TISSL LIMITED – TERMS AND CONDITIONS
SECTION A – Definitions and Interpretation
The following words and expressions have the following meanings in this Agreement:
“Agreement” means this agreement including the executed cover pages and Quotes 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;
“Commencement Date” means the commencement date for the Maintenance Services as set out on the relevant Quote;
“Confidential Information” means any information, know how or materials, whether technical, commercial, financial or otherwise, relating to the parties’ 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 and (where appropriate) any Equipment Rental 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;
“Consumables” means all products of a consumable nature including but not limited to printer rolls, paper and styli, ink cartridges;
“Customer” means the party with whom TISSL has contracted to provide (as appropriate) the System, Services, Training or Consumables whose details appear on the relevant Quote for this Agreement;
“Customer Product Sales Data” means the back end reporting history produced in electronic format by the System Software;
“Developed Software” means in relation to the System, any software developed or customisation performed by TISSL for the Customer under this Agreement, including the business application software known as “Viewpro”;
“Documentation” means all manuals and other documentation provided by TISSL to the Customer to assist in the use and operation of the System;
“Equipment” means the hardware, software, manuals, documentation, accessories, or articles or any of them (including any replacements or renewals thereof, additions thereto and substitutions thereof) described in the Schedule and to be supplied by TISSL to the Customer and (where applicable) to which the Maintenance Services relate;
“Faulty Hardware” means any Equipment which is damaged or has developed a fault.
“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 relevant Quote;
“Maintenance Period” means the period from the Commencement Date until the next following 30th November;
“Maintenance Services” means the maintenance services provided by TISSL in accordance with this Agreement, in respect of the Equipment and/or the System as described in the relevant Quote;
“Price” means all sums payable by the Customer to TISSL under this Agreement for (as appropriate) the System, Equipment, Maintenance, Services, Training or Consumables;
“Project Manager” means each of the project managers appointed by TISSL and the Customer to perform the obligations set out in clause C;
“Quote” means the individual signed sales quote drawn up and to be transacted in accordance with these terms and conditions, or, the Customer’s purchase orders to be acknowledged and transacted in accordance with these terms and conditions;
“Schedule” means the Schedule attached to the relevant Quote describing the Equipment;
“Services” means the Maintenance Services and the Consultancy Services;
“Site” (Venue) means the place(s) where the Customer is authorised to use the System and/or TISSL will perform the Services as set out in the relevant Quote;
“Specification” means the specification agreed by the parties relating to the System and/or Services (as appropriate) as described in clause B2.3;
“System” means all System Hardware, System Software and Documentation provided by TISSL to the Customer under this Agreement as specified in the relevant Quote(s);
“System Hardware” means any computer and other equipment which forms part of and is supplied by TISSL to the Customer 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;
“Terms” means the terms and conditions of the Agreement as detailed in this document;
“TISSL” means TISSL Limited whose registered office is at Landers Accountants, Church View Chambers, 38 Market Square, Toddington, Bedfordshire LU5 6BS;
“Training” means the provision of training in the use and set up 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;
“Website” means TISSL’s website hosted at www.tissl.co.uk.
“Working Day” means any day other than a Saturday or Sunday or any day which is a public holiday in England.
A1.1 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).
A1.2 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.
A1.3 Paragraph and section headings in this Agreement are for convenience only and shall not affect its interpretation.
A1.4 In the event of any conflict between the terms in the body of the Agreement and the terms in the Quotes, the terms in the Quotes shall prevail to the extent that there is such a conflict.
A1.5 Notwithstanding that TISSL may have given a detailed quotation to the Customer, no
contract shall be binding on TISSL unless and until it has been accepted by TISSL in writing (for the avoidance of doubt such acceptance may include the signing of the relevant Quote(s) by TISSL).
A1.6 TISSL only sell goods and provide Services to businesses. The Customer confirms that they are entering into this Agreement as a business and not as a consumer.
SECTION B – GENERAL TERMS
This section B shall apply (where applicable) to all Services and sales of goods and Consumables and provision of Training by TISSL to the Customer.
B1.1 All timescales quoted or dates specified in this Agreement and (where applicable) 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.
B1.2 Without prejudice to clause B1.1, TISSL shall use its reasonable endeavours to comply with all timescales and dates specified under this Agreement.
B2. Information and Specification
B2.1 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.
B2.2 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.
B2.3 Where TISSL is supplying a System or Services 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) 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.
(d) 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 B22);
(e) 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.
B2.4 The parties will use their reasonable endeavours to conduct the steps set out in clause B2.3 as quickly as reasonably practicable.
B3. Price and Payment
B3.1 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 relevant Quote(s).
B3.2 Unless otherwise expressly stated in the relevant Quote, all Services will be invoiced by TISSL annually in advance of performance of the Services.
B3.3 The Customer shall pay all invoices within 14 days of the date of the invoice.
B3.4 TISSL may modify the Maintenance Fee and any charges payable by the Customer to TISSL under this Agreement by written notice not later than 30 days before the expiry of the then current Maintenance Period.
B3.5 The Customer will reimburse TISSL its reasonable travelling, hotel and other out-o 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 B3.5 together with all receipts and vouchers, if required by the Customer.
B3.6 All sums payable under this Agreement by the Customer shall be paid in pounds sterling or such other currency that may be agreed between the parties from time to time.
B3.7 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.
B3.8 The Price in respect of the supply of the System shall include the cost of packaging and delivery of the System to the Site unless otherwise stated on the Quote.
B3.9 Without prejudice to the provisions of clause B3.8, if any fee payable by the Customer is not paid by the due date, TISSL shall be entitled at 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 8% 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.
B3.10 Unless otherwise expressly stated in writing by TISSL, all charges are exclusive of the costs of carriage, insurance and collection (as appropriate) all of which shall be payable by the Customer.
