Iteko Ltd. Terms & Conditions
Definitions
"Agreement" means this document and where Services are supplied, means this document together with
the SLA.
"Commencement Date" means the date when Provider is ready to supply the Services (as agreed with
the Customer) or in the case of supply of Products, the date of the Order.
"Customer" means the person who places the Order and receives the Services and/or Products.
“Equipment” means the apparatus or equipment as defined in the “Scope and Overview” section of the
SLA.
“Initial Period” means the term as defined in this document.
“Maintenance Charge(s)” means the sum payable by the Customer to the Provider in return for the
provision of the Services and payable at the intervals outlined in the SLA and as may be increased
(or decreased) by the Provider from time to time on giving notice.
“Maintenance Package” means the Providers maintenance services offered in the Quote and\or listed
in the SLA, these may be On-site and\or Remote Services, the features of which are outlined in the
Quote or SLA.
“Order” means a written response submitted by the Customer (in whatever form) to the Provider
accepting its Quote for provision of the Products and/or Services.
“Price” means the sum payable by the Customer to the Provider in return for the provision of the
Products and payable within 30 days of the date of the Provider’s invoice.
“Product(s)” means any goods and/or materials which are subject to the Customer’s Order and which
are to be supplied to the Customer by the Provider under this Agreement.
"Provider" means Iteko Ltd, a company incorporated in Scotland with company number SC693848 and
having its registered office at 6 Kavanagh Crescent, East Kilbride, G75 8WS.
"Provider Equipment" means any apparatus or equipment provided by Provider or their third party to
the Customer to enable provision of the Services under this Agreement.
“Quote” means a written offer from the Provider outlining the Maintenance Charge and/or Price for
the provision of Services and/or Products, such offer being valid for acceptance for a period of 7
days unless otherwise agreed in writing by the Provider and being subject to change by the Provider
following any subsequent Site inspection.
"Service(s)" means the provision of IT Support Services during the Working Hours, to include
provision of the Equipment as defined in the “Scope and Overview” section of the SLA.
"Site" means the Customer’s premises(s) where the Services are to be provided and/or the Products
are to be supplied.
“SLA” means the service level agreement entered into between the Customer and the Provider on
or around the Commencement Date.
“Working Hours” means 8:30am to 5:00pm, Monday to Friday, excluding public holidays.
2. Contractual Terms and Duration
This Agreement will be binding and effective upon signing and shall continue in force until the
expiry of the Initial Period and thereafter will automatically renew for periods of that equal to
the Initial Period unless notice of cancellation is given in writing by the Customer, 30 days prior
to the expiry of the Initial Period or such automatically extended term.
If the Customer wishes to modify the Services it must provide Provider with at least 30 days’
written notice of its proposed changes. The Provider may (but shall not be obliged to) vary the
Services accordingly, subject to the Customer paying the Provider an alternative Maintenance Charge
tariff that will be notified to the Customer at the time of receipt of the request.
If the Customer wishes to change the Site then it shall be required to give the Provider at least
30 days’ written notice and the Provider may, (but shall not be obliged to) provide Services at an
equal, less or additional Maintenance Charge at the new Site.
For the avoidance of doubt any terms and conditions attached to the Customer’s Order shall not be
binding on the Provider and the Customer’s placing of the Order shall indicate unqualified
acceptance of this Agreement and its terms.
No representative, agent or sales person has the Provider’s authority to vary, amend or waive any
terms of this Agreement on behalf of the Provider and no amendment or addition shall be deemed to
have been accepted unless agreed in writing by the Provider.
3. Exclusion from Services & Scope of Works
In addition to any exclusion outlined in the “Services to be Provided” section of the SLA, the
Provider’s obligation to provide Services is also contingent upon the Customer’s proper use of all
Equipment. The Provider shall not be obligated to furnish maintenance Services or any replacement
parts under clause 8 if:
• The Equipment has been subjected to unusual physical or electrical stress;
• adjustment, repair, or parts replacement is required because of accident, neglect, misuse,
improper programming, or failure of electrical power, air conditioning, humidity control,
transportation or causes other than normal use;
• the Equipment has been maintained or repaired, or if an attempt to repair or service the
Equipment has been made by someone other than Provider’s personnel without prior written approval
of the
Provider (such approval not to be unreasonably withheld);
• The Equipment is either removed from its initial installation location or is reinstalled without
the prior written approval of Provider;
• The Equipment or any part of it, in Provider’s reasonable opinion, has reached the end of its
useful life;
• Customer allows any person to access or tamper with Provider’s software on any
Equipment.
