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Terms of use

data frame



1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.

Commencement Date: the date of the commencement of the provision of the Services

Contract: the Customer’s request for the supply of the Services and the Supplier’s acceptance of it under clause 3.

Customer: the person, firm or company who purchases Services from the Supplier.

Customer’s Authorised Representative: the Customer’s representative appointed in accordance with clause 5.1.

Deliverables: any products or materials developed by the Supplier in relation to the provision of the Services in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Licence: the licence to use the Software

Minimum Period: 12 months.

Pre-existing Materials: materials which existed before the commencement of the Contract.

Renewal Date: each anniversary of the Commencement Date;

Services: the data backup and other services to be provided by the Supplier under the Contract as outlined in the Supplier’s Confirmation, or as otherwise agreed between the parties.

Software: software provided as part of the Services

Supplier: Data-Frame Solutions Ltd registered in England and Wales under company number 5661252 Trading As Data-Frame with registered office at Polkeris, Gover Hill, Mount Hawke, Truro, Cornwall, TR4 8BH.

Supplier’s Authorised Representative: the Supplier’s representative appointed in accordance with clause 4.3.

Supplier’s Confirmation: confirmation of the provision of Services from the Supplier to the Customer, including the provision of the Customer’s unique username and password.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Headings do not affect the interpretation of these conditions.

1.3 Any reference to in writing or written includes by email.

2. Application of conditions

2.1 These conditions shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2 Any variation of the Contract shall be agreed by the parties in writing.

3. Effect of a Request for the Supply of Services

3.1 The Customer’s request for the supply of Services constitutes an offer by the Customer to purchase the Services specified in it on these conditions and must be made by the Customer’s Authorised Representative.

3.2 Any offer made by a Customer in accordance with clause 3.1 shall only be accepted by the Supplier when by way of the Supplier’s Confirmation.

3.2 The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

4. Supplier’s obligations

4.1 The Supplier shall use reasonable endeavours to provide the Services in all material respects in accordance with the terms of the Contract and shall provide the Software pursuant to the terms of the Licence and the Contract.

4.2 The Supplier shall use reasonable endeavours to meet the performance dates agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence of the Contract.

4.3 The Supplier shall appoint the Supplier’s Authorised Representative who shall have authority to contractually bind the Supplier on all matters relating to the provision of the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Authorised Representative throughout the term of the Contract, but may replace them from time to time where reasonably necessary in the interests of the Supplier’s business.

4.4 In the event that the Customer has more data for back up than the allocated space that has been ordered as part of the Services then the customer acknowledges and agrees that the Supplier shall not provide any back up of any data until the Customer either: (i) reduces the amount of data that it is required to be backed up; or (ii) arranges with the Supplier for an increase in the amount of data that is to be backed up.

4.5 Where the Customer is purchasing the Services through a reseller of the Supplier’s as part of a data management package then the reseller and the Customer are responsible for data that is not backed up due to the Customer’s/Reseller’s choice or the Customer’s/Reseller’s failure to set the data quota high enough.

5. Customer’s obligations

5.1 The Customer shall:

(a) co-operate with the Supplier in all matters relating to the provision of the Services and appoint the Customer’s Authorised Representative, who shall have the authority to contractually bind the Customer on matters relating to the Contract;

(b) 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 the Supplier;

(c) provide, in a timely manner, such information as the Supplier may request, and ensure that such information is accurate in all material respects;

(d) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services; and

(e) (where applicable) ensure that any passwords or encrypting keys that have been supplied are kept in a safe and secure place. The Supplier shall not be liable for any damages (including damages for not able to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of any passwords or encrypting keys.

5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect 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), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

5.3 The Customer confirms that the Customer’s Authorised Representative is authorised to agree and enter into the Contract on behalf of the Customer.

5.4 If the Customer elects to choose its own settings then the Supplier shall have no liability for data that is not backed up due to the Customer’s choice or the Customer’s failure to set the data quota high enough.

