LICENCE AGREEMENT AND TERMS AND CONDITIONS FOR PRO-CLOUD and TCES COMMUNITY This license agreement (License) is a legal agreement between you (Licensee or You) and Creative Software Solutions (Europe) Limited of Building 2 & 3, Parkside Court, Greenhough Road, Lichfield, Staffordshire, WS13 7FE (Licensor or We or Us) for the software products (Software) supplied by Creative Software Solutions (Europe) Ltd to you the Customer together with any printed materials or documentation (Documentation) supplied within the Contract
BY USING CREATIVE SOFTWARE SOLUTIONS (EUROPE) LTDS SOFTWARE, YOU AGREE TO THIS LICENCE AND TERMS AND CONDITIONS WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU.
All orders are accepted subject to this Licence Agreement and Terms and Conditions only. No amendment to these terms will be valid unless confirmed in writing by an authorised representative at Creative Software Solutions (Europe) Ltd. For avoidance of doubt, Your general terms of conditions or trading terms, if any, shall be herewith explicitly excluded.
1. GRANT AND SCOPE OF LICENCE
1.1. In consideration of the License Fee, receipt of which the Licensor hereby acknowledges, the Licensor hereby grants to You a non-exclusive, non-transferable License to use the Software and the Documentation on the terms of this License until its termination in accordance with the provisions of condition 6.
1.2. You may:
1.2.1. Use the Software for your internal business purposes only, either (as agreed between the parties):
184.108.40.206. On one Computer (CPU) at a time if the License is a single-user license or the Software is for single use; or
220.127.116.11. If the License is a multi-user or network license, for the number of concurrent users agreed between You and Us;
1.2.2. receive and use any free supplementary software code or update of the Software incorporating "patches" and corrections of errors as may be provided by the Licensor from time to time;
1.2.3. Use any Documentation in support of the use permitted under condition 1.2 and make up to 1 copy of the Documentation as are reasonably necessary for its lawful use.
1.2.4. You may only use the Software for internal use and the Software may not be resold.
1.2.5. Whilst using the Software You may access Software which is located on the Licensors server. The Customer does not have any right to receive a copy of the Software in Source or object code form; and does not receive any title rights or ownership in or to the software.
2. LICENSEE'S UNDERTAKINGS
2.1. Except as expressly set out in this License or as permitted by any local law, you undertake:
2.1.1. not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
2.1.2. Not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
2.1.3. Not to alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
2.1.4. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
18.104.22.168. Is used only for the purpose of achieving inter-operability of the Software with another software program;
22.214.171.124. is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
126.96.36.199. Is not used to create any software which is substantially similar to the Software;
188.8.131.52. To supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this License;
184.108.40.206. To replace the current version of the Software with any updated or upgraded version or new release provided by the Licensor under the terms of this License immediately on receipt of such version or release;
220.127.116.11. To include any copyright notice from time to time required by the Licensor on all entire and partial copies of the Software in any form;
18.104.22.168. Not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person or organisation/business.
2.2. You must permit the Licensor and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this License, for the purpose of ensuring that you are complying with the terms of this License.
2.3. The Customer is responsible for ensuring that:
2.3.1. The infrastructure it uses to access the Software is compatible with the hardware used within the Customers business/organisation.
2.3.2. Adequate precautions are taken within the Customers infrastructure to prevent the spread of malicious software
2.3.3. Those whom it grants access rights to the Software comply with the provisions of any applicable legislation including Data Protections Legislation.
2.3.4. All licence terms of any 3rd Party software provided by Us in the delivery of the project is complied with.
2.4. The Customer will comply with all legal and statuary requirements applicable
2.5. We shall have no liability or obligation with respect to the fitness for purpose, functionality or the performance of 3rd party software supplied.
2.6. Time shall not be of the essence as to the performance of Creative Software Solutions (Europe) Ltd obligations
2.7. All ownership, licence, intellectual property and documentation remains solely with Creative Software Solutions (Europe) Ltd
2.8. We reserve the right to change/update the Software at any time as long as these changes/updates do not materially affect the overall service. Any updates that arise due to security considerations will be made immediately where as all other changes/updates the Customer will be notified.
