Think Terms and Conditions

Interpretation  

In these Terms and Conditions: –   

“Seller” means Think Software Limited only, a company registered in England & Wales, company number 09600186.
Registered address:

The Oakley
Kidderminster Road 
Droitwich 
Worcestershire
WR9 9AY

“Buyer” means the ultimate company/organisation who accepts a Proposal/Quotation or offer of the Seller for the sale of the Products and/or Services or whose order for the Products and/or Services is accepted by the Seller.

“Terms” means the terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller. In addition to these Terms additional product specific Terms and Conditions from the Seller and/or the end manufacturer of the Product and/or Software and/or Firmware depending upon the items being purchased by the Buyer will also apply.

“Business Day” means any day other than a Saturday, Sunday, or bank holidays and public holidays.

“Delivery Date” means the estimated date range on which the Products and/or Services are to be delivered as stipulated in the Buyer’s order and accepted by the Seller.

“Product” means any physical goods and/or digital software and/or digital firmware (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms.

“Service” means any services which the Seller is to supply in accordance with these Terms. Including, but not limited to; Project Management, Training, Implementation, Go Live Assistance, Technical Support, Report Writing, Software Development and Hardware Development.

“Month” means a calendar month.

“Writing” includes any communications effected by letter, electronic mail or any comparable means.

“Losses” Throughout the whole of this contract, the Seller will not be liable to the Buyer in any way for any and all financial losses and/or material losses or consequential financial losses and/or consequential material losses.

and/or special/indirect losses and/or loss of profits and/or liquidated damages however caused from the supply and/or use and/or failure of the Products and/or Services outlined in this contract whether
foreseeable or not.

“Software” Computer code/programmes that runs on computers.

“Hardware” Physical equipment that is included within the solution.

“Firmware” Computer code/programmes that runs inside hardware.

“Manufacturer” Company who actually manufactures the Product and/or Software and/or Firmware.

“Warranty Period” The period of time Products and/or Software and/or Firmware is under warranty from the date of delivery.

“Site” The Buyer’s premises where the Products are to be delivered and/or installed.

“Call out fee” The Buyer agrees to pay a call out fee when the Seller’s employees visit the Buyer’s premises to perform service and/or maintenance of Products, Software and/or

Firmware. The Call out fee comprises of labour rates per hour based on time of day, category of staff deployed, parts used that are not under warranty, travel time, mileage, reasonable subsistence, and hotel costs. The Buyer agrees to pay these costs within 30 days from the invoice date.

“Super User” Where training has been purchased by the Buyer, the Buyer’s category of employee who will be trained on the Products, Software and/or Firmware provided by the Seller under this agreement and who will then act to ensure the necessary training is passed to all other of the Buyer’s employees who will interact with the Solution.

“Proposal/Quotation” The Seller’s pre-sale documentation that constitutes an offer to supply the Buyer with Products and/or Services.

“Contract” The Proposal/Quotation combined with these Terms and Conditions and any of the linked terms from the Seller depending on what Products and/or Services the Buyer is purchasing from the Seller.

“Equipment” The combined Products that the Buyer is purchasing from the Seller under this Contract.

“Solution” The combined Products, Software, Firmware, Development and Services that the Buyer is purchasing from the Seller under this Contract.

“Cloud Services” Hosting services provided by an authorised third party to Think Software Ltd.

“Development” Software and/or Scripts and/or integrations written specifically on the request of the Buyer by Think Software Ltd based on the written instructions of the Buyer.

