2. Provision of Equipment
4. Customer’s Obligations
5. Risk and Ownership
9. Changing the Contract
10. Ending the Contract
11. Limitation of Liability
12. Intellectual Property and Confidentiality
13. General Terms
1.1 In the Contract the following terms have the meanings shown next to them:
An event where the Customer ceases to do business; or has bankruptcy or insolvency proceedings brought against it; or does not make any payment under a judgement of a Court on time; or makes an arrangement with its creditors (other than where solely for solvent amalgamation or solvent reconstruction); or a receiver, administrative receiver or administrator is appointed over any of its assets; or it goes into liquidation; or a notice is given, a petition is issued, a resolution is passed or any other step is taken to commence any of the foregoing procedures; or there is a corresponding event under Scottish law.
BT Engage IT
BT Engage IT Limited, No 1 Avenue One, Letchworth Business Park, Letchworth Garden City, Hertfordshire, SG6 2HB
these conditions of Sale
any information (including know-how, trade secrets, software or data) of a confidential nature which is obtained under the Contract whether such information is in written, oral or any other form and whether or not marked as confidential
this agreement for the provision of any Equipment and any installation and configuration between BT Engage IT and the Customer comprising in order of precedence:
the person with whom BT Engage IT contracts to supply the Equipment
each item of equipment, including any Software, specified on the Order Form
a subsidiary or holding company including a holding company, or a subsidiary of any such holding company, all as defined by Part 38 of the Companies Act 2006 and as subsequently re-enacted
Intellectual Property Rights
any patent, petty patent, copyright, database right, design right, community design right, semiconductor topography right, registered design, rights in confidential information and know-how, or any similar right in any part of the world and will include any applications for the registration of any such rights capable of registration in any part of the world
the document that sets out the Equipment to be supplied under the Contract
the place at which the Equipment is delivered, kept or installed
any software and associated written and electronic documentation and data provided by BT Engage IT under the Contract
2.1 Site Preparation and Access
(a) The Customer agrees to prepare the Site according to any instructions BT Engage IT may give and to provide BT Engage IT with reasonable access to the Site for the purposes of the Contract.
(b) The Customer will obtain any permission needed, including permission for any changes to the Site.
(c) The Customer and BT Engage IT will meet each other’s reasonable safety and security requirements when on the Site. If the Customer or BT Engage IT damages the other’s equipment it must pay for any repair or replacement needed. This does not apply where the damage results from normal use.
(d) The Customer is responsible for making the Site good, after any work undertaken by BT Engage IT at the Site, including putting items back and re-decorating.
2.2 Delivery and Installation
(a) BT Engage IT will use its reasonable endeavours to supply and, when ordered, install and/or configure the Equipment by any date agreed with the Customer, but all dates are estimates.
(b) If the Customer delays or prevents the delivery or installation of the Equipment, BT Engage IT may apply reasonable additional charges and/or claim a reasonable extension to any date agreed under clause 2.2.(a) BT Engage IT will notify the Customer in writing of any additional charges, which the Customer will pay directly to BT Engage IT.
(c) The Customer will take delivery of and sign for the Equipment on the date of delivery as notified by BT Engage IT. On the day of delivery the Customer will notify BT Engage IT if:
(i) the quantity of packages delivered is different to the quantity shown on the delivery note; and/or
(ii) there is any damage to the packages or boxes.
(d) The Customer must notify BT Engage IT in writing of any damage to any of the Equipment, other than damage caused by any act or omission by the Customer, or any other discrepancy in the Equipment delivered within 5 working days from the date of delivery. Such notification should include model and part numbers of affected Equipment and identity of any Software application.
(e) Subject to clause 7, BT Engage IT shall have no further liability to the Customer where the Customer has not notified BT Engage IT as set out in clause 2.2.(d).
(f) Where there is a delay in the delivery of the Equipment or part of the Equipment (including supplies on acceptable terms) by a manufacturer or distributer, BT Engage IT may propose to the Customer a substitution of another product of a similar specification to the Equipment or part of the Equipment.
(a) The Customer shall follow BT Engage IT’s instructions when returning Equipment that it has notified to BT Engage IT as set out in paragraphs 2.2.(c) and 2.2.(d) above. The Customer will ensure that Equipment, including any manuals and other associated documentation, is returned in an otherwise “as new condition”, in its original packaging and that the seal is not broken for any Software, unless otherwise agreed by BT Engage IT in writing or if the Software is faulty. BT Engage IT may at its option either reject any returns that are not in accordance with its instructions or that are incomplete, or charge a restocking fee.
