1. Parties

1.1 Gryphen POS Solutions Ltd is a company registered in England (company no. 10258534) with its registered address at 15 Ashwell Road, Guilden Morden, Hertfordshire, SG8 0JX, England (“Gryphen POS Solutions”); and 

1.2 You are the customer who has engaged Gryphen POS Solutions to purchase Products and/or Services on behalf of the business that you work for (the “Customer”).

 

2. Definitions

2.1 "Delivery Date" means the actual delivery date of the solution or its installation, whichever the latest;

2.2 Hardware: any hardware provided by Gryphen POS Solutions;

2.3 Intellectual Property Rights: any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation, know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation 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;

2.4 "Price" means the figure given on the Schedule/Sales Order as the Total Price for those items listed plus VAT at prevailing rates;

2.5 Product: any Hardware and/or Software;

2.6 Return to Base: means that the Customer is required to deliver any Hardware with a fault or defect to a Gryphen POS Solutions designated location for testing;

2.7 "Schedule" means schedules of hardware, software and services; 

2.8 Software: any software provided by Gryphen POS Solutions for use with the Hardware or any third party hardware;

2.9 System: the Gryphen POS Solutions applications, interfaces and technical systems, including any Software and any related manuals;

2.10 Services: the services to be provided to the Customer by Gryphen POS Solutions under this Agreement, as agreed by the parties in writing. This can include design, creation, implementation and support of Products;

2.11 Support Plan: the support plan for the maintenance and upkeep of the Products;

2.12 Working Days: Monday to Friday (excluding any bank or public holidays in England); and

2.13 Working Hours: 9am to 5pm GMT on a Working Day.

2.14 Data Protection Laws: means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the General Data Protection Regulation 2016/679 (GDPR) from 25 May 2018 and laws implementing or supplementing the GDPR, and to the extent applicable, the data protection or privacy laws of any other country. ‘Personal Data’ shall have the meaning defined by the applicable Data Protection Laws;

A reference to ‘writing’ or ‘written’ includes email unless stated otherwise.

3. Scope

3.1 This Agreement shall apply to any Products and/or Services provided by Gryphen POS Solutions to the Customer (and shall be incorporated into any quotation or order for such Products and/or Services), and shall prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

 

4. Fees

4.1 All Product and Service pricing is provided in ‘good faith’ by Gryphen POS Solutions. Unless stated otherwise in a quotation, written quotations are valid for 30 days from the date of their issue, however, some offers and discounts are subject to shorter timeframes. Where this is the case, the Customer will be advised by Gryphen POS Solutions representatives and/or in Gryphen POS Solutions sales literature.

4.2 Gryphen POS Solutions offers a monthly fee subscription for the provision of some Software. For this option, fees are charged on a monthly basis with no minimum contract term (“Subscription Contract”).

4.3 Either party can terminate the Subscription Contract at any time by providing the other party with at least 30 days’ prior written notice. For the avoidance of doubt, title to the Products shall not pass to the Customer at any point under the Subscription Contract option.

4.4 All invoices are due and payable by the Customer within 30 days following receipt of the applicable invoice.

4.5 Without prejudice to any other right or remedy that Gryphen POS Solutions may have, if the Customer fails to pay Gryphen POS Solutions by the relevant invoice due date, Gryphen POS Solutions may:

4.5.1charge interest on such sum from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded weekly until payment is made, whether before or after any judgment;

4.5.2 suspend the provision of the Services.

 

5. Customer Responsibilities

5.1 Where the Customer is responsible for installing the Hardware (as agreed in writing with Gryphen POS Solutions), the Customer must ensure the location meets the environmental conditions recommended by Gryphen POS Solutions, ensuring that external surfaces, cables and fittings of the Hardware are kept in good, clean condition.

5.2 Subject always to Gryphen POS Solutions conforming to all reasonable security and safety requirements of the Customer, the Customer shall afford to Gryphen POS Solutions personnel reasonable access to the Site(s) at all reasonable times for the purpose of Gryphen POS Solutions performance under this Agreement. 