3. SERVICE RESTRICTIONS
3.1. The Customer agrees not to:
3.1.1. Exceed set usage limits or restrictions which will be defined in the Service Description
3.1.2. Sell, rent or lease the Software in anyway or transfer to any other person or organisation/business
3.1.3. Create any derivative works based upon the Software
3.1.4. Adapt, translate, decompile, disassemble or otherwise attempt to discover the Source Code of the Software
3.2. The Customer shall not store, access, transmit, reproduce, or knowingly receive any Malicious Software or material during the course of the use of the Software.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. You acknowledge that as between You and the Licensor all intellectual property rights in the Software and the Documentation throughout the world belong to the Licensor, that rights in the Software are licensed (not sold) to You, and that You have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License.
4.2. You acknowledge that You have no right to have access to the Software in source code form or in unlocked coding or with comments.
4.3. If the integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Licensor are not misappropriated, You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
5.1. The Licensor warrants that:
5.1.1. during the period of 30 days from your first use of the Software (Warranty Period), the Software will, when properly used, perform substantially in accordance with the functions described in the Service Agreement (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and the Service Agreement correctly describes the operation of the Software in all material respects.
5.2. You acknowledge that the Software and Services have not been developed to meet Your individual requirements and that it is, therefore, Your responsibility to ensure that the facilities and functions of the Software and Services as described in the Documentation meet your requirements.
5.3. You acknowledge that the Software and Services may not be free of bugs or errors and You agree that the existence of any minor errors shall not constitute a breach of this License.
5.4. The Licensor is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.5. If, within the Warranty Period, You notify the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from You having amended the Software or used it in contravention of the terms of this License, the Licensor will, at its sole option, repair or replace the Software, provided that You make available all information that may be necessary to assist the Licensor in resolving the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
5.6. If, within the Warranty Period, you notify the Licensor in writing of any non-conformance of the Services with the warranty given at condition 4.1(a), the Licensor will use reasonable commercial endeavour’s to correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the warranty given at condition 4.1.1.
5.7. The Licensor's obligations under conditions 4.5 and 4.6 are subject to compliance by you with the terms of condition 22.214.171.124.
6.1. This License sets out the full extent of the Licensor's obligations and liabilities in respect of the supply of the Software, Services and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this License. Any condition, warranty, representation or other term concerning the supply of the Software, Services and Documentation which might otherwise be implied into, or incorporated in, this License, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
6.2. Nothing in this License shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.
6.3. Subject to condition 5.1, the Licensor shall have no liability for losses suffered by You arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, which fall within any of the following categories:
6.3.1. Loss of income;
6.3.2. Loss of business profits or contracts;
6.3.3. Business interruption;
6.3.4. Loss of the use of money or anticipated savings;
6.3.5. Loss of information;
6.3.6. Loss of opportunity, goodwill or reputation;
6.3.7. Loss of, damage to or corruption of data; or
6.3.8. Any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise,
6.3.9. provided that this condition 5.2 shall not prevent claims for loss of or damage to Your tangible property that fall within the terms of condition 4 or any other claims for direct financial loss that are not excluded by any of categories 5.2.1 to 5.2.9 inclusive of this condition 5.2.
6.4. Subject to condition 5.1 and condition 5.2, the Licensor's maximum aggregate liability under or in connection with this License, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the License Fee paid by You to the Licensor in the 12 months preceding any relevant breach of the terms of this License.
6.5. Subject to condition 5.1, condition 5.2 and condition 5.3, the Licensor's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
6.6. The Customer is liable for all loss or damage arising from unauthorised access or use of the Customers own networks and systems. The Customer is responsible for implementing a security policy to prevent unauthorised access or use.
7.1. The Licensor may terminate this License immediately by written notice to You at any time following the occurrence of any of the following:
7.1.1. You commit a material or persistent breach of this License which You fail to remedy (if remediable) within 14 days after the service on You of written notice requiring You to do so; or
7.1.2. You become insolvent or unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986), enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for Your winding-up, have a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of Your assets, make any composition or arrangement with Your creditors or take or suffer any similar action in consequence of Your debt, or become unable to pay Your debts (within the meaning of section 123 of the Insolvency Act 1986); or
7.1.3. The license granted to the Licensor in respect of the Software and Documentation (under the terms of which the Licensor sub-licenses the Software and Documentation to You) is terminated;
7.2. Upon termination for any reason:
7.2.1. All rights granted to You under this License shall cease;
7.2.2. You must cease all activities authorised by this License;
7.2.3. where relevant, You must immediately delete or remove the Software from all computer equipment in Your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of the Software then in Your possession, custody or control and, in the case of destruction, certify to the Licensor that You have done so.
