These standard terms of service apply to provision of the Services specified on one or more Order Forms or Quotes (as applicable) agreed between you and us, and apply separately to the Services under each Order Form or Quote, as applicable. Together, these terms, an Order Form and/or Quote and the Additional Terms (applicable to the relevant Services) constitute an agreement between you and us for the provision of Services (the “Agreement”). If there is any inconsistency between these terms, the Order Form or Quote and/or the Additional Terms, the Order Form or Quote (as applicable) shall prevail, followed by the Additional Terms, followed by these terms.
These terms of supply shall apply to all orders and contracts for the supply of Services by us to the exclusion of all other terms (including any terms and conditions you purport to apply) other than any Additional Terms, terms stated by us on any Order Form or Quote and any third-party terms and conditions that we have expressly stated apply. Any attempt by you (or on your behalf) to impose any other terms or conditions to the trading relationship with us is hereby explicitly and expressly deemed automatically rejected in advance (and any such terms and conditions are likewise deemed rejected automatically in advance) and will be (and is) wholly ineffective and non-binding upon us. No terms or conditions other than these terms and conditions are or will be acceptable to us, save as expressly agreed and physically signed in writing by our authorised representative agreeing to a variation of these terms and conditions in accordance with these terms and conditions.
The Agreement applies between you, the customer named on the Order Form or Quote, and TJTH Ltd, a company registered in England and Wales with company number 11059958 (also referred to as “we” or “us”). It shall come into force when we have given written acceptance of the Order Form or Quote (as applicable) signed by you.
In these terms, the following definitions apply (unless inconsistent with the context):
“Additional Terms”: terms applicable to specific Services, as referred to on the Order Form or Quote (as applicable).
“Charges” and “Payment Period”: as specified on the Order Form or Quote or in the Additional Terms, or as amended from time to time in accordance with the Agreement (including clause 10 below). To the extent Charges for any Services are not so specified, they shall be at our standard hourly rate.
“Information”: as defined in clause 12.2 below.
“Order Form”: an order form issued to you by us to which these terms relate.
“Quote”: any quote, including any electronic quote, provided by us to you, the customer, setting out the proposed Services to be provided by us to which these terms relate.
“Services”: the services described on the Order Form or Quote (as applicable) and in the Additional Terms.
- Provision of Services
1.1. Subject to clause 1.4, we shall provide the Services to you from the Start Date.
1.2. We shall provide the Services with reasonable skill and care and in accordance with the Service Levels.
1.3. We shall use reasonable efforts to give notice of anticipated interruptions to the Service.
1.4. The provision of the Services is subject to satisfactory completion of an initial network assessment. If such network assessment reveals unforeseen problems in providing the Services, we may cancel this Agreement and shall refund to you any Charges paid in advance.
- Acceptance and Commencement Date
2.1. We shall provide you with either an Order Form or a Quote stating the proposed Services to be provided. If you wish to take up the Services as stated on either the Order Form or the Quote (as applicable), you shall sign or e-sign the Order Form or Quote (as applicable) and return it to us or submit it online in accordance with our systems. The returned Order Form or Quote as applicable shall be deemed to be an offer by you, and if accepted by us, the Agreement shall be deemed formed. For the avoidance of doubt, any additional terms stated on the Order Form or Quote (as applicable) by you are hereby expressly rejected and shall not apply to the Agreement unless otherwise expressly agreed in writing by our authorised representative. Please also note that all units of labour/number of hours stated on any Order Form or Quote shall be an estimate only unless expressly stated in writing by us on the relevant Order Form or Quote that they are fixed at the time of issuance of the Order Form or Quote. Upon or following our determination that the Services have been completed, we shall issue you with a final reconciliation statement showing the total number of units of labour/hours incurred in the provision of the Services and shall issue you with a final invoice of the corresponding Charges which are payable, which will be binding on and payable by you (save in the case of manifest error) in accordance with the payment terms set out below.
2.2. Various third-party terms and conditions shall apply, depending on the specific Services that are being provided under the Agreement, and these are listed in the relevant Order Form or Quote (as applicable) accompanying these terms and conditions. You shall be obliged, and you hereby agree to comply with any and all obligations and restrictions contained in such third-party terms including any and all such obligations and restrictions that we are obliged to ensure you comply with. It is your obligation to keep up to date with any changes to such third-party terms and conditions and, as such, you should check them frequently. We shall not and has no obligation to update or inform you of any changes to any third-party terms and conditions.
