Title: GENERAL TERMS AND CONDITIONS OF SALE – MIDAS Meter® Terms and Conditions of Sale/Hire
Revision: 8
Effective Date: 21 October 2022
1. DEFINITIONS AND INTERPRETATION
1.1 In these conditions, the following words shall have the following meanings:-
“Day” means a calendar day.
“Buyer” means Company, partnership, business or individual which purchases or hires the Goods and/or Training from Company.
“Candidate” the person or persons who are to participate in the Training.
“Certificate” the documentation which is issued to the Candidate by Company acknowledging the successful completion of the Training.
“Company” means the subsidiary of Score Group Limited. providing the Goods and/or Training. For the purposes of clarity, this includes but is not limited to Score (Europe) Limited, Score Danmark A/S, Score A/S and Score Diagnostics Limited.
“Company Group” means any subsidiary or associated company of Score Group Limited, a company registered in Scotland under number 172439.
“Conditions” means the General Terms and Conditions of Sale/Hire set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Company and Buyer.
“Contract” means any contract between Company and Buyer for the hire or sale and purchase of the Goods and/or Training, incorporating these Conditions.
“Data Protection
Legislation” from the date it comes into force in the UK the General Data Protection Regulation (EU) 20016/670 (as applicable) and the Privacy and Electronic Communications (EC Directive) Regulations and any national implementing laws, regulation and secondary legislation in the UK.
“Data Controller”the Party that transfers Personal Data to the other Party.
“Data Processor” the Party that receives Personal Data from the other Party
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4.
“Goods” means the goods or services or any part thereof to be sold or provided to Buyer by Company as described in the Contract.
“Intellectual patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, Property Rights” goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of,
confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Price” means the price for the Goods as stated in Company’s quotation as accepted by Buyer’s order.
“Training” means any training provided to a Candidate by Company whether at Company’s or Buyer’s premises.
“Personal Data”, “Controller”, “Processor”, “Data Subject” And “Processing” “Third Country” and “International Organisation” have the same meaning as in the Data Protection Legislation.
1.2 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-acted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.3 Clause headings are for ease of reference only and shall not affect the construction or interpretation of any clause.
1.4 Words importing the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.5 Any phrase introduced by the terms “including, include, in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6 A reference to “writing” or “written” includes faxes and emails.
2. APPLICATION OF TERMS
2.1 Unless otherwise agreed in writing by Company, these conditions are the only conditions upon which Company is prepared to sell or hire the Goods and/or Training to Buyer. These Conditions shall constitute the entire agreement between Company and Buyer and shall supersede all prior negotiations, statements, representations, promises, assurance, warranties, understandings or agreements relating to the Contract whether written or oral. These Conditions shall govern the Contract to the entire exclusion of all other terms or conditions to the fullest extent permitted by law (including Buyer’s terms and conditions or those implied by trade, custom, practice or course of dealing).
2.2 No terms or conditions endorsed on, delivered with or contained in Buyer’s order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract. Any such terms will have no effect unless specifically acknowledged in writing by Company.
2.3 Each order or acceptance of a quotation for Goods and/or Training by Buyer from Company shall be deemed to be an offer by Buyer to purchase or hire the Goods and/or Training subject to these Conditions.
2.4 Any quotation is given on the basis that no contract shall come into existence until Company despatches an acknowledgement of order to Buyer. Any quotation is valid for a period of thirty (30) days only from its date, provided Company has not previously withdrawn it.
2.5 These Conditions apply to all Company’s sales and any variation to these Conditions and any representation about the Goods and/or Training shall have no effect unless expressly agreed in writing and signed by an authorised representative of Company.
2.6 Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Company which is not set out in the Contract. Nothing in this condition shall exclude or limit Company’s liability for fraudulent misrepresentation.