5.3 The Customer will ensure that the Hardware and Software is only used by properly trained staff in accordance with Gryphen POS Solutions instructions. The Customer will ensure that only personnel authorised by Gryphen POS Solutions interfere with or modify any part of the Hardware or Software.

5.4 The Customer will maintain adequate records of the use, maintenance and malfunction of the Hardware and Software, and will provide Gryphen POS Solutions with such information as may reasonably be required to enable it to carry out the Support Plan.

5.5 The Customer will immediately notify Gryphen POS Solutions if there is any failure of the Hardware, Software or the System and will allow Gryphen POS Solutions full and free access to the Hardware and all documentation, software, materials and services necessary for the provision of the Support Plan. The Customer will ensure that relevant trained and experienced staff are available when required by Gryphen POS Solutions to provide Gryphen POS Solutions with information required to diagnose and/or repair the issue.

5.6 The Customer undertakes to put and keep in place adequate security measures and up-to-date firewalls to protect the Hardware, Software and Systems from any viruses, harmful code or unauthorised access. Gryphen POS Solutions shall not be responsible for any unauthorised access to the System by means of hacking, any unauthorised access of the Hardware with intent to commit or facilitate the commission of an offence or any unauthorised modification of the Hardware by a third party.

5.7 The Customer is responsible for ensuring that (where provided) their login password to the Gryphen POS Solutions Systems remains secure and confidential. The Customer should update their password regularly and ‘remember me’ type functions should not be used on publicly available or shared computers.

 

6. Software End-User License Agreement ("EULA")

 

6.1 This EULA agreement governs your acquisition and use of our Gryphen POS Solutions software. Please read these terms and conditions carefully before completing the installation process and using the Gryphen POS Solutions software. If you register for a free trial of the Gryphen POS Solutions software, this EULA agreement will also govern that trial.

6.2 By installing and/or using the Gryphen POS Solutions software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA. If you are entering into this EULA agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not install or use the Software, and you must not accept this EULA agreement.

6.3 This EULA agreement shall apply only to the Software supplied by Gryphen POS Solutions herewith regardless of whether other software is referred to or described herein. The terms also apply to any Gryphen POS Solutions updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.

6.4 Gryphen POS Solutions hereby grants you a personal, non-transferable, non-exclusive licence to use the Gryphen POS Solutions software on your devices in accordance with the terms of this EULA agreement.

6.5 You are permitted to implement one instance of the Gryphen POS Solutions software for each license you purchase onto a device (for example a PC, laptop, mobile or tablet) under your control. If not purchasing your device from Gryphen POS Solutions, you are responsible for ensuring your device meets the minimum requirements of the Gryphen POS Solutions software.

6.6 You are not permitted to:

6.6.1 Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things

6.6.2 Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose

6.6.3 Allow any third party to use the Software on behalf of or for the benefit of any third party

6.6.4 Use the Software in any way which breaches any applicable local, national or international law

6.6.5 Use the Software for any purpose that Gryphen POS Solutions considers is a breach of this EULA agreement

 

7. Internet / Network Requirements

7.1 Where Gryphen POS Solution’s Products require a reliable and robust connection to the internet / local network, it is the Customer’s responsibility to ensure that it has an appropriate internet / local network connection in place prior to installation of the Software and to also ensure that the internet connection is maintained correctly and includes an up-to-date firewall. 

