Terms & Conditions

Definitions

“CLIENT”: the legal entity named on the Service Form for whom the Supplier has agreed to provide the Specified Service in accordance with the Conditions

“CONDITIONS”: these terms and conditions of supply

“CONTRACT”: this contract for the provision of the Specified Service

“DEVICE”: any digital media card, USB Key or other device whether or not embodying any Data

“DATA” includes, in addition to a document in writing, any software, program, map, plan, graph, drawing, photograph or other information or data of whatever nature. For the avoidance of doubt, unless otherwise agreed in writing between the Client and the Supplier the value of such Data shall be deemed to be nil.

“INPUT MATERIAL”: any Devices, Data, information or other materials provided by the Client relating to the Specified Service

“OUTPUT MATERIAL”: any Data, Devices, information or other materials provided by the Supplier relating to the Specified Service

“SPECIFIED SERVICE”: the service to be provided by the Supplier for the Client and referred to in the Supplier’s current published literature.

“SUPPLIER”: Flash Recovery

“SUPPLIER’S STANDARD CHARGES”: the charges quoted by the Supplier to the Client relating to the Specified Service as amended and updated from time to time

“VALUE OF THE DEVICE”: the market value of the Device in the state and condition in which it is delivered to the Supplier or as stated on the Specification Sheet, whichever is the lesser.

The headings in these Conditions are for convenience only and shall not affect their interpretation.

Supply of the Specified Service

1.       The Supplier shall provide the Specified Service to the Client subject to these Conditions. Any changes or additions to the Specified Service or these Conditions must be agreed in writing by the Supplier and the Client.

2.       The Client shall at its own expense supply the Supplier with all necessary Devices, Data and other materials, and all necessary data or information relating to the Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Client shall ensure the accuracy and completeness of all Input Material.

3.       The Client shall where possible and at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. All Devices and Output Material shall be at the sole risk of the Client from the time of delivery to or to the order of the Client.

4.       The Specified Service shall be provided in accordance with the Service Form and otherwise in accordance with the Supplier’s current published literature relating to the Specified Service from time to time, subject to these Conditions. The Specified Service shall not be amended in any way without the written consent of the Supplier.

5.       Further details about the Specified Service, and advice or recommendations about its provision or utilisation, which are not given in the Supplier’s literature, may be made available on written request.

6.       In the event that the Supplier undertakes any services for the Client without a Service Form being completed for whatever reason, the Client agrees that these Conditions will apply.

7.       The Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document both electronic or otherwise relating to the provision of the Specified Service without any liability to the Client.

8.       The Supplier may at any time without notifying the Client make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Specified Service.

Charges

1.       Subject to any special terms agreed, the Client shall pay the Supplier’s Standard Charges and any additional sums which are agreed between the Supplier and the Client for the provision of the Specified Service or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.

2.       The Supplier shall be entitled to vary the Supplier’s Standard Charges from time to time by giving not less than 28 days’ written notice to the Client.

3.       The Supplier’s Standard Charges and any additional sums payable shall be paid by the Client (without any set-off or other deduction) before the Supplier releases any available Output Material to the Client.

4.       If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 3 % above the base rate from time to time of HSBC Bank plc from the due date until the outstanding amount is paid in full.

Rights in Input Material and Output Material

1.       The property and any copyright or other intellectual property rights in any Input Material or Output Material shall belong to the Client.

2.       Any Input Material and any Output Material shall be kept confidential by the Supplier, subject to confidentiality agreements or as required by law, but the foregoing shall not apply to any materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.

3.       The Client warrants that any Input Material and its use by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party and the Client shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.

Warranties and Liability

1.       The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification referred to on the Service Form. Where the Supplier supplies in connection with the provision of the Specified Service any goods (including Devices, Output Material and Delivery Services) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.

2.       The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client, or in the event that it is not reasonably practicable to provide the Specified Service by reason of the condition of the Input Material.

3.       Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Conditions, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Specified Service or their use by the Client, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s charges for the provision of the Specified Service or the Value of the Device (whichever is the greater), except as expressly provided in these Conditions.

4.       The Supplier shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.

Termination

Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.

General

1.       These Conditions (together with the terms, if any, set out in the Service Form) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

2.       Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

3.       No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

4.       If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

5.       English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.