3. DESCRIPTION
3.1 The equipment package comprises the following:
MIDAS Meter® Handset, Hazardous Area Certified
Smartphone, Hazardous Area Certified
Calibration Certificate
Utility Belt
2 off Wave Guides
Acoustic Couplant
Rugged Shipped and Storage Flight case
1 Year Software Operating Agreement
MIDAS Meter® Software Application (For all survey data management, including leak surveys, leakage calculation, maintenance guidance, Risk Based Inspection (RBI) planning and scheduling, historical survey data storage, leakage analysis, reporting, trending and results graphing).
3.2 All drawings, particulars of weights and dimensions, specifications and advertising issued by Company and any descriptions or illustrations contained in Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract and this is not a sale by sample.
4. DELIVERY OF GOODS
4.1 Delivery is in accordance with the Contract terms by any method convenient to Company and Buyer will be charged accordingly.
4.2 Buyer shall take delivery of the Goods within 7 days of Company giving it notice that the Goods are ready for delivery. Where the delivery of Goods includes the provision of services, the services will be delivered on the date specified on Company’s acknowledgement of Buyer’s order.
4.3 Delivery times specified by Company in its quotation are intended to be business estimates only and Company is not liable to Buyer for any failure to comply with such delivery times.
4.4 Subject to the other provisions of these Conditions Company will not be held liable for any direct, indirect or consequential loss, or any costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Company’s negligence), nor shall any delay entitle Buyer to terminate or rescind the Contract unless the delay exceeds 90 days.
4.5 If Company is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer (including but not limited to failure to provide specifications or such other information as Company reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery period and the Contract Price shall both be adjusted accordingly.
4.6 If for any reason Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Company is unable to deliver the Goods on time because Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.6.1 risk in the Goods shall pass to Buyer;
4.6.2 the Goods shall be deemed to have been delivered; and
4.6.3 Company may store the Goods for Buyer and Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.7 Buyer shall provide at the Delivery Point, at Buyer’s expense, adequate and appropriate equipment and manual labour for unloading the Goods should this prove necessary.
4.8 Company is not bound to deliver the Goods in one lot, shipment or consignment and Buyer shall accept split deliveries or delivery by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle Buyer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by Company upon despatch from Company’s place of business shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
5.2 Company shall not be liable for any non-delivery of Goods (even if caused by Company’s negligence) unless written notice is given to Company within 5 days of the date when the Goods would, in the ordinary course of events, have been received.
5.3 Any liability of Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of Buyer from the time of delivery or within 7 days of receiving notice that the Goods are ready for delivery, whichever is the earlier.
6.2 Ownership of the Goods shall not pass to Buyer until Company has received in full (in cash or cleared funds) all sums due to it in respect of:
11.2.1 the Goods; and
11.2.2 all other sums which are or which become due to Company from Buyer on any account.
6.3 Until ownership of the Goods passes to Buyer, Buyer shall:
6.3.1 store the Goods (at no cost to Company) separately from all other goods of Buyer or any third party in such a way that they remain readily identifiable as Company’s property;
6.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.3 maintain the Goods in satisfactory condition and keep them insured on Company’s behalf for their full price against all risks to the reasonable satisfaction of Company. On request, Buyer shall produce the policy of insurance to Company.
6.4 Should Buyer have no further requirement for the equipment, Buyer may not resell the equipment to any third party. In such event, Company shall purchase the equipment from Buyer at an agreed price which shall reflect the period of usage by Buyer.
6.5 Buyer’s right of possession of the Goods shall terminate immediately if:
6.5.1 Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or as a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Buyer or notice of intention to appoint an administrator is given by Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed, or a petition presented to any court for the winding-up of Buyer or for the granting of an administration order in respect of Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of Buyer;
6.5.2 Buyer suffers any diligence or execution to be levied, on his/its property or fails to observe or perform any of his/its obligations under the Contract or any other contract between Company and Buyer, or is unable to pay its debts within the meaning of section 123 of the insolvency Act 1986 or Buyer ceases to trade; or
6.5.3 Buyer encumbers or in any way charges any of the Goods.
6.6 Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Company.
6.7 Buyer grants Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are being stored in order to inspect them, or, where Buyer’s rights to possession has terminated, to recover them.
