A. PROVISIONS RELATING TO THE SALE

SALE AND PURCHASE
TRC shall sell, and the Customer shall purchase:
Software licenses as listed in the Sales Contract.
Hardware as listed in the Sales Contract.
Professional Services as listed in the Sales Contract.
Support Services as listed in the Sales Contract.
Software Assurance as listed in Sales Contract.

SOFTWARE INSTALLATION AND DELIVERY

Provided the Customer has complied with the commercial terms
detailed in the Sales Contract, TRC will make every effort to deliver
the System to the site on the mutually agreed Delivery Date.
Risk in the System will pass to the Customer on delivery to site. The
Customer must insure the System from that time.
TRC reserves the right to charge in full for all direct and indirect
costs, including but not limited to travel, subsistence,
accommodation, and professional services charges if the installation
is postponed by the customer within a 3-week period of an agreed
delivery date.

Cloud Hosting Contract Term and Renewal

Unless otherwise explicitly agreed in writing between the parties,
cloud hosting contracts shall have an initial term of twelve (12)
months, commencing on the effective date of ordering from
Cloudiax. At the end of the initial term, the contract shall
automatically renew for successive periods of twelve (12) months
each, unless either party provides written notice of termination at
least one (1) month prior to the end of the then-current term.
The parties acknowledge that any termination or modification to the
automatic renewal of the contract must be mutually agreed upon in
writing, unless terminated as described above. Failure to provide the
required notice will result in the contract continuing under the same
terms and conditions for the subsequent renewal term.

TRAINING

TRC will provide training to the Customer’s staff as detailed in the
Sales Contract.

INSTALLATION OF HARDWARE

TRC will install the Hardware at the Customer’s Site(s) as detailed in
the Sales Contract.
To enable TRC to install the Hardware, the Customer must:
Have completed any preparatory work agreed with TRC prior to the
Installation e.g., Networking, Cashier Worktops for POS Hardware.
Provide to TRC access to the site during agreed times.
Provide any labor and equipment to TRC to facilitate the installation
on site.
Provide a safe working environment.
TRC shall ensure that its employees observe any regulations set out
by the Customer whilst working at the Site.

PRICE, PAYMENT AND TITLE

The prices are as detailed in the Sales Contract. All prices quoted are
exclusive of VAT. VAT shall be charged at the rate prevailing on the
date the invoice is issued.
Payment terms are as detailed in the Sales Contract. TRC reserves
the right to delay the date of Delivery of any item or provision of any
services if the customer has not complied with the payment terms
as detailed on the Sales Contract.
Expenses such as travel, accommodation, and subsistence will be
charged as detailed in the Sales Contract.
TRC retains title over all goods supplied until paid for in full.

WARRANTIES

TRC warrants that:
TRC has full authority to license the Software as detailed in the Sales
Contract to the Customer.
The Software provided will, on the date of delivery, perform
substantially in accordance with the relevant manufacturers’
specifications. The Customer confirms it has relied on no other
warranty in relation to the performance of the Software.
TRC shall not be liable for any breach of warranty that arises from:
The improper use, operation, or neglect of the Software or the
Hardware.
The use of the Software on equipment other than Hardware
approved by TRC.
Any repair, adjustment, alteration, or modification to the Software or
Hardware other than by TRC.
The use of the Software for a purpose other than that for which it
was designed.

B. PROVISIONS RELATING TO THE SOFTWARE LICENCE

Customers are subject to the terms and conditions of the End User
Licence Agreement(s) specific to the software detailed in the Sales
Contract.

C. PROVISIONS RELATING TO SYSTEM SUPPORT
PROVISION OF SERVICES

TRC shall provide Support Services as detailed on the Sales
Contract.
TERM
The Agreement to provide System Support will run for an initial term
of one year from signing of Sales Contract. The Agreement will then
continue to run automatically after the initial term for successive
periods of one year.
Should either the Customer or TRC wish to terminate the
agreement, written notice should be given, not less than 3 months
before the end of the ongoing period.