(b) BT Engage IT will raise a credit note for all returns that are not rejected in accordance with clause 2.3.(a).
(c) BT Engage IT’s sole liability for incomplete or damaged Equipment on arrival will be to replace the Equipment at its own expense.
3.1 If BT Engage IT installs the Equipment, BT Engage IT will test it to ensure that it is ready for use in accordance with its established test procedures or programmes. Acceptance of the Equipment by the Customer will take place on the earlier of:
(a) the date when BT Engage IT notifies the Customer that the Equipment has passed BT Engage IT's tests and is ready for use; or
(b) the date when the Customer begins to use the Equipment; or
(c) 14 days from the initial agreed date of delivery where the Customer delays installation or re-schedules delivery for more than 14 days after the initial agreed date of delivery.
3.2 Subject to clause 2.2.(d), if BT Engage IT does not install the Equipment acceptance of the Equipment by the Customer will take place when the Customer takes delivery or possession of the Equipment.
4.1 Until it has paid for the Equipment, the Customer will:
(a) keep the Equipment safe and only use it in accordance with any instructions BT Engage IT may give; and
(b) only use or allow the Equipment to be used for any purpose for which it is designed; and
(c) not claim to be owner of the Equipment and use its reasonable endeavours to ensure that the owner of the Site will not claim ownership of the Equipment, even if the Equipment is fixed to the Site; and
(d) indemnify BT Engage IT against all claims and proceedings arising from the Customer’s use of the Equipment or if the Equipment is stolen or damaged as a result of the Customer’s negligence or gross misconduct. The Customer will keep BT Engage IT informed of anything which may affect the rights of BT Engage IT, or involve BT Engage IT in any proceedings, loss or liability.
4.2 Where requested by BT Engage IT, Customer will promptly:
(a) supply BT Engage IT with configuration details in written format confirming the Customer's exact requirements; and
(b) provide BT Engage IT with all necessary information and assistance with regard to any aspect of the Equipment.
BT Engage IT may apply reasonable additional charges and/or claim a reasonable extension to any date agreed under clause 2.2.(a) if the Customer does not respond promptly to BT Engage IT’s request. BT Engage IT will notify the Customer in writing of any additional charges, which the Customer will pay directly to BT Engage IT.
5.1 Where the Contract includes delivery or installation, risk on delivery of the Equipment, but the Customer will not be liable for any loss or damage that is caused by BT Engage IT’s negligence.
5.2 Where the Contract does not include delivery or installation risk passes to the Customer when the Customer takes possession of the Equipment.
5.3 Ownership of the Equipment, (except for the Intellectual Property Rights) will pass to the Customer on payment in full of the charges as detailed on the Order Form.
5.4 Until payment in full, in the event of Bankruptcy or threatened seizure of the Equipment, the Customer will immediately notify BT Engage IT and BT Engage IT may take action to repossess the Equipment. The Customer will also notify interested third parties of BT Engage IT's ownership of the Equipment.
6.1 The parties acknowledge that these Conditions prevail over any Customer terms and conditions, including any terms and conditions referred to or included in the Customer’s purchase order where the Customer’s purchase order constitutes the Order Form.
7.1 BT Engage IT shall pass on to the Customer the benefits of any warranty or guarantee that it has obtained from its supplier on the same terms, provided that:
(a) the Customer has accepted and paid in full for the Equipment; and
(b) the Equipment has been properly kept, used and maintained in accordance with the manufacturer’s or BT Engage IT’s instructions, if any, and has not been modified except with BT Engage IT’s or manufacturer’s written consent; and
(c) any fault is not due to accidental or wilful damage; interference with or maintenance of Equipment by persons other than BT Engage IT or the Equipment manufacturer.
7.2 This guarantee does not cover fair wear and tear.
7.3 If the Customer reports a fault and BT Engage IT finds there is none or that the Customer has caused the fault, BT Engage IT may apply a charge.
7.4 Except where the Customer relies on BT Engage IT’s written advice, it is the Customer’s responsibility to satisfy itself as to the suitability of Equipment for its needs.
7.5 BT Engage IT does not warrant that the Software supplied under the Contract will be free of all faults or that its use will be uninterrupted. BT Engage IT will pass on to the Customer the benefits of any warranty or guarantee that it has obtained from the Software supplier on the same terms.
7.6 BT Engage IT will use its reasonable endeavours to remedy any faulty work that it has done provided that the Customer notifies BT Engage IT in writing of the fault within seven days after the work has been completed.
