Standard Terms & Conditions of business
of
TOTAL TICKETS LIMITED
FOR THE SUPPLY OF HARDWARE,SOFTWARE AND SERVICES
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INTRODUCTION
This document contains the terms and conditions of Total Tickets Ltd ( TT ) for the supply of hardware, software and services.
Binding Terms and Conditions
- Incorporation of Terms By signing any agreements, contracts, or order forms with Total Tickets Limited (“TT”), the customer (“Customer”) agrees to be bound by the terms and conditions set forth in this document, TT_TC05(1).docx (“Standard Terms & Conditions”). These Standard Terms & Conditions shall apply to all goods and services provided by TT unless expressly stated otherwise in a separate written agreement signed by an authorised representative of TT. The Customer acknowledges that these Standard Terms & Conditions have been provided, reviewed, and agreed upon prior to the execution of any binding agreement or contract with TT.
- Supremacy of Terms In the event of any conflict between the provisions of this document and any other document or agreement, the terms of the document bearing the signatures of both parties shall prevail unless expressly agreed otherwise in writing by both parties.
- Legal Effect This document is intended to create legally binding obligations on both TT and the Customer. The Customer’s acceptance of any goods or services from TT shall constitute conclusive evidence of the Customer’s acceptance of these Standard Terms & Conditions.
acceptance of any goods or services from TT shall constitute conclusive evidence of the Customer’s acceptance of these Standard Terms & Conditions.
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PLACING ORDERS
You, (‘the Customer’) may place orders at any time by requesting your TT sales executive to
complete an Order Form, an example of which is incorporated as Appendix 1.
Two copies of each completed Order Form will be sent to you for your signature and both copies
should then be returned to TT .
The completed Order Form when counter-signed by TTtogether with the referenced terms and
conditions establishes the Agreement and one copy of the Order Form will be returned to you.
For the Supply of Equipment
To place an order for the supply of equipment the Hardware Order Form will make reference to
Sections A (Sale), C (Software Licence and Support) and E (General) of these terms and conditions.
Section C (Software Licence and Support) will apply where Operating System Software is supplied
as part of the Equipment.
For the Supply and Maintenance of Equipment
To place an order for the supply and maintenance of equipment the Hardware Order Form will
make reference to Sections A (Sale), B (Equipment Maintenance) and E (General) of these terms
and conditions. Section C (Software Licence and Support) will apply where Operating System
Software is supplied as part of the Equipment.
For Software Licence and Support
To place an order for a Software Licence and Support the Software Order Form will make reference
to Sections C (Software Licence and Support) and E (General).
For Professional Services
To place an order for Professional Services the Professional Services Order Form will make
reference to Sections D (Professional Services) and E (General).
IMPORTANT – PLEASE NOTE
All Orders placed shall be subject to acceptance by TT and if and when accepted by TT shall
constitute Agreements hereunder. Section E (General) shall apply to all Orders accepted by TT .
In the event that Order Forms are not returned to TT within 30 days from despatch TT may
withdraw the Order Form or submit a revised Order Form.
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The basic Equipment Maintenance Service and Operating System Software Support Service may be amended by the use of the Equipment Maintenance and/or Operating System Software Support Addenda available on request. Any such amendment will be indicated on the Order Form.
TT reserves the right to update or withdraw these terms and conditions at any time but not for Orders already placed.
These terms and conditions are intended for business-to-business use only. If you believe you are a consumer please refer to your TT sales executive.
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____________________ EQUIPMENT
CONTENTS
Section
A SALE OF EQUIPMENT
B EQUIPMENT MAINTENANCE
C SOFTWARE LICENCE AND SUPPORT
D PROFESSIONAL SERVICES
E GENERAL
Appendix 1
Hardware Order Form
Software Order Form
Professional Services Order Form
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- BASIS OF THE SALE
1.1 TT will sell and the Customer will buy the Equipment listed on the Order Form together with operating instructions as normally provided by the manufacturer on the terms and conditions of this Section A and those contained in Section E.
1.2 The Estimated Delivery Date(s), the Delivery Address and the Sale Price are stated on the Order Form. TT will use reasonable endeavours to deliver the Equipment on the Estimated Delivery Date.
1.3 Refurbished materials may be used in the manufacture of the Equipment. - SITE PREPARATION, DELIVERY AND INSTALLATION
2.1 The Customer shall, at its own expense, prepare the site, obtain all necessary consents and provide a suitable environment for the Equipment in accordance with
TT ‘s specifications before the Estimated Delivery Date. TT will then deliver the Equipment to the Delivery Address.
2.2 If TT is not to install the Equipment,the Customer
Undertakes to examine the Equipment for defects as soon as delivery occurs and immediately report any defects found to TT .
2.3 Unless otherwise agreed, delivery and installation are subject to extra charges which will be paid by the Customer in accordance with
Clause 3.
