1 Definitions
1.1 In these Conditions, unless the context requires otherwise, the following expressions have the following meanings:
"Customer" means the person to whom the Quotation is addressed.
"Company" means G2IS (company registration number 02382338) with its registered office at Challenge House, International Drive, Tewkesbury, Gloucestershire, GL20 8UQ, which expression shall include its successors in business and assigns.
"Conditions" means the standard terms and conditions of sale set out in this document.
"Contract" is defined at Clause 2.3 below.
"Goods" means the Goods (including any installment of the Goods or any part of them) described in the Quotation, and such term shall include the Software save where the context requires otherwise.
"Price" means the price of the Goods or Services determined pursuant to Clause 4.
"Quotation" means the Company's quotation for the Goods or Services.
"Services" means the services (if any) described in the Quotation.
"Software" means the software specified in the Quotation;
"Writing" means facsimile transmission and by post and "Written" shall be construed accordingly.
1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of Sale
2.1 The Quotation constitutes an offer by the Company, capable of acceptance by the Customer, to sell the Goods or Services subject to these Conditions.
2.2 A quotation by the Company may be withdrawn or revised at any time prior to the Customer's acceptance of the Quotation.
2.3 No Quotation shall be binding upon the Company unless the Customer expressly accepts the Quotation by completing the Company's Notice of Acceptance ("Acceptance Notice") within the period of validity of the Quotation in which case a contract ("Contract") will be formed, for the sale and purchase of the Goods and/or for the provision of the Services by the Company, comprising the Quotation, Acceptance Notice and these Conditions.
2.4 These Conditions shall apply to, and shall be part of, the Contract to the exclusion of any terms and conditions of the Customer unless such terms are accepted in Writing by the Company.
2.5 No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Company.
3 Drawings
3.1 All drawings, dimensions, specifications, descriptions and illustrations contained in any sales literature and price list are approximate only and shall not form part of the Contract.
4 Price of the goods and services
4.1 The Price of the Goods and Services shall be as stated in the Quotation or, where not so stated, as determined by reference to the Company's applicable price lists for the Goods and Services in effect at the date of invoice and, unless otherwise so stated, shall be:
4.1.1 exclusive of VAT and any other tax which, where applicable, shall be payable by the Customer in addition to the Price; and
4.1.2 exclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods, and any duties, imposts or levies, which, where applicable, shall be payable by the Customer in addition to the Price.
5 Terms of payment
5.1 The Company may invoice the Customer:-
5.1.1 on (or after) the date the Company has notified the Customer that the Goods are ready for collection when the Contract provides that the Goods are to be collected by the Customer from the premises of the Company; or
5.1.2 on (or after) the date of delivery of the Goods to the agreed point of delivery when the Contract provides that the Goods are to be delivered to such place by the Company.
5.2 The Company shall be entitled to invoice the Customer for performance of the Services on completion of the Services or at the end of each calendar month in respect of Services rendered under this Contract during such calendar month whichever is the earlier.
5.3 The Customer shall pay the Company's invoices in full without any deduction whether by way of set off, counterclaim or otherwise within 30 days of the date of the Company's invoice, unless the Customer can reasonably demonstrate that it has a valid reason to dispute the invoice..
5.4 The Company shall be entitled to charge interest on late payments before as well as after judgement at the rate of 5% per annum above Barclays Bank's base rate from time to time.
5.5 No partial payment expressed to be "in full and final settlement" shall be effective as such unless specifically agreed in Writing by the Company.
6 Delivery
6.1 Delivery of the Goods shall be made by the Customer collecting the Goods from the Company's premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place of delivery is specified in the Quotation, by the Company delivering the Goods to that place.
6.2 Performance of the Services shall be made at the Customer's registered address or such alternative address as may be set out in the Quotation. The Company shall be entitled to sub-contract the performance of the Services.
6.3 The Customer acknowledges that any dates for delivery of Goods or performance of Services are estimates only. Accordingly the Company shall have no liability in the event of any delays.
6.4 The time of supply or delivery of the Goods or performance of the Services is not of the essence of the Contract.
6.5 The Customer shall be deemed to have accepted the Goods upon delivery in all cases other than when the Goods are damaged at the time of delivery and the Customer notifies the Company (in Writing) of such damage within seven (7) days of the date of delivery in which case the Company shall, at its sole option and as the Customer's sole and exclusive remedy, replace or repair any such Goods or part thereof which are proved, to the Company's satisfaction, to have been damaged at the time of delivery.
