ROOM TWELVE Ltd, a company incorporated under the laws of England and Wales, company registration number 09755514 with its registered office at 4th Floor, Peek House, 20 Eastcheap, London, EC3M 1EB (hereinafter referred to as "R12"); and You being the organisation who agrees hereunder to these terms and conditions.
(A) R12 has created a suite of financial programmes called tech2teach whereby capital sales are converted from capital expenditure into a periodic payment suited to the budget of an end user.
(B) You wish to offer tech2teach as a Service to Your customers; and
(C) You are willing to sell to R12 the Equipment comprised within a tech2teach Agreement and R12 is willing to purchase the Equipment from You from time to time pursuant to the terms of this Agreement;
(D) You have agreed to perform on behalf of R12 the tech2teach Services as set out from time to time in a tech2teach Agreement.
WHEREBY it is agreed as follows:
1.1 For all purposes of this Agreement (including the Recitals):
- “Application” means an application made by You to R12 to offer a tech2teach Agreement to a specified Customer made on and subject to the terms of this Agreement in such form as R12 may require from time to time;
- "Agreement" means this Trading Agreement as amended, novated, supplemented or otherwise modified from time to time;
- "Closing Date" means 7 working days from the latest date on which R12 has received all of the documentation and requirements set out in Clause 4 and the conditions to purchase set out in Clause 5 have been completed all to the satisfaction of R12;
- "Equipment" means the equipment and related software specified in a schedule attached to an Invoice issued by You to R12 in accordance with the terms of this Agreement;
- "Fair Value" means the amount for which an asset could be exchanged or a liability settled, between knowledgeable, willing parties in an arms-length transaction;
- “Financial Variation” means an agreement entered into between R12 and a tech2teach Customer to vary the terms of a Master Schedule;
- "Invoice" means an invoice issued by You to R12 from time to time pursuant to the terms of this Agreement for the Purchase Price of the Equipment;
- “Initial Contract Period” means the contract term set out in a Master Schedule to a tech2teach Agreement;
- “Master Schedule” means a schedule setting out the Rental Charges and Equipment under a tech2teach Agreement;
- “Maximum Purchase Price" in respect of any Equipment, means the aggregate of the following sums:
- (a) in the case of Equipment supplied new by You 100% of the manufacturer's recommended retail price for such Equipment (the "RRP"); or
- (b) in the case of Equipment supplied as remanufactured by You a price agreed on a case by case basis dependent upon the age of the equipment; or
- (c) in the case of Equipment which has been supplied to You by the tech2teach Customer, the price at which You purchased them from the tech2teach Customer subject to the value being Fair Value; or
- (d) in the case of Equipment previously financed to the tech2teach Customer by a third party and purchased by You from that third party, the amount charged by the third party to settle the existing finance agreement and to pass title to the Equipment to You as accepted in writing by the tech2teach Customer subject to the value being Fair Value; plus
(ii) Your charges (in accordance with Your standard tariff as notified to R12 from time to time) for the Services and any consulting and training services completed and accepted by the tech2teach Customer pursuant to the relevant tech2teach Agreement, provided that such charges which are to be included in the calculation of the Subscription Charges in the relevant tech2teach Agreement do not exceed in the aggregate 10% of the RRP.
“Offer” means an offer made by R12 to You, in response to an Application, to purchase the Equipment comprised in a tech2teach Agreement from You on and subject to the terms of this Agreement and in a form specified by R12 from time to time;
"Purchase Price" means the price of the Equipment as specified in the applicable Offer;
“Rental Charge” means the charge made for the use of the Equipment or services and set out in a Master Schedule to a tech2teach Agreement;
“Residual Value” means the residual value as so specified (or otherwise calculable) in the "Fair Value Calculation" as set out where relevant in the applicable Master Schedule or Financial Variation Schedule as the case may be;
"R12 Calculator" means a piece of software provided by R12 to You that enables You to build the financial elements of a tech2teach Agreement;
"Service Fees" means a periodic figure agreed between R12 and You for each tech2teach Agreement for the provision of services not included within the Purchase Price;
“Sub-contractor” means an entity contracted to you in connection with the provision of any services under a tech2teach Agreement or tech2teach Customer.
