Sales and Services Terms and Conditions

Definitions

In these conditions the expressions "the Company" or "the Supplier" means Microtill Limited whose registered office is at 11-19 Hamberts Road, South Woodham Ferrers, Chelmsford, CM3 5UF and the expression "the Customer" means any person placing an order for goods which is accepted by the Company in accordance with these Conditions.

The definitions and rules of interpretation in this clause 1 apply throughout this Agreement (including any Schedule or Contract Summaries):

The headings in this Agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.

Unless the context otherwise requires:

• references to the Supplier / The Company and the Customer include their personal representatives, successors and permitted assigns;
• references to writing or written includes faxes but not emails;
• references to statutory provisions include those statutory provisions as amended or re-enacted;
• references to one gender includes a reference to the other genders;
• references to "including" or "includes", or any similar expressions, shall be deemed to have the words "without limitation" inserted after them; and
• references to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

Words in the singular include the plural and those in the plural include the singular.

In the event of any conflict or inconsistency between the different Sections of this Agreement, the following order of precedence shall apply:

1. The Contract Summary or Schedule;
2. The Service Agreement;
3. The General Conditions;
4. The Licence Conditions;
5. The remainder of the provisions in this Agreement.

General

These conditions shall govern any sale of goods or services by the Company to the exclusion of any other terms or conditions except such as are approved in writing by a Manager, Director or other authorised officer of the Company.

Any waiver shall not prejudice the Company's rights in respect of subsequent breach. Quotations are valid for only thirty days and orders placed thereon are subject to acceptance by the Company and no contracts shall be created until such time (if any) as such order is accepted by the Company. Once accepted by the company such orders cannot be cancelled by the Customer, except with the Company's written permission.

The Company will take all reasonable steps to ensure that the goods are in accordance with any particulars illustrations or descriptions contained in any catalogue price list or other document of the Company. The Purchaser remains responsible for satisfying itself that the goods are appropriate for the use intended for them by the Purchaser (including incorporation into other products).

The Company reserves the right at any time before or after an order is placed to make reasonable amendments to any particulars descriptions prices measurements or specifications contained in its catalogues price lists brochures and other sales literature and such amendments shall be binding upon the Purchaser.

These conditions shall be deemed to incorporate the full contractual conditions between the parties and (save for any variation which may be agreed to in writing by or on behalf of the Company) no other statement or representation whether oral or in writing made at any time shall be a term of the contract or of any binding effect between the parties.

Pricing

The Company reserves the right to vary prices (whether specifically quoted or otherwise) to take account of those quoted by our nominated finance provider, increase in the costs of supply of products, raw materials, manufacture, packaging, transport or wages arising before despatch.

Prices are exclusive of VAT or other tax, duty, tariff or charge arising in the U.K. or elsewhere which shall be the responsibility of the purchaser.

Unless otherwise agreed, prices for goods are ex-works and any charge for carriage incurred by the Company will be charged to the Customer.

Standard Hourly Rate prices are charged between the hours of 9am – 5pm Monday to Friday, Out of Hours Hourly Rates are charged between the hours of 5pm to 9am Monday to Friday, weekends and bank holidays.

Day Rate prices may be quoted or estimated by the Company for all types of work to be undertaken on behalf of the Customer. The day rate stipulated by the Company is based on an 8 hour work period within any one work day (including reasonable travel), Monday to Friday. If for any reason and out of the control of the Company, work is not completed within the 8 hours period, the Supplier will levy additional charges based on its hourly overtime rate to recover losses arising from that particular event.

Customer Obligations

The Customer will:

