Terms and Conditions of sale
Notes: VisiPoint is a trading name of LamasaTech Ltd. – a company registered in England and Wales (registration number 7079886);
TERMS AND CONDITIONS OF SALE
Please read these Terms and Conditions carefully, which shall apply to all contracts that LamasaTech may enter into from time to time for the supply to the Customer of Services provided or to be provided, Equipment sold or to be sold and/or Software licensed or to be licensed. The definitions and the rules of interpretation set out in clause 20 shall apply to these Terms and Conditions and all Contracts created in accordance with them.
1. Formation of Contract
1.1 These Terms and Conditions shall apply to, and be incorporated into, each Contract. No addition to, variation of, exclusion or attempted exclusion of any term of a Contract shall be binding on LamasaTech unless it is in writing and signed by a director of LamasaTech. The parties agree that these Terms and Conditions will prevail over any inconsistent terms and conditions contained in or referred to in, the Customer’s purchase order, confirmation of order or specification, or as may otherwise be implied by law, trade, custom practice or a course of dealing.
1.2 The Customer’s purchase order constitutes an offer by the Customer to purchase the Products specified in it on the basis of the Offer Document, these Terms and Conditions and any Supplemental Terms (if any) (Contract Terms); accordingly, the earlier of the execution of the Offer Document by the parties, or LamasaTech’s commencement or execution of work pursuant to the Offer Document, shall establish a Contract for the supply and purchase of those Products in accordance with the Contract Terms.
1.3 For the avoidance of doubt, where the relevant Offer Document or agreement has not been signed by either (or both) of the Customer and LamasaTech, the Contract Terms will nevertheless apply to the Contract provided that the Customer has had prior notice of them (regardless of whether the Customer has indicated its acceptance in writing). By instructing LamasaTech to supply any Products and/or by paying any Charge(s) or invoice(s) of LamasaTech, whether set out in the Contract or otherwise, the Customer indicates its acceptance of the Contract Terms.
1.4 The supply of certain Products by LamasaTech are subject to Supplemental Terms which will (where applicable) form part of the Contract and will supplement and (unless expressly stated otherwise in the relevant Supplemental Terms) incorporate these Terms and Conditions. In the case of a conflict or ambiguity between: (i) the Offer Document; (ii) any Project Plan comprised within an Offer Document; (iii) any applicable Supplemental Terms; and (v) the Terms and Conditions, then a term contained in a document higher in the list (starting at (i)) shall have priority over one contained lower in the list (ending at (v)).
2. Specification and Change Control
2.1 Any Products to be supplied by LamasaTech shall be supplied by the means and in accordance with the timetable set out in the Offer Document. Where no means are specified, the relevant Products shall be supplied by such means as LamasaTech determines appropriate and where no timetable is specified, the relevant Products shall be supplied within a reasonable time. Whilst LamasaTech will use its reasonable endeavours to provide or (as the case may be) deliver the relevant Products by any date or within any period agreed upon, such dates and periods are estimates only, given in good faith, and LamasaTech will not be liable for any failure to deliver by or within such a period nor shall delays in the delivery of a Contract entitle the Customer to refuse to take delivery or otherwise accept any Products. Time for delivery shall not be of the essence of the Contract.
2.2 The description of any Product contained in any order form, invoice, descriptive matter, specifications, catalogue or advertising material published or issued by LamasaTech is for identification only and the use of such description will not constitute a sale by description. Any typographical or other error or omission in any such literature or any other document issued or provided by LamasaTech may be corrected by LamasaTech without any liability on the part of LamasaTech.
2.3 If at any time after the acceptance of a Contract pursuant to clause 1.2, the scope of a Product changes or if either party wishes to change the scope of the same, it shall submit details of the change or the requested change to the other in writing. If either party identifies or requests a change to the scope or execution of a Product, LamasaTech shall, within a reasonable time, provide a written estimate to the Customer of:
- the likely time required to implement the change;
- any variations to the Charges arising from the change;
- the likely effect of the change on the Project Plan; and
- any other impact of the change on the terms of the Contract.
