Data Recovery Services Terms and Conditions (B2C) - On Premises
These Data Recovery Services Terms and Conditions – On Premises are for use by a commercial provider of data recovery services who deals with a consumer customer.
The data protection provisions in this document have been updated with reference to the UK GDPR.
It should only be used where:
• the customer is purchasing the service as a consumer, i.e. he requires the services wholly or mainly for his personal domestic (rather than business) purposes; and
• the sale transaction is an “on premises contract” as defined by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (referred to below as “the Regulations”).
It should not be used for an “off premises contract” or “distance contract” as defined by the Regulations since the Regulations require the provider to allow the consumer customer a cooling off period in those cases. (This template does not provide for a cooling off period). For an “off premises contract” or “distance contract” we have included in this subfolder the Data Recovery Services Terms and Conditions (B2C) – Off Premises or Distance Selling, and it should be used instead for such contracts. (It provides alternative sets of wording depending on whether it is to be an “off premises” or a “distance” contract.)
In the Regulations “premises” refers to the provider’s business premises. In some cases it may not be easy to determine into which category (“on premises”, “off premises”, or “distance” contract) a particular sale of services contract falls. If in doubt, legal advice should be taken about the Regulations.
The accompanying Data Recovery Services Terms and Conditions (B2B) should instead be used where the customer is not a consumer, i.e. he requires the services wholly or mainly for the purpose of his business.
A consumer customer will not have an ongoing need for a data recovery service: he only needs the service when a particular problem arises and at that point he will request a one-off service by placing an order with the provider. This template is therefore in the form of a set of terms which allow for a separate one-off purchase order (or other agreement document) to be used. The order should then refer to this template as the terms of the contract between the parties.
Under these terms and conditions, the customer delivers to the provider (or the provider collects) the customer’s media containing the corrupted or damaged data. The provider then attempts to recover the data. Where the media is damaged, the provider will place any recovered data on alternative media and return it to the customer.
The provider does not guarantee that it will be able to recover all or any data but the customer only has to pay for the services if either the provider is successful in recovering all or a substantial amount of the data on the media, or the data recovered is insubstantial but the customer elects to receive that limited amount of data.
The template assumes that in each case payment for the services will be a fixed fee amount, that the amount is agreed when the customer places its order for the service, and that the fee amount is inserted in the order document at that time.
Details of the data recovery service, and a description of the customer’s media, are also to be inserted in the order.
There are a number of other additions and deletions which the provider will need to make when completing the template, depending on the circumstances and the requirements of the provider and the customer.
The meaning of “media” in the document is very wide and covers all forms of storage media (e.g. internal/external disc drive, flash memory card, optical disc, any other storage device). The customer will give the provider the media or, if necessary, the computer containing the media (e.g. where the media is an internal hard disc drive).
Use of such a recovery service will only be a fall back where a customer does not have backed up data on other media/equipment since the recovery attempts may or may not be effective. If data is not routinely backed up on other media/equipment, or the back up is out of date or incomplete, a customer will effectively lose the use of data when it becomes corrupted, damaged or inaccessible unless a specialist data recovery provider is able to recover it.
It is important for all providers to be aware of their obligations and the rights of their customers. The terms of this document have been written with these laws in mind.
Reflecting the requirements of the Consumer Rights Act 2015, this document has been designed to be fair to consumers, is specifically written in a consumer-friendly manner, and is designed to be understood by an average consumer, requiring no specialist business or legal knowledge.
It also reflects the pre-contract information requirements for on-premises contracts established by the Regulations. Sub clauses 2.3 and 2.4 of the template give the customer a clear and concise summary of the information he is entitled to receive under the Regulations thus making it easier both for the customer to understand their rights and for the provider to understand its obligations.
There are a number of important legal points to be aware of when contracting with consumers.
In the context of this document, the most important laws to be aware of are:
- The Consumer Protection from Unfair Trading Regulations 2008, prohibiting misleading or aggressive sales practices;
- The Consumer Rights Act 2015, requiring that, among other things, goods and services are provided to consumers with reasonable care and skill, prohibiting terms that excessively limit or exclude the seller’s liability, and providing further protection for consumers by, for example, ensuring good faith and avoiding significant imbalance in the rights of the parties.
- The Regulations, which require businesses to give customers certain information.
Optional phrases / clauses are enclosed in square brackets. These should be read carefully and selected so as to be compatible with one another. Unused options should be removed from the document.
These Data Recovery Services Terms and Conditions – On Premises contain the following clauses:
1. Definitions and Interpretation
2. The Contract
4. Our Obligations
5. How We Use Your Personal Information (Data Protection)
6. Your Obligations
7. Price and Payment
9. Our Liability
11. Events outside Our reasonable control (Force Majeure)
12. Communication and Contact Details
13. Other Important Terms
14. Governing Law and Jurisdiction
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