2.4 Operating supplies are not supplied as part of the Equipment. - TERMS OF PAYMENT
3.1 Risk in the Equipment shall pass to the Customer upon delivery. TT will, repair or replace the Equipment if it is lost, damaged or destroyed in transit prior to delivery or collection.
3.2 Title in the Equipment shall not pass from TT until the Customer shall have paid in full all sums due in respect of the Equipment concerned.
3.3 Deleted.
3.4 Notwithstanding that the Equipment remains the property of
TT the Customer may use the Equipment in the ordinary course of the Customer’s business.
3.5 TT shall be entitled to recover the Equipment sale price plus VAT notwithstanding that title in the Equipment has not passed from TT .
3.6 Until such time as title in the
Equipment passes from TT, that in the event
of a breach of contract by the customer only the,
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Customer shall upon request deliver
up the Equipment. If the Customer 4. WARRANTY
fails to do so TT may enter upon any premises owned, occupied or
4.1 TT warrants that at the date of controlled by the Customer where delivery and during the Warranty the Equipment is situated and
Period as shown on the Order Form repossess the Equipment. On the the Equipment will materially meet making of such request the rights of its then published specification. the Customer under 3.4 above shall cease.
4.2 TT will make good, by repair or by the supply of
3.7 The Customer shall not pledge or in replacement parts, proven defects any way charge by way of security which under proper use appear in for any indebtedness any item of any part of the Equipment which the Equipment which is the are reported within the Warranty
property of TT .Without Period shown on the Order Form
prejudice to the other rights of TT , and which are due solely to faulty if the Customer does so all sums materials or workmanship provided whatever owing by the Customer to always that neither the Customer TT shall forthwith become due nor any third party shall have
and payable. attempted to remedy any alleged
defect prior to requesting assistance from TT in respect thereof.
3.8 The Customer shall insure and keep insured the Equipment to the full
sale price against ‘all risks’ to the 4.3 The Warranty Period shall reasonable satisfaction of TT until commence on the date of delivery the date that title in the Equipment of the Equipment and shall continue passes from TT , and shall for 12 months unless otherwise whenever requested by TT shown on the Order Form. produce a copy of the policy of
insurance.Without prejudice to 4.4 No term or condition contained within the other rights of TT , if the this warranty could be construed as infringing on Customer fails to do so all sums or in any way diminishing the customer’s whatever owing by the Customer to statutory
TT shall forthwith become due and payable.
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OPERATING SYSTEM - The Customer’s licence to use the Equipment Operating System Software shown on the Order Form shall be as set out in Section C.
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SECTION B
EQUIPMENT MAINTENANCE
- THE MAINTENANCE SERVICE replace defective parts and/or make
adjustments to the Equipment.
1.1 TT will provide and the Customer will take a remedial repair service 1.7 During the Prime Period of in respect of the Equipment and pay Maintenance TT may carry out
the Basic Periodic Charge or other such preventive maintenance as it such agreed charge for the deems necessary to keep the Maintenance Service(‘the Equipment in operating condition at Maintenance Service Charge’) for the Equipment Location. the Equipment listed on the Order Form for an Initial Period of 3 years
(or as otherwise stated on the Order 1.8 For certain Equipment TT will Form) on the following terms and provide a remote maintenance conditions, those stated on the service which will require that Order Form and those contained in initial fault analysis is performed by
Section E. the remote running of diagnostics
and which may render on-site maintenance unnecessary.
Unless otherwise specified on the
Order Form, the Maintenance 1.9 For Equipment which makes use of
Service is as defined below: TT ’s proprietary or TT supplied
Unix or NT operating system
Software TT will during
1.2 The Maintenance Service will be
Maintenance Cover Hours and provided at the installed address as normally within four hours shown on the Order Form (‘the following receipt of the call, Equipment Location’).
commence either the running of remote diagnostics or, at its
1.3 Requests for Maintenance Service discretion and where necessary, may be placed with TT ’s attend the Equipment Location.
Response Centre at any time.
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1.4 The Maintenance Service will be 1.10 For Equipment other than that provided during the Prime Period of specified in 1.9 above TT will Maintenance and any agreed during the next following Prime extension subject to payment of Period of Maintenance after the TT ’s then current charges receipt of the call commence either
(‘Maintenance Cover Hours’). the running of remote diagnostics
or provide a telephone response to
the Customer or, at its discretion
1.5 The Prime Period of Maintenance and where necessary, attend the means 8.30am to 6.00pm each day Equipment Location. except Saturdays, Sundays and UK statutory holidays.
1.11 The Maintenance Service includes
1.6 During Maintenance Cover Hours access to TT ’s problem escalation TT will supply replacement parts process and TT ’s Customer and provide engineering resource to Office.