Terms and Conditions of Sale

1. These Standard Terms and Conditions together with any of the linked Terms and Conditions and Product Licences from the Seller and/or Product/Software manufacturer depending on what Products and/or Services the Buyer is purchasing from the Seller govern all sales by the Seller of any Product and/or Service and/or Equipment and/or Solution between the Buyer and the Seller.
2. All sales of Products and Services are expressly limited to acceptance of these Terms and Conditions. Any additional or different terms, whether contained in the Buyer’s forms or otherwise presented by the Buyer, are rejected unless expressly agreed to and accepted by the Seller in Writing.
3. No variation to these Terms and Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
4. Each party represents that it has validly entered into this Contract and that it has the power and authority to do so.
5. The Seller’s employees and/or agents are not authorised to make any representations concerning the Products and/or Services unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
6. Sales literature, price lists and other documents issued by the Seller in relation to the Products and/or Services are subject to alteration without notice and do not constitute offers to sell the Products and/or Services which are capable of acceptance.
7. An order placed by the Buyer may not be withdrawn, cancelled, or altered prior to acceptance by the Seller.
8. The Buyer is to provide a minimum of 6 months’ notice to the Seller in Writing with any intention to terminate the use and access of the Product, unless another agreement has been agreed in Writing.
9. In the interests of data security, all access to the Buyer’s data is restricted to that provided by the Seller or through products provided by the Seller.
10. No contract for the sale of the Products and/or Services shall be binding on the Seller unless the Seller has issued a Proposal/Quotation which is expressed to be an offer to sell the Products and/or Services to the Buyer or has accepted an order placed by the Buyer by whichever is the earlier of:-

i) The Seller’s written acceptance

ii) Delivery of the Products and/or Services

iii) The Seller’s invoice

11. The Buyer accepts that all timeframes mentioned by the Seller are estimated timescales that the Seller will endeavour to achieve. The Buyer accepts that these timescales are in no way guaranteed and the Seller will not be liable to the Buyer for any Losses in not meeting these estimated timescales.

12. All Products shall be installed by and at the expense of the Buyer unless otherwise expressly agreed to by the Seller in Writing.

Installation and Service 

1. Unless otherwise specified in Writing by the Seller, Installation and Service times are Monday to Friday 9am to 5pm excluding UK bank holidays and public holidays.

2. The Buyer is solely responsible for installation and use of the Product in compliance of applicable laws. If the Buyer requests the Seller to assist with installation and use of the Product the Seller may, at its option, charge for such services.

3. The Seller may use the services of authorised subcontractors in order to deliver part of the proposal as it sees fit.

4. Should the Seller allow the Buyer to delay the timescales of their project, the Seller will reschedule any outstanding Services to the Buyer and will confirm in writing to the Buyer when any outstanding Services can be provided to the Buyer. The Buyer accepts that by delaying their project the Seller will reschedule their Services to the Buyer when able to provide those Services and this may not correspond to the length of delay imposed by the Buyer.
5. Should the Buyer modify their requirements in any way during implementation of the solution the Seller will provide the Buyer with an additional Proposal/Quotation that outlines any additional cost the Buyer will need to pay the Seller in order to achieve the desired change.

6. Should the Buyer modify their requirements in any way during implementation the estimated timescales shown for the implementation on the Proposal/Quotation timescales will no longer be valid. The Buyer accepts that deviation from the original solution will have an undetermined impact on the project estimated timescales.
7. Unless otherwise stated, the Buyer will provide at no cost to the Seller all required network and dedicated WiFi installations at the correct ratings in the correct locations for the Equipment being provided in the Proposal/Quotation.
8. Unless otherwise stated in Writing, the Buyer accepts that the Seller has provided no costs or designed any solution for any works relating to interfacing the Solution with external hardware or software systems including warehouse control software systems
   and/or stock management systems the Buyer currently uses or plans to use.

9. The Seller will provide any ordered project coordination, data importation, training, reports, layouts, support and any required development work from the Seller’s premises unless otherwise agreed in writing by the Seller.

10. Software will be provided to the Buyer by the Seller at time of training.

11. Any reports and/or layouts and/or KPI dashboards and/or Alerts outlined in any Proposal/Quotation will be provided after the Buyer has attended training as requirements/specifications for such may change during training.

12. Any estimated completion date for additional Development, layouts, reports, Alerts or KPI dashboards detailed on the Proposal/Quotation is in no way guaranteed. The Seller makes no warranties, implied or otherwise, that these dates can be met. The Buyer is made aware of the complex nature of Development and therefore its inability to guarantee these timescales.

13. The Buyer agrees to allow the Seller and their agents access to the Site to implement the Solution as required by the Seller and agree not to hinder or obstruct the implementation process in any way.

