I T RETAIL SYSTEMS LIMITED STANDARD CONDITIONS OF SALE
“ITS” means IT Retail Systems Limited, its servants, agents or subcontractors. “Customer” means the party with whom ITS contracts to perform the Sale. “Agreement” means these terms and conditions together with details attached and such schedules or attachments as are specifically included by reference (if any). “Sale” means the work to be performed by ITS and the items, if any, which ITS shall deliver hereunder, such work and deliverables being more particularly described elsewhere in this Agreement.
- Authorisation to ITS
The Customer warrants that it is either the owner of material, designs, information, and rights therein, given or disclosed to ITS by or on the customer’s behalf in relation to and/or during this Agreement, or that the Customer is legally authorised so to do by the owner thereof.
- Scope of Services
3.1 ITS shall perform the Sale according to the provisions of this Agreement, and the Customer shall pay to ITS all sums due to ITS in accordance with this Agreement for the said performance of the Sale.
3.2 All documentation and other material delivered to the Customer as part of the Sale and all performance by ITS shall be to the appropriate ITS standards, unless otherwise agreed in writing.
3.3 Use of particular methods shall be at the discretion of ITS and use made by ITS thereof shall be on the basis of using its knowledge as to the applicability of a particular method to the particular Sale required.
- Customer Responsibilities
4.1 If ITS staff are provided to work on the Customer’s premises or premises other than ITS’s, the Customer shall ensure that such staff are provided with suitable office accommodation and services. ITS will use reasonable endeavours to ensure that it’s staff comply with all reasonable security regulations and requirements made known to it concerning the conduct of personnel at the said premises. However, ITS staff shall at all times be subject to the employment conditions of ITS and not those of the Customer.
4.2 The Customer shall promptly provide ITS with (and warrants that it is entitled to do so) accurate and complete information concerning its requirements relevant to the Sale, answers to queries, decisions and approvals required by ITS in connection with the Sale. ITS staff shall have the right of access to the Customer’s personnel and premises at all reasonable times for such purpose throughout the duration of the Agreement.
4.3 If ITS suffers loss due to the Customer providing information which is inaccurate or incomplete, or due to the Customer failing to provide answers to queries, decisions and approvals required hereunder, ITS shall be entitled to additionally charge the Customer for all costs associated therewith.
4.4 The Customer shall have no right to use items provided under the Sale until acceptance thereof has taken place and payment in respect thereof has been made, at which point physical title to the items shall pass.
5.1 Acceptance shall occur or deemed to occur on either i) The date of completion of the work in accordance with this Agreement, or ii) The signing of the appropriate approval or receipt document by the Customer, or iii) the date an item is used by or delivered to the Customer for its operational purposes, whichever is the earlier.
5.2 Upon acceptance ITS shall be deemed to have discharged all its obligations and ITS shall have no further liability, including but not limited to the consequences of any use which the Customer makes of anything provided as part of the Sale.
6.1 All prices stated are in accordance with the current ITS price list. ITS reserves the right to increase the prices to reflect increases in the cost of materials, labour, services or transport between the date of the Agreement and the date of delivery.
6.2 Unless otherwise stated, the prices exclude the cost of delivery. Any charges incurred by ITS in delivering the goods to the Customer will be charged to the Customer at cost. Any delivery charges made to ITS by its suppliers will be charged on to the Customer at cost.
6.3 All prices and charges are exclusive of Value Added Tax which will be charged to the Customer and paid by the Customer at the rate and in the manner for the time being prescribed by law.
6.4 ITS shall be entitled to charge the Customer for all expenses incurred by ITS staff whilst performing the Sale, plus VAT as applicable. ITS shall provide reasonable evidence of all such expenses incurred. All such expenses shall be claimed at cost except that mileage shall be reimbursed at ITS’s normal mileage rate.
7.1 Forty per cent of the total price of the Agreement, plus Value Added Tax on the amount, is payable on signing the Agreement. If the Agreement includes any programming work, monthly invoices will be raised in equal amounts based on the agreed value of the work and the elapsed time.
7.2 The balance of the total price of the Agreement, plus Value Added Tax on the amount, is payable on or before delivery except where the Customer establishes and maintains a satisfactory credit arrangement.