- If LamasaTech identifies or requests a change to the scope of a Product, the Customer shall not unreasonably withhold or delay consent to it. Any request by the Customer for the cancellation or reduction of the scope of a Product to be supplied by LamasaTech to the Customer will only be accepted at the discretion of LamasaTech and in any case on the condition that any costs or expenses incurred by LamasaTech up to the date of such cancellation or variation (and all loss or damage resulting to LamasaTech by reason of such cancellation or variation and including, for the avoidance of doubt, the payment identified in clause 6) will be paid by the Customer to LamasaTech forthwith. Acceptance of such cancellation or variation will only be binding on LamasaTech if in writing and signed by a director of LamasaTech.
- If the Customer wishes LamasaTech to proceed with the change, LamasaTech has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
3. Prices
3.1 Unless otherwise stated in writing, quotations are valid for 14 days from the date of issue and are exclusive of:
3.1.1 VAT and any other relevant taxes which LamasaTech shall add to its invoices at the appropriate rate from time to time; and
3.1.2 any chargeable expenses and disbursements which are incurred by LamasaTech personnel on behalf of the Customer including but not limited to hotels, subsistence, travelling, mileage at 45p per mile, supplies and the cost of any materials or services reasonably and properly provided by third parties required by LamasaTech for the supply of any Products. Such expenses, materials and third party services shall be invoiced by LamasaTech.
3.2 Subject to 15.2.2, LamasaTech may:
3.2.1 where the Offer Document relates to Services for the support of equipment and software (including any Equipment and Software) (“Support Services”), at any time by giving the Customer fourteen (14) days written notice, increase its prices to take account of any matter or matters that LamasaTech consider to be a significant change in the scope, complexity or scale of the Support Services and such increased prices ruling at the date LamasaTech notifies the Customer of the change in the scope of the Support Services shall be substituted for the previous Contract price; and/or
3.2.2 where the Offer Document relates to Support Services and includes an Initial Term, at any time after the first anniversary of the Commencement Date, LamasaTech may increase the Charges by giving the Customer not less than 30 days’ prior written notice provided that the increases shall be no more frequent than once in any 12-month period; and/or
3.2.3 at any time by giving the Customer fourteen (14) days’ written notice, increase its prices to take account of any increase in the direct cost to LamasaTech of supplying the Products (including, but not limited to, any change in telecommunication provider rates or Third Party Software Vendor licence fees or other third party costs) and such increased prices ruling at the date of supply of the relevant Products by LamasaTech shall be substituted for the previous Contract price.
4. Payment
4.1 The Customer shall pay the Charges to LamasaTech in accordance with the Contract Terms and:
4.1.1 Clause 4.2 shall apply if Services are to be provided on a time-and-materials basis; and
4.1.2 Clause 4.3 shall apply if Products are to be provided for a fixed price.
The remainder of this clause 4 shall apply in either case.
4.2 Where the Services are provided on a time-and-materials basis:
4.2.1 the Charges payable for the Services shall be calculated in accordance with LamasaTech’s agreed daily fee rates (as amended from time to time);
4.2.2 LamasaTech’s agreed daily fee rates are calculated on the basis of Normal Working Hours;
4.2.3 LamasaTech shall be entitled to charge at an overtime rate for part days and for time worked by members of the project team outside of Normal Working Hours on a pro-rata basis. Overtime will be calculated by multiplying LamasaTech’s agreed time-based overtime charging rates (as set out in the Offer Document and/or notified by LamasaTech to the Customer from time to time) by the time spent by LamasaTech’s personnel performing the Services; and
4.2.4 LamasaTech shall invoice the Customer monthly in arrears for its Charges for time and materials, subject to any cap where the Services have been agreed in writing by the parties to be provided on a capped time-and-materials basis (together with expenses and VAT where appropriate) for the month concerned.