B3.11 The time of payment shall be of the essence of the contract made between TISSL and the Customer.
B4. Title, Delivery and Risk
B4.1 Title to the System Hardware shall not pass to the Customer until full payment for the System Hardware concerned has been received by TISSL.
B4.2 Without prejudice to the provisions of clause B3, 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.
B4.3 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.
B4.4 The System and/or Services will be regarded as delivered to the Customer when TISSL delivers them to the Site or to such other address as agreed between TISSL and the Customer.
B4.5 Risk in the System shall pass to the Customer upon delivery in accordance with clause B4.4 and the Customer shall be responsible for all loss of or damage to the System thereafter.
B4.6 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 C2, the Customer shall reimburse TISSL for all its reasonable costs and expenses incurred as a result of the Customer’s delay, including costs of storage and redelivery.
B4.7 TISSL is entitled to determine the route and to use any means of transportation and carrier it may select.
B4.8 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.
B4.9 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.
B4.10 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.
B5. Warranties and Liability
B5.1 TISSL warrants that:
(a) from the date of delivery 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;
These warranties (and TISSL’s liability for breach of them) are subject to the exceptions and limitations set out in this Agreement.
B5.2 In the event of any breach of the warranties in relation to the System in clause B5.1, 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.
B5.3 In the event of any breach of the warranties in relation to the Services in clause B5.1, TISSL’s sole liability and the Customer’s exclusive remedy will be:
(a) for TISSL to re-perform the Services within a reasonable period of time; or
(b) in the event that TISSL is not able to re-perform 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.
B5.4 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 by the Customer or any defect in or problem with either of them;
(d) failure by the Customer to maintain the equipment or operating system in accordance with the manufacturers’ instructions on or with which the manufacturer’s System is installed;
(e) abnormal or incorrect operating conditions (including interruption of or abnormality in the electricity supply);
(f) any other act or omission (whether accidental or deliberate) or other cause outside the control of TISSL;
(g) any breach by the Customer of its obligations under this Agreement; or
(h) any third party hardware, operating system or software being connected to or operated with the System, save where such connection or operation has been or is carried out or expressly authorised and approved by TISSL.
B5.5 The Customer acknowledges that the System cannot be tested in every possible circumstance and accordingly TISSL does not warrant that use of the System will be uninterrupted or error or defect free.
B5.6 TISSL will have no liability or obligation under the warranty given in this clause B5 unless it has received written notice from the Customer of any non-conformance with the warranty within 30 days from the date of failure of the whole or any part of the System and/or performance of the Services.
B6. Exclusions and limitations
B6.1 The Customer acknowledges that TISSL’s obligations and liabilities in respect of the System, Services, Training and Consumables are exhaustively defined in this Agreement. The Customer agrees that the express obligations and warranties made by TISSL in this Agreement are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or provided or services performed under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, satisfactory quality or fitness for the purpose of the System and/or Services or any part thereof.
B6.2 TISSL’s liability:
(a) for death or personal injury caused by TISSL’s negligence or the negligence of TISSL’s employees or agents;
(b) under Part I of the Consumer Protection Act 1987;
(c) for fraudulent misrepresentation; or
(d) in relation to any other liability which may not by applicable law be excluded or limited;
is not excluded or limited, even if any other term of this Agreement would otherwise suggest that this might be the case.
B6.3 Subject to clauses B6.2 and B6.4, TISSL’s liability under or in relation to this Agreement (whether for negligence, breach of contract or otherwise) shall be limited as follows:
(a) for physical damage to tangible property (excluding the System or any other software), to an amount equal in aggregate to 150% of the Price in respect of each event;
(b) for all other loss or damage, to an amount equal to 100% of the Price in respect of each event;
provided that if more than one event results in substantially the same loss or damage then all such events shall be treated as one.
B6.4 Subject to clause B6.2, TISSL shall not be liable (whether for breach of contract, negligence or for any other reason) for any loss of profits, loss of sales, loss of revenue, loss of any software or data, loss of bargain, loss of opportunity, loss of use of computer equipment, software or data, loss of or waste of management or other staff time, or for any indirect, consequential or special loss (however arising).
B6.5 The Customer shall be solely responsible for the maintenance and security of its own software and data (including the System). TISSL shall have no liability for any loss of or corruption to any such software or data, however caused, where such loss or corruption could have been avoided or corrected if the Customer had taken and retained in a secure place appropriate backup copies.
B6.6 The Customer shall be solely responsible for deciding whether or not the System and/or Services are suitable for its purposes and for the consequences of any use of the System and/or Services. TISSL shall have no liability for any loss or damage suffered by the Customer as a result of such decision to obtain and use the System and/or Services pursuant to this Agreement and for the reliance by the Customer on any results or data obtained from the use of the System and/or Services.
B6.7 The Customer agrees that except as expressly provided in clauses B5, B6 and C5, TISSL will not be under liability of any kind whatsoever and howsoever caused arising directly or indirectly in connection with this Agreement.
B6.8 The parties acknowledge and agree that the allocation of risk contained in this clause B6 is reflected in the Price and is also a recognition of the fact that, inter alia, it is not within TISSL’s control how and for what purpose the System and/or Services are used by the Customer.
B7.1 Each party shall keep confidential the other party’s Confidential Information and shall not use the same for purposes other than in relation to the performance of the party’s respective obligations under this Agreement. Neither party shall disclose any such Confidential Information to any person without the consent of the other except:
(a) to any officer, employee or contract staff for the time being working for the party concerned who may reasonably need to know it;
(b) to the auditors, professional advisors of the party concerned, or any other persons or bodies having a legal right or duty to have access to or knowledge of the same;
provided that each party shall be responsible for ensuring that any person to whom information is disclosed complies with any conditions of confidentiality applying to such information under this Agreement.
