Terms and Conditions

Window Retailers(v2.0 – May 2020) (F-43083130)

These terms and conditions (as amended from time to time under clause 13.12) (“Conditions”) govern the provision of the TT Platform, 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 subscribes for the same by signing-up to the TT Platform on www.tommytrinder.com (“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 licensing of Software pursuant to these Conditions.

“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 User Quantity”: the maximum quantity of Authorised Users permitted under this Agreement selected during sign-up to the TT Platform via www.tommytrinder.com, as may be varied from time to time within the TT Platform Admin Area.

“Authorised Users”: Authorised Admin Users and Authorised Sales Users. An Authorised User who is both an Authorised Admin User and an Authorised Sales User shall count as one Authorised User.

“Authorised Admin Users”: those Authorised Users who use the Software through the Hosting Services in an administrative capacity, accessing the TT Platform Admin Area.

“Authorised Sales Users”: those Authorised Users who use the Software through the Hosting Services in an operational (sales) capacity.

“Business Day”: Monday to Friday, excluding any public holidays in England and Wales.

“Charges”: the Charges due from Client for access to the TT Platform, being the Standard Rates from time to time.

“Client Content”: any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to TT by or on behalf of Client, in order to perform its obligations pursuant to the Agreement.

“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 on behalf of Client.

“Client Product”: a Product configured by an Authorised Admin User within the TT Platform Admin Area by completing certain data fields.

“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 an Authorised Sales User 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.

“Data Processing Particulars”: the data processing particulars set out in the TT Platform Specification.

“Data Protection Legislation”: any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their Personal Data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.

“Data Subject”: has the meaning set out in the Data Protection Legislation.

“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.

“Download App”: each application made available by TT from a Download Store to interact with the TT Platform from time to time together with associated databases in machine readable object code form only, including any error corrections, updates, upgrades, modifications and enhancements to it made available to download from the applicable Download Store.

“Download App Terms”: the specific user terms made available to the user at the time of download of the Download App, as updated from time to time and notified to the user via the Download Store/Download App.

“Download Store”: in respect of Download Apps made available for iOS-based devices, the App Store (made available by Apple) and in respect of Android based devices, the Google Play Store (made available by Google).

“Download Store Terms”: the standard terms and conditions of the applicable Download Store relating to the installation and use of apps made available for use on the relevant platform.

“DPA”: the Data Protection Act 2018.

“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 date of sign-up by Client to the TT Platform via www.tommytrinder.com.

“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, pandemics, epidemics, 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 manufacturer to provide accurate Product Specification for a Standard Product).

“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, trademarks, 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.

“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.

“Month”: the calendar month starting on the Effective Date, and each consecutive calendar month thereafter.

“Normal Business Hours”: 8.00am to 6.00pm UK time, each Business Day.

“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 Client or requested by Client to be undertaken during Normal Business Hours.

“Pricing Variables”: the pricing variables entered into the TT Platform by an Authorised Sales User to create a price for a Customer for the selected Products.

“Product”: a complete window or door product (being either a Standard Product or a Client Product).

“Product Configuration”: the configuration for a Product generated for a Customer by Client inputting the Configuration Variables into the Configurator.

“Product Generator”: an area within the TT Platform Admin Area where Client Products can be created by an Authorised Admin User completing certain data fields.

“Product Selector”: an area within the TT Platform Admin Area where Client Products and/or Standard Products (including pricing/discount options) can be selected by an Authorised Admin User for access by Authorised Sales Users.

“Product Specification”: in respect of: (i) a Client Product, the specification for such Client Product configured by Client using the Product Generator; and (ii) a Standard Product, the specification provided by a third-party window manufacturer in relation to such Standard Product.

“Purchase Order”: a draft purchase order for the purchase of Products from a manufacturer in respect of a particular Customer.

“Quotation”: a quotation for the supply of Products to a particular Customer, including visual representations of the Products together with pricing information.

“Remote Apps”: the TT Platform, excluding the Download Apps (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 the Client under the Agreement).

“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 Product”: each Product from time to time which is pre-configured for immediate use within the TT Platform. Whilst a Standard Product can be renamed within the Product Generator, it remains a Standard Product.

“Standard Rates”: the rates at which Services will be charged to Client by TT, as notified by TT to Client from time to time.

“Term”: the period from the Effective Date until termination of this Agreement pursuant to these Conditions.

