TISSL LIMITED

TERMS AND CONDITIONS FOR SUPPLY OF

PRODUCTS AND SERVICES

 

 

                        TISSL LIMITED (whose registered office is at Unit 6 Wingbury Business Village, Leighton Road, Wingrave, Buckinghamshire. HP22 4LW) ("TISSL")

 

The following words and expressions have the following meanings in this Agreement:

 

"Agreement" means this agreement including the executed cover pages and orders as amended in accordance with its terms from time to time, including all documents expressly incorporated herein;

 

"Charges" means all sums payable by the Customer to TISSL under this Agreement for the Consultancy Services;

 

"TISSL" means TISSL Limited whose registered office is at Unit 6 Wingbury Business Village, Leighton Road, Wingrave, Buckinghamshire. HP22 4LW

 

"Confidential Information" means any information, know how or materials, whether technical, commercial, financial or otherwise, relating to the party's business activities or customers identified by the parties to be confidential in nature, including the Specification, Documentation and any other information or manuals produced by TISSL for the Customer under this Agreement as well as any information which from the circumstances in which it is made available to the relevant party ought to be treated as confidential, in whatsoever form;

 

"Consultancy Services" means all consultancy, installation, configuration, commissioning and/or implementation, data migration, software development and other services (excluding the Maintenance Services) provided by TISSL to the Customer under this Agreement;

 

"Customer" means the party with whom TISSL has contracted to provide the System and Services whose details appear on the cover pages of this Agreement;

 

"Developed Software" means in relation to the System, any software developed or customisation performed by TISSL for the Customer under this Agreement;

 

"Documentation" means all manuals and other documentation provided by TISSL to the Customer to assist in the use and operation of the System;

 

"Intellectual Property Rights" means all intellectual property rights of whatever nature including inventions, patents, copyright, design right, registered designs, trade and service marks (registered and unregistered), rights in relation to databases, topography rights and other rights in semi-conductor chips, and all other similar or analogous rights whether registered or unregistered, including applications for the same, anywhere in the world;

 

"Maintenance Fee" means the amount payable in respect of the Maintenance Services as set out in the order;

 

"Maintenance Services" means the maintenance services provided by TISSL in respect of the System as described in the order;

 

"Millennium Compliant" means in relation to the System Software and/or System Hardware, that its [performance and functionality] is not materially affected by dates between the years 1999 and 2001, and that the year 2000 is recognised as a leap year;

 

“Order” means the individual signed sales orders drawn up and to be transacted in accordance with these terms and conditions, or, the Customer purchase orders to be acknowledged and transacted in accordance with these terms and conditions;

 

"Price" means all sums payable by the Customer to TISSL under this Agreement for the System;

 

"Project Manager" means each of the project managers appointed by TISSL and the Customer to perform the obligations set out in clause 12;

 

"Services" means the Maintenance Services and the Consultancy Services;

 

"Site" means the place(s) where the Customer is authorised to use the System and/or TISSL will perform the Services;

 

"Specification" means the specification agreed by the parties relating to the System and/or Services as described in clause 5;

 

"System" means all System Hardware, System Software and Documentation provided by TISSL to the Customer under this Agreement as specified in the order;

 

"System Hardware" means any computer and other equipment which forms part of and is supplied with the System;

 

"System Software" means all software (in machine-readable form) supplied to the Customer by TISSL including the Developed Software for use as part of the System;

 

"Upgrade" means any version of the System Software and/or System Hardware which incorporates, substantially new functionality which is not incorporated in the version of the System Software and/or System Hardware in use by the Customer, or is intended to be separately marketed or charged for by TISSL.

 

1.1                   In this Agreement any reference to:

 

(a)                   any statute or statutory provision includes a reference to that statute or statutory provision as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant statute of statutory provision;

 

(b)                   persons shall include legal as well as natural persons (so, for example, a limited company is a "person" for the purposes of this Agreement) and (where the context so admits) references to the singular shall include the plural and vice versa;

 

(c)                   the singular includes a reference to the plural and vice versa, and gender includes a reference to all other genders;  and

 

(d)                   any person includes any reference to a body corporate, unincorporated association or a partnership and any reference to any party who is an individual is also deemed to include his respective legal personal representative(s).

