Terms & Conditions

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PART 1: GENERAL

1. Interpretation

The definitions and rules of interpretation in this condition apply in these terms and conditions.

1.1 Definitions:

Acceptance Tests: the tests of the Hardware or Software after installation to be carried about the parties to be agreed in good faith.
Available Services: Hardware, Software, Services, Telecoms or Support & Maintenance Services which ORT is willing and able to provide to the Customer.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Contract: the Customer's order for the purchase of Available Services and the Supplier's acceptance of it under condition 2.
Customer's Project Manager: the Customer's manager for each Contract appointed in accordance with condition 4.1(a).
Deliverables: all Hardware, Software, Services, Telecoms and materials developed or supplied by ORT in relation to each Contract in any media, including computer programs, data, diagrams, reports and specifications (including drafts).
Documentation: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms supplied by ORT as specified in Schedule 1.
Initial Term: the initial term as set out in the Order Form.
Installation Date: the date by which ORT completes installation of the relevant item of Hardware or Software.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, rights in domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Mandatory Policies: [Modern Slavery and Human Trafficking Policy]; [Corporate and Social Responsibility Policy]; [Data and Privacy Policy]; [Ethics and Anti-Bribery Policy]; [Expenses Policy]; [Cybersecurity Policy]; [Business Continuity and Disaster Recovery Policy]; [INSERT OTHER RELEVANT POLICY], as amended by notification to ORT from time to time.
Order: the Customer's order for Available Services as set out in an acknowledgment of ORT’s quotation or ORT’s written acknowledgment of a Customer’s order, the process for which is set out in more detail in condition 2.
Pre-existing Materials: materials which existed before the commencement of each Contract.
Hardware: the goods, products or hardware (or any part of them) set out in the Order.
ORT's Project Manager: ORT's manager for each Contract, appointed in accordance with condition 3.3.
Renewal Term: the term which automatically renews following the expiry of the Initial Term.
Software: any open source software and any software programs proprietary to third parties, listed in Schedule 1 which are to be provided to the Customer without modification by ORT.
VAT: value added tax imposed by the Value Added Tax Act 1994 chargeable in the UK.

1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.6 A reference to writing or written includes email but not fax.

1.7 References to conditions and Schedules are to the conditions and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Orders and application of conditions

2.1 The Customer shall be entitled from time to time to request in writing the provision of any Available Services from ORT.

2.2 Each purchase order or acceptance of a quotation by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.

2.3 Any quotation by ORT is valid for a period of 30 days only, and ORT may withdraw it at any time by notice to the Customer.

2.4 A binding contract shall not come into existence between ORT and the Customer unless and until ORT issues a written order acknowledgement to the Customer, or ORT commences the Services or delivers the Hardware to the Customer (whichever occurs earlier).

2.5 Each Order, once agreed, shall form the basis of a separate Contract which runs for the Initial Term.

2.6 No Order which has been acknowledged by ORT may be cancelled by the Customer, except with the agreement in writing of ORT and provided that the Customer indemnifies ORT in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by ORT as a result of cancellation.

2.7 These conditions shall:

apply to and be incorporated in each Contract; and
prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.8 No addition to, variation of, exclusion or attempted exclusion of any term of each Contract shall be binding on ORT unless stated in the Order Form or in writing and signed by a duly authorised representative of ORT.

2.9 The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern each Contract.

2.10 Each Contract shall survive the termination of any other Contract unless such Contract is also terminated on its own terms.

2.11 The Initial Term of all ongoing Contracts entered into prior to the current Contract shall automatically extend to match the Initial Term of the current Contract so that all

3. ORT's general obligations

3.1 ORT shall use reasonable endeavours to manage and complete each Contract, and to deliver the Deliverables to the Customer, in accordance with all material respects with the Order Form.

3.2 ORT shall use reasonable endeavours to meet the performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence of each Contract.

3.3 ORT shall appoint ORT's Project Manager who shall have authority to contractually bind ORT on all matters relating to each Contract. ORT shall use reasonable endeavours to ensure that the same person acts as ORT's Project Manager throughout each Contract, but may replace that person from time to time where reasonably necessary in the interests of ORT's business.

