Conditions of sale

1.         Definitions
2.         Provision of Equipment
3.         Acceptance
4.         Customer’s Obligations
5.         Risk and Ownership
6.         Terms
7.         Guarantee
8.         Charges
9.         Changing the Contract
10.        Ending the Contract
11.        Limitation of Liability
12.        Intellectual Property and Confidentiality
13.        General Terms
            ●  Matters beyond Reasonable Control
            ●  Escalation and Dispute Resolution
            ●  Transfer of Rights and Obligations
            ●  Severability
            ●  Survival
            ●  Entire Agreement
            ●  Waiver
            ●  Rights of Third Parties
            ●  Notices
            ●  Non Solicitation
            ●  Law and Jurisdiction
            ●  Data Protection
            ●  Customer’s Instructions

CONDITIONS

1.         DEFINITIONS

1.1        In the Contract the following terms have the meanings shown next to them:

2.         PROVISION OF THE EQUIPMENT

2.1       Site Preparation and Access

2.1.1     The Customer agrees to prepare the Site according to any instructions BT Engage IT may give and to provide BT Engage IT with reasonable access to the Site for the purposes of the Contract.

2.1.2     The Customer will obtain any permission needed, including permission for any changes to the Site.

2.1.3     The Customer and BT Engage IT will meet each other’s reasonable safety and security requirements when on the Site.  If the Customer or BT Engage IT damages the other’s equipment it must pay for any repair or replacement needed.  This does not apply where the damage results from normal use.

2.1.4     The Customer is responsible for making the Site good, after any work undertaken by BT Engage IT at the Site, including putting items back and for re-decorating.

2.2        Delivery and Installation

2.2.1     BT Engage IT will use its reasonable endeavours to supply and, when ordered, install and/or configure the Equipment by any date agreed with the Customer, but all dates are estimates.

2.2.2     If the Customer delays or prevents the delivery or installation of the Equipment, BT Engage IT may apply reasonable additional charges and/or claim a reasonable extension to any date agreed under clause 2.2.1.  BT Engage IT will notify the Customer in writing of any additional charges, which the Customer will pay directly to BT Engage IT.

2.2.3     The Customer will take delivery of and sign for the Equipment on the date of delivery as notified by BT Engage IT.   On the day of delivery the Customer will notify BT Engage IT if:

(a) the quantity of packages delivered is different to the quantity shown on the delivery note; and

(b) there is any damage to the packages or boxes.

2.2.4     The Customer must notify BT Engage IT in writing of any damage to any of the Equipment, other than damage caused by any act or omission by the Customer, or any other discrepancy in the Equipment delivered within 5 working days from the date of delivery.  Such notification should include model and part numbers of affected Equipment and identity of any software application. 

2.2.5     Subject to clause 7, BT Engage IT shall have no further liability to the Customer where the Customer has not notified BT Engage IT as set out in clause 2.2.4.

2.2.6     Where there is a delay in the delivery of the Equipment or part of the Equipment (including supplies on acceptable terms) by a manufacturer or distributer, BT Engage IT may propose to the Customer a substitution of another product of a similar specification to the Equipment or part of the Equipment.

2.3      Returns

2.3.1     The Customer shall follow BT Engage IT’s instructions when returning Equipment that it has notified to BT Engage IT as set out in paragraph 2.2.4 above.  The Customer will ensure that Equipment is returned in “as new condition”, in its original packaging and that the seal is not broken for any software, unless otherwise agreed by BT Engage IT in writing or if the software is faulty.  BT Engage IT may at its option either reject any returns that are not in accordance with its instructions or that are incomplete, or charge a restocking fee.

2.3.2    BT Engage IT will raise a credit note for all returns that are not rejected in accordance with clause 2.3.1.

2.3.3    BT Engage IT’s sole liability for incomplete or damaged Equipment on arrival will be to replace the Equipment at its own expense.