4.3 Where Products are provided for a fixed price, the price for the Products shall be the amount set out in the Offer Document or in LamasaTech’s quotation. Where the price envisages deposit payments, payment in instalments (which LamasaTech may refer to as a “payment plan”) and/or at Project Milestones, the Charges shall (unless otherwise agreed in writing) be paid to LamasaTech in advance, in the instalments as set out in the Offer Document or on it achieving the corresponding Project Milestone as applicable. On achieving a Project Milestone, LamasaTech shall invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
4.4 Where Rented Equipment is being provided, LamasaTech shall invoice the Customer monthly in arrears for the relevant Rental Payments (together with expenses and VAT where appropriate) for the month concerned.
4.5 The Customer shall pay each invoice submitted to it by LamasaTech in full, and in cleared funds:
4.5.1 within fifteen (15) days of receipt; or
4.5.2 in accordance with such other payment terms as may be specified in the Offer Document.
Time for payment shall be of the essence of the Contract.
4.6 Without prejudice to any other right or remedy that LamasaTech may have, if the Customer fails to pay LamasaTech on the due date LamasaTech may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc (or at a rate of 3% in the event that the base rate of that bank is less than zero), accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment.
4.7 All payments payable to LamasaTech under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under a Contract.
4.8 All amounts due under a Contract shall be paid by the Customer to LamasaTech in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). LamasaTech may, without prejudice to any other rights it may have, set off any liability of the Customer to LamasaTech against any liability of LamasaTech to the Customer, whether such liability is present or future, liquidated or unliquidated, and whether or not either such arises under the Contract, another agreement between the parties, or otherwise.
5. Rented Equipment (“Fully Fledged Service”)
5.1 LamasaTech shall hire the Rented Equipment to the Customer for use at the Site(s) in accordance with the Contract Terms.
5.2 LamasaTech shall not, other than in the exercise of its rights under the relevant Contract Terms or applicable law, interfere with the Customer’s quiet possession of Rented Equipment.
5.3 The Rental Period for Rented Equipment starts on the relevant Rental Commencement Date for that Rented Equipment and shall continue for at least the duration of the Minimum Rental Period. Following the expiry of the Minimum Rental Period, the Rental Period shall continue thereafter, until either party gives to the other party notice to terminate (in accordance with the remainder of this clause 5.3). When the Customer wishes to terminate the Rental Period after the Minimum Rental Period, they shall do so by contacting LamasaTech’s rental desk and any such termination of the Rental Period will be effective from when LamasaTech issues an “off hire” reference number to the Customer. LamasaTech will issue an “off-hire” reference number within a reasonable time of the Customer’s notification but in any event no less than three (3) Business Days from the same.
5.4 Unless otherwise expressly agreed in writing, the Rental Payments have been calculated on basis that any hire services are capable of being performed to an agreed programme with uninterrupted access to the Site during Normal Working Hours and that the Site conforms to any required standards specified in the Offer Document. In the event the Customer requires performance of any hire services (including delivery of any Rental Equipment) outside of Normal Business Hours or the Site does not conform to the standards specified in the Offer Document, any additional costs or expenses incurred by LamasaTech (including but not restricted to the supply of any necessary services, waiting and traveling time) shall be paid for by the Customer in accordance with clause 4.5 upon receipt of LamasaTech’s invoice.
5.5 All Rented Equipment ordered in addition to those identified in the Offer Document will be charged for in addition to the Rental Payments, as will the costs of all tests, alterations, additions and all other work undertaken at the request of the Customer but not identified in the Offer Document. Those additional costs will be calculated by LamasaTech having regard to the rates and prices set out in its quotation or in the Offer Document or as otherwise agreed with the Customer and will be paid for by the Customer in accordance with clause 4.5 upon receipt of LamasaTech’s invoice.