“TT Platform”: the Tommy Trinder platform, incorporating the Remote Apps and the Download Apps (if any).

“TT Platform Admin Area”: the administrative area within the Tommy Trinder platform accessible only by Authorised Client Users with administrative rights.

“TT Platform Specification”: the functionality and performance specifications for the Hosting Services and the Software, as set out at www.tommytrinder.com

“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.

2 Basic Of Contract

2.1. These Conditions constitute an offer by TT to provide Services and licence Software which shall be deemed accepted when Client signs-up on www.tommytrinder.com, on which date the Agreement shall come into existence (“Start Date”). Following such acceptance Client may cancel at any time within the TT Platform Admin Area, cancellation to take effect at the end of the Month after the Month in which Client elects to cancel.

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. Client acknowledges that the output of the TT Platform is intended to enable Client to provide Customers with a visual representation to aid them in their selection of the Product, but that it is not intended to create an exact scale image that will reflect precisely how the product will look. It is Client’s responsibility to ensure that its Customers understand this fact.

3 Software License

3.1. TT hereby grants to Client a non-exclusive licence for the 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 Authorised User Quantity;

3.2.2. the following uses: (i) to assist Authorised Sales Users to visually demonstrate Products to Customers and assist in the creation of Quotations and Purchase Orders; and (ii) to enable Authorised Admin Users to generate Client Products and/or manage Client’s subscription;

3.2.3. object code form;

3.2.4. the normal business purposes of Client and Client’s Affiliates;

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

3.3. "Use” of the Software:

3.3.1. In respect of Remote Apps, "use” of the Hosted Software means accessing the Remote Apps from the remote location via the Hosting Services, solely in accordance with the Documentation.

3.3.2. In respect of Download Apps, “use” of the Software means downloading the same from the applicable Download Store and using the same solely in accordance with the Documentation. Use of Download Apps is also subject to compliance with the Download Store Terms and the Download App Terms.


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 Remote Apps is 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 Users who are licensed to use the applicable Software.

3.9. Client shall ensure that each Authorised 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 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 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. use its reasonable endeavours during the Term to make the TT Platform available; 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 use of the Hosting Services or the Software will be uninterrupted or error-free.

4.3. The following shall not be considered a reduction in 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 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. 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.

4.5. TT shall follow the archiving procedures for: (i) Quotations; (ii) Purchase Orders; and (iii) Product Specifications relating to Client Products, as described in the TT Platform Specification. However, it is the responsibility of Client to ensure Quotations and Purchase Orders are downloaded promptly from the TT Platform and that back-up copies of Product Specifications relating to Client Products are retained by Client.

5 Products

5.1. An Authorised Admin User may from time to time develop Client Products by completing certain data fields relating to specifications and pricing within the TT Platform Admin Area and giving such product a unique name for identification purposes.

5.2. The Client Products, together with selected Standard Products (if any) will be available to the Authorised Sales Users to generate Product Configurations, Quotations and Purchase Orders.

5.3. An Authorised Admin User shall set (and may vary from time to time) the Pricing Variables available to Authorised Sales Users in respect of each Product, by completing certain data fields within the TT Platform Admin Area.

6 Generating product configurations, pricing, quotations and purchase orders

6.1. An Authorised Sales User shall select a Product and input Configuration Variables and Pricing Variables into the Configurator, which shall generate a Product Configuration, pricing, a Quotation and (depending on configuration of the TT Platform) Purchase Order(s).

6.2. Each Purchase Order is intended as a draft which requires review by Client. Client must not rely on the accuracy of a Purchase Order.

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

6.4. TT does not guarantee that any Standard Product will remain on the TT Platform. The availability of Standard Products is determined in the sole discretion of the relevant manufacturer.

7 Maintenance & Support

7.1. TT shall perform the Maintenance and Support during the Term with reasonable skill and care.

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

7.4. TT shall maintain and update the Software. Should Client determine that the Software includes a defect, 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.

7.5. 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; and

8.1.5. ensure that there are in place all necessary consents, licences and permissions required to upload the Client Content onto the TT Platform and allow use of the same by TT for the purposes envisaged by Client’s use of the TT Platform.

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 the Monthly Charges via the Payment Solution for:

9.1.1. the first Month on sign-up; and

9.1.2. each subsequent Month before the start of each such Month.