- Duration of the Services
3.1. Unless and until terminated in accordance with this clause 3, this Agreement shall commence on the date of the first Order Form or Quote being accepted by us and shall continue thereafter.
3.2. You or we may terminate the Agreement at the end of the current Services being provided by us, by giving notice to the other party of not less than one month. You may not reduce the scope of the Services currently being provided without our prior written consent.
3.3. We may suspend the provision of Services (and any related services under other arrangements between us) or terminate the Agreement and any related agreement if your payment of any Charges is overdue.
3.4. You or we may terminate the Agreement and any related agreement immediately on notice to the other party if such other party:
(a) is in material breach of the Agreement and, in the case of a material breach that can be remedied, has failed to remedy it within 14 days of the first party’s written request; or
(b) becomes insolvent or is wound up due to insolvency.
3.5. We may terminate this Agreement and any related agreement upon a minimum of one month’s notice to you if we become insolvent, are wound up, or cease (or prepare to cease) to carry on business for any reason.
3.6. All provisions of the Agreement which by their nature are intended to continue shall survive termination, including terms relating to exclusions and limitations of liability, and confidentiality.
3.7. Termination this Agreement shall not affect accrued rights and liabilities of you or us up to the date of termination, including our rights to payments due from you.
- Charges and payment
4.1. You agree to pay the Charges to us in consideration of the Services.
4.2. To the extent any Charge is a regular fixed fee, it is due at the start of the Payment Period to which it relates. Should any fixed Charge increase during a Payment Period (for example, if you upgrade the Services), a pro rata proportion of the increase in the relevant Charges (corresponding to the unexpired part of that Payment Period) will be due in advance. We shall invoice Charges incurred for other Services and payment is due within 14 days of the date of the invoice. All payments for hardware should be made to the relevant supplier in accordance with their terms and we shall not be responsible for the same unless expressly agreed with you in advance and in writing.
4.3. Invoices will be emailed to your current billing email address.
4.4. Payments may be made by direct debit or other payment method agreed with us.
4.5. Other expenses which you ask us to incur on your behalf will be re-charged at cost or at standard rates prescribed by professional bodies.
4.6 Value added tax will be added where applicable and shall be payable by you in addition to the Charges.
4.7. At our discretion we may refer overdue payments to a debt collections agency, and in that event an administration charge will be added to the outstanding amount. The value of the administration charge is discretionary but would be a minimum of 25% of the overdue amount. Interest may also be charged on overdue payments at the lesser of: (a) 2% per year over the standard Lloyds Bank base rate prevailing at the time; and (b) the highest rate allowed by law.
- Non-Standard Services and Charges
Additional Services may be agreed separately and charged as follows:
5.1. Charges will be made at our standard rates for large project work and web development and any other services which may be required, unless otherwise agreed.
5.2. Charges for procurement of hardware and software will be separately agreed with you as required. Normally we will just make recommendations as to which hardware and/or software you should procure and it will be your responsibility to do so (and we will not accept any liability in respect of the same or our recommendations unless expressly stated otherwise in advance by us in writing).
- Your responsibilities
6.1. You must ensure you have appropriate licenses and permissions and have given all appropriate notifications, for us to install, access, store and/or use your relevant software, intellectual property, equipment, information and data (including, as relevant the Information) in our performance of the Services.
6.2. You agree promptly to respond to any queries we raise, and to provide us with access to any information, equipment and other facilities which we reasonably require in order to perform the Services.
6.3. It is your responsibility to maintain any internet connection and other equipment and communications facilities with adequate functionality and capacity as may be required to enable us to perform the Services (including, but not limited to, as relevant, hosting, back-up and remote access Services).
6.4. Without prejudice to clause 6.1, you may not upload onto or store on our (or our service providers’) servers or equipment any unlawful content, including content which is obscene or abusive or the use or storage of which by us (or our service providers) is (subject to our compliance with clause 12 ) in breach of copyright or other intellectual property rights, data protection or confidentiality obligations or any rights of privacy.
6.5. In using our Services, you must comply with all applicable laws, regulations, industry codes of practice and contractual obligations you have to third parties. You may not make any unlawful or unauthorised use of our or our service providers’ equipment, software or networks, including attempting to gain unauthorised access, introducing any virus or malware or causing any “denial of service” attack, sending any unsolicited bulk email or spam, or committing any criminal or fraudulent act.
