Terms and Conditions for the Provision of Services Business to Business 2015 Edition 1
In these terms and conditions the following expressions shall (where the context so admits) have the following meanings:
1.1 “SafeHack” shall mean SafeHack UK Ltd, a company registered in England under company number 9554036 whose registered office is at Ground Floor 2 Woodberry Grove, London, N12 0DR.
1.2 “the Customer” shall mean the company, firm or person to whom SafeHack supplies Technical Assistance under a Contract.
1.3 “Proposal” shall mean the proposal set out overleaf for the provision of Technical Assistance.
1.4 “Specification” shall mean the description, specifications and other details of the Technical Assistance set out, or incorporated by reference in, the Proposal.
1.5 “Technical Assistance” shall mean the technical assistance as detailed in the Specification.
1.6 “Contract” shall mean the contract between SafeHack and the Customer entered into subject to these Conditions for the provision of Technical Assistance, comprising the Proposal (including the Specification) and the Customer’s acceptance thereof in accordance with Condition 2.1.
1.7 “Customer Material” shall mean any documents or other materials and any data or other information provided by the Customer to Supplier relating to the Technical Assistance.
1.8 “Intellectual Property Rights” shall mean (i) patents, inventions, designs, copyright and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) applications, extensions and renewals in relation to any of these rights; and (iv) all other rights of a similar nature or having an equivalent effect anywhere in the world.
2. Contract for technical assistance
2.1 The Proposal shall be valid only if accepted by the Customer by signing and returning to SafeHack within 21 days the duplicate copy of the Proposal. If not so accepted, the estimated cost and estimated delivery schedule stated therein may be subject to change by SafeHack, or SafeHack may refuse to proceed with the Contract at all. The Proposal shall state the date(s) by which any information or other items to be supplied by the Customer to enable SafeHack to execute the Contract will be required from the Customer in order for SafeHack to meet the estimated delivery schedule stated in the Proposal.
2.2 The Contract shall be subject to these terms and conditions.
2.3 SafeHack shall be under no obligation to take any action to progress the Contract unless and until SafeHack has received from the Customer all the information and other items referred to in 2.1 above.
2.4 The Customer grants to SafeHack all authorisations and permissions necessary for SafeHack to provide the Technical Assistance as set out in the Proposal.
2.5 Without prejudice to the generality of Clause 2.4, where security penetration tests are to be carried out as part of the Technical Assistance under the Proposal the Customer warrants that it has the legal right to subject the designated computer system to the such tests and that if it is not the owner of the computer system it has obtained such right from the legal owner of the system.
2.5 Should the Customer request that SafeHack not provide the Technical Assistance at any point after entry into the Contract, for any reason other than a suspected defect with the Technical Assistance which is later found to be genuine or a force majeure event as described at Clause 6.1 below that prevents the Technical Assistance from being provided, the Customer will be liable to pay SafeHack the full price for the Technical Assistance as set out in the Proposal.
2.6 SafeHack will provide the Technical Assistance in a responsible and professional manner in accordance with the sector’s best practices and, unless agreed otherwise, will use its best endeavours not to change or amend any applications, data, programs or components of the Customer’s network or computer system (including hardware and software).
2.7 Notwithstanding Clause 2.6 above, The Customer has the sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Technical Assistance.
3. Availability of technical assistance
3.1 SafeHack shall be responsible for providing Technical Assistance to the Customer in accordance with the requirements of the Contract. Although SafeHack will use reasonable endeavours to make the Technical Assistance available in accordance with the estimated delivery schedule set out in the Proposal, such delivery schedule is only an estimate and accordingly SafeHack accepts no responsibility or liability, financial or otherwise, in the event that the said estimated delivery schedule is not complied with. In particular, for the avoidance of doubt, and without limitation of the generality of the foregoing, SafeHack shall not be liable to reimburse Customer in respect of any delay payments or other penalties for which the Customer may become liable to any customer of the Customer as a result of delay or failure by SafeHack, whether or not SafeHack is aware of the Customer’s potential liability to pay the same.