3.        ACCEPTANCE

3.1       If BT Engage IT installs the Equipment, BT Engage IT will test it to ensure that it is ready for use in accordance with its established test procedures or programmes.  Acceptance of the Equipment by the Customer will take place on the earlier of:

(a)       the date when BT Engage IT notifies the Customer that the Equipment has passed BT Engage IT's tests and is ready for  use; or

(b)       the date when the Customer begins to use the Equipment; or

(c)       14 days from the initial agreed date of delivery where the Customer delays installation or re-schedules delivery for more than 14 days after the initial agreed date of delivery.

3.2       Subject to clause 1.2.4, if BT Engage IT does not install the Equipment, acceptance of the Equipment by the Customer will take place when the Customer takes delivery or possession of the Equipment.

4         CUSTOMER’S OBLIGATIONS

4.1       Until it has paid for the Equipment, the Customer will:

(a) keep the Equipment safe and only use it in accordance with any instructions BT Engage IT may give;

(b) only use or allow the Equipment to be used for any purpose for which it is designed;

(c) not claim to be owner of the Equipment and use its reasonable endeavours to ensure that the owner of the Site will not claim ownership of the Equipment, even if the Equipment is fixed to the Site;

(d) indemnify BT Engage IT against all claims and proceedings arising from the Customer’s use of the Equipment or if the Equipment is stolen or damaged as a result of the Customer’s negligence or gross misconduct.  The Customer will keep BT Engage IT informed of anything which may affect the rights of BT Engage IT, or involve BT Engage IT in any proceedings, loss or liability.

4.2       Where requested by BT Engage IT, Customer will promptly:

(a)       supply BT Engage IT with configuration details in written format confirming the Customer's exact requirements; and

(b)       provide BT Engage IT with all necessary information and assistance with regard to any aspect of the Equipment; 

BT Engage IT may apply reasonable additional charges and/or claim a reasonable extension to any date agreed under clause 2.2.1 if the Customer does not respond promptly to BT Engage IT’s request.  BT Engage IT will notify the Customer in writing of any additional charges, which the Customer will pay directly to BT Engage IT.

5         RISK AND OWNERSHIP

5.1       Where the Contract includes delivery or installation, risk passes to the Customer on delivery of the Equipment, but the Customer will not be liable for any loss or damage that is caused by BT Engage IT’s negligence.

5.2       Where the Contract does not include delivery or installation risk passes to the Customer when the Customer takes possession of the Equipment.

5.3       Ownership of the Equipment, (except for the Intellectual Property Rights) will pass to the Customer on payment in full of the charges as detailed on the Order Form.

5.4       Until payment in full, in the event of Bankruptcy or threatened seizure of the Equipment, the Customer will immediately notify BT Engage IT and BT Engage IT may take action to repossess the Equipment.  The Customer will also notify interested third parties of BT Engage IT's ownership of the Equipment.

6         TERMS

6.1      The parties acknowledge that these Conditions prevail over any terms and conditions where the Customer’s purchase order constitutes the Order Form.

7         GUARANTEE

7.1       BT Engage IT shall pass on to the Customer the benefits of any warranty or guarantee that it has obtained from its supplier on the same terms, provided that:

(a)       the Customer has accepted and paid in full for the Equipment;

(b)       the Equipment has been properly kept, used and maintained in accordance with the manufacturer’s or BT Engage IT’s instructions, if any, and has not been modified except with BT Engage IT’s or manufacturer’s written consent; or

(c)        the fault is not due to accidental or wilful damage; interference with or maintenance of Equipment by persons other than BT Engage IT or the Equipment manufacturer.

7.2        This guarantee does not cover fair wear and tear.

7.3        If the Customer reports a fault and BT Engage IT finds there is none or that the Customer has caused the fault, BT Engage IT may apply a charge. 

7.4        Except where the Customer relies on BT Engage IT’s written advice, it is the Customer’s responsibility to satisfy itself as to the suitability of Equipment for its needs.

7.5        BT Engage IT does not warrant that the Software supplied under the Contract will be free of all faults or that its use will be uninterrupted.  BT Engage IT will pass on to the Customer the benefits of any warranty or guarantee that it has obtained from the Software supplier on the same terms.