7.3 Under a credit arrangement all invoices shall be paid within 14 days of acceptance, as defined in Clause 5, of the Agreement. If payment has not been received as set out herein ITS reserves the right, in addition to any other right that it may have, to suspend deliveries and/or performance under this Agreement until such payment is made in full.
7.4 If any sum payable under this Agreement is in arrears then, in addition to and without prejudice to any other remedies which may be available under this Agreement, ITS reserves the right to charge interest on any and all such sums, on a day-to-day basis, from the original due date (as defined in this Agreement) to the date of actual payment at the rate of 2 per cent per month or part of a month plus any recovery expenses.
Risk in items delivered by ITS as part of the Sale shall pass to the Customer on delivery or on posting thereto, as applicable.
The period during which the Sale shall be provided shall be as set out overleaf, together with details of dates and locations, if applicable. ITS will use all reasonable endeavours to complete the Sale or any part thereof by any date quoted for such completion. However due to the nature of the work such dates are estimates only.
10.1 Any deliveries of software or equipment shall be made during ITS’s normal working hours to the installation address stated on the Agreement. ITS shall make all reasonable efforts to adhere to the delivery schedule agreed with the Customer.
10.2 In no event shall ITS be liable for any damages or penalty for delay in delivery. The Customer shall not be entitled to refuse to accept delivery due to any delay howsoever caused.
- Intellectual Property Rights
11.1 No title or rights of ownership, copyright or other intellectual property in any software supplied under this Agreement have been, are hereby or will be transferred to the Customer.
11.2 The Customer understands that any software supplied and related documentation contains proprietary information and agrees that except in accordance with the express written authority of ITS it will not provide or otherwise make the software and/or related documentation or any part thereof available to any person, firm, company or organisation other than the Customer’s subsidiary or associated companies and their employees for any reason.
11.3 The Customer shall not delete any proprietary marks on the software.
11.4 Copyright subsists in all operating software, ITS’s proprietary software, software supplied by ITS under licence and all documentation relating thereto, whether printed or stored electronically.
ITS warrants that to the best of its knowledge the provision of Sale does not infringe the rights in existence as at the date of entering into this Agreement of any third party. Further, ITS undertakes not to knowingly copy any design or materials of any third party. Save as aforesaid, the Customer indemnifies ITS in respect of any and all intellectual property infringement In particular the Customer indemnifies ITS against any and all claims of infringement or alleged infringement in relation to anything which the Customer does or supplies and/or in relation to anything which ITS uses at the request or with the consent of the Customer. ITS reserves the right to vary the Sale to avoid any actual or foreseen infringement. Each party hereto shall notify the other promptly of any alleged or actual infringement and neither shall make any admission without the other party’s written consent, and each shall assist the other in the conduct of any negotiations or litigation pertaining to alleged infringement by the Sale. ITS’s liability under this clause shall be in lieu of any and all liability whatsoever in respect of alleged or actual infringement and ITS’s total liability hereunder shall in no event exceed the price of the Sale provided under this Agreement as set out herein. Thereafter the Customer shall indemnify ITS against all liability in respect thereof.
- Third Party Products
In respect of Third Party Products, the Customer shall only be entitled to the benefit of any warranty or guarantee given by the Third Party manufacturer.
Neither party will during the continuance of this Agreement or at any time thereafter disclose any secrets, confidential knowledge or financial or trading information relating to the other of any subsidiary or associated company in any manner whatsoever except with the other’s prior written consent or the order of a court of competent jurisdiction.
To the extent that it results from the negligence of ITS, ITS shall indemnify the Customer in respect of personal injury or death to any person or loss or damage to any property caused directly by the negligent acts or omissions of ITS. Except in respect of personal injury or death caused by negligence (for which by law no limit applies) the liability of ITS hereunder in respect of any one such event or series of connected events shall not exceed the value of the Agreement. In all other instances the Customer shall indemnity and hold ITS harmless from any and all claims, including but not limited to those caused by or arising from default, modification or misuse of the Sale, and in particular any deliverables provided hereunder. The Customer acknowledges that, except as provided by law, ITS is excluded from any and all liability howsoever caused, including but not limited to indirect and consequential loss of any description.
Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the Sale provided hereunder is given or assumed by ITS, and except as expressly provided in this Agreement all such warranties, conditions, under-takings and terms are hereby excluded.
