitions under applicable law, public policy or third-party rights (e.g. personality rights, name rights, copyrights, data protection rights). Moreover, the customer does not transfer any content that glorifies war or that is obviously capable of corrupting the morals of children or young people, that depicts human beings who are dying or have died or who are being or have been subjected to serious physical or mental suffering in a way that infringes human dignity, and that depicts real events unless there is an overriding public interest in this form of depiction in particular, that infringes human dignity in any other way, or that must not be made publicly available; in addition, the customer refrains from making any entries that may contain viruses, malware or similar programs that may harm, secretly intercept or delete data or systems. The customer shall remedy such breach without undue delay, shall compensate DataCo for any damage incurred due to the breach, shall indemnify DataCo against all claims asserted by third parties due to the breach, and shall reimburse all costs incurred in mounting a legal defence. In the event that legal proceedings are brought against DataCo due to a breach by the customer, the customer shall intervene in the case conducted by DataCo at the request of DataCo. In the event of a breach, DataCo shall be entitled to cease performance of the contractually-agreed services with immediate effect and to terminate the Agreement with the customer without notice.

 

7. Right of use

7.1 Unless otherwise agreed, the customer will be granted a non-exclusive, non- transferable right to use all documents resulting from the services provided by DataCo in all known ways; the right of use shall be subject to the condition precedent that the fee agreed between the parties has been paid in full, and it shall be unlimited as to time, content and geographical scope. In particular, the right of use includes the right of the customer to process or otherwise rework the document in question in its sole discretion and to exploit the results of the processing/reworking in the same way as the original version of the results and services. By way of exception to this rule, the customer’s right of use in any confirmations or certificates provided shall terminate at the end of the Agreement.

7.2 In the event that the Agreement terminates prematurely, clause 7.1 shall apply, mutatis mutandis, to any part of the services that has already been completed.

7.3 On no account must any copyright notices, serial numbers and other labels used to identify any program be removed or changed. The same applies to a suppression of the on-screen display of such labels.

 

8. Retention of title

DataCo retains title to any documents and rights to be granted under this Agreement until full payment of the fee owed is received by DataCo. Until such time, the rights granted are only preliminary and freely revocable by DataCo.

 

9. Fee and due date

9.1 The fee and any ancillary costs are quoted as net prices plus any statutory taxes and duties. In the invoice, the prices for the services used are shown without VAT. These prices without VAT are added up and form the basis for the calculation of the VAT amount.

9.2 Unless otherwise agreed in the customer contract, monthly fees are payable pro rata for the rest of the month at the agreed start date of the service. Thereafter, these fees are payable monthly in advance. If the fee needs to be calculated for parts of a calendar month, the fee will be charged pro rata for the relevant time period. A full monthly fee will be charged if the customer terminates the Agreement before the end of a calendar month; this does not apply in the event of termination by the customer for good cause.

9.3 Unless otherwise agreed, if the fee is calculated according to time and effort spent, this will be based on the fees agreed when the Agreement was entered into and in particular in the agreed description of services/fees of DataCo. In this case, DataCo will keep a record of the nature and duration of the services provided and will attach this to the invoice as an annex.

9.4 In addition to the fee, DataCo shall invoice for any travel costs incurred, on a monthly basis in arrears. Subject to a different contractual agreement, travel costs and expenses (travel expenses including parking fees, hotel costs, additional subsistence costs, ancillary travel costs etc.) will be charged via a travel expenses claim. Hire cars shall be hired at customary prices. Journeys undertaken by company car are charged at GBP 0.35 / km. Any excess payable in the event of damage that was not caused intentionally or with the gross negligence of DataCo will be charged on to the customer. If customer projects require flights or overnight stays at a hotel, this will be coordinated in advance with the customer. Economy class tickets shall be booked for flights up to four hours and business class tickets for flights in excess of four hours; train journeys will be invoiced at the cost of a flexible, second or standard class ticket. Travel time will be invoiced as per the agreed hourly fee. If the working time or travel time fall within the times listed below, the following surcharges to the fee apply per hour worked: a) 50% on working days (Monday to Friday) between midnight and 6 a.m. and between 8 p.m. and midnight b) 100% on Saturdays, Sundays and public holidays.