"tech2teach Agreement" means the tech2teach agreements for the leasing of the Equipment and the carrying out of the tech2teach Services mentioned therein made or to be made between R12 (as Owner) and the tech2teach Customer (as the Customer) in the form approved by R12 (which on the date hereof is substantially in the form shown in the documents section of Your portal page and all Schedules and Appendixes thereto from time to time;
“tech2teach ” means a service offered by R12 to Customers within the education sector substantially in the form of the tech2teach Agreement;"
“tech2teach Customer" means the Customer named as such in the applicable tech2teach Agreement;
“tech2teach Services” means the services to be provided by R12 to a tech2teach Customer under the tech2teach programme from time to time and as set out in the tech2teach Agreement and any schedules or appendixes thereto;
1.2 Terms defined in the tech2teach Agreement shall, unless otherwise defined in Clause 1.1, have the same meanings when used herein.
1.3 In this Agreement:
- 1.3.1 Words expressed in the sin;gular shall include the plural and vice versa;
- 1.3.2 References to any clause, schedule or appendix is a reference to the corresponding clause, schedule of or appendix to this Agreement unless a contrary intention appears;
- 1.3.3 Statutory references shall be deemed to include a reference to that statute, statutory instrument, rule or regulation as amended, varied or replaced from time to time;
- 1.3.4 Clause and sub-clause headings are inserted for the convenience of the parties only and shall not affect the interpretation thereof;
- 1.3.5 Any reference to this Agreement shall mean this Agreement as amended, supplemented, replaced or novated from time to time;
- 1.3.6 References to a ”person” includes any person, firm, company, trust, corporation, government, state or agency or any combination of two or more of the foregoing;
- 1.3.7 The “ejusdem generis” rule shall not apply;
- 1.3.8 Any reference to a party includes that party’s successors, permitted assigns, permitted transferees and any persons deriving title under such person.
2.1 You may from time to time and in accordance with such procedures as R12 may notify to You from time to time for this purpose, submit to R12 Applications.
2.2 By submitting an Application to R12 which includes information about any tech2teach Customer, You are confirming that You have told the tech2teach Customer, or its authorised representative:
- 2.2.1 that searches will be or have been carried out with licensed credit reference agencies (“agencies”);
- 2.2.2 that the agencies will retain a record of the search; and
- 2.2.3 that the record may be used by R12 in assessing Applications and for debt tracing and fraud prevention purposes.
2.3 In making an Application You shall in respect of each tech2teach Agreement:
- 2.3.1 determine the value of the Purchase Price required by using the R12 Calculator; and
- 2.3.2 specify the Initial Contract Period; and
- 2.3.3 specify the Charges and the frequency of payment; and
- 2.3.4 specify the tech2teach Customer; and
- 2.3.5 provide due diligence material as prescribed by R12 relevant to the type of tech2teach Customer; and
- 2.3.6 where relevant provide any proposed amendments to the terms and conditions of the tech2teach Agreement; and
- 2.3.7 provide any other information required by R12.
2.4 On receipt of a duly and correctly completed Application, R12 shall assess the application as to its suitability for R12 funding and if it deems it to be so shall put the application forward for funding under R12's internal procedures.
2.5 R12 shall notify the results of its consideration of the Application to You and, if applicable, arrange for an Offer to be made and specify, in the Offer, any additional terms or special conditions attached to that Offer.
2.6 To the extent that there is a conflict between any additional terms or special conditions set out in the Offer and the terms and conditions of this Agreement, the additional terms or special conditions set out in the Offer shall take precedence.
