Terms and Conditions of Sale
Agreement means an agreement for the sale, installation and support of computer software and hardware consisting of these terms and conditions set out herein and any schedules incorporated thereby; Customer means any body/person identifiedas such in the sales agreement; Delivery Date means the actual date that the software is delivered to the customer or the date of installation or the effective date whichever is the latest; Effective Date means the date set out as such in the sales agreement; Equipment is any identified as such in the schedule and any operating system of such equipment; Price is stated in the schedule/sales order plus VAT; Schedule means any schedule of hardware, software and/or services; Service means the general service and support carried out by Clever Till including installation and training; Third Party Software means any software not licensed by Clever Till.
These terms and conditions set out the conditions under which Clever Till shall supply equipment and software including third party's and perform the services purchased by the customer except that software is licensed on an annual basis through payment of an annual license fee non payment of which will revoke the license to use such software. Any variations to this agreement must be agreed in writing.
3.SOFTWARE, THIRD PART SOFTWARE & EQUIPMENT
Software (including 3rd party software) is detailed in the schedule. License conditions are set out in clause 7; Clever Till will provide licences for any 3rd party software that is supplied as part of this agreement but any bespoke software shall be subject to a separate agreement; Where a central processing unit (hereinafter "CPU") is to be supplied it is the responsibility of the Customer to ensure that it has s ufficient disc space, necessary parts, CD Rom, modem, network card etc and processing power for any CPU to be supplied under this agreement; No source code is provided under this agreement; The customer shall be responsible for complying with the terms of all software and hardware licences;
Upon acceptance of this agreement by the customer, Clever Till shall go through a check list with the customer's nominated representative. The signing of this checklist shall be conclusive evidence of the software, hardware and all services to be provided by Clever Till. Any variation of the terms and matters set out in the checklist must be agreed in writing; On completion of training and/or installation, the parties shall sign a completion certificate which shall be conclusive evidence that the hardware and software is in full working order to the satisfaction of the parties except in so far as there is any software that is to be provided by a 3rd party and remains outstanding; and that full training has been provided;
Clever Till will provide advice to the customer but the customer is responsible for the choice of product and its suitability; Subject to Clever Till conforming to all reasonable security and safety requirements of the customer, the customer shall afford to Clever Till personnel reasonable access to the site(s) at all reasonable times for the purpose of Clever Till' performance of and under this agreement; The customer under stands and accepts that it shall be necessary from the customer to promptly supply information to Clever Till and to give Clever Till personnel access to the customer's staff, equipment, data and items supported hereunder; For the purposes of Clever Till providing the support services and during any period of such support:
i) The customer will appoint contact persons as the points of contact through which Clever Till will coordinate support activities for the customer. Only those contacts have authority to require support and assistance under this agreement. Unless and until the customer notifies Clever Till in writing of such persons as have been nominated herein for the purposes of support, then Clever Till shall not have any liability and responsibility relating thereto. The customer shallensure that the contacts are sufficiently trained in the use of the system to enable proper liaison between Clever Till and the customer;
ii) The customer shall not during any period of support services by Clever Till allow any supported item to be interfered with or modified or added to without the prior written agreement of Clever Till;
iii) It is the customer's responsibility to operate supported items in accordance with instructions issued by Clever Till and/or the manufacturer and to retain sufficienttrained staff to operate it in a proper manner;
iv) The customer shall have a fully operational broadband internet connection at each site to enable Clever Till to directly link to any system upon which any software covered by this agreement resides. Clever Till recommends to the customer the use of an uninterruptible power supply (UPS) at each site;
v) The customer shall carry out regular backups to removable media stored separately from the supported items and carry out other normal system housekeeping routines;
6.THIRD PARTY SOFTWARE
In respect of Third Party Software, the intellectual property rights conditions, any indemnity relating thereto and restrictions and/or requirements relating to use and/or copying shall all be as set out in the appropriate direct license agreement. It is a prerequisite of use of Third Party Software that such licenses are complied with and where applicable signed and passed to the relevant licensor directly;