SOFTWARE SUPPORT PROVIDED

TRC will provide Software Support Services as detailed in the Sales
Contract.

HARDWARE SUPPORT PROVIDED

TRC will provide Hardware Support Services as detailed in the Sales
Contract.
Where TRC is contracted to provide Hardware Maintenance:
TRC will send an engineer to the Customer’s premises in line with
the SLA detailed within the Sales Contract. TRC will notify the
Customer of the issue and whether it is covered under the terms of
the Sales Contract.
If possible, TRC will repair the Hardware (including the supply and
fitting of replacement parts where necessary) at the Customer’s
premises.
If it is not possible to repair the Hardware on the Customer’s
premises, TRC reserves the right to repair the Hardware on either its
own premises or replace the Hardware with equipment of an
equivalent specification. If this is necessary, TRC will advise the
Customer of its estimate of the time it will take to repair or replace
the Hardware, and will keep the Customer informed as to progress.
In the event that repairs or replacement of the Hardware is excluded
for any reason under this Agreement, TRC will notify the Customer
immediately of that fact and if possible provide an estimate as to
how much it will cost to repair or replace the Hardware. If the
Customer wishes TRC to proceed, TRC will carry out the necessary
repairs or replacement and will invoice the Customer accordingly.
TRC shall support only the Hardware included in the Sales Contract.
TRC may remove any item from cover upon written notification to
the Customer if in its reasonable opinion, the item is no longer
economic to maintain, or if spare parts for the item are no longer
available.

TRC shall not be required to rectify a Software problem, or repair
any item of Hardware, should the fault in the System have arisen for
any of the following reasons:
The Customer’s neglect or misuse of the System.
The use of the Software on equipment other than Hardware
provided or approved by TRC.
The failure by the Customer to implement recommendations in
respect of, or solutions to faults previously advised by TRC.
Any repair, adjustment, alterations or modification of, or addition to,
the System by any person other than TRC without TRC’s prior
written consent.
Any breach by the Customer of any of its obligations under any
maintenance agreement in respect of the Hardware (if supported by
a third party).
The Customer’s failure to take our recommendations for a software
upgrade.
The Customer’s failure to maintain a suitable environment for the
system.
The Transportation or relocation of the System save where the same
has been performed by or under the direction of TRC.
The use of defective or inappropriate supplies not approved by the
Hardware manufacturer.
Any defect or error in any software other than the Software or the
failure of the System to function through the introduction of a
software virus.
Any accident or disaster affecting the System including without
limitation fire, flood, water, wind, lightning, transportation, vandalism
or burglary.
The Customer’s failure, inability, or refusal to afford TRC personnel
proper access to the System.
System support does not include the provision of any of the
following services:
Installation of any software.
Site visits other than pursuant to clauses C3 and C4.
Initial set-up of data or data inputting.
Transfer of software and data from one computer to another.
Prolonged investigation of errors by the Customer’s staff.
Training of the Customer’s staff in the use of software.
Telephone support on software not listed in the Sales Contract.
The painting or refinishing of the Hardware.
The relocation or transportation of the Hardware.
Electrical work external to the Hardware.
Any modification, alteration or attachment to the Hardware or
removal of the same.
TRC obligation to supply replacement parts free of charge is limited
to replacing those parts required to repair any item of Hardware
detailed on the Sales Contract. For the avoidance of doubt, TRC
shall not supply free of charge any items classed by the Hardware
manufacturer as consumable items, including ribbons, print-heads,
toner cartridges, developer kits and batteries for any item of
Hardware.
TRC shall upon request by the Customer provide any of the services
described in this paragraph at the request of the Customer but shall
be entitled to charge for same.
CUSTOMER’S OBLIGATIONS
The Customer agrees that it shall throughout the term of this
Agreement:

Keep back-up copies of its data in line with recommendations made
by TRC.