3. ACCEPTANCE OF OFFERS
3.1 Any Offer made shall be effective for the period specified thereon and if not accepted by the final date of that period shall then lapse. Within the specified period, You may accept the Offer (in such manner as R12 may from time to time require) or reject the Offer. Any acceptance by You of an Offer shall be conditional upon You complying in full with the requirements of Clause 4 and Clause 5 of this Agreement.
3.2 Following any acceptance of an Offer:
- 3.2.1 R12 will request You to provide the information required in Clause 4.
- 3.2.2 You will enjoy exclusivity in respect of all future IT requirements of the tech2teach Customer subject to the Offer that can be satisfied through the tech2teach programme or any similar programme promoted by R12.
4. CONSEQUENCES OF ACCEPTANCE
4.1 Following acceptance of an Offer by You:
- 4.1.1 You are authorised to offer a tech2teach Agreement to the tech2teach Customer and to obtain the signature of the tech2teach Customer thereto together with such proof of identity as may be required by R12 from time to time;
- 4.1.2 You shall procure that the tech2teach Customer enters into a Master Schedule, standing order form or direct debit and provides to You, on behalf of R12, duly signed by an authorised representative or officer of the tech2teach Customer;
- 4.1.3 You shall thereupon send the original tech2teach Agreement with appropriate schedules, and the relevant Delivery and Acceptance Certificate(s) to R12 whereupon on receipt R12 shall sign and date the relevant tech2teach Agreement. Subject to Clause 5 and following signature by R12 and the tech2teach Customer of the tech2teach Agreement and relevant schedules, You shall issue Invoices to R12 from time to time in respect of Equipment which are part of the R12 Services under the terms of an accepted tech2teach Agreement. Each Invoice shall be deemed to incorporate the terms of this Agreement as if such terms were set out in the Invoice in full. Each Invoice shall constitute an agreement by You to sell to R12 with full title guarantee all of Your right, title and interest in the Equipment specified therein, for the Purchase Price specified therein, subject to and upon the terms set out in this Agreement; and
- 4.1.4 Completion of the sale of Your right, title and interest in the Equipment shall occur in accordance with Clause 6.1 by the payment by R12 to You of the Purchase Price, whereupon all Your right, title and interest in the Equipment shall, without further act, transfer to and be vested in R12 free from any liens, charges or other encumbrances.
5. CONDITIONS TO PURCHASE
5.1 R12's obligation to purchase any Equipment from You and to pay the Purchase Price is contingent upon all of the following conditions being satisfied on and as of the Closing Date.
- 5.1.1 The representations and warranties of You herein being true and correct in all material respects; and
- 5.1.2 Delivery by You to R12 of a signed Certificate of Delivery and Acceptance for all items; and
- 5.1.3 receipt and acceptance by R12 of any post delivery requirements specified in an Offer; and
- 5.1.4 The tech2teach Agreement and all relevant Schedules relating to the Equipment being in full force and effect and an original counterpart thereof (executed by both parties thereto) having been delivered to R12; and
- 5.1.5 No Event of Default (as defined in the tech2teach Agreement) has occurred in relation to the tech2teach Customer which is continuing.
6.1 R12 shall pay the Purchase Price of the Equipment to You within two Business Days of the Closing Date.
6.2 If R12 does not receive the documents specified in Clause 4 in a form and substance satisfactory to R12 or in a form which is agreed by R12 or You are unable to comply with the Conditions to Purchase set out in Clause 5 within the time period specified on the Offer, then R12 may by notice in writing to You inform You that the conditions under which R12 was prepared to purchase the Equipment have not been met and R12 shall not be under any further obligation to purchase the Equipment specified therein from You or to pay the whole or any part of the Purchase Price to You.
7. END OF TERM OPTIONS
7.1 Under the Terms of a tech2teach Agreement the tech2teach Customer has two options at the end of the Initial Contract Period:
- 7.1.1 hand back all of the equipment to R12 or
- 7.1.2 continue with the rental of the equipment by continuing to pay the agreed Rental Charge or
7.2 Should the tech2teach Customer chose option 7.1.1 then:
- 7.2.1 R12 will inform You within 5 working days of being notified of the tech2teach Customer’s option and
- 7.2.2 R12 will give You first option to purchase the Equipment at a price calculated by taking the original residual used in compiling the Rental Charge and set out on the Master Schedule plus interest calculated using the cost of funds applicable to the Offer made to You plus 5% (“the RV Price”).