7. INSPECTION, TESTING AND CALIBRATION
7.1 Goods will be inspected by Company and, where practicable, submitted to Company’s standard tests before despatch. Any additional tests or inspection (including inspection by Buyer or its representative, or tests in the presence of Buyer or its representative and/or calibration) or the supply of test certificates and/or detailed test results shall be subject to Company’s prior written agreement and Company reserves the right to charge therefor.
7.2 If Buyer or its representative fails to attend such inspection, tests or calibration after 7 days’ notice that the Goods are ready therefore, the inspection, tests and/or calibration will proceed and will be deemed to have been made in the presence of Buyer or its representative and Company’s statement that the Goods have passed such inspection, testing and/or calibration shall be conclusive.
7.3 Calibration of the equipment remains valid for a period of 12 months. The equipment is supplied with a full 12 months’ valid period of calibration and thereafter it is the responsibility of Buyer to ensure that the equipment is re-calibrated by Company or a Company approved facility. Company will not accept responsibility for any issues arising from the use of equipment whose calibration has expired.
8. USE
8.1 The equipment may only be used by Buyer exclusively for the purpose of performing tests and services on products supplied, manufactured or owned by them.
8.2 Buyer may not either by itself or with the assistance of others reverse assemble, reverse engineer, create derivative or merged works, or perform any other activity which would result in developing or modifying the equipment for the benefit of Buyer or any third party. Buyer hereby accepts that this Contract is made for the purpose of granting Buyer the right to utilise the functions of the equipment only.
8.3 As certifications are country specific, the certification required by Buyer to accompany the equipment must be expressly stated on the order. Buyer will not be authorised to use the equipment in any country where certification has not been obtained from Company.
9 SOFTWARE AND LICENCING
In addition to the initial purchase cost of the equipment, Buyer agrees to pay to Company an annual licence fee as specified on the initial quotation for the equipment. This fee shall cover the following:
Annual sensitivity check of hand-held unit (Requires user to ship Midas Meter® to Score Service Centre)
Software Maintenance Agreement (Provides updates to PDA Application and PC Based Communicator™ Application, for data collection, storage and reporting).
The fee will include the provision of such certification necessary to allow continued conformity with applicable legislation.
10 EQUIPMENT DISPOSAL
In the event of the equipment becoming redundant or damaged beyond repair, Buyer shall return the equipment to Company for disposal. The equipment may not be disposed of via any other third party.
11. SPECIFIC CONDITIONS OF HIRE
11.1 The equipment may be hired on its own provided that the Buyer has appropriately trained technicians. The equipment may also be hired inclusive of the provision of a trained technician. In this instance, the hire charge shall not include travel or accommodation which is chargeable separately at documented cost.
11.2 Where the equipment is being hired with a technician, the basic valve leakage data will be provided. Where the equipment is being hired for use by the Buyer’s own personnel, the charge includes the software licence to enable the data to be uploaded and reported on via a Company secure server. Detailed analysis of such data is charged in addition in accordance with the initial quotation.
11.3 The Buyer shall carry sufficient insurance to cover the cost of replacement at the purchase price current at that time in the event of loss or damage.
11.4 Under no circumstances will Buyer re-hire the equipment to any third party.
12. SPECIFIC CONDITIONS OF TRAINING
12.1. Training will take place on a date and location specified on Company’s acknowledgement.
12.2. On the successful completion of the Training the Candidate will be presented with a Certificate.
12.3. The Certificate will be given to the Candidate in electronic or hard copy unless otherwise requested in advance.
12.4. The issuing of the Certificate to the Candidate by Company signifies only the successful completion of the Training.
12.5. By issuing a Certificate to any Candidate Company in no way provides any warranty or guarantee that any Candidate is fit, qualified or competent to perform or supervise the performance of any task or carry out any task, procedure or process relevant to the content of the Training. The Certificate only signifies that the Candidate attended the Training.
12.6. Company accepts no liability for any loss or damage which arises as a result of the actions or omissions of any Candidate prior to or following completion of the Training.
