Terms & Conditions

Terms and Conditions

These terms and conditions (as amended under clause 13.12) (“Conditions”) govern the provision of a service consisting of internet access to application software at a remote computer location together with locally installed mobile applications that interact with such application software by TommyTrinder.com Ltd, registered in England and Wales with no. 08930070, with registered address at 3 Portland Place, Pritchard Street, Bristol, United Kingdom BS2 8RH (“TT”) to the person/firm to who buys such goods/services (“Client”). These Conditions apply to the exclusion of any other terms that Client seeks to impose, or which are implied by trade, custom, practice or course of dealing. ***Note particularly clause 10 (Indemnities/Limitation of Liability)***

1 Interpretation

In these Conditions: (i) person includes a natural person/corporate/unincorporated body; (ii) a reference to TT or Client includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute/statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including/include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing/written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Law; and (vii) the following definitions apply:
  • “Affiliates”: includes in relation to either party each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party. “Agreement”: the agreement between TT and Client for the supply of Services and/or licensing of Software pursuant to these Conditions and the Agreement Form.
  • “Agreement Form”: the order form detailing the Services and Software being made available to Client.
  • “Applicable Law”: the laws of England and Wales and any other mandatory laws, regulations, regulatory policies, guidelines and industry codes which apply to the supply of the Services and/or licensing of the Software.
  • “Authorised Client Users”: those employees and independent contractors of Client who are entitled to use the Software through the Hosting Services under the Agreement. “Availability”: the availability of an access point on TT’s hosting provider's backbone network, subject to clauses 4.3 and 4.4.
  • “Business Day”: Monday to Friday, excluding any public holidays in England and Wales. “Client Default”: any act or omission of Client or a failure to perform a relevant obligation under the Agreement, including a failure to provide correct Product Specification Data.
  • “Client Payment Details”: the details of a payment card in the name of Client to be inserted into the Payment Solution by an Authorised Client User with the right to use such payment card.
  • “Commission”: 1% of the Product Order Value of each Completed Transaction. “Commission Avoidance Activity”: the purchase by Client, other than pursuant to a Product Order, of a Product from a Window Manufacturer which is similar or identical to a Product Configuration generated by the TT Platform for the applicable Customer. “Completed Transaction”: (i) a Product Order submitted by Client to a Window Manufacturer through the TT Platform; or (ii) a Commission Avoidance Activity. “Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or could reasonably be identified as Confidential Information from its content or the context in which it was provided.
  • “Configuration Variables”: the variables entered into the TT Platform by Client to create a Product Configuration for a Customer.
  • “Configurator”: the virtual showroom module of the Software available for use by Client to generate a Product Configuration for a Customer.
  • “Customer”: a customer (or prospective customer) purchasing a Product from Client. “Customer Charge”: £0.
  • “Data Processing Particulars”: the data processing particulars set out in the TT Platform Specification.
  • “Data Protection Law”: all applicable legislation protecting the fundamental rights and freedoms of individuals in relation to their personal data and right to privacy as applicable to TT Client, and/or the Services (including either: (i) prior to 25 May 2018, the Data Protection Act 1998; or (ii) from 25 May 2018 onwards, the GDPR, or any implementation thereof into the domestic law of England and Wales).
  • “Documentation”: documentation and other materials supplied from time to time to Client relating to the operation and use of the Hosting Services and the Software.
  • “Due Date”: in respect of a payment under the Agreement, the date on which such payment is due pursuant to these Conditions.
  • “Effective Date”: the effective date set out in the Agreement Form.
  • “Force Majeure Event”: an event beyond the reasonable control of TT including strikes or other industrial disputes, failure of utility service/transport network, act of God, fire, flood, storm, war, riot, civil commotion, malicious damage, compliance with law, governmental rule, direction, accident, breakdown of machinery, or default of suppliers or subcontractors (and includes any failure of a User to provide accurate Product Specification Data).
  • “GDPR” : the EU’s General Data Protection Regulation (2016/679), and references to an ‘Article’ refer to an article of the GDPR.
  • “Hosting Services”: the services that TT provides pursuant to the Agreement to enable Client to access and use the Software.