6.6 If the Customer refuses or fails to take delivery of Goods or performance of the Services tendered in accordance with this Contract then, without prejudice to any other rights the Company may have against the Customer (for breach of contract or otherwise):
6.6.1 the Company shall be entitled (notwithstanding that property may not have passed) both to immediate payment in full for the Goods and Services so tendered and either to effect delivery or performance by whatever means it considers most appropriate or to store those Goods at the risk of the Customer and withhold performance;
6.6.2 the Customer shall, in addition to the Price, pay all costs of such storage and any additional costs incurred as a result of such refusal or failure, and
6.6.3 the Company shall be entitled, after the expiration of 1 month from the date upon which it first tendered the Goods for delivery, to dispose of the Goods in such manner as the Company may determine and shall be under no duty to account to the Customer for any of the proceeds of such disposal.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer upon delivery to the Customer in accordance with the Contract.
7.2 Whether title in the Goods shall pass shall be determined by the following terms:
7.2.1 Title in the Goods shall pass, subject to Clause 7.2.2 below, to the Customer upon full payment for the Goods or on delivery, whichever is later.
7.2.2 Where the Goods include software, title to the software shall not pass to the Customer and the software shall be licensed to the Customer on and subject to the provisions of Clause 13 or the software licence terms of any third party software vendor (whether on-screen, shrink wrap or otherwise).
7.3 Until such time as title in the Goods has passed to the Customer:
7.3.1 the Company shall be entitled to repossess at any time any of the Goods in which title remains vested in the Company;
7.3.2 for the purpose specified in Clause 7.3.1 above, the Company or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the Goods or any part thereof are installed, stored or kept, or are reasonably believed so to be; and
7.3.3 the Company shall be entitled to seek a court injunction or equivalent judical order under the applicable law of this Contract to prevent the Customer from selling, transferring or otherwise disposing of the Goods.
7.4 Until such time as title in the Goods has passed to the Customer, the Customer shall, subject to the Company's rights hereunder, keep the Goods separate from other Goods fully insured (for the benefit of the Company) and hold the Goods as the Company's fiduciary agent.
8 Warranties and Liability
8.1 Without prejudice to Clause 8.4, the Company warrants to the Customer that:
8.1.1 the hardware in the Goods will be substantially free from defects in materials and workmanship and will conform to a substantial degree to any specifications agreed between the parties in Writing at the date of the Contract for a period of 12 months after the date of delivery ("Warranty Period"),
8.1.2 the Software will conform to a substantial degree to any specifications agreed between the parties in Writing at the date of the Contract for a period of 3 months after the date of delivery and in accordance with the state of the art the Company does not undertake that such software will be uninterrupted or error free, and
8.1.3 the Services will be performed by appropriately qualified and trained personnel, with the reasonable skill and care generally employed in the industry in the United Kingdom in respect of the performance of similar services. The warranty described in this clause shall be defined as the Limited Warranty.
8.2 The Company's entire liability and the Customer's sole remedy in respect of the purchase of Goods and/or the licence of any software included therein will be, at the Company's sole discretion, the repair or replacement (with the same or similar hardware) of any parts in the hardware and/or the fixing of any substantial errors in the software in the Goods not meeting the Limited Warranty set out above in Clause 8.1 that is returned to the Company and/or in the case of software notified to the Company during the Warranty Period in accordance with the Contract together with a copy of the Customer's proof of purchase. The Company shall be entitled, at its sole discretion, to charge for its standard call-out rate, labour costs and travelling expenses incurred in repairing or replacing any parts in the hardware if the Customer requests an on-site repair and has not contracted separately or specifically agreed in the Quotation to purchase the Company's maintenance and/or software support service.
8.3 To the maximum extent permitted by law all other warranties and conditions, expressed or implied, including without limitation any conditions of quality, merchantability or fitness for a particular purpose with respect to the use of the Goods or performance or non-performance of the Services are excluded. In no event shall the Company be liable for any direct or indirect:
incidental loss; consequential loss; wasted or lost management time; lost profits, goodwill, savings or other economic loss; and/or loss of data
arising from or relating to the Contract or the use of the Goods or performance or non-performance of the whole or part of the Services, or breach of statutory duty, even if the Company has been advised of the possibility of such loss.
8.4 Specifically, the Limited Warranty in Clause 8.1 does not cover failures of the Goods which result from accident, abuse, misuse, alterations (by persons other than the Company or its authorised repair agents), moisture, corrosive environments, high voltage surges, or abnormal working conditions. The Limited Warranty does not cover normal wear and tear. The Limited Warranty does not cover third party software supplied in, or with, the Goods.
8.5 In no event shall the Company's liability under Clauses 8.1 and 8.2 or otherwise unless specifically stated in the Contract exceed the total price of the Contract at the date the liability arose, provided always that nothing in the Contract shall limit or exclude the Company's liability for death or personal injury resulting from its negligence.