8. TRANSFER OF RIGHTS AND OBLIGATIONS
8.1. This License is binding on You and Us and on our respective successors and assigns.
8.2. You may not transfer, assign, charge or otherwise dispose of this License, or any of your rights or obligations arising under it, without our prior written consent.
8.3. The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this License, or any of its rights or obligations arising under it, at any time during the term of the License.
9. EVENTS OUTSIDE THE LICENSOR'S CONTROL
9.1. The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this License that is caused by an event outside its reasonable control (Force Majeure Event).
9.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
9.2.1. Strikes, lock-outs or other industrial action;
9.2.2. Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
9.2.3. The actions of any third party necessary for the performance of the Licensor’s obligations under this agreement;
9.2.4. Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
9.2.5. Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
9.2.6. Impossibility of the use of public or private telecommunications networks;
9.2.7. The acts, decrees, legislation, regulations or restrictions of any government.
9.3. The Licensor's performance under this License is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this License may be performed despite the Force Majeure Event.
10.1. If the Licensor fails, at any time during the term of this License, to insist on strict performance of any of Your obligations under this License, or if the Licensor fails to exercise any of the rights or remedies to which it is entitled under this License, this shall not constitute a waiver of such rights or remedies and shall not relieve You from compliance with such obligations.
10.2. A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
10.3. No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to You in writing.
11.1. If any of the terms of this License are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12. ONBOARDING / TRAINING / CONSULTANCY SERVICES
12.1. Onboarding, training and consultancy services provided by Us will be provided and charged in working days.
12.2. The Customer will provide Us will provide all information promptly upon request regarding facilities and information required to conduct all onboarding, training and consultancy activities.
12.3. If the dates scheduled for delivery of onboarding or training are postponed of cancelled by the Customer without providing at least 7 days’ notice, the Customer will be required to pay any costs incurred by Us.
13. PRICING AND PAYMENT TERMS
13.1. Catalogues, price lists and other advertising literature or material as used by Us are intended only as an indication as to the price and range of Products offered and no prices, descriptions or other particulars contained in them shall be binding on Us.
13.2. Payment Terms are detailed within the attached Proposal. Invoices will be payable by You 30 calendar days from the date of invoice. If You do not pay Us in full by the due date You must pay Us interest at the rate of 3% above the Bank of England base rate at the time, calculated (on a daily basis) from the due date until payment is made in full both before and after any judgment (unless the court orders otherwise). Unless otherwise agreed, the currency of payment is GBP.
13.3. You must notify Us in writing within seven calendar days of the date of our invoice of any errors (for example incorrect prices) in that invoice. If You do not, You will be deemed to have accepted the accuracy of that invoice.
13.4. We reserve the right to stop supplying the Software to You at any time and withdraw any credit facility provided to You.
13.5. All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by You and will be levied in accordance with laws in force at the tax point date.
14. SERVICE LEVEL AGREEMENT
14.1. Priorities and response times
14.1.1. Calls and tickets will be processed using the following categories for priority assigned in the following order:
126.96.36.199. Panic calls receive attention within 1 hour. Panic includes: server is down.
188.8.131.52. Urgent calls receive attention within 2 hours or the next working day. Urgent includes: not being able to create a service user activity.
184.108.40.206. High calls receive attention within 24 hours or the next working day. High includes: non-severe application errors.
220.127.116.11. Medium calls will be scheduled for resolution within 1-2 working days. These calls will be closed within 5 working days. “How to” questions not answered at the time of the call will be scheduled for resolution.
18.104.22.168. Low calls will be scheduled for resolution within 2-3 working days. These calls will be resolved within 10 working days.
22.214.171.124. Low priority generally includes requests for new functionality such as software upgrades.
14.2.1. CSS shall invoke the escalation procedures below where necessary, to ensure that all calls submitted by Cornwall Council will be actively progressed: • After 24 hours - Technical Manager • After 48 hours - Project Manager • After 72 hours - Managing Director
15. DEVELOPMENT WORK / CHANGE CONTROL / ADDITIONAL SERVICES
15.1. Any variation of Services proposed during the Contract which arises in additional work, will be agreed by both parties and a price agreed before any work commences. We will not be held responsible for any delay arising due to variation in works.
15.2. The Customer agrees that if Creative Software Solutions (Europe) Ltd supply extra services outside of this Contract and any Documentation included within this Contract, the Customer will be charged at the Licensors hourly rate.
15.3. All requests for extra Services will be requested by the Customer in writing and We will quote for these extra services. We reserve the right to refuse any addition services, which will not be in breach of this Contract.