  • “Insolvency Event”: (a) Client 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 under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) Client starts negotiations with all/any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any arrangement with its creditors; (c) 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 Client; (d) Client is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of Client attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over Client; (g) a floating charge holder over the assets of Client becomes entitled to appoint/has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of Client or a receiver is appointed over the assets of Client; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.
  • “Intellectual Property Rights”: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, 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.
  • “Licence”: the licence of the Software on the licence terms detailed in clause 3.
  • “Licence Term” : 12 months, provided that the licence terms shall automatically renew for further periods of 12 months unless either party gives the other not less than 3 months’advance written notice to terminate at the end of the existing term.
  • “Maintenance and Support”: any error corrections, updates and upgrades that TT may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to Client under the Agreement.
  • “Maintenance Event”: maintenance of the Hosting Services and/or Software that may require interruption of the Hosting Services.
  • “Normal Business Hours”: 8.00am to 6.00pm UK time, each Business Day.
  • “Order Data”: data relating to Product Orders.
  • “Payment Solution”: the third party payment solution made available via the Retailer’s Portal to enable payments to be made by Client pursuant to this Agreement using a payment card.
  • “Permitted Maintenance Event”: a Maintenance Event: (i) for planned maintenance outside of Normal Business Hours, where TT has given Client at least 3 days' advance notice of the same; (ii) for emergency maintenance during the daily window of 9.00pm to 5.00am UK time, where TT has given Client as much notice as possible of the same; and (iii) which occurs during Normal Business Hours and which was caused by the Client or requested by Client to be undertaken during Normal Business Hours.
  • “ Product” : a complete window or door product (glazed or unglazed) manufactured by a Window Manufacturer.
  • “Product Configuration”: the configuration for a Product generated for a Customer by Client inputting the Configuration Variables into the Configurator.
  • “Product Order”: an order for one or more Products to be manufactured by a Window Manufacturer for a Customer each to a specific Product Configuration.
  • “Product Order Value”: the value of a Product Order payable by the Customer to Client (as calculated by the TT Platform) excluding any value added or other sales tax thereon included in such value.
  • “Product Specification Data”: in respect of a Product, the specification data provided by the applicable Window Manufacturer in relation to such Product.
  • “Retailer’s Portal”: the back-end portal of the TT Platform accessed by Client in order to perform administrative functions.
  • “Service Credit”: 0.5% of the average monthly Commission over the last 12 months for every 0.1% that the Uptime Service Level is not achieved in that month.
  • “Service Credit Cap”: 10% of the average monthly Commission over the last 12 months. “Service Level Start Date”: the Effective Date.
  • “Service Delivery Failure”: where, in a particular calendar month, the Uptime Service Level is not achieved.
  • “ Services” : the Hosting Services, and/or Maintenance and Support as applicable, given the context in which the term Services is used.
  • “ Software” : the computer programmes which form a part of to the TT Platform together with associated databases in machine-readable object code form only, including any error corrections, updates, upgrades, modifications and enhancements to them made available to Client under the Agreement.
  • “Sourcing Issue”: an inability of TT to source particular materials or resources (including personnel) on terms similar or identical to those available at the date of signature (including exchange rate fluctuations and increases in taxes and/or duties).
  • “Standard Rates”: the rates at which Services will be charged to Client by TT where the Agreement Form is silent with respect to the charging mechanism for the relevant Service. “Support Service Level”: the support service level set out at the end of these Conditions.
  • “Support Specification”: the specifications for the Maintenance and Support, as set out in the Agreement Form.
  • “TT Platform”: the Tommy Trinder platform.
  • “TT Platform Specification”: the functionality and performance specifications for the Hosting Services and the Software, as available for download from the Retailer’s Portal. “Uptime Service Level”: 99.5% Availability per calendar month.
  • “User” : a customer of the TT Platform, being a Profile Manufacturer, Window Manufacturer, Window Retailer or a Customer.
  • “Virus” : any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  • “Window Manufacturer”: a User who manufactures Products and contracts with a Window Retailer for the sale of Products to such Window Retailer.
  • “Window Retailer”: a User, being a retailer of Products, who contracts directly with a Customer for the sale of Products (on a supply only, or supply and fit basis).