7.2 The Customer is solely responsible for any connection charges, line rental charges and call charges in relation to any Products

7.3 Whilst Gryphen POS Solutions representatives may provide advice and an indication of the suitability of the Customer’s internet / local network connection, it remains the Customer’s sole responsibility to ensure it has a suitable internet / local network connection both before and after an order is placed. Gryphen POS Solutions is not responsible for any slow responses to its cloud based Systems, including where this is caused by the Customer’s poor internet / local network connection

7.4 Provision of Local Area Network (LAN) infrastructure (e.g. cabling, network switches, WAN router) is the responsibility of the Customer and should be appropriate to the size of business and criticality of the operation

7.5 Where the System is to be used over wifi (e.g. tablets/mobile devices):

7.5.1 the Customer is responsible for the setup, configuration and management of the wifi infrastructure. This includes ensuring wifi coverage in required areas and ensuring network dropouts due to wifi roaming are minimised; and

7.5.2 the Customer must consider that wifi is not as robust as a wired network and network dropouts can occur due to wifi coverage, access point roaming, tablet sleep modes as well as other environmental factors. This is not unique to Gryphen POS Solutions Systems and should be considered when selecting a wifi solution.

 

8. Delivery of Hardware

8.1 Whilst Gryphen POS Solutions takes reasonable care to ensure the Hardware packaging prevents any damage to the Hardware in transit, it is the Customer’s responsibility to check the Hardware before it accepts the Hardware at the time of delivery.

8.2 It is the Customer’s responsibility to document, and notify Gryphen POS Solutions of any defects in the cosmetic condition of the Hardware within 24 hours of delivery.

8.3 Provided clause 8.2 has been complied with, on the rare occasion that the Hardware is faulty or damaged on arrival Gryphen POS Solutions will provide the Customer with replacement Hardware.

8.4 All deliveries must be signed for by the Customer or its authorised representatives. Gryphen POS Solutions’s third party courier may notify the Customer the timeframe when the Customer should expect the delivery by email and/or text message. It is the responsibility of the Customer to provide Gryphen POS Solutions with the correct address, email and mobile number to benefit from this Service.

8.5 It is the responsibility of the Customer to have an appropriate and authorised person available to sign for the delivery of the Hardware. Gryphen POS Solutions is not responsible for any deliveries that cannot be made due to an authorised person not being available to receive the Hardware, or its courier not having access to the delivery location.

 

9. Hardware Warranty

 

​9.1 Subject to clause 9.2, in relation to any Hardware purchased from Gryphen POS Solutions, Gryphen POS Solutions warrants that such Hardware will be of good, satisfactory quality and free of any material defects for a period of 12 months from the date of the delivery of the Hardware to the Customer.

9.2 Notwithstanding the above clause, the warranties stated in this clause 9 shall not apply to:

9.2.1 any third-party hardware that is not provided by Gryphen POS Solutions;

9.2.2 any Hardware that has been tampered with, repaired and/or modified by non-authorised personnel;

9.2.3 any Hardware where the warranty seals have been broken or altered; 

9.2.4 any damage (accidental or other) to the Hardware that is cosmetic (meaning that damage that does not impact the operation and functioning of the Hardware), including rust, change in colour, texture or finish, wear and tear and gradual deterioration;

9.2.5 any damage to the Hardware caused by war, terrorism, fire, accident, natural disasters, intentional or accidental misuse, abuse, neglect or improper maintenance, use under abnormal conditions, accidental drops, spills, or powersurges;

9.2.6 any damage to the Hardware caused by improper third party installation, connection or malfunction of a peripheral device such as a printer, optical drive, network card, or USB device;

9.2.7 any damage to the Hardware through the Customer’s neglect to protect the Hardware, Software or System from viruses;

9.2.8 any damage to the Hardware caused by an external electrical fault or any accident;

9.2.9 fraud, theft, unexplained disappearance or wilful acts;

9.2.10 liquid or fluid damage or contamination of any kind; or

9.2.11 any damage caused by user error such as malware, uninstallation, other programs, mistreatment or any software problems that are caused by use of anything other than Gryphen POS Solutions Software.

