Terms and Conditions
These
Terms and Conditions govern the supply to the Customer of Total Support Training
Service/Products.
1. INTRODUCTION
1.1
In these terms and
conditions the following terms shall, unless the context otherwise requires
have the meanings set out below:-
“Contract”
means any agreement between Total Support Training and the customer for the
supply of products which expressly or by implication incorporate these terms
and conditions
“Customer”
means the party named in the invoice
“Delivery
Address” means the address as the point of delivery as notified by Total Support
Training to the customer
“Delivery
date” means the delivery dated as notified by Total Support Training to the
customer
“Hardware”
means the hardware components of Total Support Training products including
all ancillary equipment, spares, supplies, and related documentation
“Invoice”
means the invoice prepared by Total Support Training and issued to the customer
“Licence
agreement” means the terms and conditions governing the supply of software,
whether Total Support Training own software or third party software which
Total Support Training is authorised to supply to the customer
“Price”
means the total price for the products as specified in the invoice
“Products”
means Total Support Training products including but not limited to any configuration
of hardware and/or software. All services offered by Total Support Training
, including maintenance and support, training and education, and consultancy
services are not products to which these terms and conditions apply, but are
supplied on the terms and conditions contained in Total Support Training
applicable agreements.
“Total
Support Training” means Total Support Training a company registered in England who’s head office
is at The Chester Enterprise Centre Hoole Bridge Chester CH2 3NE
“Software”
means any operating system, utility or application software supplied by Total
Support Training in machine readable
object, printed, interpreted or any other form whatsoever and either incorporated
with hardware or separately supplied, including related documentation
1.2 This contract constitutes the entire agreement between the
parties with regard to the supply to the customer of products. Each party
confirms that it has not relied upon any representation nor recorded in this
document including it to enter into the contract. No variation of these terms
and conditions will be valid unless confirmed in writing by authorised
signatories on or after the date of contract.
1.3
If these terms and conditions are incorporated by reference
into any other form of agreement between Total Support Training and the customer and that other agreement is
currently in effect at the time the contract is made, so that the contract
constitutes a contract for the purposes of that agreement, the terms and conditions
of the agreement will prevail in the event, but only to the extent, of any
conflict of meaning with these terms and conditions
2. PRICE AND
PAYMENT
2.1
Applicable taxes, import
duties and other duties are not included in the price and will be charged in
addition unless agreed otherwise. Value Added Tax will be charged at the appropriate
rate at the time of invoice.
2.2
Payment of the price or any part payment thereof and any other
charges due under the contract must be made upon receipt of the invoice (unless
otherwise specified in the invoice). The contents of the invoice, including
inter alia the price shall, in the absence of a manifest error, be deemed
to have been accepted by the customer unless the customer has notified Total
Support Training in writing within seven days of the date of the invoice that
such contents are disputed. Unless otherwise agreed, the payment shall be
made in pounds sterling, without set-off, deduction or withholding. All payments
which are not received when payable shall be considered overdue and Total
Support Training reserves the right to charge interest on a daily basis at
four percent per annum above the Bank of England base rate.
2.3
Without prejudice to any of Total Support Training Limited
other rights if the customer fails to effect any payment due to Total Support
Training under the contract in accordance with clause 2.2, Total Support Training
shall have the right to terminate or suspend the contract in whole or in part.
If Total Support Training elects to exercise its right of suspension under
the sub-clause it shall do so by notice in writing to the customer and shall
be entitled to recover from the customer all costs which it reasonably incurs
as a consequence of such suspension.
3.
TITLE
3.1
Title to the products is vested in Total Support Training.
Only when the price, all taxes and other charges due under the contract have
been paid in full, will title to any hardware supplied under the contract
pass to the customer.
3.2 No title or ownership of any software supplied under the
contract and licensed to the customer under any license agreement is
transferred to the customer
3.3
Until such time as title in the products passes to the customer,
the customer shall hold the products as Total Support Training fiduciary agent
and bailee, and shall keep the products separate from the customer and third
parties and properly stored, protected and insured and identified as Total
Support Training property. Until that
time the customer shall be entitled to resell or use the products in the ordinary
course of its business but shall account to Total Support Training for the
proceeds of sale or otherwise of the products, whether tangible or intangible,
including insurance proceeds, and shall keep all such proceeds separate from
any monies or property of the customer and third parties and in the case of
tangible proceeds properly stored, protected and insured.
3.4
Until such time as title in the products passes to the customer
(and provided the products are still in existence and have not been resold)
Total Support Training shall be entitles at any time to require the customer
to deliver up the products to Total Support Training and if the customer fails
to do so forthwith to enter upon any premises of the customer or any third
party where the products are stored and repossess the products.
3.5
The customer shall not be entitled to pledge or in any way
charge by way of security or any indebtedness any of the products which remain
the property of Total Support Training but
if the customer does so all monies owing by the customer to Total Support
Training shall (without prejudice
to any other right or remedy of Total Support Training) forthwith become due
and payable
4.
