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Data Space UK Ltd Standard Agreement

This agreement is made between Dataspace UK Ltd (Registered in England & Wales under Company Reg No 03816685 of Wincham Business Park, Wincham, Northwich,England, CW9 6GB DataSpace UK Ltd and the CUSTOMER

As specified on the SERVICE ORDER FORM.

Dataspace UK LTD to provide Services as specified under this agreement.

1.Definitions

In this agreement (which included the appendices hereto) the following terms shall have the following meanings:

“AGENT” – The agent if any, representing Dataspace UK Ltd in the sale of the service to the customer.

AGGREEMENT” – The agreement comprising the SERVICE ORDER FORM, these TERMS AND CONDITIONS, the SERVICE LEVEL AGREEMENT attached as Schedule 1 and all other documentation referred to in any of the items.

“SERVICE ORDER FORM” – the order form which specifies the SERVICE and forms part of this agreement.

“CUSTOMER” – the customer specified on the SERVICE ORDER FORM.

“SERVICE” – Dataspace UK Ltd’s services as detailed on the SERVICE ORDER FORM

“START DATE” – the day that the SERVICE becomes fully functional and is handed over to the CUSTOMER

“INITIAL TERM” – a period of twelve (12) months from the START DATE

“CONTRACT TERM”- A period as defined in writing between Dataspace UK Ltd and the CUSTOMER

“EVENT OF FORCE MAJEURE” – such event as defined in clause 16.10 below

“INSOLVENCY EVENT” – if a party becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution for it to be wound up (otherwise than in the furtherance of a scheme for amalgamation or reconstruction) or if ownership or control shall pass into the hands of any other legal person (other than assignment under clause 16.1) or an event analogous occurs in respect of a party in any jurisdiction to which that party is subject.

“ACCEPTABLE USE POLICY” – Dataspace UK Ltd’s rules concerning acceptable usage of the Dataspace UK Ltd services, attached as Schedule 2.

“RIPE” – (Reseau IP Europeans) the organisation that assigns TCP/IP addresses to Internet Service Providers and their customers in Europe.

2. Terms of Purchase

These Dataspace UK Ltd Online Backup Terms and Conditions shall apply to the subject matter of this AGREEMENT to the entire exclusion of any documentation proposed by the customer. These Terms and Conditions may be used in conjunction with our separate Dataspace UK Ltd Records Management Terms and Conditions. The overriding Terms and Conditions will apply on the particular level of service that is detailed to and made reference to on the SERVICE ORDER FORM.

 

3. Services

Subject to compliance by the CUSTOMER with its obligations under

This agreement Dataspace UK Ltd shall provide the services to the CUSTOMER during the currency of this AGREEMENT with reasonable care and skill. Dataspace UK Ltd reserves the right to vary the SERVICE at any time provided such variation would make no material difference to the nature or extent of the SERVICES provided or to the ability of the CUSTOMER to use the SERVICE and that any changes are implemented at Dataspace UK Ltd’s expense unless otherwise agreed. However, Dataspace UK Ltd will inform the CUSTOMER of such variations where Dataspace UK Ltd deems it necessary to do so and where reasonably practicable in the circumstances

4. Term

Save as otherwise agreed in writing by both parties, the agreement shall subsist for the INTIAL TERM or CONTRACT TERM. If the CUSTOMER does not wish to renew the Agreement, the CUSTOMER must notify the company in writing no less than 3 months prior to the date of expiry of the Agreement, otherwise the agreement shall be deemed to be renewed for a subsequent 12 month period.

 

5. Usage

5.1 Improper Use The CUSTOMER shall ensure that nothing is transmitted by or on behalf of the CUSTOMER or using the CUSTOMER’s equipment through the SERVICE or downloaded in Violation of any UK or International law, regulation or treaty or Dataspace Uk Ltd’s ACCEPTABLE USE POLICY or in breach of the intellectual property or rights of any person. The CUSTOMER shall fully and effectually indemnify Dataspace UK Ltd from and against all loss, liability, damages, costs and expenses, which Dataspace UK Ltd may incur in relation to any breach by the CUSTOMER of its obligations under this clause. The CUSTOMER acknowledges that, by the nature of the SERVICE being provided, information and material downloaded or used by the CUSTOMER will be kept, whether permanently or temporarily, on Dataspace UK Ltd’s equipment. The CUSTOMER shall at all times ensure that such information and material complies with the laws of all applicable jurisdictions and shall keep Dataspace UK Ltd fully and effectually indemnified from and against all costs, claims, liabilities and demands relating to or arising from