2 Basic Of Contract

2.1 The Agreement Form constitutes an offer by TT to provide Services and licence Software which shall be deemed accepted when Client signs such Agreement Form (or TT commences provision of Services or grants access to the Software, on which date the Agreement shall come into existence (“Start Date” ). Following such acceptance: (i) Client may not cancel the Agreement other than under clause 11.1; and (ii) TT may only cancel the Agreement under clause 11.

2.2 Client accepts responsibility for the selection of the TT Platform to achieve its intended results and acknowledges that it has not been developed to meet the individual requirements of Client.

2.3 Client acknowledges that the TT Platform is designed to support contractual obligations entered into between the Users outside of the TT Platform. In particular, it is acknowledged that:

2.3.1 each Window Manufacturer has separately entered into contractual arrangements with each Window Retailer for the supply of Products (“Product Supply Agreement”). The TT Platform is designed to forward the Product Configuration to the Window Manufacturer to assist a Window Retailer to place an order with the Window Manufacturer under the Product Supply Agreement;

2.3.2 each Window Retailer has separately entered into contractual arrangements with Customers for the supply or supply and fit of Products.

2.4 Using the Retailer’s Portal, Client must select:

2.4.1 Window Manufacturers in respect of which a Product Supply Agreement is in force and to which Client is willing to purchase the relevant Products; and

2.4.2 Product types which Client is willing to purchase from such Window Manufacturers,

2.5 Client shall be responsible for ensuring the Interoperability Settings are kept up-to- date at all times.

3 Software License

3.1 TT hereby grants to Client a non-exclusive licence for the Licence Term to use the Software and the TT Platform.

3.2 Use of the Software and the TT Platform shall be restricted to:

3.2.1 the Licence Type restrictions set out in the Agreement Form for the same;

3.2.2 the Quantity restrictions set out in the Agreement Form for the same;

3.2.3 the Use Extent set out in the Agreement Form;

3.2.4 object code form;

3.2.5 the purpose described in the Agreement Form;

3.2.6 the normal business purposes of Client and Client’s Affiliates;

3.2.7 employees of Client and third party contractors using the same solely for the benefit of the Client and Client’s Affiliates.

3.3 "Use” of the Software means accessing the Software from a remote location via the Hosting Services, solely in accordance with the Documentation.

3.4 Client may not use the Software other than as specified in this clause without the prior written consent of TT, and Client acknowledges that additional fees may be payable on any change of use approved by TT.

3.5 Client acknowledges that backup copies of the Software are not required, as the Software is not locally installed.

3.6 Except as expressly licensed, Client has no right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Software or Hosting Services in order to build a product or service which competes with the TT Platform, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.

3.7 Client shall not: (i) sub-license, assign or novate the benefit or burden of the Licence in whole or in part; (ii) allow the Software to become the subject of any charge, lien or encumbrance; or (iii) deal in any other manner with any or all of its rights and obligations under the Agreement, without the prior written consent of TT.

3.8 Client's access to the Hosting Services shall be limited to the Authorised Client Users who are licensed to use the applicable Software.

3.9 Client shall ensure that each Authorised Client User keeps a secure password for his/her use of the Software, that such password is changed no less frequently than monthly and that each Authorised Client User keeps his password confidential.

3.10 Client shall not store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.

3.11 Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify TT promptly of any such unauthorised access or use.

3.12 Client shall permit TT access to any records kept in connection with this licence, for the purposes of ensuring that Client is complying with the terms of this licence, provided that TT provides reasonable advance notice to Client of such inspections, which shall take place at reasonable times. This right shall continue beyond termination/expiry to enable TT to verify that use has ceased.

