Standard Maintenance Terms & Conditions
Please read these Terms and Conditions and any applicable Supplemental Terms and Conditions carefully. The following Terms and Conditions apply to all contracts that Dare may enter into from time to time for the supply to the Customer of Services provided or to be provided, Equipment sold or to be sold and/or Software licensed or to be licensed. The definitions and the rules of interpretation set out in clause 19 shall apply to these Terms and Conditions and all Contracts created in accordance with them.
1. Formation of Contract
1.1 These Terms and Conditions shall apply to, and be incorporated into, each Contract. No addition to, variation of, exclusion or attempted exclusion of any term of a Contract shall be binding on Dare unless it is in writing and signed by a director of Dare. The parties agree that these Terms and Conditions will prevail over any inconsistent terms and conditions contained in or referred to in, the Customer’s purchase order, confirmation of order or specification, or as may otherwise be implied by law, trade, custom, practice or a course of dealing.
1.2 The Customer’s purchase order constitutes an offer by the Customer to purchase the Products specified in it on the basis of the Offer Document, these Terms and Conditions and any Supplemental Terms (if any) (“Contract Terms”); accordingly, a Contract for the supply and purchase of those Products in accordance with the Contract Terms shall be established on the earlier of: (1) the execution of the Offer Document by the parties; and (2) Dare’s commencement or execution of work pursuant to the Offer Document.
1.3 For the avoidance of doubt, where the relevant Offer Document or agreement has not been signed by either (or both) of the Customer and Dare, the Contract Terms will nevertheless apply to the Contract provided that the Customer has had prior notice of them (regardless of whether the Customer has indicated its acceptance in writing). By instructing Dare to supply any Products and/or by paying any Charge(s) or invoice(s) of Dare, whether set out in the Contract or otherwise, the Customer indicates its acceptance of the Contract Terms.
1.4 The supply of certain Products by Dare are subject to Supplemental Terms which will (where applicable) form part of the Contract and will supplement and (unless expressly stated otherwise in the relevant Supplemental Terms) incorporate these Terms and Conditions. In the case of a conflict or ambiguity between: (i) the Offer Document; (ii) any Project Plan comprised within an Offer Document; (iii) any applicable Supplemental Terms; and (v) the Terms and Conditions, then a term contained in a document higher in the list (starting at (i)) shall have priority over one contained lower in the list (ending at (v)).
2. Specification and Change Control
2.1 Any Products to be supplied by Dare shall be supplied by the means and in accordance with the timetable set out in the Offer Document. Where no means are specified, the relevant Products shall be supplied by such means as Dare determines appropriate and where no timetable is specified, the relevant Products shall be supplied within a reasonable time. Whilst Dare will use its reasonable endeavours to provide or (as the case may be) deliver the relevant Products by any date or within any period agreed upon, such dates and periods are estimates only, given in good faith, and Dare will not be liable for any failure to deliver by or within such a period nor shall delays in the delivery of a Contract entitle the Customer to refuse to take delivery or otherwise accept any Products. Time for delivery shall not be of the essence of the Contract.
2.2 The description of any Product contained in any order form, invoice, descriptive matter, specifications, catalogue or advertising material published or issued by Dare is for identification only and the use of such description will not constitute a sale by description. Any typographical or other error or omission in any such literature or any other document issued or provided by Dare may be corrected by Dare without any liability on the part of Dare.
2.3 Dare reserves the right to supply Equipment or Software which differs from the specifications agreed between the parties and/or to modify any specifications in respect of Services, provided that this does not materially affect the performance of the relevant Equipment or Services.
2.4 If at any time after the acceptance of a Contract pursuant to clause 1.2, the scope of a Product changes or if either party wishes to change the scope of the same, it shall submit details of the change or the requested change to the other in writing. If either party identifies or requests a change to the scope or execution of a Product, Dare shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Charges arising from the change;
(c) the likely effect of the change on the Project Plan; and
(d) any other impact of the change on the terms of the Contract.
2.5 If Dare identifies or requests a change to the scope of a Product, the Customer shall not unreasonably withhold or delay consent to it. Any request by the Customer for the cancellation or reduction of the scope of a Product to be supplied by Dare to the Customer will only be accepted at the discretion of Dare and in any case on the condition that any costs or expenses incurred by Dare up to the date of such cancellation or variation (and all loss or damage resulting to Dare by reason of such cancellation or variation and including, for the avoidance of doubt, the payment identified in clause 14.6) will be paid by the Customer to Dare forthwith. Acceptance of such cancellation or variation will only be binding on Dare if in writing and signed by a director of Dare.
2.6 If the Customer wishes Dare to proceed with the change, Dare has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
3.1 Unless otherwise stated in writing, quotations are valid for 30 days from the date of issue and are exclusive
(a) VAT and any other relevant taxes which Dare shall add to its invoices at the appropriate rate from time to time; and
(b) any chargeable expenses and disbursements which are incurred by Dare personnel on behalf of the Customer including but not limited to hotels, subsistence, travelling, mileage at 45p per mile, supplies and the cost of any materials or services reasonably and properly provided by third parties required by Dare for the supply of any Products. Such expenses, materials and third party services shall be invoiced by Dare.
3.2 Subject to 14.2.2, Dare may:
(a) where the Offer Document relates to Services for the support of equipment or software (including any Equipment and Software) (“Support Services”), at any time by giving the Customer fourteen (14) days written notice, increase its prices to take account of any matter or matters that Dare consider to be a significant change in the scope, complexity or scale of the Support Services and such increased prices ruling at the date Dare notifies the Customer of the change in the scope of the Support Services shall be substituted for the previous Contract price; and/or
(b) where the Offer Document relates to Support Services and includes an Initial Term, at any time after the first anniversary of the Commencement Date, Dare may increase the Charges by giving the Customer not less than 30 days’ prior written notice provided that the increases shall be no more frequent than once in any 12-month period; and/or
(c) at any time by giving the Customer fourteen (14) days’ written notice, increase its prices to take account of any increase in the direct cost to Dare of supplying the Products (including, but not limited to, any change in telecommunication provider rates or Third Party Software Vendor licence fees or other third party costs) and such increased prices ruling at the date of supply of the relevant Products by Dare shall be substituted for the previous Contract price.
4.1 The Customer shall pay the Charges to Dare in accordance with the Contract Terms and:
(a) Clause 4.2 shall apply if Services are to be provided on a time-and-materials basis; and
(b) Clause 4.3 shall apply if Products are to be provided for a fixed price.
The remainder of this clause 4 shall apply in either case.
4.2 Where the Services are provided on a time-and-materials basis:
(a) the Charges payable for the Services shall be calculated in accordance with Dare’s agreed daily fee rates (as amended from time to time);
(b) Dare’s agreed daily fee rates are calculated on the basis of Normal Working Hours;
(c) Dare shall be entitled to charge at an overtime rate for part days and for time worked by members of the project team outside of Normal Working Hours on a pro-rata basis. Overtime will be calculated by multiplying Dare’s agreed time-based overtime charging rates (as set out in the Offer Document and/or notified by Dare to the Customer from time to time) by the time spent by Dare’s personnel performing the Services; and
(d) Dare shall invoice the Customer monthly in arrears for its Charges for time and materials, subject to any cap where the Services have been agreed in writing by the parties to be provided on a capped time-and-materials basis (together with expenses and VAT where appropriate) for the month concerned.