• (a) Any breach by the customer of this clause. 5.1; or
• (b) Any criminal or civil legal action brought against Dataspace UK Ltd as a result of Dataspace UK Ltd’s storage of such information or material

 

A breach of this clause and/or Dataspace UK Ltd’s ACCEPTABLE USE POLICY will also be grounds for Dataspace UK Ltd to terminate this AGREEMENT without notice and with immediate effect, at Dataspace UK Ltd’s discretion.

5.2 Offending Material Without prejudice, to any other right, Dataspace UK Ltd shall be entitled to disable the SERVICE or any other part of it immediately and without notice or to take such action as it may in its discretion think appropriate to ensure that any material which Dataspace UK Ltd in its reasonable opinion considers to offend the principles set out in Clause 5.1 is not capable of being transmitted or down-loaded. Dataspace UK Ltd shall not however be obliged to take, or consider whether it should take any such action. Dataspace UK Ltd shall inform the CUSTOMER of any such action and reasons for the same.

5.3 Customer-Only Traffic. The right to use the SERVICE is limited to the CUSTOMER, and those members of its staff and others engaged by the CUSTOMER to perform work for the CUSTOMER.

5.4 International Bandwidth The CUSTOMER acknowledges that Dataspace UK Ltd has no direct control over the availability of bandwidth on the Internet at large and is outside Dataspace UK Ltd’s core network and that which it will use such endeavours as Dataspace UK Ltd, in its absolute discretion deems appropriate to facilitate the SERVICE at all times. Dataspace UK Ltd shall not be responsible for delays cause by the overuse or lack of such bandwidth, which are outside of its core network.

5.5 Acceptable Use Policy Dataspace UK Ltd reserves the right to make reasonable amendments to the ACCEPTABLE USE POLICY from time to time, effective upon notice to the CUSTOMER of such changes.

6. CUSTOMER Equipment and Network

6.1 The CUSTOMER agrees that from the STARTDATE, it will have available all necessary CUSTOMER equipment for which it is responsible to allow effective installation and continuation of the SERVICE.

6.2 It is the sole responsibility of the CUSTOMER and not Dataspace UK Ltd to provide security with respect to and of the CUSTOMER’s facilities or the facilities of others. The CUSTOMER shall be solely responsible for maintaining user access security and network access and the provision of the online encryption Keys.

7. Domain Name and Network Number

7.1 Dataspace UK Ltd shall apply on behalf of the CUSTOMER for one

domain name only, if requested,..

7.2 Dataspace UK Ltd will not be held responsible if other Internet Service Providers refuse to accept these addresses. Dataspace UK Ltd shall assign new or additional TCP/IP addresses as requested by the CUSTOMER upon being provided with satisfactory documentation justifying the need for those addresses. The documentation must be in accordance with the policies set forth by RIPE. In certain circumstances, it may be necessary for TCP/IP addresses to be approved by RIPE and in such cases those addresses are only assigned for the duration of the SERVICE and become invalid at such

time as Dataspace UK Ltd no longer provides the SERVICE to the CUSTOMER. Dataspace UK Ltd shall not be responsible for any decision made by RIPE .

7.3 Dataspace UK Ltd has no control over the availability of domain names and accepts no responsibility for the availability of any domain name.

7.4 In respect of any actions taken by Dataspace UK Ltd pursuant to this clause 7, Dataspace UK Ltd may levy additional charges on the CUSTOMER as agreed in advance.

8. Historical Archive and backup

While Dataspace UK Ltd backs up its server computers as a regular part of its internal systems administration, unless a Data Backup service is requested; Dataspace UK Ltd does not guarantee any storage or backup of CUSTOMER data.

9. Service Pricing

9.1 Service Pricing. The CUSTOMER shall pay fees to Dataspace UK Ltd as specified on the SERVICE ORDER FORM. Such fees may be varied by Dataspace UK Ltd from time to time with the prior agreement of the CUSTOMER. Dataspace UK Ltd agrees not to increase the prices it charges to the CUSTOMER during the INITIAL TERM. The customer acknowledges that it has read and agreed the fees on the SERVICE ORDER FORM. All fees are exclusive of an applicable VAT, which is chargeable in addition at the then current rate.