5.6 Delivery of the Rented Equipment shall be made by LamasaTech or its Personnel. LamasaTech shall use its reasonable endeavours to effect Delivery by the date and time agreed between the parties, save that the dates and times shall be approximate only and time of delivery shall not be of the essence of any of the Contract Terms. Title and risk shall transfer in accordance with clauses 5.13 – 5.18 of these Terms and Conditions. The Customer hereby grants a licence to LamasaTech, its employees and sub-contractors (together with appropriate transport) to enter upon the Customer’s premises for the purpose of effecting Delivery and, where specified in the Offer Document, installing the Rented Equipment (Delivery Services).
5.7 If the Customer extends or delays the performance of the Delivery Services or fails to take delivery of any Rented Equipment at the agreed time or (if no time is agreed) within a reasonable time, then the Customer shall indemnify LamasaTech against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense suffered or incurred by LamasaTech as a result of such extension, delay or failure.
5.8 The Customer shall be responsible for the unobstructed access and, unless otherwise agreed in writing, for unloading and loading of the Rented Equipment at the Site, and any Personnel supplied by LamasaTech for such unloading and/or loading shall be deemed to be under the direction and control of the Customer. Such personnel shall for all purposes in connection with their employment or other engagement in the loading and/or unloading shall be regarded as the servants or agents of the Customer who alone shall be responsible for all claims arising in connection with unloading and/or loading of the Rental Equipment by, or with the assistance of, such Personnel.
5.9 The Customer is deemed to have knowledge of the Site and warrants that the condition of the Site or the place of delivery is suitable for the use of such Equipment. The Customer is responsible for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and any pavements, bridges, tunnels and roadways on or adjacent to the Site and the Customer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.
5.10 Where specified in the Offer Document (but not otherwise), LamasaTech shall install the Rented Equipment at the Site(s). The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Rented Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the Rented Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by LamasaTech, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
5.11 To facilitate Delivery and installation, except where otherwise stated in the Offer Document, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously. The Customer shall ensure that its premises and all plant and equipment which is used by LamasaTech’s employees or sub-contractors or with which they may come into contact or to which they may be exposed complies with the Health and Safety at Work Act 1974, all relevant statutory provisions (as defined in that Act) and all other obligations imposed by statute or common law relating to health and safety and will indemnify LamasaTech against any loss, damage or expense in respect of any failure by the Customer to comply with its obligations.
5.12 Unless notification in writing to the contrary is received by LamasaTech from the Customer within twenty four (24) hours of the Rented Equipment being Delivered and installed at the Site, the Rented Equipment shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with the Contract Terms and to the Customer’s satisfaction.
5.13 The Rented Equipment shall at all times remain the property of LamasaTech, and the Customer shall have no right, title or interest in or to the Rented Equipment (save the right to possession and use of the Rented Equipment subject to the Contract Terms).
5.14 The risk of loss, theft, damage or destruction of the Rented Equipment shall pass to the Customer on Delivery. The Rented Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Rented Equipment is in the possession, custody or control of the Customer (“Risk Period”) until such time as the Rented Equipment is redelivered to LamasaTech. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
5.14.1 insurance of the Rented Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as LamasaTech may from time to time nominate in writing;
5.14.2 insurance for such amounts as a prudent owner or operator of the Rented Equipment would insure for, or such amount as LamasaTech may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Rented Equipment; and
5.14.3 insurance against such other or further risks relating to the Rented Equipment as may be required by law, together with such other insurance as LamasaTech may from time to time consider reasonably necessary and advise to the Customer.
5.15 All insurance policies procured by the Customer shall be endorsed to provide LamasaTech with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon LamasaTech’s request name LamasaTech on the policies as a loss payee in relation to any claim relating to the Rented Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
5.16 The Customer shall give immediate written notice to LamasaTech in the event of any loss, accident or damage to the Rented Equipment or arising out of or in connection with the Customer’s possession or use of the Rented Equipment.