If Services are required as a result of any of the causes stated above, such repairs shall be
charged at the Provider’s then prevailing non-contract rates.
4. Exclusions
The Services under this Agreement do not include:
• operating supplies or accessories including media such as tapes and disc packs;
• electrical work external to the Equipment and other devices not specifically noted as part of
this Agreement;
• Verification that the Customer’s software licenses are valid and current. Licensing of the
Customer’s software remains the responsibility of the Customer;
• prevention of any virus or similar problem entering or leaving the Equipment
installation or maintenance of bespoke software shall be carried out at The sole discretion of the
Provider.
5. Maintenance Charges
The Maintenance Charges payable by the Customer will be as laid down in the SLA. Charging shall
begin on the Commencement Date and Customers are required to pay a set- up fee equal to one (1)
months’ Maintenance, unless otherwise agreed.
Any proposed price increase (or decrease) has to be by mutual agreement between the Customer and
the Provider and that if in the unlikely event that no agreement is reached either party can
validly choose to terminate the agreement without penalty or any liability to the other by giving
90 days notice).
All set-up charges incurred by the Provider for the Services are non-refundable.
6. Product Orders, Delivery & Risk
Product Orders are accepted by the Provider subject to the availability of the Products for
delivery.
If the Customer agrees to collect or arrange for the collection of Products from the Provider’s
premises, delivery shall be effected and risk (but not title) shall pass when the Products are
handed to the Customer or its carrier at the Provider’s premises.
Otherwise, risk (but not title) shall pass when the Products are delivered by the Provider to the
Site.
Title in the Products shall only pass to the Customer when the Price, together with any other sums
due under this Agreement (including, for the avoidance of doubt, Maintenance Charges), has been
paid in full. Until title has so passed, the Customer shall keep the Products (at no cost to the
Provider) separately from all other goods in its possession and marked in such a way that they are
clearly identified as the Provider’s property and the Customer shall not interfere with any
identification marks or serial numbers on the Products. Until such time as title in the Products
passes to the Customer, the Customer shall upon request deliver up the Products to the Provider and
if the Customer fails to do so, the Provider may enter upon any premises, owned, occupied or
controlled by the Customer (including the Site) to repossess the Products. The Customer shall not
pledge or in any way charge by way of security for any indebtedness any of the Products which are
the property of the Provider. The Customer shall insure the Products to the Price against “all
risks” to the reasonable satisfaction of the Provider until title in the Products passes from the
Provider.
Time of delivery shall not be of the essence. The Provider reserves the right to deliver Products
in instalments at its discretion.
The Provider shall not be liable to the Customer for any loss or damage (whether direct or indirect
or consequential) if it is delayed or prevented in whole or in part from delivering or installing
the Products. If the Customer refuses or fails to take delivery of the Products on the date of
delivery, the Provider shall be entitled to store the Products at the risk of the Customer and the
Customer shall (in addition to the Price) pay all costs and expenses of such storage and any extra
costs of carriage incurred.
The Provider’s delivery form must be signed by the Customer immediately following delivery
and/or installation as acknowledgement that at the time of delivery and/or installation the
Products were as outlined in the Order and functioned properly in all respects.
7. Payment
Any queries on a Provider’s invoice relative to a supply of Products must be made in writing before
the invoice falls due for payment, i.e. within 30 days of the invoice date.
The Provider may charge daily interest on any late payments under this Agreement at a rate equal to
8% per annum above the base-lending rate of Bank of Scotland.
All charges under this Agreement (including Maintenance Charges and/or the Price) are subject to
Value Added Tax (VAT) at the prevailing rate, unless agreed otherwise with the Provider in writing.
The Provider shall be entitled to set off any amounts owed to the Customer against any sums due
under this Agreement, including the Maintenance Charge and/or the Price. The Customer shall have
no right of set-off under this Agreement.
Punctual payment is of the essence. Payments are to be made by direct debiting of the Customer’s
account by the Provider unless agreed otherwise.
On each occasion that a cheque or Direct Debit is returned unpaid the Customer will pay an
administration charge of £35 plus VAT.