6.2 It is the Customer's responsibility to ensure the correct licenses are in place except that where Clever Till is obliged to supply, and where necessary install, such Third Party Software. The Customer acknowledges that Clever Till shall have no other liability in respect thereof;
6.3 Clever Till cannot warrant that Third Party Software will necessarily meet the functionality, which it purports to, and it is for the Customer to satisfy itself that Third Party Software meets its requirements. Third Party Software to be supported hereunder is as detailed in the Schedule; Clever Till will not provide support for other Third Party Software. Changes, updates and releases thereto shall be covered by the license agreement directly between the Customer and the relevant licensor and reference should be made thereto;
7.SOFTWARE LICENCE CONDITIONS, TERMS & TERMINATION
7.1 The license to use software granted hereunder becomes effective from the Delivery Date subject to the customer paying in full the initial and annual license as part of the Suppor t Fee, annually in advance or subject to Clever Till approval, monthly or quarterly via Standing Order. The Agreement shall automatically continue from year to year without any breaks for the initial minimum term of 5 years, thereafter until or unless term inated in accordance with the provisions of this agreement. Continuance of the license to use Software is dependent upon the Customer continuing to pay the Annual License Fee and upon compliance with the terms and conditions therein set out;
7.2 Subject to sub clause 7.1 and the other provisions of this Agreement, Clever Till hereby grants to the Customer a nonexclusive, non-transferable license to use the Software on the CPU listed in the Schedule for up to the maximum number of users and for the Site(s) or WWW set out in the Schedule. The Customer shall not permit any third party to use or have access to the Software or the Documentation supplied therewith. Use of the Software and Documentation is restricted to use for the Customer's own internal purposes, except that:
- i) The Customer may not reverse, engineer, disassemble, translate or in any way decode the Software;
- ii) The Customer undertakes not to modify the whole or any part of the Software in any way whatsoever nor to permit the whole or any part thereof to be combined with or become incorporated in any other programs without Clever Till prior written consent;
7.3 The Customer may make such copies of the Software as is reasonably necessary for operational security and use. Such copies and the media on which they are stored shall be the property of Clever Till and/or its licensors and the Customer shall ensure that all media is kept safe.
8.TITLE & RISK
Title in any Equipment supplied by Clever Till under this Agreement shall remain with Clever Till until such time as the Customer has paid the Price in full. Until such payment is received by Clever Till the Customer shall hold the Equipment or Website on a fiduciary basis for Clever Till in such a way that such Equipment is identifiable as belonging to Clever Till and if the Customer fails to make any payments due Clever Till as owner shall be entitled to demand return of the Equipment and or Website. If payment is not made and/or the Customer becomes insolvent or a receiver is appointed before paymentis made Clever Till is irrevocably authorized to enter forthwith the Customer's Site(s) for the sole purpose of repossessing the Equipment still owned by Clever Till.
9.PRICING & PAYMENTS
9.1 The Price and any other charges arising under this Agreement shall be payable as set out herein or in the Schedule. Payment shall be made strictly in accordance therewith. The Price does not cover any Annual License Fee for use of Software or applicable Third Party Software, which sum is instead paid for as part of the Support Services;
9.2 Fifty percent (50%) of the Price shall be paid by the Customer on the effective date of the Agreement, and the balance shall be payable on the Delivery Date, inclusive of the cost of Bespoke Software, unless otherwise agreed in writing by Clever Till;
9.3The Customer shall pay to Clever Till the Support Fee and the Charges arising hereunder. Payment of the first year's Support Fee shall be made on or before the Delivery Date or with Clever Till approval via monthly or quarterly direct debit and Support fee applies per license. Thereafter Clever Till shall be entitled to issue invoices or payment schedules up to thirty days prior to the commencement of the next Anniversary Date;
9.4Prompt payments by the Customer is a strict and express term of this contract and conditional to activating the license for the use of the software. If payment is overdue Clever Till reserves the right, in addition to any other rights it may have, to suspend its contractual obligations under this Agreement until such payment is made and charge Interest for overdue payments at the rate of 8% above Bank of England Base Rate. If customer Defaults in Support and License Payments Clever Till shall raise an invoice for the full value of the term remaining and make a demand for Debt owing plus any costs.
