iTG Terms and Conditions of Sale
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ITG TECHNOLOGIES LTD
1.1 DEFINITIONS AND INTERPRETATION
This Maintenance Agreement is to be read in conjunction with the Order Form to which this Maintenance Agreement is attached. All definitions contained within this Maintenance Agreement shall have the same meaning as those set out in the Conditions unless specified below:
“Agreement” means this Maintenance Agreement.
“Cancellation Charge” means a charge applied to your account (a) when we terminate the Agreement for breach of the Agreement by you; or (b) when you terminate the Agreement prior to the end of the Minimum Term in certain circumstances;
“Equipment” means the equipment specified on the Order Form;
“Order Form” means our order form to which this Agreement is attached or printed on the reverse and which contains details of your application for Service.
“Services” means the maintenance and repair services to be undertaken in relation to the Equipment located at the Site;
“Service Fee” means the annual charge for the Service, which charge is specified on the Order Form;
“Working Hours” means between 09.00 and 17.00 on Monday to Friday inclusive, excluding any public or bank holidays;
“The Company” or “we” or “us” means ITG Technologies Limited;
“The Customer” or “you” means the customer whose company details are set out on the Order Form.
1.2 Save as above-mentioned words and expressions shall have the meaning ascribed to them on the Order Form.
2. THE SERVICE
2.1.1 Subject to the terms of this Agreement and in consideration for the payment by you to us of the Service Fee together with any and all other applicable Charges, we shall undertake maintenance visits to the Site in order to fix faults which may arise in relation to the Equipment. During any maintenance visit, (or otherwise thereafter, where appropriate) we will check all relevant aspects of the Equipment and replace or repair any fault Equipment (or any faulty component of the Equipment).
2.1.2 The Service we provide is to endeavour to provide that the functioning of the Equipment or as much of it as is appropriate will continue no less accurately at no less efficiency after the Date of the Order Form as it did before.
2.2 We would normally expect to response within 4 hours during Working Hours to any fault which is having a material effect on a Customer’s business, whilst other faults will be met with a 2 day response during Working Hours. However, these timescales are estimates only and time shall not be of the essence in the provision of the Service.
2.3 The Service shall not include:
a) Any maintenance or repair work with respect to or caused by any modification of, removal or addition to, the Equipment, if any such modification removal or addition has been undertaken without our prior consent
b) Any maintenance or repair work undertaken outside Working Hours;
c) The cost of any cables and any other equipment required to connect or reconnect the Equipment to the Network;
d) The repair of any damage to the Equipment caused by fire, lightning, water or explosion;
e) The remedy of any defect resulting from any misuse of, neglect of, tampering with, or wilful or accidental damage to the Equipment, or from the utilisation of incorrect mains voltage with the Equipment or from the attachment of the Equipment to any unsuitable or inappropriate devices, or from any failure to follow any instructions contained in any operation or maintenance manual published for, or otherwise specified to be appropriate for use in conjunction with, the Equipment, or from any failure to follow any written or oral instructions issued by us;
f) Any additional maintenance visit or any attendance at the Site which, in either case, is requested or required because some act or omission of yours has prevented, suspended or delayed the performance of any obligation of ours, or is requested or required because of your failure to perform, suspension or delay in the performance of any of your obligations under the Agreement;
g) Maintenance where the operating instructions for the Equipment advised the user thereof to carry out as a matter of routine on a regular basis; and
h) Maintenance or repair work of any defect in or malfunction of the Equipment due to a design fault.
2.4 Where we agree to undertake any work not included in the Service, you shall be liable to pay us the Charges for any such work at our then current time and materials rates.
2.5 If the performance of our obligations under the Agreement or otherwise is prevented, suspended, delayed or otherwise adversely affected by any act or omission of yours, your agents, subcontractors, consultants or employees, or from any fraud or negligence of yours, or from any failure to perform, suspension or delay in the performance of any of your obligations under the Agreement or otherwise, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention, suspension, delay or adversely affected performance of our obligations.