5.17 If the Customer fails to effect or maintain any of the insurances required under the Contract Terms, LamasaTech shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
5.18 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to LamasaTech and proof of premium payment to LamasaTech to confirm the insurance arrangements.
5.19 When the Rented Equipment hired is to be operated without the assistance of LamasaTech‘s engineer, operator or other LamasaTech Personnel, any breakdown or unsatisfactory working of any part of the Rented Equipment must be notified immediately to LamasaTech. Any claim for breakdown time will only be considered from the time and date of such notification.
5.20 The Customer shall not repair the Rented Equipment or permit the Rented Equipment to be repaired by anyone other than LamasaTech or any agent or contractor authorised by them in writing.
5.21 The Customer shall be responsible for all expense involved arising from any breakdown and all loss or damage incurred by LamasaTech due to the Customer’s negligence, misdirection or misuse of the Rented Equipment, whether by the Customer or his Personnel, customers or any other third party associated with the Customer, and for the payment of hire during the period the Rented Equipment is necessarily idle due to such breakdown, loss or damage. The Customer is responsible for the cost of spares and/or repairs due to theft, loss or vandalism of the Rented Equipment.
5.22 Without prejudice to the generality of clause 5.21, LamasaTech shall have no responsibility or liability for any stoppages or other failure or unavailability of the Rented Equipment other than for any failure or unavailability that arises as a direct result of LamasaTech’s negligence of breach of the Contract Terms. Without prejudice to the generality of the foregoing sentence, LamasaTech shall not have any responsibility or liability for any failure or unavailability of the Rented Equipment that arises as a result of causes outside LamasaTech’s control, including bad weather or ground conditions, nor shall LamasaTech be responsible for the cost or expense of recovering any Rented Equipment from soft ground.
5.23 Additionally, the Customer shall during the Rental Period and at all times when the Rented Equipment is within its possession or control:
5.23.1 ensure that the Rented Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed within the manufacturer’s rated capacity, and operated in a proper manner in accordance with any operating instructions provided by LamasaTech or the manufacturer;
5.23.2 take all such steps (including compliance with all safety and usage instructions provided by LamasaTech) as may be necessary to ensure, so far as is reasonably practicable, that the Rented Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
5.23.3 subject always to clause 5.21, maintain at its own expense the Rented Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (including replacing any parts or carrying out any remedial work that is expressly directed by LamasaTech or any agent or contractor authorised by them in writing);
5.23.4 obtain at its own cost all consents required to enable LamasaTech to carry out and complete the hire of the Rented Equipment and the Customer must comply with any conditions contained in the consents relating to the Rented Equipment and the supply of Services to the Site;
5.23.5 make no alteration to the Rented Equipment and shall not remove any existing component(s) from the Rented Equipment without the prior written consent of LamasaTech;
5.23.6 take all reasonable steps to become acquainted with the state and condition of the Rented Equipment and to keep LamasaTech fully informed of all material matters relating to the Rented Equipment. If such Equipment is continued in use in an unsafe or unsatisfactory state or environment, the Customer shall be solely responsible for any damage, loss, cost, expense or accidents whether directly or indirectly arising therefrom;
5.23.7 keep the Rented Equipment at all times at the Site(s) and shall not move or attempt to move any part of the Rented Equipment to any other location without LamasaTech’s prior written consent;
5.23.8 permit LamasaTech or its duly authorised representatives, agents or insurers to inspect, test, repair or replace the Rented Equipment at all reasonable times and for such purpose to enter upon the Site(s) or any premises at which the Rented Equipment may be located, and shall grant reasonable access and facilities for such inspection. Title and property in all substitutions, replacements, renewals made in or to the Rented Equipment shall vest in LamasaTech immediately upon installation;
5.23.9 provide all sufficient and accurate information requested by LamasaTech in a timely fashion to enable the proper performance of the hire of the Rented Equipment by LamasaTech so as not to delay or disrupt LamasaTech in performing its obligations under the Contract. LamasaTech shall be entitled to rely on the accuracy and sufficiency of all information provided to it by the Customer, and to make assumptions on the basis of such information, when hiring the Rented Equipment;