9.5 The Customer is responsible for the cost of all travelling time and expenses of Clever Till personnel attending Site(s) based on Clever Till rates prevailing at the time. The mileage rate shall be the average AA rate. Flights, rail fares and overnight accommodation will be recharged net. Such costs will be additional to the Price and Support Fee unless expressly excluded;
9.6 Training days booked but subsequently cancelled by the Customer without a clear fourteen days notice provided in writing to Clever Till will be charged in full. Days are supplied on an "as consumed basis" with Clever Till making no commitment as to what can be achieved in the day, other than that the Clever Till personnel supplied will have the requisite skills;
9.7 Clever Till reserve the right to increase the Support Fee but only with effect from the first day or the next annual period of support. However, Clever Till will not increase the rate beyond that reached by applying 10% or using the Retail Price Index which so ever is the greater on the full product price of support from the Delivery Date (as amended for items added later) to the date in question, except that in the event that an item may become uneconomic to support on such basis or a site becomes the subject of an extraordinary level of support, Clever Till reserves the right at its option either to remove the item or site concerned from the supported list on the Schedule or to agree with the Customer, if possible, a mutually acceptable price;
9.8 If any sum payable under this Agreement is in arrears then without prejudice to any other remedies which may be available and in addition to those remedies, Clever Till reserves the right to charge interest at the rate of 8% above Bank of England Base rate per month until paid; 9.9Notwithstanding that the Customer enters into a lease with a 3rd Party whereby it is intended that title to any part of the items on the Schedule supplied shall pass to such 3rd party, if for any reason the arrangements for financing the purchase of the items in the Schedule shall be frustrated the terms & conditions hereof shall remain in full force and effect as between the Customer and Clever Till.
10.INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY FOR SOFTWARE
10.1 The copyright and all other intellectual property rights of whatever nature in the Software and Documentation and in any modifications or changes thereto made under this Agreement are and shall remain the property of Clever Till and/or its licensors, and any rights in any other work prepared or carried out by Clever Till hereunder shall vest in Clever Till, on creation thereof. The Customer shall notify Clever Till as soon as reasonably possible if it becomes aware of any unauthorised use of the whole or any part thereof by any third party;
10.2 Clever Till warrants that insofar as it is aware Clever Till and/or its licensors are the owner of the copyright and all other intellectual property rights in the Software and Documentation and/or are duly authorised to enter into this Agreement. In respect of Software Clever Till hereby indemnifies the Customer against any claim that the normal use or possession of the Software infringes the intellectual property rights of any third party provided Clever Till
is given immediate and com plete control of any such claim, and that the Customer gives Clever Till such assistance as Clever Till may reasonably require to settle or oppose any such claim provided that Clever Till shall meet the Customer's reasonable costs of so doing. Clever Till reserve the right to replace or change all or any part of the Software in order to avoid infringement of any third party intellectual property rights. Clever Till shall however at all times endeavour to ensure that the Customer is left with fully operational and functionally equivalent Software.
11.1 The Customer may terminate the license to use Software granted under this Agreement either at the end of the Initial Period or at any Anniversary Date once the Initial Period has ended by giving at least 90 days’ notice in writing to Clever Till effective at the end of the Initial Period or at the Anniversary Date once the Initial Period has ended. In the event that the customer gives notice to terminate during the Initial Period Clever Till will be entitled to receive payment of the total amount which they would have received during the whole of the Initial Period including any price increases as detailed in paragraph 9.7 above. Termination of third party license agreements is governed as provided therein;
11.2 In respect of the Software Clever Till may terminate the license to use granted under this Agreement forthwith without notice to the Customer if:
- i) The Customer commits any material breach of any term of the license or this Agreement and, in the case of a breach capable of being remedied fails to do so within twenty one days after receipt of a request in writing from Clever Till to remedy the breach; and/or ii) The Customer fails to pay the Support Fee which includes the Annual License Fee for Software due under this Agreement.