16.1. Please see Creative Software Solutions (Europe) Ltd extending hosting agreement.
17.1. During this Contract and 12 months following Termination neither You or Us will employ directly or indirectly, seek or seek to make any offer of employment to any of the staff’s directly involved executing the Services within this contract.
18. ENTIRE AGREEMENT
18.1. This License Agreement and any document expressly referred to in it represent the entire agreement between Us in relation to the licensing of the Software and Documentation and supersede any prior agreement, understanding or arrangement between Us, whether oral or in writing.
18.2. We each acknowledge that, in entering into this License, neither parties have relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between both parties before entering into this License except as expressly stated in this License.
18.3. Neither party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this License (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this License.
19. LAW AND JURISDICTION
19.1. This License, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.
Hardware Terms of Business
1. TERMS OF BUSINESS
1.1. “Products” means goods or services including but not limited to computer hardware and software items to be provided by Us to You in accordance with these terms.
1.2. “Us”, “We”, Creative Software Solutions (Europe) Limited or “Company” means Creative Software Solutions (Europe) Limited or any subsidiary or associated company.
1.3. “You” means the Creative Software Solutions (Europe) Limited customer identified in an order to whom Creative Software Solutions (Europe) Limited may agree to supply Products in accordance with these terms and conditions.
1.4. “Contract” will mean the agreement of sale between Us and You.
1.5. “Resellers” means a company that purchases Products with the intention of selling them on rather than consuming or using them.
1.6. “End-user” means a company or a person who actually uses Products rather than one who makes or sells them.
2. ORDER ACCEPTANCE
2.1. All orders are accepted and Products supplied subject to these express terms only. No amendment to these terms will be valid unless confirmed in writing by our authorised representative on or after the date hereof.
2.2. For the avoidance of doubt, your general conditions or trading terms, if any, shall be herewith explicitly excluded.
3.1. Any time or date quoted for dispatch is to be treated as an estimate only. We will use reasonable endeavors to dispatch the Products within the time or date quoted, but the time of dispatch will not be of the essence. If, despite those endeavors, We are unable for any reason to dispatch on the specified time or date, We will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will We have any liability to You for direct, indirect or consequential loss (all three of which terms includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, claims of third parties and like loss) howsoever caused (including as a result of negligence) by any delay or failure in dispatch.
3.2. Delivery of the Products will be made Ex Works
3.3. Delivery of the Products will be accepted at any time of day. If You fail to take delivery, or provide any necessary documents, the Products will be deemed to have
been delivered and We may, without prejudice to our other rights, at our option:
3.3.1. store or arrange for storage for the Products until actual delivery or sale and charge You for all related costs and expenses (including, without limitation, storage and
3.3.2. following written notice to You, sell any of the Products at the best price reasonably
obtainable in the circumstances and charge You for any shortfall below the price under the Contract.
3.4. From the time of the delivery, the Goods shall be at your risk and You shall be solely responsible for their custody, shipment and maintenance.
3.5. You must inspect and test the Products on delivery. If any Products are damaged, non-conforming, defective or not delivered You must notify us within five working days of delivery). If proof of delivery is required, this must be requested within 14 calendar days of the date of the invoice.
4. CANCELLATION AND RESCHEDULING
4.1. Notwithstanding clause 5.3 below, unless otherwise agreed in writing, any request by You for cancellation of any order or for the rescheduling of any deliveries will only be considered by Us if made at least 12 hours before dispatch of the Products, and shall be subject to acceptance at our consent (such consent not to be unreasonably withheld), and subject to our reasonable administration charges. You hereby agree to indemnify Us against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
5.1. Catalogues, price lists and other advertising literature or material as used by Us are intended only as an indication as to the price and range of Products offered and no prices, descriptions or other particulars contained in them shall be binding on Us.
5.2. All prices are given by Us at the time of the order on an Ex-Works basis and You are liable to pay for all transport, packing and insurance costs.
5.3. All quoted or listed prices are based on the cost to Us of supplying the Products to You. If before delivery of the Products there is an increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be changed in order to reflect this increase without notice. Any increase in price will entitle You to cancel the order by giving written notice to Us within 2 business days of You being made aware of such increase. If You cancel the order in accordance with this condition 6.3 then:
5.3.1. We will refund to You any sums which You have paid to Us in respect of that order or part of the order which has been cancelled; and
5.3.2. You will be under no liability to make any payments in respect of that order or part of the order which has been cancelled.
5.4. All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by You and will be levied in accordance with laws in force at the tax point date.