4. Customer's general obligations

4.1 The Customer shall:

co-operate with ORT in all matters relating to each Contract and comply with all its obligations in each Contract;
appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on matters relating to each Contract;
provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is required for each Contract or otherwise reasonably requested by ORT;
provide in a timely manner such information as ORT may request, and ensure that such information is accurate in all material respects; and
be responsible (at its own cost) for preparing the relevant premises for each Contract.
obtain and maintain all necessary licences, permissions and consents which may be required for each Contract before the date on which each Contract is to start.

4.2 If ORT's performance of its obligations under each Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, subcontractors or employees:

without limiting or affecting any other right or remedy available to it, ORT shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays ORT’s performance of any of its obligations;
ORT shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ORT’s failure or delay to perform any of its obligations as set out in this condition 27.2; and
the Customer shall reimburse ORT on written demand for any costs or losses sustained or incurred by ORT arising directly or indirectly from the Customer Default.

5. Change control

5.1 If either party wishes to change the scope of the Hardware or Services on the Order, it shall submit details of the requested change to the other in writing.

5.2 If either party requests a change to the scope of the Hardware or Services on the Order, ORT shall, within a reasonable time, provide a written estimate to the Customer of:

the likely time required to implement the change;
any variations to ORT's charges arising from the change; and
any other impact of the change on the terms of each Contract.

5.3 If ORT requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

5.4 If the Customer wishes ORT to proceed with the change, ORT has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of each Contract to take account of the change.

5.5 If the Customer refuses a reasonable request from ORT to change the scope of the Hardware or Services on the Order, ORT has the right to adjust the charges accordingly by providing written notice to the Customer.

6. Charges and payment

6.1 All prices for the Hardware and Services shall be as stated in the Order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties, as applicable depending upon the Order. ORT shall provide the Customer with a VAT invoice.

6.2 In respect of Hardware, ORT reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Hardware as has not been delivered to reflect any increase in the cost to ORT which is due to market conditions or any factor beyond the control of ORT (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specification for the Hardware as per Schedule 1 requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give ORT adequate information or instructions.

6.3 Condition 6.4 shall apply if the Services are to be provided on a time-and-materials basis. condition 6.5 and condition 6.6 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 6 shall apply in either case.

6.4 Where the Services are provided on a time-and-materials basis:

the charges payable for the Services shall be calculated in accordance with ORT's standard daily fee rates as amended from time to time;
ORT's standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.30 am and 5.30 pm on weekdays (excluding weekends and public holidays);
ORT shall be entitled to charge at an overtime rate of 200% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in condition 6.4(b) on a pro-rata basis;
ORT shall ensure that all members of the project team complete time sheets recording time spent on each Contract, and ORT shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 6.4(e); and
ORT shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (subject to condition 6.7) for the month concerned, calculated as provided in this condition 6. Any expenses, materials and third party services shall be invoiced by ORT. Each invoice shall set out the time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.

6.5 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Order. The total price shall be paid to ORT in instalments as set out in the Order. ORT shall (subject to condition 6.7) invoice the Customer for the charges that are then payable, together with expenses and the costs of materials, calculated as provided in condition 6.6.

6.6 Any fixed price contained in each Contract excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by ORT for the supply of the Services. Such expenses, materials and third party services shall be invoiced by ORT.

6.7 All payments made by the Customer under this agreement are exclusive of VAT. ORT shall provide the Customer with a valid VAT invoice. The Customer shall pay any stamp duties or similar transfer taxes imposed on the supplies made under this agreement and shall reimburse ORT for any such stamp duties or similar transfer taxes paid by ORT. If the Customer is required to make any deduction for or on account of tax from any payment due under this agreement (Tax Deduction):

The Customer shall account to the relevant tax authority for such Tax Deduction and shall provide evidence to ORT that it has so accounted.
The amount of the payment due under this agreement shall be increased so that ORT receives an amount equal to the amount that would have been received by it, had the Customer not been required to make any Tax Deduction.

The Customer and ORT shall co-operate to minimise the amount of any Tax Deduction. If following the making of a Tax Deduction, ORT determines acting in good faith that it (or any member of ORT's group) has received and retained any credit, relief or other benefit as a result of the Tax Deduction, ORT shall pay such amount to the Customer as ORT determines in its sole discretion would leave ORT in the same position as if the Customer had not been required to make any Tax Deduction.

