Trading Terms and Conditions
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TERMS AND CONDITIONS OF SUPPLY
Except as varied by the specific terms of any quotation by Supplier these Conditions comprise the Terms and Conditions under which the Supplier is willing to supply goods and/or services to Customer. Unless otherwise agreed in writing by Supplier, all Contracts are entered into on the basis of these Conditions to the exclusion of any other terms and conditions set out or referred to in any document or other communication used by a Customer in concluding a Contract. The Contract shall be formed by the Customer’s written, faxed, online or emailed acceptance of Supplier’s proposal or by Customer making any payment in respect of any Services whether or not those services have been provided at time of payment.
1. GENERAL PROVISIONS
1.1 In this Contract, the following words shall have the following meanings: 1) ‘Contract’ means a contract for supply between Supplier and Customer upon these Terms and Conditions 2) ‘Supplier’ means Quintadena Limited, a company registered in England No. 5444953, Registered Office at The Old School St Johns Road Dudley DY2 7JT 3) ‘Customer’ means the legal entity on whose behalf the quotation for this Contract is accepted 4) ‘Service’ means any item supplied under this Contract 5) ‘Price’ means the price quoted in this document for the Services by Supplier 6) ‘System’ means any and all services and any goods or computer software installed configured or created as part of the Services 7) System Acceptance has the meaning defined in 6.2 below 8) Periodic Services means any Services which are charged on a recurring basis for example Weekly or Monthly or Quarterly or Annually 9) Service Period means a single charging period of one Week or one Month or one Quarter or one Year as applicable to the particular Service 10) UMP means a software manufacturer’s subscription service entitling the subscriber to updated versions of software regardless of how any manufacturer names such subscription service.
1.2 Headings are inserted for convenience only and shall not affect the construction of this Contract.
1.3 These terms and conditions shall prevail over any printed or conflicting terms contained in Customer’s Purchase Order and may be modified or waived only by a written agreement signed by Supplier.
1.4 Supplier shall not be bound by any error or omission made in the Contract.
2.1 Supplier shall supply the Services specified in the Contract. Any times quoted in relation to the performance of the Services are estimates. Time shall not be of the essence in relation to the performance of the Services.
2.2 Supplier may use persons other than Supplier’s own employees to supply the Services. Supplier accepts full responsibility for the work done by such persons in accordance with these Conditions.
2.3 Customer shall provide Supplier with all assistance, co-operation and information required by Supplier in supplying the Services, including, without limitation, where Services are supplied at Customer’s premises, suitable access and facilities.
2.4 Supplier shall have no obligation to perform any work or undertake any activity outwith the Services. If Customer requests such work or activity, and Supplier agrees to such request, then such work or activity will be charged at Supplier’s prevailing rates for such work or activity and such work or activity will be deemed to have been offered and accepted upon these Terms and Conditions as though they had been included in the Contract Services.
3.1 Supplier shall supply the Services to Customer with reasonable care and skill. Except as stated in the preceding sentence, all warranties or conditions in relation to the Services, whether express or implied (by statute or otherwise), shall be excluded to the fullest extent permitted by law.
4. INTELLECTUAL PROPERTY
4.1 Copyright and all other intellectual property rights created by Supplier in performing the Services shall belong to Supplier. However, Supplier grants Customer a licence to use such rights created by Supplier on a non-exclusive basis to the extent necessary for the purpose of using the Services or any products or materials created by Supplier as a result of the Services which are provided to Customer, subject to receiving all the sums payable by Customer to the Seller under this Contract.
4.2 All such copyright material information and “know-how” whenever supplied shall at all times be treated by Customer as confidential and shall not without Supplier’s consent be used by Customer except for the purposes of: 1) evaluating the Proposal, or 2) as required during the supply of the Services, or 3) as required to operate the supplied system.
4.3 No disclosure to any third party of Supplier’s Intellectual Property shall be made without Supplier’s prior written consent.
