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Definitions
1 In these conditions the following terms shall have the following meanings.
1.1 "Company" means Kbase-Connect Ltd (a firm) registered in England and Wales with company number 03996601 and a registered address of Unit 1 Armstrong Way, Great Western Business Park, Yate Bristol, South Gloucestershire BS37 5NG.
1.2 "Customer" means the customer of the company.
1.3 "Contract" means any contract for the sale of Goods by the company to the customer.
1.4 "Goods" means any goods forming the subject of this contract including parts and components of or materials incorporated in them.
Quotation
2 Quotations by the Company unless otherwise stated in them shall be open for acceptance in 30 days of the date of the quotation.
Existence of Contract
3.1 No Contract shall come into existence until either the Customer's order (however given) is accepted by the earliest of
the Company's written acceptance,
delivery of the Goods, and
the Company's invoice
3.2 These conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customer.
3.3 No variation or amendment of this Contract shall be valid unless in writing and signed by or on behalf of all parties.
Prices
4.1 The prices for the Goods are ex works and exclude VAT.
4.2 The Company shall have the right in respect of any uncompleted portion of the Contract to adjust its prices for any increase in the price of materials, parts, labour, transport, changes in work or delivery schedules or quantities or any other costs of any kind arising for any reason after the date of the Contract.
4.3 Price clauses shall take effect on the date of service on the Customer of notice of the charge.
Payment
5.1 Payment for the Goods shall be without discount of any kind in pounds sterling 25% with order and the balance in 14 days of the date on the Company's invoice and in no circumstances shall the Customer be entitled to make any deduction or withhold payment for any reason at all.
5.2 Without prejudice to any other rights of the Company (including the right to suspend any further installation) if the Customer fails to pay the invoice price by the due date the Customer shall not be allowed any discount given in that invoice or in any other way agreed and shall pay interest on any overdue amount from the date of which payment was due to that on which it is made (whether before or after judgment) on a daily basis at a rate of 4% p.a. over the base rate from time to time quoted by Barclays Bank plc and reimburse to the Company all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
Title
6.1 For the purpose of section 12 of the Sale of Goods Act 1979 the Company shall transfer only such title or rights in respect of the Goods as the Company has and if the Goods are purchased from a third party shall transfer only such title or rights as that party had and has transferred to the Company.
6.2 Notwithstanding the earlier passing of risk title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for them or any other outstanding invoice for goods and/or services supplied by the Company to the Customer (including interest and costs) has been paid in full.
6.3 Until title passes the Customer shall hold the Goods as bailee for the Company and shall store or mark them so that they can at all times be identified as the property of the Company
6.4 The Company may at any time before title passes and without any liability to the Customer repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Customer's right to use, sell or otherwise deal in them, and
for (that purpose or determining what if any Goods are held by the Customer and inspecting them) enter any premises of or occupied by the Customer.
6.5 Until title passes the entire proceeds of sale of the Goods shall be held in trust for the Company and shall be held in a separate designated account and not mingled with other moneys or paid into any overdrawn bank account and shall be at all times identifiable as the Company's money.
6.6 The Company may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Customer.
Risk, Delivery and Performance
7.1 The Goods are delivered to the Customer when the Company makes them available to the Customer at a delivery point agreed by the Company.
7.2 Risk in the Goods passes when they are delivered to the Customer.
7.3 The Company may at its discretion deliver the Goods by instalments in any sequence.
7.4 Where the Goods are delivered by instalments, no default or failure by the Company in respect of any one or more instalments shall vitiate the Contract in respect of the Goods previously delivered or undelivered Goods.
7.5 Any dates quoted by the Company for the delivery of the Goods are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates.
7.6 The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract.
Claims Notification
8.1 Any claim for non delivery of any Goods shall be notified in writing by the Customer to the Company in 10 days of the date of the Company's invoice.
8.2 Any claim that any Goods have been delivered damaged, are not of the correct quantity or do not comply with their description shall be notified by the Customer to the Company in 14 days of their delivery.
8.3 Any alleged defect shall be notified by the Customer to the Company in 14 days of the delivery of the Goods or in the case of any defect which is not reasonably apparent on inspection in seven days of the defect coming to the Customer's attention and in
any event within the warranty period given by the manufacturer.