• be responsible (at the Customer's cost) for preparing the delivery Site for the delivery of the Services and the Hardware (as applicable) and for the provision of all necessary access and facilities reasonably required to deliver and install the Hardware. If the Supplier is prevented from carrying out delivery of the Services on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event;
• if not specifically stated within the agreement, that the Supplier will be providing data networking infrastructure, the customer will ensure that all Data Network cabling is installed, cables are terminated with RJ45 plugs, clearly labelled and connections to other sites are in place, where data from the system may be used or updated maybe centralised;
• ensure that the power supply is clean and has its own ring main, with 240 volts AC mains supply taken from the main fuse board. The Supplier is not liable for any damage or system underperformance due to power spikes or interruptions caused by irregular power supply;
• ensure that the Supplier has access to administrative rights or other passwords to enable any installation or required maintenance to be carried out and the Customer shall employ a prudent password policy;
• fully co-operate with the Supplier in performing the Services and provide, at no additional charge to the Supplier, any information or data required by the Supplier that is reasonably requested in the performance of the Services, including in relation to the diagnosis of any System Issues;
• at all reasonable times permit full and free access to the Sites and to the System to the Supplier, its employees, contractors and agents, and provide them with adequate and safe working space, telecommunications facilities, electrical current and outlets or other facilities as are reasonably required to enable the Supplier to perform the Services while at the Sites;
• take any steps reasonably necessary to ensure the safety of the Supplier's personnel when attending the Sites; and
• notify the Supplier promptly of any System Issues (including, but not limited to, if the Supported Hardware is discovered to be operating incorrectly).

The Customer shall indemnify the Supplier against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Supplier as a result of the Customer's breach of this Agreement or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents.

The Customer shall procure all necessary rights from third parties (including, without limitation, intellectual property licences in relation to computer software) which are from time to time required in order for the Supplier to be able legally to provide the Services.

Supplier's obligations

The Supplier shall ensure that, while on the Customer's premises, its employees and all other persons who enter such premises with the authority of the Supplier for the purpose of, or in connection with, this Agreement or the provision of the Services, adhere to the Customer's security procedures and health and safety regulations, as from time to time notified to the Supplier or otherwise brought to the notice of the Supplier or such persons. The Customer may remove or refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, the Supplier shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with the terms of this clause.

No representation or warranty is given by the Supplier that all faults will be fixed, or will be fixed within a specified period of time.

All conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.

Invoicing and Payment Terms

In consideration of the Supplier providing the Software, the Hardware and the Services (as applicable) to the Customer, the Customer shall pay the Fees set out in the Service Agreement Contract, Quotation, Sales Order Acknowledgement, Schedule, Contract Summary or any other document which may relate to the supply of a product.

For the supply of systems, both new and reconditioned, the payment terms are a 60% deposit of the value of the total order unless otherwise agreed by the Managing Directors of Microtill Limited, including the VAT amount, payable at the time of the order, and the remaining balance payable on delivery of the equipment. All deposits paid are non-refundable, unless agreed by the Managing Directors of Microtill Limited.

The Supplier will invoice the Customer for all Service Fees (plus VAT) monthly in advance, or if agreed by the supplier, annually. All invoices must be paid by the Customer by Direct Debit, instalments being paid monthly, split equally over a Twelve month period. At the discretion of the Supplier the Customer may be allowed to pay Service Fees within 30 days of the date of the invoice. The Supplier is not required to provide any Services, Software or Hardware until such time as all invoices have been paid by the Customer.

Fees for any New Version, Consultancy Services or any variation to the Services shall be agreed in writing before performance or supply by the Supplier, and shall be charged and invoiced to the Customer by the Supplier (and paid by the Customer) following acceptance by the Supplier of the Customer's written order for such New Version or variation to the Services.

The Customer shall pay all costs (at the Supplier's then prevailing rates) and reasonable expenses incurred by the Supplier for work carried out by the Supplier in connection with any Hardware Support Issue, Software Support Issue or other System Issue which is not covered by this Agreement.

The Customer shall reimburse any reasonable travel or subsistence expenses incurred by the Supplier where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.

The Customer shall pay to the Supplier its reasonable charges in reprogramming and / or visits as a result of a breach of this Agreement or any programming error as a result of user error by the Customer at the Supplier's then prevailing rates, whether the rate being the standard hourly rate or overtime hourly rate dependant on the urgency of the correction.

Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:

• charge the Customer interest on the overdue amount, payable by the Customer immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 6% a year above the base rate for the time being of NatWest plc. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002; and
• suspend all Services and any Licence granted, until payment has been made in full.

All amounts payable under this Agreement shall be exclusive of VAT or relevant local sales tax (if any) which shall be paid at the rate and in the manner for the time being prescribed by law.