6.6. You agree to comply with such additional terms as we may reasonably request in order to meet requirements imposed by our service and software providers relating to your use of any relevant Service or related software and equipment.
6.7. You agree to indemnify us and our representatives against any losses, expenses or liability which we suffer as a result of your breach of this clause 6.
- Third party hardware and software
7.1. If we agree to procure the purchase of hardware (including replacement parts and consumables) and software (including upgrades) on your behalf:
(a) you are responsible for complying with any relevant licence terms or other terms of sale or use of such hardware and software which may be imposed by the relevant supplier, manufacturer or licensor, and shall indemnify us for any liability which we suffer as a result of any breach of such terms;
(b) we are not responsible for any defects in such hardware and software and make no warranty on their quality, performance or fitness for purpose, nor that their use does not infringe any intellectual property or related rights of any third party;
(c) our support Services in relation to such defects are limited to diagnosis and liaising with the Supplier on your behalf. Our Services are not a substitute for a maintenance agreement with a supplier or distributor of specialist hardware or software; and
(d) you and we agree to co-operate with each other in enforcing or defending any terms of sale or use, or other relevant warranty or guarantee, against the relevant supplier, manufacturer or licensor, as required.
7.2. Without prejudice to clause 7.1, our total liability in relation to any hardware or software which we procure for you is limited to: (a) where you pay us a regular subscription charge for it, an amount equal to a quarter of one year’s subscription charges; or (b) in any other case, the amount you pay us for it.
- Change in equipment and/or users to be supported
In relation to our support services, if the type of equipment or number of units, or the number of users to be supported changes, the Services and Charges will be adapted accordingly. However, you may not reduce the amount of equipment or the number of users to be supported during any period of notice to terminate the Services or while the relevant Services are actually being provided.
- Development work
To the extent the Services involve the creation by us of any software or other content (including any web or software development or modifications), you agree that we shall own the intellectual property subsisting in relation to such software and content, but we grant you a non-exclusive licence to use such intellectual property internally within your business for purposes relevant to the Services.
10.1. We shall be under no obligation to supply the Service where in our reasonable opinion these are needed because of improper or inadequate installation environment use or maintenance; actions or modifications by unauthorised third parties or you, or accidental or wilful damage.
10.2. Loading or reloading of your applications software defects or errors the loading or reloading of your applications software or data or any reconfiguration of the Equipment beyond the reloading of the software as carried out and supplied upon the original Installation Date.
10.3. We are not responsible for problems caused by defective or incompatible operating systems.
10.4. We are not responsible for problems caused by defective or incompatible hardware.
- Limitations on liability
11.1. Neither party excludes or limits any liability for fraud or for death or personal injury caused by negligence, or other liability which cannot lawfully be excluded, and the other provisions of the Agreement are subject to this clause 11.1.
11.2. You and we acknowledge that:
(a) you or we (as relevant) are not entering into the Agreement in reliance of any representation or warranty other than expressly set out in the Agreement and neither party shall be liable for innocent or negligent misrepresentation; and
(b) all conditions, warranties and representations implied by law in relation to the Services or the Agreement are excluded (to the fullest extent permitted by law).
11.3. The Services may be unavailable for occasional periods for repair, maintenance or upgrading, or interruptions in network or communications services. You agree not to hold us liable for any loss or damage caused by such occasional periods of unavailability.
11.4. We shall not be liable to you for:
(a) any loss of profit, business, revenue, goodwill or anticipated savings; nor
(b) any consequential, indirect or economic loss or damage, including but not limited to any such loss or damage within the categories in (a) above, or such loss or damage to (or arising from loss of or damage to) Information, data or software, arising in relation to the Services or the Agreement and whether caused by tort (including negligence), breach of contract or otherwise, and even if foreseeable.
11.5. We shall not be liable for any failure or delay in performance of the Services due to a breach by you of the Agreement or a cause beyond our reasonable control.
11.6. We shall not be responsible or held liable for the operation, performance, quality, service, delivery, functionality, software bugs or hardware failures for hardware, software or online services provided.
11.7. Without prejudice to the other limitations of liability in the Agreement, our total liability to you arising in relation to the Services and the Agreement in any 12 month period is limited to the amount specified in the Additional Terms, or, if no such amount is specified, 25% of the total Charges payable to us in relation to such 12 month period.
