General

1. Definitions

In these Terms and Conditions the following words shall have the following meanings:-

“Acceptance Tests” shall mean tests to demonstrate that the System is capable of achieving the functions as specified by CTi
“Contract Price” shall mean the sum set out in the Order as the contract price and shall include maintenance charges and Software Support charges
“Extra Rate” shall mean the hourly rate charged by CTi
“Installation” shall mean the fixing in position of the various items of the System their interconnection with the Plant and their connection to the power supply in accordance with the Order
“Network” shall mean the data Network (if any) specified in the Order
"PTT" Shall mean such Public Telephone Telecommunications Supplier as may be specified in the Order or as otherwise agreed in writing by the parties
“On-Site Loan Equipment” shall mean the On-Site Loan Equipment (if any) specified in the Order
“Quotation/Order” shall mean the order form attached
“Order” shall mean the Quotation/Order
“Plant” shall mean all equipment to be provided by the Customer at the Site and used in association with the System
"Remote Support Services" shall mean the telephonic hardware and software support (if any) to be supplied by CTi in accordance with the Order and Schedule 1 of this Contract
“Site” shall mean the place of installation of the System set out in the Order
“Software” shall mean programs and related materials included or incorporated in the System and any updates and enhancements thereof

2. Extent of Order

1. The Order includes only the System and Remote Support Services (if any) specified therein.
2. CTi reserves the right to make changes to the specification of the System at any time and to supply equipment which differs from that set out in the Order provided that such changes do not affect the Contract Price or the performance of the System.
3. Unless otherwise specified in the Order the Contract Price includes delivery to the Site.

3. Delivery

1. CTi shall use all reasonable endeavours to deliver the Remote Support Services (if any) as specified in the Order. If no delivery date is specified delivery shall take place within a reasonable time after formation of the Contract.
2. Notwithstanding the above clause 3.1, above the date or dates of delivery contained in the Order shall not (unless the Company expressly agrees in writing) be of the essence of the Contract.

4. Supply of Information/Assistance to CTi

1. The Customer will promptly provide CTi with all necessary information that CTi may reasonably require from time to time to permit CTi to proceed uninterruptedly with the implementation of programs which may be needed to customise the System to meet the Customer’s requirements prior to Installation.
2. The Customer shall provide information to allow the System to communicate with the Plant for the purpose of transferring information to the Network.
3. If Installation is delayed by reason of delay in provision by the Customer or PTT of the necessary information or changes in such information or assistance the Customer shall pay for any additional costs that CTi shall have reasonably and properly incurred at the Extra Rate.

5. Site Facilities

1. To enable CTi’s obligations under the Contract to be expeditiously and properly carried out the Customer will provide the following facilities free of chargeand when required:-
   1. satisfactory environmental conditions for the System
   2. suitable security and protection for the System from time of delivery
   3. permanent and suitable electrical supplies for the System
   4. suitable access to the Plant at reasonable times and for reasonable periods
   5. competent operators and attendants for the Plant
   6. all other necessary facilities including adequate assistance from the Customer’s staff;
2. The Customer shall ensure that the Plant is correctly installed and is sufficient and suitable for its purpose and that any minor adjustments that CTi may require to be made to the Plant are carried out expeditiously

6. Performance

CTi shall not be responsible for any failure of the System if the System complies with the Customer’s performance requirements or comprises equipment stipulated by the Customer save in so far as the Customer’s requirements have been specifically approved in writing by CTi or where there has been negligence or default on the part of CTi.

7. Tests

1. The System will be subjected to the Standard Works Tests.
2. Acceptance Tests shall be performed by the Customer in accordance with procedures specified by the CTi and commenced at the time when CTi has given notice that the System is ready for Acceptance Testing. The Customer will ensure that the Acceptance Tests are performed on the agreed date and shall arrange:-
   1. All Site Facilities as specified in Section 5 have been provided and the Customer has nominated a person who will be available when required to carry out such tests
   2. the Customer or other contractors are responsible for such failure then CTi’s charges at the Extra Rate incurred for the purpose of repeating the Acceptance Tests shall be paid by the Customer
   3. CTi is responsible then CTi’s expenses incurred for the purpose of repeating the Acceptance Tests will be for the account of CTi.
3. Minor defects not affecting functionality of the System in any way shall not preclude acceptance of the System by the Customer.
4. Where Acceptance Tests (and repeat Acceptance Tests) have not been completed within 10 days of the delivery of the System, due to circumstances entirely within the control of the Customer, then the entire Contract Price shall become immediately due and payable

8. System Documentation

Manufacturer's documentation is available electronically at any time. Site specific documentation is only supplied when detailed in the Order.