14. The Buyer agrees to provide Site welfare facilities (toilets, canteen, electricity, internet access and drinkable water), for the Seller’s employees and their agents throughout implementation.

15. The Buyer agrees to correct any defects or issues in existing installations that would have a negative impact in the Solution being provided by the Seller immediately on Written notification by the Seller and at no cost to the Seller.

16. Any and all charges passed to the Seller from third parties as a result of unplanned delays, incidents or work required caused by the Buyer outside the scope of the Proposal/Quotation will be recharged to the Buyer. This includes but is not limited to, missed delivery charges, failure to provide labour as agreed, failure to provide data as agreed and/or not installing electrics or networking.
    The Seller will invoice the Buyer for these charges and the Buyer agrees to pay the Seller within 30 days from the date of the invoice.

17. The Buyer agrees to provide every assistance in a timely fashion, at their own cost, to the Seller to successfully implement the Solution when requested to do so by the Seller in Writing.

18. The Seller will confirm training dates in Writing. Any cancellation or movement by the Buyer of these dates will be subject to the
    following charges.

a) Dates cancelled or changed 28 or more days prior to the agreed dates – no charge.

b) Dates cancelled or changed between 28 and 14 days prior to the agreed dates – 50% of the training cost.

c) Dates cancelled or changed less than 14 days prior to the agreed dates – 100% of the training cost.

19. The Buyer agrees to receive an invoice for such charges and pay the Seller and pay the invoice within 30 days from invoice date. The Buyer accepts that cancelling or moving training will have a material impact on the estimated solution timescales and indemnifies the Seller from any and all impacts and Losses caused because of the cancellation or movement. The Buyer accepts that the Seller cannot guarantee to move the training by the same amount of time cancelled by the Buyer due to the Seller’s availability.
20. In order for the Solution to function, data importation can only be made from specific data formats and may need the Buyer to perform extra work on the data they provide to ensure that correct/factual information is imported into the Solution for the benefit of the Buyer. The Buyer will ensure that these data formats are met without cost to the Seller and ensure the quality of the data is accurate. Unless otherwise stated in Writing the Seller will perform one data import into the Solution for the Buyer. Additional data imports can be purchased by the Buyer from the Seller. The Buyer indemnifies the Seller from any and all issues and Losses arising from the Buyer providing inaccurate data.

21. Unless agreed in Writing the Seller may provide Super-User level training on the Products, Software and Firmware only as outlined in the Proposal/Quotation. The Buyer is responsible for ensuring all personnel and visitors interacting in any way with the Solution provided by the Seller will be trained appropriately.

Support 

1. For Products: Support is provided to the Buyer from the Seller during the Warranty period of the Products purchased on the Proposal/Quotation. Once the warranty expires additional service and maintenance contracts can be purchased at additional cost to the Buyer.

2. For Software written by the Seller: Support and Upgrades are provided for the period stated in the Proposal/Quotation or 6 months from the date of software delivery if not stated in the Proposal/Quotation. Once Support and Upgrades expires additional Software Support and Upgrades contracts can be purchased at additional cost to the Buyer.

3. For Software written by the Manufacturer: Support is provided for the period stated in the Proposal/Quotation or 6 months from the software delivery if not stated in the Proposal/Quotation. Once Support expires additional Software Support contracts can be purchased at additional cost to the Buyer.

4. Unless otherwise specified in Writing by the Seller support is provided by telephone only and telephone support times are Monday to Friday 9am to 5pm excluding UK bank holidays and public holidays.

5. The Buyer agrees to submit support requests by email, telephoning a Support Telephone Number or submitting an on-line support request.

6. Unless otherwise specified in Writing, Site visits from the Seller to the Buyer’s premises are not included during the Warranty period.

7. Unless otherwise specified in Writing, Site visits required for Support from the Seller to the Buyer’s premises will incur the Call out fee.

