THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 13
Software: the Software as set out in the Proposal.
Hardware: the Hardware as set out in the Order/Proposal.
Contract: the contract between the Supplier and the Customer for the supply of Software, Hardware and/or Services in accordance with these Conditions and the Order/Proposal.
Customer: the person or firm who purchases the Software, Hardware and/or Services from the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: order placed by any means of communication and confirmed by order form, supplied with these terms and conditions
Proposal: review of Customer’s needs, budgets and timescales as agreed and set out in the Proposal document, such Proposal shall form part of the Contract; Proposals are used for software and larger installations.
Services: the services to be provided by the Supplier under this Agreement as set out in the Order/Proposal, together with any other services which the Supplier provides or agrees to provide to the Customer, as set out in the Order/Proposal, including but not limited to installation, maintenance and support and the supply of third party consumable products (Consumables).
Supplier: Reflex Labels Limited t/a Progressive ID, incorporated and registered in England and Wales under company number 03708517 whose registered office is at Vision House, Hamilton Way, Oakham Business Park, Mansfield, Nottinghamshire, NG18 5BU.
A person includes a natural person, corporate or unincorporated body and a reference to a statute is a reference to such statute as in force.
2 BASIS OF CONTRACT
2.1 The Order/Proposal shall be supplied with these Conditions and shall constitute an offer by the Supplier and the Order/Proposal shall be accepted in writing by the Customer at which point the Contract is formed.
2.2 The Order/Proposal and these Conditions constitute the entire agreement between the parties (the “Contract”). The Customer acknowledges that it has not relied on any representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 SOFTWARE AND HARDWARE
The supply of Software, Hardware and Services including Consumables is described in the Order/Proposal and the Supplier reserves the right to amend the specification(s) if required by any applicable statutory or regulatory requirements.
4 DELIVERY OF THE SOFTWARE
4.1 The Supplier shall deliver the Software as set out in the Proposal.
4.2 Delivery of Software shall be deemed to have taken place on the Supplier’s submission to the Customer of a working executable(s) marked as “Final Release”.
4.3 Any dates quoted for provision of the Services are best estimates and time of provision of the Services is not of the essence.
5 TITLE AND RISK IN THE SOFTWARE, HARDWARE AND CONSUMABLE PRODUCTS SUPPLIED UNDER SERVICES
5.1 Risk shall pass to the Customer upon delivery of the Software as set out in clause 4 above and delivery of the Hardware and/or Consumables to the Customer’s premises, such premises having been identified in the Order/Proposal. Until full payment has been received by the Supplier, the Customer shall hold the Hardware and/or Consumables as bailee only and shall store the Hardware in such a way as to ensure identifiability of the Hardware and/or Consumables as the Supplier’s property. Title shall pass upon full payment by the Customer to the Supplier.
5.2 Any dates quoted for the provision of the Hardware are best estimates and time of provision of the Hardware shall not be of the essence.
5.3 The Supplier reserves the right to make part deliveries which will be supported by advisory written communication.
5.4 The Customer shall not be entitled to refuse delivery or part delivery.
5.5 Risk in the Hardware shall pass from the Supplier to the Customer upon delivery at 5.1 above save for where the Customer has arranged its own transport when delivery shall be deemed upon loading of the Hardware onto the Customer’s own transport.
5.6 Any defect, shortage or damage in the Hardware must be reported within 72 hours or the Customer shall be deemed to have accepted such defect, shortage or damage.
6 SUPPLIER’S GUARANTEE OF THE SOFTWARE, HARDWARE AND CONSUMABLES
6.1 The Supplier offers support for Software for a period of 6 months after which the Customer may choose a further support option.
6.2 Hardware and Consumables come their own guarantees and the Supplier shall be responsible for detailing the length of guarantee and relevant information in Order/Proposal.
6.3 This guarantee does not apply to any defect in the Software, Hardware or Consumables arising from:
6.3.1 the Customer failing to operate the Software , Hardware or Consumables in accordance with user instructions issued by the Supplier;
6.3.2 any alteration or repair by any party who is not authorised by the Supplier
6.3.3 use outside of the manufacturer’s specifications.
6.4 The Customer acknowledges that the Supplier may not be the manufacturer of the Hardware or Consumables and the Supplier shall pass on to the Customer such unexpired warranties it receives from the manufacturer as are capable of transfer, the Supplier’s liability shall be limited to such guarantee as it may receive from the manufacturer.
7 RETURN OF THE HARDWARE AND CONSUMABLES
7.1 The Supplier shall not accept the return of any items supplied in accordance with the Contract except upon written agreement and shall have no liability for items returned in any other circumstances.
7.2 The cost of any agreed return shall be borne by the Customer unless agreed in writing in accordance with 7.1 above.
8 SUPPLY OF SERVICES
8.1 The Supplier shall provide the Services, which includes the procurement of Consumables, to the Customer in accordance with the Order/Proposal in all material respects and the Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order/Proposal, but time shall not be of the essence for the performance of the Services.
9 CUSTOMER’S OBLIGATIONS
The Customer warrants that the person arranging and entering into the Contract on its behalf has authority to do so; the terms of the Order/Proposal are complete and accurate; shall be responsible for testing and acceptance of the Software and shall co-operate with the Supplier in all matters relating to the Software and Services;
10 CHANGE CONTROL
10.1 If either party wishes to change the scope or execution of any supply under this Contract, such changes must be agreed in writing. Upon the Customer’s request for a change, the Supplier shall provide a written estimate of additional time and charges which will be incurred as a result of the requested changes.
