SEROCOLD SERVICE AGREEMENT
These are the terms and conditions referred to in the Order Form completed by us, Serocold Limited, and you, the Customer, for the provision of the Hardware and Services referred to in the Order Form. These terms and conditions are referred to as the “Terms” and with the Order Form and the documents referred to in the Terms comprise the “Agreement”.
1 DEFINITIONS & INTERPRETATION
1.1 In this Agreement, the terms defined in the Order Form (as defined below) shall have the meaning given to them in the Order Form and the following terms shall have the following meanings:
“Additional Charges”: any charges or expenses payable by the Customer additional to those listed in the Order Form.
“Assumptions”: Assumptions/Key Points described in Statement of Work in the form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any other assumptions in any similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges”: the amounts payable for the Software Services, the Professional Services and/or the Hardware as set out in the Order Form.
“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.
“controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures”: as defined in the Data Protection Legislation.
“Customer Deliverables”: Customer Deliverables (in the final form in which they are delivered) described in Statement of Work form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any specific customer deliverables referred to in any similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier
“Data Protection Legislation”: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Dependencies”: the Key Dependencies/Prerequisites described in Statement of Work in the form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any dependencies in similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier.
“Due Date”: the due date for payment of invoices by the Customer as referred to in the Payment Terms in the Order Form or if none is referred to 14 days following the date of invoice.
“Effective Date”: the Effective Date as set out in the Order Form and being the date of this Agreement.
“End Customer Terms”: the Supplier End Customer Terms at as may be amended from time to time.
“EU” the member states of the European Union as comprised from time to time.
“Initial Term”: the initial term of this Agreement as set out in the Order Form.
“Hardware”: the hardware products in the Order Form and all substitutions, replacements or renewals, and manuals and instructions.
“Hardware Delivery Date” the date for delivery of the Hardware specified in the Order Form.
“Hardware Fee”: the Charges relating to the purchase of the Hardware.
“Intellectual Property Rights”: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.
“Normal Business Hours”: 9.00 am to 6.00 pm local UK time, each Business Day.
“Professional Services”: the professional services in the Order Form and any additional services and training from time to time ordered by the Customer.
“Professional Services Fee”: the Charges relating to the Professional Services.
“Services”: together and each of the Software Services and the Professional Services.
“Software Services”: the software services in the Order Form and any other software necessary to deliver the Services.
“Software Services Fee”: the Charges relating to the Software Services.
“Subprocessor”: means any person (including any third party and any Supplier Affiliate but excluding an employee of the Supplier or any of its sub-contractors) appointed by or on behalf of the Supplier or any Supplier Affiliate to process Supplier Customer Data on behalf of the Customer in connection with the supply of any Services and/or the provision of Hardware.
“Supplier Affiliate”: means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the Supplier, where ‘control’ is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Supplier Customer Data”: means any personal data of the Customer processed or to be processed by the Supplier pursuant to the supply of any Services.
“Serocold Account”: Serocold’s bank account to which payment of the Charges and any Additional Charges. “UK Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.6 Any words following the terms including or include or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms or similar expression.
1.7 A reference to writing or written includes e-mail but not fax.
1.8 References to clauses and schedules are to the clauses and schedules of this Agreement.
2 CONDITIONS WARRANTIES AND ACKNOWLEDGEMENT
2.1 The Customer warrants to Serocold that it is free to enter into and perform the Agreement without requiring the consent licence or permission of any third party (including any government or statutory body) and once executed the Agreement will represent a binding legal agreement upon it.
2.2 The Customer acknowledges and agrees that:
2.2.1 the prices quoted in the Order Form are valid until the Expiry Date only;
2.2.2 other than as contained in this Agreement, Serocold makes no representation, warranty, promise, guarantee or other commitment about or in relation to the Hardware, the Professional Services or the Software Services and has no authority to contract on behalf of the Supplier.
2.3 The Customer further acknowledges and agrees that compliance by Serocold with its obligations in this Agreement is:
2.3.1 conditional upon performance and fulfilment of its obligations on the Dependencies in a timely manner;
2.3.2 subject to as required by the Assumptions.
2.4 Serocold warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations in this Agreement.
3 PURCHASE OF SOFTWARE SERVICES
This clause 3 shall apply if the Customer purchases Software Services.
3.1 By entering into this Agreement, the Customer agrees to be bound by the End Customer Terms which shall apply to the provision of the Software Services by or for Serocold.
3.2 Serocold shall not be responsible to for any loss, damage, cost or expense suffered by the Customer arising from or in connection with any subscription to, or use of, the Software Services.
4 SUPPLY OF HARDWARE This clause 4 shall apply if the Customer purchases Hardware from Serocold under this Agreement
4.1 Subject as provided in these Terms, on the Effective Date Serocold shall sell with full title guarantee and the Customer shall purchase by the Hardware for the Hardware Fee.
