General Terms and Conditions (Cyber & Digital Forensic Services)
1.1 The “Agreement” means the terms and conditions together with the particulars in the proposal for services hereto addresses to the appointer
1.2 The “Appointer” means the solicitor, loss adjustor, insurer, person(s) or Government Department instructing the Expert or Supplier to provide a service and provided in the proposal for services
1.3 The “Expert” means any employee or other individual or body corporate as the case may be which the supplier uses or engages to supply, or in relation to, the services.
1.4 The “Supplier” means IntaForensics Ltd, a private limited company registered in England and Wales (Company No: 05292275)
1.5 The “Services” means the services as described in the proposal for services
1.6 The “Data Controller” means a person who either alone or jointly or in common with other person(s) determines the purposes for which and the manner in which any personal data are, or are to be processed.
1.7 The “Data Processor”, means in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller.
1.8 The definition “Processing”, means in relation to information or data means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including organisation, adaptation or alteration of the information or data retrieval, consultation or use of the information or data, disclosure of the information or data by transmission, dissemination or otherwise making available, alignment, combination, blocking, erasure or destruction of the information or data
1.9 “Regulations” means the Data Protection Act 2018, General Data Protection Regulations (EU) 2016/679 and the Privacy and Electronic Communications (EC Directive) Regulations 2003
2.0 THE CONTRACT
2.1 The Agreement shall be the sole contract for the supply of the services, defined in the proposal for services between the appointer named in the proposal hereto and the supplier to the exclusion of any others terms and conditions whatsoever except only as may be expressly agreed in writing by the Chief Executive officer of the supplier.
2.2 The supplier shall provide and sell and the appointer shall purchase the services in accordance with these terms and conditions.
2.3 In the case of the appointer being a partnership or unincorporated firm all partners and proprietors thereof shall jointly and severally liable in respect of the performance and observance by the appointer of the obligations of the appointer hereunder.
2.4 Any waiver by the supplier of any breach of this agreement by the appointer shall not be a waiver of any subsequent breach of the same or any other provision of this agreement.
2.5 If no instructions are received or a case is not active for 6 months, the contract for services is automatically terminated and no further work will be undertaken, unless otherwise agreed, and there shall be no liability on the supplier part for the termination of the contract.
2.6 If any part of the terms and conditions of this Agreement is held by any competent authority to be invalid or unenforceable, the same shall be severed from this agreement and the remainder thereof shall continue in full force and effect.
3.1 The appointer undertakes as a condition of this agreement to disclose all necessary and relevant information and materials to the supplier concerning the services.
3.2 The appointer acknowledges that the supplier relies upon such information being complete and accurate in all material aspects, and that the rights of any third party are not infringed in connection with any such information or materials and the appointer hereby indemnifies the supplier, its principal, employee or expert against any such infringements.
3.3 The right of ownership in respect of all photographic negatives, Video recordings, models and other original work created by the supplier shall remain vested in the supplier unless otherwise agreed in writing by the Chief Executive officer of the supplier.
3.4 The appointer undertakes to give immediate written notification of every hearing, meeting or other appointment at which the supplier’s expert attendance will or may be required.
4.1 The appointer undertakes and agrees not to rely on, or raise any claim for breach of, any representation or variation of these terms and conditions which are not agreed as aforesaid by the supplier shall not be liable for any representation or any variation of these terms and conditions that may be made by the expert or any employee or contractor of the supplier except only as may be expressly agreed in writing by the Chief Executive officer of the supplier.
4.2 The supplier shall not have any obligations under or be liable for any instructions save only the instructions identified in the attached letter.
4.3 The supplier and the expert shall use reasonable care and skill in providing the service and it is hereby expressly agreed and declared that the supplier and or it’s expert shall not be liable further or otherwise, and without prejudice thereto the supplier and or expert shall not be liable to the appointer or any third party by reason of, and there shall be excluded from this agreement , any representation or implied warranty, conditions or other term of any duty at common law and whether direct or indirect, contingent or consequential howsoever arising and any liability whatsoever.
4.4 The supplier and or expert shall not be liable to the appointer or be deemed to be in breach of the agreement by reason of any delay in performing, or any failure to perform, any of the services if the delay or failure was due to any cause beyond the reasonable control of the supplier.
4.5 All liability on the part of the supplier in respect of obligations under this agreement shall cause and determine absolutely in the event of the appointer being in breach of any obligations on the part of the appointer and the appointer failing to remedy any such breach within 21 days of any notice of such breach being given by the supplier or forthwith in the event of any such breach being incapable of remedy.
5.1 Except as may be expressly stated in the proposal for services attached hereto the appointer shall make payment for the services within 30 days from the invoice date of any invoice presented from time to time.