4.3 Where Products are provided for a fixed price, the price for the Products shall be the amount set out in the Offer Document or in Dare’s quotation. Where the price envisages deposit payments, payment in instalments (which Dare may refer to as a “payment plan”) and/or at Project Milestones, the Charges shall (unless otherwise agreed in writing) be paid to Dare in advance, in the instalments as set out in the Offer Document or on it achieving the corresponding Project Milestone as applicable. On achieving a Project Milestone, Dare shall invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
4.4 The Customer shall pay each invoice submitted to it by Dare in full, and in cleared funds:
(a) within thirty (30) days of receipt; or
(b) in accordance with such other payment terms as may be specified in the Offer Document.
4.5 Time for payment shall be of the essence of the Contract.
4.6 Without prejudice to any other right or remedy that Dare may have, if the Customer fails to pay Dare on the due date Dare may charge interest on such sum from the due date for payment at the annual rate of 4% above the Bank of England base rate from time to time (or at a rate of 4% in the event that the base rate of that bank is less than zero), accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment.
4.7 All payments payable to Dare 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 a Contract.
4.8 All amounts due under a Contract shall be paid by the Customer to Dare in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Dare may, without prejudice to any other rights it may have, set off any liability of the Customer to Dare against any liability of Dare to the Customer, whether such liability is present or future, liquidated or unliquidated, and whether or not either such arises under the Contract, another agreement between the parties, or otherwise.
5. Third-Party Contracts
5.1 If any payments due to Dare in respect of a Product is to be paid by a third party then the Customer agrees that immediately on delivery of the Product in question the Customer will sign the acceptance note for the leasing company or other third party and will generally take all steps as may be necessary to ensure that payment is made to Dare for the relevant Products in accordance with the Contract Terms.
5.2 It is agreed and acknowledged by Dare and the Customer that:
(a) in providing the Services and/or suppling Equipment to the Customer, Dare may enter into binding contractual commitments (“Third Party Contracts”) on the Customer’s behalf with hardware and other manufacturers, telecommunication providers and other third parties (“Third Party Providers”);
(b) the Customer acknowledges that Third Party Contracts create rights and obligations between Dare and Third Party Providers; and
(c) notwithstanding that the Customer is not a party to the Third Party Contracts, the Customer is and shall be at all times responsible and held liable for any and all call and data charges, termination fees and any other charges and fees that may be charged by the Third Party Provider to Dare in respect of Equipment or Services provided to the Customer pursuant to the Third Party Contracts (“Third Party Charges”) and the Customer undertakes to pay such sums on demand and on an indemnity basis and to defend, indemnify, keep indemnified and hold Dare harmless against any and all third party claims, actions, and proceedings, and all losses (including loss of profit), damages, expenses and costs (including without limitation legal and other professional costs) associated with such Third Party Charges.
6. Software supply
6.1 Where Software supplied is Third Party Software, Dare shall supply or otherwise make available to the Customer a copy of the Third Party Software Licence on request from the Customer, whether by means of the Third Party Software Vendor’s website or otherwise. In supplying any such Third Party Software Licence, Dare shall be permitted to redact such information contained in the Third Party Software Licence as it deems reasonably necessary to protect its Confidential Information. The Customer shall be responsible for ensuring that the Customer’s use of the Third Party Software is properly licensed.
6.2 The parties acknowledge that the Third Party Software Licence will (in addition and without prejudice to any terms relating to the Third Party Software set out in the Offer Document) stipulate the Customer’s rights to use the Third Party Software, and the restrictions on the Customer’s use of the Third Party Software.
6.3 The Customer must abide by the terms of the Third Party Software Licence and any terms relating to the Third Party Software set out in the Offer Document and ensure that all persons using the Third Party Software supplied (or otherwise made available) by Dare to the Customer abide by such terms.
6.4 The parties acknowledge that the Third Party Software Licence creates rights and obligations between the Customer and the Third Party Software Vendor, and that Dare is not a party to the Third Party Software Licence.
6.5 Dare shall as far as it is able pass on to the Customer the benefits of any Third Party Software Vendor warranties in relation to any Third Party Software. Dare gives no warranties or guarantees and makes no representations concerning the Software, and all such warranties, guarantees, representations, and all conditions and any other terms whatsoever implied by statute or otherwise, are hereby excluded from the Contract between Dare and the Customer to the fullest extent permitted by applicable law.
7. Commissioning and Acceptance Testing
7.1 Where acceptance testing is expressly envisaged as being applicable in the Offer Document (but not otherwise) then, prior to launch of a Product, Dare shall undertake such acceptance tests in relation to the relevant Product as it deems fit, and as may be reasonably required by the Customer. The acceptance criteria for such tests shall be objective. The Customer shall promptly provide such assistance as Dare may reasonably require in order to complete such acceptance tests. In the event that any acceptance tests are not successfully completed, Dare shall be given the opportunity to retest such elements which were not successfully completed and/or (with the consent of the Customer, not to be unreasonably withheld or delayed) to modify the acceptance tests or acceptance criteria. Dare shall notify the Customer once all acceptance tests have been successfully completed (a “Commissioning Notification”) and shall provide reasonable evidence of such completion on request. If, within 10 Business Days of receipt of a Commissioning Notification the Customer has not provided Dare with a confirmation as to whether or not the tests have been successfully completed, then a confirmation of the successful completion of the relevant acceptance tests shall be deemed to have been served on Dare by the Customer.
7.2 Acceptance of a Product shall be deemed to have occurred on whichever is the earliest of: (i) the date that the Customer notifies (or pursuant to clause 7.1 is deemed to have notified) Dare that the relevant acceptance tests have been successfully completed; or (ii) the date that the relevant Product is put into commercial or operational use.
8. Customer’s Obligations
8.1 The Customer shall:
(a) co-operate with Dare in all matters relating to the Contract and appoint an authorised representative of the Customer who has the authority to bind the Customer contractually on matters relating to the Contract;
(b) provide in a timely manner such access to the Customer’s premises, systems and data (including, where agreed in the Contract, providing Dare with access to the Customer’s systems by use of remote desktop support software) and such office accommodation and other facilities, as is requested by Dare;
(c) provide in a timely manner such information as Dare may request, and ensure that such information is accurate in all material respects;
(d) comply with any Mandatory Policies that are notified to it from time to time;
(e) take all steps to ensure the welfare and safety of any Dare Personnel at any premises of the Customer and ensure that its premises and all plant and equipment which is used by Dare’s Personnel or with which they may come into contact or to which they may be exposed complies with the Health and Safety at Work Act 1974, all relevant statutory provisions (as defined in that Act) and all other obligations imposed by statute and common law relating to health and safety; and
(f) be responsible (at its own cost) for the performing or procuring the performance of the Customer Responsibilities including preparing the relevant premises for the supply of Products.
8.2 If Dare’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s Personnel (including any failure to perform or procure the performance of the Customer Responsibilities or any delays or postponements by the Customer of any installation dates specified by Dare, of dates for scheduled service visits or otherwise) then:
(a) Dare shall be granted relief from any failure of it to carry out the Services, deliver the Products concerned or otherwise comply with its obligations under the Contract; and
(b) the Customer shall be liable to pay to Dare on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of opportunity to deploy resources elsewhere), subject to Dare confirming such costs, charges and losses to the Customer in writing.
9. Limitation of Liability
9.1 The Customer agrees and acknowledges that the level of the Charges takes fully into account the limits of Dare’s entire financial liability (set out below) for the applicable Products supplied or to be supplied to the Customer, the Customer’s use of them, and for anything else in connection with any Contract.
9.2 Nothing in the these Terms and Conditions or in any Contract Terms shall limit or exclude the liability of Dare in respect of: (i) death or personal injury caused by negligence; or (ii) fraud; or (iii) any other liability which cannot by law be limited or excluded.