- 7.2.3 You will have 10 working days in which to exercise Your option that will be in a form provided by R12 from time to time.
- 7.2.4 Should You agree to exercise Your option:
- (a) You shall at Your own expense remove the Equipment from the tech2teach Customer’s premises within 10 days of the end of the Initial Contract Period and
- (b) Pay R12 invoice for the RV Price within 30 days of the invoice date and
- (c) R12 will transfer ownership of the Equipment to You on receipt of cleared funds and
- (d) You may not sell the Equipment or offer to rent, lease, hire or otherwise make the Equipment available for use by the same tech2teach Customer.
7.2.5 Should You chose not to exercise Your option under clause 7.2.2 R12 may offer the equipment to an alternative purchaser.
7.3 Should the tech2teach Customer chose option 7.1.2 then You may in consultation with the tech2teach Customer:
- 7.3.1 Leave the Rental Charge at its present level or
- 7.3.2 Enter into a Financial Variation and reduce the Rental Charge for the year following the Initial Contract Period by:
- (a) 65% if the next year is the 4th year of the agreement or
- (b) 50% if the next year is the 5th year of the agreement or
- (c) 30% if the next year is the 6th year of the agreement.
- 7.3.3 During each successive year for the useful life of the Equipment offer a reduction in line with clause 7.3.2. For the avoidance of doubt a 3 year agreement would be reduced to 65% in Year 4. You would then offer a reduction to 50% in year 5 and then a further reduction to 30% in year 6 or
- 7.3.4 Offer the tech2teach Customer a new tech2teach Agreement for the balance of usable life of the Equipment at 50% of the original Rental Charge.
7.4 You will ensure that the Equipment is provided with an extension of the manufacturer warranty or a service agreement to ensure the Equipment remains in a serviceable state throughout the additional rental.
8. SHARED INCOME FROM THE POOLING OF RESIDUALS
8.1 Each year ending on the anniversary of this agreement is a “Base Year”
8.2 The Residual Values for each base year will be added to an account called “the Residual Pool for Base Year [number]” (RPBY).
8.3 Any income created from an tech2teach Agreement from the end of the Initial Contract Period in respect of clause 7.3 above will be offset against the Residual Value in the appropriate RPBY.
8.4 The value of any Equipment purchased by You in accordance with clause 7.2 shall be reduced from the RPBY at its Residual Value.
8.5 Once the overall Residual Value has been settled within a RPBY there is a surplus (“The Residual Surplus”). The Residual Surplus is calculated each quarter and R12 will notify You of the Residual Surplus within 7 days of each quarter end.
8.6 Each Base Year is linked to a “Financial Target” that is taken from the chart below subject to an increase of 5% for each successive Base Year. The Financial Target is met through the value of Offers accepted and delivered under a Certificate of Delivery and Acceptance by You in respect of agreements comprised within a RPBY.
8.7 The Residual Surplus will be split in accordance with the level of Financial Target achieved and R12 will notify You at the end of each Base Year what Your share will be:
|First Base Year Financial Target £ ‘000
||Your share of the Residual Surplus
|£0 - £250
|£251 - £500
|£751 - £1,000
8.8 Should You terminate this agreement then Your Residual Surplus shall continue to be paid in accordance with this clause.
9.1 In this Agreement:
- 9.1.1 "Value Added Tax" and "VAT" means value added tax as provided for in the Value Added Tax Act 1994 (as amended or re enacted from time to time) and legislation supplemental thereto, at the rate in force when the relevant supply is made, and includes any tax of a similar nature substituted for, or levied in addition to, such value added tax.