B7.2 Nothing in clause B7.1 shall apply to any information:
(a) which is (or which becomes) available to the public other than by breach of this Agreement or of any other duty;
(b) which the party receiving the information already possesses or which it obtains or originates independently in circumstances in which that party is free to disclose it;
(c) which the party is obliged to disclose by virtue of any law or court order.
B7.3 The obligations in this clause B7 shall survive termination of this Agreement.
B8. Data Protection Act
B8.1 The Customer shall ensure that it obtains and maintains an up to date registration under the Data Protection Act 1998, as it may be amended extended or re-enacted from time to time, and the General Data Protection Regulations including any statutory provision, regulation, order, instrument or subordinate legislation thereof (“DPA”), and that it complies with its registration or notification thereunder.
B8.2 The Customer shall indemnify TISSL against all losses, damages, or liabilities of whatever nature (including legal costs on an indemnity basis) which may be suffered or incurred by TISSL as a result of or in connection with any prosecution or civil or other action under the DPA relating to any breach of obligations imposed by the DPA or this clause B8 attributable to the act or default of the Customer.
B9.1 TISSL may terminate this Agreement and (where applicable) the licence at clause C1 at any time upon 3 months written notice to the Customer.
B9.2 Without prejudice to any rights or remedies which the parties may have against each other or to any other provision of this Agreement, this Agreement may be terminated immediately by either party:
(a) in the event of the other party committing any breach of this Agreement which is remediable and not remedied within 30 days of written notice requiring such remedy;
(b) in the event of the other party committing an irremediable breach of this Agreement or repeating any such breach as has previously been the subject of a notice under paragraph (a) above;
(c) a petition is presented applying for an administration order to be made in respect of the other party or a petition is presented or notice is given or an order is made or an effective resolution is passed for the liquidation or winding up (or any similar judicial process) of the other party;
(d) if the other party seeks or enters into any composition or arrangement for the benefit of its creditors or convenes a meeting for the purpose of making such arrangement or composition or suffers or permits any distraint or distress proceedings or an encumbrancer takes possession or an administrative receiver or a receiver or manager is appointed of all or any part of its assets or undertakings or if it takes or suffers any similar action in consequence of debt or a judgement is entered and is not paid out within seven days;
(e) if the other party ceases or threatens to cease to carry on its business or substantially the whole of its business or disposes of its undertaking or stops payment or threatens to stop payment of its debts as and when they fall due or is deemed to be unable to pay its debts as they fall
due within the meaning of Section 123 Insolvency Act 1986; or
(f) if the other party is affected in any jurisdiction other than England and Wales by any matter of substantially similar effect to any of the matters referred to in paragraphs (c), (d) and (e) of this clause B9.2.
B9.3 This agreement may be terminated immediately by TISSL upon written notice being given by TISSL to the Customer if the Customer uses or communicates, without the prior written consent of TISSL any Confidential Information provided by TISSL whether alone or jointly and whether directly or indirectly for the development, marketing or sale of any other product.
B9.4 Rights of termination under this clause B9 shall be without prejudice to any other rights of termination or otherwise whether subsisting by virtue of this Agreement or otherwise (including rights of termination arising at common law) and such termination shall not be taken to waive the right to assert or exercise any such rights.
B10. Consequences of termination
B10.1 In the event that this Agreement, terminates for any of the reasons set out in clauses B2.3 (e), B3.9 (c) and B9, then:
(a) all rights, licences and permissions granted by TISSL to the Customer under this Agreement will immediately cease save (where relevant) for the licence to use the System Software granted pursuant to clause C1, which shall continue on the terms of this Agreement subject to the Customer having paid in full any licence fee payable pursuant to this Agreement for such use;
(b) the Customer shall immediately stop all use of the Developed Software save as specifically provided for in this clause B10;
(c) all Quotes for any undelivered System (or part thereof) will automatically be cancelled;
(d) the Customer may retain and use a single copy of the Customer Product Sales Data on disk, tape or other similar medium for archival purposes or in order to transfer any of the Customer’s data held within the System Software and the Customer shall, within 7 days of termination or expiry of this Agreement, return to TISSL, the System and the Documents and any other materials provided to the Customer by TISSL under this Agreement, including all copies held or controlled by the Customer;
(e) the Customer will pay to TISSL within 10 days of such termination or expiry all amounts owed to TISSL including any remaining monthly fees payable by the Customer to TISSL in respect of the price payable by the Customer for the System Software licence fee where this is payable other than in full at the date of purchase; and
(f) the Customer shall certify in writing to TISSL within seven days of such termination that it has complied with the provisions of this clause.
The Customer agrees that TISSL may publicise the existence of this Agreement and that the Customer has been licensed to use the System Software and/or receive the Services (without disclosing the terms and conditions hereof) and the name or trade mark of the Customer in any advertising, public relations, press releases, web site or similar promotional activity, in whatever form.
Nothing in this Agreement or in the arrangements hereby contemplated shall constitute or be taken to mean that the Customer acts as the agent of TISSL for any purpose whatsoever or shall be construed to create a partnership or joint venture between them. The parties to this Agreement are and shall remain independent contractors. Nothing in this Agreement shall confer on either party any power to bind or impose any
obligations to any third parties on the other party or to pledge the credit of the other party.
B13. Delay and Force Majeure
B13.1 Neither party shall be responsible for any delay or failure to perform its obligations (other than a payment obligation) under this Agreement or for any loss or damage caused as a result of such delay or failure if such delay or failure is due to any circumstances beyond the reasonable control of that party (the “affected party”) including strike, lockout or other industrial dispute (other than strikes, lockouts or other form of industrial action on the part of the employees of either party), fire, flood, earthquake or other elements of nature, acts of God, acts of war (whether or not war is declared), riots, civil disturbance, acts of terrorism, acts, regulations, orders or requisitions of any Government.