7 - INSPECTION
TT reserves the right to inspect Equipment which is not new and/or for which it has not provided Maintenance Service immediately prior to the commencement of the Initial Period. TT will provide an estimate for the work necessary to accept such Equipment for Maintenance Service and if authorised within 30 days from the date of the estimate will carry out the necessary work. All inspection and reconditioning costs and charges necessary to bring the Equipment up to TT ‘s then current revision level and a maintainable condition will be invoiced to the Customer.If the Customer does not wish to incur any of these charges, TT reserves the right not to accept the
Equipment for Maintenance Service. - EXCLUSIONS
The Maintenance Service does not include:
3.1 Any remedial maintenance
necessitated by accident, neglect or misuse of the Equipment by the Customer or a third party, failure of electrical supply, restoring the Customer’s system to the latest back-up or any other reason except preventive or remedial maintenance for fair wear and tear;
3.2 Electrical work external to the Equipment or the maintenance of accessories, attachments or other devices not supplied by TT ;
3.3 Services necessitated by software not supplied by TT or consumable items;
3.4 Services necessitated by environmental conditions external to the Equipment;
3.5 Services which are unsafe or impractical for TT to provide, for instance because of non-TT supplied or fitted alterations to the Equipment, its physical location or its connection by mechanical or electrical means to non-TT supplied machines or devices; or
3.6 Any remedial work requested by the Customer which falls outside the Maintenance Service may be undertaken by TT at additional charges and under a separate agreement.
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4.2 Deleted
4.3 Unless otherwise provided on the Order Form, all tools, test and Maintenance gear including diagnostic software, materials, media and documentation remain the property of TT and are solely for the use of TT . No licence is granted for the use by the Customer or any third party of TT ‘s diagnostic software.
4.4 Where any item of Equipment becomes, in TT ‘s reasonable opinion, uneconomic to maintain and where it is impossible for TT to obtain spare parts, TT may upon not less than 30 days’ prior written notice to the Customer
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withdraw Maintenance Service for the manufacturer’s specifications that item, and reduce the and provide at its own expense all Maintenance Service Charges supplies and facilities for the accordingly. TT will not exercise purpose of the Maintenance
its right under this sub-clause for Service;
TT Equipment less than three years old.
5.4 Use the Equipment in accordance with its documentation and take all
4.5 Where units of any items of reasonable care to maintain suitable Equipment are exchanged by TT accommodation and facilities as part of the Maintenance Service (including suitable environmental
TT reserves the right to levy conditions) for the Equipment;
Additional charges if such
Equipment units have been
indelibly marked. 5.5 Supply and fit consumable items
including dot matrix print heads, printer ink ribbons, cartridges and containers, laser printer toner,
4.6 TT may, acting reasonably, revoke drums, developer, corona wires, or amend the Maintenance Service fuser kits, transfer kits, PC for any items of Equipment if connecting cables (to the mains or
TT ’s ability to provide the otherwise), printer and PC batteries,
Maintenance Service is impaired as mice and any other items of a a result of: consumable nature;
4.6.1 such Equipment being moved
or relocated by the Customer 5.6 Supply and fit items identified by or a third party or; the Equipment manufacturer as
having a defined period of use or life.
4.6.2 alterations or attachments made to the Equipment by a
person other than TT . 5.7 In the event that items covered
under 5.5 or 5.6 above are - THE CUSTOMER’S OBLIGATIONS identified in the manufacturer’s
operating documentation as
requiring engineering assistance to
For the duration of the Agreement, the fit then TT will fit such items free
Customer shall: of charge normally during the next
following Prime Period of
5.1 Notify TT immediately if the Maintenance subject to availability Equipment needs maintenance and of engineers. The Customer will permit TT full and free access to
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supply the item which shall be in the Equipment and reasonable accordance with the Equipment assistance to diagnose faults; manufacturer’s specification.
5.2 Not allow persons other than TT engineers to repair, adjust (except 5.8 Where remote maintenance is as provided in the operating procured, acquire a licence for all
documentation) or maintain the necessary software, other than
Equipment; TT ’s diagnostic software, and
materials and provide direct dial dedicated telephone facilities 5.3 Use with the Equipment only operating supplies which meet with
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enabling remote maintenance access.
5.9 Permit TT to install, load and operate remote diagnostic software for the purpose of diagnosing and analysing faults. - AGREEMENT TERM
The duration of the Agreement for
Maintenance Service for each item of
Equipment shall be not less than the Initial Period which, unless otherwise stated on the Order Form, commences on the date of delivery or date of installation if undertaken by TT . - CHARGES
7.1 All Maintenance Service Charges will be invoiced in advance.
7.2 The Maintenance Service Charge shall commence on the day following the expiry of any Warranty Period associated with the supply of Equipment pursuant to Section A
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unless otherwise shown on the Order Form.
7.3 By not less than 3 months’ prior written notice the Maintenance Service Charges may be adjusted from time to time to correspond with TT ‘s then current scale of charges. - WARRANTY
TT warrants it will use all reasonable skill and care in carrying out the Maintenance Service.