The Supplier may increase the Fees as from each anniversary of the date of this Agreement. Any increase shall be notified to the Customer at least three months before such anniversary.

The Customer may not withhold payment of any sum by reason of any set-off of any claim or dispute with the Supplier whether relating to the quality or performance of the Services, Software and/or Hardware or otherwise.

Restrictive covenants

Neither party shall for the duration of this Agreement and for a period of 6 months after its termination (however caused) solicit for employment, or offer employment to, or enter into any contract for services with any person who is or has been employed by the other party during the term of this Agreement.

If the Customer (whether directly or indirectly) employs or retains the services of any person in breach of this clause.

Intellectual Property Rights

The Customer acknowledges that all Intellectual Property Rights in the System (other than the Third Party Software) are and shall remain the property of the Supplier, and the Supplier reserves the right to grant a licence to use the System (or any part of it) to any other party or parties.

The Software and the Documentation are proprietary to the Supplier (or its licensors) and the Customer acquires no rights in or to the Software or the Documentation other than those expressly granted by this Agreement.

The Customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that the Supplier may consider necessary or desirable to perfect the right, title and interest of the Supplier in and to the Intellectual Property Rights in the System.

The Customer shall use reasonable endeavours to prevent any infringement of the Supplier's Intellectual Property Rights in the System and shall promptly report to the Supplier any such infringement that comes to its attention.

Limitation of Liability

Neither party excludes or limits liability to the other party for:

• fraud or fraudulent misrepresentation;
• death or personal injury caused by negligence;
• a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
• any matter for which it would be unlawful for the parties to exclude liability.

Subject to clause 9.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

• any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
• any loss or corruption (whether direct or indirect) of data or information;
• loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
• any loss or liability (whether direct or indirect) under or in relation to any other contract.

Clause 9.2 shall not prevent claims, which fall within the scope of clause 9.4, for direct financial loss that are not excluded under any of the categories set out above or tangible property or physical damage.

Subject to clause 9.1, the Supplier's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall be limited as follows:

• in respect of any cause of action related to the provision of the Support Services, to the greater of: (a) the total charges paid for the Hardware Maintenance Services and the Software Support Service by the Customer to the Supplier during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period; and
• in respect of any other cause of action related to this Agreement (including any cause of action related to the Supplier Software), to the amount of Fees charged by the Supplier to the Customer during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period.

Any dates quoted for delivery of the Software, Hardware or Services are approximate only, and the time of delivery is not of the essence.

Dispute Resolution

Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in this clause.

For the purpose of this clause, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

Unless this Agreement has already been terminated by the date of the notice of dispute, the Supplier shall, in every case, continue with providing the Services and the Hardware (as applicable) regardless of the nature of the dispute and the Customer shall continue to make payments in accordance with this Agreement.

After service of the notice of dispute, the following procedure shall be followed by the parties:

1. within two days, Customer Contact and a representative of the Supplier shall meet to attempt to settle the dispute;
2. if the meeting does not result in a settlement within seven days from the date of service of the notice, the managing directors of each of the parties shall meet within the following seven days to attempt to settle the dispute; and
3. If no settlement is reached, the dispute shall be brought before the English High Court in the most expeditious manner possible, and the parties agree to co-operate in the speedy conduct of such legal proceedings.

For the avoidance of doubt, this clause shall not prevent either party seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the Customer of the Supplier's Intellectual Property Rights.

Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

Force Majeure

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 180 days or more, the party not affected may terminate this Agreement by giving 30 days' written notice to the other party.

If termination occurs, all sums paid to the Supplier by the Customer under this Agreement shall be refunded to the Customer, except that the Supplier shall be entitled to payment on a quantum meruit basis for all work done before termination, provided that the Supplier takes all reasonable steps to mitigate the amount due.

Assignment and Subcontracting

Subject to clauses 13.1 and 13.2, this Agreement is personal to the parties and the Customer shall not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under this Agreement, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

The Customer hereby consents to the Supplier sub-contracting to its subcontractors provided that the Supplier shall be liable for the obligations under this Agreement that are subcontracted to any sub-contractor as if the Supplier had performed such obligations itself. This clause shall not give any third party rights to any such subcontractor.