B13.2 In the event of any such delay or failure as aforesaid the affected party shall send notice of the same and the reason for it to the other party within seven (7) calendar days from the time the affected party knew or should have known of the force majeure in question. The performance of the affected party shall be deemed suspended so long as and to the extent that any such force majeure continues, provided however, that after ninety (90) days of such suspension on the part of either party, the non-affected party may by notice in writing to the other party terminate this Agreement with immediate effect and the parties shall be relieved from any liability hereunder if and to the extent that the affected party’s performance has been so prevented or delayed.
The Customer undertakes, during the supply of the System and the performance of the Services and for the term of this Agreement and for a period of six (6) months thereafter:
(a) not to canvass nor solicit for direct or indirect employment nor engage any personnel of TISSL nor proceed with any approach made by or on behalf of any such personnel, unless with TISSL’s prior written consent;
(b) not to solicit or encourage TISSL’s personnel to leave its employ, nor recommend its personnel to anyone that might result in an approach to personnel to leave TISSL’s employ.
B15.1 Any notice or other written communication given under or in connection with this Agreement may be delivered personally or sent by first class post (airmail if overseas) or by facsimile or by email.
B15.2 The address for service of any party shall (in the case of a company) be its registered office marked for the attention of the managing director and (in the case of an individual) shall be his address stated in this Agreement or, if any other address for service has previously been notified to the server, to the address so notified.
B15.3 Any such notice or other written communication shall be deemed to have been served:
(a) if delivered personally, at the time of delivery;
(b) if posted, at the expiry of two working days or in the case of airmail four business days after it was posted;
(c) if sent by facsimile message or email, at 9am on the next Working Day after transmission in the place from which it was sent.
B15.4 In proving such service it shall be sufficient to prove that personal delivery was made, or that such notice or other written communication was properly addressed stamped and posted or in the case of a facsimile message or email that an activity or other report from the sender’s facsimile machine or computer can be produced in respect of the notice or other written communication showing the recipient’s facsimile number or email address and the number of pages transmitted and email notification of receipt. B16. Standard terms and conditions
Neither the Customer’s standard terms and conditions nor any other third party’s standard terms of business shall apply to the contract formed by this Agreement.
B17. Waiver of remedies
No omission, forbearance or delay on the part of either of the parties hereto to enforce fully any provision of this agreement or any other right, power, privilege or remedy otherwise available to it shall be construed as a waiver of such provision, right, power, privilege or remedy or of a right thereafter to enforce the same or any other provision, right, power, privilege or remedy.
B18. Sub-contracting, transfer and assignment B18.1 TISSL may sub-contract performance in any of its obligations under this Agreement but such sub-contracting shall not relieve TISSL of its liability for any acts or defaults of its subcontractors under this Agreement.
B18.2 TISSL may assign this Agreement or any of its rights or obligations under this Agreement to any other company within the TISSL group of companies, or to an associated company of TISSL or as part of a re-organisation or amalgamation provided that it informs the Customer that it has done so. In all other circumstances, TISSL may not assign this Agreement without obtaining the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed.
B18.3 This Agreement is personal to the Customer. The rights and obligations of the Customer under this Agreement may not be sublicensed, assigned or otherwise transferred by the Customer without obtaining the prior written consent of TISSL, such consent not to be unreasonably withheld or delayed.
Variations to this Agreement shall not be effective unless they are in writing and signed on behalf of both parties by their authorised representatives.
B20. Unenforceable clauses
If at any time any provision of this Agreement is or becomes invalid illegal or unenforceable in any respect under the law of any jurisdiction then such provision shall be treated in such jurisdiction as severed from the remaining provisions and neither the validity legality or enforceability of the remaining provisions nor the validity legality or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired.
B21. Entire Agreement
This Agreement contains the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior agreements written or oral and each of the parties acknowledges that it has not been induced to enter into this Agreement by reason of any representation made by or on behalf of the other party.
B22. Dispute Resolution
B22.1 The parties shall attempt in good faith to resolve any dispute arising under this Agreement informally according to the following procedure. Upon written request of either party identifying a dispute to be resolved, each party will designate an executive officer with the responsibility and authority to resolve the dispute, who is senior to all persons having day to day involvement with or responsibility for the subject-matter of this Agreement. These officers shall meet preliminarily within fifteen (15) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These officers shall then gather relevant information regarding the dispute and shall meet to discuss the issue and to negotiate in good faith to resolve the issue.
B22.2 In the event the parties are unable to resolve the dispute within thirty (30) days after the first meeting of the designated officers as specified above (of such longer time as the parties agreed), but either of them regards the dispute as a purely technical one, then that party may request the appointment of an independent expert to resolve the dispute. If
the parties cannot agree on a suitable expert within 15 days of the date when either party requests the use of an expert, then either party may apply to the President for the time being to the British Computer Society to appoint a suitable person with expertise relating to computer software generally and System Software in particular. Such expert shall act as an expert and not as an arbitrator, and shall be instructed to reach a decision within 30 days on all matters in dispute, which decisions shall be final and binding in the absence of manifest error, including as to which party should pay the costs of resolution. The expert may conclude that the dispute is not a purely technical one (i.e. it involves a significant question of law on which the parties do not agree), in which case he shall cease to act and the parties shall then be at liberty to seek redress through the Courts in accordance with clause B23. Clause B23 may also be invoked by either party to give effect to any decision of the expert.
B23. Governing law and Jurisdiction
This Agreement shall be governed by and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English courts.
SECTION C – SUPPLY OF THE SYSTEM
This section C shall apply in respect of all Quotes for the supply of a system and where appropriate the provisions of Maintenance Services and Consultancy Services in respect of such system.
C1. Licence to use the System Software
C1.1 Where the Quote includes the purchase of System Software and 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.