8.4 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods.
8.5 The Company shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall if so requested in writing by the Company promptly return any Goods the subject of any claim and any packing materials securely packed and carriage paid to the Company for examination.
8.6 The Company shall have no liability with regard to any claim in respect of which the Customer has not complied with the claims procedures in these conditions.
Scope of Contract
9.1 Under no circumstances shall the Company have any liability of whatever kind for:
9.2 Any defects resulting from wear and tear, accident, improper use by the Customer or use by the Customer except in accordance with the instructions or advice of the Company or the manufacturer of any Goods or neglect or from any instructions or materials provided by the Customer;
9.3 Any Goods which have been adjusted, modified or repaired except by the Company;
9.4 The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company;
9.5 Any substitution by the Company of any materials or components not forming part of any specification of the Goods agreed in writing by the Company;
9.6 Any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by the Company's contained in the Company's catalogues, price lists or elsewhere since they are merely intended to
represent a general idea of the Goods and not to form part of the Contract or be treated as representations;
9.7 Any technical information, recommendations, statements or advice furnished by the Company its servants or agents not given in writing in response to a specific written request from the Customer before the Contract is made; or
9.8 Any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods, and the substituted materials or components are of a quality equal or superior to those originally specified.
9.9 If a sample of the Goods has been exhibited to and inspected by the Customer the Contract shall not constitute a sale by sample.
Extent of Liability
10.1 The Company shall have no liability to the Customer for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence, breach of statutory or other duty on the part of the Company or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except
for death or personal injury resulting from the Company's negligence, and
as expressly stated in these conditions.
10.2 If the Company establishes that any Goods have not been delivered, have been delivered damaged, are not of the correct quantity or do not comply with their description the Comapny shall, at its option, replace with similar goods any Goods which are missing, lost or damaged or do not comply with their description, allow the Customer credit for their invoice value or repair any damaged Goods.
10.3 If the Company establishes that any Goods are defective the Company shall, as its option, replace with similar goods or repair any defective Goods, allow the Customer credit for their invoice value or to the extent that the Goods are not of the Company's manufacture.
10.4 The delivery of any repaired or replacement Goods shall be at the delivery point specified for the original Goods.
10.5 Where the Company is liable in accordance with this condition in respect of only some or part of the Goods the Contract shall remain in full force and effect in respect of the other or other parts of the Goods and no set off or other claim shall be made by the Customer against or in respect of such other or other parts of the Goods.
10.6 No claim against the Company shall be entertained for any defect arising from any design or specification provided or made by the Customer or if any adjustments, alterations or other work has been done to the Goods by any person except the Company.
10.7 In no circumstances shall the liability of the Company to the Customer under this condition exceed the invoice value of the Goods.
General
11.1 The Customer shall not assign or (without first obtaining the Company's written consent) sub let this Contract in whole or in part and it shall be a condition of any such consent to any sub letting of this Contract that the Customer shall:
ensure and be responsible for the compliance by any sub contractor with the terms of this Contract;
include in the sub contract provisions consistent with these conditions for the benefit of and enforceable by the Company; and
furnish the Company with copies of any sub contract upon the Company's request at any time.
11.2 The Company may at its discretion suspend or terminate the supply of any Goods if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other Agreement with the Company or becomes insolvent, has an administrative receiver appointed of its business or is compulsorily or voluntarily wound up or the Company bona fide believes that any of those events may occur, and in case of termination may forfeit any deposit paid.
11.3 If the Goods are manufactured in accordance with any design or specification provided or made by the Customer the Customer shall compensate the Company in full on demand for all claims, expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the design or specification infringes the rights of any third party.
11.4 Except for any which is expressly agreed to be included in the Goods all tools, patterns, materials, drawings, specifications and other data provided by the Company shall remain its property and all technical information, patentable or unpatentable, copyright and registered designs arising from the execution of any orders shall become the property of the Company.
11.5 The Customer shall not remove, alter, deface or tamper with any of the trade marks, names or numbers affixed to or marked on the Goods or allow any one else to do so.