6. Changes to the Services

6.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.

6.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable period of time, provide a written estimate to the Customer of:

(a) the likely time required to implement the change;

(b) any variations to the Supplier’s charges arising from the change; and

(c) any other impact of the change on the terms of the Contract.

6.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

6.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed, in writing, the matters referred to in clause 6.2.

6.5 The Supplier is entitled (at its sole discretion) to periodically review the level of Service. If the level of Service being provided is insufficient for the Customer’s requirements following that review, the Supplier shall be entitled to suspend the provision of the Services until the Customer agrees to the necessary change to the scope of the Services.

7. Charges and payment

7.1 Clause 7.2 shall apply if the Services are to be provided on a time-and-materials basis and clause 7.3 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 7 shall apply in either case. 7.2 Where the Services are provided on a time-and-materials basis:

(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s standard hourly rates as amended from time to time;

(b) the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 7.

7.3 Where the Services are provided for a fixed price the total price for the Services shall be the amount agreed between the parties in accordance with these terms and conditions. Unless otherwise agreed, the total price shall be paid to the Supplier (without deduction or set-off) in monthly instalments as agreed between the parties. The Supplier shall invoice the Customer annually for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in clause 7.4.

7.4 Any agreed fixed price excludes:

(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the the Supplier (and its employees, agents or sub-contractors) in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier; and

(b) VAT, which the Supplier shall add to its invoices at the appropriate rate.

7.5 Unless otherwise agreed, the Customer shall pay each annual invoice submitted to it by the Supplier in 12 equal monthly instalments, the first of which is due in cleared funds on the Commencement Date.

7.6 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:

(a) charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of The Royal Bank of Scotland PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

(b) suspend all Services until payment has been made in full.

7.7 Time for payment shall be of the essence of the Contract.

7.8 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

7.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

8. Intellectual Property Rights

8.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier or third parties. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract under clause 11, this licence will automatically terminate.

8.2 The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.

8.3 The Customer will obtain licences where necessary for any software that is required to be installed on its computers to enable the Supplier to provide the services.

9. Confidentiality and Supplier’s property

9.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

9.2 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.

9.3 This clause 9 shall survive termination of the Contract, however arising.

10. Limitation of liability

10.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of the Contract;

(b) any use made by the Customer of the Services, the Deliverables or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

10..2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in these conditions excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier’s negligence; or

(b) for fraud or fraudulent misrepresentation.

10.4 Subject to clause 10.2 and clause 10.3:

(a) the Supplier shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss or for any special, indirect or consequential loss costs, damages, charges or expenses however arising (including, but not limited to, any loss attributed to the loss of data by the Customer that was not accessible by the Supplier during the provision of the Services);

(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services in the preceding 12 months.

11. Duration and Termination

11.1 Subject to the provisions of clause 11.2:

(a) the Contract shall continue in full force and effect for no less than the Minimum Period; and

(b) following the Minimum Period, either party may terminate the Contract by providing the other with not less than 30 days’ written notice, and such notice must expire on a Renewal Date.

11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:

(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or

(f) the other party ceases, or threatens to cease, to trade; or

(g) there is a change of control of the other party; or

(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

11.3 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination of the Contract.

11.4 Upon termination of the Contract the Supplier will immediately cease to provide the Services and all information may either be destroyed or, if agreed between the parties, may be sent to the Customer in hard copy for a sum equal to the Supplier’s prevailing fee from time to time.

12. Force majeure

The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), major illness or accident of key employees of the Supplier, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

13. Waiver

13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

14. Severance

14.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

15. Status of pre-contractual statements

Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract and/or in the Licence.

16. Assignment

16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

17. No partnership or agency

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

18. Third party rights

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

19. Notices

Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes, or sent by email fax to the other party’s email address or fax number as notified to the other party from time to time. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email or fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

20. Governing law and jurisdiction

20.1 The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.

20.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.