4 Hosting Services & Software

4.1 TT shall:

4.1.1 perform the Hosting Services during the Licence Term with reasonable skill and care and materially in accordance with the TT Platform Specification. In the event of a failure, TT will use all reasonable commercial endeavours to correct the same promptly, or provide Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Client's sole and exclusive remedy for any breach of this clause. The obligations in this clause shall not apply to the extent any failure is caused by a Force Majeure Event or any Client Default;

4.1.2 with effect from the Service Level Start Date, use its reasonable endeavours to comply with the Uptime Service Level; and

4.1.3 endeavour to keep any interruptions to the Hosting Services to a minimum.4.2 TT does not warrant that Client’s (or any other User’s) use of the Hosting Services or the Software will be uninterrupted or error-free.

4.3 The following shall not reduce Availability: (i) availability of the portion of the circuit that does not transit the hosting provider's backbone network, as Client is responsible for its own internet access; (ii) Permitted Maintenance Events; (iii) Client- caused or third party-caused (including other User-caused) outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by TT to perform the Services); and (iv) outages or disruptions attributable in whole or in part to Force Majeure Events.

4.4 Availability measurements are performed at 5-minute intervals and measure the Availability of an availability test page within the Software within 30 seconds. Availability measurement begins on the first day of the first calendar month, beginning on the Service Level Start Date. Uptime Service Level calculation shall be carried out by TT and is based on the monthly average percentage Availability, calculated at the end of each calendar month as the total actual minutes of Availability divided by total possible uptime minutes in the month. TT shall keep and shall send to the Client, on request, full records of its Availability measurement activities under the Agreement.

4.5 If there is a Service Delivery Failure in a month, TT shall apply the applicable Service Credits to Client's account, subject to: (i) Client requesting it within 40 Business Days of the service-affecting event(s); and (ii) Service Credits in a given month being limited to the Service Credit Cap.

4.6 TT shall have the right to make any changes to the Hosting Services which: (i) are necessary to comply with any Applicable Law or safety requirement; (ii) result from a Sourcing Issue; or (iii) which do not materially affect the nature or quality of the same, and TT shall notify Client in any such event.

4.7 TT shall follow the archiving procedures for Order Data and Product Specification Data relating to Client’s Products as described in the TT Platform Specification. However, it is the responsibility of Client to ensure Order Data is downloaded promptly from the TT Platform and that back-up copies of Product Specification Data relating to Client’s Products are retained by Client.

5 Generating Product Configurations

5.1 An Authorised Client User shall select a Product and input Configuration Variables into the Configurator, which shall generate a Product Configuration.

5.2 Client is solely responsible for selecting the Product and for ensuring that the Configuration Variables are inputted correctly.

5.3 TT does not guarantee that any Product will remain on the TT Platform. The availability of Products is determined in the sole discretion of the relevant Window Manufacturer.

6 Product Orders

6.1 An Authorised Client User can generate a Product Order from a Product Configuration, which shall be made available to the applicable Window Manufacturer in accordance with the TT Platform Specification. 6.2 Client acknowledges that:

6.2.1 each Product Order is supplied directly from Client to the applicable Window Manufacturer; and

6.2.2 a Product Configuration is dependent on: (i) correct Product Specification Data having been inputted into the TT Platform by the relevant Window Manufacturer; and (ii) the Authorised Client User inputting the Configuration Variables correctly.

7 Maintenance & Support

7.1 TT shall perform the Maintenance and Support during the Licence Term with reasonable skill and care and materially in accordance with the Support Specification and, with effect from the Service Level Start Date, TT shall use its reasonable endeavours to comply with the Support Service Level.

7.2 TT shall have the right to make any changes to the Maintenance and Support which: (i) are necessary to comply with any Applicable Law or safety requirement; (ii) result from a Sourcing Issue; or (iii) which do not materially affect the nature or quality of the same, and TT shall notify Client in any such event.

7.3 TT shall provide training as specified in the Agreement Form. Unless stated to the contrary, training shall be undertaken at the premises of Client and charges are exclusive of travel and expenses.

7.4 Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software Specification.

7.5 TT shall maintain and update the Software. Should the Client determine that the Software includes a defect, the Client may at any time file error reports. During maintenance periods, TT may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. TT shall use all reasonable endeavours to avoid unscheduled downtime for maintenance.