8.6 If the Customer needs to make a claim under the Limited Warranty within the Warranty Period, the Customer must telephone the Company prior to sending the Goods to the Company. The Company will inform the Customer as to whether the Customer's claim is valid and, if so, will provide details of where (and how) to return the Goods. The Company will not accept any Goods returned to it where this procedure is not followed.
8.7 If the Customer requests a warranty repair and has not contracted separately or specifically agreed in the Contract to purchase the Company's maintenance and/or software support service and except where the Company is in material breach of its obligations, the Customer is responsible for all costs involved in sending the Goods to the Company and for packaging the Goods such that they will not be damaged during return carriage.
8.8 The Company reserves the right to charge the Customer on a time and materials basis at its then current rates if the Customer's warranty claim is found not to be a valid claim.
8.9 The Company will be liable for the making good of any physical damage to tangible property caused by negligence on its part and on the part of its employees, agents and sub-contractors in connection with this Contract but its maximum liability is limited to £1,000,000 for any one claim or series of claims.
8.10 The Company will be liable, without limitation on the maximum amount of its liability, to indemnify the Customer in respect of any claim arising from injury to or death of any person where and to the extent that the injury or death is caused by negligence on the part of the Company, its employees, agents or sub-contractors.
9 Termination
9.1 Either party shall be entitled to terminate the Contract without liability to the other by giving notice to the other at any time if:
9.1.1 the other party makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the other party; or
9.1.3 the other party ceases, or threatens to cease, to carry on business; or
9.2 The Company may suspend or terminate the Contract at any time by giving not less than 28 calendar days written notice in the event that the Customer without due cause fails to pay any amounts due to the Company by the due date or breaches any material warranty or other material term of this Contract and fails to remedy such non-payment or breach within a 28 calendar day notice period,
9.3 Except where the Company is in material breach of its obligations, any termination of the whole or part of this Contract shall result in the automatic termination of any software licence pursuant to which software is supplied to the Customer by the Company.
10 General
10.1 Neither party may assign its rights under the Contract without the permssion of the other; such permission shall not be ubreasonably withheld or delayed. The Company may sub-contract any of its obligations under the Contract if such action does not materially effect the performance of the Contract.
10.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3 No waiver by the Company or any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver of the Contract by the Company shall only be effective if in Writing expressly waiving the provision in question.
10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.5 The Company shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of the Contract arising by reason of force majeure, namely circumstances beyond the reasonable control of the Company which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; shortage of supplies (but not lack of funds), utilities, equipment, materials, breakdown or shortage of equipment and labour disputes of whatever nature and for whatever cause arising.
10.6 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall neither apply to these Conditions nor to the Contract. In particular but without limitation any warranties given in the Contract are for the benefit of the Customer only. Where the Customer is a re-seller the Customer is responsible for dealing with any warranty or other claims from its customers and shall keep the Company fully indemnified in this regard.
10.7 All (and any) liabilities of the Company to the Customer under, or arising out of, a Contract (including, but not limited to, liability for breach of contract, negligence and misrepresentation), which may be excluded or limited at law and which have not been excluded or limited by any other provision of this Contract shall be limited, in aggregate, to the value of the relevant Contract unless expressly admitted in the Contract.
10.8 To the extent permitted by law, the Customer shall defend and indemnify the Company from any and all claims brought against the Company by third parties, and shall hold the Company harmless from all corresponding damages, liabilities, costs and expenses, (including reasonable lawyers fees) incurred by the Company arising out of or in connection with the Customer's possession, use or distribution of the Goods except in the event of breach of a third party's intellectual property rights where the terms of clause 14 shall apply.
10.9 The parties agree that, to the extent permitted by law, the Vienna Convention of 1980 ("The Convention on Contracts for the International Sale of Goods") and all international and domestic (or other) implementations of that Convention shall not apply in relation to the Contract.
10.10 The Contract shall be governed and construed in accordance with the laws of England (including as to validity and enforcement) and the parties submit to the exclusive jurisdiction of the English courts.
10.11 This Contract constitutes the entire agreement between the parties with respect to its subject matter and (except in the case of fraud) supersedes all warranties, promises and representations or other assurances by any party prior to the coming into effect of this Contract and concerning its subject matter and terms.