8.1 The charges are as detailed on BT Engage IT’s invoice.
8.2 BT Engage IT will send invoices for any charges to the address as set out in the Order Form unless otherwise notified by the Customer to BT Engage IT.
8.3 Unless otherwise stated, charges:
(a) do not include delivery or installation or configuration; and
(b) are exclusive of VAT which is chargeable at the applicable rate.
8.4 If payment of any charges becomes subject to withholding tax, levy or similar payment obligation imposed by a foreign tax authority on sums due to BT Engage IT under the Contract such withholding tax amounts will be borne and paid for by the Customer in addition to the sums due to BT Engage IT. The Customer will provide BT Engage IT without charge the appropriate certificate(s) from the relevant authorities confirming the amount of the withholding taxes, levies or similar payments borne and paid for by the Customer.
8.5 As part of its credit management procedures BT Engage IT may:
(a) require the Customer to pay a deposit; and/or
(b) carry out a credit vet of the Customer. The Customer agrees to provide BT Engage IT with any information that BT Engage IT may reasonably require for this.
8.6 Payment is due 30 days from the date of the invoice unless otherwise agreed in writing.
8.7 If the Customer disputes any charge on an invoice the Customer will notify BT Engage IT in writing within 14 days of the date of the bill with all relevant information. Where the disputed amount is:
(a) less than 5% of the total bill, the Customer will pay the full amount of the bill; or
(b) more than 5% of the total bill, the Customer must pay the amount not in dispute.
Any disputes will be resolved promptly and the resolved amount if any is payable immediately.
8.8 If BT Engage IT does not receive payment by the due date, BT Engage IT may charge the Customer daily interest on late payments at a per annum rate equal to 7% above the base lending rate of the European Central Bank, compounded daily, for the period beginning on the date on which payment is due and ending on the date on which payment is made.
8.9 If the Customer does not pay any invoice, BT Engage IT may instruct a debt collection agency to collect payment (including any interest) on its behalf. If BT Engage IT instructs a debt collection agency, the Customer must pay BT Engage IT an additional sum to cover (but not exceed) the reasonable costs incurred by BT Engage IT in instructing the debt collection agency.
8.10 If any sum owed by the Customer to BT Engage IT under the Contract or any other contract the Customer has with BT Engage IT is not paid by the due date, BT Engage IT may deduct this sum from any payment or credit due to the Customer under the Contract or any other contract with BT Engage IT.
8.11 BT Engage IT may check the Customer’s details with a fraud prevention agency. If the Customer provides information that BT Engage IT reasonably believes to be false or incorrect and BT Engage IT suspects fraud, BT Engage IT may record this information with a fraud prevention agency . BT Engage IT and other organisations may use and search this information.
9.1 The Contract cannot be varied without the written agreement of the parties.
10.1 BT Engage IT may end the Contract at any time by giving notice to the Customer:
(a) before BT Engage IT delivers the Equipment or the Customer takes possession of the Equipment on 7 days written notice to the Customer; or
(b) with immediate effect if the Customer:
(i) breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by BT Engage IT to do so; or
(ii) suffers Bankruptcy.
10.2 The Customer may:
(a) cancel an order prior to delivery by giving notice to BT Engage IT and if so agrees to pay BT Engage IT’s cancellation charge which may include;
(i) BT Engage IT’s charges for order processing and management; and/or,
(ii) BT Engage IT’s charges for Equipment returns; and/or
(iii) The full charges for the Equipment and any Software; and/or
Where the Customer orders installation, BT Engage IT will apply charges as follows;
Notice period prior to installation
10 days or more
5 – 9 days
50% of the charges due
4 days or less
100% of the charges due
BT Engage IT will try to keep such charges set out in clauses 10.2 (a) (i) to (iii) inclusive to a minimum.
(b) end the Contract if:
(i) BT Engage IT materially breaches the Contract and, if the breach is capable of remedy, fails to put right the breach within a reasonable time of being asked by the Customer to do so; or
(ii) BT Engage IT ceases to do business; or has bankruptcy or insolvency proceedings brought against it; or makes an arrangement with its creditors (other than where solely for solvent amalgamation or solvent reconstruction); or a receiver, administrative receiver or administrator is appointed over any of its assets; or it goes into liquidation; or a notice is given, a petition is issued, a resolution is passed or any other step is taken to commence any of the foregoing procedures; or if there is a corresponding event under Scottish Law.
11.1 Neither the Customer nor BT Engage IT excludes or restricts its liability for death or personal injury caused by its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation or to any extent not permitted by law.