6. PAYMENT TERMS
6.1. Invoices will be raised and dated by Us as detailed in our Payment Terms and Schedule within the Proposal.. Unless otherwise specifically requested and agreed, invoices will be payable by You 30 calendar days from the date of invoice. If You do not pay Us in full by the due date You must pay Us interest at the rate of 3% above the Bank of England base rate, calculated (on a daily basis) from the due date until payment is made in full both before and after any judgment (unless the court orders otherwise). Unless otherwise agreed, the currency of payment is GBP.
6.2. You must notify Us in writing within seven calendar days of the date of our invoice of any errors (for example incorrect prices) in that invoice. If You do not, You will be deemed to have accepted the accuracy of that invoice.
6.3. If You have a credit account with Us, We may withdraw it or reduce the credit limit or bring forward the due date for payment without notice.
6.4. All payments to be made by You will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
6.5. Notwithstanding dispatch and the passing of risk in the Products to You and notwithstanding any provision of these conditions, the title to the hardware Products shall not pass to You until We have received full payment of the price of the Products. When all prices, taxes and charges due in respect of the Products have been paid in full, title to the hardware Products only shall pass to You.
6.6. Until You pay all sums due to Us in respect of the Products and all other sums which are or which become due to Us from You on any account: all Products supplied to You will remain our property; all Products must be stored so that they are clearly identifiable as our property; You must insure all such Products for their full price against all risks to our reasonable satisfaction and hold the policy on trust for Us and produce a copy of your insurance policy upon request; You must hold the Products on a fiduciary basis as Creative Software Solutions (Europe) Limited’s Bailee; You must not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; You may use such Products and sell them in the ordinary course of your business at the best price reasonably obtainable in your business but account to Us for the proceeds of such sale(s) and allow Us to inspect records related to such sale(s) unless we revoke that right (by informing You in writing) or You become insolvent. Payment for the Products supplied to You hereunder will be deemed to have been made when the full amount of payment is irrevocably credited to our bank account.
6.7. You must inform Us (in writing) immediately if You become insolvent and/or in case of seizure of or damage to the goods in your premises.
6.8. Your right to sell or use the Products shall cease immediately if You are in material breach of this Contract, a bankruptcy order is made against You or You enter into liquidation, whether compulsory or voluntary, or make an arrangement with creditors or petition for an administration order or have a Receiver or Manager appointed over all or any part of your assets or generally become unable to pay your debts, and in case of seizure of goods in your premises. If your right to use and sell the Products ends, You must allow Us to remove the Products, dispose of the Products so as to discharge any sums You owe Us under this or any other Contract and/or withhold delivery of any undelivered Products and stop any Products in transit. Unless we expressly elect otherwise, this Contract or any other Contract You enter into with Us for the supply of Products shall remain in existence notwithstanding any exercise by Us of our rights hereunder. The Products shall, once the risk has passed to You per the terms hereunder or otherwise, be and remain at your risk at all times unless and until We have taken possession of them, and You shall insure them accordingly.
6.9. If opting for a Product on a subscription basis you will not own the product and will pay an annual rental fee for the duration of the contract term. All rented Products must be returned to functioning and in mint condition when the contract is terminated.
6.10. You grant Us an irrevocable license at any time to enter any premises where the Products are or may be stored to inspect them or, where your right to possession has ended, to recover them.
6.11. Despite our retention of title to the Products, We have the right to take legal proceedings to recover the price of Products supplied should You not pay Us in full by the due date.
6.12. You are not entitled to pledge (or in any way charge by way of security for any indebtedness) any of the Products which remain our property, but if You do so, all monies owing by You to Us shall (without prejudice to any other of our rights or remedies) immediately become due and payable.
6.13. We reserve the right to stop supplying the Products to You at any time and withdraw any credit facility provided to You.
7. SPECIFICATION OF PRODUCTS
7.1. We will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data of the Products. We will not be responsible for any loss or damage resulting from curtailment or cessation of supply of the Products following such variation.
7.2. Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified.
7.3. We reserve the right to increase our quoted or listed prices, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will We consider cancellation of such orders or the return of such orders.
8.1. We reserve the right to levy a reasonable administration charge in respect of Product returns where no defects in materials or workmanship are found.
8.2. Returns are subject to the following:
8.2.1. prior authority having been obtained from Us which will be given at our sole discretion;
8.2.2. the request for a return must be made within 5 business days of the date of the invoice and the Products in issue must be returned within 5 business days of the authority to return;
8.2.3. our stock rotation privileges with the manufacturer;
8.2.4. the Products must be properly packed (original packaging); and
8.2.5. the Products must be in a saleable condition. We reserve the right to reject any Products which do not comply with the terms set out above.