Ensure all staff operating the hardware and software provided have
been adequately trained.
Grant TRC access to the Customer premises as is required to
discharge its obligations under the terms of the Sales Contract.
Make available at the Customer’s premises, at no charge to TRC,
such facilities as TRC shall reasonably require in order to discharge
its obligations including adequate work space, power supplies and
equipment.

Provide access to the Equipment for the purpose of inspection and
maintenance.
Make available employees of the Customer with appropriate skills,
knowledge and authority to assist TRC’s staff in the diagnosis of
faults and the implementation of reasonable instructions intended
to rectify or prevent recurrence of faults.
Ensure full co-operation with TRC engineers in the diagnoses of the
reason for any malfunction of the Equipment.
Take all reasonable precautions to protect the health and safety of
TRC employees, agents and sub-contractors while on the
Customer’s premises.
Accept that it is a fundamental condition that save with the written
authority of a Director of TRC, no third party and no person in the
employment of the customer shall service the hardware or software
detailed on the sales contract.

If the Hardware has been supplied by a third party, make available
the Hardware and supply all documentation and other information
necessary for TRC to diagnose any fault in the Hardware.
Ensure that the environment and supply conditions suitable for the
equipment are maintained in accordance with the Equipment
manufacturers specification.
Ensure that external surfaces of the Equipment are kept clean and in
good condition.
Use only consumables which are approved by manufacturer.

CHARGES

The charges for the initial term and the annual support charges
payable thereafter in respect of the System shall be as set out in the
Sales Contract. Support charges shall not include the cost of any
services provided pursuant to clause C5 above.
The charges for the initial term shall be invoiced on delivery of the
System and shall be payable within the stated credit terms on the
invoice. Invoices for other charges shall be raised immediately after
the provision of the relevant services and are payable within stated
credit terms on the invoice.
Total Retail Control Ltd reserves the right to charge the Customer
interest in respect of the late payment of any support or other
charges due under this Agreement at the rate of 2 per cent per
month until payment and to withhold the provision of services
hereunder until the Customer has paid all overdue invoices in full.
All charges are quoted exclusive of Value Added Tax, which shall be
charged at the rate prevailing at the time.

D. GENERAL PROVISIONS
LIMITATION OF LIABILITY

This section sets out the limit of the liability of TRC to the Customer
for breach of its obligations under this Agreement, or any
misrepresentation, negligence or other wrongful act on the part of
TRC, its employees or agents, called an “Act of Default”.
TRC shall be liable in full and without limitation for death or injury
resulting from its own negligence or that of its employees or agents.
TRC shall accept liability for damage to the Customer’s tangible
property caused by an Act of Default up to an aggregate maximum
liability of €2,500.
TRC shall not be liable for any consequential loss arising from an Act
of Default. Consequential loss includes loss of profits, loss of
goodwill, loss of data and any type of special, indirect or other
consequential loss.
Except as herein expressly stated, TRC shall not be liable for loss or
damage arising from any stoppage, breakdown or failure of the
equipment. TRC shall use all reasonable endeavor to remedy any
stoppage or breakdown or failure as promptly as it is able.

CONFIDENTIALITY

Each of the parties hereto undertakes to the other to keep
confidential all information concerning the business and affairs of
the other that it shall have obtained or received as a result of the
discussions leading up to or the entering into of this Sales Contract,
except that which is:
Trivial or obvious.
Already in its possession.
In the public domain.
Each of the parties undertakes to the other to take all such steps as
shall from time to time be necessary to ensure compliance with the
provisions of this section by its employees, agents and
subcontractors.