DELIVERY
4.1 Delivery will be effected at the delivery address.
4.2
If appropriate the customer will make the delivery address
available for inspection by appropriate Total Support Training staff at an
agreed time during a period of 30 days before the delivery date if so required
by Total Support Training.
4.3
If appropriate the customer will furnish the necessary labour
(If Total Support Training so requires
under Total Support Training direction) for taking any hardware supplied
under the contract into its designated operation point, unpacking it and placing
it in the desired location.
4.4
Delivery date is approximate only and not of any contractual
effect. While Total Support Training will
use all reasonable endeavours to meet the delivery date it will not be liable
for any loss or damage (including loss of use, loss of contract or loss of
profits) incurred by the customer as a result of any failure to deliver on
such particular date.
4.5 Each delivery of products under the contract will be deemed
to constitute a separate enforceable contract to which these terms and
conditions will apply.
4.6
If the customer refuses or fails to take delivery of products
tendered in accordance with the contract, delivery will nevertheless be deemed
to have taken place for the purpose of Total Support Training rights to payment
and Total Support Training will be entitled to store the products at the customers
risk and expense, including all transportation charges.
4.7
The customer shall inspect the products on delivery and shall
within 48 hours of delivery notify Total Support Training of any alleged shortage
in quantity, damage or failure to comply with description or sample. If the
customer fails to notify Total Support Training within such time the products
shall be conclusively presumed to be in accordance with the contract.
4.8
If the products are not in accordance with the contract the
sole remedy of the customer shall be limited to Total Support Training making
good any shortage by replacing such products or if Total Support Training
shall elect by refunding a proportionate part of the invoice.
5. SUBSTITUTION
AND CHANGES
5.1
Total Support Training reserves the right to
make improvements, substitutions or modifications to any part of the products
at any time prior to delivery, provided that such improvements, substitutions
or modifications will not materially affect the performance of such products.
Total
Support Training further reserves the right to change the delivery date and
increase the price of the products at any time prior to delivery to reflect
any increase in the cost to Total Support Training which is due to any factor beyond Total Support
Training control.
5.2
No order that has been accepted by Total Support Training may
be cancelled by the customer except with the prior written consent of Total
Support Training and the customer shall indemnify Total Support Training in
full against all loss (including loss of profit), costs (including cost of
all labour and materials used), damages, charges and expenses incurred by
Total Support Training as a result of such cancellation.
6. HARDWARE
6.1
Where installation or training is not included in the price
and not ordered by the customer, the customer will be solely responsible for
this, and Total Support Training disclaims all liability in this connection.
6.2 Where the hardware includes data communications equipment
and data transmission speeds are given in relation to any item of hardware,
these are at all times subject to any conditions of the applicable
telecommunications utility company relating to the use of the relevant data
communications hardware at the speeds indicated and the capability of any of
that company’s equipment to which the hardware is linked.
6.3
Where the hardware is installed or used in conjunction with
other products not supplied by Total Support Training, the customer will be
solely responsible for ensuring that the products are compatible with such
other products, and Total Support Training disclaims all liability in this
connection.
6.4
Total Support Training warrants that it has good title to or
the legal right to supply all hardware supplied to the customer. Hardware
is warranted solely in accordance with any manufacturer’s warranty supplied.
6.5
Where any product is to be returned to Total Support Training,
the expense, responsibility and risk of delivering the product to Total Support
Training shall be borne by the customer. Total Support Training shall assume
the expense and responsibility of redelivering the product to the customer.
In any case where Total Support Training reasonably determines that the hardware
is not defective, the customer will pay Total Support Training all costs of
handling, transportation and repairs at Total Support Training then prevailing
rate.
6.6 The stated warranties apply only to the customer and not the
initial end user of the hardware and are contingent upon proper treatment and
use of the products with no unauthorised modifications and maintenance, at a
safe and suitable premises.
6.7
The supply of hardware to the customer does not convey any
ownership or licence to exploit any of the proprietary rights of Total Support
Training in the hardware. Any such rights granted to the customer by Total
Support Training will be granted only subject to a separate restrictive, non-transferable,
non-exclusive license agreement supplied by Total Support Training. All operating
instructions, manuals and other documentation referencing the hardware and
supplied by Total Support Training are
subject to copyright and shall not be copied or disclosed to any third party
without the prior express written consent of Total Support Training
7. SOFTWARE
7.1
Copyright subsists in all software whether
it is Total Support Training proprietary software or software supplied by
Total Support Training under licence. All software is supplied to the customer
only under the terms ands conditions of the applicable licence agreement (whether
is has been signed and/or returned to Total Support Training or not). No part
of the software may be copied, reproduced or utilised in any form by any means
without the prior written consent of Total Support Training.