6.8 Time for payment shall be of the essence of each Contract.

6.9 The Customer shall pay each invoice submitted to it by ORT in full, and in cleared funds, within 30 days of receipt.

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

charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
suspend all delivery of Hardware and provision of Services until payment has been made in full;
issue notice in writing to the that the whole of the balance of all unpaid sums under all Orders Hardware shall become immediately due;
terminate all Contracts or suspend any further deliveries of Hardware or provision of Services to the Customer;
exercise a general lien on all Hardware and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to ORT. ORT shall be entitled, on the expiry of 14 days' notice in writing, to dispose of such Hardware or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.

6.11 All payments payable to ORT under each Contract shall become due immediately on termination of each 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 each Contract.

6.12 All amounts due under this agreement shall be paid by the Customer to ORT in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). ORT may, without prejudice to any other rights it may have, set off any liability of the Customer to ORT against any liability of ORT to the Customer.

6.13 ORT may increase the charges following not less than three months' written notice on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Consumer Prices Index (all items) in the preceding 12 month period, and the first such increase shall take effect from the first anniversary of the date of this agreement and shall be based the latest available figure for the percentage increase in the Consumer Prices Index (all items).

7. Confidentiality

7.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination or expiry of the final Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by condition 7.2.

7.2 Each party may disclose the other party's confidential information:

to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this condition 8; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

7.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

7.4 This condition 8 shall survive termination of this agreement for any reason.

8. Intellectual Property Rights

8.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in Deliverables are and shall remain the sole property of ORT or (as the case may be) third party rights owner, except where expressly set out in writing to the contrary.

8.2 ORT or (as the case may be) the third party owner licenses all Intellectual Property Rights in the Deliverables to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis solely to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If ORT terminates each Contract under condition 15.1, this licence will automatically terminate.

8.3 The Customer shall not at any time make any use of ORT’s or the third party owner’s (as the case may be) Intellectual Property Rights save as permitted in a Contract, nor authorise or permit any of its agents or contractors or any other person to do so.

8.4 In respect of any Software, the Customer acknowledges that ORT shall accept any licence or terms of use on a "shrink-wrap" or "click-wrap" basis on behalf of the Customer.

9. Limitation of liability

9.1 The following provisions set out the entire financial liability of ORT (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:

any breach of any Contract however arising;
any use made by the Customer of the Services, the Deliverables or any part of them; and
any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with each Contract.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from each Contract.

9.3 Nothing in these conditions excludes the liability of ORT:

for death or personal injury caused by ORT's negligence; or
for fraud or fraudulent misrepresentation.

9.4 Subject to condition 9.2 and condition 9.3:

ORT shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
1. loss of profits;
2. loss of business;
3. depletion of goodwill or similar losses;
4. loss of anticipated savings;
5. loss of goods;
6. loss of contract;
7. loss of use;
8. wasted expenditure;
9. loss or corruption of data or information; or
10. any special, indirect or consequential loss, costs, damages, charges or expenses.
ORT's total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to the price paid under that Contract.

10. Termination

10.1 Unless expressly stated to the contrary, the termination of a Contract shall not operate as termination of all Contracts between the parties. Termination or expiry of a Contract shall not cause any other Contracts to terminate automatically. For the avoidance of doubt, all Contracts shall remain in force unless and until they are terminated or expire in accordance with their own terms.

10.2 Without prejudice to any other right or remedy available to ORT, ORT may terminate each Contract or suspend any further deliveries under each Contract without liability to the Customer and, if the Hardware has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary if the ability of the Customer to accept delivery of the Hardware is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control

10.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate each Contract without liability to the other 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 seven days after being notified in writing to make such payment;
the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.3(d) to condition 10.3(k) (inclusive); or
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

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

10.5 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

11. Testing and acceptance

11.1 Within ten days of the Installation Date, the Acceptance Tests shall be carried out. The Acceptance Tests shall be started as soon as reasonably possible after installation. ORT shall carry out the agreed Acceptance Tests unless the Customer notifies ORT in advance that it will carry out the Acceptance Tests. The party carrying out the Acceptance Tests shall give the other party at least 24 hours’ notice of the start of the Acceptance Tests and permit the other party to observe all or any part of the testing.

11.2 If the Hardware or Software fail the Acceptance Tests, the Customer shall, within two days from the completion of the Acceptance Tests, or any part of these tests, provide a written notice to this effect, giving details of such failure(s). ORT shall remedy the defects and deficiencies and the relevant test(s) shall be repeated within a reasonable time.