9.3 Subject to Clause 9.2, Dare shall not be liable to the Customer whether in contract, tort (including for negligence or breach of statutory duty), or for negligent or innocent misrepresentation, or otherwise, for any of the following types of loss or damage, even if Dare has been advised of the possibility of such loss or damage:
(a) loss or depletion of goodwill or reputation; or
(b) loss of profits, or revenue, or contracts or anticipated savings; or
(c) loss or damage arising from loss, or damage or corruption of data or information; or
(d) loss of use; or
(e) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4 Subject to Clauses 9.2 and 9.3, if the Customer: (1) incurs any loss arising in connection with the performance or contemplated performance of these Terms and Conditions or any Contract (whether in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise and whether or not such claim arises pursuant to an express or implied term of the relevant Contract Terms; and (2) liability for any such loss is established (a “Dare Default”), then the total aggregate liability of Dare to the Customer under the relevant Contract or otherwise shall in no circumstances exceed:
(a) where the Dare Default relates to Equipment or Software supplied by Dare, the sum of the amount paid by the Customer to Dare for the Equipment or Software that is directly affected by the Dare Default; and
(b) where the Dare Default relates to a Service supplied by Dare, the sum of the amount paid by the Customer to Dare for the service element(s) of the Service(s) that are directly affected by the Dare Default (the “Affected Services”) during the preceding twelve months immediately prior to the act or omission giving rise to the loss (or if the event giving rise to the loss occurs during the first twelve (12) months of the Contract, the amount paid by the Customer for the Affected Services during that period).
10. Dare Warranties
10.1 Dare warrants to the Customer that:
it has the legal right and authority to enter into Contracts and otherwise to perform its obligations under the Contract Terms; and
it shall comply with all applicable laws in relation to its performance of Contracts.
11. Customer Warranties and Indemnity
11.1 The Customer warrants to Dare that:
(a) the Customer has the legal right and authority to enter into Contracts and otherwise to perform its obligations under these Terms and Conditions and the Contract Terms;
(b) none of the information, documents, drawings, software, images, content or sounds (together with any database made up of any of these) and other materials owned or controlled by the Customer, embodied in any medium, which are supplied or made available by or on behalf of the Customer to Dare in connection with a Contract infringe any Intellectual Property Rights or any right of confidence, right of privacy or right under Data Protection Law of any person;
(c) in relation to its use of the Equipment and Software, neither it nor any of its employees or associated parties will attempt to or permit any person to reverse engineer, decompile, monitor or in any way replicate the coding, software or functionality of any Equipment or Software;
(d) it has, and shall maintain throughout the term, the full capacity, authority and any necessary licences and approvals under applicable laws to enter into and perform its obligations contained in any Contract; and
(e) it shall comply with all applicable laws in relation to its performance of all Contracts.
11.2 It is acknowledged and agreed by the Customer that:
(a) in respect of Products supplied by Dare, whilst Dare will endeavour to use its experience and expertise to advise the Customer, Dare acts as a supplier to the Customer only. The Customer assumes sole responsibility for ensuring that the Products supplied by Dare meet its requirements and for results obtained from the use of the same by the Customer and for conclusions drawn from such use;
(b) Dare shall not have any obligation or duty, and shall not bear any liability or responsibility, in relation to any of those matters which the Customer expressly undertakes, warrants, or bears responsibility for in the applicable Contract; and
(c) except as expressly set out in the Contract Terms, Dare gives no warranties or guarantees and makes no representations concerning the supply of any Product, and all such warranties, guarantees, representations, and all conditions and any other terms whatsoever implied by statute or otherwise, are hereby excluded from all Contracts between Dare and the Customer to the fullest extent permitted by applicable law.
11.3 The Customer undertakes to defend, indemnify, keep indemnified and hold Dare harmless against any and all third party claims, actions, and proceedings, and all losses, damages, expenses and costs (including without limitation legal costs) associated therewith, where any of the same arise out of or in connection with either the Customer’s use of or access to any Product including those arising out of: (1) the failure of the Customer to observe fully or perform any of its obligations contained in a Contract; or (2) any loss, damage or injury to property or persons caused or contributed to by any act or omission of the Customer or its Personnel; or (3) any breach by the Customer of any warranty, undertaking or other terms or conditions of any Contract.
12. Retention of Title and Risk in the Equipment
12.1 Save in the case of any circumstances where the parties expressly agree in writing to adopt Incoterms in an International Supply Contract, and subject to any agreement in writing by Dare, the risk in Equipment shall pass to the Customer on delivery.
12.2 The following provisions shall, subject to clause 12.3, apply to all Equipment supplied by Dare to the Customer:
(a) upon delivery of the Equipment the Customer shall hold the Equipment solely as bailee for Dare and the Equipment shall remain the property of Dare until such time as the Customer shall have paid to Dare and Dare shall have cleared funds for the full purchase price of all Equipment, whether under the Contract or otherwise. Until this time Dare shall be entitled to recover the Equipment or any part thereof and, for the purpose of exercising such rights, the Customer hereby grants a licence to Dare, its employees and agents (together with appropriate transport) to enter upon the Customer’s premises and any other location where the Equipment is situated and to remove the Equipment;
(b) the Customer is hereby licensed to agree to sell on the Equipment on condition that the Customer shall inform its customer of the provisions of clause 12.2(a). The Customer acts as Dare’s bailee in respect of any such sale and shall immediately upon receipt of the proceeds of sale, and whether or not payment has become due under clause 4, remit to Dare the full purchase price of the Equipment sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for Dare;
(c) the Customer shall maintain an appropriate insurance in respect of the Equipment from the date or dates on which the risk therein passes to the Customer. In the event of any loss or damage occurring while the Equipment remains the property of Dare, the Customer shall immediately on receipt of the insurance monies remit to Dare the full purchase price of the Equipment lost or damaged, less any part thereof which has already been paid, and until such amount has been so remitted, shall hold such amount as trustee and agent for Dare;
(d) the licences granted under this clause 12.2 shall be terminable forthwith at any time upon notice by Dare to the Customer.
12.3 Where the parties expressly agree in writing to adopt incoterms for an International Supply Contract, property in the Equipment shall pass to the Customer in accordance with the provision of the relevant incoterm
13.1 Each party may be given access to Confidential Information from the other party whether in order to exercise its rights or perform its obligations under a Contract, these Terms and Conditions, or otherwise. Confidential Information shall not include information that:
(a) is or becomes publicly known, other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, for the purpose of legal or regulatory proceedings, by any court of competent jurisdiction or by any regulatory or administrative body or the disclosing Party’s insurers (provided that before any such disclosure, the disclosing Party shall, to the extent legally permissible, give the other party reasonable notice of the proposed disclosure).
13.2 Each party shall hold the other’s Confidential Information in confidence for the Term and for a period of five (5) years thereafter.
13.3 Dare shall be entitled to disclose any Confidential Information to its employees, agents and advisors for the purposes of providing Products in accordance with a Contract, or in contemplation of providing such Products, prior to formation of the relevant Contract.
13.4 Each party shall take all reasonable steps to ensure that anyone to whom it provides (or makes available) the Confidential Information of the other party as permitted by these Terms and Conditions complies with the confidentiality provisions of these Terms and Conditions as if they were directly obliged to.
13.5 Dare shall be entitled to make a public announcement concerning the existence, subject matter or terms of any Contract, the wider transactions contemplated by it, or the relationship between the parties, provided that Dare shall make reasonable attempts to agree the contents of the announcement before making it. Nothing in this clause 13.5 shall be construed as limiting either party’s obligations under this clause 12.