7.6 Any and all ongoing integrations between the Software and any Client systems are the sole responsibility of Client. TT’s obligations with regard to such ongoing integrations shall be limited to maintaining such application protocol interfaces as are detailed in the TT Platform Specification.

8 Client's Co-Operation

8.1 Client shall:

8.1.1 provide TT with: (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information as may be required by TT in order to render the Services, security access information and software interfaces to Client's other business applications;

8.1.2 provide such personnel assistance as may be reasonably requested by TT from time to time;

8.1.3 appoint a project manager, who shall have the authority to contractually bind Client on all matters relating to the Agreement. Client shall use reasonable endeavours to ensure continuity of the same;

8.1.4 carry out all other Client responsibilities set out in accordance with these Conditions or in any of the Schedules in a timely and efficient manner. In the event of any delays in Client's provision of such assistance as agreed by the parties, TT may adjust any timetable or delivery Schedule set out in the Agreement as reasonably necessary.

8.2 Where there is a Client Default, TT (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until Client remedies the same.

8.3 Client acknowledges that a Commission Avoidance Activity constitutes a material breach of the Agreement by Client that is not capable of remedy.

9 Charges & Payments

9.1 Client shall pay:

9.1.1 the Commission via the Payment Solution at the time a Product Order is submitted to Client through the TT Platform; and

9.1.2 the Customer Charge in respect of each Customer for which a Product Configuration is generated via the Payment Solution at the time the first Product Configuration is generated for that Customer.

9.2 Client shall input the Client Payment Details into the Payment Solution on or about the Effective Date and shall ensure such details remain up-to-date. Client acknowledges that, unless Client Payment Details that are in-date and capable of making payments are contained in the Payment Solution, TT may, at its discretion, suspend Client’s access to the TT Platform.

9.3 TT reserves the right to:

9.3.1 increase the Commission and/or the Customer Charge; and/or

9.3.2 increase any of its Standard Rates, but no more than once in any 12 month period.

9.4 TT will give Client written notice of any such increase 2 months before applying the increase.

9.5 Should Client object to such increase, Client may terminate the Agreement on 1 month’s written notice to TT.

9.6 TT shall invoice Client when the applicable charges become due. Prices are exclusive of value added tax, which shall be added to the applicable invoices. Client shall pay each invoice in full (without any deduction/withholding) under the Credit Terms and time for payment is of the essence. Should TT believe that the credit worthiness of Client has reduced, TT may vary the Credit Terms on written notice to Client. Without limiting any other right or remedy of TT, if Client fails to make any payment due to TT by the Due Date, TT may charge interest on the overdue amount at 8% per annum above the then current HSBC's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

9.7 TT may, without limiting its other rights or remedies, set off any amount owing to it by Client against any amount payable by TT to Client.

9.8 TT may from time to time audit the records of Client (or appoint 3rd party auditors to audit the records of the Client) to ensure that the level of the Commission is accurate (and in particular to verify compliance with clause 8.3) and Client shall promptly cooperate fully with all reasonable requests from TT in relation to the same. Should it be determined that there has been a shortfall in the payment of Commission, Client shall pay to TT such sum immediately, together with interest on the same (at the rate referred to in clause 9.6) and all costs associated with the undertaking of such audit.

10 Warranties, Indemnities & Limitation Of Liability

10.1 Save as expressly stated in these Conditions, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

10.2 Client shall indemnify TT from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by TT in connection with: (i) TT’s storage/handling/incorporation within the TT Platform of any Customer’s details, Configuration Variables and any Product Configurations and Users’ use of the same through the TT Platform; (ii) any failure of Client to obtain appropriate licences and/or consents under clause 13.4, or any subsequent revocation or non- renewal of any such licence and/or permit; (iii) any failure of Client to ensure compliance with Applicable Law under clause 13.4; and (iv) any use of the Services or Software by Client other than as envisaged under the Agreement; (v) any Client Default.

