ITMS Limited Terms and Conditions
1.1 “Customer” means the party identified as the Customer in this Agreement to whom ITMS Limited may agree to supply products or provide IT support services or general IT services in accordance with these terms and conditions.
1.2 “ITMS Ltd“ means ITMS Ltd of Block 3 2nd Floor Office No13 Eurotowers Europort Road Gibraltar.
1.3 “Products and services” means goods or IT services including but not limited to computer hardware, software items and IT support services or general IT services to be provided by ITMS Ltd to the Customer in accordance with these terms and conditions.
1.4 “Third Party Software” means all software owned or licensed to the Customer from a third party owner (whether or not supplied by ITMS Ltd) and which comprises part of the Products or IT Services.
2 ORDER & IT SERVICES ACCEPTANCE
2.1 All orders place with ITMS Ltd and any request for general IT services by the Customer for Products or IT Services shall constitute an offer to ITMS Ltd, under these terms and conditions, subject to availability of the products and ability to provide the IT service and to acceptance of the order and or IT service by ITMS Ltd authorised representative.
2.2 All orders request and IT services request are accepted and Products supplied and or IT Services provided subject to these express terms and conditions only. No amendment to these terms and conditions will be valid unless confirmed in writing on or after the date hereof by ITMS Ltd authorised representative.
2.3 It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase or IT service request unless these latter terms and conditions are amended by ITMS Ltd in writing and signed by ITMS Ltd.
3 INDEPENDENT CONTRACTOR
The relationship between the Supplier and service provider and Customer is that of Independent Contractor. Neither party is the agent of each other, nor neither party has any authority to make any contractor make any obligation expressly or impliedly in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this Agreement.
4.1 Any time quoted for orders despatch or providing IT services is to be treated as an estimate only, but despatch or IT services works may be postponed because of conditions beyond ITMS Ltd reasonable control, and in no event shall ITMS Ltd be liable for any damages or penalty for delay in despatch or delivery of goods or IT Services.
4.2 Risk on orders placed shall pass to the Customer at the time the Products are despatched by ITMS Supplier. ITMS accepts no liability for loss or damage caused by the carrier.
5 CANCELLATION AND RESCHEDULING
Subject to clause 8.2, any request by the Customer for cancellation of any orders or IT services, or for the rescheduling of any deliveries or IT services will only be considered by ITMS if made at least 24 hours before order or Engineer/s scheduled to do the job and shall be subject to acceptance by ITMS at ITMS sole discretion, and subject to a reasonable administration charge therefore by ITMS. The Customer hereby agrees to indemnify ITMS against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order or IT Service request and its cancellation or rescheduling. Unless otherwise agreed by ITMS and the Customer.
6 PRICING & Quotes
6.1 All prices given by ITMS Ltd at the time of order of hardware and software will be inclusive of transport, packing and insurance.
6.2 All quoted or listed prices on hardware and software are based on the cost to ITMS Ltd of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at ITMS Ltd discretion.
6.3 All quotes supplied for the procurement of hardware or software as well as quotes supplied for IT support services or general IT services will have a maximum validity period of 30days after which the quote/s will be deemed expired and a new quote will have to be supplied, ITMS Ltd will revise the quote and amend the cost as necessary.
6.4 Quotes will be submitted to customer for inspection and approval once approved an invoice for the identical cost and total will be generated. The validity of the quote will be as detailed on 6.3 above.
7 ISSUING OF INVOICES & PAYMENT TERMS
7.1 Invoice will be raised and dated by ITMS Ltd as follows :-
Hardware and software procured on receiving Customers confirmation of acceptance of relevant quote
IT General services on acceptance of quote submitted or upon completion of works whichever is relevant.
IT Support services on the first week of every month for the month in advance.
Payment for Hardware and software is 50% of the value of the product on placing order and remaining 50% on delivery date of the product.
Payment for IT Support services and IT general services to be effected within a maximum period of 30days from date on invoice
Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 5% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgment.(At ITMS Ltd discretion)
7.3 Until such time as the relevant invoice in respect of hardrware and software procured has been settled in full the products will remain the property of ITMS Ltd, the Customer shall hold the Products as ITMS Ltd fiduciary agent and bailee, and shall keep the Products properly stored, protected and insure and identified as ITMS Ltd property. the Products, whether tangible of intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or properties of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8 ITMS Limited Terms and Conditions
8.1 The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets, or if it is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
8.2 On termination of the Company’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of ITMS Ltd.
8.3 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtness any of the Products which remain the property of ITMS Ltd. But if the Customer does so, all monies owing by the Customer, to ITMS Ltd shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
8.4 ITMS Ltd reserves the right to cease supplies of Products or provide IT support services or General IT service to the Customer at any time. On such cessation of supplies of products or services, ITMS Ltd reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
8.5 ITMS Ltd will not be held responsible for the malfunction of any equipment repaired by its engineers after the initial works have been concluded and the customer has accepted such works as good and satisfactory.