9.3 If the Customer believes that the Hardware contains a fault that is covered by the warranties provided herein, the Customer must report the issue to Gryphen POS Solutions in writing within the applicable warranty period and return the item to Gryphen POS Solutions for inspection. Within 14 days of receiving the Hardware in question, Gryphen POS Solutions will examine the item and if covered by the warranty, at Gryphen POS Solutions’s discretion, will either replace the Hardware with one of similar performance and capabilities or repair the Hardware. If a device fails outside of the first 30 days of original purchase, Gryphen POS Solutions retains the right to replace or repair the Hardware with refurbished or remanufactured parts. If Gryphen POS Solutions determines that the Hardware is outside of the warranty rights, Gryphen POS Solutions will, at the Customer’s request, prepare a quote for repair or replacement of the item in question. The Customer can then choose to pay for the repair or replacement or to have its original Hardware returned to it (at the Customer’s expense).

9.4 Where Gryphen POS Solutions replaces or repairs Hardware under warranty, or as a chargeable out of warranty service, the repaired or replacement Hardware inherits the remaining warranty period from the original Hardware. If the original Hardware has less than 30 calendar days of warranty remaining, the replacement or repaired Hardware will receive a warranty of 30 calendar days.

9.5 If any new Hardware fails within the first 30 days of its original purchase, and is covered by a warranty, Gryphen POS Solutions will replace the device with new Hardware, at Gryphen POS Solutions’s expense.

 

10 Refunds and return of the Products

10.1 No return or refund will be issued by Gryphen POS Solutions unless the complaints procedure outlined in clause 11 is followed.

10.2 The Software licence fee is strictly non-refundable.

10.3 Any returned Products should be packed in the original packaging, with all boxes, leads, discs, adaptors and manuals. Gryphen POS Solutions reserves the right to charge for any damages caused in transit due to poor packaging.

10.4 Gryphen POS Solutions Systems and Software sales are excluded from the standard returns policy due to the considerable costs in configuration, personalisation, training and dispatch. These items are strictly non-refundable.

10.5 Gryphen POS Solutions will not process a return where any of the following apply:

10.5.1 Customer or staff training needs, i.e. where the Customer is not understanding or using the System properly;

10.5.2 the Customer not properly researching or qualifying the purchase;

10.5.3 functions that are not present or work differently than other products available in the market;

10.5.4 compatibility with third party items/systems;

10.5.5 Products that have been dispatched, configured, personalised and used;

10.5.6 the Customer shutting down the business or where the Product is surplus to requirements after delivery; 

10.5.7 orders that contain bespoke or custom equipment;

10.5.8 the Customer accidentally damaged the Products after delivery;

10.5.9 the Customer or a third party has misused the Products and damaged them;

10.5.10 the Customer or a third party has tried to open or tamper with the Hardware in some way;

10.5.11 the Customer no longer requires the Hardware and the Customer has personalised it;

10.5.12 if the item is part of a custom or large order;

10.5.13 the item is not returned in its original packaging; or

10.5.14 the Customer has not paid the Software licence fee;

10.6 Gryphen POS Solutions shall assess the return request by using the following process:

10.6.1 Gryphen POS Solutions shall use reasonable endeavours to understand why the Customer feels the Product is ‘unfit for purpose’ and attempt to reasonably resolve any issues when highlighted by the Customer remotely;

10.6.2 Gryphen POS Solutions shall attend the Customer’s business premises if the situation cannot be resolved remotely to perform a site survey and on-site training or repair. This may be subject to a charge; and

10.6.3 once the issue is identified, Gryphen POS Solutions must be given reasonable time to resolve the issue (and with the Customer’s assistance (where applicable) to do so).

10.7 The Customer is responsible for the delivery of the Products back to Gryphen POS Solutions at the Customer’s expense, and only after the Products have been checked by an engineer of Gryphen POS Solutions, will any payment be agreed upon and released. Reasonable return costs (at the cheapest available rate) will be refunded by Gryphen POS Solutions where a fault is identified.