5.23.10 maintain operating and maintenance records of the Rented Equipment and make copies of such records readily available to LamasaTech, together with such additional information as LamasaTech may reasonably require;
5.23.11 not, without the prior written consent of LamasaTech, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Rented Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
5.23.12 not without the prior written consent of LamasaTech, attach the Rented Equipment to any land or building so as to cause the Rented Equipment to become a permanent or immovable fixture on such land or building. If the Rented Equipment does become affixed to any land or building then the Rented Equipment must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Rented Equipment from any land or building and indemnify LamasaTech against all losses, costs, charges, damages or expenses incurred as a result of such affixation or removal;
5.23.13 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of LamasaTech in the Rented Equipment and, where the Rented Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that LamasaTech may enter such land or building and recover the Rented Equipment both during the term of the Rental Period and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of LamasaTech of any rights such person may have or acquire in the Rented Equipment and a right for LamasaTech to enter onto such land or building to remove the Rented Equipment;
5.23.14 not suffer or permit the Rented Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Rented Equipment is so confiscated, seized or taken, the Customer shall notify LamasaTech and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Rented Equipment and shall indemnify LamasaTech on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
5.23.15 not use the Rented Equipment for any unlawful purpose;
5.23.16 to the extent that the Rented Equipment is involved in any accident resulting in injury to persons or damage to property, immediate notification must be given by the Customer to LamasaTech by telephone and confirmed in writing to LamasaTech no later than 24 hours after such telephone notification. In relation to any claim in respect of which the Customer is not bound to fully indemnify LamasaTech, no admission of liability, offer, promise of payment or indemnity shall be made by the Customer without LamasaTech’s prior written permission;
5.23.17 ensure that at all times the Rented Equipment remains identifiable as being LamasaTech’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Rented Equipment;
5.23.18 deliver up the Rented Equipment at the end of the Rental Period or on earlier termination of the Rental Period in accordance with clauses 5.24 and 5.25; and
5.23.19 not do or permit to be done anything which could invalidate the insurances referred to in clause 5.14.
5.24 At the end of the Rental Period (including upon any early termination of it) unless otherwise agreed in writing the Customer shall deliver up the Rented Equipment by either:
5.24.1 delivering it up to such address as LamasaTech requires; or
5.24.2 allowing LamasaTech’s representatives access to the Site(s) or any premises where the Rented Equipment is located for the purpose of removing and otherwise decommissioning it and paying as additional Charges all of LamasaTech’s costs and expenses for carrying out such removal and decommissioning.
5.25 If the Customer fails to deliver up the Rented Equipment in accordance with clause 5.24, then:
5.25.1 the Customer hereby grants a licence to LamasaTech, its employees and agents (together with appropriate transport) to enter upon the Customer’s premises and any other location where the Rented Equipment is still situated and to remove such Rented the Equipment; and
5.25.2 the Customer shall pay all of LamasaTech’s additional costs, charges, damages and expenses incurred as a result of the Customer’s failure to comply with its obligations pursuant to clause 5.24.
5.26 The Customer acknowledges that LamasaTech shall not be responsible for any loss of or damage to the Rented Equipment arising out of or in connection with any negligence, misuse, mishandling of the Rented Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify LamasaTech on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the Contract Terms relating to such Rented Equipment.
6. Third Party Contracts
6.1 If any payments due to LamasaTech in respect of a Product is to be paid by a third party then the Customer agrees that immediately on delivery of the Product in question the Customer will sign the acceptance note for the leasing company or other third party and will generally take all steps as may be necessary to ensure that payment is made to LamasaTech for the relevant Products in accordance with the Contract Terms.