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SECTION C SOFTWARE LICENCE AND SUPPORT - BASIS OF SOFTWARE LICENCE AND SUPPORT
1.1 TT will grant and the Customer will accept non-exclusive and non- transferable licence(s) to use the Software listed on the Order Form
Only with the Designated Equipment (and, where relevant, up to the specified number of users) during the Initial Period as stated on the Order Form on the terms and conditions contained in this Section C and those contained in Section E.
1.2 TT will provide and the Customer will accept and pay for the Support Service for the Software listed on the Order Form on the terms and conditions contained in this Section C, those stated on the Order Form, and those in Section E.
A. DEFINITIONS
‘Application Software’ means software programs other than Operating System Software used to perform a specific task, business service or business function.
‘Designated Equipment’ means the computer hardware set out on the Order Form, or as otherwise agreed with TT , on which the Software is to operate.
‘Enhancement’means increased functionality of the Software usually denoted by a new version number. Enhancements may be subject to additional licence, installation and support charges. The Customer may also be required to sign a new or modified licence agreement.
‘Maintenance Release’ means patches, fixes, program temporary fixes (PTFs), and the like used to resolve faults within the Software and/or to ensure that the Software meets its published specification.
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‘Operating System Software’ means software programs which supervise and control an entire computer system including its peripherals and which provides the link between the Equipment and the Application Software being run.
‘Software’ means Operating System Software and/or Application Software as listed on the Order Form. - DELIVERY AND INSTALLATION
2.1 TT will use reasonable endeavours to deliver the Software on the Estimated Delivery Date as specified on the Order Form.
2.2 If TT is not to install the Software, the Customer undertakes to examine the Software for defects as soon as delivery occurs and immediately report any defects found to TT .
2.3 If the Designated Equipment is inoperable this licence may at TT ‘s discretion be extended to authorise the Customer to use the Software on other specified equipment until the Designated Equipment is made operable. - CHARGES
3.1 All licence fees and support charges
Are payable in advance
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commencing on the date of 4.3 and 4.4 above the Support delivery. Fixed term licence fees Service will continue unless and cover use of the Software only until terminated by not less than 3
during the Initial Period(s). months’ prior written notice given
by either party to the other effective
at the end of the initial term or at
3.2 By not less than 3 months’ prior any anniversary thereof.
written notice recurring licence and/or support charges may be adjusted from time to time to - WARRANTY FOR SOFTWARE
correspond with TT ‘s then current scale of charges.
5.1
TT warrants that the Software is
designed to conform to its - AGREEMENT TERM specification applicable at the date
of the Order Form and will be the current release but not, unless specifically stated on the Order Form alpha or beta releases, at the time of delivery to the Customer.
If notified by the Customer in writing within three months, or as otherwise stated on the Order Form, from the date of delivery of demonstrable inherent defects which
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make the Software materially non-compliant with the applicable specification, TT will at its option either rectify such defects or supply alternative Software for the same purpose. If neither remedy can be supplied then TT will repay to the
Customer payments made for the
Affected Software and the Agreement will be treated as discharged in respect thereof.
This warranty does not cover defects arising from:
5.3.1 any modification by the Customer or a third party of the Software (unless made with TT ‘s written consent); or
5.3.2 operator error or misuse of The Software or any equipment or any fault in any equipment or any software
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4.1 Licence: The Initial Period for the licence of each item of Software as stated on the Order Form shall commence on the date of delivery and the licence will remain in force
there after unless and until
terminated by not less than 3 5.2
months’ prior written notice given by either party to the other expiring at the end of the Initial Period or at any time thereafter.
4.2 Support Service: Unless otherwise specified on the Order Form, the provision of support services shall commence on the delivery of the Software to the Delivery Address.
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4.3 Subject to Clause 6 and the provisions of Section E, the initial term for provision of support services for Application Software
will be for a period of one year
from the date of delivery to the 5.3
Delivery Address.
4.4 Subject to Clause 6 and the provisions of Section E, the initial term for provision of support services for Operating System Software will be for three years from the date of delivery to the Delivery Address.
4.5 Subsequent to the appropriate initial term indicated in sub-clauses
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used in conjunction with the Software; or
5.3.3 use of Software Maintenance Releases earlier than the Maintenance Release level currently supported which will be the then current Maintenance Release unless Other wise specified n writing; or
5.3.4 use of non-TT proprietary software for which TT will pass on the benefit of the warranty obtained by TT from its supplier.
5.4 Except where specifically stated on the Order Form or in any applicable specification TT does not warrant that the Software will interact or operate correctly with any other software.
the Software (unless made with TT ‘s written consent);
6.3.3 operator error or misuse of the Software or equipment or any fault in the equipment or any software used in conjunction with the Software;
6.3.4 use of Software Maintenance Releases earlier than the Maintenance Release level currently supported by TT from time to time which will be the current Maintenance Release unless otherwise specified in writing;
6.3.5 Customer requested tests outside TT ‘s normal test procedures. - SUPPORT SERVICE
6.1 Software will be supported in accordance with the Support
6.4 Any remedial work requested by the Customer which falls outside the Support Service may be undertaken by TT at additional charges and under a separate agreement.