10.2 If the Customer requires changes relating to Software or Hardware following delivery, such changes must be notified to the Supplier within 7 days of delivery and the Customer shall be liable for any associated costs.
11 CHARGES AND PAYMENT
11.1 The price for the Services shall be the price set out in the Order/Proposal and subject to VAT at the prevailing rate and shall not include any third party charges for which the Customer is solely responsible.
11.2 The Supplier shall invoice the Customer on despatch unless agreed otherwise in the Order/Proposal and such invoice shall be payable within 30 days unless agreed otherwise in writing.
11.3 Without limiting any other right of the Supplier, if the Customer fails to make any payment due to the Supplier, the Supplier shall be entitled to apply interest to the due sum at 4% above HSBC’s rate until payment is made.
11.4 The Customer shall pay all amounts due under the Contract without deduction. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.5 The Supplier may change its prices at any time and without notice, but where the Software and Hardware have been delivered after such a change the Customer shall be charged the price in accordance with the Order/Proposal.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 Agreement for Licence of Software
12.1.1 As between the Customer and the Supplier, all Intellectual Property Rights shall be owned by the Supplier. Subject to the Customer’s fulfilling its obligations under the contract and as set out in the Order/Proposal, the Supplier shall grant to the Customer either:
126.96.36.199 a non-exclusive, revocable licence to use the Software on and in conjunction with the Hardware, subject to the terms and conditions of this Contract, which shall be renewable on an annual basis, or
188.8.131.52 a non-exclusive, irrevocable licence to use the Software subject to the continuing terms of this Contract and payable by premium.
12.1.2 The Customer shall use the Software for processing its own data for its own internal business purposes only.
12.1.3 The Customer acknowledges that it is licensed to Use the Software only in accordance with the express terms of this Agreement and not further or otherwise.
12.1.4 No copies may be made of the Software without the prior written consent of the Supplier. The Supplier shall provide the Customer with sufficient copies of the Software and such Hardware to enable the use of Software under the terms of the Contract. If the Customer requires further copies of the Software then these may be obtained under licence from the Supplier in accordance with its standard scale of charges from time to time in force.
12.1.5 The Customer undertakes not to translate, adapt, vary, modify, dissemble, decompile or reverse engineer the Software without the Supplier’s prior written consent.
12.1.6 The Software and the Intellectual Property Rights of whatever nature in the Software are and shall remain the property of the Supplier.
12.1.7 The Customer shall notify the Supplier immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Software by any person.
12.1.8 This Agreement does not transfer or assign to the Customer any Intellectual Property Rights, nor does this Agreement Licence or otherwise make available the Intellectual Property Rights for the Customer’s use other than so far as is necessary to give effect to the Licence.
12.1.9 The Supplier shall have no liability for any Intellectual Property claim resulting from the Use of the Software in combination with any equipment other than the Equipment or programmes not supplied or approved by the Supplier or any modification of any item of the Licensed Programmes by a party other than the Supplier or its authorised agent.
12.2 The Customer may choose a service/maintenance option and such option shall be recorded in the Order/Proposal as a provision of Services.
13.1 A party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party, except insofar as is necessary to discharge its obligations under this Contract and such information shall be used only in connection with this Contract.
13.2 This clause 13 shall survive termination of the Contract.
14 CONTACT WITH THIRD PARTY SUPPLIERS
The Customer may be contacted by third parties in order that its contract with the Supplier may be fulfilled, for example where a delivery will be direct from a third party to the Customer at the Supplier’s behest. Any communication between the Customer and such a third party will be restricted to the fulfilment of this Contract and any attempt to circumvent the Supplier shall be treated as a breach of this Contract.
15 LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
15.1 Save in respect of death or personal injury or fraud, in no event shall the Supplier be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Supplier whether such damages were reasonably foreseeable or actually foreseen or if the Supplier has been advised of the possibility that such damages might occur.
15.2 The Supplier’s liability will in all circumstances be limited to the value of the products or services supplied under this Contract.
15.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
15.4 The parties acknowledge and agree that the limitations contained in this clause 14 are reasonable in light of all the circumstances.
15.5 This clause 15 shall survive termination of the Contract.
16.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a remediable breach that is not remedied within 7 days of notification or the other party becomes insolvent or suspends/threaten to suspend its business.
16.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer one months’ written notice.
16.3 Where the Contract is for a licence of the Software, the Customer may terminate the Contract by giving the Supplier not less than three months’ written notice.
17 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
17.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
17.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them.
18 FORCE MAJEURE
18.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
18.2 The Supplier shall not be liable to the Customer as a result of any delay/failure to perform its obligations under this Contract as a result of a Force Majeure Event.
18.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Software for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
19.1 Assignment and subcontracting. The Supplier may at any time deal in any manner with all or any of its rights under the Contract and may subcontract any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of the Supplier dispose of in any other manner with its rights or obligations under the Contract.
19.2 Notices. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and may include email and fax, which shall be deemed to be served immediately, or post which shall be deemed to be served two Business Days after postage.
19.3 Waiver. If the Supplier fails to insist that the Customer performs any of its obligations under these Terms or delays in doing so, that will not mean that the Supplier has waived its rights against the Supplier. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.
19.4 Severance. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
19.5 No partnership or agency. Nothing in the Contract shall be deemed to constitute a partnership or joint venture of any kind between any of the parties and no party shall have authority to act as agent for, or to bind, the other party in any way.
19.6 Third parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.7 Variation. Except as set out in these Conditions, any variation to the Contract shall only be binding when agreed in writing and signed by the Supplier.
19.8 These Terms are governed by English law and the parties submit to the exclusive jurisdiction of the English courts.