C1.2 The licence to use the System Software is perpetual (subject to termination in accordance with clause B9), non-exclusive and non-transferable by the Customer.
C1.3 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 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, where relevant to the Quote.
C1.4 No rights are granted to the Customer in relation to any source code comprising part of the System Software.
C1.5 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.
C1.6 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.
C2. Customer’s Responsibilities
C2.1 The Customer shall, where relevant to the Quote, 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 cooperation 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.
C2.2 TISSL’s obligations to provide the System and/or perform the Services is conditional on the Customer performing its obligations in accordance with the terms of this Agreement.
C3. Intellectual Property Rights
C3.1 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. If any such Intellectual Property Rights shall at any time vest in the Customer then the Customer shall hold them on trust for TISSL and shall at TISSL’s request take all steps necessary to assign such Intellectual Property Rights to TISSL or as TISSL otherwise directs.
C3.2 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.
C3.3 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.
C3.4 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 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.
C3.5 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.
C4. Project Managers
C4.1 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.
C5. TISSL Indemnity
C5.1 TISSL shall indemnify the Customer against all its reasonable costs and all damages awarded under any final judgement by a court of competent jurisdiction to the extent that the use of the System by the Customer in accordance with the terms of this Agreement infringes the copyright of any third party provided that:
(a) the Customer notifies TISSL immediately it becomes aware of any such claim and fully co-operates with TISSL at TISSL’s expense in the conduct of such claim;
(b) the Customer makes no admissions in respect of such claim without TISSL’s prior written consent and complies with all reasonable instructions relating to the claim given by TISSL; and
(c) if TISSL requests, the Customer allows TISSL to take over conduct of the claim.
C5.2 TISSL shall have no liability to indemnify the Customer under clause c5.1 if the claim in respect of which the indemnity is sought results from:
(a) any breach of the Customer’s obligations under this Agreement;
(b) the Customer or any third party altering, adapting, disassembling or reverse engineering the System whether in accordance with this Agreement or otherwise; or
(c) the combination or use of the System with any other software, hardware or other goods not supplied by TISSL or expressly approved by TISSL for use with the System.
C5.3 If at any time, in TISSL’s reasonable opinion, the System or any part of it is likely to infringe any third party’s rights, or TISSL receives notice of an alleged infringement by a third party, TISSL will, at its sole option and expense either:
(a) procure for the Customer the right to continue to use the System;
(b) modify the System so that it becomes non-infringing;
(c) replace the System with a system offering similar functions; or
(d) if TISSL is unable to achieve (a), (b) or (c) above, terminate this Agreement and pay the Customer a cancellation fee equal to the Price paid for the infringing System or part thereof.
C5.4 TISSL will have no liability for any infringement claim based on the Customer’s refusal to use, modify or replace the System supplied or offered to be supplied pursuant to clause C5.3.
C5.5 This clause C5 states the entire liability of TISSL with respect to the infringement or alleged infringement of any third party rights of any kind whatsoever by the System and the results of the Services.
SECTION D – CONSULTANCY SERVICES
This section D shall apply to all Quotes which include the supply of Consultancy Services and, where applicable, the supply of a System and the provision of Maintenance Services.
D1. Installation, Configuration and Data Migration
D1.1 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 Customer’s 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;
(f) TISSL shall only be required to migrate and set up such bespoke interfaces or reports as set out and agreed in the Specification in accordance with clause B2.3.
D1.2 The Consultancy Services will be provided by TISSL in accordance with the Specification which shall be agreed in accordance with clause B2.3.
D1.3 The Customer shall provide such assistance as TISSL may reasonably require to input, sort or
check data both before and after migration, (as appropriate).
D1.4 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.
D2.1 Acceptance testing of the System is mandatory for installations of all new Systems (as set out in the Specification). TISSL shall notify the Customer when it is ready to commence acceptance testing of the System and this will be carried out at TISSL’s premises unless TISSL notify the Customer otherwise.
D2.2 The Customer shall be permitted to be present at the acceptance tests, at a time mutually convenient to the parties.
D2.3 The Customer shall sign TISSL’s acceptance certificate immediately after TISSL has completed the acceptance tests in accordance with the Specification.
D2.4 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.
D2.5 The parties shall continue to conduct acceptance tests, identify defects, remedy such defects and retest the System until full acceptance is achieved.
D2.6 If the Customer does not make itself available to attend acceptance tests within 7 days of TISSL giving notice in clause D2.1, then the Customer shall be deemed to have accepted the System. In the event of data, System or configuration works being required to be carried out by TISSL where the acceptance testing has not taken place due to the Customer’s failure to attend (as provided for in this clause D2.6) then such work shall be carried out (if TISSL shall so agree) on a chargeable basis at TISSL’s charging rates as detailed at clause E3.3.
D2.7 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 D2;
(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 D2.6 or D2.9.
D2.8 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.
D2.9 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. SECTION E – MAINTENANCE SERVICES
This section E shall apply to all Quotes which include Maintenance Services and where applicable the supply of a System and the provision of Consultancy Services.
E1. Maintenance Services
E1.1 Subject to receipt of the Maintenance Fee, TISSL will provide and the Customer will accept the Maintenance Services for the Equipment throughout the Maintenance Period, but subject to earlier termination as provided by this Agreement. TISSL shall only be obliged to provide the Maintenance Services to the Customer at the Site or to such other site that TISSL may agree in writing from time to time.
E1.2 TISSL’s obligation to provide the Services is dependent on the continued existence of a licence to use the software granted by TISSL to the Customer pursuant to clause C1 of this Agreement or any such other licence agreement as may be in place between TISSL
and the Customer in relation to the System Software and if any such licence is terminated for any reason, TISSL’s obligations to provide the Maintenance Services will cease automatically on the occurrence of such event and no refund of the Maintenance Fee shall be due or payable to the Customer on such termination.