9.2 Commitment. Upon execution of the AGREEMENT the CUSTOMER shall be responsible for all charges for the SERVICE for the Initial Term and for the CUSTOMERS INITIAL COMMITMENT Fees, which shall include without limitation the following (save where otherwise specified) on the SERVICE ORDER FORM:

(1) Dataspace UK Ltd installation or set up fee(s), upgrade fee(s) (as applicable); (payable with order);

(2) Domain Name Charges (as applicable)

(3) Equipment Lease Fees (as applicable)

(4) Equipment Purchase Charges (as applicable)

The CUSTOMERS INITIAL COMMITMENT FEES an any service fees invoiced shall not be refundable once the SERVICE has been delivered. They are independent of the amount of traffic or systems access by the CUSTOMER.

9.3 Invoicing. Upon the START DATE, DATASPACE ( or the AGENT on Dataspace UK Ltd behalf) shall invoice the CUSTOMER for the CUSTOMERS INITIAL COMMITMENT FEES and any Service Fees for the first quarter subject to a satisfactory credit check being carried out. Dataspace UK Ltd will investigate the CUSTOMERS credit limit with Risk Disk and if the credit limit published is below the value of the first invoice the CUSTOMER will have been deemed to have failed the credit check. Should the CUSTOMER fail the DATASPACE credit checking procedure, the CUSTOMER shall be pro-forma invoiced immediately for the value of the CUSTOMERS INITIAL COMMITMENT FEE and for the Service for the first quarter. THE SERVICE will not be delivered until the pro-forma invoice has been paid with cleared funds. Dataspace UK Ltd (or the AGENT on Dataspace UK Ltd behalf) will invoice subsequent periods of SERVICE separately to the CUSTOMER. Payment is due within (30 ) days from the date of issue of any invoice. Late payment of invoices will result in interest being charges at 2% above the then current Clydesdale Bank base rate.

9.4 Set Off. Notwithstanding any other provision of this AGREEMENT, Dataspace UK Ltd shall be entitled to set-off against an amount due for payment by any entity controlled by, controlling or under common control with the CUSTOMER.

Dataspace UK Ltd Equipment The CUSTOMER is responsible for any Dataspace UK Ltd equipment located at its premises and will only use the Dataspace UK Ltd equipment and any associated software in accordance with any instructions and /or software license provided from time to time. The CUSTOMER may not add to, modify or in any way interfere with the Dataspace UK Ltd equipment and Dataspace UK Ltd will not be liable for any repairs of the Dataspace UK Ltd equipment other than those arising as a result of its normal and proper use. The CUSTOMER will insure any Dataspace UK Ltd equipment located on its premises form all risks equal to the full replacement value of the equipment.

10. Termination

10.1 For Non-payment. If any Dataspace UK Ltd invoice remains unpaid thirty (30) days after its due date, Dataspace UK Ltd may without further notification or prejudice to any other remedy, suspend or disable the SERVICE or, at its option, terminate this AGREEMENT. Termination for non-payment shall not relieve the CUSTOMER of its responsibilities to pay all fees up to the date of termination.

10.2 For Default. Either party may terminate this AGREEMENT at any time it the other materially breaches this AGREEMENT and in the case of a breach capable or remedy fails to remedy the breach within thirty (30) days of a notice requiring the breach to be remedied. For the avoidance of doubt a breach of clauses 3, 5.1, 9.1, 12 and 14.1 shall constitute a material breach of this Agreement.

10.3 INSOLVENCY. Where one party suffers an INSOLVENCY event, then the other may, without prejudice to any other right or remedy, terminate this AGREEMENT. Where the CUSTOMERS suffers and INSOLVENCY event, and this occurs during the INITIAL TERM, the CUSTOMER shall be liable for the balance of payments outstanding for the final year.