11.3 This Agreement may be terminated with immediate effect by written notice to the Customer if the Customer becomes bankrupt or insolvent or enters into any scheme of administration with its creditors or enters into receivership or liquidation or takes any action for voluntary winding up (other than for the purpose of a solvent reconstruction or amalgamation) or ceases to carry on business;
11.4 Save as provided 11.2 and 11.3 the license to use the Software may not be ter minated by Clever Till, unless it issues an end of life on the software, which cannot be during the Initial Period;
11.5 If the Customer purports to cancel this Agreement in whole or in part otherwise than through the default of Clever Till the Customer shall become immediately liable to compensate Clever Till by way of liquidated damages and shall also pay to Clever Till 50% of the price relating to the whole or part of the system which the Customer has purported to cancel if the Customer purports to do so before acceptance, notwithstanding any other rights that Clever Till may otherwise have against the customer;
11.6 Upon termination of the license to use the Software granted to the Customer under this Agreement, howsoever occasioned, the Customer shall return the Software to Clever Till within 7 days of the termination date and destroy all copies thereof. This provision shall survive any termination whether of the license to use Software or of the Agreement as a whole;
12.DESCRIPTION OF SUPPORT SERVICES
12.1.Unless otherwise expressly agreed by Clever Till, support services will be provided during normal UK business hours of 9.00 a.m. to 5.30 p.m. Monday to Friday, excluding Public Holidays. It is specifically emphasised that unless provided and stated otherw ise in writing, all support shall Clever Till' standard support;
12.2.Clever Till warrants that it shall use all reasonable endeavours to carry out the Support Services described herein in a professional manner and shall at all times use reasonable endeavours to maintain the items supported in good working order and to supply all component spares necessary for supported equipment. The periodic updates provided under support for the Software may include legislative updates the scope of which can vary considerably. Where major legislative changes take place it is expressly provided that Clever Till reserves the right to make an additional charge which shall be spread evenly over all its customers for the Software in order to cover the updates dealing with such legislative changes. Such updates are deemed to be outside of the Support Fee cost. For the avoidance of doubt it is the responsibility of the customer to ensure that there is familiarisation and compliance with any such legislative or other changes;
12.3.Supported software: Clever Till will use all reasonable endeavours to respond to any request by the Customer within the time frames in Clever Till' standard support terms. Error correction is provided on a reasonable effort basis, and Clever Till cannot guarantee to correct any error within any given timescale. The Customer shall provide written notification and appropriate examples supporting any error found for such notification to be effective. If any major are found in software supported hereunder then Clever Till will supply any correction of same by first class post on disc or tape (as appropriate). As part of the support service Clever Till shall provide updates and releases from time to time to the software supported during the term of this Agreement. It is the Customer's responsibility to install corrections, updates and releases to the software and for ensuring that their staffs have the capability of doing so. Clever Till shall have the right to make additional charges for services, which are required due to the Customer failing to install such items correctly. Where Clever Till have to carry out site visits for support, it reserves the right to charge over and above the annual Support Fee. Clever Till reserve the right not to deal with or to make additional charges for, reported errors in such software which:
- i) Are the result of failure of equipment or other software not covered by this Agreement;
- ii) Are faults in mains electrical supplies or operator error;
- iii) Are, or could be reasonably construed in the absolute discretion of Clever Till as a lack of knowledge of the software;
- iv)Are caused by air conditioning, humidity or other environmental conditions;
- v). Are caused by the accident, neglect, misuse or default of the Customer or any third party;
- vi). Are due to acts of God, war, acts of Violence or any similar occurrence;
- vii) Result from any attempt by any person, other than Clever Till, to modify or maintain the software otherwise than in the case of only trained Customer staff carrying out norm al System functions;
- viii) Are caused by cable or connector malfunctions;