9.5 The amount invoiced shall be paid into the account indicated on the invoice. It must be credited within ten days from receipt of the invoice. In the event that a customer grants a SEPA direct debit instruction, DataCo will debit the amount invoiced from the agreed account no earlier than on the seventh day from receipt of the invoice and the SEPA pre-notification.

9.6 The customer shall reimburse DataCo for any costs incurred for each direct debit that has not been honoured or has been returned to the extent that the customer is responsible for the event triggering the cost incurred.

9.7 The customer only has a set-off right to the extent that its counterclaim has been upheld and declared unappealable by a court of law or is undisputed. The customer may only assert a retention right in respect of any fees on the basis of any counterclaims arising under this Agreement.

9.8 Once fees are due, DataCo has the right to charge interest of eight percentage points above the base rate of the Bank of England on any late payments from the due date until payment is made. In addition, DataCo will charge a lump-sum of GBP 40 for the expenses incurred which are not paid when due; the customer is entitled to produce evidence that the damage incurred by DataCo as a result of the delay was smaller, in which case the lump-sum will reduced accordingly. Notwithstanding the above, DataCo may claim for a bigger loss or damage caused by delay and may exercise any other rights in respect of late payments.

 

10. Complaints

Complaints regarding the fees charged by DataCo shall be addressed to DataCo without undue delay after receipt of the invoice. Any complaints must have been received by DataCo within eight weeks from receipt of the invoice. Failure to raise complaints in time shall be deemed to constitute acceptance by the customer; in its invoices DataCo will make specific referenced to the consequences of a failure to raise complaints in time. Until resolved, complaints shall not affect the customer's obligation to pay the fees by the relevant payment date.

 

11. Changes to the Standard Terms and Conditions, performance specifications and prices

DataCo is entitled to change the Standard Terms and Conditions or the respective performance specifications by giving reasonable notice. The customer will be notified in writing of the changes. If changes are made to the disadvantage of the customer, the customer has a right to object at the time the change comes into effect. In its notification of change, DataCo will advise the customer both of this right to object and of the fact that the change will come into effect if the customer fails to exercise the right to object within the prescribed time.

 

12. Late payment

12.1 If the customer is in default in the payment of the fees or a significant part of the fees for two consecutive months, DataCo may terminate the Agreement without notice.

12.2 DataCo reserves the right to assert other claims for late payment, including but not limited to those set out in section 9.8 above.

 

13. Warranties

13.1 DataCo provides the services under this Agreement in a way that ensures that they generally conform to the agreed specifications. Should faults or non-conformances arise, the customer is obliged to notify DataCo in writing of such faults or non-conformances without undue delay and to include a precise description of the problem and any information that may help remedy the fault or non-conformance. If customer fails to notify DataCo of any faults or non-conformances immediately the services will be deemed to have been accepted. DataCo does not give any guarantees, including with regard to certain qualities or characteristics of the services. In particular, the conditions in the Supply of Goods and Services Act 1982 are excluded to the full extent permitted by law.

13.2 When providing its services DataCo at all times observes the highest standards of care and precision, in particular with regard to the data protection analysis. However, DataCo is not always able to fully assess the quality of the data and information available for the analyses. Accordingly, DataCo does not give any guarantee for the representative nature and completeness of the results delivered, given that they are based on specific estimates and individual conclusions.

13.3 If the customer adduces evidence of any material faults or non-conformances, DataCo shall provide subsequent performance at its own choice either by providing the customer with a new, fault-free service within a reasonable period or by remedying the fault or non-conformance. DataCo has at least two attempts at providing subsequent performance. The customer does not have a right to procure performance of its own accord, unless this would be unreasonable in the case in question (e.g. in the event of particular urgency). If subsequent performance finally fails, the customer may claim damages in accordance with the contractual provisions of this Agreement. Moreover, the fact that subsequent performance has finally failed does not affect the right to terminate the Agreement without notice.

13.4 DataCo shall be liable for the expenses incurred for subsequent performance, in particular costs of transport, travel, work and materials, provided that it subsequently transpires that a fault does in fact exist.

13.5 Unless otherwise contractually agreed in individual cases, the customer does not have any rights other than those expressly stated in these Standard Terms and Conditions.