9.1. We offer no warranties in respect of the Products supplied hereunder other than as offered by the manufacturers of such Products. We shall use our reasonable endeavors to ensure that You shall receive the benefit of such warranties directly from the manufacturer.
9.2. We reserve the right to test Products returned as faulty and to return to You (at your expense) any products found not to be faulty. In this case We may in addition charge You our costs of testing the Products.
9.3. All Products supplied are supplied ‘as is’ basis. Our sole obligation with the supply of Products is to use all reasonable endeavors to supply a corrected version from the manufacturer concerned if the Product fails to conform to its product description. You must notify Us of any such non-conformity within 90 calendar days of the date of delivery of the Product. Maintenance of software and software updates or upgrades will depend on the offerings of the manufacturer without any warranty from our side.
9.4. If the Products are found to be defective We will only accept the return of such Products as provided in clause 9. We will not consider any claim for compensation, indemnity or refund under liability unless it has been established or agreed with the manufacturer.
9.5. Except as specifically set out in this clause 10, We disclaim and exclude all other warranties, whether express or implied or otherwise (other than for breach of obligations We have by statute that may not be disclaimed), including but not limited to the warranties of description, design, non-infringement, satisfactory quality and fitness for a particular purpose, absence of harmful software code, or arising from any previous course of dealing, usage or trade practice. In no circumstances shall our liability to You for any breach of warranty exceed the price You paid for the Products with respect to which the claim is made.
10. INDEMNITIES AND LIMITS OF LIABILITY
10.1. We do not exclude liability (if any) to You:
10.1.1. for personal injury or death resulting from the Company’s negligence;
10.1.2. for any matter which it would be illegal for the Company to exclude (or to attempt
to exclude) its liability; or
10.1.3. for fraud.
10.2. Except as provided in clauses 6.3, 10 and 11 We will be under no liability to You whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, claims of third parties, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
10.2.1. any of the Products, or the manufacture or sale or supply, or failure or delay in supply, of the Products by Us or on the part of our employees, agents or sub- contractors;
10.2.2. any breach by Us of any of the express or implied terms of the Contract;
10.2.3. any use made or resale by You of any of the Products, or of any goods incorporating
any of the Products; or
10.2.4. any statement made or not made, or advice given or not given, by or on behalf of Us.
10.2.5. We do not, under any circumstances, accept liability when acting as a consultant,
either directly or to a third party relating to advice on a technical or commercial level as a response to requests made. It should be noted that We do not accept liability in any form when visiting either Reseller or Reseller customer sites upon invitation to assess any given situation relating to hardware or software supplied directly or otherwise.
10.2.6. Except as set out in clauses 6.3 and 11 We exclude, to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in your favour.
10.2.7. You agree to fully indemnify, keep indemnified and hold harmless Us and our employees from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct , indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which We or our employees incur or suffer as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance by You or your authorised representative. You also agree to fully indemnify Us against all liabilities, costs, losses and damages whatsoever suffered or incurred by Us and arising out of claims by third parties in respect of or in connection with any acts or defaults by You, your employees, or representatives.
11. EXPORT AND/OR RE-EXPORT LIMITATION
11.1. Regardless of any disclosure made by You to Us of an ultimate destination for any Products, You will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
12.1. The headings in these terms are for ease of reference only and shall not affect their interpretation or construction.
12.2. No forbearance, delay, or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
12.3. You agree not to assign any of your contractual rights without our prior written consent.
12.4. If any of these terms are unenforceable as drafted it will not affect the enforceability of any other of these terms and if it would be enforceable if amended, it will be treated as so amended.
12.5. Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure including any act of God, fire, explosion, accident, shortage, industrial dispute, military or government restriction, or any cause beyond its reasonable control.
12.6. Any document or notice by either party which is to be served under these terms may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or principal place of business. In the case of post, the document or notice will be deemed to have been given two working days after the date of posting. All such notices must be signed.
12.7. These terms shall be construed in accordance with English Law and the English and Welsh courts shall have non-exclusive jurisdiction.
12.8. The parties to the Contract do not intend that any of its terms will be enforceable by any person not a party to it.
12.9. You agree that the above provisions are fair and reasonable and that these terms constitute the entire agreement relating to the Products between You and Us.
You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Us which is not set out in these terms.
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