8. The average Support Service Level Agreement response times calculated annually are based on what the Seller deems the priority of the nature of the support request from the Buyer and unless agreed otherwise with the Seller in Writing will currently be:

Warranty 

1. The Seller warrants that it will supply/provide the Products and/or Services and/or Solution using commercially reasonable care and skill.
2. The Seller does not warrant that the Products and/or Services will be error-free or perform uninterrupted, that the Seller will correct all errors, or that the Products and/or Services will meet the Buyers requirements or expectations. The Seller is not
   responsible for any issues related to the performance, operation or security of the Products and/or Services that arise from Buyer’s data or third-party applications or services provided by third parties.
3. For Services, the Seller warrants that the Services will be of workmanlike quality and will be performed by trained personnel.
4. For any breach of the Service warranty, the Buyer’s exclusive sole remedy and the Seller’s entire liability shall be the correction of the deficient Service that caused the breach of warranty.

5. For Software or Firmware purchases for upgrades developed by the Seller, revisions or additions, the Seller warrants that for thirty (30) days after proper installation the Software or Firmware will be free from substantial errors and defects.

6. For all new Products, the Seller warrants that for 12 months after delivery (the Warranty Period) the Products will meet their published specifications. The Seller disclaims all other representations and warranties of any kind with respect to the Products, including, without limitation, any warranties or representations as to merchantability, fitness for a particular purpose or infringement. In order for the Product warranty to be valid the Buyer must, within thirty (30) days after receipt of the Product, complete and return to the Seller its Warranty Registration Form.

7. For Software manufactured by the Seller, the Seller warrants that for 12 months after delivery (the Warranty Period) when used as intended the software will perform as it is intended to do so by the Seller. The software warranty does not apply to the Buyer where software defects occurred from:

a. Incorrect specifications or information supplied by the Buyer.
b. The Buyer misusing the Software.
c. By any modification to the software performed by the Buyer or any third-party unless specifically authorised in Writing by the Seller in advance.
d. By the Buyer or third parties altering settings in the Software.
e. The Buyer’s computer hardware and/or infrastructure causing the Software to be slow.

1. For Software not manufactured by the Seller, the Seller warrants that for the Manufacturer’s Warranty period after delivery (the Warranty Period) when used as intended the +

2. software will perform as it is intended to do so by the Manufacturer. The software warranty does not apply to the Buyer where software defects occurred from:

a. Incorrect specifications or information supplied by the Buyer;
b. The Buyer misusing the Software.
c. By any modification to the software performed by the Buyer or any third-party unless specifically authorised in Writing by the Seller in advance.
d. By the Buyer or third parties altering settings in the Software.
e. The Buyer’s computer hardware and/or infrastructure causing the Software to be slow.

3. For Firmware not manufactured by the Seller, the Seller warrants that for the Manufacturer’s Warranty period after delivery (the Warranty Period) when used as intended the firmware will perform as it is intended to do so by the Manufacturer. The software warranty does not apply to the Buyer where software defects occurred from:

a. Incorrect specifications or information supplied by the Buyer.
b. The Buyer misusing the Firmware.
c. By any modification to the software performed by the Buyer or any third-party unless specifically authorised in Writing by the Seller in advance.
d. By the Buyer or third parties altering settings in the Firmware.

4. To the extent that the Product incorporates third party hardware or software, such third-party hardware or software shall be covered only by the hardware or software provider’s end-user license agreement warranty and the Buyer’s remedies are limited solely to those specifically contained therein.
5. For Software or Firmware purchases for upgrades not developed by the Seller, revisions or additions, the Seller warrants only the manufacturer’s warranty after proper installation.
6. Except as otherwise expressly provided herein, the Seller warrants that, to the best of its current knowledge, information, and belief, the Product(s), their sale, possession and intended use do not infringe on any Patent. This warranty extends only to infringement
   claims which pertain to the Products and to methods performed by the Products. This warranty does not extend to any charge of infringement which pertains to an article of Manufacture or which arises by reason of use of the Products in conjunction with other
   machinery not manufactured by the Seller or which arises from use of the Products in the practice of any process involving more than the inherent mode of operation of the Products. The Seller reserves the right to discontinue the delivery of any Product, the
   manufacture, sale or use of which, in its opinion, would infringe upon any Patent now or hereafter issued and under which the Seller is not licensed.
7. The Seller’s Product Warranty shall be void if:

a. The Product is not stored or handled correctly by the Buyer or a third party.
b. A defect resulted from damages occurring after delivery of the Product caused by the Buyer or a third party.
c. A defect was caused by the acts, omissions, or negligence of the Buyer or a third party.
d. The Product was incorrectly installed, incorrectly handled, misused, altered or was not maintained properly by the Buyer or a third party.
e. The Product is used outside its environmental conditions.
f. The Product is not used for its true intended purpose. Should there be any debate over the true purpose of a product, the Seller’s decision is final.
g. The Product is used or exported outside of the country in which it was created without written consent from the Seller.

8. Replacement parts provided, and Products repaired, under warranty shall be warranted for the greater of either:

a. The warranty provided by the manufacturer of the replacement part.
b. or The remainder of the original Warranty Period for the Product.

9. To the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions including for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.

Indemnification 

1. The Buyer shall defend, indemnify and hold the Seller and its employees and agents harmless, from and against all sums, claims, costs, duties, liabilities, Losses, obligations, suits, actions, damages, penalties, awards, fines, interest and other expenses (including investigation expenses and legal fees) that the Seller may incur or be obligated to pay as a result of:

a. The Buyer’s negligence in the use, ownership, maintenance, transfer, export, transportation or disposal of the Product
b. Any infringement or alleged infringement of the industrial and intellectual property rights of others arising from the Buyer’s plans, specifications (including the Buyer’s trademarks and brand names)
c. The Buyer’s violation or alleged violation of any national laws or regulation, including without limitation, the laws and regulations governing product safety, general safety, fire safety, labelling, packaging and labour practices.
d. The Buyer’s breach of these Terms.

2. It is the Buyer’s responsibility to verify the suitability of the Products and/or Services prior to purchase. The Seller is not liable for any such lack of verification or assumptions by the Buyer.
3. The Buyer agrees to indemnify the Seller from any damage caused by the Buyers employees or agents to delivered goods from the point of delivery.

4. All Development outlined on the Proposal/Quotation is based on the level of details provided by the Buyer to the Supplier in writing prior to the Proposal/Quotation being compiled. If the Buyer’s requirements subsequently differ from those requirements submitted to the Seller the Buyer acknowledges that the Seller will be required to re-quote and re-schedule the Development in line with the new requirements. The Buyer also acknowledges that altering their Development requirements in any way may result in the estimated completion date being delayed and the Buyer indemnifies the Seller from any and all associated Losses due to the Buyer changing their Development requirements.

5. The Buyer accepts that as in any system solution Equipment will break down. It is the Buyer’s responsibility to ensure that procedures and spare equipment are in place to minimise disruption to their own business caused by any Equipment and Solution breakdowns. The Buyer indemnifies the Seller from any and all associated Losses however incurred because of these breakdowns. Under no circumstances will the Seller be liable for any Losses incurred.

6. The Buyer understands that they and the information they provide are an integral part to the final solution being provided by the Seller. The Seller accepts no liability for any and all failings of the Buyer to act or provide the correct information at the required times and the implications and/or Losses incurred of such failings.

7. The Buyer accepts that no guarantees can be made as to the speed of any Product, Software or Firmware mentioned in the Proposal/Quotation. It is the Buyer’s responsibility to ensure the hardware/operating systems/anti-virus software/email software and other pre-requisites that the solution mentioned in the Proposal/Quotation will meet the required specifications for that solution. The Seller accepts no liability for any and all implications and/or Losses incurred by the Buyer in their failure to ensure these pre-requisites meet specifications.

1. The Buyer accepts that no guarantees can be made as to the speed of the solution mentioned in the Proposal/Quotation. It is the Buyer’s responsibility to ensure the solution meets their requirements prior to purchase.
2. Any typographical, clerical or other accidental errors or omissions in any sales literature, Proposal/Quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

 Solution Performance 

1. It is the Buyer’s responsibility to verify the suitability of the Products and/or Services prior to purchase. The Seller is not liable for any such lack of verification or assumptions by the Buyer.