Categories described in Annexure 1 to this Section and as specified on the Order Form. Unless otherwise shown on the Order Form support is available only between 0900 and 1715 hours Monday to Friday excluding UK statutory holidays.
6.2 TT may change the Support Category of any Software by not less than six months’ prior written notice.
6.3 Support does not include service in respect of failures arising from:
6.3.1 products or services not supplied by TT ;
6.3.2 any modification by the
Customer or a third party of - THE CUSTOMER’S OBLIGATIONS
7.1 The Customer hereby grants to TT full and free access to the Software which right shall survive termination of the Agreement.
7.2 For the duration of the Support Agreement the Customer will:
7.2.1 ensure that all operating supplies, (for example all tapes, disks, stationery, and similar accessories) which are not supplied as part of the Software are suitable and of good quality; and
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7.2.2 if requested by TT provide;
7.2.2.1 named contacts who will be responsible for calling TT ‘s Response Centre and who shall be familiar with the Software; and
7.2.2.2 a clear description of the problem and circumstances in which it occurs, including sufficient
instructions, documentation,screens hots and data to enable TT to understand and if necessary reproduce the fault.
7.3 Where remote support is provided by TT the Customer shall acquire a licence for all necessary software, excluding TT diagnostic software, and materials and provide direct dial dedicated telephone facilities enabling remote support access.
E and Clause 5 of this Section C shall apply to the supply by TT of a shrink-wrapped licence to the Customer. - INTER-OPERABILITY
10.1 The Customer will not reverse compile or disassemble any Software unless it is essential to access information necessary to achieve interoperability of the Software with other software subject to the following conditions:
10.1.1 Any such necessary information has not been previously available to the Customer;
10.1.2 Access is confined to the parts of the Software necessary to achieve interoperability;
10.1.3 The information obtained shall only be used by the Customer to achieve - WARRANTY FOR SUPPORT
TT warrants it will use all reasonable skill and care in carrying out the Support Services in this Section C.
Interoperability of the Software with other software.
10.2 The Customer specifically undertakes: - SOFTWARE OWNERSHIP
9.1 The Software and all other items supplied hereunder remain the property of TT or the owner.
9.2 In the event that any Software supplied hereunder is subject to a licence of the owner or distributor of such Software, or if the parties have entered into an alternative licence, such licence shall in all respects be binding upon the Customer.Not withstanding the foregoing, the provisions of Section
10.2.1 not to communicate any such information to third parties except when it is essential to achieve interoperability of the Software with other software;
10.2.2 not to use any such Information for the development, production or marketing of software substantially similar in its expression to the Software nor do any other act which
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infringes copyright in the Software; and
10.2.3 to obtain from third parties the same undertaking set out in paragraphs 10.2.1 and 10.2.2 hereof and including this provision if the Customer needs to Communicate such information to any such third parties to achieve interoperability of the Software with other software.
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ANNEXURE 1
Support Categories for Software
Category A
This category applies to Software under
continuing development by TT or the
owners thereof as appropriate.
Level 1 support comprises only:
3.2
1.1
provision of advice on the availability
of services relating to Software.
3.3
Level 2 support comprises:
2.1
2.2
level 1 support;
notification of availability of new
Maintenance Releases of Software
which contain problem fixes but not
enhanced functionality, and supply
thereof upon written request by the
Customer.The Customer shall be
responsible for the implementation of
new Maintenance Releases;
notification of availability
Enhancements to the Software;
of
3.4
provide fault resolution and, where
possible, the use of remote support.
Level 3 support comprises:
3.1
level 2 support;
on site support where deemed necessary
by TT ;
provision of an online information
service for Software (where available);
provision of advice reasonably required
by the Customer on the operation of the
Software except where the advice
Sought is ,in TT ’s opinion,
unreasonable in terms of length, extent
or frequency of request.
Category B
This category applies to Software which is no
longer being developed by TT or the owners
thereof. Levels of support are as specified
for Category A except that notification and
supply of new releases will not be provided.
Category C
This category applies to Software which will
be neither developed nor supported by TT or
by the owners thereof.