Confidentiality
12 The Customer shall not at any time whether before or after the termination of the Contract divulge or use any unpublished technical information deriving from the Company or any other confidential information in relation to the Company's affairs or business or method of carrying on business.
Force Majeure
13 The Company shall not be liable for any failure in the performance of any of its obligations under this document caused by factors outside its control.
Law and Jurisdiction
14 This Contract shall be governed by English law and the Customer consents to the exclusive jurisdiction of the English courts in all matters regarding it except to the extent that the Company invokes the jurisdiction of the courts of any other country.
Notices
15.1 Any notice given under this Contract shall be in writing and may be served
personally,
by registered or recorded delivery mail,
by telex or facsimile transmission (the latter confirmed by telex or post), or
by any other means which any party specifies by notice to the others.
15.2 Each party's address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the others.
15.3 A notice shall be deemed to have been served:
if it was served in person, at the time of service,
if it was served by post, 48 hours after it was posted, and
if it was served by telex or facsimile transmission, at the time of transmission.
Support Contract
16.1 The Company shall provide The Client with such technical advice by telephone, e-mail, fax, and web access during the Cover Period as is reasonably necessary to resolve The Client’s difficulties and queries in using the Programs. The objective of this service is to provide an initial advice and guidance service. It is not intended as a substitute for management consultancy, project management, implementation control, system consultancy, or product training and is available only to competent trained employees of The Client.
16.2 The Company shall provide The Client with such updates to the Programs as are reasonably feasible and necessary for the Programs to operate under new releases of the operating system applicable to The Equipment.
16.3 The Company shall provide The Client certain improvements to the Programs as The Company at its sole and absolute discretion decides are appropriate.
16.4 The Company shall make all reasonable attempts to correct any programming errors in the Programs identified during the use of the Programs by The Client.
16.5 The Annual Licence shall not include services in respect of correcting defects or errors resulting from any modifications made by any person other than The Company or its authorised representatives.
16.6 The Company shall not be obliged to remedy any defect or error outside the scope of the Annual Licence. Where The Company is called upon to investigate a defect arising from any such cause or to investigate, and where no such defect is found then The Company shall be entitled to levy a charge for the time spent in investigating the problem based upon its standard charging rates applicable from time to time.
16.7 The Company shall not be obliged to remedy any defect or error in any version of the Programs other than the current release of The Software.
16.8 The Company shall not be obliged to remedy any defect or error which is the result of incorrect use of the Programs and Equipment and which was not in accordance with accompanying operating documents.
16.9 The Company shall not be obliged to remedy any defect or error caused by use of the Programs or Equipment on or with Equipment or Software Programs not supplied by, or approved in writing, by The Company.
16.10 The Annual Licence Fee is payable annually in advance. The first Fee shall be payable on or by the Effective Date. Each subsequent Annual Licence Fee shall be invoiced by The Company prior to each anniversary date during the currency of the current Annual Licence. These invoices are payable in full prior to the commencement of the anniversary date. All charges are quoted exclusive of Value Added Tax which shall be additionally payable by the Purchaser in the manner and at the rates prescribed by law.
16.11 The Company reserves the right to vary the Annual Licence Fee on or before each anniversary of the Effective Date.
16.12 The Company shall be entitled to suspend performance of its obligations under The Software Licence Contract at any time if any amount is due but remains unpaid.
Software
17.1 The title and property of The Software shall at all times always reside with The Company. The provisions of the Agreement, and under the Annual Licence, The Company shall grant to The Client a right to use The Software whilst all monies are paid on their due date. The purchase price of The Software means the purchase of the initial right to use The Software, on appropriate Equipment, subject to the terms of this Agreement.
17.2 The Company grants The Client an exclusive and non-transferable Licence to use The Software as follows:
17.3 To have one copy of each of the Programs, (but subject to securing reliable back-ups).
17.4 To use such copies subject to the terms of this Agreement whilst it is in force.
17.5 The Agreement shall be deemed to be in force from the date of delivery of The Software to the Client, on an annually renewable basis, and all monies due under this Agreement are fully paid.