10.12 Any quotation to which these terms are attached or referenced by shall be indivisible and only capable of acceptance as a whole unless specifically specified to the contrary
11 Confidentiality
11.1 Each party agrees and undertakes that during the term of this Contract and thereafter it will keep confidential and will not use for its own purposes nor without the prior Written consent of the other party disclose to any third party all information of a confidential nature (including trade secrets and information of commercial value) which may become known to that party from the other party ("confidential information") unless and only to the extent such information disclosure is:
11.1.1 required by law or a relevant regulatory authority, or
11.1.2 public knowledge or already known to that party at the time of disclosure free of any obligation of confidence or subsequently becomes public knowledge other than by breach of this Contract or subsequently comes lawfully into the possession of that party from a third party free of any obligation of confidence, or
11.1.3 ndependently developed by employees of the other who have not had access to such information disclosed under this Contract.
This obligation of confidence shall continue after termination of this Contract for as long as the law permits.
11.2 To the extent necessary to implement the provisions of this Contract each party may disclose the confidential information to those of its employees as may be reasonably necessary or desirable provided that before any such disclosure each party shall make those employees aware of its obligations of confidentialtiy under this Contract and shall at all times procure compliance by those employees with them.
12 Compliance with Law
12.1 The Customer will comply with all laws, rules and regulations ("Law") applicable to its purchase and use of the Goods and Services including without limitation the Data Protection Act 1998. The Customer shall on request provide the Company with reasonable assistance to enable the Company to comply with applicable Law.
13 Software Licence
13.1 To the extent the Software includes any software that the Company is permitted to licence to the Customer, the Company hereby grants to the Customer a non-exclusive and non-transferable licence to load and to subsequently process the Software in object code and only on the Customer's equipment and for the sole purpose of the Customer's internal use of the Software in conjunction with the Goods or Services provided under this Contract. Any software provided to the Customer by the Company subsequent to this Contract shall be subject to the terms of this license unless other terms are agreed between the parties in Writing.
13.2 To the extent that the Software includes any third party software that the company is not permitted to licence to the Customer, the third party's software licence terms shall apply.
13.3 For the avoidance of doubt, the Company's hardware may have firmware embedded in it and any code recorded on such firmware shall be construed to be Software for the purpose of this Agreement.
13.4 Except to the extent required by law or permitted under this Contract, the Customer shall not alter, modify, adapt or translate the whole or any part of the Software, nor combine or incorporate the Software with other programs, nor to decompile, disassemble or reverse engineer the Software or any part thereof.
13.5 The Customer will not without the Company's prior written consent copy or enable others to copy the Software or enable others to use unlicensed copies of the Software.
13.6 In the event that any enhancement or modification of the Software is made or evolves in the performance of or as a result of this Contract, any present or future intellectual property rights in such enhancement or modification is hereby assigned by the Customer to the owner of the intellectual property rights in the Software.
13.7 The licence to use the Software shall be suspended in the event that the Customer does not hold a valid maintenance contract with: the Company, or a third party approved by the Company. The Company warrants that it shall always make a maintenance contract available to the Customer on a time and materials basis. In this context, 'time and materials' means that the Customer is only obliged to pay for services and parts which it requests and accepts from the Company. The Company warrants that the consideration for such contract shall be a nominal sum excluding consideration for services rendered by or goods supplied from the Company which will be chargeable at the Company's then standard rates.
14 Infringement of Third Party Rights
14.1 Should any claim be made against the Customer alleging that any Goods or their use by the Customer infringes a patent or other intellectual property right of the claimant the Customer shall promptly notify the Company in writing with full particulars. Provided that the Customer so notifies the Company, makes no admission, allows the Company the exclusive right of deciding whether the claim shall be defended and whether any attempt shall be made to settle it and also allows the Company exclusive control of all litigation and negotiations the Company will indemnify the Customer in respect of all liability imposed on the Customer by a court order or arbitration award. If the Customer is unable to continue using the allegedly infringing Goods because the Company neither defends the claim successfully nor procures at its own expense the right for the Customer to continue using them, unless the Company elects at its own expense either to modify the Goods so that they become non-infringing or to replace them with non-infringing items (without in either case detracting from overall performance) the Company will accept the return of the Goods, the property in which shall thereupon re-vest in the Company, and will repay the Customer the price paid therefor less one-eighth of that price for each complete period of six months reckoned from the Installation Date(s) during which the Customer shall have been able to use the Goods.
14.2 Sub-clause 1 shall not apply and the Company shall be under no liability if a claim for infringement is based solely on the use of the Goods in combination with hardware or software not supplied by the Company.
14.3 Sub-clause 1 states the full extent of the Company's liability in respect of infringement of patent and other intellectual property rights.
15 Intellectual Property Rights
15.1 Copyright and all other intellectual property rights of whatever nature in the Goods, the Software, any hardware or software used by the Company to provide the Goods and/or Service are the property of the Company or its suppliers and are not transferred under this Contract.