9.2. Client shall input the Client Payment Details at sign-up into the Payment Solution and shall ensure such details remain up to date within the TT Platform Admin Area. 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 increase any of its Standard Rates from time to time.

9.4. TT will give Client written notice of any such increase 30 days before applying the increase.

9.5. Should Client object to such increase, Client may terminate the Agreement within such 30-day notice period on 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) and time for payment is of the essence. 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.

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, Pricing Variables, Product Configurations, Quotations, Purchase Orders and Authorised 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; (iv) any use of the Services or Software by Client other than as envisaged under the Agreement; (v) a failure of an Authorised User to comply with the Download Store Terms or the Download App Terms; and/or (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, Service 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; (e) the content of any Purchase Order generated by the TT Platform (as these are intended as a draft document to be reviewed and revised as necessary by Client); or (f) losses, costs or expenses incurred by Client resulting from the removal at any time of a Standard Product by the relevant manufacturer.

10.5.2. in the event of any loss or damage to information or data supplied by Client or any Product Configuration, Quotation or Purchase Order, 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, Quotation or Purchase Order 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; and

10.5.4. 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 Charges paid in the last 6 months.

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 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. The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that Client shall act as a Controller and TT shall act as a Processor and in any such case:

12.1.1. TT shall be a Controller where it is collecting and using Personal Data in relation to the management of its Client accounts; and

12.1.2. TT shall be a Processor where it is Processing Personal Data in relation to the Data Processing Particulars in connection with performing its obligations under the Agreement.

12.2. TT shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all Personal Data that is Processed by it in connection with the Agreement.

12.3. TT shall be permitted to appoint sub-contractors, and to disclose Personal Data to them for Processing in accordance with the relevant Contract, provided always

that the sub-contractor's right to Process the Personal Data terminates automatically on expiry or termination (for whatever reason) of the relevant Contract for which

the sub-contractor was engaged.

12.4. To the extent that TT is acting as a Processor for and on behalf of Client, it shall:

12.4.1. Process Personal Data for and on behalf of Client for the purposes of performing its obligations under the Agreement, and only in accordance with the terms of that Contract and any documented instructions from Client;

12.4.2. notify Client immediately (and in any event within 24 hours of becoming aware of the same) if it believes (or ought reasonably to have been aware) that any of Client's written instructions infringe the Data Protection Legislation;

12.4.3. implement and maintain appropriate technical and organisational security measures which are sufficient to comply with at least the obligations imposed on Client by the Security Requirements;

12.4.4. take all reasonable steps to ensure the reliability and integrity of any TT Personnel who shall have access to the Personal Data;

12.4.5. ensure that access to the Personal Data is restricted to only those members of TT’ Personnel who require it in order to discharge TT’ obligations under the

Agreement;

12.4.6. notify Client promptly (and in any event within 2 Business Days) following its receipt of any Subject Access Request or correspondence from the UK Information Commissioner's Office or any other European data protection authority, and together with such notices, shall provide a copy of such Subject Access Request or correspondence and reasonable details of the circumstances giving rise to it; and

12.4.7. with respect to a Subject Access Request, not disclose any Personal Data in response without the express written authorisation of Client.

12.5. Where TT becomes aware (or reasonably should have become aware) of an actual or suspected Personal Data Breach, it shall:

12.5.1. notify Client as soon as is practicable, but in any event within 48 hours, including details of how the breach occurred and what Personal Data may have been compromised;

12.5.2. implement any measures necessary to restore the security of compromised Personal Data; and

12.5.3. assist Client to make any notifications to the UK Information Commissioner’s Office and affected Data Subjects.

12.6. Except to the extent required by Applicable Law, upon the termination of the Agreement for any reason, or earlier if instructed in writing by Client to do so, TT shall cease Processing all Personal Data and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by Client) all Personal Data and all copies in its possession or control (and it shall provide Client with a certificate signed by a duly authorised representative confirming it has done so). Where Client makes any such request prior to the termination of the Agreement, and it serves to hinder or prevent TT’ obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.

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, trademarks (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 Authorised 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 Agreement 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 provision of the TT Platform, 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/address provided during sign-up (as amended from time to time by an Authorised Admin User in the TT Platform Admin Area) and shall be delivered to the other party: (i) personally/sent by recorded delivery/commercial courier, to its provided address registered office/principal place of business (if not a company); or (ii) emailed to the other party’s provided email address. 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 partprovision 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.