4.2 The Customer shall be responsible for any installation of the Hardware.
4.3 Serocold reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Hardware as has not been delivered to reflect any increase in the cost to Serocold which is due to market conditions or any factor beyond the control of Serocold (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Hardware which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Serocold adequate information or instructions.
4.4 Serocold shall use its reasonable endeavours to deliver the Hardware on the Hardware Delivery Date to the Hardware Delivery Address, but the Hardware Delivery Date is an estimate only and time is not of the essence as to the delivery of the Hardware and Serocold is not in any circumstances liable for any delay in delivery, howsoever caused.
4.5 Any samples, drawings, descriptive matter, or advertising produced and any descriptions or illustrations contained catalogues or brochures supplied with the Hardware are produced for the sole purpose of giving an approximate idea of the Hardware described therein and shall not form part of this Agreement or have any contractual force.
4.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Serocold shall be subject to correction without any liability on the part of Serocold.
4.7 Delivery of the Hardware shall be made during Normal Business Hours. Serocold may levy additional charges for any deliveries made outside such hours at the Customer's written request.
4.8 The Customer shall be responsible, at its sole cost, for preparing the Hardware Delivery Address for delivery of the Hardware and for the provision of all necessary access and facilities reasonably required to deliver the Hardware. If Serocold is prevented from carrying out delivery on the Hardware Delivery Date because no such preparation has been carried out, Serocold may levy additional charges to recover its loss arising from this event.
4.9 The Customer Representative shall be present at the Hardware Delivery Address on delivery of the Hardware. On delivery, the Customer shall examine the Hardware to ensure it is in good working order, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection) (“Examination”).
4.10 The Customer shall be deemed to have accepted the Hardware within one Business Day of Examination in accordance with clause 4.9 provided it has not exercised in writing its right of rejection in accordance with clause 4.11.
4.11 If on Examination, the Customer is not satisfied the Hardware complies with the requirements contained in clause 4.9, the Customer shall be entitled to reject the Hardware by notice to Serocold given within one Business Day of Examination in which event:
4.11.1 ownership of and title in the Hardware shall remain with Serocold;
4.11.2 the Customer shall, at its sole cost, return the Hardware to Serocold’s address given in the Order Form.
4.12 If the Customer Representative fails to accept delivery of the Hardware in accordance with clauses 4.9, 4.10 and 4.11 then:
4.12.1 delivery of the Hardware shall be deemed to have taken place on the Hardware Delivery Date;
4.12.2 Serocold may store the Hardware until delivery takes place at the Customer’s sole cost; and
4.12.3 if the Customer fails to accept delivery within three days of the Hardware Delivery Date, Serocold may without any liability to the Customer resell or otherwise dispose of all or part of the Hardware.
4.13 Serocold may deliver the Hardware by instalments, which shall be invoiced and paid for separately in accordance with the Order Form and clause 10. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. Serocold may also ship all Hardware in a single shipment which the Customer shall be obliged to accept.
4.14 Serocold warrants that on delivery (or deemed delivery) the Hardware shall comply with the Order Form and be of satisfactory quality and fit for any purpose held out by Serocold. Serocold shall use reasonable endeavours to remedy any material defect in the Hardware which manifests itself within 12 months from delivery (or deemed delivery) provided that:
4.14.1 Serocold is notified of any defect in writing within 8 Business Days of the defect occurring or of the Customer becoming aware of the defect;
4.14.2 Serocold or its nominated agent is permitted to make a full examination of the alleged defect;
4.14.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling, accident or unauthorised manipulation by any person other than Serocold’s authorised personnel;
4.14.4 the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf;
4.14.5 the defect is directly attributable to defective material, workmanship or design;
4.14.6 Serocold shall not be liable for the Hardware’s failure to comply with the warranty
set out in this clause 4.14 if further use is made of such Hardware after giving notice in accordance with clause 4.14; and
4.14.7 The provisions of this clause 4.14 shall apply to any repaired or replacement Hardware supplied by Serocold.
4.15 Serocold shall, at its option, repair or replace the defective Hardware, or refund the price of the defective Hardware in full.
4.16 Serocold shall not be responsible for any damage to, destruction of, shortage of, or loss of the Hardware in transit.
4.17 The Customer shall not copy, modify, adapt, develop, decompile, reverse engineer, disassemble, create any derivative work, or carry out any act otherwise restricted by Intellectual Property Rights subsisting in the Hardware or the Services.
4.18 The Hardware shall be at the risk of Serocold until delivery (or deemed delivery) to the Hardware Delivery Address. Serocold (or its carrier) shall off-load the Hardware at the Customer’s risk.