14. Duration and Termination
14.1 Each Contract shall commence on the Commencement Date applicable to it. Where the Offer Document includes an Initial Term then unless terminated earlier in accordance with this clause 14, the relevant Contract shall continue for the Initial Term and shall automatically extend for 12 months (“Renewal Term”) at the end of the Initial Term and at the end of each Renewal Term thereafter. Either party may give written notice to the other party, not later than forty five (45) days before the end of the Initial Term or the relevant Renewal Term, to terminate this Contract at the end of the Initial Term or (as the case may be) the relevant Renewal Term. Where the Offer Document does not contain an Initial Term, the Contract shall continue until Dare completes the relevant supply of Products, upon which the Contract shall terminate automatically, subject to earlier termination in accordance with this Clause 14.
14.2 Without affecting any other right or remedy available to it, either party may give notice in writing to the other party terminating a Contract:
(a) immediately, if the other party suffers an Insolvency Event; or
(b) on thirty (30) days’ written notice, if the Customer does not accept any amendments to a
Contract pursuant to clause 3.2; or
(c) on thirty (30) days’ notice, if the party has not for a continuous period of one (1) month been able to perform its obligations as a result of a Force Majeure Event; or
(d) immediately, if the other party commits a breach of any material term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) Business Days of being notified in writing that it is required to do so.
14.3 Without affecting any other right or remedy available to it, Dare may give notice in writing to the Customer terminating the whole (or part) of the Contract immediately if:
(a) the Customer fails to pay any amount due under the Contract or any other contract between Dare and the Customer on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing that it is required to make such payment;
(b) the Customer commits a repeated breach of the Customer’s obligations under a Contract. A repeated breach shall be deemed to be two or more breaches of the same or any three breaches of different obligations of the Customer under one or more Contract(s) within a twelve month period, where each of those breaches have been notified in writing by Dare to the Customer; or
(c) the Customer commits any act or omission which could or might in the sole opinion of Dare bring Dare into disrepute or damage the reputation of Dare; or
(d) the Customer breaches clauses 8, 11, 12, 15 or 16 (or otherwise challenges the Intellectual Property Rights of Dare).
14.4 Without limiting its other rights or remedies, Dare may suspend performance of all or any part of its obligations under a Contract or any other contract between the Customer and Dare if the Customer becomes subject to any of the events listed in clauses 14.2 or 14.3(a) to 14.3(d) (inclusive) or Dare reasonably believes that the Customer is about to become subject to any of them. Dare shall have no liability to the Customer for any losses, damages, expenses or costs that the Customer may incur by reason of such suspension.
14.5 On termination of the Contract for any reason:
(a) save for the licence granted at clause 16.2, all other rights and licences of the Customer under
the Contract shall terminate upon termination of the Contract;
(b) the Customer shall, as soon as reasonably practicable, return or destroy (as directed in writing by Dare) any documents, handbooks or other information provided to it by Dare or data for the purposes of this Contract, including all documents and materials (and any copies) containing, reflecting, incorporating or based upon Dare’s Confidential Information.
(c) the Customer shall at its own cost, as soon as reasonably practicable, return all of the equipment and materials owned by Dare or any third party, failing which, Dare may enter the relevant premises and take possession of them and the Customer shall pay all reasonable expenses incurred by Dare in taking possession of such equipment and materials. Until these are returned or repossessed, the Customer shall be solely responsible for their safe-keeping;
(d) Dare may destroy or otherwise dispose of any of the Customer’s, storage media, software, equipment or other items in its possession unless Dare receives, no later than ten (10) days after the effective date of the termination of this Contract, a written request for their delivery to the Customer. Dare will use its reasonable endeavours to deliver the same to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and provided that the Customer meets any charges that Dare may charge for providing such assistance. The Customer shall pay all reasonable expenses incurred by Dare in returning or disposing of them;
(e) the Customer shall immediately pay to Dare all of Dare’s outstanding unpaid invoices (together with any accrued interest if such invoices are outside their payment terms) and, in respect of Products supplied but for which no invoice has been submitted, Dare may submit an invoice, which (notwithstanding anything to the contrary in the Contract or these Terms and Conditions) shall be payable immediately on receipt of invoice.
14.6 If prior to the expiry of the Initial Term or any Renewal Term, the Customer terminates this Contract for any reason other than as set out in clause 14.2, then in addition to any outstanding amounts payable in respect of clause 14.5(e), the Customer shall be obliged to pay to Dare by way of compensation, the balance of the Charges the Customer would have paid over a period equal to the unexpired residue of the Initial Term or (as the case may be) the Renewal Term immediately prior to the date of termination of this Contract, less such discount as Dare shall reasonably apply to such balance in its discretion to reflect any savings in overheads. Any such payment shall become due within three (3) Business Days of receipt of invoice. Dare and the Customer confirm that any sums calculable and payable pursuant to this clause 14.6 represent a genuine pre-estimate of Dare’s loss.
14.7 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry and shall not affect the continuation after termination or expiry of any provision expressly stated to survive or implicitly surviving termination (including for the avoidance of doubt, clauses 9, 12, 18.13, 18.14 or 19).
15. Data Protection
15.1 For the purposes of this clause 15, “controller”, “processor”, “data subject”, “personal data”, “process” and “processing” shall have the meanings given to them in the Data Protection Law.
15.2 Each party warrants to the other that it will process personal data in compliance with Data Protection Law. This clause 15.2 is in addition to, and does not relieve, remove or replace a party’s obligation under the Data Protection Law.
15.3 The parties acknowledge that for the purposes of Data Protection Law, the Customer shall be the controller and Dare shall be a processor from the point any such personal data is transferred to (or otherwise shared) by the Customer to Dare (“Customer Data”).
15.4 Without prejudice to the generality of clause 15.2, the Customer warrants to Dare that it has the legal right (including all necessary appropriate consents and notices) to disclose all personal data that it does in fact disclose to Dare under or in connection with these Terms and Conditions or any Contract, and that the processing of that personal data by Dare for the purpose of providing any Products, fulfilling any of its obligations under the Contract, and complying with any of its legal and regulatory obligations in accordance with these Terms and Conditions (“Permitted Purpose”) will not breach any Data Protection Law.
15.5 If, notwithstanding the intentions of the parties set out at clause 15.3, Dare processes personal data as a controller, it shall comply with the provisions of the Data Protection Law imposed on a controller.
15.6 Dare shall, in relation to any personal data processed for the Customer in connection with a Contract or pursuant to these Terms and Conditions:
(a) process that personal data only for the Permitted Purpose and otherwise in accordance with the lawful, reasonable and documented instructions of the Customer, unless Dare is required by the laws of any member of the European Union or by the laws of the European Union applicable to Dare to process personal data, in which case Dare shall, to the extent permitted by such law, inform the Customer of that legal requirement before processing that personal data;
(b) having regard to the state of technological development and the cost of implementing any measures, ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such personal data, and against accidental loss or destruction of, or damage to such 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, 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);
(c) ensure that all Personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) ensure that it will not transfer personal data provided to it by the Customer outside of the United Kingdom unless such transfer is undertaken in accordance with applicable Data Protection Law;
(e) 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 Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
(f) notify the Customer without undue delay on becoming aware of a personal data breach.