1.2                   References in this Agreement to this Agreement or any other agreement, document or deed shall be construed as references to this Agreement or such other agreement, document or deed as each of the same may be amended, varied, notated or supplemented from time to time.

 

1.3                   Paragraph headings in this Agreement are for convenience only and shall not affect its interpretation.

 

1.4                   In the event of any conflict between the terms in the body of the Agreement and the terms in the orders, the terms in the orders shall prevail to the extent that there is such a conflict.

 

2.                     Licence to use the System

 

2.1                   On condition the Customer agrees to be bound by the terms of this Agreement, and in consideration of the payment of the Price by the Customer to TISSL, TISSL grants to the Customer a licence from the date of delivery to use the System Software on the terms and conditions set out below.

 

2.2                   The licence to use the System Software is perpetual (subject to termination in accordance with clause 19), non-exclusive and non-transferable by the Customer. 

 

2.3                   The Customer shall:

 

(a)                   use the System Software only in accordance with the Documentation or any reasonable instructions provided by TISSL from time to time;

 

(b)                   not make any copies of the System Software, Documentation or other materials supplied with or comprised within the System without the prior written consent of TISSL;

 

(c)                   not reverse engineer or decompile any System Software except to the extent expressly permitted to do so by applicable law;

 

(d)                   not allow anyone to use the System Software other than the full-time employees of the Customer who are fully and adequately trained and experienced and will use the System Software with the skill and care reasonably to be expected of such appropriately qualified and experienced person in accordance with sound technical and professional practice.

 

(e)                   make only such back up copies of the System Software (and any Documentation), as are necessary for the lawful use of the System Software and Documentation in accordance with this Agreement;

 

(f)                    use the System Software only for the Customers own internal business purposes;

 

(g)                   not modify or adapt or attempt to create derivative works in respect of the System except to the extent necessary for the lawful use of the System Software in accordance with this Agreement;

 

(h)                   use the System only at the Site;

 

(i)                    abide by the other terms set out in this Agreement.

 

2.4                   No rights are granted to the Customer in relation to any source code comprising part of the System Software.

 

2.5                   Any information or materials supplied by TISSL to the Customer for the support and/or use of the System will be subject to the terms of this Agreement, and may be used by the Customer only in the same manner as the System.

 

2.6                   If Upgrades are supplied to the Customer, then, unless TISSL agrees otherwise, those Upgrades shall be subject to all the terms of this Agreement and the terms "System Software" and/or "System Hardware" shall after supply of Upgrades be treated as including reference to them.

 

3.                     Customer's Responsibilities

 

3.1                   The Customer shall undertake and bear the cost of the following, unless otherwise agreed in writing with TISSL:

 

(a)                   to provide TISSL with all necessary information, support and co-operation that may reasonably be required to enable TISSL to carry out is obligations to the Customer under this Agreement;

 

(b)                   to supply TISSL in good time with all technical information and documents regarding the Site at which the System is to be used, together with any of the Customer's requirements;

 

(c)                   to provide adequate office accommodation, a secure work space, telecommunication and other facilities and access to the applicable computers and systems of the Customer to enable TISSL to provide the System and/or Services;

 

(d)                   to ensure that the Site complies at all times with applicable legislation (including any relevant regulation) on health and safety;

 

(e)                   to ensure before delivery takes place that the Site is prepared in accordance with any specifications stipulated by TISSL;

 

(f)                    to provide all data and other information in an agreed format as requested by TISSL;

 

(g)                   to provide access to the Site to TISSL and its authorised contractors during normal business hours and at such other times as may be agreed between the parties or notified to the Customer a reasonable period in advance;

 

(h)                   to ensure that all planning regulations, consents, approvals and other applicable authorisations are obtained to enable TISSL to provide the System and/or Services at the Site;

 

(i)                    to provide all necessary builders' work, electrical power, heating, lighting and ventilation, and to provide and ensure that all electrical supplies shall be clean and stable and will be maintained by the Customer.  Any cutting away and making good of floors, ceilings, ceiling tiles and panels, trenching, and back filling will be provided by the Customer in advance of delivery to the specification stipulated by TISSL from time to time;  and

 

(j)                    to ensure that any hardware, operating systems and software which TISSL is required to use or modify in providing the System and/or Services are either the property of the Customer or are legally licensed to the Customer, and to ensure that TISSL is authorised to use or access the same, and to indemnify TISSL in respect of any claims against TISSL by third parties including all related costs, expenses or damages in the event of any actual or alleged violations of third party rights.