11. Additional Service Terms.

11.1 Customer provided equipment. To enable Dataspace UK Ltd to provide the SERVICE, the CUSTOMER agrees to abide by Dataspace UK Ltd prior agreement recommendations and specifications regarding the existence, configuration and maintenance of equipment used by the CUSTOMER (if any), the software used by the CUSTOMER and cabling required to integrate the CUSTOMERS host or local area network (LAN) into Dataspace UK Ltd wide area network (WAN). The CUSTOMERS equipment must comply with the relevant portions of such recommendations and specifications. Such recommendations and specifications, if any, are given solely for the protection of Dataspace UK Ltd equipment and not the CUSTOMERS and the CUSTOMER may not therefore rely upon such recommendations and specifications in the design, maintenance or service of the CUSTOMERS equipment or system.

11.2 Support. Dataspace UK Ltd helpdesk will provide reasonable telephone support on problems experienced by the CUSTOMER in relation to the SERVICE. Requests for advise and assistance can be sent to support@data-space.co.uk .

12 Service Level

The service Level will be defined within the service level agreement document, both signed by DATASPACE UK Ltd and the CUSTOMER.

13 Network Infrastructure

From time to time Dataspace UK Ltd may upgrade its network infrastructure. This may require the CUSTOMER to upgrade some of its equipment if the SERVICE is to be continued. In that event, the CUSTOMER agrees to make within thirty (30) days such reasonable upgrades to its hardware or software as DATASPACES technical staff may from time to time reasonably specify by written notice to the CUSTOMER. Dataspace UK Ltd shall not be responsible for degradation of or disruption to the SERVICE if the CUSTOMER does not make the required upgrade.

14 Limited Warranty

14.1 Subject to Clause 3, DataSpace UK Ltd warrants that the SERVICE will not be substantially different from the SERVICE described in the SERVICE ORDER FORM.

14.2 The CUSTOMER is responsible for assessing its own commercial needs, how the service relates to the CUSTOMER and how the CUSTOMER should use the SERVICE. The CUSTOMER warrants that it is familiar with services of this type and that it understands the level of service to be provided and the implications for the CUSTOMERS own business of the choices, which the CUSTOMER made when completing the SERVCICE ORDER FORM. Dataspace UK Ltd does not warrant the value of the SERVICE to the CUSTOMERS Business.

14.3 The CUSTOMER is solely responsible for the use of any information or other materials obtained through the SERVICE. Dataspace UK Ltd specifically excludes any responsibility for the accuracy or quality of any information obtained through the SERVICE, or that any other material obtained through the SERVICE may be used in any way by the CUSTOMER without infringing the rights of any third parties. The CUSTOMER further acknowledges that these matters are outside the control of Dataspace UK Ltd

 

15. Limitation of Liability

Without prejudice to the express warranties contained in clause 14 above and to the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or otherwise by general law into this AGREEMENT or relating to the SERVICE are hereby excluded.

15.2 The following provisions in this clause 15 set out Dataspace UK Ltd entire liability (including any liability for the acts and omissions of its employees, agents or sub– contractors ) to the CUSTOMER in respect of :

15.2.1 a breach of Dataspace UK Ltd contractual obligations:

15.2.2 a tortuous act or omission for which Dataspace UK Ltd is liable¨

15.2.3 an action arising out of a misrepresentation by or on behalf of Dataspace UK Ltd arising in connection with the performance of this AGREEMENT or out of an act done or omission made as a consequence of the entry into by Dataspace UK Ltd of this AGREEMENT.

15.3 Subject to clause 15.6 and 15.7 the total liability, which Dataspace Uk Ltd shall owe to the CUSTOMER in respect of all claims, shall not exceed the value of the SERVICE FEE for that particular service for the twelve (12) month period during which the event giving rise to the liability arose.

15.4 The CUSTOMER acknowledges that the Dataspace Uk Ltd network has not been designed for use in circumstances where its failure could cause pure economic loss, loss of profit, loss of business or like loss.

15.5. Dataspace UK Ltd shall in no circumstances be liable to the CUSTOMER, whether in tort or otherwise, for loss, whether direct or indirect, of business opportunities, revenues, profits, anticipated savings or for any indirect or consequential loss whatsoever, or for the acts or omissions of other providers of telecommunications services or for faults or failures in their apparatus.

15.6 Dataspace UK Ltd shall in no circumstances (whether before or after termination of this AGREEMENT) be liable to the CUSTOMER for any loss of or corruption to data or programs held or used by or on behalf of the CUSTOMER and the CUSTOMER shall at all times keep adequate back up copies of the data and programs held or used by or on behalf of the CUSTOMER.