9. Extra Work

In the event of CTi being unable to complete Installation or Acceptance Tests or having to carry out extra work due to a lack of instructions or to delays mistakes or work for which CTi is not responsible or to failure of the Customer to comply with Clauses 4 or 5, a sum in respect of such extra work at the Extra Rate shall be payable by the Customer, provided that such extra work has been reasonably and properly incurred and charged.

10. Time for Completion

Any period quoted by CTi for completion of a satisfactory Acceptance Test (including supply of programs) are to date from Cti’s Acceptance of the Order and receipt of all necessary information and documentation to enable CTi to put the work in hand. The time for such completion shall be extended by a reasonable period if delay in such completion is caused by reason of force majeure namely acts of God, outbreak of hostilities, riot, civil disturbance, acts of terrorism, the act of any government or authority (including refusal or revocation of any licence or consent), fire explosion, flood, or bad weather, power failure, failure of telecommunications lines, failure or breakdown of plant, machinery or vehicles, default of suppliers or sub-contractors, theft, malicious damage, strike, lock out or industrial action of any kind.

11. Passing of Risk and Title

1. The risk in the System shall pass to the Customer upon delivery in accordance with this Contract.
2. Notwithstanding the earlier passing of risk in accordance with Clause 11.1 above, title in the goods shall remain with CTi until payment in full of the Contract Price (and any delivery charges) and any extra costs for extra work has been received by it in accordance with the terms of this Contract together with any other monies due from the Customer to CTi on any account have been paid.
3. Until title passes the Customer shall hold the System only as bailee for CTi
4. CTi shall be entitled at any time before title passes to inspect the System, to repossess and use, sell or otherwise deal with the System and so terminate without any liability any rights which the Customer may have in the System under this Contract and for that purpose may enter upon the Site by its servants or agents.
5. 11.5. CTi shall be entitled to sue for the price of the System notwithstanding that title to it has not passed to the Customer, provided CTi has not recovered possession. CTi may sue for loss of profit if possession has been recovered.
6. Until the date CTi receives in full of all monies due to CTi as cleared funds the Customer shall not be entitled to sell transfer lease charge assign by way of security or otherwise deal in or encumber the System and the Customer shall stand possessed of the System as bailee only.
7. If either:-
   1. the Customer fails to effect payment in full or of all sums due hereunder by 14 days from Invoice Date or;
   2. prior to 14 days from Invoice Date the Customer convenes a meeting of its creditors or a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) the Customers creditors or if the Customer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Customer or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction)
   then CTi its Servants Agents or sub-contractors shall (without prejudice to any other legal remedies it may have) at any time thereafter be entitled to enter upon the Site (without notice to the Customer) and remove the System
8. With effect from the date of delivery up to and including the date CTi receives in full of all monies due to CTi as cleared funds the Customer shall insure the System for its full replacement value against all usual risks.

12. Software License

All Software licenses as supplied by CTi are as defined by their respective Manufacturers

13. Copyright and Confidentiality

1. The Copyright in all specifications designs information drawings manuals and technical descriptions (whether of a commercial or technical nature) provided by CTi with or in connection with the Order vests in CTi and may not be copied, photocopied, reproduced in any form, sold, hired or loaned.
2. The Customer shall keep the same confidential and shall not without CTi’s consent in writing disclose the same to any third party but the Customer shall use the same only for the purpose of assessing the Order, and operating the System. The Customer shall use its best endeavours to ensure that its employees are bound by the same obligations and that such obligations endure beyond termination of their employment with the Customer.
3. CTi undertakes to keep confidential and not to disclose without the Customer’s prior consent in writing to any third party any trade or business secrets or confidential information supplied to CTi relating to the Customer’s Plant or processes except as may be necessary for the proper performance of the Contract.
4. Sub-clauses 13.2 and 13.3 are each subject to the proviso that nothing therein contained shall apply to prevent either party as the case may be from disclosing information:-
   1. in its possession (with full right to disclose) prior to receiving it from the other or
   2. which is or later becomes public knowledge other than by a breach of this clause or
   3. which it may independently receive from a third party (with full right to disclose); or
   4. which may be required to be disclosed by law or by any court or regulatory agency or authority