6.2 It is agreed and acknowledged by LamasaTech and the Customer that:
6.2.1 in providing the Services and/or suppling Equipment and/or Rented Equipment to the Customer, LamasaTech may enter into binding contractual commitments (“Third Party Contracts”) on the Customer’s behalf with hardware and other manufacturers, telecommunication providers and other third parties (“Third Party Providers”);
6.2.2 the Customer acknowledges that Third Party Contracts create rights and obligations between LamasaTech and Third Party Providers; and
6.2.3 notwithstanding that the Customer is not a party to the Third Party Contracts, the Customer is and shall be at all times responsible and held liable for any and all costs in relation to all Custom Equipment (including any manufacturer’s costs and/or any other costs incurred by LamasaTech in manufacturing and/or customising any Equipment to the Customer’s design or specification), call and data charges, termination fees and any other charges and fees that may be charged by the Third Party Provider to LamasaTech in respect of Equipment, Rented Equipment or Services provided to the Customer pursuant to the Third Party Contracts (“Third Party Charges”) and the Customer undertakes to pay such sums on demand and on an indemnity basis and to defend, indemnify, keep indemnified and hold LamasaTech harmless against any and all third party claims, actions, and proceedings, and all losses (including loss of profit), damages, expenses and costs (including without limitation legal and other professional costs) associated with such Third Party Charges.
7. Software supply
7.1 Where Software supplied is Third Party Software, LamasaTech shall supply or otherwise make available to the Customer a copy of the Third Party Software Licence on request from the Customer, whether by means of the Third Party Software Vendor’s website or otherwise. In supplying any such Third Party Software Licence, LamasaTech shall be permitted to redact such information contained in the Third Party Software Licence as it deems reasonably necessary to protect its Confidential Information. The Customer shall be responsible for ensuring that the Customer’s use of the Third Party Software is properly licensed.
7.2 The parties acknowledge that the Third Party Software Licence will (in addition and without prejudice to any terms relating to the Third Party Software set out in the Offer Document) stipulate the Customer’s rights to use the Third Party Software, and the restrictions on the Customer’s use of the Third Party Software.
7.3 The Customer must abide by the terms of the Third Party Software Licence and any terms relating to the Third Party Software set out in the Offer Document and ensure that all persons using the Third Party Software supplied (or otherwise made available) by LamasaTech to the Customer abide by such terms.
7.4 The parties acknowledge that the Third Party Software Licence creates rights and obligations between the Customer and the Third Party Software Vendor, and that LamasaTech is not a party to the Third Party Software Licence.
7.5 LamasaTech shall as far as it is able pass on to the Customer the benefits of any Third Party Software Vendor warranties in relation to any Third Party Software. Save as provided in clause 7.6, LamasaTech gives no warranties or guarantees and makes no representations concerning the Software, and all such warranties, guarantees, representations, and all conditions and any other terms whatsoever implied by statute or otherwise, are hereby excluded from the Contract between LamasaTech and the Customer to the fullest extent permitted by applicable law.
7.6 Where the Software is created by the employees of LamasaTech as part of Software Development Services and where this clause 7.6 is expressly identified as being applicable in the Offer Document (but not otherwise), then LamasaTech warrants that the Project Deliverables in that Software will, at the date of Customer’s acceptance of the Software (in accordance with clause 8.2 below), and for thirty (30) days after that date, perform materially in accordance with the technical specification contained in the Offer Document. LamasaTech shall not be in breach of the warranty at this clause 7.6 to the extent that the breach of any such warranty arises from:
7.6.1 compliance by LamasaTech (or any third party acting on behalf of it) with the Customer’s written instructions; or
7.6.2 any modification of the Project Deliverables after delivery by LamasaTech to the Customer, if such modification was not made by and/or on behalf of LamasaTech, or with the written approval of LamasaTech; or
7.6.3 operation or use by the Customer or any third party of some or all of the Project Deliverables in combination with products, information, specifications, instructions, data, or materials not approved or provided by LamasaTech.