12.4. Supported equipment. Support is provided during the hours set out in 12.1 and in accordance with the Clever Till Standard Support Schedule. On receipt of a telephone req uest for support for an item, Clever Till will log the call and endeavour to identify the problem as either an engineering problem or a software problem or a system operating software problem. Clever Till will, if, appropriate to the problem reported, dispatch an engineer to the Site concerned. Clever Till will use all reasonable endeavours to ensure that an Clever Till engineer will respond within 8 hours for a CPU related call; all other equipment will be dealt with on a swap out (exchange) basis on the next day following receipt of defective goods from the customer subject to availability. Where the problem encountered relates to a CPU and if the terms of this Agreement provide that temporary replacement equipment will be provided to the Customer the engi neer will endeavour to load the hard disc of the CPU, if unaffected, onto a loaned CPU and thus leave the Customer with a working system. This is without prejudice to the fact that the endeavour stated herein is not a guarantee, rather a standard to which Clever Till will aim. If, on attendance at Site, the engineer believes the Support Fee does not cover the fault, the customer will be advised, and in such event, any corrective activity, spare parts and the cost of the visit itself, shall be charged. The se rvice provided assumes normal use of the equipment and allows for normal wear and tear. Clever Till reserve the right to make additional charges at its standard rates for the time being in force where its engineers are called out because of faults which:
- i) Are the result of accident, unauthorized transportation, alteration, neglect or misuse;
- ii). Is the result of failure of the Customer to provide and maintain a suitable operating environment as recommended by Clever Till and/or the manufacturer. Clever Till shall not be liable for any item, which fails due to manufacturers design or inherent defect;
- iii) Nor shall Clever Till be liable to perform any work, which is in the opinion of Clever Till impractical to perform owing to nonstandard use or locatio n;
- iv). Clever Till shall provide all necessary tools and test equipment together with all spares, which in the opinion of Clever Till' engineer are required to ensure the operational efficiency of the equipment;
- v). The Customer shall be responsible for all operating materials and for all consumables, including but not limited to print heads, laser cartridges, ribbons, toners, in fuser and developer kits all of which are outside the scope of the Support Fee;
- vi) Clever Till reserves the right to make add itional charges to the Customer to cover all of the cost of repairing equipment which is either out of manufacturer's warranty or more than one year (whichever is the latter);
- vii) Providing new or updated versions of operating system, databases or softwa re utilities, for whatever reason;
12.5 Additional Services. The Support Fee does not include and additional charges shall be made for:
- i). Repair or support in respect of any data corruption and in respect of software support arising from such data corruption;
- ii). All costs for any calls made to fit supplies;
- iii). As a result of the Customer allowing access by a third party to a supported item where Clever Till has agreed to perform corrective activities and not to terminate the Agreement and not to delete the item concerned from the list of items being supported;
- iv). providing new or updated versions of an operating system of an item of Hardware;
- v). Telephone (modem) transfer of programs and/or data will be charged to the Customer at Clever Till prevailing rates. Any Site visits carried out by Clever Till in respect of support outside that covered by the Support Fee are carried out at Clever Till discretion and may be chargeable at Clever Till' prevailing rates for such service together with th e reasonable costs of accommodation, travelling time and travelling expenses all of which shall be over and above the Support Fee covered by this Agreement;
12.6. Period of Support. The Support Services shall commence on the Delivery Date and shall be for the Initial Period and thereafter extend automatically for further one yearly periods unless or until terminated by either party giving at least 90 days written notice effective and prior to the next Anniversary Date; 12.7. The Customer shall not move any supported item either from one Site to another location or within the same or between different buildings without the prior written consent of Clever Till, as such can affect the ability of Clever Till to support it. Clever Till shall have the right to vary the Support Fee or to terminate support in respect of such item or items;
Each party shall be liable for personal injury or death to any person caused by its negligent acts or omissions or those of its employees, servants or agents. Except as provided in respect of personal injury or death caused by negligence, Clever Till liability and/or that of itsemployees, servants or agents, whether in contract, or negligence or otherwise shall;
- i). Until acceptance of the System be limited to that directly arising from and be limited to an aggregate total of £1,000,000 or the value to Clever Till of the Price as at the effective date hereof, whichever is the lesser, and
- ii). After acceptance and during any period of annual Support Services shall be limited to an aggregate total of the value to Clever Till of the Support Fee in the year of this Agreement in which a claim arises, and
- iii). In respect of additional items shall be limited to an aggregate total of £1,000,000 or the value to Clever Till of the price of the supply of the additional items, whichever is the lesser. Save as expressly provided in this Agreement Clever Till shall not be liable for any other loss or damage howsoever caused whether in contract, tort, negligence or otherwise. Notwith standing any other provision of this Agreement in no event shall either party be liable to the other for any incidental, special, indirect or consequential loss of whatever nature, including but not limited to loss of use and/or loss of profits and/or loss or spoiling of data, howsoever caused, whether occurring in contract, tort, negligence or otherwise, save that the Customer shall be responsible for its actions if it endangers Clever Till and/or its licensors rights of ownership in the Software.