The Supplier shall be entitled to assign, novate, sub-contract or otherwise dispose of its rights and obligations under this Agreement without the consent of the Customer:

• to any of the Supplier's Group Companies; or
• to any legal entity purchasing substantially the whole of the business to which the Hardware, Software and/or Services relate.

Termination

Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement and/or the Services with immediate effect by giving written notice to the other party if:

• the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
• the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
• the other party is subject to an Insolvency Event; or
• the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

The Supplier may terminate this Agreement at any time by giving not less than 30 days written notice to the Customer.

The Supplier may, without prejudice to its other rights or remedies, terminate this Agreement immediately by notice to the Customer if the Customer undergoes a change of control, sells all or a substantial amount of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or disputes the ownership or validity of the Supplier's Intellectual Property Rights.

If the Customer fails to install a Maintenance Release within one month of the Supplier's notifying the Customer that such Maintenance Release is available for installation, the Supplier may terminate this Agreement by giving one month's written notice to the Customer.

The Supplier shall be entitled to terminate this Agreement by giving one month's written notice to the Customer if the Supplier has released a New Version since the version which forms part of the Supported Software and the Customer has not, within 12 months of the Supplier having notified the Customer that such New Version is available, acquired and installed that New Version.

Effect of Termination

Other than as set out in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination.

Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

Notwithstanding its obligations in this clause, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party's Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.

On termination of this Agreement for any reason, the Customer's right to receive the Services shall cease automatically and the Customer shall as soon as reasonably practicable:

• return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, CD-ROMs or other Media or other information or data provided to it by the Supplier containing, reflecting, incorporating or based on Confidential Information belonging to the Supplier. If required by the Supplier, it shall provide written evidence no later than 5 Business Days after termination of this Agreement that these have been destroyed and that it has not retained any copies of them (except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in clause 16);
• return all of the Supplier's equipment and materials, failing which, the Supplier may enter the relevant premises and take possession of them. Until these are returned or repossessed, the Customer shall be solely responsible for their safe-keeping.
• pay any outstanding unpaid invoices and interest due to the Supplier. The Supplier shall submit invoices any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.

Confidentiality and publicity

Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Group Companies, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

The terms of this Agreement may not be disclosed by the Customer (other than to its legal advisors) without the prior written consent of the Supplier.

The Supplier may refer to the Customer as being a client of the Supplier in customer reference lists and sales presentations, but shall not refer to the Customer in any advertising or press release without the prior written consent of the Customer.

The provisions of this clause shall remain in full force and effect notwithstanding any termination of this Agreement.

Entire Agreement

This Agreement constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or Agreement between them relating to the subject matter of this Agreement.

Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.

Each party agrees that the only rights and remedies available to it arising out of or in connection with a representation shall be for breach of contract as provided in this Agreement.

Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Severance

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Notices

Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice as set out below:

• Supplier: to the Supplier representative named, and at the address set out, in the Contract Summary; and
• Customer: to the Contact Name stated in, and at the address set out in, the Contract Summary, or as otherwise specified by the relevant party by notice in writing to each other party.

Any notice shall be deemed to have been duly received:

• if delivered personally, when left at the address and for the contact referred to in this clause;
• if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
• if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.

A notice required to be given under this Agreement shall not be validly given if sent by e-mail.

The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

Governing Law and Jurisdiction

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Provision of Software and Licence Fees

In consideration of the Customer's payment of the Licence Fees, the Supplier grants, subject to the terms of this Agreement, the Customer a non-exclusive, non-transferrable licence to use the Software on the Hardware for the Licence Term.

The Supplier may only use the Software at the Site(s). If the Customer transfers the whole of its business to another site, the Software may be used at the new site by the Customer, provided that the Supplier is informed in writing of the change of site before use of the Software commences at the new site. Any assistance transferring the software and licensing between sites will be chargeable at the prevailing rate.

Any Third Party Software provided by the Supplier to the Customer, shall be subject to the standard terms of such third parties. The Customer shall comply with the Third Party Licences and shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of such terms howsoever arising. The Supplier may treat the Customer's breach of any Third Party Licence as a breach of this Agreement.

