Cleardata UK Ltd – Standard Terms and Conditions – Archiving Services
In these terms and conditions the following expressions have the following meanings:
Means the agreement between the parties, the terms and conditions of which are set out herein;
Means all or any of those charges payable by You in respect of the Services as set out in the Sales Quotation. which shall include but is not limited to Indexing Charges, Collection & Delivery Charges, Standard Retrieval Charges, Standard Search Charges, Storage Charges and Termination Fees;
Means the date from which this Agreement begins in accordance with clause 2.1;
“Collection & Delivery Charges”
Means the Charges made by Us for the collection of the Items at the rate set out in the Sales Quotation;
“Data Protection Legislation”
(a) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and
(b) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation;
Means 5 Years from the Commencement Date;
“Money You Owe Us”
Means all the money You owe Us from time to time under this Agreement (both actual and prospective) including any unpaid Charges, interest, costs and other expenses;
Means the permanent removal by You of an Item from archived storage with Us under the terms of this Agreement and such expression shall include any Item notified by You to Us as being or having been Permanently Withdrawn or any Item retrieved by Us for You at Your request and not returned to storage within 6 months of such retrieval and the expression “Permanently Withdrawn” shall be construed accordingly;
“Permanent Withdrawal Fees”
Means the Charges made by Us in respect of any Item Permanently Withdrawn and in accordance with the provisions of clause 6.5 at the rate of £3.95 per Item exclusive of VAT;
Means the quotation provided by Cleardata
“Scan on Demand”
Means the electronic scanning by Us at Your request from time to time of particular Items specified by You;
Means the Charges made by Us in accordance with the provisions of clause 6.6 at the rate at the rate of £3.95 per Item exclusive of VAT which, for the avoidance of doubt will not be charged on Items which have already been Permanently Withdrawn;
Means all or any storage items which have been recorded separately whether by barcoding or other form of identification (including any documents contained therein) which You store under this Agreement or which We handle on Your behalf under this Agreement and the expression “Item” shall be construed accordingly;
Means Our premises from which the Services will be provided;
Means those services to be exclusively provided by Us to You under the terms of this Agreement and as set out in the Sales Quotation;
“We”, “Our” and “Us”
Means or relates to Cleardata UK Limited or its successors in title;
“You” and “Your”
Means or relates to you the client
Means all of those premises and locations from which You operate and which You have notified to Us in writing and We have agreed to service either at the Commencement Date or during the term of this Agreement;
Means a person or persons nominated for the purpose by You from time to time and advised Us in writing.
Means to retrieve a file, document or whole box per each request.
Means a day other than a Saturday, Sunday or public holiday in England
2 COMMENCEMENT AND DURATION
2.1 Our Sales Quotation is valid for a period of 3 months from issue and any quotation given by Us shall constitute an offer by Us to provide services to the Customer. Our contract with You shall come into force upon the date on which one of the following occurs:
2.1.1 When We receive the Sales Quotation duly signed by Your Representative;
2.1.2 When We receive written or email confirmation from Your Representative that the Sales Quotation is accepted
2.2 This Agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with clause 8 of this Agreement, shall continue in force for the Initial Period and thereafter shall continue with automatic renewals for additional one year terms unless terminated by either party giving not less than 6 months’ prior written notice to the other, expiring at the end of the Initial Period or on any subsequent anniversary thereof.
3 PROVISION OF SERVICES – OUR OBLIGATIONS
3.1 We shall provide the Services to You from the Commencement Date in accordance with the provisions of this Agreement. We shall use commercially reasonable endeavours to perform the Services within the time agreed by the parties. In no circumstances will We be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the performance of the Services. Time for performance of the Services shall not be of the essence.
3.2 We may determine, at Our sole discretion, whether Items are unsuitable for collection or archiving. Items should be free from mould, pests, vermin or other content that could result in or cause damage to Our employees or to other persons or the Premises or anything thereat or stored therein (including property belonging to third parties) or any other of Our property or property being used by Us or any agent or sub-contractor.
3.3 We may determine, at Our sole discretion, and the manner in which the Services are provided including the route, location and area in which the Items shall be carried and stored. We shall be entitled to re-locate the Items between Our locations at any time, providing the alternate location provides similar facilities and security to the previous location.
3.4 We shall, at Our sole discretion, repack the Items in line with the health and safety legislation or regulations for the time being in force, if the Items are in Our reasonable opinion overweight or there is damage to existing cartons. Such activity will be charged in accordance with Our repacking charges in operation from time to time.