12.7. All Training materials are the exclusive property of Company. Buyer acknowledges and accepts that information contained in any statements made, or any documents provided, by Company are confidential and the content is protected by copyright laws. Buyer will not divulge, reproduce, redistribute or commercially exploit the content of the Training or use it for any other purpose (including, but not limited to, using the Training materials to deliver courses to third parties or other members of Buyer group) other than fulfilment of obligations under this Contract without the express consent of Company.
12.8. If for any reason Buyer wishes to cancel the Training it must provide Company with at least seven (7) Days’ notice. Failure by Buyer to provide Company with the required notice will result in Buyer being invoiced for 100% of the Price of the Training. Notwithstanding the above, Buyer remains responsible at all time for all non-refundable costs which include, but are not limited to, hotel costs and travel expenses.
13. PRICE AND PAYMENT
13.1 Payment shall be made in accordance with Company’s Pro-Forma invoice, unless otherwise agreed in the Contract. All sums are to be paid in the currency as specified on the invoice.
13.2 The Price for the Goods and/or Training shall be exclusive of any value added tax, export, import, excise duties and any other taxes or duties. All such taxes or duties shall be payable by Buyer.
13.3 Company may invoice on or any time after delivery, or if Buyer wrongfully fails to take delivery or otherwise suspends or delays delivery, Company is entitled to invoice from the date the Goods and/or Training were tendered for delivery.
13.3 If Buyer fails to make timely payment of any sum due, Company may suspend the delivery of Goods and/or Training until full payment is made. If such failure to make payment continues for more than one month, Company may without prejudice to any other contractual rights, terminate this Contract and dispose of the any Goods appropriate to the Contract.
13.4 No payment will be deemed to have been received until Company has received cleared funds.
13.5 If Buyer fails to pay Company any sum due pursuant to the Contract, the matter will be passed to Company’s lawyers to commence legal proceedings to recoup any amounts owed under the Contract.
13.6 All payments payable to Company under the Contract shall become due immediately on its termination despite any other provisions.
13.7 The price payable for Goods and/or Training shall be as per the quotation provided to Buyer by Company.
14. WARRANTY
14.1 Company warrants that:-
14.1.1 Goods supplied by Company will be free from defects in materials or workmanship under normal use and care and services will be performed by trained personnel using proper equipment and instrumentation for the particular service provided. The foregoing warranties will apply until the expiration of the warranty period which is 12 months from the date of delivery;
14.1.2 if any of the Goods do not conform to this warranty Company will at its option either repair or replace non-conforming Goods or take back the non-conforming Goods and refund the appropriate part of the purchase Price.
14.2 The warranty contained in clause 14.1 is conditional upon:-
14.2.1 Buyer giving written notice to Company within 14 days of the time when Buyer discovers or ought to have discovered the alleged non-conformity in the Goods;
14.2.2 Buyer giving Company reasonable access to inspect the Goods and, if requested by Company, returning the alleged non-conforming Goods to Company’s premises, carriage paid, for inspection;
14.2.3 the Goods having been properly stored, maintained, handled and installed in accordance with good industrial practises and Company’s recommended procedures; and
14.2.4 Buyer having paid for the Goods in full.
14.3 Company accepts no liability in respect of:
14.3.1 any modification or alteration required to the Goods made necessary by any legislation, regulation or requirements of any authority after the order has been placed;
14.3.2 any repair or replacement required to any Goods where any identification, serial or batch number has been altered, defaced or removed, or if any unauthorised work has been carried out by others; and
14.3.3 faults caused by accident, neglect, misuse or normal wear and tear.
14.4 Notwithstanding the above, in instances where the sale of Goods includes the provision of a site survey, Company’s only obligation is to provide the Buyer with the leak rate of the product tested, no warranty is given as to the accuracy of such results. Company excludes any and all liability, to the fullest extent permitted by law, for any acts or omissions of Buyer upon receiving such results.
14.5 This warranty is given in lieu of all warranties and conditions whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) which are hereby excluded to the fullest extent permitted by law.