10.8 Refunds will only be made after reasonable endeavours have been made by Gryphen POS Solutions to resolve the issue.

10.9 In the event of a return, refunds, credit notes and exchanges can only be made to the card account or business/person that made the order originally, and these will be processed within 28 days of the item’s return to Gryphen POS Solutions.

10.10 Any amounts paid for on-site installations, product imports, support payments, postage, module integrations and repair and labour cost are non-refundable.

 

11 Complaints Procedure

11.1 Gryphen POS Solutions endeavours to ensure that all Customers are satisfied with their purchase, however, where problems arise the Customer commits to following the complaints procedure in this clause.

11.2 If the Customer is not entirely satisfied with the Products and/or Services, its first action should be to contact the Gryphen POS Solutions support team.

11.3 If the issue has not been satisfactorily resolved, the Customer should then make a written complaint either by email to info@gryphenpossolutions.com or by post to: Complaints, Gryphen POS Solutions, 15 Ashwell Road, Guilden Morden, Hertfordshire, SG8 0JX.

11.4 Written complaints should include full details of the situation and the nature of the Customer’s complaint. Additionally the Customer should ensure that it provides the best contact details to reach them on.

11.5 Gryphen POS Solutions will respond to the initial written complaint within two Working Days, confirming that Gryphen POS Solutions has received the Customer’s complaint and advising the Customer of which Gryphen POS Solutions manager will be managing the resolution.

11.6 The assigned manager will endeavour to resolve the Customer’s complaint as quickly as possible, working with the Customer to understand all aspects and come up with a proposed resolution where a fault is identified.

11.7 Once the proposed resolution is understood, the assigned manager will write to the Customer documenting the resolution and rationale behind the decision.

11.8 Should the Customer still not be happy with the resolution provided, the Customer should contact the assigned manager and notify them that it wishes to escalate the complaint further. No claim will be valid unless the Customer firstly follows the above process.

11.9 All sales are bound by the terms of this Agreement and Gryphen POS Solutions asks that the Customer read the full Agreement before raising a complaint. Please note that whilst the Customer’s statutory rights are not affected, this is a business-to-business transaction, and is therefore not governed by consumer law (such as the Consumer Rights Act 2015).

11.10 Gryphen POS Solutions does not tolerate any abusive, offensive or inappropriate behaviour or intimidation towards its staff. In the event that the Customer does not treat Gryphen POS Solutions’s staff in a courteous and professional manner at all times, Gryphen POS Solutions reserves the right to cease all correspondence with the Customer and provide this as evidence of non-cooperation and bad faith in any subsequent legal proceedings.

 

12 Intellectual Property Rights

12.1 All Intellectual Property Rights and all other rights in the Products shall vest and remain vested in Gryphen POS Solutions (unless otherwise agreed in writing).

12.2 All Customer data (including but not limited to transactional data, sales data, product data and stock data) is owned by the Customer.

12.3 The Customer hereby provides Gryphen POS Solutions with a non-exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide licence to use the Customer’s transactional data, sales data, product data and stock data that is generated through the Gryphen POS Solutions System for the enhancement of existing services and the provision of new services for Gryphen POS Solutions, its customers and partner organisations. For the avoidance of doubt, any personally identifiable information will be anonymised and/or aggregated.

12.4 The Customer agrees not to remove, deface or cover up any name plates, logos or trade marks appearing on the Products.

 

13 Liability

13.1 This clause sets out the liability of each party under this Agreement.

13.2 All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

13.3 Nothing in this Agreement limits or excludes the liability of either party for death or personal injury which results from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.

13.4 Subject to clause 13.3 and excluding any provisions in this Agreement where an indemnity is provided by either party:

13.4.1 neither party will be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

13.4.2 each party’s total liability to each other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the price paid or payable for the relevant Products and/or Services provided to the Customer by Gryphen POS Solutions giving rise to such liability.