11.2 Neither the Customer nor BT Engage IT will be liable to the other whether in contract, tort, under statute, for misrepresentation or otherwise (including in each case negligence) and whether or not the party concerned was advised in advance of the possibility of such loss or damage, for:
(a) any of the following types of loss, damage or liability whether direct, indirect or consequential howsoever arising under or in connection with the Contract or any part of it: loss of data or destruction of data, loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of business, wasted expenditure, loss from business interruption, loss of contracts, loss from expenditure of time by managers and employees, loss of or damage to goodwill (including pecuniary losses), liability to third parties; or
(b) any indirect or consequential loss or damage whatsoever.
11.3 Subject to clauses 11.1 and 11.2, the Customer and BT Engage IT accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss to a value not to exceed:
(a) £1,000,000 for loss of or damage to physical property; and
(b) for all other loss or damage, the greater of either:
(i) £10,000; or
(ii) 125% of the amounts paid by the Customer under the Contract up to a maximum of £1,000,000.
11.4 Clause 11 will not apply to any obligation to pay charges.
11.5 Subject to clause 7 and with the exception of the conditions and warranties implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, BT Engage IT excludes all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the provision of Equipment.
11.6 Each part of this clause operates separately. If any part of a clause is held by a Court to be unreasonable or inapplicable the rest of the clause shall continue to apply.
12.1 Except as expressly set out in the Contract, the Customer and BT Engage IT do not acquire any rights or licences to the other’s Intellectual Property Rights.
12.3 Except as permitted by applicable law or as expressly permitted under the Contract the Customer must not, without BT Engage IT’s prior written consent, copy, de-compile or modify any Software, copy manuals or documentation or permit anyone else to do so.
12.4 Subject to clause 12.5 BT Engage IT and the Customer will keep in confidence all Confidential Information obtained under or in connection with the Contract and will not, without the consent of the other, disclose it to any party other than in confidence to:
(a) their employees or employees of their Group Company; or
(b) their professional advisers; or
(c) in the case of BT Engage IT, the employees or professional advisers of its suppliers
who have a need to know such Confidential Information and to the extent necessary for performance of the Contract.
12.5 Clause 12.4 will not apply to information which is:
(a) in the public domain other than through a breach of the Contract; or
(b) in the possession of the Customer or BT Engage IT without confidentiality restriction before disclosure under the Contract; or
(c) obtained from a third person who has a lawful right to disclose it; or
(d) developed by the receiving party independently of and without access to Confidential Information obtained under the Contract.
12.6 If either BT Engage IT or the Customer receives a demand from a lawful authority, regulatory authority or court to disclose any Confidential Information provided to it by the other, it may comply with such demand if it has:
(a) satisfied itself that the demand is lawful;
(b) given the other party the maximum written notice permissible under the demand in which to make representations; and
(c) marked the required information as the Confidential Information of the other party.
12.7 The Customer and BT Engage IT acknowledge that breach of this clause 12.4 may cause irreparable harm for which damages may not be an adequate remedy and that the disclosing party has the right (without prejudice to any other rights and remedies) to apply for injunctive relief or for specific performance of the receiving party’s obligations.
12.8 Information BT Engage IT holds about the Customer may be used for fraud prevention and credit vetting purposes and this may include BT Engage IT sharing such information with third party companies.
12.9 Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by BT Engage IT in connection with the Contract the Customer will:
(a) notify BT Engage IT immediately of the request; and
(b) give BT Engage IT at least five working days to make representations.
Matters Beyond Reasonable Control
13.1 (a) If the Customer or BT Engage IT is prevented, hindered or delayed from performing any obligation under the Contract because of something beyond its reasonable control including: act of God, natural disaster, lightning, flood, subsidence, earthquake, weather conditions, epidemic, pandemic, fire, explosion, war, civil disorder, acts of terrorism, something beyond the reasonable control of its suppliers, industrial disputes, acts or omissions of local or central government or other competent authorities, or acts or omissions of parties for whom the Customer or BT Engage IT is not responsible, change of law or any other cause whether similar or dissimilar that is outside its reasonable control, then it will have no liability to the other for any resulting failure, delay, defect or omission in performing its obligations under the Contract.
(b) If any of the events detailed in clause 13.1(a) materially affects the performance of the Contract and continues for more than three months then the Customer or BT Engage IT may terminate the Contract in whole or part by written notice to the other.