The Customer's use of the Software shall be restricted to:

• use of the Software in object code form for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer); and
• loading the Software into temporary memory or permanent storage on the relevant Hardware.

The Customer may not use the Software other than as specified without the prior written consent of the Supplier, and acknowledges that additional fees may be payable on any change of use approved by the Supplier (including in accordance with clause 22.9).

The Customer may make as many backup copies of the Software as may be reasonably necessary for its lawful use in accordance with this Agreement and for the purposes of backup and security. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.

Except as expressly stated in this clause, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer.

The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

The Customer shall:

• ensure that the Software is installed on the Hardware only;
• keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
• notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person; and
• pay, for broadening the scope of the licences granted under this Agreement to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied had it licensed any such unauthorised use on the date when such use commenced together with interest from such date to the date of payment.

The Customer shall permit the Supplier to inspect and have access to any premises at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring compliance with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

The Customer shall not:

• sub-licence, assign or novate the benefit or the burden of this Licence in whole or in part;
• allow the Software to become the subject of any charge, lien or encumbrance; or
• deal in any other manner with any or all of its rights and obligations under this Agreement.

Delivery, acceptance and installation

Subject to the Customer's compliance with the terms of this Agreement, the Supplier shall use its reasonable endeavours to deliver and install (where applicable) the Software at the Sites on the Software Delivery Date(s), but any such date(s) are approximate only. If no dates are specified, delivery shall be within a reasonable time of acceptance of the order.

The Licence Fees shall be inclusive of the cost of delivery but not of installation (which shall form part of the Consultancy Services).

The Software may be delivered by the Supplier in advance of the Software Delivery Date(s) on giving reasonable notice to the Customer.

Delivery shall be made to the Sites during normal business hours on Business Days. If the Customer requests that any deliveries are made outside such hours the Supplier may levy additional charges.

The Supplier will endeavour to deliver the Software, configured, on the agreed installation date. In order for Software to be configured and delivered within the agreed time line, the Customer is required to provide the final data no later than ten working days before the date of installation. If the data has not been received ten working days before the agreed install date, the Supplier, at its discretion may levy additional charges at its overtime rate. If the customer requires delivery sooner than the working ten day period, after delivering the required data, the Company will levy additional charges as its overtime rate.

If new sets of data are received by the Supplier from the Customer, after the Customer has confirmed the received final data sets have been delivered, any changes required may result in the Supplier charging for the additional time work undertaken. The Supplier will also levy additional charges for any programming changes onsite during installation.

The Customer shall be responsible (at the Customer's cost) for preparing the delivery Site(s) for the delivery of the Software and for the provision of all necessary access and facilities reasonably required to deliver and install the Software. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover any loss arising.

Abortive Installations

Installations cancelled or aborted by the customer within 48 hours will be subject to our standard daily charge.

The customer shall be responsible for checking the delivery documents and ensuring that serial numbers and licence numbers match the software and equipment being delivered.

If within 7 days of the Software Delivery Date the Customer discovers a Software Defect, the Customer shall notify the Supplier immediately.

On confirmation of a Software Defect by the Supplier, the Supplier shall, at its option and expense, either repair or replace the part or parts of the Software which contain the Software Defect or, where this is not possible or practicable, terminate the Licence and refund the portion of the Licence Fees paid in relation to the Defective Software. The Supplier shall have no further liability in respect of the Defective Software and no other remedy shall be available to the Customer.

The Customer shall be deemed to have accepted the Software on the earlier of the following: more than 7 days have passed since the Software Delivery Date and the Customer has not made any notification to the Supplier in accordance with clause 23.9 or such notification is not justified; or the Customer uses the Software in the course of its business.

Risk

Risk in the Media shall pass to the Customer on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged the Supplier shall at the request of the Customer replace the same promptly subject to the Customer paying the reasonable cost of such replacement prior to delivery.

Fees

The Customer shall pay the Licence Fees to the Supplier on the dates and in the manner set out in the Service Agreement Contract, Quotation, Sales Order Acknowledgement, Schedule, Contract Summary or any other document which may relate to the supply of a service or product and clause 6.

Modifications and Maintenance Releases

The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers.