 

14 Confidentiality

14.1 A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).

14.2 In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:

14.2.1 to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;

14.2.2 not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and

14.2.3 to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

14.3 Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:

14.3.1 is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;

14.3.2 the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;

14.3.3 the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;

14.3.4 is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or

14.3.5 is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.

14.4 This clause 14 shall survive termination of this Agreement, however arising.

 

15 Data Protection

15.1 Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with the Data Protection Act 1998 and any other applicable privacy laws and regulations.

15.2 The Customer must provide Gryphen POS Solutions with a document setting out the (a) subject matter and duration of any processing to be undertaken by Gryphen POS Solutions; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.

15.3 The Customer acknowledges and agrees that it will be the Data Controller under this Agreement and that it will be responsible for adequately addressing the use of cookies and data protection obligations in its end-customer / Customer Terms & Conditions and policies. As Gryphen POS Solutions does not have any control over the Customer’s data protection notices, policies and Terms & Conditions, the Customer will indemnify and keep Gryphen POS Solutions and its Affiliates indemnified against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Gryphen POS Solutions arising out of or in connection with any claim in respect of: (a) a breach of clause 15.1, 15.2 or 15.3; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of data subjects for the exportation of any Personal Data outside of the European Economic Area by Gryphen POS Solutions under clause 15.6.

15.4 Gryphen POS Solutions acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Customer strictly confidential (pursuant to clause 14 (Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Customer is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Customer and Gryphen POS Solutions shall not process the Personal Data for any other purpose, unless required by law to which Gryphen POS Solutions is subject, in which case Gryphen POS Solutions shall to the extent permitted by law inform the Customer of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring Gryphen POS Solutions to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Customer during this Agreement; and (e) notify the Customer without undue delay or in any case within 48 hours upon Gryphen POS Solutions or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Customer with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.

15.5 Gryphen POS Solutions agrees to assist the Customer with all subject access requests which may be received from an endcustomer in a prompt timeframe (at the Customer’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by Gryphen POS Solutions. Upon request, Gryphen POS Solutions shall provide reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 15. Gryphen POS Solutions shall assist the Customer in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that Gryphen POS Solutions shall be entitled to charge a reasonable fee for such assistance.

15.6 Gryphen POS Solutions agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection in accordance with Data Protection Laws.

15.7 Upon the termination or expiry of this Agreement for any reason, Gryphen POS Solutions shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent Gryphen POS Solutions from retaining a copy to meet its legal or regulatory obligations.

15.8 Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.

15.9 The Customer consents to the processing by Gryphen POS Solutions of all of the Customer’s transactional and sales data, which may include ‘Personal Data’ (as defined by applicable Data Protection Laws) for all purposes connected with this Agreement.

15.10 The Customer acknowledges that any data transmitted over the Internet or through any other form of transmission including by telephony or other electronic means cannot be guaranteed to be free from the risk of interception even if transmitted in encrypted form.

15.11 Gryphen POS Solutions cannot guarantee the recovery of Customer data where this is deleted by the Customer (or Gryphen POS Solutions at the Customer’s request).

 

16 Indemnity

16.1 The Customer will indemnify and keep Gryphen POS Solutions and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Gryphen POS Solutions arising out of or in connection with any claim in relation to:

16.1.1 the Customer’s content or data on the Gryphen POS Solutions System:

16.1.1.1 infringing a third party’s Intellectual Property Rights;

16.1.1.2 accuracy or completeness; and/or

16.1.1.3 being defamatory, offensive, in breach of privacy or data protection laws or otherwise illegal.

16.1.2 the use of the Products in a manner which causes loss, harm or damage to Gryphen POS Solutions or any third party by the Customer or any third party.

 

17 Termination

17.1 Unless stated otherwise herein, no cancellation or variation of an order by the Customer shall be effective unless it is made in writing and accepted in writing by an authorised officer of Gryphen POS Solutions. Gryphen POS Solutions reserves the right to refuse to accept such cancellation or variations or to accept cancellation or variation only subject to such conditions as it considers are warranted according to the circumstances.