Escalation and Dispute Resolution
13.2 (a) BT Engage IT and the Customer will try to work through any disputes they may have. If this does not resolve the dispute then the matter must be raised in writing with the Customer’s or BT Engage IT’s representative as appropriate giving all relevant details including the nature and extent of the dispute. The Customer and BT Engage IT will use reasonable endeavours to resolve any dispute as follows:
(i) a dispute which has not been resolved by the Customer's or BT Engage IT’s representative within 14 days of being raised may be referred by the Customer or BT Engage IT to the first level by written notice to the other; and
(ii) if the dispute is not resolved at the first level within 14 days of referral, the Customer or BT Engage IT may refer the dispute to the second level by written notice to the other.
The Customer’s and BT Engage IT’s representatives at the first and second levels are as notified by the Customer and BT Engage IT to the other from time to time.
(b) Nothing in this clause 13.2 shall prevent the Customer or BT Engage IT from exercising any rights and remedies that may be available in respect of any breach of the provisions of the Contract.
Transfer of Rights and Obligations
13.3 The Customer and BT Engage IT may not transfer any of their rights or obligations under the Contract without the written consent of the other, except that:
(a) the Customer may transfer its rights or obligations or both to a Group Company with the written consent of BT Engage IT, such consent not to be unreasonably withheld or delayed; and
(b) BT Engage IT may transfer its rights or obligations or both to a Group Company without consent provided that it notifies the Customer that it has done so.
13.4 If any term of the Contract is held invalid, illegal or unenforceable by any court of competent jurisdiction, it will be severed and the remaining terms will continue in full force as if the Contract had been made without the invalid, illegal or unenforceable terms.
13.5 Clauses 8.8, 8.9, 11, 12.2 and 12.4 to 12.9 will survive the termination or expiry of the Contract for two years.
13.6 (a) The Contract contains the entire agreement between the Customer and BT Engage IT and supersedes all previous understandings, commitments, representations, agreements, draft agreements, arrangements, undertakings, or prior collateral contracts of any nature made by the Customer and BT Engage IT, whether written or oral relating to its subject matter.
(b) The Customer and BT Engage IT each agree that in entering into the Contract they have not relied upon and have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) of any party (whether party to the Contract or not) in relation to the subject matter of the Contract, except for those contained in the Contract.
(c) Nothing in this clause 13.6 excludes or restricts the liability of either the Customer or BT Engage IT to the other arising out of pre-contract fraudulent misrepresentation or fraudulent concealment
(d) If the Contract contains any obvious error it will be varied to reflect the true intent of the parties.
13.7 A failure or delay by the Customer or BT Engage IT to exercise any right or act upon a breach under the Contract will not be a waiver of that right or breach. If the Customer or BT Engage IT waives a right or breach of the Contract, that waiver is limited to the particular right or breach.
Rights of Third Parties
13.8 A person who is not the Customer or BT Engage IT (including an employee, the officer, agent, representative or subcontractor of the Customer or BT Engage IT) has no right under Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This does not affect any right or remedy that exists or is available apart from that Act.
13.9 Notices given under the Contract must be in writing and delivered by hand, email or first class post to the following addresses unless otherwise stated in the Contract:
(a) to BT Engage IT at the address shown on the invoice or any address which BT Engage IT provides to the Customer for this purpose; or
(b) to the Customer at any one or more of the following: the address to which the Customer asks BT Engage IT to send invoices or the address of the Site or the Customer’s primary email address or if the Customer is a limited company, its registered office.
This clause does not apply to notices given under clause 8.2.
13.10 A notice will be duly served:
(a) if delivered by hand, at the time of delivery;
(b) if sent by first-class post, three (3) working days after the date of posting; and
(c) if sent by e-mail, at the time of successful transmission.
13.11 The Customer must inform BT Engage IT immediately if there is any change to any of the contact information the Customer has provided to BT Engage IT.
13.12 The Customer agrees that for a period of six months from the conclusion of this Contract it shall not solicit for employment nor approach (nor procure an offer or approach with a view to offering employment or an engagement in any other capacity) any of BT Engage IT’s personnel (including sub-contractors and Group Company personnel), save where such employee responds to a genuine advertisement (other than where there is any collusion between the Customer and the employee).
Law and Jurisdiction
13.13 The Contract is governed by the law of England and Wales and is subject to the non-exclusive jurisdiction of the English courts.
13.14 The Customer and BT Engage IT will comply with their respective obligations under the Data Protection Act 1998 and any data protection, privacy or similar laws that apply to any personal data processed in connection with the Contract. The Customer and BT Engage IT will provide such help and co-operation as is reasonably necessary or requested by the other to enable compliance with this clause.
13.15 BT Engage IT may take instructions, and receive acknowledgment for delivery of the Equipment, from a party whom it thinks, with good reason, is acting with the Customer’s permission.