7.6        BT Engage IT will use its reasonable endeavours to remedy any faulty work that it has done provided that the Customer notifies BT Engage IT in writing of the fault within seven days after the work has been completed.

8          CHARGES AND PAYMENT

8.1        The charges are as detailed on BT Engage IT’s invoice.   

8.2        BT Engage IT will send invoices for any charges to the address as set out in the Order Form unless otherwise notified by the Customer to BT Engage IT.

8.3        Unless otherwise stated, charges:

(a)        do not include delivery or installation or configuration.

(b)        are exclusive of VAT which is chargeable at the applicable rate.

8.4        As part of its credit management procedures BT Engage IT may

(a)        require the Customer to pay a deposit; and/or

(b)        carry out a credit vet of the Customer.  The Customer agrees to provide BT Engage IT with any information that BT Engage IT may reasonably require for this.

8.5        Payment is due 30 days from the date of the invoice unless otherwise agreed in writing.

8.6        Disputed Bills

8.6.1     If the Customer disputes any charge on an invoice the Customer will notify BT Engage IT in writing within 14 days of the date of the bill with all relevant information.  Where the disputed amount is:

(a)        less than 5% of the total bill, the Customer will pay the full amount of the bill; or

(b)        more than 5% of the total bill, the Customer must pay the amount not in dispute.   

Any disputes will be resolved promptly and the resolved amount if any is payable immediately.

8.7        Late Payment

8.7.1     If BT Engage IT does not receive payment by the due date, BT Engage IT may charge the Customer daily interest on late payments at a per annum rate equal to 7% above the base lending rate of the European Central Bank for the period beginning on the date on which payment is due and ending on the date on which payment is made. 

8.7.2     If the Customer does not pay any invoice, BT Engage IT may instruct a debt collection agency to collect payment (including any interest) on its behalf. If BT Engage IT instructs a debt collection agency, the Customer must pay BT Engage IT an additional sum to cover the reasonable costs incurred by BT Engage IT in instructing the debt collection agency.

8.7.3     If any sum owed by the Customer to BT Engage IT under the Contract or any other contract the Customer has with BT Engage IT is not paid by the due date, BT Engage IT may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with BT Engage IT.

9.         CHANGING THE CONTRACT

9.1        The Contract cannot be varied without the written agreement of the parties.

10.       ENDING THE CONTRACT

10.1      BT Engage IT may end the Contract at any time by giving notice to the Customer:

(a)        before BT Engage IT delivers the Equipment or the Customer takes possession of the Equipment on 7 days written notice to the Customer;

(b)        with immediate effect if the Customer:

            (i) breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by BT Engage IT to do so; or

            (ii) suffers Bankruptcy.

10.2      The Customer may:

(a)        cancel an order prior to delivery by giving notice to BT Engage IT and if so agrees to pay BT Engage IT’s cancellation charge which may include

            (i) BT Engage IT’s charges for order processing and management; and/or,

            (ii) BT Engage IT’s charges for Equipment returns; and/or

            (iii) The full charges for the Equipment and any Software; and/or BT Engage IT will try to keep such charges to a minimum.

            (iv) Where the Customer orders installation, BT Engage IT will apply charges as follows

(b)        end the Contract if:

            (i) BT Engage IT materially breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by the Customer to do so; or

            (ii) insolvency proceedings are brought against BT Engage IT or BT Engage IT makes an arrangement with its creditors or a receiver, an administrative receiver or an administrator is appointed over any of BT Engage IT’s assets or BT Engage IT goes into liquidation or a corresponding event under Scottish Law.

11.        LIMITATION OF LIABILITY

11.1      Neither the Customer nor BT Engage IT excludes or restricts its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by law.