14. Intellectual Property Imdenity

1. CTi will indemnify and defend at its own expense the Customer from and against any and all claims for infringements of patents, trademarks, industrial designs, copyrights, (published at the time of the Order) or other proprietary rights affecting the System PROVIDED THAT:-
   1. this indemnity shall not apply to any infringement which is due to CTi having followed a design or instruction furnished or given by the Customer or to use of the System in a manner or for a purpose in a foreign country not specified or disclosed to CTi or to any infringement which is due to the System being used in association or combination with the Plant or any other equipment not supplied by CTi.
   2. the Customer shall not have done or permitted or suffered to be done anything which may have been or become an infringement of any rights in any patent trademark or other right as herein before provided; and
   3. the Customer shall have exercised a reasonable standard of care in protecting the same, failing which the Customer shall indemnify CTi against all actions, proceedings, costs, claim and expenses incurred in respect thereof;
2. The Customer undertakes to notify CTi immediately in writing by recorded mail of any claim being made or action threatened or brought against the Customer and on the Customer permitting CTi at its own expense to conduct any litigation that may ensue and all negotiations for settlement of the claim.
3. The Customer warrants that any design or instructions furnished or given by the Customer shall not be such as will cause CTi to infringe any patents, trademarks, industrial designs, copyrights or other proprietary rights affecting the System.

15. Terms of Payment

1. Unless otherwise agreed as specified in the Order, payments shall be made by the Customer as follows:-
   1. 100% of the Contract Price within 14 days of System acceptance which shall be evidenced by the signature of the Customer’s representative on a System acceptance form;
   2. extra work or any other agreed charges shall be paid for within 14 days of submission of the invoice
2. All prices quoted are exclusive of VAT which is chargeable at the standard rate applicable at the tax point;
3. If CTi is prevented due to causes within the Customer’s control or that of other contractors of the Customer’s from delivering all or any part of the System when ready or from proceeding with the Installation of such System as they have already delivered they shall be entitled to arrange storage either at their own works or elsewhere on the Customers behalf. All charges for packing and storage, for insurance, for demurrage, for additional carriage and for re-testing and necessary refurbishing shall be payable by the Customer 15.4. Payments under 15.1 shall not be withheld on account of minor defects or omissions in the System which do not materially affect its use.
4. Payments not made on the due date will incur interest at the rate of 8% per annum above the base rate of The Bank of England and statutory late payment compensation.
5. If the cost to CTi of performing its obligations under the Order shall be increased by reason of the making or amendment of the Contract of any law or of any order, regulation or bye-law having the force of law that shall affect the performance of the Contract the amount of such increase shall be added to the Contract Price.
6. If the cost to CTi of performing its obligations under the Order shall be increased by any rise in labour costs or in the costs of materials or transport above such rates and costs ruling at the date of the Contract the amount of such increase shall be added to the Contract Price provided that no account shall be taken of any amount by which any cost incurred by CTi has been increased by CTi’s default or negligence. For the purpose of this clause “the cost of materials” shall be construed as including any duty or tax by whomsoever payable which is payable under or by virtue of any Act of Parliament on the import, purchase, sale, appropriation, processing of such materials.
7. In addition the payment provisions contained at clause 4 of Schedule 1 shall apply to the Remote Support Service Charges.

16. Defects

1. While all due care and skill has been exercised in the design, development, manufacture and installation of the System CTi does not warrant that the System is free from errors or that the operation of the System will be uninterrupted or error free.
2. CTi will make good by repair or at CTi’s option by the supply of a replacement defects which under proper use, care and maintenance appear in the System within a period of 3 calendar months after the System has passed the Acceptance Tests.
3. If during the period stated in sub-clause 16.2 an apparent defect in the System occurs and the Customer is unable to identify the cause of the apparent defect using proper skill and following CTi,s fault finding procedures CTi will at the Customer’s request locate and rectify the apparent defect for the Customer. Such work will be provided free of charge if a defect was due to CTi’s faulty design materials or workmanship.
4. CTi’s liability in respect of any fault or defect in the System or any part thereof arising from design materials or workmanship shall be limited in all cases to the reasonable costs of replacing or repairing such a defective System or any part thereof and shall not in any event exceed that part of the Contract Price set out against such System in the Order.
5. CTi shall not be obliged to correct errors pursuant to this Clause which result directly or indirectly from:-
   1. the modification, alteration, repair or substitution by the Customer of any of the System or the transfer of the System to a different operational environment (whether by alterations of equipment or inter-acting software or otherwise);
   2. incompatibility of the System with the Customer’s data or conversion by the Customer of its pre-existing data in order for it to conform to the requirements of the System;