4.19 Ownership of the Hardware shall pass to the Customer when Serocold has received the Hardware Fee in full and cleared funds in accordance with clause 10. Risk in the Hardware shall pass to the Customer on delivery.
5 SUPPLY OF PROFESSIONAL SERVICES
This clause 5 shall apply if the Customer purchases the Professional Services from Serocold under this Agreement.
5.1 Serocold warrants that it shall supply the Professional Services including the Customer Deliverables to the Customer with reasonable care and skill and that the Professional Services shall be in accordance with the Order Form.
5.2 Serocold shall use reasonable endeavours to meet any performance dates in relation to the Professional Services but any such performance dates shall be estimates only and time shall not be of the essence for supply of the Professional Services.
5.3 The Customer shall:
5.3.1 co-operate with Serocold in all matters relating to supply of the Professional Services;
5.3.2 provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by Serocold;
5.3.3 provide in a timely manner such information as Serocold may request, and ensure that such information is accurate and complete in all material respects; and
5.3.4 be responsible (at its own cost) for preparing the relevant premises, Hardware and other equipment for the supply of the Professional Services.
5.4 If Serocold’s performance of its obligations contained in this clause is prevented or delayed by any act or omission of the Customer or the Customer's agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to Serocold on demand all reasonable costs, charges or losses sustained or incurred by it, subject to Serocold confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
6 INTELLECTUAL PROPERTY
6.1 The Customer’s rights in the Intellectual Property Rights in or arising out of or in connection with the Services (including but not limited to the Customer Deliverables) shall be limited to use in and for the purposes of the Project and all rights of the Customer shall cease on termination of this Agreement. The Customer shall not have nor shall it assert any right to ownership or title to any Intellectual Property Rights in or arising out of or in connection with the Services (including but not limited to the Customer Deliverables.
7 DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to Serocold) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation and in relation to personal data collected by Serocold from the Customer pursuant to this Agreement but not shared with the Supplier pursuant to clause 8, the Customer is the controller and the Serocold is the processor. The Data Processing Statement sets out the scope, nature and purpose of processing by Serocold, the duration of the processing and the types of personal data and categories of Data Subject.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Serocold and Serocold will ensure that it has all necessary appropriate consents and
notices in place to enable lawful collection of personal data by Serocold on behalf of the Customer for the duration and purposes of this Agreement.
7.4 Without prejudice to the generality of clause 6.1 Serocold shall, in relation to any personal data processed in connection with the performance by Serocold of its obligations under this Agreement:
7.4.1 process that personal data only on the documented written instructions of the Customer provided from time to time unless Serocold is required by Applicable Laws to otherwise process that personal data. Where Serocold is relying on Applicable Laws as the basis for processing personal data, it shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Serocold from so notifying the Customer;
7.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
7.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
22.214.171.124 the Customer or Serocold has provided appropriate safeguards in relation to the transfer;
126.96.36.199 the data subject has enforceable rights and effective legal remedies;
188.8.131.52 Serocold complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
184.108.40.206 Serocold complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
7.4.5 assist the Customer, at the Customer's 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;
7.4.6 notify the Customer without undue delay on becoming aware of a personal data Breach;
7.4.7 at the written direction of the Customer, delete or return personal data and copies
thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the personal data; and
7.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7
7.5 The Customer does not consent to Serocold appointing any third party processor of personal data under this Agreement.
7.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 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).
DATA SHARING, SUBPROCESSOR APPOINTMENT ETC.
The Customer consents to Serocold and the Supplier sharing with each other personal data collected by Serocold under this Agreement.
Serocold shall ensure that it has all necessary appropriate consents and notices in place to enable lawful sharing of personal data with the Supplier pursuant to this clause 8.
The Customer acknowledges and agrees that, with respect to the following categories personal data shared between Serocold and the Supplier pursuant to this clause 8, each of Serocold and the Supplier is a controller: forenames, middle names, surnames, and e-mail addresses, of the Customer’s employees, agents and consultants.
The Customer shall, as necessary for supply of any Services by the Supplier to the Customer instruct the Supplier (and thereby authorise the Supplier to instruct each Subprocessor) to:
process Supplier Customer Data; and
transfer Supplier Customer Data to any country or territory.
For the purposes of and at the same time as it instructs the Supplier pursuant to clause 8.4 the Customer warrants to the Supplier that such instruction in relation to Supplier Customer Data is lawful.
The Customer will if requested or required by the Supplier authorise the Supplier to appoint (and permit each such Subprocessor appointed to appoint) Subprocessors in accordance with and subject to the Supplier’s appointment procedures.
The Customer shall indemnify and keep indemnified Serocold against any breach of the warranty in clause 8.5 and any costs and expenses arising in relation thereto