The Supplier shall inform the Customer of any New Versions and shall offer to sell such New Versions to the Customer on the terms on which they are generally made available by the Supplier to its customers.

Supplier's warranties

The Supplier warrants that the Supplier Software will conform in all material respects to the Specification or Functional Overview for a period of 90 days from the date of this licence. If, within the Warranty Period, the Customer notifies the Supplier in writing of any Software Defect in consequence of which it fails to conform in all material respects to the Specification, the Supplier shall, at the Supplier's option, repair the Software, replace the Software, or terminate the Licence immediately by notice in writing to the Customer and refund any of the Licence Fees paid by the Customer as at the date of termination on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the Software Defect.

The warranties do not apply if such Software Defect results from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of the Licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier; or where the Software has not been loaded onto equipment other than Hardware provided by the Supplier.

The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.

The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not, unless otherwise specifically agreed in writing, been developed to meet the individual requirements of the Customer.

Any Open-Source Software provided by the Supplier may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 27.6.

All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including (to the extent permitted by law) the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

Intellectual Property Rights

The Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of the Licence.

The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses properly incurred by or the Customer as a result of such Claim. For the avoidance of doubt, the provisions of this clause shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations are conditional on the Customer:

• as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
• not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed);
• giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and
• taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.

If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

• procure for the Customer the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of the Licence;
• modify the Software so that it ceases to be infringing;
• replace the Software with non-infringing software; or
• terminate the Licence immediately by notice in writing to the Customer and refund any of the Licence Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof, provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 27 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of the Licence been references to the date on which such modification or replacement was made.

Notwithstanding any other provision in this Agreement, this clause shall not apply to the extent that any claim or action arises directly or indirectly through the possession, use, development, modification or maintenance of any Open-Source Software incorporated into the Software or through the breach of any Third-Party Licence relating to any Open-Source Software so incorporated.

This clause constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to the limitation of liability provisions in this Agreement.

Provision of Hardware

In consideration of the Customer's payment of the Hardware Fees, the Supplier shall supply the Hardware to the Customer at the Site(s) on or around the Hardware Delivery Date(s).

The Supplier will provide the Hardware with all related documentation provided by third-party manufacturers (if any).

The Customer shall provide all cabling and other equipment needed for the installation of the Hardware at the Site(s) (as described in clause 4) unless otherwise agreed by the company.

Delivery and acceptance

The Supplier shall use its reasonable endeavours to deliver and install the Hardware on the Hardware Delivery Date(s), but any such date is approximate only. If no dates are specified, delivery shall be within a reasonable time of the date of this Agreement.

The Hardware Fees shall be inclusive of the cost of delivery but not of installation (which shall form part of the Consultancy Services).

The Hardware may be delivered by the Supplier in advance of the Hardware Delivery Date(s) on giving reasonable notice to the Customer.

Delivery shall be made to the Sites during normal business hours on Business Days. If the Customer requests that any deliveries are made outside such hours the Supplier may levy additional charges.

The Customer shall be responsible (at the Customer's cost) for preparing the delivery Site for the delivery of the Hardware and for the provision of all necessary access and facilities reasonably required to deliver and install the Hardware. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.

If within 7 days of the Hardware Delivery Date the Customer discovers a Defect with the Hardware, the Customer shall notify the Supplier immediately. In addition, the Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within three days of delivery of the Hardware and that the Hardware has been handled in accordance with the Supplier's stipulations. Any remedy under this clause shall be limited, at the option of the Supplier, to the replacement or repair of any Hardware which is proven to the Supplier's satisfaction to have been lost or damaged in transit.

On confirmation of a Defect by the Supplier, the Supplier shall, at its option and expense, either repair or replace the part or parts of the Hardware which contain the Defect or, where this is not possible or practicable, refund the portion of the Hardware Fees paid in relation to the Defective Parts. The Supplier shall have no further liability in respect of the Defective Parts and no other remedy shall be available to the Customer.

The Customer shall be deemed to have accepted the Hardware on the earlier of the following: more than 7 days have passed since the Hardware Delivery Date and the Customer has not made any notification to the Supplier or such notification, if made, is not justified; or the Customer uses the Hardware in the course of its business.