17. Limitation

1. Subject to the provisions of Clauses 14 and 16 above the following provisions set out CTi’s entire liability (including any liability for acts and omissions of its employees agents and sub-contractors) to the Customer in respect of:-
   1. any breach of its contractual obligations arising under this Contract; and
   2. any representations, statements or tortuous acts or omissions including negligence arising under or in connection with this Contract.
2. Any act or omission on the part of CTi or its employees, agents or sub-contractors falling within Clause 17.1 above shall for the purposes of this Clause be known as an “Event of Default”
3. CTi’s liability to the Customer for:-
   1. death or personal injury resulting from its own or that of its employees agents or sub-contractors negligence; and
   2. all damage suffered by the Customer as a result of the implied statutory undertaking as to title quiet possession and freedom from encumbrances not be limited.
4. Subject to the provisions of Clause 17.5.1 CTi shall accept liability to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of the Company or its employees, agents and sub-contractors.
5. Subject to the provisions of Clause 17.3 and to the following provisions of this Clause 17 CTi’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to:-
   1. �2 million in the case of an Event of Default falling within Clause 17.4 above; and
   2. the Contract Price in the case of any Event of Default relating to the System; and
   3. the charges for the Remote Support Services in the case of an Event of Default relating to the Remote Support Services
6. Notwithstanding the foregoing provisions of this Clause CTi shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was originally foreseeable or CTi had been advised of the possibility of the Customer incurring the same.
7. If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Contract.

18. Termination

1. CTi may terminate this Contract forthwith if the Customer commits any material breach of any term of this Contract which (in the case of a breach capable of being remedied) shall not have been remedied within 7 days of a written request from CTi to the Customer to remedy the same.
2. In the event of the Customer becoming bankrupt or making a composition or arrangement with its creditors or having a winding-up order made or (except for the purposes of amalgamation or reconstruction) a resolution for voluntary winding-up passed or having a provisional liquidator receiver or manager of its business or undertaking duly appointed or having possession taken by or on behalf of the holders of any debenture secured by floating charge or any property comprised in or subject to the floating charge CTi may immediately terminate this Contract.
3. Upon termination, the Customer shall pay to CTi all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the System, this Contract or otherwise.
4. Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Licence or in law.
5. If the Customer shall fail to make punctual payments or if either party shall be in breach of its obligations under Schedules 1 and 2 of this Agreement, the party hereto not in breach may forthwith by written notice delivered by recorded mail terminate the Remote Support Services without prejudice to any pre-existing rights.
6. 18.6. The provisions of clauses 12 and 13 shall survive the termination of this Agreement.

19. Legal Contruction

1. Unless otherwise agreed in writing the Order shall in all respects be construed and operate as an English contract and in conformity with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
2. Clause headings are for information only and shall not affect the construction or interpretation hereof

Remote

Definitions

In this Schedule:-
“Remote Support Commencement Date” shall mean the date of completion of a satisfactory Acceptance Test
All other words or expressions shall have the meanings as set out in the General Terms and Conditions.

1. Hardware

1. service provided
   1. Between the hours of 0900 and 1730 Monday to Friday (excluding statutory holidays and CTi’s Christmas / New Year holiday period) CTi will provide Remote Support Services covering remedial maintenance (including replacement of defective parts) at the Site arising from malfunction of the System.
   2. CTi may at its option instead of repair provide a substitute unit for any of those constituting the System. Defective parts permanently removed by CTi will become the property of CTi and the replacements will become the property of the Customer and shall become part of the System.
   3. CTi shall use its reasonable endeavours to remedy any stoppage or breakdown or failure as promptly as it is able and likewise shall make all reasonable endeavours to keep the System in good working order.
   4. Remote Support charges cover all labour and parts required to remedy malfunction arising from normal use and fair wear and tear of the System. CTi reserves the right to charge for replacement parts and to levy charges at the Extra Rate for work carried out to cover abnormal use of the System repairs due to causes other than fair wear and tear and service calls occasioned by other than System malfunction including:-
      1. operator error or incompetence;
      2. power or environmental fault;
      3. program error in associated Plant;
      4. program changes in the associated Plant which result in System malfunction;
      5. electrical work external to the System or the maintenance of accessory attachments or other devices not furnished by CTi;
      6. service necessitated by supply items or software not furnished by CTi;
      7. assistance with relocation of the System;
      8. service resulting from accident neglect alterations improper use of misuse of the System or necessitated by repairs attempted by the Customer or its agents.
2. Customer Obligations
   1. The Customer will:-
      1. ensure that environmental and power supply conditions suitable for the equipment are maintained in accordance with CTi’s recommendations;
      2. allow CTi access to the System for remote support purposes and co-operate with CTi Staff in the diagnosis of equipment malfunction;
      3. keep and operate the equipment in a proper and prudent manner ensuring that only competent and trained employees are allowed to operate it;
      4. not move the equipment nor make any addition, modification or adjustment to it without prior written consent of CTi which consent shall not be unreasonably withheld nor allow persons other than CTi’s staff to adjust, repair or maintain it;
      5. make freely available to CTi all documentation and software relating to the Plant necessary for the efficient maintenance of the System.
      6. ensure the On-site Loan Equipment is installed on the day that it arrives
      7. ensure once the faulty equipment is disconnected from the rest of the system it is sent for next working day delivery to the repair centre.
      8. ensure the repaired unit is installed on the day that it is returned
      9. ensure once the repaired or replacement equipment is installed the On-site Loan Equipment is sent the for next day delivery either to CTi’s offices or alternative destination as requested by CTi in writing
   2. On-site loan equipment
      Any On-site Loan Equipment provided by CTi under this Remote Support Services Agreement shall remain the property of CTi and will be returned to CTi by the Customer on termination of the Remote Support Services. The Customer shall insure the On-site Loan Equipment for its full replacement value.

