Interpretation

1. Definitions:
   Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in London are open for business.
   Charges: the charges payable by the Customer for the supply of the Services by TitanEye Ltd as set out in the Contract Details.
   Conditions: these terms and conditions set out in clause 1 to clause 8 (inclusive).
   Contract: the contract between the Customer and TitanEye Ltd for the supply of the Services in accordance with the Contract Details and these Conditions.
   Services: the services to be provided by TitanEye Ltd pursuant to this Contract, as described in the Contract Details.
   Start Date: the day on which TitanEye Ltd is to start provision of the Services as set out in the Contract Details.


2. Interpretation:
   1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
   2. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
   3. A reference to writing or written includes e-mail.

Commencement and term

This Contract shall commence on the Start Date and shall continue for the Minimum Term, unless terminated earlier in accordance with clause 7. If not terminated on or before the Minimum Term, this Contract shall continue until either party gives to the other not less than 3 months’ written notice to terminate.

Supply of services

1. TitanEye Ltd shall supply the Services to the Customer from the Start Date in accordance with this Contract.
2. In supplying the Services, TitanEye Ltd shall:
   1. perform the Services with reasonable care and skill;
   2. comply with all laws and regulations applicable to its performance of the Service provided that TitanEye Ltd shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this Contract; and
   3. observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to TitanEye Ltd, provided that TitanEye Ltd shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this Contract.

Customer’s obligations

1. The Customer shall:
   1. co-operate with TitanEye Ltd in all matters relating to the Services;
   2. provide, for TitanEye Ltd, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, and other facilities as reasonably required by TitanEye Ltd to carry out the Services.
2. If TitanEye Ltd’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, TitanEye Ltd shall:
   1. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
   2. be entitled to payment of the Charges despite any such prevention or delay; and
   3. be entitled to recover any additional costs, charges or losses TitanEye Ltd sustains or incurs that arise directly or indirectly from such prevention or delay.

Charges and payment

1. In consideration for the provision of the Services, the Customer shall pay TitanEye Ltd the Charges in accordance with this clause 5.
2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to TitanEye Ltd at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
3. TitanEye Ltd shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in the Contract Details.
4. The Customer shall pay each invoice due and submitted to it by TitanEye Ltd, within 30 days of the date of the invoice.
5. If the Customer fails to make any payment due to TitanEye Ltd under this Contract by the due date for payment, then, without limiting TitanEye Ltd’s remedies under clause 7:
   1. The Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
   2. TitanEye Ltd may suspend all Services until payment has been made in full.
6. All amounts due under this agreement shall be paid by the Customer to TitanEye Ltd in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. TitanEye Ltd reserves the right on and after the expiry of the Minimum Term to:
   1. increase the Charges on the expiry of the Minimum Term and on each anniversary of the Start Date afterwards by no more than the proportion by which the Retail Prices Index (RPI) has increased during the preceding year;
   2. increase the Charges to reflect any increase that is due to:
      1. any factor beyond the control of TitanEye Ltd (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
      2. any request by the Customer to change the provision of the Services; or
      3. any delay caused by any instructions of the Customer or failure of the Customer to give TitanEye Ltd adequate or accurate information or instructions;
   3. increase the Charges above the RPI and in circumstances not permitted in sub-clause (b), provided that the Charges cannot be increased more than once in any 12-month period. TitanEye Ltd will give the Customer written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify TitanEye Ltd in writing within 4 weeks of the date of TitanEye Ltd’s notice and TitanEye Ltd shall have the right, without limiting its other rights or remedies, to terminate the Contract by giving 4 weeks’ written notice to the Customer.

Limitation of liability

1. Nothing in this Contract shall limit or exclude TitanEye Ltd’s liability for:
   1. death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
   2. fraud or fraudulent misrepresentation; and
   3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
2. Subject to clause 6.1, TitanEye Ltd shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
   1. loss of profits;
   2. loss of sales or business;
   3. loss of agreements or contracts;
   4. loss of anticipated savings;
   5. loss of use or corruption of software, data or information;
   6. loss of or damage to goodwill; and
   7. any indirect or consequential loss.
3. Subject to clause 6.1, TitanEye Ltd’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to Charges paid by the Customer under this Contract.
4. The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.

Termination

1. Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
   1. the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so;
   2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
   3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
   4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, TitanEye Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment.
3. On termination of this Contract for whatever reason:
   1. the Customer shall immediately pay to TitanEye Ltd:
      1. all of TitanEye Ltd’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TitanEye Ltd may submit an invoice, which shall be payable immediately on receipt;
      2. Unless terminated at least 3 months prior to any anniversary of the Start Date then a sum equal to the whole of the Charges that would (but for the termination) have been payable if the Contract had continued from the date of termination for a period equal to the Minimum Term from the last anniversary of the Start Date;
      3. The sum payable pursuant to sub-clause (ii) above shall be agreed compensation for TitanEye Ltd’s loss.
   2. termination of this Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
   3. any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

General

1. Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Assignment and other dealings. Neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the other’s prior written consent save that should TitanEye Ltd restructure as a company or other corporate entity, it may, after having given prior written notice to the Customer, assign or transfer any or all of its rights and obligations under this agreement to that successor entity.
3. Confidentiality. Each party shall keep confidential and secret any confidential information disclosed to it by the other party, except where required by law, a court of competent jurisdiction or any governmental or regulatory authority to make a disclosure. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
4. Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
5. Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
   1. waive that or any other right or remedy; or
   2. prevent or restrict the further exercise of that or any other right or remedy.
7. Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
8. Notices.
   1. Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first-class post or other next working-day delivery service, commercial courier, or e-mail.
   2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.8(a); if sent by pre-paid first-class post or other next working-day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
   3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
9. Third party rights. Except as expressly provided in this agreement, no one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms.
10. Governing law. This Contract, 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, the law of Scotland.
11. Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).