TERMINATION

This Agreement may be terminated:
Forthwith by TRC if the Customer fails to adhere to the payment
terms as detailed in the Sales Contract.
Forthwith by either party if the other commits any material breach
of any term of the Sales Contract.
Forthwith by either party if the other shall convene a meeting of its
creditors or if a trustee receiver administrative receiver or similar
officer is appointed in respect of all or any part of the business or
assets of the other or if a petition is presented or a meeting is
convened for the purpose of considering a resolution or other steps
are taken for the winding up of the other or for the making of an
administration order (otherwise than for the purpose of an
amalgamation or reconstruction).
Any termination of this Agreement pursuant to this clause shall be
without prejudice to any other rights or remedies a party may be
entitled to hereunder or at law, and shall not affect any accrued
rights or liabilities of either party, nor the coming into or
continuance in force of any provision hereof which is expressly or by
implication intended to come into or continue in force on or after
such termination.

FORCE MAJEURE

Neither party hereto shall be liable for any breach of its obligations
hereunder resulting from causes beyond its reasonable control
including but not limited to fires, strikes, insurrection or riots,
embargoes, delays in transportation, container shortages, inability
to obtain supplies and raw materials requirements or regulations of
any civil or military authority (“Event of Force Majeure”).
Each of the parties hereto agrees to give notice forthwith to the
other upon becoming aware of an Event of Force Majeure such
notice to contain details of the circumstances giving rise to the
Event of Force Majeure.
If a default due to an Event of Force Majeure shall continue for more
than four weeks then the party not in default shall be entitled to
terminate this Agreement. Neither party shall have any liability to
the other in respect of the termination of this Agreement as a result
of an Event of Force Majeure.

WAIVER

The waiver by either party of a breach of default of any of the
provision of this Agreement by the other party shall not be
construed as a waiver of any succeeding breach of the same of other
provisions nor shall any delay or omission on the part of either party
to exercise of, avail itself of, any power or privilege that it has or may
have hereunder operate as a waiver of any breach or default by the
other party.

NOTICES

Any notice, request, instruction or other document to be given
hereunder shall be delivered or sent by post.

INVALIDITY AND SEVERABILITY

If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, the invalidity or unenforceability of such provision
shall not affect the other provisions of this Agreement and all
provisions not affected by such invalidity or unenforceability shall
remain in full force and effect. The parties hereby agree to attempt
to substitute for any invalid or unenforceable provision a valid or
enforceable provision that achieves to the greatest extent possible
the economic legal and commercial objectives of the invalid or
unenforceable provision.

ENTIRE AGREEMENT

TRC shall not be liable to the Customer for loss arising from, or in
connection with, any representations, agreements, statements or
undertakings made prior to the date of execution of the Sales
Contract, other than those representations, agreements,
statements or undertakings confirmed by a duly authorised
representative of TRC in writing or expressly incorporated or
referred to in the Agreement.
The Customer accepts that the TRC supplied Software was not
designed and produced to its individual requirements and that the
Customer was responsible for its selection.
TRC liability to the Customer to remedy any breach is as exclusively
set out in this Agreement.

ASSIGNMENT AND SUB-LICENSING

The Customer shall not be entitled to assign or otherwise transfer
this Agreement nor any of its rights or obligations hereunder nor
sub-license the use (in whole or in part) of the TRC supplied
Software without the prior written consent of TRC.

ARBITRATION

Any questions or differences which may at any time arise between
the parties hereto concerning the provisions of this agreement or
the effect thereof or the rights or duties of the parties hereto shall
be referred to a single arbitrator to be agreed between the parties
or in default of agreement to be appointed by the president of the
Incorporated Law Society of Ireland and such reference shall be
deemed to be for all purposes as submission to arbitration under
the arbitration act 1954 or statutory modification or reenactment
thereof for the time being in force.

LAW

This Agreement shall be governed by and construed in accordance
with Irish law and the parties hereto agree to submit to the nonexclusive jurisdiction of the Irish courts.
North America
244 Fifth Avenue, Suite P230, New York, N.Y. 10001
United Kingdom
One Kingdom Street, Paddington, Central London, W2 6BD, UK
Ireland
Hume Avenue, Parkwest, Dublin, D12 C8C7, Ireland