15.7 In relation to any person (including any third party but excluding an employee of Dare) appointed by or on behalf of Dare to process personal data on behalf of the Customer in connection with a Contract or these Terms and Conditions (each a “Sub-processor”):
(a) Customer acknowledges and hereby authorises Dare to engage in connection with the performance of any Contract those Sub-processors set out in Schedule 1 (“Approved Sub- processors”) to these Terms and Conditions, which includes the identities of those Sub- processors and their country of location;
(b) Dare may amend and update the Approved Sub-processors list by providing written notice to the Customer of any proposed new Sub-processor. The Customer may notify Dare promptly in writing within ten (10) Business Days after receipt of Dare’s notice if the Customer has a reasonable basis for objecting to a new Sub-processor. Dare shall not appoint (or disclose any Customer Data to) that proposed Sub-processor until reasonable steps have been taken to address the objections raised by the Customer and the Customer has been provided with a reasonable written explanation of the steps taken;
(c) prior to giving any Sub-processor access to any personal data in respect of which the Customer is controller (“Customer Data”), Dare shall ensure that such Sub-processor has entered into a written agreement with Dare including terms in the contract between Dare and the Sub- processor which are substantially the same as those set out in this clause 15 and the requirements of article 28(3) of the GDPR; and Dare shall remain fully liable to the Customer for any failure by a Sub-processor to fulfil its obligations in relation to the processing of any Customer Data under the relevant Contract; and
(d) to the extent that such sub-processing does not occur in the United Kingdom, or in circumstances or a country that is the subject of a valid adequacy decision by the European Commission (“Restricted Country”), Dare may only authorise a Sub-processor to process Customer Data in a Restricted Country if, the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand Dare and on the other hand the Sub-processor, or if requested by the Customer and required by Data Protection Law, procure that the Customer shall enter into (or procure that any relevant third party enters into) a data controller to data processor data transfer agreement, incorporating Standard Contractual Clauses.
15.8 The Customer acknowledges that Dare is reliant on the Customer as controller for direction as to the extent to which Dare is entitled to use and process Customer Data. Consequently, Dare will not be liable for any unauthorised or non-compliant use, loss, access or other processing of Customer Data (or any other personal data) or any claim brought by a data subject arising from any act or omission by Dare, to the extent that such action or omission resulted directly from the Customer’s instructions and/or the Customer’s failure to provide instructions. The Customer shall indemnify and hold Dare harmless against all losses, liabilities, costs (including reasonable legal costs), fees, expenses, actions, procedures, claims, demands and damages (including the amount of damages awarded by a court of competent jurisdiction or any penalties and fines levied by any governmental, regulatory or other competent authority that regulates and/or supervises any of Dare, the Customer and/or either of their activities (including activities of Customer using the Products)) that Dare suffers or incurs as a result of the Customer’s instructions, and/or the Customer’s failure to provide instructions (whether as a result of a claim by a data subject or otherwise).
16. Intellectual Property Rights
16.1 Nothing in these Terms and Conditions or any Contract shall operate to assign or transfer any Intellectual
Property Rights from Dare to the Customer, or from the Customer to Dare. Notwithstanding the foregoing, Dare shall be entitled to use, develop and share knowledge, experience and skills of general application gained through performing the Services.
16.2 Dare shall, on payment in cleared funds of every part of the Charges relating to the Services, grant to the Customer to the extent that it is lawfully able to do so a non-exclusive, non-assignable, non-sub- licensable, perpetual, royalty free licence to use the Intellectual Property Rights in any product of the Services (the “Licensed Rights”) for the commercial business purposes identified in the Offer Document. The Licensed Rights shall not be used for any other purpose without the prior written consent of Dare and the grant of the licence shall not restrict or prevent Dare from using or licensing any of the Licensed rights (or any other Intellectual Property Rights of Dare) for any purpose whatsoever at any time.
17. Non-Solicitation of Personnel and Employment Liabilities
17.1 The Customer must not, without the prior written consent of Dare, either during the relevant Term or within the period of twelve (12) months following the end of the relevant Term, engage, employ or solicit for engagement or employment any Personnel of Dare who have been involved in any way in the negotiation or performance of a Contract.
17.2 The Customer agrees that if they breach the provisions of clause 17.1 by successfully soliciting, interfering with, procuring or enticing away any employee or contractor of Dare, they shall pay Dare promptly upon the written demand of Dare a sum equivalent to half the annual salary or fees paid by Dare to the person so solicited immediately before that person leaves Dare’s employment or ceases to be engaged by Dare.
17.3 The Customer agrees that the amount referred to in clause 17.2 represents a reasonable pre-estimate of the loss and damage which Dare would suffer in the event of the circumstances described in cause 17.2 arising.
17.4 The provisions of this clause 17 are without prejudice to the right of Dare to seek interim remedies through the court or otherwise in respect of the matters contemplated by it.
17.5 The parties agree that on the expiry or termination of a Contract, there will be no “relevant transfer” (as defined in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”)) and as a result, none of the Customer’s employees, contractors or any other individuals (“Customer Personnel”) shall transfer their employment to Dare, nor will any of Dare’s employees, contractors or any other individuals (“Dare Personnel”) transfer to the Customer. The Customer indemnifies Dare for all losses, liabilities, costs (including reasonable legal costs), fees, expenses, actions, procedures, claims, demands and damages (including the amount of damages awarded by a court of competent jurisdiction) incurred by Dare (including all salary, redundancy, pension, recruitment and other costs) if, pursuant to TUPE upon the termination or expiry of a Contract (and notwithstanding the provisions of this clause 17.5), either: (1) any Customer Personnel or other individuals do transfer to Dare; and/or (2) any Dare Personnel or other individuals do transfer to the Customer and/or to a new provider of services which are the same as, or similar to, the services provided by Dare under the relevant Contract.
18.1 The Contracts may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by either party without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed), save that Dare may, after having given prior written notice to the Customer, assign and transfer all of its rights and obligations under a Contract: (i) for the sole purpose of a scheme for a solvent amalgamation; or (ii) to any person to which it transfers all of its business.
18.2 Any notice given under the Contract must be in writing and must be delivered personally or sent by recorded delivery or by email to the party to whom it is being given at the address, and marked for the attention of the person, specified in the Offer Document or to such other address, or marked for the attention of such other person, as the applicable party may from time to time notify to the other party in accordance with this clause 18.2. A notice delivered or sent in accordance with this clause 18.2 will be deemed to have been given, if delivered personally or by recorded delivery, at the time of delivery or, if sent by email, at the time of transmission and in proving the giving of a notice, it shall be sufficient to show that delivery was made or that the email was properly addressed and transmitted, as the case may be, save that email notices do 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.
18.3 Dare will not be liable to the Customer for any failure to perform or for any delay in performance under this Contract to the extent such non-performance or delay is caused by a Force Majeure Event, provided that if any period of failure or delay continues for more than 60 days the Customer will be entitled to terminate the Contract by notice in writing to Dare, in which case neither party shall have any further liability to the other (save for any rights and liabilities accrued prior to such termination).
18.4 No delay in exercising, or failure to exercise, any right, power or remedy provided by law or under this Contract shall be construed as a waiver of any such right, power or remedy.
18.5 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the 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).
18.6 These Terms and Conditions and any Contract created under them represent the whole agreement and understanding between the parties relating to the Products and replaces all other arrangements, agreements, understandings, statements, representations, warranties, undertakings or promises (whether in writing or not) made between the parties on the subject (“pre-contractual statements”) including any heads of agreement related to the subject matter of these Terms and Conditions and/or the relevant Contract.
18.7 Without prejudice to Clause 18.6, each party warrants to the other that, in entering into a Contract, it has not relied on and shall have no remedy in respect of any pre-contractual statements. Nothing in clauses 18.6, 18.7, or otherwise in these Terms and Conditions or in any Contract, is intended to limit either party’s liability for fraud (including fraudulent misrepresentation).
18.8 The Customer acknowledges and confirms that they have had an opportunity to carry out a thorough due diligence exercise in relation to the supply of the Products, including asking questions they consider are relevant and making their own respective enquiries to satisfy themselves as to the accuracy and completeness of any information received including the completeness and accuracy of the Offer Document, and has raised all relevant due diligence questions with Dare before the relevant Commencement Date and has entered into the relevant Contract in reliance on its own due diligence.