 

3.2                   TISSL's obligations to provide the System and/or perform the Services is conditional on the Customer performing is obligations in accordance with the terms of this Agreement.

 

4.                     Time

 

4.1                   All timescales quoted or dates specified in this Agreement and in the Specification are estimates only, and in respect of the provision of the System and/or Services and any other obligations of TISSL under this Agreement, time shall not be of the essence.

 

4.2                   Without prejudice to clause 4.1, TISSL shall use its reasonable endeavours to comply with all timescales and dates specified under this Agreement.

 

5.                     Information and Specification

 

5.1                   Information published or provided by TISSL concerning the System and/or Services is produced in good faith and is believed to be the best information possessed by TISSL at the stated date of publication.  Superseded  manuals, documents or other materials must not be relied upon by the Customer.

 

5.2                   Whilst TISSL will endeavour to provide to the Customer information which is as accurate as possible, such information shall not be binding on the Company unless it is confirmed in writing by an authorised representative of TISSL.

 

5.3                   The parties shall agree a written Specification, which shall form part of and be appended to this Agreement, setting out any specific requirements of the Customer in relation to the installation, configuration, commissioning and/or implementation, data migration, software development and other services in relation to the System and/or the provision of the Services and to the System itself.  Unless the parties agree otherwise, the Specification will be prepared by TISSL and submitted to the Customer for its approval in accordance with the procedure set out below:

 

(a)                   the Specification shall be given by TISSL to the Customer Project Manager for consideration;

 

(b)                   the Customer shall notify TISSL in writing of any reasonable revisions or amendments to the Specification which it requires within 10 working days from the date that the Specification is provided to it by TISSL.

 

(c)                   TISSL shall use its reasonable endeavours to produce a revised Specification in accordance with the recommendations or suggestions of the Customer within any time agreed between the parties or otherwise within a reasonable time. If the amendments involve more than one person-week's work and are not as a result of any failure by TISSL to comply with its obligations under this Agreement in relation to the preparation of the Specification, then provided it agrees the relevant charges beforehand with the Customer, TISSL may charge for the work done in amending the Specification to the extent that the work concerned exceeds one person-week.  Otherwise, the amendments will be made without additional charge to the Customer;

 

(d)                   any changes made to the Specification will be subject to full agreement in writing having been reached on any consequential changes made to the Price and/or Charges, and any timetable or agreed dates.

 

(e)                   if the Customer is not then willing to approve the Specification (which approval shall not unreasonably be withheld or delayed) it shall notify TISSL accordingly.  The parties shall discuss the Specification further in order to try and reach agreement (and if the matter is not resolved within 10 working days either party may invoke the Dispute Resolution Procedure at clause 32);

 

(f)                    if use of the Dispute Resolution Procedure fails within 90 working days of its invocation to result in agreement and approval of the Specification by the Customer (which approval shall not unreasonably be withheld or delayed) or if the parties are otherwise unable to agree the Specification within 120 days of the date of this Agreement, and in any event, prior to the delivery of the System and/or commencement of the relevant Services, the Customer will either:

 

(i)                    accept the supply by TISSL of the System and the Services in accordance with TISSL's standard specification; or

 

(ii)                   this Agreement will automatically terminate with immediate effect.

 

In the event that the Customer exercises its rights under sub-clause (ii) above, TISSL shall not be liable to refund any relevant amounts paid by the Customer in relation to the Specification.

 

5.4                   The parties will use their reasonable endeavours to conduct the steps set out in clause 5.3 as quickly as reasonably practicable.

 

6.                     Intellectual Property Rights

 

6.1                   All existing and future Intellectual Property Rights in the System Software, Developed Software, Documentation, Specification and any other materials provided by TISSL to the Customer shall belong to TISSL.

 

6.2                   TISSL shall be fully entitled to use in any way it deems fit any skills, techniques, concepts or know-how acquired, developed or used in the course of providing the System and/or performing the Services and any improvements to the System or any of TISSL's products made or developed under this Agreement, will belong exclusively to TISSL.

 

6.3                   The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the System Software or Documentation, or which is visible during its operation.  The Customer shall incorporate such proprietary markings in any back-up copies.