E1.3 Termination of the Maintenance Services will not of itself affect the Customer’s right to continue to use the Equipment in accordance with the Agreement.
E1.4 The level of Maintenance Services provided by TISSL to the Customer will be as specified in the Quote and may be for either:
(a) Full Annual Maintenance Support which includes both maintenance support services for software and hardware as specified in the Schedule for 7 days of the week, 365 days of the year including Christmas Day, from 9:00am to 12:00 midnight, for a Maintenance Period from and including the Commencement Date to and including the date immediately prior to the first anniversary of the Commencement Date. Under Full Annual Maintenance Support the Maintenance Services include:
- i) Remote diagnostics ii) Technical Software issues iii) Software Upgrades iv) Software “Bug” fix (subject to clause E1.6 below) v) Faulty hardware swap out (subject to clause E1.7 below) vi) Extended warranty vii) Technical help;
(b) Annual System Software only Maintenance Support which includes support for software as specified in the Schedule, for 7 days of the week, 365 days of the year including Christmas Day, from 9:00am to 12:00 midnight, for a Maintenance Period from and including the Commencement Date to and including the date immediately prior to the first anniversary of the Commencement Date. Under Annual System Software only Maintenance Support the Maintenance Services include:
- i) Remote diagnostics
- ii) Technical Software issues iii) Software Upgrades iv) Software “Bug” fix (subject to clause E1.6 below) v) Technical help;
(c) Office Hours Full Annual Maintenance Support which includes both software and hardware support, for 5 days of the week, from Monday to Friday, from 9:00am to 17:30 pm excluding Bank and Public holidays in England, for a Maintenance Period from and including the Commencement Date to and including the date immediately prior to the first anniversary of the Commencement Date. Services provided include:
- i) Remote diagnostics ii) Technical System Software issues iii) Software Upgrades iv) Software “Bug” fix (subject to clause E1.6 below) v) Faulty Hardware swap out (subject to clause E1.7 below) vi) Extended warranty vii) Technical help;
E1.5 The following services are not provided by TISSL to the Customer under the Agreement for the provision of Maintenance Services regardless of which of the Maintenance Services are being provided:
- a) Training and database set-up and/or changes
- b) Changes to software including menus, item prices, graphical layouts, buttons and reports
- c) Virus infected systems
- d) Hardware damage other than “fair wear and tear”
- e) Changes to hardware positions, peripheral devices or cabling
- f) Data and Mains wiring and cabling
- g) Environmental issues e.g. Mains power disruption
- h) Database management
E1.6 All software “Bug” fixes will be attended to by TISSL during standard office hours of 9:00am to 17:00pm regardless of which Maintenance Services are being provided.
E1.7 Under Faulty Hardware swap out in clauses E1.4(a)(v) and E1.4(c)(v) above, hardware will be swapped with an equivalent or better replacement unit from TISSL spares and may not therefore be a new unit. The original faulty unit will be returned to TISSL for repair and placed into the spares and become the sole property of TISSL.
E1.8 Where any Equipment is damaged due to a lack of care or negligence (other than where the damage is caused by TISSL or its employees) then the Customer shall be responsible for payment of the full cost of repair or replacement of such Faulty Hardware.
E1.9 iPads are expressly excluded from the provisions relating to the Maintenance Services and TISSL shall not be obliged to repair, maintain or replace any iPads or other tablet hardware supplied to or utilised by the Customer.
E1.10 No charge will be made by TISSL to the Customer in respect of labour or parts where repairs are made in accordance with the Agreement.
The Agreement in respect of the provision for Maintenance Services will be automatically renewed at the end of the Maintenance Period and a further payment of the Maintenance Fee shall be due from the Customer to TISSL at that time unless one party shall serve written notice on the other not less than 30 days prior to the end of the current Maintenance Period terminating the Agreement for the provision of the Maintenance Services. Any such renewal shall be subject to the terms of this Agreement (where applicable) and upon such an extension the Commencement Date as set out in the Quote shall be amended by moving the date forward by one year each time the Agreement is renewed.
E3. Maintenance Fee
E3.1 Unless otherwise expressly stated in writing to be firm for a given period, the Maintenance Fee and other charges payable under this Agreement relating to the Maintenance Services are subject to variation, upon 30 days prior written notice to the Customer, to take account of any variations in wages, materials or other costs incurred by TISSL since the start of this Agreement. TISSL accordingly reserves the right to modify its price list and to adjust its Maintenance Fee and other charges by the amount of any increase or decrease in such costs.
E3.2 Notwithstanding clause E3.1 TISSL reserves the right to increase the Maintenance Fee to reflect any change in Services requirements which are requested by the Customer or any delay caused by the Customer or any failure of the Customer to perform its obligations under this Agreement or to give TISSL adequate information or instructions.
E3.3 Any additional services provided by TISSL to the Customer which are not provided under the relevant Quote will be charged at the following rates:
(a) Daily call out rate: £450 (8 hours at the Site)
(b) Half day call out rate: £250 (4 hours at the Site) (minimum charge £250)
(c) Hourly labour rate at the Site: £60 per hour (minimum charge of 2 hours)
(d) Hourly labour rate at TISSL’s premises £60 per hour (minimum charge of 1 hour)
(e) All additional work outside standard office hours (Monday to Friday 9:00am to 5:00pm) will incur a surcharge of 100%.
E3.4 If TISSL ceases to provide the Maintenance Services for longer than one calendar month due to the Customer’s breach of the Agreement then TISSL reserves the right to charge an administration fee equivalent to 25% of the Maintenance Fee to re-instate these Maintenance Services along with the costs to perform:-
- a) a site survey of the Equipment
- b) any remedial work including hardware repairs to bring the Equipment back to operational standards
- c) administration of the Customer’s account and/or direct debits.