11.2      Subject to Clause 11.1, neither party shall be liable to the other or to any third party, whether in contract, tort, under statute or otherwise (including in each case negligence) for any of the following types of loss or damage arising under or in relation to the Contract or any part of it:

(a)        any loss of profits, business contracts, anticipated savings, goodwill, or revenue; and/or

(b)        any loss or corruption or destruction of data; and/or

(c)        any special, indirect or consequential loss or damage whatsoever.

whether or not that party was advised in advance of the possibility of such loss or damage.

11.3      Subject to clauses 11.1, and 11.2, the Customer and BT Engage IT accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss to a value not to exceed:

(a)        £2,000,000 for loss of or damage to physical property; and

(b)        for all other loss or damage, the greater of either

            (i) £10,000; or
            (ii) 125% of the amounts paid by the Customer under the Contract.

11.4      Clause 11 will not apply to any obligation to pay charges.

11.5      Subject to paragraph 7 and with the exception of the condition and warranties implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, BT Engage IT excludes all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the provision of Equipment.

11.6      Each part of this clause operates separately.  If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause shall continue to apply.

12.        INTELLECTUAL PROPERTY AND CONFIDENTIALITY

Intellectual Property

12.1      Except as expressly set out in the Contract, the Customer and BT Engage IT do not acquire any rights or licences to the other’s Intellectual Property Rights.

12.2      If the Customer is supplied with Software licensed by third parties who require the Customer to accept their terms of use, the Customer must keep to those terms.

12.3      Except as permitted by applicable law or as expressly permitted under the Contract the Customer must not, without BT Engage IT’s prior written consent, copy, de-compile or modify any Software, copy manuals or documentation or permit anyone else to do so.

Confidentiality

12.4      Except to the extent any disclosure is required by law BT Engage IT and the Customer will keep in confidence any information, whether written or oral, of a confidential nature obtained under or in connection with the Contract.  The Customer and BT Engage IT will not, without the consent of the other, disclose such information to any person other than:

(a)        their Group Company employees or professional advisers who need the information in order for the Customer or BT Engage IT to fulfil its obligations under the Contract; or

(b)        in the case of the Customer, its employees to the extent necessary to use  the Equipment;

(c)        in the case of BT Engage IT, the employees or professional advisers of its suppliers who need the information in order for BT Engage IT to fulfil its obligations under the Contract.

12.5      Information will not be treated as confidential if it is:

(a) in the public domain other than in breach of the Contract; or

(b) lawfully in the possession of the Customer or BT Engage IT before disclosure has taken place; or

(c) obtained from a third person who is free to disclose it; or

(d) replicated independently by someone without access or knowledge of the Information.

12.6      Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by BT Engage IT in connection with the Contract the Customer will:

(a)        notify BT Engage IT immediately of the request; and

(b)        give BT Engage IT at least five working days to make representations.

13.        GENERAL TERMS

13.1      Matters Beyond Reasonable Control

(a)        If the Customer or BT Engage IT is unable to perform, or is delayed in performing, any obligation under the Contract because of something beyond its reasonable control including act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes or acts or omissions of local or central government or other competent authorities, or beyond the reasonable control of its suppliers, it will have no liability to the other for that failure or delay in performing.

(b)        If any of the events detailed in clause 13.1(a) continue for more than three months the Customer or BT Engage IT may end the Contract in whole or part by written notice to the other.

13.2      Escalation and Dispute Resolution

(a)        BT Engage IT will try to work through any dispute that the Customer may have with BT Engage IT.  If this does not resolve the dispute then the Customer may refer the matter to the relevant dispute resolution service as set out in clause 13.2(b).

(b)        Any dispute must be raised in writing with the Customer’s or BT Engage IT’s representative as appropriate giving all relevant details including the nature and extent of the dispute.  The Customer and BT Engage IT will use reasonable endeavours to resolve any dispute as follows:

            (i) a dispute which has not been resolved by the Customer's or BT Engage IT’s representative within 14 days of being raised may be referred by the Customer or BT Engage IT to the first level by written notice to the other; and

            (ii) if the dispute is not resolved at the first level within 14 days of referral, the Customer or BT Engage IT may refer the dispute to the second level by written notice to the other.