2. The Seller only warrants that the Solution, where used consistently and properly by the Buyer as instructed by the Seller, will perform broadly as indicated in the Proposal/Quotation for the Solution.

3. The Seller offers no guarantees of performance where the Buyer has supplied values, figures, or calculations to which the Seller has based its estimated Solution

4. It is the Buyers responsibility to check any perceived performance or written performance prior to ordering the solution as described from the Seller.

5. The Buyer accepts that the Seller is not responsible for the performance of third-party suppliers, their Products and/or Services and the impacts these have on the Solution.

6. The Buyer accepts that the Seller is not responsible for the performance of the Buyer’s existing infrastructure Products and/or Services and the impacts these have on the Solution.
7. The Buyer accepts that the Seller is not responsible for the performance of the Buyer’s employees and their agents and the impacts these have on the Solution.

8. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller specification, which do not materially affect their quality or performance.

Expedited Payment / Seller’s Right to Cancel  

1. If the Buyer fails to make any payments on the due dates then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-

a. Cancel the order or suspend any further work performed for the Buyer;
b. Appropriate any payment made by the Buyer to such of the Products and Services (or the Products and Services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
c. Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of six per cent per annum above National Westminster Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

2. If the financial condition of the Buyer at any time does not, in the judgment of the Seller, justify continued performance of any instruction/contract, the Seller:

a. may require full or partial payment in advance; or
b. shall be entitled to terminate the instruction/contract and receive payment for all costs incurred to the point of termination.

3. The Seller may, by written notice to the Buyer, and without any liability to the Seller whatsoever, cancel the Buyer’s instruction/contract if the Buyer:

a. fails to perform any of the terms and conditions contained herein or in the purchase order, and the Buyer does not cure such failure to the Seller’s satisfaction within a period of ten (10) days after receipt of notice from the Seller in Writing; or
b. becomes insolvent, makes an assignment in favour of creditors, or becomes subject to any bankruptcy, dissolution or similar proceeding; or
c. amalgamates with, or all or a substantial part of its assets are sold to, another company, or there is a change of control of the Buyer.
4. As a non-exclusive alternative to cancellation, the Seller may, by written notice to the Buyer, and without any liability to the Seller whatsoever, suspend any of its obligations under an instruction/contract for any reason referenced in subsections 3(a) through (c) above. 5. The Seller’s remedies hereunder are not exclusive, and the Seller shall be entitled to avail itself of any and all other remedies available to it at law or in equity.

Limitation of Liability 

1. The Buyer accepts that the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the money paid to the Seller by the Buyer under this Contract at the time liability was incurred or £1,000,000 whichever is the lower.
2. The Seller shall not be liable to the Buyer for any and all Losses, pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
3. In no event, and under no circumstance, shall either party be liable to the other for any punitive, incidental, special, exemplary, consequential or similar type damages, including, but not limited to, any direct and indirect lost profits, lost revenues or lost opportunities regardless of whether those damages were foreseeable.

Force Majeure 

1. The Seller is not liable for Losses or responsible for delay or failure to perform any of the Seller‘s obligations under any purchase order or to make delivery of any Product or Service caused by:

a. Any cause beyond its reasonable control, including, but not limited to labour disputes, industry disturbance, fires, severe weather conditions, earthquakes, floods, natural disaster, declared or undeclared war, acts of terrorism, epidemics, pandemics, computer malfunctions, civil unrest, military authority, insurrection, embargoes, riots, lack of supplies, delay in transportation, governmental issues, computer hacking, computer malware, computer ransomware, related issues or delays, regulatory or legal action, loss of internet, governmental acts, act of God
b. By acts or omissions of the Buyer, including, but not limited to, Buyer’s failure to promptly comply with the terms of payment (collectively “Force Majeure Event”). The date of delivery shall be extended for a period equal to the time lost by reason of any Force Majeure Event.