5 TISSL does not grant credit facilities automatically. Should TISSL grant the Customer credit facilities, monthly Direct Debit payment of charges for the Services shall be automatically taken from the Customer’s Bank Account on or soon after the 25th day of each calendar month preceding the next invoice date.
E3.6 TISSL reserves the right to withdraw credit facilities at any time and without notice.
E3.7 TISSL reserves the right to charge an administration charge of £25 exclusive of VAT per failed payment for any unpaid monthly direct debit.
E3.8 Payment in full of all charges under this Agreement shall be due to TISSL and the Customer shall not be entitled to exercise any set-off, lien, counter-claim or cross demand or any other similar right or claim whatsoever. E4. Customer’s Responsibilities
E4.1 The Customer undertakes and agrees:- (a) to use the Equipment in proper manner and with all reasonable care and to operate the Equipment in accordance with any instructions issued for it. (b) not to use the Equipment for any purpose for which it was not designed or intended and not to interfere or tamper with it nor allow any other person to do so unless previously agreed in writing by TISSL; (c) to allow TISSL or its duly authorised agent or representative upon reasonable notice at any time access to inspect repair, service and collect the Equipment (as appropriate);
(d) not to make any alterations, modifications or technical adjustments or make or attempt to make any repairs to the Equipment without the prior written consent of TISSL;
(e) not to use or permit the Equipment to be used in contravention of any statutory provision or regulation or in any way contrary to law;
(f) that the Equipment shall at all times remain the property of TISSL unless sold to the Customer under a separate agreement in writing;
(g) not to move the Equipment to a different address from that to which it was delivered or remove the Equipment in any manner except as authorised in writing by TISSL, and, if so authorised, to give prompt written notice of the change of address or relocation to TISSL;
(h) to take such steps as may be properly recommended by the manufacturer of the Equipment or may otherwise be necessary to ensure that the operation of the Equipment will be without risk to health and safety.
(i) unless otherwise expressly stated in the Contract, to maintain for the duration of the Maintenance Period comprehensive insurance on the Equipment for its full reinstatement value with a reputable insurance company approved in writing by TISSL against all risks of loss or damage (other than those risks for which TISSL agrees to insure the Equipment) and also against all risks of third party liability arising out of the hire or use of the Equipment by the Customer or the presence thereof at the Customer’s premises;
(j) to indemnify TISSL against any loss, claim or liability suffered or incurred by TISSL as a result of any third party claim arising out of the state, condition or use (fair wear and tear
excepted) of the Equipment during the Maintenance Period;
(k) where the Equipment is not owned by the Customer and is subject to a Hire Agreement with TISSL, that for the purposes of United Kingdom taxation and irrespective of the accounting treatment to be adopted by the Customer in respect of the hire of the System, the Customer is not entitled to claim capital allowances in respect thereof; and
(l) If the Customer commits any breach of obligations placed on it under this Agreement TISSL may in addition to any legal or equitable remedies available to it immediately terminate this Agreement and the Customer shall indemnify TISSL against any liability, loss, cost or expense which TISSL incurs in relation to any such breach.
The Customer acknowledges that the Equipment has been selected by the Customer as suitable for its purpose. The Customer accordingly agrees and acknowledges that all conditions, warranties or representations whether express or implied or statutory or otherwise in respect of the Equipment or its fitness for any particular purpose are hereby expressly excluded to the fullest extent permitted by law;
E6. Schedule of Equipment
E6.1 The parties shall agree a written Schedule, which shall form part of and be appended to the Quote, setting out the Equipment and any specific requirements of the Customer in relation to the provision of the Services. Unless the parties agree otherwise, the Schedule will be prepared by TISSL and submitted to the Customer for its approval in accordance with the procedure set out below:
(a) the Schedule 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 Schedule which it requires within 10 working days from the date that the Schedule is provided to it by TISSL.
(c) TISSL shall use its reasonable endeavours to produce a revised Schedule in accordance with the recommendations or suggestions of the Customer within any time agreed between the parties or otherwise within a reasonable time.
(d) any changes made to the Schedule will be subject to full agreement in writing having been reached on any consequential changes made to the Maintenance Fee or other charges, and any timetable or agreed dates.
E7. Know How
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 performing the Maintenance Services.
Notwithstanding the provisions contained at clause B13, in the event that performance of the Maintenance Services is delayed at the request of the Customer, or if the Customer is in breach of any of its obligations in clause B3, the Customer shall reimburse TISSL for all its reasonable costs and expenses incurred as a result of the Customer’s delay.
Save where loss or damage is caused by the negligence, default or breach of contract of TISSL, its subcontractors or agents, the Customer is responsible for risk of loss of, or damage to the Equipment. The Customer shall be responsible for replacing any Equipment or software so lost or damaged for which the Customer is responsible for the risk of loss or damage to under this clause.
SECTION F – TRAINING
This section F shall apply where any Quote includes the provision of Training.
F1. TISSL shall provide training for such of the Customer’s nominated personnel as are
permitted to use the System on such terms as shall be agreed by the parties from time to time. All training provided by TISSL will be in the English language. The specific form and content of the training shall be as set out in TISSL’s standard training course specification or as reasonably determined by TISSL.
F2. Training shall be provided by TISSL within a timescale to be agreed by the parties.
F3. Training will be provided at TISSL’s Offices unless otherwise agreed by the parties.
F4. TISSL shall be entitled to charge for training services at the rate set out in the Quote or, if no provision is made in the Quote, at its standard rates subsisting at the time.
F5. TISSL shall be entitled to cancel and reschedule any training at any time. In the event that TISSL does cancel or re-schedule any such Training course booked by Customer, then Customer shall have the right to cancel their order for such Training and shall be entitled to a full refund of the Price paid by the Customer in respect of such Training and the payment of such refund shall be TISSL’s sole liability to the Customer in respect of such cancelled Training course.