10.3 TT shall defend Client, its officers, directors and employees against any claim that the Software, Services or Documentation infringes any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Client for any amounts awarded against Client in judgment or settlement of such claims, provided that:

10.3.1 TT is given prompt notice of any such claim;

10.3.2 Client provides reasonable co-operation to TT in the defence and settlement of such claim (at TT’s expense, provided such expenses are reasonable and can be evidenced to TT’s satisfaction); and

10.3.3 TT is given sole authority to defend or settle the claim. In the defence or settlement of any claim, TT may procure the right for Client to continue using the Software, Services and/or Documentation, replace or modify the Software, Services and/or Documentation so that they become non- infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days' notice to Client without any additional liability or obligation to pay liquidated damages or other additional costs to Client. In no event shall TT, its employees, agents and sub-contractors be liable to Client to the extent that the alleged infringement is based on: (a) a modification of the Software, Services or Documentation by anyone other than TT; (b) Client's use of the Software, Services or Documentation in a manner contrary to the instructions given to Client by TT; or (c) Client's use of the Software, Services or Documentation after notice of the alleged or actual infringement from TT or any appropriate authority. The foregoing and clause 10.5 state Client's sole and exclusive rights and remedies, and TT’s (including its employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

10.4 Nothing in these Conditions shall limit/exclude TT’s liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be excluded by law.

10.5 Subject to clause 10.3, TT’s liability (whether in contract or otherwise) is limited as follows:

10.5.1 TT shall not be liable for: (a) any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a Force Majeure Event or any Client Default; (c) losses, costs or expenses incurred by Client resulting from any error or inaccuracy in any Configuration Variables; (d) losses, costs or expenses incurred by Client resulting from any Product Specification Data; or (e) losses, costs or expenses incurred by Client resulting from the removal at any time of a Product by the relevant Window Manufacturer.

10.5.2 in the event of any loss or damage to information or data supplied by Client or any Product Configuration or Product Order data, Client's sole and exclusive remedy shall be for TT to use reasonable commercial endeavours to restore the same from its latest back-up maintained by TT in accordance with the archiving procedure described in the TT Platform Specification. TT shall not be liable for any loss, destruction, alteration or disclosure of information or data supplied by Client or any Product Configuration or Product Order data caused by any third party (except those third parties sub-contracted by TT to perform services related to maintenance and back-up);

10.5.3 TT shall not be liable to Client for any loss of profit, any anticipated savings, loss of business opportunity, loss of goodwill, loss of or corruption of data, or any indirect, consequential or special loss arising under or in connection with the Agreement;

10.5.4 liability for Service Delivery Failures is limited to Service Credits, as more particularly detailed in clause 4.5; and

10.5.5 TT’s total liability to Client in respect of all losses arising under or in connection with the Agreement shall in no circumstances exceed the value of the Agreement.

10.6 This clause 10 shall survive termination.

11 Termination

11.1 Client may only terminate the Agreement immediately on written notice to TT if TT commits a material breach of such Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach from Client.

11.2 Without limiting its other rights or remedies, TT may terminate the Agreement (or suspend the Services and/or Software licences, or suspend Users’ access to the Products) with immediate effect giving written notice to Client where: (a) necessary as a result of Applicable Law; (b) a Sourcing Issue has occurred which affects such Services and/or Software licences; (c) a Force Majeure Event prevents TT from providing Services and/or Software licences for more than 2 weeks; (d) Client commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach from TT; (d) an Insolvency Event has occurred; or (e) Client fails to pay any amount due under the Agreement on the Due Date. Client shall notify TT immediately if it becomes (or believes it may in the future become) subject to an Insolvency Event.

11.3 On termination of the Agreement for any reason, the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of any Contract which existed at or before the date of termination or expiry. Without limiting any other right:

11.3.1 Client shall immediately pay to TT all of TT’s outstanding unpaid invoices and interest;

11.3.2 in respect of Services supplied or Software licences granted but for which no invoice has yet been submitted, TT shall submit an invoice, which is payable by Client immediately on receipt;

11.3.3 Client shall cease use of any Software.

11.4 Clauses that expressly/impliedly have effect after termination shall continue in full force and effect.

12 Data Protection

12.1 In order to provide the Services, TT must process personal data on behalf of Client (including as detailed in the Data Processing Particulars) (the “Purpose”). The parties acknowledge and agree that the processing is necessary and proportionate to the Purpose.