17.2 Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:

17.2.1 a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or

17.2.2 an event, including (or similar in nature to) the following:

17.2.2.1 the Defaulting Party is unable to pay its debts as they fall due;

17.2.2.2 the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;

17.2.2.3 a receiver is appointed in respect of the whole or any part of the Defaulting Party;

17.2.2.4 a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or

17.2.2.5 the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

17.3 Gryphen POS Solutions may terminate this Agreement with immediate effect if it reasonably believes that the Customer has infringed or will infringe Gryphen POS Solutions’s rights or the rights of a third party.

17.4 If this Agreement terminates for any reason, notwithstanding any other provision, Gryphen POS Solutions shall have no obligation to refund the Customer and all charges payable by the Customer to Gryphen POS Solutions under this Agreement will become due and payable immediately. This clause is without prejudice to any right by Gryphen POS Solutions to claim for interest or any other right under this Agreement.

17.5 The Customer’s data stored within the Gryphen POS Solutions System shall be available for the Customer to download for a period of 30 days from the effective date of termination. After this period, the Customer’s data shall not be recoverable by or for the Customer and may be deleted by Gryphen POS Solutions.

17.6 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

 

18 Force Majeure

18.1 Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, an act of God, strikes, lock-outs or other industrial disputes (involving the workforce of Gryphen POS Solutions), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event continues for a period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.

 

19 Audit

19.1 During the term of this Agreement and for a period of two years following its termination, upon reasonable notice to the Customer, Gryphen POS Solutions will have the right to audit all usage of the Software by the Customer either remotely or at the Customer’s premises, provided that the Customer will not be required to submit to such audit more than twice in any calendar year. The Customer will provide Gryphen POS Solutions (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit. The parties will bear their own costs and expenses incurred in respect of compliance with their obligations under this clause 19.1, unless the audit identifies a material default by the Customer, in which case the Customer will reimburse Gryphen POS Solutions for all of its reasonable costs incurred in the course of the audit.

19.2 If an audit identifies that the Customer is in breach of this Agreement, without prejudice to Gryphen POS Solutions’s other rights and remedies, the Customer will promptly take the necessary steps to comply with its obligations (including making an additional payment for any use of the Software outside of the agreed licence scope at Gryphen POS Solutions’s then current rates).

20 Miscellaneous

20.1 Gryphen POS Solutions offers, estimates, proposals and website are without any commitment on its part and all orders require Gryphen POS Solutions Acceptance in writing to create a contract. 

20.2 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently ornegligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

20.3 It may be necessary for Gryphen POS Solutions to update this Agreement and its terms from time to time. If the Customer continues to use Gryphen POS Solutions’s services after Gryphen POS Solutions has informed the Customer of any updated version of this Agreement, the Customer will be deemed to have accepted these changes and they will be incorporated into this Agreement.

20.4 Subject to clause 20.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.

20.5 Unless specifically notified to the contrary in writing, Gryphen POS Solutions may disclose the Customer as a customer of Gryphen POS Solutions, and may use the Customer name and logo on the Gryphen POS Solutions website and in promotional materials. 

20.6 The Customer is responsible for informing Gryphen POS Solutions of any changes to their contact details.

20.7 Please note that Gryphen POS Solutions may record phone calls that are received from the Customer for training purposes.

20.8 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.

20.9 The Customer may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of Gryphen POS Solutions. Gryphen POS Solutions may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20.10 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. The Customer and Gryphen POS Solutions hereby waive their rights (i) to sue before a jury (where applicable); or (ii) to participate in a class action, class-wide arbitration (where applicable), private attorney general action, or any other proceeding in which a party acts in a representative capacity.

20.11 Nothing in this Agreement is intended to, or will be deemed to establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.

20.12 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement

20.13 This Agreement is governed by English law and the parties agree to irrevocably submit to the exclusive jurisdiction of the English courts.

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