18.9 If at any time any provision of these Terms and Conditions or any Contract is or becomes illegal, invalid or unenforceable, that shall not affect or impair the legality, validity or enforceability of any other provision of them. The parties shall use their respective reasonable endeavours to replace any illegal, invalid or unenforceable provision by a valid provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
18.10 The Customer shall from time to time at its own cost do or procure the doing of all such acts and things, and execute or procure the execution of all such documents in a form reasonably satisfactory to Dare, which Dare may reasonably require for the purpose of giving full effect to these Terms and Conditions and any Contract created under them.
18.11 No person who is not a party to these Terms and Conditions or a Contract or shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, the Contract.
18.12 This Contract and any disputes or claims arising out of its subject matter or formation (including any non- contractual dispute or claim) shall be governed by and construed in accordance with English law.
18.13 Subject to clause 18.13, each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales and waives any objection which it may have now or in the future to the courts of England and Wales being nominated for the purpose of this Clause on the ground of venue or otherwise and agrees not to claim that any such court is not a convenient or appropriate forum.
18.14 Each party submits to the non-exclusive jurisdiction of the courts of England and Wales for the purposes of: (i) enforcing any judgment or award made by the courts of England and Wales or (ii) seeking emergency injunctive relief in any territory where the other party has disclosed or threatens or is likely to disclose any Confidential Information in breach of these Terms and Conditions or the relevant Contract Terms, in order to prevent, restrain or curtail such disclosure, or to prevent, restrain or curtail the infringement or unauthorised use of any of its Intellectual Property Rights.
19. Definitions and interpretation
19.1 In these Terms and Conditions, the following terms have the following meanings:
Business Day is any day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
the following amounts (as applicable):
(a) the amounts specified in the Offer Document or Dare’s quotation; and/or
(b) such amounts as may be agreed in writing by the parties from time to time; and/or
(c) amounts calculated by multiplying Dare’s agreed time-based charging rates (as notified by Dare to the Customer from time to time) by the time spent by Dare’s personnel performing the Services;
the date set out in the Offer Document or, where no date is stated there, the earlier of the date that Dare executes the acknowledgement copy of the purchase order form or begins supplying the relevant Equipment, Software or Services (as applicable) to the Customer;
any technical or commercial know-how, specifications, inventions, processes or initiatives, trade secrets other information which are of a confidential nature and have been disclosed by one party to the other (including the details of any Contract or Offer Document and/or these Terms and Conditions) received or obtained by a party that is proprietary or confidential information or part of the Intellectual Property Rights of the other party and: (i) is clearly labelled as such; or (ii) is otherwise clearly identified as such; or (iii) from its nature and/or the circumstances of its disclosure a reasonable person would infer that it is such;
the Customer’s purchase order for any Products and the contract that is formed should Dare accept such purchase order pursuant to clause 1.2, which is subject to and incorporates the Contract Terms;
Customer the person, who purchases Equipment, Software or Services has the meaning given to it at clause 1.2; (as applicable) from Dare;
any acts or activities identified in the Offer Document as being the responsibility of the Customer, together with such other acts which need to be performed by the Customer or other third parties engaged or directed by the Customer under the Contract in order for Dare to be able to carry out its obligations under these Terms and Conditions or any Contract;
Dare Technology Limited, a company registered in England and Wales (registration number 12514284 ) having its registered office at Media Exchange 1, Coquet Street, Newcastle upon Tyne, Tyne and Wear, United Kingdom, NE1 2QB;
Data Protection Law
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);
the equipment agreed in the Contract to be purchased by the Customer from Dare (including without limitation any part or parts of it) as may be set out in an Offer Document;
Force Majeure Event
an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
the standard commercial terms published by the International Chamber of Commerce (ICC) relating to international commercial law;
the initial term of the Contract as expressly set out in the Offer Document;
that a person:
(a) is unable to pay its debts or becomes insolvent or bankrupt or ceases to trade;
(b) is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction, which does not materially reduce that entity’s assets);
(c) has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets;
(d) enters into or proposes any composition or arrangement with its creditors generally (otherwise than for the purpose of a financing or solvent amalgamation or reconstruction, which does not materially reduce the entities’ assets); or
(e) is the subject of any events or circumstances analogous to any of the foregoing in any applicable jurisdiction;
Intellectual Property Rights
patents, rights to inventions, copyright and related rights, trademarks, 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;
International Supply Contract Mandatory Policies
means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977;
Dare’s mandatory policies and procedures as shall be notified by Dare to the Customer in writing from time to time;
Normal Working Hours
08:30 to 17:30 GMT/BST (as applicable) on a Business Day;
the document(s) provided in writing by Dare to the Customer setting out the description or specification of the relevant Products that will be provided by Dare to the Customer (including any Offer Document deemed to be accepted by the Customer pursuant to clause 1.3), which may be presented by Dare in the form of a quotation, pro forma invoice, proposal or such other written format as Dare may reasonably elect to use, and which may include a Project Plan;
means, as the context requires, any Equipment, Software or Services, or a combination of all or any of them;
any additional term of a Contract following a renewal under the provisions of clause 14;
in relation to a party, its employees, officers, representatives and advisors;
the date by which a part of the Equipment, Software or Services (as applicable) are estimated to be completed, as set out in the Project Plan;
the plan describing the Equipment, Software or Services (as applicable) and setting out the estimated timetable, responsibilities and any applicable Project Milestones for the provision of the same by Dare;
Renewal Term Representative
the services that Dare agrees to supply to the Customer under a Contract (which may include Support Services) set out in the Offer Document;
as may be Software software that Dare agrees to supply to the Customer under a Standard Contractual Clauses
Contract (which may comprise Third Party Software) be set out in the Offer Document;
the standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection as set out in Commission Decision C(2010) 593, as updated and amended;
any supplemental terms supplied to the Customer by Dare in respect of certain Services which supplement and (unless expressly stated otherwise) incorporate these Terms and Conditions;
Support Services Term
has the meaning given in clause 3.2(a);
the term of a Contract as set out in clause 14.1;
Third Party Software Licence
the Third Party Software Vendor’s licensing terms for the Third Party Software from time to time;
Third Party Software
that software the rights in which are owned in whole or in part by one or more third parties that Dare agrees to supply to the Customer under a Contract as may be set out in the Offer Document;
Third Party Software Vendor
a third party that has granted to Dare the right to distribute the Third Party Software and resell licences for the Third Party Software; and
UK Data Protection Legislation
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
19.2 Unless stated otherwise, terms in any Offer Document or Supplemental Terms shall have the same meanings as are given to them in these Terms and Conditions;
(a) references to clauses and schedules are to clauses of, and schedules to, these Terms and Conditions (including as the same may be incorporated into a Contract);
(b) references to the singular include the plural and vice versa and references to one gender include all genders;
(c) references to a “person” include any company, partnership or unincorporated association (whether or not having separate legal personality) and references to a “company” include any company, corporation or other body corporate (wherever and however incorporated or established);
(d) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
(e) subject to clause 18.2 (which specifies that service of any proceedings or other documents in any legal action may not be served by email), a reference to “writing” or “written” includes emails (but not faxes) and each party warrants that it has the ability to open Adobe PDF files.
(f) the words “include(s)” and “including” are to be construed as if followed by the words “without limitation”; and
(g) references to a “month” are to a calendar month.
19.3 The schedules form part of these Terms and Conditions and shall have the same force and effect as if set out in the body of these Terms and Conditions and any reference to these Terms and Conditions shall include the schedules.
19.4 The headings in Terms and Conditions are included for convenience only and shall be ignored in interpreting the Contract.