11.3 If the Hardware or Software fails in some material respect to pass any repeated Acceptance Tests within four weeks from the date of its second submission to the Acceptance Tests, then the Customer may, by written notice to ORT, choose at its sole discretion:

to fix (without prejudice to the Customer’s other rights and remedies) a new date for carrying out further tests on the System on the same terms and conditions. If the System fails such further tests then the Customer may request a repeat test under this condition 11; or
to accept the Hardware or Software subject to such change of acceptance criteria, amendment of the specification at Schedule 1 and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable; or
if ORT is unable to correct material defects within a period of three months from the commencement of Acceptance Tests under condition 11.1, to reject the Hardware or Software as not being in conformity with the agreement, in which event the Customer may terminate this agreement.

11.4 Acceptance shall be deemed to have occurred on whichever is the earliest of:

the signing by the Customer of an acceptance certificate;
the expiry of five days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under condition 11.2;
the expiry of ten days after the Installation Date if the Acceptance Tests for that module have not started, or have not been pursued with due diligence, unless such failure results from ORT’s failure to co-operate in the performance of the Acceptance Tests; or
the use of the Hardware or Software by the Customer in the normal course of the business.

12. Force majeure

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such 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. The time for performance of such obligations shall be extended accordingly. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate this agreement by giving thirty (30) days' written notice to the affected party.

13. Non-solicitation

13.1 The Customer shall not, without the prior written consent of ORT, at any time from the date of each Contract to the expiry of six months after the termination of each Contract, solicit or entice away from ORT or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of ORT. The Customer shall not be in breach of this condition 13 if it hires an employee or subcontractor of ORT as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of ORT.

13.2 Any consent given by ORT in accordance with condition 13 shall be subject to the Customer paying to ORT on demand a sum equivalent to 20% of the then current annual remuneration of ORT's employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor.

14. Mandatory Policies

In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.

15. Waiver

15.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

15.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16. Rights and remedies

16.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17. Severance

17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

17.2 If any provision or part-provision of this agreement is deemed deleted under condition 17.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.

18. Entire agreement

18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

18.4 Nothing in this condition shall limit or exclude any liability for fraud.

19. Assignment

19.1 ORT may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

19.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

20. No partnership or agency

Nothing in each Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

21. Third party rights

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

22. Notices

22.1 Any notice given to a party under or in connection with each Contract shall be in writing and shall be:

delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the addresses in the Order Form.

22.2 Any notice shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

22.3 This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. Governing law

23.1 Each Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and interpreted in accordance with the law of England and Wales.

24. Jurisdiction

24.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

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PART 2: SERVICES

25. Application of this Part

This Part 2 shall apply to each Contract where the Customer orders Services.

26. ORT Services obligations

26.1 ORT shall supply the Services to the Customer in accordance with the specification at Schedule 1 in all material respects.

26.2 ORT shall use all reasonable endeavours to meet any performance dates specified in Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

26.3 ORT reserves the right to amend the specification at Schedule 1 if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and ORT shall notify the Customer in any such event.

26.4 ORT warrants to the Customer that the Services will be provided using reasonable care and skill.

27. Customer’s Services obligations

27.1 The Customer shall:

ensure that the terms of the Order are complete and accurate;
co-operate with ORT in all matters relating to the Services;
provide ORT, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by ORT;
provide ORT with such information and materials as ORT may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
keep all materials, equipment, documents and other property of ORT (“ORT Materials”) at the Customer’s premises in safe custody at its own risk, maintain ORT Materials in good condition until returned to ORT, and not dispose of or use ORT Materials other than in accordance with ORT’s written instructions or authorisation.

27.2 If ORT’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

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PART 3: HARDWARE

28. Application of this Part

This Part 3 shall apply to each Contract where the Customer orders Hardware.

29. Quantity and description

29.1 ORT shall supply the Hardware in the quantity and as described in ORT's acknowledgement of order or (if there is no acknowledgment of order) quotation.

29.2 All samples, drawings, descriptive matter, specifications and advertising issued by ORT, and any descriptions or illustrations contained in ORT's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

29.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by ORT shall be subject to correction without any liability on the part of ORT.