8. Replacement Parts
Under any Maintenance Package provided to the Customer under this Agreement, the Provider will
supply, at prevailing list price + VAT, all parts and equipment which the Provider deems necessary
for maintaining the Equipment in good operating condition. The Customer will pay for any such parts
and equipment + VAT at the prevailing rate, and payment shall be made within 30 days of
installation. Should the Customer be unwilling to pay for the parts and equipment required, the
Provider shall be released from its obligation under this Agreement to maintain the relevant part
of the Equipment. All parts removed for replacement shall become the property of the Provider.
9. Intellectual Property Rights
The Customer acknowledges that the Customer shall have no rights to any intellectual property
rights in the Services arising as a result of any use of the Services.
Any and all intellectual property rights used or embodied in or in connection with the Service
shall be and shall remain the sole property of the Provider or the Provider's licensors. No title
or intellectual property rights therein or in any modification or extension thereof shall pass to
the Customer unless specifically stated in this Agreement.
The Customer acknowledges such title, interest and rights and the Customer shall not take any
action to jeopardize, limit or interfere in any manner with Provider's (or any third party
suppliers') title, interests or rights with respect to the Service, including but not limited to,
using Provider's trademarks or trade name.
Where software is provided to enable the Customer or to use the Services, the Provider grants the
Customer, for the duration of this Agreement, a non-exclusive, non-transferable license to use the
software for that sole purpose.
Except as permitted by applicable law as expressly permitted under this Agreement, the Customer
must not, without the Provider’s prior written consent, copy, de-compile or modify the software nor
copy any manuals or documentation provided with the Services.
10. Warranties and Liability
Where available, the Provider shall endeavour (but shall not be obliged) to register the
Customer with the relevant manufacturer(s) as “end user” of the Products in order that the
Customer can benefit from the manufacturer(s) warranty (or balance thereof) in relation to the
same. Where such registration is not available or not carried out by the Provider for
whatever reason, the remaining provisions of this clause 10 shall apply to the Products.
The Services and/or Products will be provided without warranty or representation of any kind,
whether express or implied and the Provider disclaims and excludes all such warranties and
representations including without limitation any warranty or representation that the Services
and/or Products are free of defects, of satisfactory quality, fit for a particular purpose or
non-infringing of third party rights. The Customer accepts all risks and liabilities associated
with the use of the Services and/or Products.
Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting
from the negligence of either party or their servants, agents or employees.
Neither party shall be liable in contract, delict, pre-contract or other representations (other
than fraudulent or negligent misrepresentations) arising out of or in connection with this
Agreement for:
• any economic losses (including, without limitation, loss of revenues, profits, contracts, or
business); or
• any special, indirect or consequential losses or any destruction of data, arising out of or in
connection with the provisions of this Agreement.
In delivering the Services, the Provider shall be obliged to use reasonable endeavours to resolve
any Customer system downtime but shall have no liability for any economic losses (including,
without limitation, loss of revenues, profits, contracts, or business) or special, indirect or
consequential losses suffered by the Customer during any such period of downtime, regardless of the
duration of the same.
The Provider's liability to the Customer in contract, delict, negligence, pre-contract or other
representations arising out of or in connection with this Agreement or the performance or
observation of its obligations under this Agreement shall be limited in aggregate to the
Maintenance Charges and/or Price paid, by the Customer under this Agreement.
Each provision of this Agreement, excluding or limiting liability, operates separately. If any part
is held by a court to be unreasonable or inapplicable, the other parts shall continue to apply.
The Customer indemnifies the Provider and its suppliers against any claims or damages arising from
the Customer’s access to or use of the Services and/or Products and any information, data or
material produced, transmitted or downloaded on the Services and/or Products.
11. Force Majeure
If either party is unable to perform any obligation under this Agreement because of a matter beyond
that party's reasonable control such as lightning, flood, exceptionally severe weather, fire,
explosion, war, civil disorder, industrial disputes (whether or not involving that party's
employees), or acts of local or central Government or other competent authorities or events beyond
the reasonable control of that party's suppliers, the party will have no liability to the other for
that failure to perform.
If any of the events detailed in this clause 11 continue for more than 3 months the Provider may
serve notice on the Customer terminating this Agreement.
12. Suspension & Termination
Subject to Clause 2 hereof, this Agreement may only be cancelled by the Customer with the express
written consent of the Provider and the Provider shall be entitled to be paid in full for any
related losses and costs it incurs.
The Provider may terminate this Agreement or the Services provided under it immediately, on notice,
if the Customer:
• commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the
breach within 14 days of a written notice to do so;
• commits a material breach of this Agreement which cannot be remedied;
• is repeatedly in breach of this Agreement; or
• Is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or
composition with or assignment for the benefit of their creditors, or goes into voluntary
(otherwise than for reconstruction or amalgamation), or compulsory liquidation or a receiver or
administrator is appointed over their assets.