2. Without limiting the generality of section 1 above, the parties confirm that they are aware of the Coronavirus epidemic/pandemic. While the parties acknowledge that such epidemic or pandemic may have negative effects on the timely performance of the Seller’s contractual obligations and/or result in increased costs for the Seller, at the time of entering into the applicable contract governed by these Terms, the details and severity of any such effects remain unknown and/or unquantifiable. In case the Coronavirus epidemic or pandemic, directly or indirectly, results in the Seller’s delay, or failure to perform, and/or increased costs of the Seller’s contractual performance, the Seller will not be liable or responsible for any such delay or failure to perform, and the parties shall agree in good faith upon an equitable adjustment of agreed delivery dates and applicable performance schedules, and/or an equitable adjustment of the purchase price, or otherwise agree in good faith regarding a mutually acceptable resolution.

Governing Law 

1. These Terms and the sale of Products, Software, Firmware or Services between the Seller and Buyer shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.

Dispute Resolution Procedure

1. Formal disputes regarding this contract should be emailed to enquiries@tkinv.com whereupon the dispute will be acknowledged within 2 business days and the formal Dispute Resolution Procedure within the Seller
2. The Buyer agrees that should they raise disputes they do so in Writing to the Company address stated.

Confidentiality, Publications and Endorsements  

The Buyer undertakes to the Seller that: –

1. The Buyer will regard as confidential the Contract and all information obtained by the Buyer relating to the business and/or Products and/or Services of the Seller and will not use or disclose to any third party such information without the Seller’s prior written consent provided that this undertaking shall not apply to information which is in the public domain and authorised by the Seller.
2. The Buyer will not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller in any manner whatsoever unless such use shall have been previously authorised and approved in Writing by the Seller and (where appropriate) its Licensor.
3. The Buyer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.
4. The Seller may publicise the Buyer as a client of the Seller in relevant commercial marketing.
5. This Condition shall survive the termination of the Contract.

Cloud Services 

1. If the Buyer uses the Cloud Service provided by the Seller, unless specifically included in the Proposal/Quotation, the Buyer must not use the Cloud Service to store or process any sensitive or special categories of data that imposes specific data security or data protection obligations on the Seller in addition to or different from those specified or referenced in the Proposal/Quotation for the Services.
2. If the Buyer uses the Cloud Service provided by the Seller, the Seller is the GDPR Data Processor for information held by the Buyer for the Buyer’s own business purposes, that the Buyer shares with the Seller to complete a business task. It is the responsibility of the Buyer to ensure they comply with all GDPR regulations.
3. As between the Seller and Buyer, all title and intellectual property rights in and to the Buyer Data is owned exclusively by the Buyer. The Buyer acknowledges and agrees that in connection with the provision of the Products and/or Services, the Seller may store and maintain Buyer Data for a period of time consistent with the Seller’s standard business processes for the Product and/or Services. Following expiration or termination of the Contract or a Buyer account, if applicable, the Seller may deactivate the applicable Buyer account(s) and delete any data therein. The Buyer grants the Seller the right to host, use, process, display and transmit Buyer Data to provide the Products and/or Services pursuant to and in accordance with these Terms and the applicable Proposal/Quotation. The Buyer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Buyer Data, and for obtaining all rights related to Buyer Data required by the Seller to deliver the Products and/or Services.
4. The Buyer shall authorise access to and assign unique passwords and usernames to its Users. The Buyer will be responsible for the confidentiality and use of User’s passwords and usernames. The Buyer will also be responsible for all Electronic Communications,
   including those containing business information, account registration, account holder information, financial information, Buyer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Cloud Service or under Buyer’s account. The Seller will act as though any Electronic Communications it receives under Buyer’s passwords, username, and/or account number will have been sent by the Buyer. The Buyer shall use commercially reasonable efforts to prevent unauthorised access to or use of the Cloud Service and shall promptly notify the Seller of any unauthorized access or use of the Cloud Service and any loss or theft or unauthorised use of any User’s password or name and/or Cloud Service account numbers.
5. The Buyer understands that the technical processing and transmission of the Buyer’s Electronic Communications is fundamentally necessary to use of the Cloud Service. The Buyer is responsible for securing DSL, cable or another high-speed Internet connection and up to date “browser” software in order to utilise the Cloud Service. The Buyer expressly consents to the Seller’s interception and storage of Electronic Communications and/or Buyer Data as needed to provide the Product and/or Services hereunder, and the Buyer acknowledges and understands that Buyer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by the Seller. The Buyer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. The Seller is not responsible for any Electronic Communications and/or Buyer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by the Seller, including, but not limited to, the Internet and the Buyer’s local network.
6. The Buyer is responsible for ensuring that its use of the Cloud Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall not store credit card data in the Cloud Service.
7. The Seller will act as a data processor and will act on the Buyer’s instructions concerning the treatment of the Buyer’s Personal Data. The Buyer agrees to provide any notices and obtain any consents related to the Buyer’s use of the Products and/or Services and the Seller’s provision of the Products and/or Services, including those related to the collection, use, processing, transfer and disclosure of Personal Data.