12.2 TT will only process personal data:

12.2.1 on Client’s documented instructions (“Client Instructions”) (except where it is required to do so otherwise by law, in which case TT shall notify Client of such beforehand, unless such notice is prohibited by law); and 12.2.2 in full compliance with these Conditions and any obligations imposed on TT by applicable Data Protection Law.

12.3 Taking into account the nature of the processing and the information available to it, TT will provide Client with such information and assistance as Client reasonably requires and in accordance with the reasonable timescale indicated by Client, in order to:

12.3.1 carry out any relevant privacy impact assessment;

12.3.2 consult with a supervisory authority prior to processing; and

12.3.3 exercise the rights granted to a data subject.

12.4 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as risks to the rights and freedoms of natural persons, TT will implement and maintain technical and organisational measures to ensure a level of security appropriate to those risks. In assessing the appropriate level of security to be taken, TT will in particular take account of the risks from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed by or on behalf of TT.

12.5 To the extent that any Client Instructions:

12.5.1 require additional effort and/or expenditure on the part of TT, Client shall reimburse TT’s reasonable costs and expenses incurred; and/or

12.5.2 serve to hinder or prevent TT’s performance of its obligations under the Agreement, such Contract shall continue despite such reduced/non performance, and (i) TT shall not be in breach of the Agreement as a result of it following Client Instructions; and (ii) the charges which have been paid or which will become payable shall not be reduced (even if TT is unable to perform its obligations in part or in full).

12.6 TT will ensure that those of its personnel (including contractors) with access to personal data are made aware of their data protection and security obligations and do not process personal data except in accordance with Client’s instructions or these Conditions.

12.7 TT shall not engage another processor without Client’s prior specific or general written authorisation. In the case of general written authorisation, TT will inform Client of any intended changes concerning the addition or replacement of other processors and allow Client a reasonable opportunity to object to such changes. Where Client objects, TT may either (i) elect not to use the processor to which Client has an objection; or (ii) permit Client to terminate the Agreement upon 30 days’ written notice.

12.8 If TT engages another processor to carry out specific processing activities on behalf of Client, TT will ensure that the other processor:

12.8.1 only does so on equivalent terms to those imposed under the Agreement; 12.8.2 provides sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the GDPR (including the requirements relating to security, integrity and confidentiality), and TT shall remain fully liable to Client for the performance of those obligations.

12.9 If TT becomes aware of a personal data breach, it shall notify Client as soon as reasonably practicable upon becoming aware of the breach, describing the nature of the personal data breach in a sufficient level of detail so as to enable Client to conduct an analysis of the potential risks to its business, including details of what personal data was compromised, and the name of the appropriate contact at TT from whom more information can be obtained.

12.10 Where a personal data breach occurs, TT shall document it and any related action taken by TT.

12.11 TT will not transfer personal data to a country or international organisation unless Client has consented to the transfer and:

12.11.1 the EU Commission has decided that that country or organisation ensures adequate protection under Article 45;

12.11.2 appropriate safeguards are in place (as set out in Article 46); or 12.11.3 one or more of the derogations in Article 49 applies.

13 General

13.1 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13.2 Intellectual Property Rights:

13.2.1 All Intellectual Property Rights in or arising out of or in connection with the TT Platform, the Services and the Software (other than the Configuration Variables and Products Orders) is owned by TT (or its licensors). Except as expressly stated herein, the Agreement does not grant Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any Documentation.

13.2.2 Client shall own all rights, title and interest in and to all of the Configuration Variables, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the same.

13.3 Anonymised Data: Client hereby consents to TT: (i) generating anonymised data from use of the TT Platform by Users; and (ii) using such anonymised data in any manner.