2. Software

1. 1. service provided
      1. Between the hours of 0900 and 1730 Monday to Friday (excluding statutory holidays) CTi will provide telephone Software Support in connection with problems which the Customer may be experiencing in the running of the Software. Where CTi staff are not able to provide assistance immediately, they will have access to the manufacturer's resources responsible for the Software and will consult them to obtain the best possible advice for the Customer.
      2. Problems which do not delay or inhibit operation of the System can be submitted by email.
      3. The Customer shall submit sufficient material and information to enable CTi’s staff to duplicate the problem.
      4. CTi’s staff will attempt to solve a problem or as soon as reasonably practicable. When appropriate, CTi will endeavour to give an estimate of how long a problem may take to resolve. CTi will keep the Customer informed of the progress or problem resolution.
      5. Out-of-hours Remote Support may be provided by CTi at the Extra Rate.
      6. CTi shall correct critical errors or provide assistance to overcome specific Software problems. CTi may, in its sole discretion, correct errors by “patch” or by new version.
      7. Information on availability of new versions of the Software.
      8. Consultancy advice on Software development enhancements and modifications together with estimates of the same.
      9. If a problem is found to have been caused by programmes, software routines or other reasons which are not due to the Software supplied by CTi or by negligence by the licensee or their authorised representatives or through accident misuse or improper use of the Software or necessitated by modifications attempted by the Customer or its agent, CTi shall be entitled to invoice the Customer for the time spent on the problem at the Extra Rate then in operation.

3. Duration

The Remote Support Services will continue for a period of one year from the Remote Support Commencement Date and if not terminated by 30 days notice by the Customer in writing to expire at the end of that period shall continue thereafter until terminated by either party giving to the other not less than one calendar months notice in writing expiring on any subsequent anniversary of the Remote Support Commencement Date.

4. Charges

Remote Support Charges are based on service provided during the hours of 0900 and 1730 hours Monday to Friday excluding statutory holidays, Additional or out-of-hours support is subject to the Extra Rate.

1. CTi shall charge for support service requested by the Customer which are not specifically covered by this Contract.
2. CTi reserves the right to amend the Software Support Charges and the Extra Rate at any time by written notification to the Customer for the following year.
3. Remote Support Charges for the first year are payable within 14 days of the Remote Support Commencement Date
4. Payments not made on the due date will incur interest in accordance with Clause 15.5 of the Terms and Conditions of Contract.
5. Failure of the Customer to pay any charges when due shall constitute sufficient cause for CTi to suspend or terminate Remote Support and to remove the On-site Loan Equipment.
6. Remote Support Charges are exclusive of Value Added Tax which will be added at the prevailing rate at time of invoice.
7. CTi reserves the right to charge for On-site Loan Equipment on a daily rate equal to 1/365 of the On-site Loan Equipment’s replacement cost for every day the On-site Loan Equipment is away from CTi’s offices.

5. Remote Support Services Included And Which Shall Be Charged For

1. Support of other software, accessories, attachments, machines Systems or other devices not supplied by CTi;
2. Rectification of cost or corrupted data arising for any reason other than CTi’s own negligence.
3. Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Software, System or operating environment.
4. Attendance to faults caused by using the Software outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Software and/or System, or caused by operator error or omission.
5. Diagnosis and/or rectification of problems not associated with the Software and/or System.
6. Any CTi Staff attendance onsite.

and any such support shall be paid by the Customer to CTi at the Extra Rate