15. INDEMNITY and LIMITATION OF LIABILITY
15.1 Each party (Indemnifying Party) shall be responsible for and shall save, indemnify, defend and hold harmless the other party (Indemnified Party) from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:
(a)Loss of or damage to property of the Indemnifying Party whether owned, hired, leased or otherwise provided by the Indemnifying Party arising from, relating to or in connection with the performance or non-performance of the Contract; and
(b)Personal injury including death or disease to any person employed by the Indemnifying Party arising from, relating to or in connection with the performance or non-performance of the Contract; and
(c)Personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by any negligent act or omission, or wilful misconduct or breach of duty (whether statutory or otherwise) of the Indemnifying Party. For the purposes of this clause ‘third party’ shall mean any party which is not a member of the Buyer or Company.
Neither party excludes or limits its liability to the other party for death or personal injury caused by any negligent act or omission, or wilful misconduct or breach of duty of such party.
15.2 Company shall, in no circumstances, be liable to Buyer in respect of any of the following losses or damage (whether such losses or damages were foreseen, foreseeable, known or otherwise):
15.2.1 indirect or consequential loss or damage;
15.2.2 loss of business profits, salary, business revenue, goodwill, or anticipated savings; or
15.2.3 loss which could have been avoided by Buyer through reasonable conduct.
15.3 Notwithstanding any provision within these Conditions to the contrary, Company’s maximum aggregate liability arising from, relating to or in connection with the performance or non-performance of the Contract shall not exceed 100% of the Price of the Contract which give rise to such liability. Buyer shall indemnify, defend and hold Company harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities which exceed this value.
16. GENERAL
16.1 Company may terminate the Contract with immediate written notice if Buyer fails to pay the Price in accordance with condition 13.4.
16.2 Buyer may terminate or suspend its order for all or part of the Goods covered by the Contract only upon Company’s written consent.
16.3 In the event of cancellation of the Contract by Buyer, Buyer will be liable for all costs incurred by the seller up to the time of cancellation or a variable charge based on the full value of the Contract dependent upon the time elapsed after placement of the Order whichever be the greater. The variable charges are defined as follows:
2 weeks 25%
3-4 weeks 30%
5-6 weeks 50%
7-8 weeks 75%
9 weeks or more 100%
17. ASSIGNATION
17.1 Company may at any time assign the Contract or any of its rights or obligations under it to and subsidiary within Company Group.
17.2 Buyer shall not, and shall not purport to assign or otherwise transfer the Contract or any rights or obligations under it without Company’s prior written consent. Any such consent shall not excuse Buyer from performance of any obligations on its part to be performed.
18. SEVERABILITY
If and in so far as any part or provision of these Conditions is or becomes void or unenforceable it shall be deemed not to be or never to have been or formed a part of the Contract and the remaining provisions of the Contract shall continue in full force and effect.
19. FORCE MAJEURE
19.1 The Contract shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage, governmental decisions or actions including but not limited to prohibition of exports or the failure to grant or revocation of applicable export licenses, or labour trouble, strike, lockout or injunction.
19.2 If either party is delayed or prevented from performance of its obligations by reason of this clause for more than one hundred and eighty (180) consecutive days, either party may terminate the then unperformed element of the Contract by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered as at the date of termination. Company may deliver by instalments and if so each delivery shall constitute a separate Contract and failure by Company to delivery any one or more of the instalments in accordance with their terms shall not entitle Buyer to terminate the whole of the Contract or treat it as repudiated.
20. VARIATION
Any variation to the Contract shall only be effective if in writing and signed by authorised representatives of both parties.
21. WAIVER
No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
22. THIRD PARTY RIGHTS
Save to the extent expressly set out in the Contract, the Contract is not intended nor shall it create any rights, entitlement, claims or benefits enforceable by any person that is not a party to it and the rights set out in the Contract (third Party Rights) (Scotland) Act 2017 shall not apply.
23. NOTICES
Notices may be served by letter, telex, fax or e-mail and are deemed served the next working day after despatch.