5. PRICE AND PAYMENT
5.1 Prices quoted are firm for period shown on the Proposal, subject to: 1) errors and omissions being corrected, and 2) labour times are estimates based on our current knowledge of your requirements and may be varied 3) unavoidable increases in the cost to Supplier of bought in items, services, materials or changes in exchange rates between contract date and date of dispatch will be passed on to Customer.
5.2 Customer shall pay the Price for the Services together with VAT. Time shall be of the essence in relation to payment.
5.3 Accommodation, subsistence and public transportation costs shall be rebilled at cost. Motor car mileage shall be rebilled at 45p/mile. Where an onsite visit involves a journey of more than 2 hours by car, overnight accommodation the previous night will be chargeable to protect the health and safety of Supplier’s personnel.
5.4 Unless otherwise stated on the Proposal, Payment Terms are: Customers without credit authorisation full payment with order for orders below £5000 otherwise 50% with order and balance due on System Acceptance. Customers with credit authorisation full payment 30 days from invoice date. Where an instalment payment arrangement is agreed then a missed payment will cause all contractual balances to become due for immediate full payment.
5.5 Notwithstanding 5.4 or anything otherwise stated at any time, where System Acceptance is deemed to occur all contractual balances become due for immediate payment unless a payment plan has been agreed and no scheduled payments have been missed.
5.6 Services are based on an 8-hour working day with services provided outside of the UK being subject to any surcharges at cost. Any additional hours requested by Customer will be charged in addition to those quoted. These hourly rates are available upon request.
6.1 Whilst every reasonable effort will be made to meet any stipulated delivery date, delivery times will not form part of the contract. In no event shall Supplier be liable for loss of profits, injury to goodwill or any special or consequential damage for any delay or non-performance.
6.2 System Acceptance will be deemed to occur upon the first of the following events to take place: 1) A representative of Customer signing Supplier’s Project Completion Form 2) First operational use by Customer of the System 3) 28 days from Supplier notifying Customer that in Suppliers opinion System is ready for Acceptance except that if Customer responds within 7 days to such notice with a list of issues which in Customer’s opinion should prevent System Acceptance then System Acceptance will occur upon the resolution of such of those issues as are within the scope of the Services.
7. SOFTWARE LICENSING TERMS
7.1 Customer’s use of software supplied under this Contract for which Supplier does not hold Intellectual Property Rights is governed by licence terms of that software which Customer accepts. Customer warrants to Supplier that Customer will adhere to said licence terms.
7.2 Customer’s use of software supplied under this Contract for which Supplier holds Intellectual Property Rights is governed by the following licence terms: 1) The software is licensed, not sold. 2) Customer is granted a limited, non-exclusive license to use the software during the period of this Contract. 3) Customer may not: a) Reverse engineer, decompile or disassemble the software, except and only to any extent that applicable law expressly permits it, despite this limitation, or b) Make more copies of the software than specified in this agreement or allowed, by applicable law, despite this limitation, or c) Publish the software for others to copy, or d) Rent, lease or lend it, or e) Use it for commercial software hosting services. 4) Supplier reserves all other rights.
8. SOFTWARE SUPPORT CONTRACT
8.1 Full details of the Services included within Supplier’s Support Contract are available upon request.
8.2 Supplier normally requires Customer to subscribe to UMP in respect of all software covered by a Support Contract. Where Supplier agrees to provide a Support Contract in the absence of UMP and where in Supplier’s opinion a particular reported issue should be addressed by deployment of a software update Supplier will have no obligation to work on such reported issue until such time as the required update has been acquired at Customer’s expense.
8.3 Customer grants Supplier the exclusive right to supply UMP to Customer in respect of any software covered by a Support Contract during the period of validity of the Support Contract. Supplier undertakes to supply UMP at Manufacturer’s Recommended Retail Price thereof.
9.1 Subject to Clause 9.3, Supplier’s liability for any losses claims, damages or expenses arising out of or in connection with this Contract, howsoever caused, including by negligence, breach of duty (statutory or otherwise), breach of contract or otherwise shall not exceed £1000.