29.4 ORT reserves the right (but does not assume the obligation) to make any changes in the specification of the Hardware as per Schedule 1 which are required to conform with any applicable legislation or, where the Hardware is to be supplied to the Customer's specification, which do not materially affect their quality or performance. Where ORT is not the manufacturer of the Hardware , ORT shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to ORT.

29.5 ORT's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Hardware.

30. Delivery of Hardware and acceptance

30.1 ORT shall use its reasonable endeavours to deliver the Hardware to the Location set out in the Order (or such other location as the parties may agree at any time after ORT notifies the Customer that the Hardware s are ready) on the date or dates specified in ORT's acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Order. Time is not of the essence as to the delivery of the Hardware and ORT is not in any circumstances liable for any delay in delivery, however caused.

30.2 The Hardware may be delivered by ORT in advance of the quoted delivery date on giving reasonable notice to the Customer.

30.3 ORT may deliver the Hardware by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

30.4 Delivery shall be made during normal business hours (excluding bank or public holidays). ORT may levy additional charges for any deliveries made outside such hours at the Customer's request.

30.5 The Customer shall be responsible (at the Customer's cost) for preparing the Location 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 ORT is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, ORT may levy additional charges to recover its loss arising from this event.

30.6 The Customer shall be deemed to have accepted the Hardware when the Customer has had 14 days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 11.

30.7 ORT shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to ORT (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Hardware and that the Hardware has been handled in accordance with ORT's stipulations. Any remedy under this condition 30.7 shall be limited, at the option of ORT, to the replacement or repair of any Hardware which is proven to ORT's satisfaction to have been lost or damaged in transit.

31. Implementation

Where the Customer requests implementation or configuration of Hardware, the parties shall specify the relevant implementation or configuration services required and the provisions of Part 2 shall apply to such Services.

32. Export

32.1 Where the Hardware is supplied for export from the United Kingdom, the provisions of this condition 32 shall (subject to any contrary terms agreed in writing between ORT and the Customer) override any other provision of these conditions.

32.2 The Customer shall be responsible for complying with any legislation governing:

The importation of the Hardware into the country of destination; and
the export and re-export of the Hardware,
and shall be responsible for payment of any duties on it.

32.3 Unless otherwise agreed in writing between the Customer and ORT, the Hardware shall be delivered free on board the air or sea port of shipment and ORT shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

32.4 The Customer shall pay the price for the Hardware in pounds sterling prior to export.

33. Risk and property

33.1 The Hardware shall be at the risk of ORT until delivery to the Customer at the place of delivery specified in ORT's acknowledgement of order. ORT shall off-load the Hardware at the Customer's risk.

33.2 Ownership of the Hardware shall pass to the Customer on the later of completion of delivery (including off-loading), or when ORT has received in full in cleared funds all sums due to it in respect of:

the Hardware ; and
all other sums which are or which become due to ORT from the Customer on any account.

33.3 Until ownership of the Hardware has passed to the Customer under condition 33.2, the Customer shall:

hold the Hardware on a fiduciary basis as ORT's bailee;
store the Hardware (at no cost to ORT) in satisfactory conditions and separately from all the Customer's other Hardware or that of a third party, so that it remains readily identifiable as ORT's property;
not destroy, deface or obscure any identifying mark or packaging on or relating to the Hardware ; and
keep the Hardware insured on ORT's behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of ORT, ensure that ORT's interest in the Hardware is noted on the policy, and hold the proceeds of such insurance on trust for ORT and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

33.4 The Customer's right to possession of the Hardware before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 33arise or if the Customer encumbers or in any way charges the Hardware , or if the Customer fails to make any payment to ORT on the due date.

33.5 Until ownership of the Hardware is transferred to the Customer in accordance with condition 33.2, the Customer grants ORT, its agents and employees an irrevocable licence at any time to enter any premises where the Hardware is or may be stored in order to inspect it, or where the Customer's right to possession has terminated, to remove it. All costs incurred by ORT in repossessing the Hardware shall be borne by the Customer.

33.6 On termination of each Contract for any reason, ORT's (but not the Customer's) rights in this condition 33 shall remain in effect.

33.7 ORT may appropriate payments by the Customer to such Hardware as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.