3.2 SafeHack shall use reasonable endeavours to notify the Customer of any delay in the estimated delivery schedule for the provision of Technical Assistance, and to propose a revised estimated delivery schedule to the Customer. Any onward notification of such delay to customers of the Customer shall be the sole responsibility of the Customer. Where the reasons for the said delay are other than those covered in Condition 4 (Force Majeure), the Customer shall have the right (within twenty one days of the date of receipt of the notification) to advise SafeHack in writing that it intends to terminate the Contract forthwith (which latter course the Customer shall be entitled to take without liability to SafeHack other than reimbursement to SafeHack of all costs and expenses and of any cancellation charges of SafeHack’s subcontractors or suppliers) incurred by SafeHack up to the date of termination. Subject as aforesaid the Contract shall be deemed to include the aforesaid revised estimated delivery schedule. Any revision proposed by the Customer to the estimated delivery schedule shall be subject to mutual agreement.
3.3 The Customer shall be responsible for making arrangements for the collection of any physical items required to be made available to the Customer under any Contract from such premises as SafeHack shall notify to the Customer, and for the shipment of such items to the Customer’s premises.
3.4 If detailed in the Proposal, SafeHack shall render progress reports to the Customer at agreed intervals and progress meetings will be arranged to an agreed schedule.
4. Force Majeure
4.1 SafeHack shall not have any liability in respect of any delay in carrying out or failure to carry out any of its obligations under the Contract caused by fire, strikes or other industrial action or dispute, acts of government, default of suppliers or subcontractors, or any circumstances outside the reasonable control of SafeHack.
4.2 SafeHack shall have the right to extend the estimated delivery schedule by a period of time sufficient to take due account of the event occurring as set out in Condition 4.1. If, however, such extension continues for a period of six months the Customer may, on the expiry of that period terminate the Contract forthwith without liability to SafeHack other than reimbursement on the same terms as provided in Condition 3.2.
5. Prices and payment
5.1 Prices for the provision of Technical Assistance will be those set out in the Proposal.
5.2 SafeHack shall be entitled to invoice the Customer under the Contract at the end of each month for work completed by SafeHack on the Contract during that month.
5.3 Payment of all SafeHack invoices shall be made in Pounds Sterling at the end of the month following the month in which the invoices are issued.
5.4 At the request of the Customer SafeHack shall issue with all invoices submitted to the Customer under Clause 5.2 above, a statement of the work carried out by SafeHack to which the invoice refers. Where chargeable, Value Added Tax and any other applicable taxes or duties shall be added to the invoices at the current rate or rates in force at the relevant times.
6.1 In respect of any error or defect in Technical Assistance provided by SafeHack under the Contract which is notified to SafeHack in writing by the Customer within six months of the provision thereof, SafeHack agrees that it will make resources available to investigate the defect and endeavour to rectify the defect. On receipt of notification of any suspected defect, SafeHack shall free of charge as soon as possible carry out an investigation into the cause thereof, and thereafter rectify the same (if possible).
6.2 Except as set out in Clause 6.1, SafeHack accepts no liability in respect of any error or defect in any Technical Assistance, or the consequences thereof, and gives no warranty in respect thereof. Without prejudice to the generality of this Clause SafeHack does not offer:
(a) any implied or express warranty that the performance of any penetration tests will ensure that the Customer’s network is secure from every form of attack, as internet security is a continually growing and changing matter; or
(b) any warranty that equipment or data will be protected or accessible during the provision of the Technical Assistance. It is the Customer’s responsibility to ensure that their equipment is protected and that their data is suitably backed-up, in accordance with Clause 2.7.
6.3 The Technical Assistance is provided by SafeHack on the basis that it is for the sole use of the Customer, for the purpose set out in the Specification. The Customer shall not use the Technical Assistance or any information contained therein other than for the said purpose and shall not communicate the Technical Assistance or any information contained therein to any third party whether or not in connection with the said purpose. Without prejudice to the generality of 6.2:
(a) should the Customer use the Technical Assistance or any information contained therein contrary to the foregoing other than for the said purpose SafeHack accepts no liability in respect of any error or defect in any Technical Assistance, or the consequences thereof, and gives no warranty in respect thereof; and
(b) should the Customer communicate the Technical Assistance or any information contained therein to a third party, contrary to the foregoing, or use any such Technical Assistance or information in the performance of work for a third party, whether or not in accordance with the said purpose, the Customer will be solely liable to such third party for any error or defect in such Technical Assistance or information, and or the consequences thereof, and will indemnify SafeHack against all loss, actions, claims, costs, demands, expenses and liabilities whatsoever (if any) which SafeHack may incur either at common law or by statute in respect of any loss, damage, personal injury or death suffered by a third party by reason of any error or defect in such Technical Assistance or information, or by reason of the consequences of any such error or defect.