 

6.4                   The Customer shall permit TISSL to check the use of the System Software by the Customer at all reasonable times. TISSL may upon reasonable notice send its representatives to any of the Site to verify compliance with this Agreement and the Customer hereby irrevocably consents to TISSL's representatives entering the Site and any other of its premises for this purpose.

 

6.5                   The Customer shall use reasonable endeavours to prevent unauthorised access to, use or copying of the System, Documentation and Specification and shall notify TISSL immediately if the Customer becomes aware of any unauthorised access to, use or copying of any part of the System by any person.

 

7.                     Price and Payment

 

7.1                   The Customer shall pay to TISSL:

 

(a)                   the Price;

 

(b)                   the Charges;

 

(c)                   the Maintenance Fee (if appropriate);

 

(d)                   the charges for any other Services provided for by this Agreement;

 

in the amounts and at the times specified in the order.

 

7.2                   Unless otherwise expressly stated in the order, all Services will be invoiced by TISSL monthly in advance of performance of the Services.

 

7.3                   The Customer shall pay all invoices within 30 days of the date of the invoice. 

 

7.4                   The Customer will reimburse TISSL its reasonable travelling, hotel and other out-of-pocket expenses which TISSL may incur in connection with the provision of the System and/or Services.  TISSL shall submit a written statement setting out any expenses claimed under this clause 7.4 together with all receipts and vouchers, if required by the Customer, and the Customer will reimburse TISSL for any expenses claimed in accordance with clause 7.5.

 

7.5                   All sums payable under this Agreement by the Customer shall be paid in pounds sterling; or other amounts that may be agreed between the parties.

 

7.6                   All charges referred to in this Agreement are exclusive of VAT and the Customer shall be responsible for paying to TISSL all applicable VAT and any other similar taxes imposed on charges for services or supplies made by TISSL under this Agreement.

 

7.7                   The Price shall include the cost of packaging and delivery of the System to the Site.

 

7.8                   Without prejudice to the provisions of clause 7.7, if any fee payable by the Customer is not paid by the due date, TISSL shall be entitled in its discretion:

 

(a)                   to suspend the provision of any Services under this Agreement until such time as payment is made;

 

(b)                   to charge interest on all sums outstanding beyond the date on which they are due for payment under this Agreement from the date payment was due until the date of payment (and before as well as after judgement) at a rate of 3% per annum above the base rate from time to time of Lloyds Bank plc.

 

(c)                   terminate this Agreement, on giving 14 days' notice of the same to the Customer.

 

8.                     Title, Delivery and Risk

 

8.1                   Title to the System Hardware shall not pass to the Customer until full payment for the System Hardware concerned has been received by TISSL.

 

8.2                   Without prejudice to the provisions of clause 7, if the Customer does not make full payment to TISSL in relation to the System Hardware by the due date, then the Customer agrees that TISSL may:

 

(a)                   require the Customer to return (at the Customer's expense) such items of System Hardware in respect of which full payment due under this Agreement has not been received by TISSL with immediate effect; or

 

(b)                   enter the Site or other such premises of the Customer and remove the System Hardware in respect of which full payment due under this Agreement has not been received by TISSL, and the Customer irrevocably consents to TISSL's representatives entering the Site and any other of its premises for this purpose.

 

8.3                   Any date for delivery as quoted or agreed by TISSL will be estimated by TISSL as accurately as possible but is not guaranteed, and in the event of any failure to meet such date, TISSL's sole obligation shall be to deliver the System and/or perform the Services in question within a reasonable period thereafter.

 

8.4                   The System and/or Services will be regarded as delivered to the Customer when TISSL delivers them to the Site.

 

8.5                   Risk in the System shall pass to the Customer upon delivery to the Site and the Customer  shall be responsible for all loss of or damage to the System thereafter.

 

8.6                   Unless otherwise agreed, the Price, Charges and all other amounts due are based upon TISSL's normal delivery timescale for the System and/or Services.  In the event that delivery of the System and/or performance of the Services is delayed at the request of the Customer, or if the Customer is in breach of any of its obligations in clause 3 above, the Customer shall reimburse TISSL for all its reasonable costs and expenses incurred as a result of the Customers delay, including costs of storage and redelivery.