2.3
2.4
notification of availability of changes to
documentation provided with Software
and supply of one copy of the change
upon written request by the Customer
and where deemed necessary by TT ;
assistance in the application of
temporary solutions, where available, to
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SECTION D
PROFESSIONAL SERVICES - BASIS OF ORDER 2.4 In the event that the time spent is
different from that estimated then
1.1 TT will provide and the Customer the Customer will be charged for will take and pay for the the actual amount of time spent. professional services(“the
Service”) described on the Order - PROJECTS
Form subject to the terms and conditions of this Section D and
those set out in Section E. 3.1 If the Service consists, in whole or
in part, of the management, organisation, co-ordination of resources and implementation of a
1.2 The Service will be carried out at project on behalf of the Customer, the location(s) stated on the Order then the Customer and TT will Form.
agree the following matters prior to
raising an Order Form the
1.3 Any alteration or amendment to the structure and content of the project Service will be agreed in writing team; the functions to be prior to taking effect. undertaken by each project team member; a project plan setting out
the sequence and time-scales for - NORMAL SERVICE PERIOD each element of the Service
including acceptance criteria where
2.1 TT will provide the Service applicable; the number and between 9.00 a.m. and 5.00 p.m., frequency of project progress excluding a one hour meal break meetings and (if relevant) the form each day, except Saturdays, of the presentation of the results. Sundays and UK statutory holidays. Such details shall be documented TT reserves the right to make an and attached to the Order Form as a additional charge for time spent in schedule. travel outside of these hours.
2.2 The other party’s written consent is required where, for the successful 3.2 In the event that a project involves performance of the Service, either the supply, use or support by TT party believes it is necessary for the of any software then the provisions Service to be performed during of Section C shall apply. hours additional to those specified. - TT PERSONNEL
2.3 If TT provides an estimate of the total time to carry out the Service, TT reserves the right to determine which
then unless otherwise stated on the of its personnel will be assigned to any Order Form, the Customer part of the Service and, unless otherwise acknowledges that this is TT ‘s best stated on the Order Form, to replace or
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estimate of the required time to re-assign such personnel during the complete the work. provision of the Service and to
subcontract to third parties any part of the Service.
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5.
CUSTOMER RESPONSIBILITIES
and regulations relating to the Customer’s premises, personnel and/or data safety and security, which TT , its employees, agents and subcontractors are obliged to comply with whilst carrying out the Service on the Customer’s premises. The Customer warrants that such rules and regulations are reasonable and will not restrict or delay TT in its performance of the Service.
TT RESPONSIBILITIES
6.1 TT will carry out the Service using all reasonable skill and care. In the event that the Customer provides evidence to TT that TT has not performed the Service to this standard, TT will promptly re- perform any defective Service at TT ‘s expense.
6.2 Unless otherwise agreed, TT will document the Service and deliver one copy to the Customer upon completion of the Service. Further copies will be made available at TT ‘s then current rates.
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5.1 Promptly after acceptance by TT of the Order Form, the Customer will notify TT in writing of the names and positions of its staff who will be liaising with TT .
5.2 Where the performance of the Service requires the participation of the Customer’s staff, appropriately experienced and qualified staff shall be made available by the Customer as reasonably necessary.
5.3 Where TT ‘s staff are working under the supervision of and at the direction of the Customer, the Customer shall be responsible for the nature of the work performed.
5.4 The Customer shall be responsible for decisions it makes based upon the Service.
5.5 The Customer will at its own expense provide reasonable access for TT to its premises, facilities, information, documents, software, systems and communications facilities and provide reasonable working and storage facilities
7.
CHARGES
7.1 Invoices will be issued monthly in advance or as specified on the Order Form.
7.2 The charges are specified on the Order Form. Unless otherwise stated on the Order Form, if, after acceptance of the Order, there is an increase in TT ‘s standard charges for the Service, TT may implement such increase by giving not less than 30 days notice to the Customer and such revised charges shall take effect for all Service rendered by TT after the 30 day notice period has expired.
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including power, heating and lighting and use of telephones, facsimile machines and printers.
5.6 The Customer will, where reasonably requested by TT , supply data and requirements specifications and the like necessary for TT to perform the Service and the Customer warrants that such data and specifications meet the Customer’s business needs and can be relied upon by TT .
5.7 The Customer shall prior to the commencement of the Service notify TT in writing of any rules
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7.3 TT ‘s daily charges will be subject to a minimum time charge of one half of one day.
7.4 In addition to the charges payable, the Customer will reimburse TT in respect of all expenses incurred by TT in carrying out the Service. Any such expenses will be charged at cost plus a 10% administration charge. - SOLICITATION OF STAFF
Each party agrees during the term of the Service and for six months thereafter not directly to solicit any of the staff of the other party at any time engaged directly in pursuance of the Service without the prior written consent of the other party.
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SECTION E
GENERAL - PARTIES
1.1 The parties to this Agreement shall be TT Information Systems Limited (TT ) and the party specified on the Order Form as the Customer and the terms ‘TT ’ and ‘the Customer’ shall be construed accordingly in all sections of these terms. - CHARGES
2.1 All sums invoiced are due and payable within 30 days of date of invoice.
2.2 TT shall be entitled to increase its prices and charges if TT ‘s own costs or expenses in respect of the Equipment, Software or Services or
TT ‘s obligations under the Agreement are in any way increased by any new or additional taxes (excluding Corporation Tax), duties or other similar costs, or by the cost of conforming with any new or additional legal requirements, at any time prior to the date of delivery.