The Provider may, without penalty or any liability to the Customer, terminate its obligation to
provide Products under this Agreement it immediately, on notice, for any of the reasons listed
above (in this clause 12) or for any other reason.
The Provider may re-assign its obligations under this Agreement at its own discretion giving notice
to the Customer of its intentions such that the Maintenance Charge and/or Price and the Services
and /or Products are substantially unchanged.
If any of the events detailed in this clause 12 occur as a result of Customer default, the Provider
may suspend the Services and/or delivery of the Products without prejudice to its right to
terminate this Agreement. Where the Services are suspended pursuant to this clause 12 the Customer
must pay the Maintenance Charge until this Agreement is terminated.
The Provider will be entitled to suspend the Services and/or it’s obligation to provide the
Products or terminate the Agreement where the Provider, in its absolute discretion, believes the
Customer is in breach of any provisions of the Agreement.
Upon termination of this Agreement for whatever reason, the Customer shall immediately stop using
the Services and the Customer’s right to use the Services shall immediately terminate. Further,
the Customer shall be obliged (at the Provider’s sole option) to either return any Products not yet
paid for to the Provider or, to pay the Provider a sum equal to the outstanding Price within 30
days of the termination of the Agreement.
If either party delays in acting upon a breach of this Agreement that delay will not be regarded as
a waiver of that breach. If either party waives a breach of this Agreement that waiver is limited
to that particular breach.
13. Confidentiality
The parties will keep in confidence any information (whether written or oral) of a confidential
nature (including software and manuals) obtained under or in connection with this Agreement or the
Services and will not without the written consent of the other party disclose that information to
any person (other than their employees or professional advisers, or in the case of the Provider,
the employees of a Provider group company or their suppliers, who need to know the information).
This Clause 13 shall not apply to:
• any information, which has been, published other than through a breach of this
Agreement;
• information lawfully in the possession of the recipient before the disclosure under this
Agreement took place;
• information obtained from a third party who is free to disclose it; and
• information, which a party is, requested to disclose and, if it did not, would be required by
law to do so.
This Clause 13 will survive suspension and/or termination of this Agreement for whatever reason.
The Customer agrees that Provider may make reasonable references to the Customer as a consumer of
the Services and/or Products in its press releases, advertising and promotional material.
14. Data Protection
Provider and the Customer each agree to comply with their respective obligations under applicable
data protection legislation and maintain all relevant registrations, including (in relation to the
Customer) such registrations and consents as the Customer should obtain and maintain to enable the
Provider to process personal data in connection with the performance by the Provider of its
obligations under this Agreement.
The Customer agrees that the Provider may put their name and other details obtained from the Order
into a computerised directory for internal use and to enable the Provider to provide the Services
and/or Products.
Rights of subject access will be in accordance with the Data Protection Act 1998 and upon request
in writing and payment of the appropriate fee.
15. Notices
Notices to be given to the Provider under this Agreement must be in writing and may be delivered by
hand, or by courier or by recorded first class post to the Provider’s registered office address.
Notices sent by email will only be accepted after acknowledgment of acceptance has been sent to
the Customer.
16. General Provisions
The Agreement will constitute the entire agreement between the parties and will supersede all prior
and contemporaneous agreements, communications and representations (except for fraudulent or
negligent misrepresentations) whether oral or written, between the parties.
In the event of a dispute between the parties, the parties will attempt in good faith to resolve
the dispute or claim arising out of or relating to the Agreement promptly through negotiations
between themselves or their respective representatives.
The Customer shall indemnify the Provider against any costs, expenses or losses incurred or
sustained by the Provider in exercise of its rights under this Agreement.
If any provision of the Agreement (whether in part or in whole) is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable the remaining provisions of the Agreement
shall remain in full force and effect.
Any waiver of any breach of any provision of the Agreement will not constitute a waiver of any
prior, concurrent or subsequent breach of the same or any other provisions of the Agreement.
The Customer may not assign or otherwise transfer, by operation of law or otherwise, the Agreement
or any rights or obligations therein without the prior express written consent of Provider.
The headings to the sections of this Agreement are for convenience only.
The Agreement shall be governed by the laws of Scotland and the parties submit to the exclusive
jurisdiction of the Scottish Court.