F6. If Customer shall cancel any order to for Training or to attend at a Training course, then if they shall provide TISSL with notice in writing of their desire to cancel, not less than 2 working days prior to the date that such Training was to take place, they shall be entitled to receive a full refund of the Price paid by the Customer in respect of such Training, but if the Customer shall fail to attend such Training or if the Customer shall notify TISSL less than 2 working days prior to the date that such Training was to take place, then they shall not be entitled to receive any refund of the Price paid by the Customer in respect of such Training.
SECTION G – ONLINE PURCHASES
This section G shall apply to all Quotes placed by a Customer via the Website.
G1. Placing an order and its acceptance
G1.1 The Customer is responsible for ensuring that any order placed via the Website is complete and accurate.
G1.2 After Customer places an order for the purchase of Consumables on the Website, TISSL will send an email acknowledging that the order has been received, but this does not mean that the order has been accepted. Acceptance of Customer’s online order takes place when TISSL send an email to Customer confirming that the Consumables have been dispatched to Customer, at which point the contract between Customer and TISSL will come into existence
G1.3 If TISSL cannot accept Customer’s online order TISSL will inform Customer of this by email. If Customer has already paid for the Consumables, TISSL will refund Customer the full amount including any delivery costs charged as soon as possible.
G1.4 TISSL only supply the Consumables for internal use by Customer’s business, and Customer agrees not to use the Consumables for any resale purposes.
G2. Description and Cancellation
G2.1 The images of the Consumables on the Website are for illustrative purposes only.
G2.2 TISSL reserves the right to amend the specification of the Consumables if required by any applicable statutory or regulatory requirement.
G2.3 Customer may cancel their online order for Consumables and receive a refund, if Customer notifies TISSL by email to firstname.lastname@example.org within 14 days of submission of the order on the Website. When emailing please include details of the order, including where relevant the order reference number. Such cancellation is effective from the date Customer sends the email to TISSL in accordance with this clause G2.3.
G2.4 If Customer returns Consumables to TISSL under this clause G2 because they are faulty, TISSL will refund the price of the Consumable.
G2.5 If the Consumables have been delivered to Customer before Customer decides to cancel the online order then Customer must return the Consumables to TISSL unopened and in the
same state and condition as they shall have been received by Customer, at Customer’s own cost and risk, without undue delay and in any event not later than 14 days after the day on which Customer notifies TISSL of its wish to cancel the online order. TISSL will refund the price of the Consumables within 5 working days of receipt of the Consumables from Customer in accordance with this clause G2.
G3. Delivery, transfer of risk and title
G3.1 Customer shall own the Consumables once TISSL has received payment in full, including of all applicable delivery charges.
G3.2 If TISSL fails to deliver the Consumables, its liability is limited to the cost of obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Consumables. However, TISSL will not be liable to the extent that any failure to deliver was caused by an event as described at clause B13 or because Customer failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of the Consumables.
G3.3 If Customer fails to take delivery of the Consumables, TISSL may resell part of, or all the Consumables and after deducting any reasonable storage and selling costs, account to Customer for any excess over the price of the Consumables or charge Customer for any shortfall below the price of the Consumables.
G4. International delivery
G4.1 TISSL deliver to most countries in the UK and EU (International Delivery Destinations). However, there are restrictions on some Consumables for certain International Delivery Destinations, so please review the information on that page carefully before ordering Consumables via our Website.
G4.2 If Customer orders Consumables from the Website for delivery to one of the International Delivery Destinations, the order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that TISSL has no control over these charges and cannot predict their amount.
G4.3 Customer will be responsible for payment of any such import duties and taxes.
G4.4 Customer must comply with all applicable laws and regulations of the country for which the Consumables are destined. TISSL will not be liable or responsible if Customer breaks any such law.
G5. Price of Consumables and delivery charges
G5.1 The prices of the Consumables will be as quoted on the Website at the time Customer submits its online order. TISSL take all reasonable care to ensure that the prices of Consumables are correct at the time when the relevant information was entered onto the Website. However, please see below for what happens if TISSL discover an error in the price of Consumables Customer ordered.
G5.2 Prices for Consumables may change from time to time, but changes will not affect any online order that Customer has already placed.
G5.3 The price of Consumables excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of Customer’s online order and the date of delivery, we will adjust the VAT Customer is required to pay, unless Customer has already paid for the Consumables in full before the change in VAT takes effect.
G5.4 The price of the Consumables does not include delivery charges. The delivery charges are as advised to Customer during the check-out process, before Customer confirms its order.
G5.5 It is always possible that, despite TISSL’s reasonable efforts, some of the Consumables on the Website may be incorrectly priced. TISSL will normally check prices as part of its dispatch procedures so that:
(a) where the Consumables’ correct price is less than the price stated on the Website, TISSL will
charge the lower amount when dispatching the Consumables to Customer; and
(b) if the Consumables’ correct price is higher than the price stated on the Website, TISSL will contact Customer as soon as possible to inform Customer of this error and TISSL will give you the option of continuing to purchase the Consumables at the correct price or cancelling the order. TISSL will not process the order until it has received your instructions. If TISSL is unable to contact Customer using the contact details provided during the order process, TISSL will treat the order as cancelled and notify Customer in writing.
However, if TISSL mistakenly accept and process an order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by Customer as a mispricing, TISSL may cancel the supply of the Consumables and refund Customer any sums it has paid.
G6. How to pay
G6.1 Customer can only pay for Consumables via the Website using a debit card or credit card. TISSL accepts most cards excluding American Express.
G6.2 Payment for the Consumables and all applicable delivery charges is in advance. TISSL will not charge Customer’s debit card or credit card until the Consumables are ready to be dispatched.