7.2 It is the sole responsibility of the customer to comply with
all of the terms and conditions of any licence agreement, and the customer is
hereby notified that any failure to comply with such terms and conditions may
result in the revocation of such licence agreement.
7.3 Software is warranted in accordance with the terms of any
licence agreement governing its supply
8. LIMITS OF
LIABILITY
8.1
Total Support Training ill indemnify the customer
for direct physical injury or death caused solely either by defects in the
products or by negligence of its employees acting within the course of their
employment and the scope of their authority.
8.2
Total Support Training will indemnify the customer for direct
damage to property caused solely either by defects in the products or by the
negligence of its employees acting within the course of their employment and
the scope of their authority. The total liability of Total Support Training
under this sub-clause will be limited to £250,000 for any one event or series
of connected events.
8.3
Except as expressly stated in this clause and elsewhere in
these terms and conditions any liability of Total Support Training for breach
of contract will not exceed, in the aggregate of damages, costs, fees and
expenses capable of being awarded to the customer, the price.
8.4
Except as expressly stated in these terms and conditions Total
Support Training disclaims all liability to the customer in connection with
Total Support Training performance of this contract or the customers use of
the products and in no event will Total Support Training be liable to the
customer for special, indirect or consequential damages including but not
limited to loss of profits or arising from loss of data or unfitness for use
purposes.
9. EXPORT AND
RE-EXPORT LIMITATION
9.1
Notwithstanding any other provision hereunder
some or all of the products may be delivered subject to Total Support Training
or its suppliers obtaining the required export licence or other authorisation
from the United Kingdom Government. Regardless of any disclosure made by the
customer to Total Support Training of
any ultimate destination of any products, the customer hereby agrees not to
re-export, transmit, transfer or engage in or permit oral exchanges or visual
inspections of, whether directly or indirectly, any of the products to any
other party without first obtaining the required export licence or other authorisation
from the United States Department of Commerce or other agency or department
of the United Kingdom Government or from the United Kingdom Government.
10. CONFIDENTIALITY
10.1
Each party shall treat
as confidential all information obtained from the other pursuant to the contract
and shall not divulge such information to any person (except to such party’s
own employees and then only to those employees who need to know the same)
without the other party’s prior written consent provided that this clause
shall not extend to negotiations leading to the contract, which is already
public knowledge or becomes so at a future date (otherwise than as a result
of a breach of this clause). Each party shall ensure that its employees are
aware of and comply with the provisions of this clause. If Total Support Training
shall appoint any sub-contractor then
it may disclose confidential information to such sub-contractor subject to
such sub-contractor giving Total Support Training
an undertaking in similar terms to the provisions of this clause. The
foregoing obligations as to confidentiality shall survive any termination
of contract.
11. FORCE MAJEURE
11.1
Total Support Training shall not be liable
for failure to perform its obligations in the event such performance is prevented
or hindered by reasons of force majeure. Force majeure shall be deemed to
mean all causes beyond the reasonable control of Total Support Training
(including without prejudice to the generality of the foregoing any
delays arising from the act, omission, or default of any of Total Support
Training suppliers or sub-contractors),
fires or industrial disputes.
12. TELECOMMUNICATIONS
REQUIREMENTS
12.1
When computer equipment
is connected to a public network, ie a switchboard or telephone network,
certain regulations of the telecommunications provider apply. It is the sole
responsibility of the customer to ensure compliance with all such regulations
13. LIFE
ENDANGERING APPLICATIONS
13.1
The products are designed for standard commercial
use and are not intended to be installed or used in hazardous or life-threatening
environments or for potentially life-threatening applications, including but
not limited to environments or applications involving safety critical systems
in the nuclear industry or the control of aircraft in the air. The customer
undertakes not to use or supply the products for any of these purposes and
agrees to indemnify and hold Total Support Training harmless from and against
all liabilities and related costs arising out of the use of any of the products
for any of these purposes.
14. ASSIGNMENT
14.1
The customer shall not assign its rights or
obligations under the contract except with the prior written consent of Total
Support Training.
15. WAIVER
15.1
Failure by either party
any time to enforce any of the provisions of the contract shall not be
construed as a waiver by that party of any such provisions nor in any way
affect the validity of the contract.
16. SEVERABILITY
16.1
In the event that any or
any part of the contract shall be determined invalid, unlawful or unenforceable
to any extent, such term, condition or provision shall be severable from the
remaining terms, conditions and provisions which shall continue to be valid and
enforceable to the fullest extent permitted by law.
17. LAW AND
JURISDICTION
17.1
The contract shall be
subject to and interpreted in accordance with English law and the parties
hereby irrevocably submit to the exclusive jurisdiction of the English Courts
in all matters arising out of the contract.
18. NOTICES
18.1
Any notice to be served
by either party pursuant to the contract is to be sent by registered mail to
that other party’s address as specified in the invoice.