The delivery time shall not be the essence of the contract. Whilst Clever Till shall use reasonable commercial endeavours to deliver the goods by the date specified on the Customers order, it shall not be liable for the delay in delivery from any cause whatsoever and howsoever arising. Should expedited deliveries be required, then additional costs if applicable must be borne by the Customer unless otherwise agreed in writing by an authorised employee of the Clever Till
No cancellation or variation of an order by the Customers shall be effective unless made in writing and until accepted in writing by an authorised officer of Clever Till. Clever Till reserves the right to refuse to accept such cancellation or variations or to accept cancellation or variation only subject to such conditions as it considers are warranted according to the circumstances.
16.DEFECTS AND RETURNS OF EQUIPMENT
16.1 If Customer notifies Clever Till within 48 hours of receipt of goods that the goods are damaged in transit, then Clever Till will arrange for the replacement of goods. If it is found that the goods were not damaged or a shortfall, Clever Till will pass the charges to the Customers.
16.2 Sometimes, the goods can be returned directly to the manufacturer. Where Clever Till informs the Customer that this is the case, or the packaging on the goods or the material Customer has in relation to the goods states this, Customer must contact the manufacturer about the defective goods, and customer must not return the goods to Clever Till.
16.3 It is Customers responsibility to comply with any of manufacturer’s terms regarding the return, repair or replacement of defective go ods. Clever Till shall not be liable for any goods that cannot be repaired or replaced by the manufacturer because Customer has not complied with its terms.
16.4 If Customer chooses to return goods back to Clever Till, customer must do so within 3 days of receipt of goods and subject to a restock fee of 20% of the original selling price. The return of goods is further subject to being in its original unused condition. The customer is responsible for the delivery of the goods to Clever Till at Customer expense and only after the Goods have been checked by an engineer of Clever Till will any payment be agreed upon.
17.1 The failure by either party to enforce at any time any provision of this Agreement shall not affect its rights to later require complet e performance by the other party hereto, nor shall any waiver of a breach of a provision be taken or held to affect its rights in the event of any subsequent or additional breach of the same or any other provision;
17.2 The Customer shall neither assign this Agreement nor part with any rights or obligations herein in any way whatsoever whether in whole or in part without the prior written consent of Clever Till. Clever Till shall be entitled to subcontract, sublet or assign the whole or any part of this Agreeme nt but such shall not adversely affect the Customer's rights herein.
17.3 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 items supplied or any part thereof shall be assumed by Clever Till, and except as expressly provided for in this Agreement all such warranties, conditions, undertakings and terms are hereby excluded to the exte nt permitted by law.
17.4 This Agreement constitutes the entire agreement between the parties hereto. No addition to or modification of this Agreement shall be binding on either party unless made in accordance with paragraph 14.5 below;
17.5 This Agreement may on ly be amended by written agreement referenced hereto and signed by the duly authorised representatives of both parties. Any notice of termination, breach or other notice of a legal nature required to be given to either party under this Agreement shall be given by first class delivery post to the appropriate address set out in this Agreement.
17.6 The construction, validity and performance of this Agreement shall be governed by English law and the parties hereby agree to English court’s jurisdiction.
17.7 It is the responsibility of the customer to ensure that they have a Personal Computer with a Windows Operating system of Windows 2000 and above. It is emphasised that the Clever Till is designed to run on such a window based system.