3.5 Our normal working hours are 9.00am to 5.00pm Mondays to Fridays excluding public holidays. The provision of the Services outside Our normal working hours is subject to availability and to prior agreement as to any additional Charges to be paid by You to Us.
3.6 Retrievals, searches and Scan on Demand shall be commenced by Us within 2 Working Days after the day on which We receive Your written request via Our file request procedure which may vary from time to time and is available from Us on request.
3.7 Any index or schedule of the Items prepared by Us shall be copied to and cross checked by You and, in the event that You do not notify Us of any error or omission in the index or schedule within 5 Working Days of Our sending the same to You, then that index or schedule shall be deemed to be both complete and correct.
3.8 There will be a maximum of 200 retrievals or box collections permissible per working day
4.0 PROVISION OF SERVICES – YOUR OBLIGATIONS
4.1 You shall:
4.1.1 co-operate with Us in all matters relating to the provision of the Services and without prejudice to the generality of the foregoing shall provide to Us safe, free, clear, unobstructed and uninterrupted access to and egress from Your Premises in order to facilitate the Services being provided by Us without hindrance, delay, interruption or third party interference;
4.1.2 be responsible for the production of records reasonably requested by Us in order to carry out the provision of the Services including a correct and complete indexed list or schedule in written form in advance of delivery or collection of the Items to be delivered or collected;
4.1.3 be responsible for any data You may enter relating to the Items via Our web portal or for any other information provided to Us by You from time to time in whatever format or using any media;
4.1.4 where relevant, inform Us of any health and safety rules and regulations and any reasonable security requirements that apply at the Your Premises;
4.1.5 ensure that the Items are not dangerous to and will not contaminate persons or property and that We will not need to take any unusual precautions in Handling and storing them and as far as reasonably practicable that the Items will not contain any illegal, immoral, obscene or offensive material;
4.1.6 provide written details of Your Representative and any other persons authorised to make requisition requests in respect of Items;
4.1.7 indemnify Us against claims, charges and demands including legal costs made against Us from any claim on the Items made by a third party. If any third party obtains an interest in the Items You must immediately notify Us in writing.
You warrant and undertake to Us that:
5.1 You are contracting as principal and not as agent and have the authority to engage Us to deal with the Items in accordance with this Agreement and to enter into this Agreement;
5.2 You shall be liable to Us for all costs, claims, liabilities and expenses incurred by Us arising from, or in connection with, any breach of the warranties and undertakings in this clause 5.
6 CHARGES AND PAYMENT
6.1 You shall pay to Us the Charges in the manner and in accordance with the provisions of and at the times set out in this clause 6 and in the Sales Quotation. The final costs may vary as volumes are based on estimates, or information provided and this will depend on the actual amount of Items to be stored by Us.
6.2 The Charges as detailed in the Sales Quotation and shall be fixed for the 12 months of the Agreement. Thereafter the Charges may be subject to review on an annual basis. Thereafter the Charges may be subject to review on an annual basis. Any increase in the Charges which exceeds 3% above the level of the Retail Price Index (‘RPI’) shall be subject to Us having provided You with one month’s prior notice of such increase.
6.3 All Storage Charges due to Us under this Agreement shall be payable by You quarterly in advance and all other Charges shall be payable in arrears unless agreed otherwise in writing and within 14 calendar days of the date of the invoice in respect of the same. For the avoidance of doubt Storage Charges are levied by Us on all Items from receipt until termination of this Agreement whether those Items have been Permanently Withdrawn or otherwise in accordance with clause 6.7.
6.4 All Charges payable to Us by You under this Agreement are stipulated to be exclusive of VAT which shall be charged in addition in accordance with the relevant regulations in force from time to time.
6.5 In respect of any Item which is Permanently Withdrawn from archived storage by You during this Agreement You shall pay to Us a Permanent Withdrawal Fee. For the avoidance of doubt:
6.5.1 prior to any retrieved Item being designated as Permanently Withdrawn no Permanent Withdrawal Fee shall be chargeable but a Standard Retrieval Charge will be applicable together with on-going Storage Charges in respect of that Item both at the rates set out in the Sales Quotation; and
6.5.2 after any retrieved Item has been designated as Permanently Withdrawn a Permanent Withdrawal Fee shall be chargeable.
6.5.3 In any event that You request, or We deem it necessary, that We carry out additional services in relation to the removal of Your Items We will provide a quotation to You for carrying out this additional service. This could include but is not limited to shrink wrapping, palletisation and repackaging.