8. Commissioning and Acceptance Testing
8.1 Where acceptance testing is expressly envisaged as being applicable in the Offer Document (but not otherwise) then, prior to launch of a Product, LamasaTech shall undertake such acceptance tests in relation to the relevant Product as it deems fit, and as may be reasonably required by the Customer. The acceptance criteria for such tests shall be objective. The Customer shall promptly provide such assistance as LamasaTech may reasonably require in order to complete such acceptance tests. In the event that any acceptance tests are not successfully completed, LamasaTech shall be given the opportunity to retest such elements which were not successfully completed and/or (with the consent of the Customer, not to be unreasonably withheld or delayed) to modify the acceptance tests or acceptance criteria. LamasaTech shall notify the Customer once all acceptance tests have been successfully completed (a “Commissioning Notification”) and shall provide reasonable evidence of such completion on request. If, within 10 Business Days of receipt of a Commissioning Notification the Customer has not provided LamasaTech with a confirmation as to whether or not the tests have been successfully completed, then a confirmation of the successful completion of the relevant acceptance tests shall be deemed to have been served on LamasaTech by the Customer.
8.2 Acceptance of a Product shall be deemed to have occurred on whichever is the earliest of: (i) the date that the Customer notifies (or pursuant to clause 8.1 is deemed to have notified) LamasaTech that the relevant acceptance tests have been successfully completed; or (ii) the date that the relevant Product is put into commercial or operational use.
9. Customer’s Obligations
9.1 The Customer shall:
9.1.1 co-operate with LamasaTech in all matters relating to the Contract and appoint an authorised representative of the Customer who has the authority to bind the Customer contractually on matters relating to the Contract;
9.1.2 provide in a timely manner such access to the Customer’s premises, systems and data (including, where agreed in the Contract, providing LamasaTech with access to the Customer’s systems by use of remote desktop support software) and such office accommodation and other facilities, as is requested by LamasaTech;
9.1.3 provide in a timely manner such information as LamasaTech may request, and ensure that such information is accurate in all material respects;
9.1.4 comply with any Mandatory Policies that are notified to it from time to time;
9.1.5 take all steps to ensure the welfare and safety of any LamasaTech Personnel at any premises of the Customer and ensure that its premises and all plant and equipment which is used by LamasaTech’s Personnel or with which they may come into contact or to which they may be exposed complies with the Health and Safety at Work Act 1974, all relevant statutory provisions (as defined in that Act) and all other obligations imposed by statute and common law relating to health and safety; and
9.1.6 be responsible (at its own cost) for the performing or procuring the performance of the Customer Responsibilities including preparing the relevant premises for the supply of Products.
9.2 If LamasaTech’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s Personnel (including any failure to perform or procure the performance of the Customer Responsibilities or any delays or postponements by the Customer of any installation dates specified by LamasaTech, of dates for scheduled service visits or otherwise) then:
9.2.1 LamasaTech shall be granted relief from any failure of it to carry out the Services, deliver the Products concerned or otherwise comply with its obligations under the Contract; and
9.2.2 the Customer shall be liable to pay to LamasaTech on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of opportunity to deploy resources elsewhere), subject to LamasaTech confirming such costs, charges and losses to the Customer in writing.
10. Limitation of Liability
10.1 The Customer agrees and acknowledges that the level of the Charges takes fully into account the limits of LamasaTech’s entire financial liability (set out below) for the applicable Products supplied or to be supplied to the Customer, the Customer’s use of them, and for anything else in connection with any Contract.
10.2 Nothing in the these Terms and Conditions or in any Contract Terms shall limit or exclude the liability of LamasaTech in respect of: (i) death or personal injury caused by negligence; or (ii) fraud; or (iii) any other liability which cannot by law be limited or excluded.
10.3 Subject to Clause 10.2, LamasaTech shall not be liable to the Customer whether in contract, tort (including for negligence or breach of