2.3 All prices are exclusive of Value Added Tax which will be charged at the rate ruling at the tax point.
2.4 Interest is payable at a rate of 4.0% per month or part thereof, after as well as before judgement, on invoices not fully paid when due. - FORCE MAJEURE
TT shall not be liable for any delay or for the consequences of any delay in performing any of its obligations under the Agreement if such delay is due to any industrial dispute or any cause whatsoever beyond its reasonable control, and shall be entitled to a reasonable extension of time for performing such obligation. - INTELLECTUAL PROPERTY RIGHTS
4.1 Title to all intellectual property rights in all Equipment, Software and documentation supplied by TT remain vested in TT or the owner thereof.
4.2 The Customer will safeguard all TT ‘s rights in all such Equipment, Software and documentation but shall be entitled to make a reasonable number of back up copies of Software for operational use and security. The Customer will ensure that any such copy acknowledges TT ‘s copyright.
4.3 TT will indemnify the Customer against any claim for alleged infringement of any letters patent, copyright, registered design, utility model or like intellectual property right effective in the UK by the use or possession of any part of the Equipment or any Software provided that TT is given immediate and complete control of any such claim, and that the alleged infringement does not arise from TT following any instruction given by or on behalf of the Customer, and is not based upon the use of the Equipment or Software in combination with any equipment or devices not supplied by TT , or in a manner for which
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the Equipment or Software was not designed.
4.3.1 If, in such event, an interdict is obtained against the use of any part of the Equipment or Software by reason of infringement of such intellectual property right, TT shall, at its option and expense, either:
6.1 Neither party excludes or limits liability to the other party for (a) death or personal injury caused by its negligence or, (b) any breach of any obligations under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982 or, (c) any fraudulently made statement or representation.
4.3.1.1 procure for the Customer the right to continue to use the Equipment or
Software, or
4.3.1.2 modify the
Equipment or Software so that it becomes non- infringing; or
4.3.1.3 remove the Equipment or Software and grant the Customer a credit therefore at its Sale Price for the
Equipment (or Initial Period licence fee for the Software where appropriate)less depreciation at the rate of 25% thereof per year from the date of shipment. - HEALTH AND SAFETY
In the interests of health and safety the Customer will ensure that it provides a safe working environment for TT ’s employees and that, whilst on the Customer’s premises, TT ’s employees work in the presence of the Customer’s personnel at all times. - LIMITATIONS OF LIABILITY AND INSURANCE
6.2 Subject to Clause 6.1 the liability of either party to the other in any circumstances, whether in contract or tort or otherwise shall be subject to the financial limits set out in this Clause 6.2:
6.2.1 The liability of either party for all defaults in respect of any direct loss of or damage to the tangible property of the other under the Agreement shall in no event exceed £1,000,000 (one million pounds) per incident or series
of incidents related to a common cause; and
6.2.2 The aggregate liability of either party under the Agreement for all losses, damages, costs or expenses arising out of or in connection with defaults other than a default governed by Clause 6.2.1 shall in no event exceed the greater of £110,000 (one hundred and ten thousand pounds) or 125% of the total charges paid and payable under the Agreement to which the liability relates.
6.2.3 In respect of Intellectual Property Rights the remedies provided for under sub-clause
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4.3.1 will be exhausted before the provisions of sub-clause 6.2.2 become effective.
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6.3 Subject to Clause 6.1 neither TT nor its directors, employees and contractors shall be liable to the Customer in any circumstances whether in contract, tort or otherwise for any loss of goodwill, use, revenue, profit, production, anticipated savings, business, reputation or any type of indirect or consequential loss, damage, injury or expense.
6.4 The parties expressly agree that should any limitation or provision contained in this Clause 6 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed to be omitted but if any party becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in this Agreement.
6.5 The directors, employees and contractors of TT or any licensor of Software may rely on the terms of Clause 6 and the provisions of the Contracts (Rights of Third Parties) Act 1999.
6.6 Except as provided for in sub- clause 6.5 and Section C sub- Clause 9.2 a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
6.7 The Customer shall have no right to specific performance of any contract to which TT is a party.
6.8 These terms and conditions state
TT ‘s total liability whether in
contract, tort or otherwise in respect of its obligations and liabilities under these terms and conditions and are in lieu of and exclude any conditions and warranties implied by statute law or otherwise insofar as the law allows. - CONFIDENTIALITY
7.1 Both TT and the Customer (‘the parties’) shall treat as confidential any information (“Confidential Information”) made available to the other in relation to any Agreement made under Sections A – E inclusive and shall not disclose the same or any particulars thereof to any third party without the other’s prior written consent.
7.2 The party to whom Confidential Information has been disclosed shall disclose the same only to those of its employees who are directly involved or engaged for the purposes of the Agreement and who need to know the same and will ensure that such employees are aware of and comply with these obligations of confidentiality.