6.6 On termination of this Agreement howsoever caused You shall pay to Us the Termination Fees calculated on each of the Items which are in archived storage with Us at the date of termination.
6.7 In the event of a Mass Withdrawal, We reserve the right to terminate this Agreement.
6.8 Notwithstanding the provisions of clause 6.6, on termination of this Agreement during the Initial Period or during any notice period thereafter howsoever caused but (without prejudice to the generality of the foregoing) in accordance with clause 2.1 or clause 8.1 You shall pay to Us in addition the remaining Storage Charges which would have been payable by You up to the end of the Initial Period or any notice period (as the case may be) calculated on each of the Items which are in archived storage with Us at the date of termination.
6.9 In any event that You request, or We deem it necessary, that We carry out additional services in relation to the removal of Your Items We will provide a quotation to You for carrying out this additional service. This could include but is not limited to shrink wrapping, palletisation and repackaging.
6.10 Our obligations under this Agreement shall be conditional on You having paid all Money You Owe Us under the terms of this Agreement.
6.11 Subject to the provisions of clause 11.7 You agree not to withhold or reduce any payment to Us on any ground and that if We are not paid for the Services in accordance with the terms of this Agreement then We may (without prejudice to Our other rights or remedies) suspend the provision of all or part of the Services and exercise and enforce Our lien and other rights over the Items.
6.12 We reserve the right to make or raise further or additional charges or to decline to provide the Services where the Services that We are requested to provide differ or vary or go beyond those for which We provided the rates set out in the Sales Quotation. Without prejudice to the generality of such entitlement, such right will arise in the event that it transpires that the information provided by You to Us prior to the provision by Us of such rates was incorrect or incomplete or that any sample provided by You and relied upon by Us was not representative of the Items or any part thereof does not meet the specifications required by Us or You have not complied with or can’t comply with the terms of this Agreement.
6.13 We may retain all or any of the Items in the event that any Money You owe Us is or remains unpaid.
6.14 So long as any Money You owe Us is or remains unpaid and We may charge or continue to charge (as the case may be) for storing and / or dealing with the Items and all the terms and conditions of this Agreement will continue to apply.
7 DATA PROTECTION AND CONFIDENTIALITY
For the purposes of this clause 7, “Client Data” Means any personal data which is transmitted by or on behalf of You to, or is otherwise processed by, Us under this Agreement or which is generated under this Agreement
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
7.2 The Parties acknowledge that if We process any personal data on Your behalf when performing Our obligations under this agreement, for the purposes of the Data Protection Legislation, You are the Data Controller and We are the Data Processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation.
7.3 Without prejudice to the generality of clause 7.1, You warrant and represent:
7.3.1 that You have lawful grounds for processing the Client Data; and
7.3.2 that any instruction, policy or procedure provided by You shall be lawful
You shall indemnify and keep indemnified Us against any liability, fines, claims, demands, expenses and costs (including legal fees) arising as a result of any breach of these warranties, the Data Protection Legislation by You, or Us acting in accordance with any instruction, policy or procedure of Yours. You further accept that We shall have no liability to You where We act on a specific instruction provided by You.
7.4 Without prejudice to the generality of clause 7.1, We shall, in relation to any Personal Data processed in connection with the performance of Our obligations under this Agreement:
7.4.1 process that Personal Data only on Your written instructions unless We are required by the laws of any member of the European Union or by the laws of the European Union applicable to Us to process Personal Data (Applicable Laws). Where We are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, We shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You;
7.4.2 ensure that We have in place appropriate technical and organisational measures, 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 (those measures may include, 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 engaged by Us who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
7.4.4 not transfer any Personal Data outside the European Economic Area unless Your prior written consent has been obtained and the following conditions are fulfilled:
18.104.22.168 evidence of appropriate safeguards in relation to the transfer has been provided;
22.214.171.124 We comply with Our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
126.96.36.199 We comply with reasonable instructions notified to Us in advance by You with respect to the processing of the Personal Data;
7.4.5 assist You (subject to you meeting Our reasonable costs) 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 You without undue delay on becoming aware of a Personal Data breach;
7.4.7 at Your written direction, delete or return Personal Data and copies thereof to You 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 Our compliance with this clause 8 (and allow for audits by You or Your designated auditor).7.9 Each party undertakes to the other to treat as confidential and not to make use of any information relating to the business of the other which comes to its knowledge as a result of this Agreement and its performance and shall exercise proper commercial prudence in preserving such confidentiality.