5.2 Without prejudice to 5.1, above, the appointer shall be responsible to the supplier for payment, irrespective of any liability for payment of monies to the appointer by any third party, Legal Aid Agency (LAA) or the Court without limitation any other person and payment to the supplier for the services shall not depend upon any such other payment to the appointer.
5.3 It is expressly agreed and declared that payment for the services shall not be reduced or depend upon the result of any taxation in which the appointer may be involved.
5.4 The appointer shall in addition to any fees specified in the proposal for services hereto pay to the supplier all fees, costs, charges and expenses arising in connection with attendance at court by the suppliers expert in connection with the services.
5.5 Except as may be expressly stated in the proposal for services hereto fees for attendance at court will be charged at the same hourly rate as specified in the proposal. This hourly rate will be charged in full in respect of travelling time, waiting time, conferences, and without limitation to time at the Court.
5.6 The appointer shall pay, if demanded by the supplier, interest on any fees, costs, charges and expenses outstanding upon the expiry of the stated period of 30 days at the rate of 3% thereon per calendar month calculated from the date of the invoice to the date of receipt thereof by the supplier on a daily basis.
6.0 LEGAL AID
6.1 Where the services are provided or are intended to be provided in connection with a case that is funded or part funded or is intended to be funded by the Legal Aid Agency the appointer agrees to the following terms and conditions in addition, and without prejudice to other terms and conditions of this contract.
6.1.1 Promptly notify the supplier when Legal Aid has been applied for or granted or amended or withdrawn
6.1.2 Apply to the Legal Aid Agency for prior authority of the estimated payments for the services and promptly notify the supplier of the result of from time to time.
6.1.3 That on each and every occasion the appointer agrees early disbursement of the suppliers fees within 30 days when the supplier submits and invoice from time to time
6.1.4 Apply to the Legal Aid Agency for interim payment in respect of the services in Legally Aided cases.
6.1.5 The appointer shall be liable at all times for the suppliers fees and costs following engagement of the supplier whether verbally or in writing, and where the appointer fails to give written instruction for the expert to cease work.
6.2 Without prejudice to other terms and conditions in this agreement, the supplier may at its sole discretion extend the payment period in legal aid cases from 30 days to a maximum of 60 days. The extended period will in any event not be provided unless the appointer strictly adheres to this agreement.
7.1 The appointer hereby agrees that the supplier may delegate or subcontract the performance of the services and may rely upon advice or opinion of any third party who in the opinion of the supplier reasonably is competent for that purpose.
7.2 The supplier shall not be bound to give notice to the appointer of any such delegation or sub-contracting of the services. Without prejudice to this condition, the supplier will use reasonable care to notify the appointer of any such delegation or sub-contractor carrying out the service in it’s absolute discretion.
8.1 Any notice required or permitted to be given by either party to the other under this agreement shall not be unless made in writing and sent by first class, pre paid, recorded delivery postal service and acknowledged by the other party, and in the case of posting shall not be affective until 48 hours after the time of posting.
8.2 The appointer agrees that any notices sent to the supplier, upon posting, shall be deemed to have been delivered once received in the hand of the supplier.
9.0 SPECIAL NOTICE
9.1 Disbursements. Means the immediate cost incurred such as rail or other public transport costs, the travelling costs at 45.0p per mile where private or company vehicles are used, subsistence, printing, photocopying, postage etc anything creates an immediate charge.
9.2 Travel Fees. Means the literal time spent travelling and waiting, which is charged at the agreed hourly expert fees agreed or part thereof.
9.3 Expert Fees. Mean the hourly fees agreed for advice, opinions, reports, discovery, investigation, examination and so on.
10.1 The parties agree that, in respect of Personal Data which are provided to the supplier by the appointer pursuant to the services provided and detailed in the proposal for services, then, for the purposes of the Data Processing Terms, the appointer is deemed to be the Data Controller and the supplier is deemed to be the Data Processor.
11.1 The supplier shall, in relation to any Personal Data processed in connection with the performance by the supplier of its obligations under the services:
- process that Personal Data only on the written instructions of the appointer unless the supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the supplier to process the Personal Data (Applicable Data Processing Laws). Where the supplier is relying on Applicable Data Processing Laws, the supplier shall promptly notify the appointer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the supplier from so notifying the appointer;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the 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 Personal Data, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting the Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to the 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);
- ensure that all employees of the supplier who have access to and/or process the Personal Data are obliged to keep the Personal Data confidential; and
- only transfer Personal Data outside of the European Economic Area (EEA) where the following conditions are fulfilled:
- the appointer or the supplier has provided appropriate safeguards in relation to the transfer;
- the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- the supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any of the Personal Data that is transferred; and
- the supplier complies with reasonable instructions notified to it in advance by the appointer with respect to the processing of the Personal Data