3. YOUR OBLIGATIONS
3.1 You shall:
a) ensure that proper environmental conditions are maintained for the Equipment and shall maintain in good condition the accommodation of the Equipment, any cables and fittings associated therewith and where applicable, the electricity supply thereto;
b) notify us of any defect or suspected defect in the Equipment at the time that the defect becomes know, or ought reasonably to have become known, to you;
c) not make any addition or modification to the Equipment without our prior written consent;
d) keep and operate the Equipment in a property and prudent manner and in accordance with our operating instructions and comply with the requirements of the supplier of the Equipment where applicable;
e) carry out any minor maintenance recommended by us from time to time;
f) save in clause 3.1 e as aforesaid, not attempt to adjust, repair or maintain the Equipment and shall not request, permit or authorise anyone other than us to carry out any adjustments, repairs or maintenance of the Equipment;
g) use on the Equipment only such operating supplies, materials and parts as we shall advise in writing;
h) not move the Equipment nor remove the Equipment from the Site without our prior written consent;
i) not use in conjunction with the Equipment any accessory, attachment or additional equipment other than that which has been supplied by or approved in writing by us;
j) provide us with full and safe access to the Equipment for the purposes of this Agreement and adequate working space surrounding the Equipment;
k) ensure that all backup copies of any and all software, security tools and keys are made available to us prior to our commencing performance of the Service;
l) make available to us such operating manuals, programs and information as may be necessary to enable us to perform the Service;
m) make available to us, free of charge, all facilities and services reasonably required by us to enable us to perform the Service;
n) at all times keep a record of all Equipment used, (in a form to be approved by us) and allow us to inspect such record at all reasonable times;
o) nominate one person to be your principal contact between the parties, to whom we shall address all enquiries, responses and correspondence;
p) indemnify us and keep us indemnified in the event that the service we provide infringes any intellectual property right of any third party or causes any breach of contract between you and any third party.
3.2 We may (without prejudice to any right or remedy available to us under this Agreement, up to and including termination) agree to undertake any maintenance or repair work notwithstanding any breach of any obligation set forth in clause 3.1 (including any work which would not be necessary but for such breach, or which otherwise arises from or is related to such breach); in such an event, you shall be liable to pay us the Charges for our work at our then current time and materials rates.
3.3 You shall be liable to pay to us, on demand, all reasonable costs, charges or losses sustained or incurred by us (including without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss of damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to our confirming such costs, charges and losses to you in writing.
3.4 You shall hold us harmless and keep us indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expense (including legal and other professional fees and expenses) awarded against or incurred or paid by us as a result of or in connection with any claim made against us in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to our confirming such costs, charges and losses to you in writing.
4. CONSUMABLE SUPPLIES
4.1 You shall use with the Equipment only such consumable supplies as are recommended.
4.2 We shall use reasonable endeavours to supply spare parts and replacement components where required as a result of fair wear and tear at an additional charge to you of cost to us plus 5%.
4.3 Where spare parts and replacement components are required by reasons other than fair wear and tear you shall pay for the same at the price to us plus 15%.
4.4 If we agree to additional or substituted equipment you shall pay, in addition, a supplementary maintenance charge based on our then company rates.
5.1 You shall pay the Service Fee, together with such other Charges (if any) as shall be notified to you by us (including but not limited to any Charges payable on a time and materials basis), which Service Fee and Charges are exclusive of VAT, which we shall add to our invoices at the appropriate rate.
5.2 We shall be entitled to vary the Service Fee annually and any such variation shall become effective on the anniversary of the Commencement Date in the year immediately following the variation. We shall notify you of any such variation at least 60 days prior to the anniversary of the Commencement Date. Any and all other Charges payable under this Agreement may be varied by us at any time without notice to you.
5.3 Without prejudice to clause 5.1, you shall pay to us any additional sums which, in our sole discretion, are required as a result of any cause attributable to you directly or indirectly, including without limitation, any act or omission of yours which falls within clause 3.3.
6.1 The Service Fee shall be payable prior to the Commencement Date and shall be payable thereafter annually in advance prior to the anniversary of the Commencement Date. All other sums payable under the Agreement must be paid within 10 days of the relevant invoice therefore.
6.2 Without prejudice to the provisions of clause 6.1, the provisions of Condition 8 of the Conditions shall otherwise govern your payment obligations under this Service Agreement.
7. INTELLECTUAL PROPERTY
7.1 Unless otherwise expressly agreed in writing, the parties will not acquire any rights or licences to each other’s intellectual property rights.
7.2 All intellectual property rights in anything provided to you as part of the Service will remain the property of us or our licensors.
7.3 You shall indemnify and hold harmless the Company against all damages (including costs) and expenses that may be awarded or agreed to be paid to any third party in respect of any claim or action that the provision of the Service during or after the termination or expiry of this agreement infringes any intellectual property right of any third party or is in breach of any Contract that you may have with any third party.