 

8.7                   TISSL is entitled to determine the route and to use any means of transportation and carrier it may select.

 

8.8                   TISSL shall be entitled to make delivery by instalments and in such case, each delivery will constitute a separate contract and failure to deliver by TISSL of any one or more of the instalments in accordance with these conditions, or any claim by the Customer in respect of any one or more instalments, will not entitle the Customer to treat the contract as a whole as repudiated.

 

8.9                   Save where loss or damage is caused by the negligence, default or breach of contract of TISSL, its sub-contractors or agents, the Customer is responsible for risk of loss of, or damage to, any equipment or software at the premises of the Customer and in the possession or control of the Customer at the time of such loss or damage.  The Customer shall replace any such equipment or software so lost or damaged for which the Customer is responsible for the risk of loss of, or damage to under this clause.

 

8.10                 Save where loss or damage is caused by the negligence, wilful default or breach of contract of the Customer, its sub-contractors (other than TISSL or any of its sub-contractors) or agents, TISSL is responsible for risk of loss of, or damage to any equipment or software belonging to the Customer located on TISSL's premises and in TISSL's possession or control at the time of such loss or damage.

 

9.                     Installation, Configuration and Data Migration

 

9.1                   If requested by the Customer, TISSL will provide the following Consultancy Services to the Customer:

 

(a)                   TISSL shall install (or assist with the installation of) the System at the Site;

 

(b)                   TISSL shall configure, commission and/or implement (or assist with the configuration, commissioning and/or implementation of) the System at the Site;

 

(c)                   TISSL shall produce the Developed Software;

 

(d)                   TISSL shall provide general consultancy services to the Customer;

 

(e)                   TISSL shall migrate (or assist with the migration of) the Customers data from its existing computer systems or other records to the System.  The Customer shall prepare the data for migration in accordance with TISSL's instructions, and provide such assistance as TISSL may require to assist with the process for the migration of the Customer's data.  The Customer shall ensure that all data to be migrated is properly backed up prior to migration, and the Customer acknowledges that TISSL is not liable for any loss or corruption of data as a result of the data migration.

 

9.2                   The Consultancy Services will be provided by TISSL in accordance with the Specification.   

 

9.3                   The Customer shall provide such assistance as TISSL may reasonably require to input, sort or check data both before and after migration, (as appropriate).

 

9.4                   The Charges payable by the Customer to TISSL in relation to the Consultancy Services shall be at such rate as may be agreed between the parties, and in default of such agreement, at the normal rates of TISSL for such services from time to time.

 

10.                   Acceptance

 

10.1                 In the event that the parties have agreed to conduct acceptance tests of the System (as set out in the Specification), TISSL shall notify the Customer when it is ready to commence acceptance testing of the System at the Site.

 

10.2                 The Customer shall be permitted to be present at the acceptance tests, at a time mutually convenient to the parties.

 

10.3                 The Customer shall sign TISSL's acceptance certificate immediately after TISSL has completed the acceptance tests in accordance with the Specification.

 

10.4                 If TISSL is unable to complete the acceptance tests due to any defects notified to it by the Customer, TISSL shall use its reasonable endeavours to remedy such defects as soon as possible, and submit the same to the acceptance testing procedure set out in the Specification.

 

10.5                 The parties shall continue to conduct acceptance tests, identify defects, remedy such defects and retest the System until full acceptance is achieved.

 

10.6                 If the Customer does not make itself available to attend acceptance tests within 7 days of TISSL giving notice in clause 10.1, then the Customer shall be deemed to have accepted the System.

 

10.7                 Acceptance of the System shall be deemed to have taken place, and the Customer shall sign an acceptance certificate, upon the occurrence of whichever is the earlier of:

 

(a)                   successful completion of the acceptance tests set out in the Specification and in accordance with this clause 10;

 

(b)                   the System (or any part thereof) being first put into use by the Customer for any purpose other than acceptance testing;  or

 

(c)                   the occurrence of the events set out in clauses 10.6 or 10.9.

 

10.8                 The parties agree that minor defects which do not substantially affect the operation of the System, shall not hold up acceptance of the System.  TISSL shall use its reasonable endeavours to correct any such minor defects within a reasonable time.

 

10.9                 In the event that the parties have not agreed any acceptance tests in the Specification, the System shall be deemed to be accepted once TISSL notifies the Customer that the System is ready for use in a live environment at the Site.