15.7 Not withstanding anything to the contrary herein contained Dataspace UK Ltd liability to the CUSTOMER for:

15.7.1 death or personal injury resulting from the negligence of Dataspace UK Ltd or its employees, agents or subcontractors;

15.7.2 damage suffered buy the CUSTOMER as a result of a breach by Dataspace UK Ltd of the condition as to the title of the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and

15.7.3 damage for which Dataspace UK Ltd is liable to the CUSTOMER under Part 1 of the Consumer Protection Act 1987;

shall not be limited save that nothing is this clause 15 shall confer a right or remedy upon the CUSTOMER to which the CUSTOMER would not be otherwise entitled.

15.8 The exclusions from and limitations of liability set out in this clause 15 shall be considered severable. The validity of unenforceability of any one clause, sub-clause, paragraph or sub paragraph of this clause 16 shall not affect the validity of enforceability of any other part of this clause 15.

15.9 The provisions of this clause 15 shall survive the termination of the whole or a part of this AGREEMENT.

15.10 Dataspace UK Ltd or its AGENTS will not be liable for the control issue or use of the encryption key. Sole use of the online backup encryption key will be maintained by the CUSTOMER

 

 

16. General Terms

16.1 Assignment. The CUSTOMER cannot sell, transfer or assign its rights or obligations under this AGREEMENT without the written consent of Dataspace UK Ltd. No such assignment, even if consented to, shall relieve the other party of its obligations under this AGREEMENT prior to the date of such assignment, even if consented to, shall relieve the other party of its obligations under this AGREEMENT prior to the date of such assignment.

16.2 Waiver. The waiver or failure of either party to exercise any right provided for in this AGREEMENT shall not be deemed a waiver or that or any other right in this AGREEMENT.

16.3 Invalidity. If any provision of this AGREEMENT is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this AGREEMENT will remain in full force and effect.

16.4 Whole AGREEMENT. This AGREEMENT, together with any document expressly referred to in any of its terms, contains the entire AGREEMENT between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information or e-mail given by any party shall alter the interpretation of this AGREEMENT. The CUSTOMER confirms that, in agreeing to enter into this AGREEMENT, it has not relied on any representation save insofar as the same has expressly in this AGREEMENT been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this AGREEMENT save the agreement of the CUSTOMER contained in this Clause shall not apply in respect of any fraudulent or negligent misrepresentation whether or not the same has become a term of this AGREEMENT.

16.5 Notices. Notices sent pursuant to this AGREEMENT shall be in writing and may be delivered by hand or sent by post or faxed with hard copy confirmation by post to the recipient at its address shown on the SERVICE ORDER FORM or at such other address as may be notified in accordance with this clause or, in the case of a company, to its registered office. Notices hand delivered or faxed shall be deemed received on delivery and those posted on the second working day after they are posted.

16.6 Headings. The headings shall be disregarded in construing this AGREEMENT.

16.7 Law. This AGREEMENT shall be governed by English Law. The parties submit to the non exclusive jurisdiction of the English courts.

16.8 Capacity. Both parties acknowledge that they have read and understood this AGREEMENT and agree to be bound by its terms.

16.9 Representations. The parties acknowledge that in entering into this AGREEMENT they have not relied upon any representations other than those reduced to writing in this AGREEMENT. The provisions of this clause 16.9 shall not apply in the case of any fraudulent misrepresentation.

16.10 FORCE MAJEURE. Neither party shall be liable for any breach of this AGREEMENT due to any cause beyond its reasonable control (save obligation in respect of the payment of monies) including but not limited to Acts of God, inclement weather, flood, lightening or fire, industrial action, act or omission of government, or other competent authority, riot, war or act or omission of any other party for whom that party is not responsible (“an event of FORCE MAJEURE”).

16.11 Data Protection. The CUSTOMER hereby consents that any CUSTOMER information (“Data”) collected by DATASPACE UK Ltd in the fulfilment of this AGREEMENT (including but not limited to Data collected during order processing, delivery, installation, support and maintenance of the SERVICE) may for the purposes of fulfilling the contract be processed by Dataspace Uk Ltd, its provisioning entities affiliates and agents both within and outside the European Economic Area, and outside the country or countries where the Data is collected.