Title and Risk

Title to the Hardware shall not pass to the Customer until the Hardware Fees and any other outstanding sums due under this Agreement have been paid by the Customer in full and cleared funds.

Risk in the Hardware shall pass to the Customer on delivery of the Hardware to the Site(s).

Fees

The Customer shall pay the Hardware Fees to the Supplier in accordance with the Service Agreement Contract, Quotation, Sales Order Acknowledgement, Schedule or Contract Summary or any other document which may relate to the supply of a service or product and clause 6.

Supplier's warranties

The Supplier warrants to the Customer that the Hardware is of satisfactory quality and free from defects of workmanship and materials for the Hardware Warranty Period. The Supplier undertakes (subject to the remainder of this clause) at its option, to repair or replace the Hardware (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within the Hardware Warranty Period.

The Supplier shall not in any circumstances be liable for a breach of the warranty contained in this clause unless the Customer gives written notice of the defect to the Supplier within the Hardware Warranty Period; and after receiving the notice, the Supplier is given a reasonable opportunity of examining the Hardware and the Customer (if asked to do so by the Supplier) returns the Hardware to the Supplier's place of business, in accordance with the procedure set out in this Agreement, for examination to take place there.

The Supplier shall not in any circumstances be liable for a breach of the warranty if the Customer makes any subsequent use of the Hardware in respect of which it has given written notice; the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or (if there are none) good trade practice; the Customer alters or repairs the relevant Hardware without the prior written consent of the Supplier; or the Hardware Defect is caused by improper use of the Hardware or outside its normal application.

As far as it is able the Supplier will pass onto the Customer the benefit of any warranties given by any third party manufacturer of the Hardware.

The following process shall be followed by both parties in relation to the return of Hardware to the Supplier: if the Supplier decides that the Hardware should be returned to the Supplier, the Supplier will provide the Customer with a request number. The request number should be included on any further correspondence and noted on the outside of the packaging of the Hardware being returned. The Customer shall ensure that the Hardware being returned is securely packaged, sufficiently to withstand robust courier transportation, and, where possible, will return the Hardware in its original packaging. The Customer shall return the Hardware to Microtill Limited, 11-19 Hamberts Road, South Woodham Ferrers, Chelmsford, CM3 5UF (or such other address as is notified to it in writing by the Supplier from time to time) ensuring that a return address is enclosed.

The Supplier shall refund to the Customer the reasonable return costs incurred by the Customer in returning the Hardware save where the Hardware Defect is as a result of one or more of the circumstances listed above.

Consultancy Services

On the terms and conditions set out in this Agreement, the Supplier agrees to install the Hardware and the Software at the Site(s); integrate the Hardware and Software to form the System; provide the System Ready for Service; and if requested by the Customer, and accepted by the Supplier, provide training at the rates provided for in the Contract Summary; and make available to the Customer suitably qualified personnel to carry out additional tasks on a consultancy basis at the rates provided for in the Contract Summary.

Consultancy Warranties

The Supplier warrants that the Consultancy Services will be provided with reasonable skill and care.

The above warranty is, to the extent permitted by law, in lieu of all other express or implied warranties, terms or conditions.

Consultancy Fees

The Customer shall pay to the Supplier the Consultancy Fees in accordance with the Quote, Schedule or Contract Summary and the relevant clauses of this Agreement.

Unless otherwise agreed in the Quote, Schedule or Contract Summary, the Consultancy Fees are exclusive of reasonable travel and accommodation expenses required for the Supplier to attend at the relevant Site(s); and all reasonable expenses of the Supplier in connection with the provision of the Consultancy Services (including cost of materials and third party services), which shall be payable by the Customer in addition to the Consultancy Fees.

Any Consultancy Services provided outside of normal Service Hours will be subject to additional charges over and above the Consultancy Fees as the Supplier may, from time to time, notify the Customer.

Training Charge

The Supplier will undertake the Training to the Customer in consideration of the payment of the Training Fees.

Any additional training required by the Customer shall be provided by the Supplier at the Supplier's standard rates then in force.

Training shall be carried out at the Customers Site(s), by remote training or whichever form is agreed between Customer and Supplier.