13.4 Import Licences/Consents: Client is solely responsible for obtaining, at its own cost, such import licences and other consents in relation to the Services, Software and information or data supplied by Client as are required from time to time and, if required by TT, Client shall make those licences and consents available to TT prior to delivery. Client is responsible for ensuring its use of the Services and the Software (including access it gives to information or data supplied by Client) comply with Applicable Law and shall undertake any and all testing necessary to ensure such compliance at its own cost.

13.5 Export control: Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval. Each party undertakes:

13.5.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

13.5.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

13.6 The Contract shall not prevent TT from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under the Agreement.

13.7 Confidentiality: A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning Disclosing Party's business or its products or its services which Receiving Party may obtain. Receiving Party shall restrict disclosure of such information to such of its employees, agents or subcontractors as need to know it to discharge Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind Receiving Party. This clause 13.7 shall survive termination.

13.8 Entire Agreement: The Agreement constitutes the entire agreement between the parties relating to the particular Contract, superseding all previous arrangements between the parties relating to its subject matter. Any samples, drawings, descriptive matter, illustrations and advertising issued by TT or contained in TT’s websites, catalogues or brochures are issued and/or published for the sole purpose of giving an approximate idea of the Services and/or Software. They shall not form part of the Agreement or have any contractual force. Client confirms it has not relied on any statement, promise or representation made or given by or on behalf of TT which is not set out in the applicable Contract. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in the applicable Contract.

13.9 Force majeure: TT shall not be liable to Client as a result of any delay or failure to perform its obligations under the Agreement as a result of a Force Majeure Event.

13.10 Assignment and subcontracting: TT may at any time assign, transfer, novate, charge, subcontract, sub-licence and/or deal in any other manner with all or any of its rights under the Agreement. Client shall not, without the prior written consent of TT, assign, transfer, novate, charge, subcontract, sub-licence or deal in any other manner with all or any of its rights or obligations under the Agreement.

13.11 Notices: Any notice required to be given under or in connection with the Agreement shall be in writing, addressed to the contact name/title detailed in the Agreement Form and shall be delivered to the other party: (i) personally/sent by recorded delivery/commercial courier, to its registered office/principal place of business (if not a company); or (ii) emailed to the other party’s email address set out in the Agreement Form. Any notice is deemed received if: (i) delivered personally, when left at such address; (ii) if sent by recorded delivery, at the time delivery is recorded; (iii) if delivered by commercial courier, at the date/time that the courier's delivery receipt is signed; or (iv) if emailed, at the time of delivery, provided a valid delivery confirmation has been received. If actual delivery takes place outside of working hours on a Business Day, the date/time of deemed delivery shall be 9.00am on the next Business Day. This clause 13.11 shall not apply to the service of any proceedings or other documents in any legal action.

13.12 Variation/Waiver: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Agreement shall only be binding when agreed in writing and signed by TT. A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

13.13 Severance: If a court or any other competent authority finds that any provision (or part of a provision) of the Agreement is invalid/illegal/unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

13.14 No partnership: Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership/joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

13.15 3rd parties: A person not a party to the Agreement shall not have any rights under/in connection with it.

13.16 Compliance with law: Client shall at all times comply (and shall ensure that relevant third parties comply) with Applicable Law, including the Bribery Act 2010.

13.17 Governing law and jurisdiction: The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
SUPPORT SERVICE LEVEL RESPONSE TIME TARGET RESOLUTION TIME
P1 The entire Service is "down" and inaccessible. P1 incidents shall be reported by telephone only. Within 2 Normal Business Hours. 4 Normal Business Hours. Continuous effort after initial response and with Client co- operation.
P2 Operation of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. P2 incidents shall be reported by telephone only. Within 4 Normal Business Hours. Within 2 Business Days after initial response.
P3 Certain non-essential features of the Service are impaired while most major components of the Service remain functional. Within 12 Normal Business Hours. Within 7 Business Days after initial response.
P4 Errors that are, non disabling or cosmetic and clearly have little or no impact on the normal operation of the Services. Within 24 Normal Business Hours. Next release of Software.
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