7. Economic loss
7.1 In no circumstances shall SafeHack be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof:
(a) for any increased costs or expenses,
(b) for any loss of profit, business, contracts, revenues, or anticipated savings, or
(c) for any special indirect or consequential damage of any nature whatsoever
arising out of the provision by SafeHack of Technical Assistance, or of any error or defect therein, or of the performance, non-performance or delayed performance by SafeHack of the Contract.
8. Limitation of liability
8.1 In accordance with the requirement upon the customer to suitably protect their equipment and data as may be affected by the provision of the Technical Assistance, SafeHack shall not be liable for any loss of data, re-run time, inaccurate output or work delays associated with this equipment or data.
8.2 Notwithstanding anything contained in the Contract, SafeHack’s liability to the Customer in respect of the Contract, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the total price for the provision of Technical Assistance as set out in the Proposal.
8.2 Notwithstanding Clause 8.2, SafeHack acknowledges that its liability for death or personal injury is not excluded or limited in any way.
9.1 The Customer agrees to indemnify and keep SafeHack fully indemnified from and against any loss, claim or liability whatsoever and related expenses and damages incurred or suffered by SafeHack as a result of negligence or any default by the Customer (or its employees, agents or representatives) of its obligations however arising in connection with the Contract.
10. Intellectual property rights
10.1 The Customer warrants that any Customer Material and its use by SafeHack for the purpose of providing the Technical Assistance will not infringe the Intellectual Property Rights or other rights of any third party and the Customer shall indemnify SafeHack against any loss, damages, costs, expenses or other claims arising from any such infringement.
10.2 SafeHack warrants that it has obtained all necessary permissions to use the specialist software and knowhow in the provision of the Technical Assistance.
10.3 The parties agree that all Intellectual Property Rights owned by either party respectively before the provision of the Technical Assistance shall remain the property of that party once the Technical Assistance has been completed.
10.4 Where applicable, the Customer agrees that all Intellectual Property Rights created as a result of SafeHack providing the Technical Assistance shall belong to SafeHack.
11.1 Either party may by notice to the other Party terminate this Agreement immediately upon the happening of any one of the following events:
(a) if the other party shall become bankrupt or be wound-¬up or make any arrangement or composition with its creditors or on the appointment of a receiver or administrator of the other Party’s assets or on the other Party ceasing to do business at any time for 30 consecutive days (other than for annual holidays);
(b) if the other party shall attempt or purport to assign or transfer their rights and obligations under the Contract in breach of Clause 18;
(c) if the other party shall commit any breach of any of its obligations under the Contract and fail to remedy such breach within thirty days of receipt of the notice specifying such breach.
11.2 Termination of the Contract shall not affect the rights and liabilities of either party subsisting at the date of termination.
12.1 Any notice under the Contract sent by one party to the other shall be in writing and shall be sent by first class post using recorded delivery to its address set out in the Proposal or to such other address as may from time to time be notified by the one party to the other and shall be deemed to be delivered two (2) business days after posting. E-mail or facsimile transmissions will not be an acceptable means of sending notices unless otherwise agreed between the parties in writing.
13.1 No exercise, or failure to exercise, or delay in exercising any right, power or remedy vested in any Party under or pursuant in this Agreement shall constitute a waiver by that Party of that or any other right, power or remedy.
14. Entire agreement
14.1 The Contract contains the complete and entire understanding between the Parties on the subject matter of this Agreement and supersedes all discussions, understandings or agreements, oral or written, relating to such subject matter provided that nothing in this Clause shall exclude any liability for fraudulent misrepresentation.
15.1 Clause headings are for convenience only and shall not affect the interpretation of the Contract.
15.2 Words in the singular shall include the plural and vice versa.
15.3 A reference to a statute, statutory provision or other legislation, whether of the UK or elsewhere, is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
16.1 Each Clause and provision hereof is severable from the rest of the Contract and, if one part should be found to be invalid, illegal or void, for any reason, it shall not affect the validity or legality of any other part and the remaining parts shall continue to have full force and effect.
17.1 No amendment to the Contract shall be valid unless agreed in writing by both parties.
18.1 No party may assign or otherwise transfer its rights or obligations under the contract without the prior written agreement of the other party.
19. Contracts (Rights of Third Parties) Act 1999
19.1 A third party who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Order but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
20. Law and jurisdiction
20.1 The Contract shall be governed by and construed in accordance with English Law and the parties hereby subject to the exclusive jurisdiction of the English Courts.