8. MINIMUM TERM
8.1 The Minimum Term will be as specified on the Order Form.
8.2 After the expiry of the Minimum Term, unless otherwise agreed with you in writing, the Agreement will automatically renew for a period of 12 months. This automatic renewal reoccurs on each 12 month anniversary thereafter until cancelled by either party by giving 90 days written notice to expire no earlier than the end of the then current term. Automatic renewal will be on the same terms as the original Agreement.
9. TERMINATING THE AGREEMENT
9.1 We may terminate the Agreement if you are in breach of your obligations in this Agreement and the breach (if capable of remedy) is not remedied within a reasonable time of notice to you requiring remedy
9.2 If this Agreement is terminated by us by virtue of your breach of the terms of this Agreement during the Minimum Term or any successive Term, you will be responsible for the payment of:
(a) Any and all charges (including the Service Fee or any unpaid portion thereof) which are due as of the terminate date (including not limited to any such Charges not yet invoiced); and
(b) A Cancellation Charge, comprised of all Charges up to the end of the Term which are not due as of the termination date, but which would otherwise fall due for payment thereafter, less a 5% reduction to reflect early payment.
9.3 Either party may terminate this Agreement by giving the other party not less than ninety (90) days notice in writing to take effect at the end of the Minimum Term or any successive Term.
9.4 In the event that notice of termination pursuant to clause 9.3 is duly given by either party, we will not levy a Cancellation Charge, but you will be responsible for the payment of the Charges set forth in clause 9.2(a) above, together with any other Charges which may be incurred during the notice period.
9.5 If you want to terminate this Agreement prior to the end of the Minimum Term or any successive Term you must give us at least thirty (30) days notice in writing. You must pay the Charges set forth in clause 9.2(a) above, together with any other Charges which may be incurred during the notice period and we will also levy a Cancellation Charge in accordance with clause 9.2(b).
9.6 If you want to terminate this Agreement prior to the end of the Minimum Term or any successive Term because you claim we are in breach of the terms of this Agreement, you must first give us written notice of termination specifying your reason for termination and afford us a reasonable opportunity to remedy the reason complained of and if you remedied to a material extent the notice termination shall be deemed withdrawn.
10. OUR LIABILITY
Except for any liability we may have for death, personal injury or fraudulent misrepresentation we shall have no liability for any loss that is not reasonably foreseeable nor shall we be liable for any loss of business, revenue, profit or savings that you may have expected to make by use of the service and any liability we may have is limited (except as stated) to the total annual service fees to which you are committed by virtue of that Order Form and subject to that exception the Company’s entire liability to the customer in relation to any defect in the Service shall not exceed £1,000 .
11. TRANSFERRING THIS AGREEMENT
This Agreement is personal to you and may not be transferred by you to any other person.
Without the written consent of the other neither party during the term of this agreement and for a period of twelve months after expiry or termination howsoever caused shall retain remunerate or solicit the other party’s staff who have been employed or engaged in the provision of the Service or the performance of this agreement. For the purposes of this clause “solicit” means the soliciting of such person with a view to engaging such person as an employee director sub-contractor or independent contractor.
13.1 Each of the Company and you hereby undertakes to the other to:-
13.1.1 keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this agreement (“the Information”);
13.1.2 not without the other’s written consent disclose the information in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision or receipt of the Services and who have a need to know the same; and
13.1.3 use the Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third party.
13.2 The provisions of clause 13.1 above shall not apply to the whole or any part of the Information to the extent that it is:
13.2.1 trivial or obvious;
13.2.2 already in the other’s possession on the date of its disclosure; or
13.2.3 in the public domain other than as a result of a breach of this clause
14.1 This Terms of Business of the Company current at the date of the Order Form shall apply to this Maintenance Agreement insofar as is not inconsistent with the provisions hereof.
14.2 The Company shall be entitled to retain subcontractors to carry out the whole or any part of its obligations hereunder without diminishing its liability as primary obligor to you.
14.3 This agreement supersedes all prior agreements, arrangements and understandings between you and the Company and constitutes the entire agreement between the parties relating to the subject matter hereof.
14.4 No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instruments signed by a duly authorised representative of each of the parties.
14.5 Any party who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
14.6 No waiver or indulgence by one party of any breach of this Agreement shall be considered a waiver of that or any subsequent breach of the same or any other provision.
14.7 If any provision in this Agreement becomes unlawful, unenforceable or void it shall not affect the remainder which shall continue in full force and effect.
14.8 This Agreement is governed by the Laws of England and the exclusive jurisdiction of the English Courts.