STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES OF ROFFESOFT
In this document the following words shall have the following meanings:
“Agreement” means these Terms and Conditions together with the terms of any applicable Specification Document;
“Customer” means the organisation or person who purchases goods and servicesfrom the Supplier;
“Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
“Specification Document” means a statement of work, quotation or other similar document describing the goods and services to be provided by the Supplier;
“Supplier” means Roffesoft, Unit 18 Lower orchard St Stapleford NG9 8DH and with VAT Registration number: GB 746 1406 41.
These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Customer.
Before the commencement of the services the Supplier shall submit to the Customer a Specification Document which shall specify the goods and services to be supplied and the price payable. The Customer shall notify the Supplier immediately if the
Customer does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
The Supplier shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
3 PRICE AND PAYMENT
The price for the supply of goods and services are as set out in the Specification
Document. The Supplier shall invoice the Customer 30 days and for reasonable out-of-pocket expenses incurred in providing those services.
Invoiced amounts shall be due and payable within 30 days of receipt of invoice. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 7.50%
per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
4 SPECIFICATION OF THE GOODS
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.
The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay
in the delivery of the goods.
All risk in the goods shall pass to the Customer upon delivery.
Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods.
7 OBLIGATIONS OF THE CUSTOMER
To enable the Supplier to perform its obligations under this Agreement the Customer
7.1.1 co-operate with the Supplier;
7.1.2 provide the Supplier with any information reasonably required by the Supplier;
7.1.3 obtain all necessary permissions and consents which may be required before
the commencement of the services; and
7.1.4 comply with such other requirements as may be set out in the Specification
Document or otherwise agreed between the parties.
The Customer shall be liable to compensate the Supplier for any expenses incurred
by the Supplier as a result of the Customer’s failure to comply with Clause 7.1.
Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Customer shall be required to pay to the
Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five working days’ written notice the full amount of the goods and services
contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and services and subject to the payment of the damages set out in this Clause.
In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
7.4.1 the Supplier shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the project will be modified accordingly;
7.4.3 the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
8 ALTERATIONS TO THE SPECIFICATION DOCUMENT
The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the sco
pe of goods and/or services to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed goods and/or services and price and any other terms agreed between the parties.
The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if
any, on the price and any other terms already agreed between the parties.
Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms,
the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
9.1 The Supplier warrants that as from the date of delivery for a period of 12 months the goods and all their component parts, where
applicable, are free from any defects in design, workmanship, construction or materials.
9.2 The Supplier warrants that the service performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Supplier.
The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any goods and/or services provided by the Supplier in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
11 LIMITATION OF LIABILITY
Except in respect of death or personal in jury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement,whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been ade aware of the possibility of the Customer incurring such a loss.
Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
12.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
12.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition withits creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of itsassets.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
14 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events
or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs,accidents, war, fire,the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
15 INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a
waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter as delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
20 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements,undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
21 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor
shall it confer any rights on a third party.
22 SPECIFIC TECHNICAL LIABILITIES:WEBSITE AND E-MAIL HOSTING
22.1 Unless expressly detailed in the Specification Document, the choice of Internet
Service Provider (ISP) for hosting any page(s) shall be at the sole discretion of the Supplier. The Supplier reserves the right to change ISP should business conditions or technical considerations require it.
22.3 Whilst reasonable effort will be made to ensure that the material remains visible on the Internet, continuous service cannot be guaranteed. The Supplier is not liable for any loss of business or other consequential loss resulting from web server down time or other situation preventing a web site from being available on the Internet. The Supplier does not accept any responsibility for loss of any kind resulting from any failure of the email services provided.
22.4 Whilst the Supplier will apply best efforts to ensure the integrity and security of a hosting server, the Supplier does not guarantee that the server will be free from un-authorised users or hackers.
22.5 The e-mail storage facility is not intended as long-term storage space and the Supplier recommends that e-mail is deleted from the server after collection. Maintenance, administration or support which results from exceeding the standard mailbox storage limit of 20MB may incur an administration charge at the discretion of the Supplier unless a prior agreement is made with the Customer.
22.6 The Customer is responsible for sending e-mail in accordance with any relevant legislation (including Data Protection legi
slation) and for sending the same in a secure manner. The Supplier will take all reasonable steps to ensure accurate and prompt routing of messages but will not accept any liability for non-receipt, mis-quoting or any other failure of e-mail.
22.7 The Customer agrees to use all reasonable endeavours to keep secure any identification, password and other confidential information relating to an account and will notify the Supplier immediately of any known or suspected unauthorized disclosure.
22.8 Transmission of viruses. Whilst the Supplier will employ best efforts to prevent the transmission of software viruses or worms transmitted via the e-mail services provided, the Supplier does not accept any responsibility for loss of any kind caused by such a transmission.
22.9 The Supplier does not accept any responsibility for the nature of any incoming or outgoing e-mail transmitted by the e-mail facilities supplied to the Customer.
22.10 The Supplier does not accept any responsibility over the accuracy or quality of information transmitted by the e-mail services supplied to the Customer, and in no event will the Supplier be liable for any loss or damage to any data stored on any server used to provide any services.
22.11 The Customer will not knowingly post, link to or transmit any material that is unlawful, threatening, harmful, malicious, libellous
, defamatory, obscene, pornographic, profane or otherwise objectionable in any way, any material which will constitute or encourage criminal offence, give rise to civil liberty or that violates or infringes any trademark, copyright, other intellectual property or similar rights of any person, firm or company under the laws of any jurisdiction.
23 SPECIFIC TECHNICAL LIABILITIES: DOMAIN NAME REGISTRATION
The title to any domain name registered on the Customer’s behalf shall remain with the Customer.
The registration and use of any domain name is subject to the terms and conditions of use applied by the relevant naming authority; the Customer will ensure awareness with those terms and conditions and will comply with them. The Customer shall have
no right to bring any claim against the Supplier in respect of refusal to register a domain name or cancellation of the domain name by the relevant naming authority. Any administration charge paid by the Customer to the Supplier shall be non-refundable notwithstanding refusal by the naming authority to register the Customer’s desired name.
The Supplier shall have no liability in respect of the use by the Customer of any domain name; any dispute between the Customer and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, the Supplier shall be entitled, without giving any reason, to withhold, suspend or cancel the domain name. The Supplier shall also be entitled to make representations
to the relevant naming authority but will not be obliged to take part in any such dispute.
The Supplier gives no warranty or representation that a domain name is or will continue to be available for the Customer’s use or that no domain name is or will be registered which conflicts with this domain name or which otherwise affects your use of this domain name.
24 SPECIFIC TECHNICAL LIABILITIES: TECHNICAL SUPPORT / CONSULTANCY
The Supplier makes every effort to ensure that support and advice given to the Customer is accurate and appropriate. However, any advice, suggestion or recommendation offered by the Supplier,whether as part of the Specification Document, other written document or given verbally, cannot be guaranteed as accurate or appropriate.
The Supplier does notguarantee any level of support, response time or availability,unless detailed within the Specification Document, a separate support contract or service level agreement which has been agreed by both the Customer and the Supplier.
25 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.