7.5 Neither party shall use or disclose any information of the other which comes into its possession under or in respect of this Agreement and which is of a confidential nature save as may be necessary for the provision of the Services, provided that this obligation shall not apply to information which the recipient can prove was in its possession at the date it was received, or obtained, or which the recipient obtained from some other person with good legal title thereto, or which is in or comes into the public domain otherwise than through the default or negligence of the recipient, or which is independently developed by or for the recipient or which the recipient is compelled to disclose by law.
7.6 The obligations set out in clause 7.5 shall survive termination of this Agreement and continue in force without limitation in time.
8.1 Either party (“the Terminating Party“) may without prejudice to its other rights and remedies terminate this Agreement with immediate effect by notice in writing to the other party (“the Defaulting Party“) if the Defaulting Party:
8.1.1 is in material breach of this Agreement and such breach (if capable of remedy) has not been remedied within 28 calendar days of receiving a notice from the Terminating Party specifying the breach;
8.1.2 Makes any voluntary arrangements with its creditors or becomes subject to an administration order or goes into liquidation, whether voluntary or compulsory (other than for the purposes of reconstruction or amalgamation) or an encumbrancer takes possession of or a receiver is appointed in respect of its assets;
8.1.3 suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business
8.2 In the event of termination by Us in accordance with clause 10.1 at any time, without prejudice to Our other rights and remedies, You shall pay to Us any Money You owe Us as at the date of termination.
9 CONSEQUENCES OF TERMINATION
9.1 Upon termination of this Agreement for any reason whatsoever:
9.1.1 You shall cease to make use of the Services;
9.1.2 You shall immediately pay to Us all Money You Owe Us at the date of termination; and
9.1.3 You shall pay Us the Termination Fees in accordance with the provisions of clause 6.6.
9.2 We will endeavour to agree with You an exit plan within 20 Working Days of termination. We will, in accordance with the exit plan, remove all Items in storage under this Agreement and deliver them to You or such other party as You shall advise in writing. You shall pay all the Charges in respect of such removal and delivery which We may require to be paid in advance.
9.3 If You fail to comply with the provisions of clause 9.1 or to provide such information and assistance as We may reasonably require in connection with removal or delivery under clause 9.2, We shall be deemed to be an involuntary bailee of the Items. In those circumstances the Items shall be at Your sole risk and You agree that We may permanently dispose of the Items in such manner as We in Our absolute discretion may determine both at Your expense and without further notice to You.
9.4 Without prejudice to the generality of clause 9.4 You agree that We may permanently dispose of the Items by:
9.4.1 delivery to Your Premises or other business address;
9.4.2 pulping; or
9.4.3 such other means as appears to Us to be cost effective.
9.5 You agree that such disposal in accordance with clauses 9.3 and 9.4 is reasonable as the Items have no value to Us and if You are not prepared to pay for and remove or to store the same then We cannot be expected to do so. You will pay to Us all costs and Charges including any legal and all other costs incurred in disposing of the Items and indemnify Us against any and all claims and expenses made against or incurred by Us arising out of or relating to such disposal.
10 FORCE MAJEURE
10.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this Agreement to the extent that the delay or non-performance is due to force majeure provided that:
10.1.1 the relevant party has used reasonable endeavours to avoid and mitigate the effects of the force majeure and to carry out its obligations under this Agreement in any other way that is reasonably practical; and
10.1.2 the party suffering a force majeure event has promptly given written notice to the other party containing full particulars of the nature and the extent of the circumstances giving rise to the force majeure event.
10.2 Upon notice by the party suffering a force majeure event to the other party of the circumstances giving rise to force majeure, the parties shall enter into bona fide discussions with a view to alleviating the effects of the force majeure event or to agreeing such alternative arrangements as may be fair and reasonable. If the force majeure event prevails for a continuous period in excess of six weeks after the date on which the force majeure begins, the party not suffering the force majeure event will be entitled to terminate this Agreement by giving at least two weeks’ written notice to the other.
We are unable accurately to assess the value to You of the Items and accordingly We advise You to effect and maintain adequate insurance cover in respect of loss of or damage to the Items. Your attention is in particular drawn to the provisions of this clause 11.
11.1 Nothing in this Agreement shall limit or exclude either party’s liability for fraud or for death or personal injury resulting from its negligence or to the extent not permitted by law.