Schedule 1 Approved Sub-Processors
Identity Country of Location Type of Data Processed
Analytics companies, including United States, United Kingdom, Analytics data Google Ireland, Netherlands
Third party support providers, to whom technical and other queries may need to be escalated to resolve issues and queries arising under Contracts
United Kingdom, United States, Ireland
Processing which may be necessary to provide support on products or services offered by DARE time to time in accordance with a Contract.
Dare’s Credit Control supplier
Processing which may be necessary to provide support on outstanding invoices in accordance with a Contract.
20.1 These Hardware Support Supplemental Terms and Conditions supplement and (unless expressly stated otherwise) incorporate the terms and conditions set out in the Terms and Conditions and the relevant Offer Document in respect of the Hardware Support Services to be provided by Dare to the Customer under a Contract. These Hardware Support Supplemental Terms and Conditions apply only to the supply by Dare of the Hardware Support Services and the Customer’s use of those Services. Any other Products supplied by Dare to the Customer remain subject to the Contract terms applicable to those Products.
20.2 The additional definitions set out in clause 25 shall apply in these Hardware Support Supplemental Terms and Conditions. Any defined terms in the Terms and Conditions or the Offer Document will have the same meaning in these Hardware Support Supplemental Terms and Conditions unless stated otherwise.
20.3 References to Dare in these Hardware Support Supplemental Terms and Conditions include both Dare and its nominated third party hardware maintenance partner from time to time.
21. Hardware Support Services
21.1 If and to the extent that the relevant Services are expressly identified in the Offer Document or otherwise agreed between the parties in writing, Dare shall provide the Customer with the Hardware Support Services and the Additional Services (if any) during the Term in accordance with the Contract Terms.
21.2 On the Customer informing Dare or Dare otherwise becoming aware during the Designated Hours that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, Dare shall perform (or shall procure the performance of) the Standard Support Service by using its reasonable endeavours to:
(a) arrange for its nominated courier to pick up the relevant Maintained Equipment from the Location as soon as is reasonably practicable during the Designated Hours; and
(b) once such Maintained Equipment is received by Dare, perform or procure the performance of Corrective Maintenance of the relevant Maintained Equipment as soon as soon as is reasonably practicable.
21.3 If agreed between the parties in writing in advance and subject to agreement in writing for the payment by the Customer of the relevant Additional Charges, Dare shall provide to the Customer the Emergency Support Service in the following circumstances:
(a) on the Customer informing Dare outside of the Designated Hours that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, Dare shall use its reasonable endeavours to:
(i) arrange for its nominated courier to pick up the relevant Maintained Equipment from the Location as soon as is reasonably practicable; and
(ii) once such Maintained Equipment is received by Dare and subject to clause 21.7 and 21.9, perform or procure the performance of the Corrective Maintenance of the relevant Maintained Equipment as soon as soon as is reasonably practicable; or
(b) on the parties agreeing in writing that Dare shall perform the relevant Hardware Support Services outside of the Designated Hours.
21.4 Dare shall provide the Hardware Support Services:
(a) with reasonable skill and care; and
(b) in accordance with any relevant Service Level Agreement.
21.5 Additional Services shall be charged at the Additional Services Rates for each of Dare’s Personnel reasonably required to perform the relevant Additional Services. Additional Charges shall be calculated by reference to the relevant information set out in the Offer Document or as otherwise notified to the Customer by Dare in writing from time to time.
21.6 In performing the Hardware Support Services and/or the Additional Services (as the case may be), Dare shall use its reasonable endeavours to restore any malfunctioning or failed Maintained Equipment to Good Working Order. Where this is not reasonably practicable within a reasonable time, Dare may (at its sole discretion) provide on a loan basis substitute equipment (“Substitute Equipment”) to the Customer, pending the restoration or repair of the relevant Maintained Equipment.
21.7 Dare is not obliged to perform any Excluded Services. Where Dare performs the Excluded Services, Dare may charge, and the Customer shall pay, the Additional Services Fees in respect of that work.
21.8 Where Dare determines (at its sole discretion, acting reasonably) that it will be more cost effective to replace an item of the Maintained Equipment rather than performing Corrective Maintenance thereof, Dare shall provide the Customer with a replacement item which Dare acting reasonably considers to be of equivalent standard to the relevant Maintained Equipment and the Customer shall pay for the cost of the replacement item.
21.9 Dare shall not be responsible for providing, or liable in respect of, any Out-of-Scope Activities, such activities being the sole responsibility of the Customer.
22. Spare parts, consumables and Substitute Equipment
22.1 In performing the Hardware Support Services and/or the Additional Services (as the case may be) and subject to clause 22.3, Dare shall use its reasonable endeavours to supply spare parts (on what Dare considers (acting reasonably) to be a materially like-for-like basis) required to restore the Maintained Equipment to Good Working Order including but not limited to circumstances where necessary as a result of fair wear and tear.
22.2 All spare parts and/or replacements provided by Dare to the Customer shall become part of the Maintained Equipment. On payment by the Customer (in cleared funds) of every part of the relevant Charges (but not before), Dare shall assign to the Customer, with full title guarantee and free from all third- party rights, all spare parts and/or replacements provided by Dare. All parts and components removed from the Maintained Equipment by Dare in the course of performing the Hardware Support Services shall no longer constitute part of the Maintained Equipment and will be the property of Dare. The Customer will assign to Dare, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Equipment by Dare in accordance with this clause 22.2.
22.3 Dare shall have no obligation to supply items which Dare considers (acting reasonably) to constitute consumables which shall include but not be limited to: back-up tapes, laptop power adaptors, batteries for UPS, batteries for laptops and mice (“Consumables”).
22.4 Where Dare provides Substitute Equipment pursuant to clause 21.6 or otherwise, the Customer acknowledges and agrees that:
(a) the Substitute Equipment shall at all times remain the property of Dare and the Customer shall have no right, title or interest in or to the Substitute Equipment (save the right to use the Substitute Equipment in the ordinary course of trading subject to the terms and conditions of the Contract);
(b) the risk of loss, theft, damage or destruction of the Substitute Equipment shall pass to the Customer on delivery and the Substitute Equipment shall remain at the sole risk of the Customer during the period which the Substitute Equipment is in the possession, custody or control of the Customer (“Risk Period”) until such time as the Substitute Equipment is redelivered to Dare;
(c) during the Risk Period, the Customer shall at its own expense, obtain and maintain the following insurances:
(i) insurance of the Substitute Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Dare may from time to time designate in writing;
(ii) insurance for such amounts as a prudent owner or operator of such Substitute Equipment would insure for, or such amount as Dare may reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Substitute Equipment; and
(iii) insurance against such other or further risks relating to the Substitute Equipment as may be required by law, together with such other insurance as Dare may from time to time consider reasonably necessary and advise to the Customer;
(d) the Customer shall give immediate written notice to Dare in the event of any loss, accident or damage to the Substitute Equipment arising out of or in connection with the Customer’s possession or use of the Substitute Equipment;
(e) if the Customer fails to effect or maintain any of the insurances required under the Contract, Dare shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due and payable immediately from the Customer; and
(f) the Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Dare and proof of premium payment to Dare to confirm the insurance arrangements.