- 9.1.2 Any reference in this Agreement to You indemnifying or compensating R12 shall be deemed to include the words "(on an after-tax basis)".
- 9.1.3 Any amount payable by either party to the other under any Invoice shall be deemed to be exclusive of any VAT chargeable on the supply (or supplies) for which such sums are (the whole or part of) the consideration for VAT purposes.
- 9.1.4 Where, pursuant to the terms of this Agreement, either party (the "Reseller") makes a supply to the other (the "Recipient") for VAT purposes, and VAT is or becomes chargeable on such supply, the Reseller shall provide the Recipient with a valid VAT invoice in respect of such supply and the Recipient shall pay to the Reseller (in addition to and at the same time as providing any other consideration for such supply or, if no such other consideration is provided, at the time of such supply) a sum equal to the amount of such VAT.
10. PERFORMANCE OF THE tech2teach SERVICES
10.1 You acknowledge and undertake that, in consideration of payment by R12 to You of the Purchase Price and the Service Fees, You or Your duly appointed Sub-contractor shall, on behalf of R12, carry out and perform on an exclusive basis each and every one of the tech2teach Services as specified in the tech2teach Agreement and in each of the schedules and any appendixes thereto and as agreed from time to time with the tech2teach Customer. You or Your duly appointed Sub-contractor shall carry out the tech2teach Services with all due diligence, promptly and in accordance with any timescales and any schedule of works agreed with the tech2teach Customer.
10.2 Without prejudice to Clause 12.1, You shall indemnify R12 and shall keep R12 fully and effectually indemnified from and against any loss, cost, claim, damages, penalties or awards howsoever arising, made against, suffered or incurred by R12 as a result of or arising from the carrying out by You or Your duly appointed Sub-contractor of the tech2teach Services or the delay or failure by You or Your duly appointed Sub-contractor to carry out the tech2teach Services in accordance with the relevant terms whether in whole or in part and notwithstanding any claim or counterclaim by You to the contrary.
10.3 If You or your duly appointed Sub-contractor fail to perform the tech2teach Services in accordance with the terms of the tech2teach Agreement following receipt of written notice from R12 specifying such failure and requiring such non-performance to be remedied, R12 shall be entitled to terminate this Agreement (either in whole or in part) by service of notice in writing on You to that effect and to procure another party to provide such services in lieu of You.
10.4 Where You supply ongoing Services under a tech2teach Agreement R12 shall collect the agreed Service Fees on Your account and You shall invoice R12 for such Services. R12 will pay You the Services when R12 receive the remittance from the tech2teach Customer less a handling fee of 3% with a minimum of £15 per transaction.
11. YOUR REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITY
11.1 Representations in relation to the Equipment. You represents and warrants to R12 in relation to each item of the Equipment that, as at the Closing Date relating thereto:
- 11.1.1 You have the absolute right to sell and transfer with full title guarantee, all of the Equipment sold to R12 pursuant to this Agreement and the relevant Invoice; and
- 11.1.2 upon payment of the Purchase Price, R12 will acquire good and valid title to the Equipment free and clear of all liens, charges and encumbrances; and
- 11.1.3 You have not made or given any promises, warranties, guarantees or representations concerning the Equipment or the tech2teach Services which are inconsistent with or otherwise supplemental to those expressly set out in the relevant tech2teach Agreement; and
- 11.1.4 the Purchase Price does not exceed the Maximum Purchase Price; and
- 11.1.5 the delivery by You to R12 of all relevant documentation following acceptance of an Offer (including full details of Equipment serial numbers) shall constitute Your representation that the Equipment specified in the Application is the subject of a tech2teach Agreement and has been delivered to the tech2teach Customer and installed at the relevant site, in good order, repair and condition and complying in all respects with relevant laws, statutes and regulations and with all the terms of the relevant tech2teach Agreement.
11.2 Further Assurances. Each party covenants that it will do all things and execute all documents necessary or reasonably requested by the other party to give effect to the intent and purpose of this Agreement and/or any provisions herein.