11.2 Save as expressly provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
11.3 Our total liability in the case of loss of or damage to an individual Item shall be limited to the lesser of:
11.3.1 £1 per box of documents affected; or
11.3.2 the amount of actual loss or damage sustained; or
11.3.3 the direct cost of replacement or repair of the relevant Item, excluding the cost of acquisition or reinstatement of any data or other intangible property and any other value to You of such Item.
11.4 Our maximum aggregate liability to each other in contract, tort (including negligence) or otherwise arising out of this Agreement in relation to or arising out of all breaches occurring during any contract year shall be limited to the annual aggregate of the Charges paid, provided that in any event neither party will be liable for a loss which could have been avoided following reasonable advice and instructions from the other party.
11.5 We shall have no liability under or in connection with this Agreement in respect of:
11.5.1 loss of profits, loss of business, loss of revenue, loss of contract, loss of goodwill, loss of anticipated earnings or savings whether direct, indirect or consequential; or
11.5.2 loss of use or value of any data or equipment including software, wasted management, operation or other time whether direct, indirect or consequential; or
11.5.3 any indirect or consequential loss howsoever arising.
11.6 We shall not be responsible for any failure to provide the Services in accordance with the provisions of this Agreement or for any delay in such provision arising out of or contributed to by any of the following:
11.6.1 late arrival or non-arrival of Items from You or a third party;
11.6.2 defects in work carried out by Us which You have undertaken to check or which is submitted to You by Us for checking.
11.7 You agree to check the Items delivered by Us within 20 calendar days of Your receipt of the same and to notify Us in writing within a further 10 calendar days of any missing or damaged Items or queries concerning the same failing which You will be deemed to have accepted the same and accepted the quality of the Services provided by Us for the purpose of clause 6.10 and this clause 11.
11.8 Where You collect the Items from the Premises You agree to check all Items collected upon collection and to notify Us in writing immediately of any missing or damaged Items or queries concerning the same.
11.9 You agree to pay in full and indemnify Us against any and all claims of any nature (including legal costs and interest) made against Us from time to time by any third parties in relation to the Items and that such liability to pay and indemnify shall extend to payment to Us of all costs or expenses incurred (including legal costs and interest) and charges raised by Us as a result of such third party claims including any incurred by reason or as a consequence of Our compliance with any court order or judgment. Where any third party claim extends to or causes the retention or storage by Us of the Items, You shall continue to be liable for all Charges chargeable by Us for such extended or continued retention or storage.
11.10 The provisions of this Clause 11 shall continue to apply notwithstanding the termination of this Agreement howsoever arising.
12 ASSIGNMENT AND SUB-CONTRACTING
12.1 We may assign all or any of the benefit of this Agreement.
12.2 We may sub-contract or delegate the performance of all or any of Our obligations under this Agreement without Your consent provided that We shall remain liable for such performance.
12.3 You shall not assign all or any of Your rights or obligations under this Agreement to any other person without Our prior written consent, such consent not to be unreasonably withheld.
13.1 We are not a common carrier. We do not hold Ourselves out as a common carrier or a contract carrier and We do not contract as such. You agree that You will not hereafter assert or claim that We are or were common carriers/contract carriers or that We contracted or that We should be held liable as such.
14 SERVICE OF NOTICE
14.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
14.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by registered post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
14.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.1 Failure by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or of any other right on any other occasion.
15.2 If any term or provision of this Agreement is or becomes invalid, illegal or unenforceable the remainder of this Agreement shall survive unaffected.
15.3 This Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each party.
15.4 This Agreement sets out the entire agreement between the parties with respect to the subject matter of this Agreement and, supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties. The terms and conditions contained or referred to in this Agreement relating to the provision of the Services shall be to the exclusion of any terms submitted at any time by either party whether printed on or sent with any order form or otherwise.
15.5 The parties shall, and shall use all reasonable endeavours respectively to procure that any necessary third party shall do, execute and perform all such further deeds, documents, assurances, acts and things as either of the parties hereto may reasonably require by notice in writing to the other party to carry the provisions of this Agreement into full force and effect.
15.6 Each of the parties is an independent contractor and nothing in this Agreement shall imply that there is any relationship between the parties of partnership or of principal / agent or of employer / employee nor are the parties engaging in a joint venture. Neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this Agreement.
15.7 This Agreement is enforceable by the original parties to it and by their successors in title and permitted assignees.
15.8 This Agreement shall be governed by, construed and interpreted in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
V3 25th April 2019