7.3 “Confidential Information” shall include without limitation Software and associated documentation, operating manuals, specifications and any information or knowledge which relates to the business or
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trade secrets of either party whether communicated or ally or by electronic media or in writing to the other party.
7.4 The obligations of confidentiality contained herein shall however not apply to information which:
7.4.1 has come within the public domain otherwise than by breach of this Clause 7 or by
breach of any agreement 10.2.2 is involved in any legal
between the parties; or proceedings concerning its
solvency or ceases trading or commits an act of
7.4.2 has been obtained from a bankruptcy or is adjudicated third party who is free to bankrupt or enters into divulge the same; or
liquidation whether compulsory or voluntary
7.4.3 is currently in either party’s (other than for the purposes lawful possession; or Of amalgamation or
reconstruction) or makes an arrangement with its
7.4.4 is required to be disclosed by creditors or petitions for an law. administration order or has a
receiver or manager - ASSIGNMENT appointed over all or any
part of its assets or generally becomes unable to pay its
The Customer may not assign any debts within the meaning of
Agreement without TT ‘s prior written Section123ofthe
Consent which shall not be unreasonably withheld. Insolvency Act 1986 or any
statutory modification or re- - EXPORTS enactment of this.
Both parties will comply with all laws governing the use and export and re- export of the Equipment and Software.
10.3 Upon termination or expiry the - TERMINATION Customer will:-
10.1 Without prejudice to any other right 10.3.1 On request and at its or remedy, TT may terminate any expense, forthwith return to or all Agreement(s) made under TT any Equipment for Section A to E inclusive if the which TT has not received Customer fails to pay any sums due payment in full. It is the by the due date (without prejudice Customer’s responsibility to
to any other provisions relating to remove data from the
late payment). Equipment before returning
the Equipment to TT ;
10.2 Without prejudice to any other right
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or remedy either party may 10.3.2 Where ,the applicable terminate any or all Agreement(s) Software licence is made under Sections A to E terminated or expires return
inclusive if the other party: to TT said Software and all
documentation in the form
provided by TT or as
10.2.1 commits any material modified by the Customer breach of the Agreement(s) and all copies and partial which is not remedied copies thereof made by the within 30 days after the Customer (or, if requested same has been called to its by TT , the Customer will
attention in writing; or destroy the Software and
documentation or copies and
certify in writing that they have been destroyed); and
10.3.3 If requested permit TT forthwith to enter its premises to remove items covered by the provisions of 10.3.1 and 10.3.2 above under an irrevocable licence which Customer hereby grants to TT .
10.4 Upon termination or expiry all the provisions of this Section E shall remain in force.
10.5 Upon termination the Customer shall forthwith pay all charges whether due and payable or payable for the remainder of the Initial Period or project (as applicable) as if such termination had not occurred, less a discount for all mitigation of its costs which TT is reasonably able to achieve. - DATA PROTECTION
Both parties will observe their obligations under the Data Protection Act 1998. - GOVERNING LAW
The construction, validity and performance of all Agreements shall be governed by the law of Scotland, and the exclusive jurisdiction of the Scottish Courts. - ENTIRE AGREEMENT
These terms and conditions together with the Order Form set out the entire agreement and understanding between the parties with respect to the subject matter of the Agreements and supersede all prior discussion between the parties or their agents and all conditions, warranties, guarantees, representations (other than in the case of fraudulent representations or fundamental representations made by either party), proposals, communications and understandings (whether oral or in writing) with respect to the subject matter hereof (whether given or made before or after the date hereof) other than a modification (in writing) expressed to be an amendment to these terms and conditions and signed by an authorised officer of the Customer and by an authorised officer of TT . - WAIVER
No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that
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party and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other rights or of any later breach. - GENERAL
15.1 The headings to the clauses in these terms and conditions are inserted for convenience only and shall be ignored when considering the terms of any Agreement.
15.2 If for any reason any clause(s), sub- clause(s) or provision(s) of this Agreement shall be held to be invalid or unenforceable the parties agree that, where reasonably possible, such clause(s), sub-
clause(s) or provision(s) shall be amended to the minimum level to comply with the law but that the remaining clauses, sub-clauses and provisions shall continue to have full force and effect and be binding on the parties.
15.3 Where the Customer is more than one person the obligations of the Customer will be binding on each person separately and on all persons jointly.
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15.4 Reference to a clause in a section is a reference to the clause in that section unless otherwise specified. - ADDITIONAL CLAUSE
(This clause is for use only where the Customer is separately signing a TT Hire Agreement as part of the transaction covered by these terms and conditions).
Where the Customer enters into the Hire Agreement and to give effect to the provisions of Clause 3 thereof TT agrees that the Customer shall obtain the benefit of the warranty in Section A of these terms and conditions for the hardware covered by the Hire Agreement provided the Customer enters into an agreement under Section B of these terms and conditions for the same.
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APPENDIX 1
Hardware Order Form
Software Order Form
Professional Services