The Customer’s and BT Engage IT’s representatives at the first and second levels are as notified by the Customer and BT Engage IT to the other from time to time.
 
(c)        Nothing in this clause 13.2 shall prevent the Customer or BT Engage IT from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.

Transfer of Rights and Obligations

13.3      The Customer and BT Engage IT may not transfer any of their rights or obligations under the Contract without the written consent of the other, except that:

(a)  The Customer may transfer its rights or obligations or both to a Group Company with the written consent of BT Engage IT, such consent not to be unreasonably withheld or delayed; and

(b)  BT Engage IT may transfer its rights or obligations or both to a Group Company without consent provided that it notifies the Customer that it has done so.

Severability

13.4      If any term of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if the Contract had been made without the invalid, illegal or unenforceable terms.

Survival

13.5      Clauses 8.7.2 and 12.2 will survive the termination or expiry of the Contract and clauses 12.4 and 12.5 will survive the termination or expiry of the Contract for two years.   

Entire Agreement

13.6    (a)     The Contract contains the entire agreement between the Customer and BT Engage IT and replaces all previous written or oral agreements relating to its content.

(b)       The Customer and BT Engage IT agree that:

          (i) they have not been induced to enter into the Contract by, nor have they relied on, any statement, representation, warranty or other assurance not expressly incorporated; and

          (ii) in connection with the Contract their only rights and remedies in relation to any statement, representation, warranty or other assurance are for breach of the Contract and that all other rights and remedies are excluded. 

(c)        The terms of clauses 13.6(a) and 13.6(b) will not affect the rights or remedies of the Customer and BT Engage IT for any fraudulent misrepresentation.

(d)        If this Contract contains any obvious error, this Contract will be varied to reflect the true intent of the parties.

Waiver

13.7      A failure or delay by the Customer or BT Engage IT to exercise any right or act upon a breach under the Contract will not be a waiver of that right or breach. If the Customer or BT Engage IT waives a right or breach of the Contract, that waiver is limited to the particular right or breach.

Rights of Third Parties

13.8      A person who is not the Customer or BT Engage IT (including an employee, the officer, agent, representative or subcontractor of the Customer or BT Engage IT) has no right under Contracts (Rights of Third Parties Act 1999) to enforce any term of the Contract.  This does not affect any right or remedy that exists or is available apart from that Act.

Notices

13.9    Notices given under the Contract must be in writing and delivered to the following addresses:

           (a) to BT Engage IT at the address shown on the invoice or any address (including email address) which BT Engage IT provides to the Customer for this purpose; or

           (b) to the Customer at the address to which the Customer asks BT Engage IT to send invoices, the address of the Site or, if the Customer is a limited company, its registered office or its email address.

This clause does not apply to notices given under clause 8.2.

Non Solicitation

13.10    The Customer acknowledges that all BT Engage IT’s personnel (including sub-contractors and Group Company personnel) are under a restrictive covenant, which prohibits such personnel  and sub-contractors  from taking up a position with the Customer for a period between three and six months from the employee’s last day of employment (according to the contract of the particular employee) or retainer.  Consequently the Customer agrees that for such period from the conclusion of this Contract it shall not solicit for employment, nor employ, whether as employee or independent contractor, any personnel or sub-contractor who is  subject to such a restriction for as long as the restriction remains valid.

Law and Jurisdiction

13.11    The Contract is governed by the law of England and Wales and is subject to the non-exclusive jurisdiction of the English courts.

Data Protection

13.12    The Customer and BT Engage IT will comply with their respective obligations under the Data Protection Act 1998 and any data protection, privacy or similar laws that apply to any personal data processed in connection with the Contract.  The Customer and BT Engage IT will provide such help and co-operation as is reasonably necessary or requested by the other to enable compliance with this clause.

Customer’s Instructions

13.13    BT Engage IT may take instructions, and receive acknowledgment for delivery of the Equipment, from a person whom it thinks, with good reason, is acting with the Customer’s permission.