11.8. We shall not be liable for any claims not notified to us within 12 months of the cause of action arising.
- Confidentiality, data protection and security
12.2. Without prejudice to clause 12.1, as part of our performance of the Services, we may store and process data, information and materials (“Information”) as a data processor on your behalf, which may include information of a confidential nature (“Confidential Information”) and personal data (including sensitive personal data) relating to your clients, staff and other contacts (“Personal Data”). We agree:
(a) unless otherwise agreed with you, or required or permitted by law, to process Confidential Information and Personal Data only for the purpose of performance of the Services; and
(b) in our performance of the Services, to implement reasonable technical and organisational security measures (including any specific measures outlined in the Order Form or Quote (as applicable) or Additional Terms) to protect Confidential Information and Personal Data against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to the same.
12.3. You acknowledge that Information may not be backed up except to the extent the Services include a backup service.
12.4. You agree to keep your passwords relating to the Services (if relevant) confidential; any use of the Services using your login details and/or passwords (other than by our Service administrators) will be your responsibility. We retain the right to administrative access to the Information.
12.5. Upon termination of this Agreement, you and we agree to co-operate with each other in good faith, at your reasonable expense, with a view to returning any Information to you. Information may be deleted from our servers and other systems after two weeks of termination of this Agreement unless alternative arrangements are made with us.
12.6. Following termination of this Agreement, we shall be entitled to retain such records relating to the Services and this Agreement as we may reasonably require to maintain records of the Services, to comply with our legal obligations and to defend our legal rights.
- Your Data
We may be involved in reselling services provided by third parties including but not limited to hosting and disaster recovery services and as such you hereby acknowledge and consent to our sharing their data with those third-party suppliers in those circumstances.
- Our staff
14.1. During the term of the Agreement and for 12 months following its termination, you agree not to solicit for employment or engagement (by you or any third party) for services identical or similar to the Services, directly or indirectly, any of our current staff members (from time to time) or former staff members for a period of 12 months following their termination of employment who have been involved in the provision of Services to you.
14.2. If you breach the requirements of clause 14.1, you agree to pay to us by way of liquidated damages a sum equal to 150% of the annual salary (or other annualised amount last payable by us) of the relevant staff member. For the avoidance of doubt, such remedy shall not prevent us seeking injunctive relief in relation to a threatened breach of clause 14.1
- Changes to Charges, Services and terms
15.1. We may make changes to the Charges, Services and/or any other provision of the Agreement upon one month’s notice to you. If you do not agree to any such changes, you may terminate the Agreement in accordance with clause 3.2 above, and the relevant Charges, Services and/or provisions shall remain unchanged prior to termination.
15.2. If we are required by law or by our service providers to change the Services or any provision of the Agreement, you agree to co-operate with us to implement such changes whilst maintaining, as far as possible, the intention of the Agreement.
16.1. Nothing in the Agreement creates or shall be deemed to create a partnership or the relationship of employer and employee between you and us (or any our staff).
16.2. Subject to clause 16.3, neither party may transfer, assign nor sub-contract any rights or obligations under the Agreement to any person without the prior written consent of the other party.
16.3. We may, without your consent: (a) sub-contract performance of the Services or any of our obligations under the Agreement to any third party; and/or (b) upon notice to you, transfer or assign all or any of our rights or obligations under the Agreement to any purchaser of our company or business.
16.4. Any notice given under the Agreement shall be sent in writing:
(a) if to us, by email to: [email protected] or by recorded delivery to our head office address; or
(b) if to you, by email or recorded delivery to the address specified on the Order Form or Quote (as applicable), or such other email or postal addresses as are subsequently notified by the relevant party to the other party.
16.5. No provision of the Agreement is intended to be enforceable by any person who is not a party to it.
16.6. No failure or delay by either party in exercising any right or remedy under the Agreement shall be construed as a waiver by that party of such right or remedy and no partial exercise of any such right or remedy shall restrict the further exercise of that right or remedy.
16.7. These terms, the Order Form or Quote (as applicable) and the Additional Terms constitute the entire agreement between you and us with respect to the Services and supersede all prior discussions and negotiations relating to the same (including any proposals, quotations and purchase orders).
16.8. Subject to clause 15, no amendments shall be valid unless in writing and signed by both parties.
16.9. If any provision of the Agreement is found to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.10. The Agreement is governed by the laws of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to hear any disputes (including non-contractual disputes) arising in connection with it.