8.6 It will be the customers responsibility to ensure that any works performed at their premises by ITMS Engineers meet all aspects of health and safety requirements, and there internal security procedures and protocols ITMS Ltd can provide assistance to customers to this effect if so requested by the customer. Any additional costs incurred to meet these requirements will be the customers’ responsibility.
9 RETURNS AND REFUND OF HARDWARE PROCURED
9.1 ITMS reserves the right to levy an administration charge in respect of the rotation of Products and returns.
9.2 Returns must be made subject to the following:
- a) prior authority having been obtained from ITMS LTD which will be given at ITMS LTD sole discretion;
- b) within 30 days of the date of the invoice;
- c) subject to stock rotation policy;
- d) the Products must be properly packed in original packaging;
- e) the Products must be in a saleable condition;
- f) the Products must be accompanied by a list of contents;
- g) the Product is still covered by warranty
9.3 ITMS Ltd reserves the right to reject any Products which do not comply with the conditions set out in clause 10.2.
9.4 If ITMS Ltd nevertheless agrees to accept any Products returned which are not in a saleable condition, ITMS Ltd reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.
9.5) A refund will be offered for re-sellable products or for services offered which have been identified as not correct for your business.
10.1 ITMS Ltd warrants that it has good title to or licence to supply all Products to the Customer.
10.2 If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service. such Products will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products PROVIDED THAT no unauthorised modifications to the Product or to the system of which the Product forms part have taken place. ITMS Ltd is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.
10.3 All software Products supplied hereunder are supplied “as is” and the sole obligation of ITMS Ltd in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software Product should fail to conform to product description PROVIDED ALWAYS THAT the Customer notifies ITMS Ltd of any such non-conformity within 90 days of the date of delivery of the applicable software Product.
11 ITMS Limited Terms and Conditions
11.1 If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 10.2 or 10.3, ITMS Ltd will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. ITMS Ltd will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until ITMS Ltd has passed a corresponding credit note.
11.2 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, ITMS Ltd DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING USAGE OR TRADE PRACTICE.
12 INDEMNITIES AND LIMITS OF LIABILITY
12.1 ITMS Ltd will indemnify the Customer for the direct physical injury or death caused solely by defects in any of the Products or works performed if caused solely by the negligence of its assigned employees acting within the course of their employment and scope of their authority.
12.2 ITMS Ltd will indemnify the Customer for direct damage to property caused solely by the negligence of its assigned employees acting within the course of their employment and scope of their authority. The total liability of ITMS Ltd under this subclause shall be limited to £100,000 for any one event or series of connected events.
12.3 Except as stated in clauses 12.1 and 12.2 above, ITMS Ltd disclaims and excludes all liability to the Customer in connections with these terms and conditions including the Customer’s use of the Products and in no event shall ITMS Ltd be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of the Products. All terms of any nature, express or implied statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
12.4 The Customer shall indemnify and defend ITMS Ltd and its employees in respect of claims by third parties which are occasioned by or arise from any ITMS Ltd performance or non-performance pursuant to the instructions of the Customer or its authorised representative.
13 TERMINATION FOR CLAUSE
13.1 This agreement may be terminated forthwith by notice in writing:
- a) By ITMS Ltd if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 7.1
- b) If either party fails to perform any of its obligations under the Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
- c) If either party is involved in any legal proceedings concerning the solvency or ceases trading or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purpose of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order or has a Receiver or other Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986. Then without prejudice to any other rights or remedies available to it, the other party shall
have the right to terminate the Agreement forthwith.
13.2 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
14.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
14.2 No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
14.3 The Customer agrees not to assign any of its rights herein without the prior written consent of ITMS Ltd.
14.4 In the event of any of these terms and conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
14.5 Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeur, act of God, fire, explosion, accident, industrial dispute or any such cause beyond its reasonable control.
14.6 Any documents or notice given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
14.7 These terms and conditions shall be construed in accordance with Gibraltar Law.