11.3 Patent and other Intellectual Property Indemnity
- 11.3.1 You will either defend or settle, at Your own expense and option, any action brought against R12, to the extent that it is based on a claim that the Equipment directly infringes a United Kingdom patent, trade secret, copyright, design right or any other intellectual property right and You will pay those costs and direct damages finally awarded against R12 in any such action which is attributable to any such claim, but such defence and payment are conditioned on the following:
- 11.3.2 that You shall be notified promptly, in writing by R12 upon R12 becoming aware of any such claim; and
- 11.3.3 that You shall have sole control of the defence of any action on such claim and all negotiations for its settlement or compromise.
12. VALID OBLIGATION
You hereby warrant and represent to R12 that upon the execution and delivery hereof, this Agreement will constitute a valid obligation binding upon and enforceable against You in accordance with its terms, save to the extent that enforcement may be limited by laws relating to bankruptcy or liquidation or laws affecting creditor's rights generally or general principles of equity.
13. BREACHES AND DEFAULTS
You hereby warrant and represent to R12 that neither the entering into of this Agreement nor the performance thereof in accordance with its terms will result in any breach of, or constitute any default under, Your Memorandum and Articles of Association or under any agreement by which You are bound.
14. INDEMNIFICATION, FEES AND EXPENSES
- 14.1 You hereby agree to indemnify and hold harmless R12 and its permitted assignees from and against (i) all claims, losses and damages asserted by any tech2teach Customer or other person (other than claims based upon action or failure to act by R12 or its employees or agents in connection with the Equipment) resulting directly from (a) the operation, use, maintenance, malfunction, design or specifications of any Equipment or from the breach by R12 of any of its obligations under any tech2teach Agreement which is entered into from time to time to the extent this arises from a breach by You of Clause 8.1 of this Agreement or (b) the sale or lease of any Equipment; (ii) losses sustained by R12 or its permitted assignees arising directly from Your breach of any representation, warranty or covenant in this Agreement; and (iii) all expenses, including reasonable legal fees, related to the foregoing. R12 agrees to promptly notify You of any matters in respect of which this indemnity may apply. Nothing herein is intended to indemnify R12 for consequences of its actions or failure to act or for any damages for death or personal injury caused by the negligence of R12 or any of its employees. In addition to any other amounts payable hereunder, You shall pay all stamp, registration and other taxes (if any) to which this Agreement, any other document referred to in this Agreement or any judgement given in connection therewith is or at any time may be subject and shall, from time to time on demand of R12, indemnify R12 against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying any such tax.
- 14.2 The provisions of Clauses 8.2 and 12.1 above shall remain in full force and effect notwithstanding the completion of sale and purchase of the Equipment and notwithstanding the termination of this Agreement for any reason whatsoever.
15.1 Successors and Assigns. This Agreement is for the benefit of the parties hereto and shall be binding upon their successors, permitted assigns, and surviving entities of any merger, sale, consolidation, or reorganisation. You may not assign or transfer any of Your interest in this Agreement and/or in respect of any Equipment without the prior written consent of R12. R12 shall be entitled to assign all or any of its rights under this Agreement as it in its discretion may think fit and without any requirement to first obtain the consent of You.
15.2 Severability Clause. In the event that any term of this Agreement is or becomes or is declared to be illegal by any court or tribunal of competent jurisdiction, such term shall be null and void and shall be deemed deleted from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
15.3 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and Wales. The parties hereby submit to the non-exclusive jurisdiction of the courts in England and Wales in relation to any matters relating to this Agreement
15.4 Notices. Any notice to be given under this Agreement shall be made in writing and shall be delivered either personally or by post to the other party at the address given above and shall be deemed to have been received, if delivered personally, on the day of delivery and if sent by prepaid first class post on the second working day following the date of posting. Proof of posting shall be deemed proof of receipt on the relevant date.
15.5 Execution in counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.