24 COMPLIANCE
In connection with this Contract, Buyer shall not pay or give, offer to pay or give, promise to pay or give, or authorise the payment or giving of any money, fee, commission, remuneration or other thing of value to or for the benefit of any person, including Government Officials, in order to influence an act or decision of any person or Government Official, or cause any person or Government Official to act or fail to act in violation of his lawful duty, or cause any person or Government Official to influence an act or decision of the government, for the purpose of securing an improper advantage, or in violation of any applicable law, decree, ordinance, rule, regulation or order, including without limitation the UK Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act and any other anti-corruption laws, applicable to either Party, its Affiliates, its directors, officers, employees, consultants or agents. Buyer shall inform Company immediately if there has been any request or demand for any unwarranted financial or other type of gain that has been received by Buyer in connection with this Contract. In the event of a violation of this clause 24, Company shall have the right to terminate this Contract immediately upon written notice to Buyer. This termination right is without prejudice to other remedies which Company may have under this Contract or its governing law.
25 DATA PROTECTION
25.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 25 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
25.2 The Data Controller will ensure that all required consents and notices are in place to enable the lawful transfer of Personal Data to the Data Processor for the duration and purposes of the Contract.
25.3 Without prejudice to the generality of this clause, the Data Processor shall, perform its Data Processing obligation under these conditions by processing Personal Data only on the written instructions of the Data Controller unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to the processing of Personal Data (Applicable Laws). When relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Data Processor shall promptly notify the Data Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit The Data Processor from so notifying the Data Controller.
25.4 Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of Data Processing as well as the risk of carrying likelihood and severity for the rights and freedoms of natural persons, the Data Processor shall have in place appropriate technical and organisational measures to ensure a level of security appropriate to that risk.
25.5 The Data Processor shall take all reasonable steps to ensure that access to Personal Data is strictly limited to those individuals who need to know/access it for the purposes of the contract. All personnel who have access to and/or process the Personal Data shall be subject to confidentiality undertakings.
25.6 The Data Processor shall not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Data Controller has been obtained and the following conditions are fulfilled:
a.the Data Processor has provided appropriate safeguards in relation to the transfer;
b.the Data Subject has enforceable rights and effective legal remedies;
c.the Data Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
d.the Data Processor complies with reasonable instructions notified to it in advance by the Data Controller with respect to the processing of the Personal Data;
25.7 The Data Processor shall not appoint any third party processor of Personal Data under this agreement except with the prior written consent of the Data Controller and subject to the follow provisions:
a.The Data Processor shall carry out adequate due diligence to ensure that the Sub processor is capable of providing the level of protection required by these terms; and
b.The agreement between the third party processor and the Data Processor shall governed by a written contract including terms which offer at least the same level of protection as those set out in these terms; and
c.The Data Processor shall remain fully liable for all acts and omissions of any third party processor appointed by it pursuant to this clause.
For the purposes of this clause ‘third party processor’ shall mean any party which is not a member of the Company or Buyer.
25.8 The Data Processor shall assist the Data Controller, at no cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators
25.9 Data Processor shall maintain complete and accurate records and information to demonstrate its compliance with this Clause 23. The Supplier shall allow for audits by the Company or the Company’s designated auditor.
25.10 Data Processor shall notify the Data Controller without undue delay on becoming aware of a Personal Data breach
25.11 Each Party (Indemnifying Party) shall be responsible for and shall save, defend and hold harmless the other party (Indemnified Party) from and against all claims, losses, damages, costs (including legal costs) expenses, liabilities, fines, penalties, and sanctions in respect of:
a.Any breach of the Indemnifying Party’s obligations under these conditions or Data Protection Legislation; or
b.Any act or omission relating to the use of Personal Data which is contrary to the instructions of the relevant Data Controller.
25.12 Data Processor shall at the written direction of the Data Controller, delete or return Personal Data and copies thereof to the Data Controller on termination of the agreement unless required by Applicable Law to store the Personal Data.
25.13 The Company may, at any time on not less than 30 days’ notice, revise this Clause 23 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement)
26. GOVERNING LAW
The construction, validity and performance of this Contract shall be governed by and construed in accordance with Scots law and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.
THIS DOCUMENT IS SUBJECT TO CHANGE WITHOUT FORMAL NOTICE.