 

14. Confidentiality

14.1 The parties to the Agreement are mutually obliged, for an unlimited time, to maintain confidentiality about business and trade secrets, as well as about any information designated as confidential, of which the parties become aware in connection with the implementation of the Agreement. The parties to the Agreement will impose these obligations also on their employees and any third parties that may be involved.

14.2 The obligation to maintain confidentiality does not apply to DataCo if the information or data is commonly known or becomes known through no fault of DataCo, if DataCo developed the information to be kept confidential independently and without using information of the customer, or if statute or a governmental entity requires such disclosure due to mandatory statutory provisions.

14.3 DataCo is entitled disclose confidential information to sub-contractors if they have been placed under a corresponding obligation to maintain confidentiality.

 

15. Force majeure

If DataCo is unable to perform the services due to force majeure, in particular because of a shortage of commodities, resources, energy and workers, industrial action, serious transport disruptions, interruptions of operations through no fault of DataCo or which were unforeseeable, measures taken by governmental entities for which DataCo is not responsible, pandemics or other events for which DataCo is not responsible, then DataCo is not obliged to perform the services for as long as the reason for the impediment lasts and provided DataCo has notified the customer of this fact. In the event that the impediment lasts more than four months, DataCo is entitled to terminate the Agreement by giving one month’s notice to expire at the end of the month.

 

16. Limitation of liability of DataCo and its vicarious agents

16.1 Nothing in this agreement shall exclude or limit the liability of either party for;
        16.1.1 any death or personal injury arising out of that party’s negligent acts or omissions;
        16.1.2 any liability for fraud or fraudulent misrepresentation; or
        16.1.3 in respect of any liability that cannot be limited by law.

16.2 Subject to clause 16.1, neither party shall have any liability for any indirect or consequential loss or for any loss of profits, loss of business, loss of opportunity, loss of anticipated savings or loss of goodwill howsoever arising and whether or not such loss had been advised by the other party or was foreseeable.

16.3 Subject to clauses 16.1 and 16.2, the liability of DataCo under this agreement shall be as set out in clause 9 (Liability Cap) based upon the option for liability chosen by the Customer.

 

17. References

17.1 If the customer allows DataCo to name it as a reference, DataCo is entitled to use the customer as a reference and refer to its company name, display its company logo, name its point of contact and describe the services provided by way of reference. The use as a reference includes the use on all websites, blogs and social media channels which DataCo can control in terms of content, the use for press releases, printed adverts and its own company documents, for purposes of decoration on company premises and on trade shows, conferences as well as in tenders and presentations. Other uses, such as for instance, the use of quotes provided by the customer or a detailed description of services by way of a customer-success story require a separate agreement and the prior approval by the customer.

17.2 The above provision regarding the use as a reference continues to apply for a period of five years after termination of the Agreement.

17.3 This consent may be revoked for good cause; the legitimate interests of DataCo will be taken into account in this regard.

 

18. Miscellaneous Provisions

18.1 The Agreement entered into between DataCo and the customer and its implementation shall be governed exclusively by English law to the exclusion of international uniform law including the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention).

18.2 Unless a different, exclusive place of jurisdiction applies, the place of jurisdiction for all legal disputes arising out of the Agreement entered into between DataCo and the customer is the courts of England.

18.3 All agreements between the customer and DataCo and any legally relevant declarations (e.g. notice, withdrawal, set-off) are only valid if they have been made in writing; this includes, in particular, any amendments and supplements as well as the repeal of this written form requirement. This does not affect any mandatory legal provisions as to form.

18.4 If one or several provision(s) of the Agreement between DataCo and the customer become(s) invalid or unenforceable, in whole or in part, this shall not affect the validity of the remaining provisions of the Agreement. Instead of the invalid or unenforceable provision(s) the parties to the Agreement shall agree a provision that most closely reflects the commercial purpose of the invalid or unenforceable provision. If there is a gap or omission in the Agreement that cannot be remedied by construing the other provisions, the provision agreed between the parties to the Agreement that most closely reflects the commercial interests of the parties had they considered this point shall be deemed to remedy the omission.

18.5 Unless expressly stated otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.