9.2 Subject to Clause 9.3, Supplier shall not be liable to Customer for any loss of profit, anticipated savings, business interruption or for any indirect or consequential loss incurred by Customer, howsoever caused, including by negligence, breach of duty (statutory or otherwise), breach of contract or otherwise and whether or not such losses were foreseeable at the time of entering into this Contract.
9.3 Nothing in this Contract shall exclude or restrict Supplier’s liability for fraud, death or personal injury due to Supplier’s negligence.
10. FORCE MAJEURE
10.1 Neither party shall be liable for delays in performing or failure to perform any of their obligations under this Contract due to any event outside of their reasonable control (including, without limitation, war, floods, acts of terrorism, official strike) which delays or prevents them from performing any of their obligations under this Contract. They shall inform the other party in writing, as soon as practicably possible, when such event occurs. If this event continues to delay or prevent performance for more than 14 days from the date of such notification, either party can terminate this Contract with immediate effect by giving written notice to the other party.
11. POSTPONEMENT AND TERMINATION
11.1 Postponement or Termination must be notified in writing, by fax, post or email.
11.2 Either party may Terminate this Contract: 1) with immediate effect by written notice to the other party if the other party is in material breach of any of its obligations under this Contract, 2) with immediate effect by written notice to the other party if the other party goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors, or a receiver or an administrator is appointed in respect of its business, or 3) in accordance with Clause 10
11.3 Supplier may Terminate this Contract at any time upon 7 days’ notice. In this case Supplier will repay all monies received in respect of Services not completely delivered at date of Termination.
11.4 Other than in accordance with clause 9 or with clause 11.2, Customer may not postpone or terminate this Contract once made without Supplier’s prior written consent. If Supplier consents Customer shall in all circumstances be responsible for any costs (including for the avoidance of doubt costs of labour materials travel subsistence and accommodation) incurred by Supplier as a result of such termination and for payment for such Services as may have been supplied under this Contract prior to such termination.
11.5 Where a date agreed to supply the whole or any part of the Services is Postponed by Customer the following scale charges against the postponed part of the Services will be payable as though the Services had been provided on the date originally agreed: 1) 100% if postponed later than 2 working days prior to agreed date of supply of Services, or 2) 50% postponed later than 5 working days prior to agreed date of service. This is to make good the opportunity cost to Supplier of allocating those days to supplying the Services: the subsequent actual Supply of Services will be payable additionally.
11.6 Where the price of a Service item is shown as Weekly or Monthly or Quarterly or Annually Customer may Terminate service for that item at the end of a Service Period of Week Month Quarter or Year respectively by providing notice of the lesser of 30 days or 1 Service Period to Supplier. Absent such notice, the Service will automatically roll over and be rebilled.
12.1 Any notices which need to be given under this Contract shall be sent in writing including by email to either party’s registered office address or principal place of business, unless otherwise notified.
13.1 Neither party can assign its rights under this Contract without the consent of the other party, which shall not be unreasonably withheld. Nothing in this Contract shall prevent Supplier sub contracting any part of the Services at Supplier’s absolute discretion.
14.1 No failure by either party to exercise any of its rights under this Contract shall be deemed to be a waiver of such rights or prevent the exercise of such rights at a later date.
15. THIRD-PARTY RIGHTS
15.1 No-one who is not a party to this Contract has any benefit or any right to enforce any term of this Contract for the purposes of the Contracts (Rights of Third Parties) Act 1999.
16. APPLICABLE LAW AND DISPUTE RESOLUTION
16.1 This Contract, and any disputes which may arise in connection with it, shall be governed by and construed in accordance with English law and the parties shall submit to the exclusive jurisdiction of the English and Welsh courts.
17. ENTIRE AGREEMENT
17.1 This Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreement and understanding between the parties relating to the supply of the Services by Supplier to Customer.
17.2 Customer acknowledges and agrees that in entering into this Contract, it does not rely on any statement, representation or warranty of Supplier (other than which are expressly set out in this Contract). Nothing in this clause shall operate to limit or exclude any liability for fraud.
17.3 Variations to this Contract may only be made in writing by the agreement of the parties and signed by their authorised representatives.//Quintadena Terms and Conditions