General Restrictions 

1. The Buyer may not, and may not cause or permit others to:

a. Use the Products and/or Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations;
b. Perform or disclose any benchmarking, availability or performance testing of the Products and/or Services; or
c. Perform or disclose any performance or vulnerability testing of the Products and/or
Services without the Seller’s prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing. In addition to other rights that the Seller has in these terms and the Proposal/Quotation, the Seller has the right to take remedial action if these terms are violated, and such remedial action may include removing or disabling access to material that violates the policy.

2. The Buyer may not, and may not cause or permit others to:

a. Modify, make derivative works of, disassemble, decompile, reverse engineer (unless required to be permitted by law for interoperability), reproduce, republish, download, or copy any part of the Products and/or Services (including data structures or similar materials produced by Software);
b. Access or use the Products and/or Services to build or support, directly or indirectly, products or services competitive to the Seller; or
c. License, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Products and/or Services to any third party except as permitted by these terms and the Proposal/Quotation.

3. The Buyer shall provide accurate, current and complete information on the Buyer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.

4. Any notice required under these Terms shall be provided to the other party in writing. If the Buyer has a legal dispute with the Seller or if the Buyer wishes to provide a notice, or if the Buyer becomes subject to insolvency or other similar legal proceedings, the Buyer will promptly send written notice to the Seller.

Miscellaneous 

1. If any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and remain in full force and effect.
2. The waiver by the Seller of any breach by the Buyer of any provision of any of these Terms may not be construed to be either a waiver of the provision itself as to subsequent application or enforcement or any other provision of any of these Terms.
3. Nothing that in any way purports to modify any of these Terms is binding upon the Seller unless made in Writing and signed by an authorised officer of the Seller.
4. In case of a conflict between these Terms and any terms supplied by the Buyer, these Terms shall prevail unless the Seller has expressly agreed to the conflicting term in Writing. In case of a conflict between a purchase order from the Buyer and the Seller‘s acceptance these Terms shall prevail.

5. The Buyer may not, directly or indirectly through one or more other persons or entities (whether as a principal, owner, shareholder, partner, member, joint venture, officer, director, manager, consultant, employee, agent, lender or otherwise), use the Products to engage in any activity that is substantially similar to or competitive with any part of the Seller’s or its affiliates’ business, including, but not limited to, designing, manufacturing or developing, selling, or in any way providing ERP Software, Retail Software, Warehouse Management Software and/or stock control/stock management software.
6. The Buyer shall not, for the duration of this agreement and up to 12 months after completion, directly or indirectly induce or attempt to induce, or employ in any way, any employees, agents or staff of the Seller, including those who have been engaged in the provision, receipt, review or management of the Products and Services or otherwise in connection with this agreement to leave the employment of the Seller. Should an employee from the Seller be employed by the Buyer within this period the Buyer agrees to provide 12 months of the employee’s gross salary (as previously paid to the employee by the Seller) to the Seller as compensation. This will be invoiced to the Buyer and the Buyer agrees to pay this within 30 days of invoice date.
7. The parties confirm that it is their wish that these Terms, as well as any other documents relating to these Terms, including notices and authorisations, have been and shall be drawn up in the English language only.
8. A person/company who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
9. Should the Proposal/Quotation outline utilise hosted solutions the Buyer accept that these hosted solutions are covered by additional Terms.