34. Inspection and testing of Hardware

ORT shall:

test and inspect the Hardware on delivery to ensure that it complies with the requirements of each Contract; and
if so requested by the Customer, give the Customer reasonable advance notice of such tests (which the Customer shall be entitled to attend).

35. Hardware Remedies

35.1 ORT shall not in any circumstances be liable for any non-delivery of Hardware (even if caused by ORT's negligence) unless the Customer notifies ORT in writing of the failure to deliver within seven days after the scheduled delivery date.

35.2 Any liability of ORT for non-delivery of the Hardware shall in all circumstances be limited to replacing the Hardware within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Hardware .

35.3 If ORT's performance of its obligations under each Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under condition 12), the Customer shall in all circumstances be liable to pay to ORT all reasonable costs, charges or losses sustained by it as a result, subject to ORT notifying the Customer in writing of any such claim it might have against the Customer in this respect.

35.4 In the event of any claim by the Customer under the warranty given in condition 36, the Customer shall notify ORT in writing of the alleged defect. ORT shall have the option of testing or inspecting the Hardware at its current location or moving it to ORT's premises (or those of its agent or subcontractor) at the cost of ORT. If the Customer's claim is subsequently found by ORT to be outside the scope or duration of the warranty in condition 36, the costs of transportation of the Hardware , investigation and repair shall be borne by the Customer.

36. Hardware Warranty

36.1 ORT warrants that:

the Hardware will be new (except where otherwise specified in condition 36 ) and of satisfactory quality and will be suitable for the purpose for which it is intended under each Contract description; and
the Hardware will operate in accordance with its description for 6 months or such longer period specified in the Order;
as far as it is able, ORT will pass on to the Customer the benefits of any manufacturers’ warranties.

36.2 ORT shall not in any circumstances be liable for a breach of the warranty in condition 36.1 if:

the Customer makes any use of Hardware in respect of which it has given written notice under condition 11; or
the defect arises because the Customer failed to follow ORT'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; or
the Customer alters or repairs the relevant Hardware without the written consent of ORT.

36.3 ORT shall not in any circumstances be liable for a breach of the warranty contained in condition 36.1 unless:

the Customer gives written notice of the defect to ORT within seven days of the time when the Customer discovers or ought to have discovered the defect; and
after receiving the notice, ORT is given a reasonable opportunity of examining such Hardware and the Customer (if asked to do so by ORT) returns such Hardware to ORT's place of business at ORT's cost for the examination to take place there.

36.4 Any repaired or replacement Hardware shall be under warranty for the unexpired portion of the previously specified warranty period.

36.5 ORT shall not in any circumstances be liable for any damage or defect to the Hardware caused by improper use of the Hardware or use outside its normal application.

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PART 4: SOFTWARE

37. Application of this Part

This Part 4 shall apply to each Contract where the Customer orders Software.

38. Software and Documentation

38.1 ORT shall provide to the Customer the Software under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Customer, and the Customer agrees to be bound to the relevant third parties by such licence terms.

38.2 ORT shall provide to the Customer from time to time copies of the Documentation containing up-to-date information for the proper use and maintenance of the Software. Such Documentation may be supplied in electronic form.

38.3 The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the Software and for training the Customer’s personnel in use of the Software. The Customer shall ensure that all proprietary notices are reproduced in any such copy.

39. Installation

Where the Customer requests installation or configuration of Software, the parties shall specify the relevant installation or configuration services required and the provisions of Part 2 shall apply to such Services.

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PART 5: TELECOMS

40. Application of this Part

40.1 This Part 5 shall apply to each Contract where the Customer orders Telecoms.

41. Telecoms and Documentation

41.1 ORT shall provide to the Customer and install the Telecoms services under the standard terms provided by the Telecoms provider, copies of which shall be provided to the Customer, and the Customer agrees to be bound to the relevant third parties by such terms.

41.2 ORT shall provide to the Customer from time to time copies of the Documentation containing up-to-date information for the proper use and maintenance of the Telecoms. Such Documentation may be supplied in electronic form.

41.3 The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the Telecoms and for training the Customer’s personnel in use of the Telecoms. The Customer shall ensure that all proprietary notices are reproduced in any such copy.

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PART 6: SUPPORT & MAINTENANCE

42. Following the Testing and Acceptance procedures as set out in Part 1 Condition 11, ORT shall provide Support & Maintenance services in accordance with our Support & Maintenance plan as set out in Schedule 1.