Loss Notwithstanding any other provision of this Agreement in no event shall either party hereto be liable for any indirect or consequential loss of whatever nature, howsoever caused, including but not limited to loss of use and/or loss of profits and/or loss or spoiling of data or materials whether occurring in contract, tort, negligence or otherwise.
18.1 Notwithstanding anything contained elsewhere in this Agreement, ITS may terminate this Agreement forthwith on giving written notice to the Customer if the Customer fails to make any payment on the due date, or commits any other breach of the terms of this Agreement.
18.2 If any distress or execution shall be levied upon the property or assets of one party hereto, or if that party shall make or offer any arrangement or composition with creditors, or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against it or, if it is a limited company, any resolution or petition to wind it up (other than for the purpose of amalgamation or reconstruction) shall be made or if a receiver or liquidator is appointed over the undertaking property or assets, or any part thereof, or if any other order is applied for and/or granted over its assets, then in any of the foregoing events the other party hereto shall be entitled to terminate this Agreement but any such termination shall be without prejudice to any other rights of ITS accrued prior to termination.
18.3 Where this Agreement is terminated as provided in this Clause all payments to ITS for work done to date will be immediately due and payable,furthermore, long-term projects will additionally be subject to a cancellation charge where ITS continue as a result of this agreement to incur costs after termination.
- Force Majeure
Neither party shall be liable for any loss or damage caused by delay or failure in performance of its obligations hereunder where the same is occasioned by any cause whatsoever that is beyond its reasonable control. Should such event occur ITS may suspend the Sale covered by this Agreement without incurring any liability whatsoever for any loss or damage thereby occasioned. ITS shall be entitled to such extension of time as is reasonably required by ITS to fulfil its obligations under this Agreement. In the event of a suspension occurring ITS shall be entitled to request at any time on or after such occurrence that it be paid for work done up to the time of the suspension, notwithstanding any agreement as to payment in stages etc. payment thereof to be made within seven days of receipt of such request
The failure of either party at any time to enforce any provisions of this Agreement shall in no way affect that party’s rights thereafter to require complete performance by the other party hereto, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself. Any waiver to be effective must be in writing.
- Whole Agreement
This Agreement constitutes the entire Agreement between ITS and the Customer as to the subject matter hereof and supersedes all previous communications, representations and agreements, whether written or oral, and the Customer hereby acknowledges that no reliance is placed on any representation made but not embodied in this Agreement.
This Agreement is personal to the Customer and the Customer shall not assign, part with or sub-let any interest in it or grant any right under it to any third party, or seek to exercise any rights or obligations granted hereunder for the benefit of or on behalf of a third party, without the prior written consent of ITS.
All formal notices required to be given under this Agreement by one party to the other shall be sufficiently given if in writing and either delivered by hand or sent by pre-paid letter to the applicable address of the other party set out overleaf or to such other address as the receiving party may from time to time designate.
The headings of the Clauses of this Agreement are provided for convenience only and shall not contribute to or affect the meaning or construction of the said Clauses.
If any term, part or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable as being contrary to applicable law or public policy, such provision shall to the extent reasonably possible be construed in a manner so as to be enforceable and the remaining provisions hereof shall remain in full force and effect and in no way be affected, impaired or invalidated, except when by reason thereof the fundamental nature of this Agreement is thereby frustrated.
26.1 This Agreement may only be amended by written agreement between the parties hereto signed by the duly authorised representatives of both parties hereto and referenced hereto.
26.2 Where the Customer changes its mind as to its requirements during the Sale such may affect the time required of ITS staff. However, any change can only be effective after an amendment to this Agreement in accordance with this Clause has been signed, and until such time both parties hereto shall continue in accordance with the Agreement not withstanding that such a change may affect work being done. Only in this way can effective project control be maintained and the contractual position of both parties be protected. In the event that an amendment is urgently required to prevent unnecessary work being done then, subject always to the agreement of both parties hereto to the proposed amendment, it shall be the duty of both parties to use reasonable endeavours to effect an amendment as provided in clause 23 as soon as reasonably possible.
The construction, validity and performance of this Agreement shall be governed by English law and each party hereto submits to the jurisdiction of the English courts.