 

11.                   Maintenance Services

 

11.1                 Subject to receipt of the Maintenance Fee, TISSL will provide and the Customer will accept the Maintenance Services for the System during the Maintenance Period specified in the order, but subject to earlier termination as provided by this Agreement.

 

11.2                 TISSL's obligation to provide the Maintenance Services is dependent on the continued existence of the licence to use the System Software and if the licence is terminated for any reason, TISSL's obligations to provide the Maintenance Services will cease automatically on the occurrence of such event.

 

11.3                 Termination of the Maintenance Services will not of itself affect the Customer's right to continue to use the System in accordance with this Agreement.  No refund of the Maintenance Fee will be made in the event the Maintenance Services or the whole of this Agreement is terminated for whatever reason.

 

12.                   Project Managers

 

12.1                 Each of TISSL and the Customer shall appoint a Project Manager who shall be the prime point of contact between the parties.  The Project Managers shall have the authority to:

 

(a)                   deal with day to day matters regarding the System and/or Services;

 

(b)                   facilitate the performance of such party of its obligations under this Agreement;

 

(c)                   act as the authorised representative of the parties so that they can sign any document or agree any amendment to this Agreement on behalf of the respective parties;

 

(d)                   undertake such other tasks or obligations as may be assigned to them under this Agreement.

 

13.                   Warranties

 

13.1                 TISSL warrants that:

 

(a)                   from the date of delivery[1] of the System, or if the System is delivered in instalments, from the date of delivery of each such instalment, or if the System is delivered to different Sites at different times, from the date of delivery at each Site and for a period of twelve months after that date, the System (or the relevant part) will:

 

(i)                    in respect of the System (excluding the Developed Software) substantially operate in accordance with the Documents which relates to it;

 

(ii)                   in respect of the Developed Software substantially operate in accordance with the Specification relating to such Developed Software; and

 

(iii)                  the media on which the System is furnished will be free from defects in materials and workmanship under normal use;

 

(b)                   from the date of supply, the Services will be performed by TISSL with reasonable care and skill;

 

(c)                   it is authorised to allow the Customer to use the System and to provide the Services in accordance with the terms of this Agreement;

 

(d)                   the System is Millennium Compliant save that if the operation on or interaction with any other hardware, software or operating system not supplied by TISSL causes the System not to be Millennium Compliant, TISSL shall not be liable or responsible for the System not being Millennium Compliant.

 

These warranties (and TISSL's liability for breach of them) are subject to the exceptions and limitations set out in this Agreement.

 

13.2                 In the event of any breach of the warranties in relation to the System in clause 13.1, TISSL's sole liability and the Customer's exclusive remedy will be:

 

(a)                   that TISSL shall be given a reasonable opportunity to correct any such breach by (as appropriate) repairing or rectifying any relevant defect in the System, or replacing the System in whole or in part, provided this is done within a reasonable time and without additional charge to the Customer;  or

 

(b)                   in the event that TISSL is unable to correct any such breach within a reasonable time or if TISSL believes that this is not a commercially sensible way of dealing with the breach, TISSL may (at its sole discretion) terminate this Agreement by notice to the Customer and return that part of the Price paid under this Agreement for the System or such part thereof.

 

13.3                 In the event of any breach of the warranties in relation to the Services in clause 13.1, TISSL's sole liability and the Customer's exclusive remedy will be:

 

(a)                   for TISSL to reperform the Services within a reasonable period of time; or

 

(b)                   in the event that TISSL is not able to reperform the Services, TISSL may (in its sole discretion) terminate this Agreement by notice to the Customer and/or return that part of the Charges paid under this Agreement for the Services or such part thereof.

 

13.4                 TISSL shall not be liable under this Agreement (whether for breach of the above terms or otherwise) in relation to any defect or other problem with or in relation to the System attributable to:

 

(a)                   use or operation of the System otherwise than in accordance with normal and authorised operating instructions and procedures or any reasonable instructions given from time to time by TISSL;

 

(b)                   alterations, modifications, repairs or any other work done on or in relation to the System by anyone other than TISSL or an approved sub-contractor of TISSL;

 

(c)                   incorrect configuration of the equipment or operating System of the Customer or any defect in or problem with either of them;