17.6 The Annual Licence may be terminated by The Client by giving three month’s notice in writing to The Company.
17.7 The Annual Licence may be terminated immediately by The Company by giving The Client written notice if the Client is in serious or persistent breach of this Agreement.
Supply of Master Copy
18.1 The Company agrees to make one master copy only of the object codes of each of The Software and to supply these to The Client on machine-readable media such as either CD, Tape, Floppy Disk or other industry standard media.
18.2 The Company shall use its reasonable endeavours to adhere to any delivery date agreed between it and The Client but shall not be liable for late delivery.
Conditions
The Company and The Client hereby agree:
19.1 That the copyright and all other intellectual property rights in the Programs and related documentation belongs to either The Company or a third party licensor as appropriate.
19.2 That the title and property in the media upon which the Programs are supplied remains with The Company.
19.3 That The Client shall not use the copies of the Programs except at the Installation Site as specified in this Agreement.
19.4 That The Client shall use its copies of the Software and any documentation relating to the Programs for its own requirements only and shall not use the whole or a part of any of the Programs for the benefit of any other person, firm, organization, enterprise, or company other than itself or The Company.
19.5 That The Client shall not make or permit to be made copies of the whole or any part of the Program or documentation relating to the Program except for the express purposes of securing reliable data back-ups of the system.
19.6 The Client shall not sub-license, re-licence, assign, transfer, or otherwise dispose of The Software, or The Licence, or The Contract, or any part, without the prior consent in writing of The Company. This includes moving The Software to a different location (not specified in The Contract or Schedule) change of name of The Client, change of ownership of The Client, or change of name to whom The Software is licensed. The Client shall also permit the Software and documentation relating to the Software to go out of its possession at any time without the prior written consent of The Company.
19.7 That The Client shall not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based upon The Software, or its documentation.
19.8 That The Client shall not install any version of The Software on more than one item of Equipment, with the intention of operating The Software in a manner that exceeds the agreed concurrent user count.
19.9 That upon the termination of the Licence for any reason whatsoever The Client shall return at The Client’s cost The Software and documentation relating to The Software to The Company, or shall provide evidence of their destruction to The Company.
19.10 That The Client shall not disclose at any time in any circumstances to any other person, firm, organization, enterprise, or company (save for disclosures to The Company’s or The Client’s professional advisers) all or part of the information contained in the Programs and documentation relating to The Software supplied under this Agreement.
19.11 That The Client shall assist The Company (at the expense of The Company) in proving the validity of The Company’s title to, or copyright in, the Programs when reasonably called upon to do so.
19.12 Notwithstanding the provisions of the Clause concerning sub-licensing and sub-letting, The Company and The Client agree that The Client may with the prior written approval of The Company (such approval not to be unreasonably withheld) authorize other persons, firms, organizations, enterprises, or companies to use for the sole purpose of The Client’s business only, copies of the Programs.
Alteration to Software
20.1 The Company shall not be liable for any error, or resultant error caused by any change to, or misuse by, The Client or his employees or representatives, of the Programs, Data, or documentation relating to the Programs.
Software Warranty
21.1 The Company warrants that The Company will at its own option correct or replace any or any part of the Programs if they do not perform substantially in accordance with the documentation supplied by The Company provided that The Company has received written notice of the defect within 90 days of the date of supply of the Programs. However, The Company shall not accept any liability in respect of defects or non-performance of the Programs where this is attributable to improper use or arises as a result of unauthorised amendment, alteration, or maintenance of the Programs or resulting data.
21.2 The manuals and other documentation supplied by The Company with the Programs contain functional specifications of the Programs and are incorporated herein and form part of the Licence. The Client agrees that the performance of the Programs is to be measured only in accordance with such specifications.
Consequential Loss
22 The Company shall at no point and in no situation or circumstance be liable for any alleged consequential loss or damage resulting from use of The Software and the resulting Data.
Copyright
23.1 The Copyright on all consulting reports, planning documents, visit notes, guides to implementation, course notes, and operating manuals will be retained by The Company and these may not be reproduced or passed to any third party without prior written consent of The Company.
23.2 The Company does not permit the audio or video recording of on-site Professional or Technical Services, or Training and Consultancy, unless written authority is obtained beforehand.
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