22.5 In respect of the Substitute Equipment, the Customer shall:
(a) be responsible for making good any damage to the Substitute Equipment (fair wear and tear only excepted);
(b) make no alteration to the Substitute Equipment and shall not remove any existing components from it;
(c) not, without the prior written consent of Dare, part with control of, sell or offer for sale, underlet or lend the Substitute Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(d) not without the prior written consent of Dare, attach the Substitute Equipment to any land or building so as to cause the Substitute Equipment to become a permanent or immovable fixture on such land or building. If the Substitute Equipment does become affixed to any land or building then the Substitute Equipment must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Substitute Equipment from any land or building and indemnify Dare against all losses, costs or expenses incurred as a result of such affixation or removal;
(e) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Dare in the Substitute Equipment and, where the Substitute Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that Dare may enter such land or building and recover the Substitute Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Dare of any rights such person may have or acquire in the Substitute Equipment and a right for Dare to enter onto such land or building to remove the Substitute Equipment;
(f) not suffer or permit the Substitute Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Substitute Equipment is so confiscated, seized or taken, the Customer shall immediately notify Dare and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Substitute Equipment and shall indemnify Dare on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(g) not use the Substitute Equipment for any unlawful purpose;
(h) ensure that at all times the Substitute Equipment remains identifiable as being Dare’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Substitute Equipment;
(i) deliver up the Substitute Equipment at such time and such address as Dare requires, or if necessary allow Dare or its Personnel access to the Location or any premises where the Substitute Equipment is located for the purpose of removing the Substitute Equipment.
22.6 The Customer acknowledges that Dare shall not be responsible for any loss of or damage to the Substitute Equipment arising out of or in connection with any negligence, misuse, mishandling of the Substitute Equipment or otherwise caused by the Customer or its Personnel, and the Customer undertakes to indemnify Dare on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of this clause 22.
23. Planned preventative maintenance
23.1 If and to the extent that the relevant Services are expressly identified in the Offer Document or otherwise agreed between the parties in writing, Dare shall provide the Customer with the PPM Services during the Term in accordance with the Contract Terms.
23.2 Dare shall perform PPM Services to the Maintained Equipment:
(a) at the frequency set out in the Offer Document; or
(b) as otherwise agreed in writing between the parties; or
(c) if no specific frequency has been agreed in writing, at such frequency as is reasonably determined by Dare.
24. Customer’s obligations 24.1 The Customer shall:
(a) ensure that the Maintained Equipment is in Good Working Order at the Commencement Date or otherwise instruct Dare to undertake such services as Dare considers to be reasonably necessary in order to bring the Maintained Equipment up to Good Working Order in which case the Customer shall pay Dare such fees as Dare advises the Customer are payable in this regard;
(b) ensure that the Maintained Equipment and/or the Substitute Equipment (if any) is installed and kept in suitable premises and under suitable conditions, as specified in the Operating Manuals or as otherwise directed by the relevant Equipment Supplier and follow any instructions as Dare or the Equipment Supplier (as the case may be) may give from time to time (including in relation to preventative maintenance measures);
(c) take all reasonable measures to adequately protect the Maintained Equipment and/or the Substitute Equipment (if any) against Malicious Software including by using the latest versions of anti-virus software available from an industry-accepted anti-virus software vendor to check for and delete Malicious Software;
(d) take all reasonable steps to ensure that the Maintained Equipment and/or the Substitute Equipment (if any) is operated in a normal and proper manner and used only by competent and trained personnel;
(e) notify Dare promptly in writing and in accordance with any relevant Service Level Agreement if the Maintained Equipment and/or the Substitute Equipment (if any) is discovered to be operating incorrectly and immediately cease to use the relevant Maintained Equipment and/or the Substitute Equipment (if any) unless and until Dare confirms otherwise in writing;
(f) to the extent that it is required and at all reasonable times, permit full and free access to the Location and to the Maintained Equipment and/or the Substitute Equipment (if any) to Dare, its Personnel, and provide them with adequate facilities and safe working space, and any cabling, power, telecommunications facilities and Consumables as are reasonably required to enable Dare to fulfil its obligations under the Contract;
(g) keep Dare fully informed of all material matters relating to the Maintained Equipment and/or the Substitute Equipment (if any) and provide Dare with any information that is reasonably requested in the performance of the Hardware Support Services and/or the Additional Services (as the case may be);
(h) take reasonable care to ensure the health and safety of Dare’ Personnel if attending the Location;
(i) not maintain, alter, modify, dismantle, repair, adjust or in any way interfere with (or allow any person other than Dare or the relevant Equipment Supplier (as the case may be) to maintain, alter, modify, dismantle, repair, adjust or in any way interfere with) the Maintained Equipment and/or the Substitute Equipment without the prior written approval of Dare;
(j) ensure that appropriate environmental conditions (including in relation to temperature and humidity) are maintained for the Maintained Equipment and/or the Substitute Equipment (if any) including by complying with any requirements or recommendations of the Equipment Supplier in this regard;
(k) keep full backup copies of all of its data, applications and operating systems and (notwithstanding the foregoing) conform with Good Industry Practice in this regard;
(l) ensure that there is an adequate power supply supplying the Maintained Equipment which provides adequate protection against lightning strikes, power surges and other reasonably foreseeable external factors;
(m) not move the Maintained Equipment and/or the Substitute Equipment (if any) from the Location without the prior written approval of Dare; and
(n) only use supplies or materials supplied or approved by Dare or the relevant Equipment Supplier (as the case may be).
25. Definitions and interpretation
25.1 In these Hardware Support Supplemental Terms and Conditions, the following additional definitions apply:
means any Emergency Support Services and/or any Excluded Services performed by Dare pursuant to these Hardware Support Supplemental Terms and Conditions.
Additional Services Fees
means the fees payable in consideration of the provision of any Additional Services, which shall be calculated at the Additional Services Rates.
Additional Services Rates
means the rates set out in the Offer Document or otherwise notified by Dare to the Customer in writing, as those rates are amended from time to time in accordance with the Contract Terms.
the date set out in the Offer Document or as otherwise agreed in writing between the parties being the date on which the commencement of the Hardware Support Services and/or
the Additional Services is planned to occur shall have the meaning given in clause 22.3.
Customer Operating System means:
(a) making any adjustments to the Maintained Equipment; and/or replacing any parts or components of the Maintained Equipment; and/or
(b) in each case as required to restore the Maintained Equipment to Good Working Order and in accordance with clause 21.2. means the customer’s operating system as set out in the Offer Document or as agreed in writing from time to time.
Emergency Support Services
means the services to be provided by Dare pursuant to clause 21.3.
means the Terms and Conditions of Dare from time to time, as available at https://dare.tech/dare-terms/.
8.30 am to 5.00 pm on Business Days.
means the supplier of the Maintained Equipment or (as the context requires) the Substitute Equipment (or any part of either of them).
means any Hardware Support Services which Dare (acting reasonably) determines (either before or after the provision of the relevant services) that became necessary directly or indirectly as a result of any of the Excluded Causes.
Terms and Conditions
Good Industry Practice
means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.
means the Maintained Equipment operates materially in accordance with the Operating Manuals.
Hardware Support Services
means the Standard Support Services and/or the Emergency Support Services (as the case may be) provided always that the Out-of-Scope Activities shall in no circumstances comprise the Hardware Support Services.
means the equipment specified in the Offer Document and/or any other equipment as may be agreed by the parties in writing from time to time.
means any software program or code intended to destroy, interfere with, corrupt or have a disruptive effect on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether such software program or code is introduced wilfully, negligently or without knowledge of its existence.
means all manufacturer operating manuals, specifications and other manufacturer documentation relating to the Maintained Equipment.
means any of the following:
(a) electrical work external to the Maintained Equipment;
(b) cosmetic work (including painting or refinishing) to the Maintained Equipment.
means planned preventative maintenance services in relation to the Maintained Equipment in accordance with clause 23, which may include: (1) testing that the Maintained Equipment is functional; and (2) making any adjustments as may be required in accordance with Good Industry Practice (including applying software patches and updating firmware) to ensure the Maintained Equipment remains in Good Working Order.
Standard Support Services Substitute Equipment
in relation to the Substitute Equipment, shall have the meaning given in clause 22.4(b).
means the support services to be provided by Dare pursuant to clause 21.2.
shall have the meaning given in clause 21.6.
Good Working Order