Terms & Conditions of Sale
These Terms and Conditions are the only Terms and Conditions under which Increase Computers Limited or any of its divisions agrees to do business. These Terms and Conditions shall be regarded as governing any transaction entered into by or on behalf of the Company to the exclusion of all other Terms and Conditions not incorporated by these Terms and Conditions.
1. Interpretations In these Terms and Conditions:-
- "Business Day" A day on which banks in London are open for a full range of banking transactions
- "Company" Increase Computers Limited or any of its divisions
- "Consequential Loss" Without limitation pure economic loss, loss of profit, loss of business and any like loss
- "Contract" The contract for the sale and purchase of Data or Software or Third-Party Software or Maintenance or Services to which these Terms and Conditions apply
- "Customer" The person, company or other body purchasing the Data or Software or Third-Party Software or Maintenance or Services from the Company pursuant to the Contract
- "Data" The parameter data required by the Software to be supplied to the Customer by the Company pursuant to the Customer’s order and the Contract whether on diskette or embedded in computer software or in any other digital format
- "Intellectual Property Rights” Any patent, right in a design, copyright, trade mark and other intellectual property right whether or not registered or capable of registration
- "Maintenance" The maintenance service to be provided to the Customer by the Company pursuant to the Customer’s order and the Contract
- "Services" The services to be supplied by the Company to the Customer pursuant to the Customer’s order and the Contract
- “Software” The software to be supplied to the Customer by the Company pursuant to the Customer’s order and the Contract
- "Third Party" Any person, company or other body not being the Company or the Customer
- "Third Party Software" The third-party computer software to be supplied to the Customer by the Company pursuant to the Customer’s order and the Contract
- "Working Day" Any Business Day upon which the Company carries on business
- "Working Hours" The hours of 9 a.m. to 5.00 p.m. during a Working Day
- “Front Sheet” The document incorporating these Terms and Conditions of Sale, the Software License Agreement and the Software Escrow Agreement which states the details specific to the Contact between the Company and the Customer and which is duly signed by an authorised representative of each of them.
2.1 These Terms and Conditions shall apply to all tenders, offers, quotations, acceptances, agreements and deliveries relating to the supply of Data or Software or Third-Party Software or Maintenance or Services by the Company and the Customer shall be deemed to ascent thereto.
2.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.3 The Company reserves the right to make any changes in the specifications of Data or Software or Third Party Software which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality or performance.
3. Pricing and Payment
3.1 Unless otherwise agreed in writing by a director of the Company the price payable by the Customer for the supply of or Data or Software or Third Party Software or Maintenance or Services shall be that agreed between the Customer and the Company each time the Customer places an order. For the avoidance of doubt, these Terms and Conditions shall apply to any orders placed by the Customer and confirmed in writing which order shall become binding if accepted by the Company.
3.2 Unless an order has become binding on the Company all prices are subject to change without prior notice
3.3 The Customer shall pay any monies due to the Company within 30 (thirty) days of the date upon the occurrence of any circumstances whereunder payment becomes immediately due or within thirty (30) days of receipt of an invoice by the Customer whichever is the earlier. The time of payment shall be of essence of the Contract.
3.4 If the Customer fails to pay any monies on the date or dates agreed between the Company and the Customer or does not comply with an obligation imposed upon the Customer then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to withhold the supply of any Data or Software or Third Party Software or Maintenance or Services to be provided to the Customer by or on behalf of the Company until such payment is made.
3.5 The Company reserves the right to charge interest to the Customer on any sums, fees or other charges which are not paid on the due date or dates and such interest may be charged (as well after as before a judgement) at the rate of three per cent (3%) per annum above the base rate of Barclays Bank Plc from time to time subsisting such interest to accrue on a daily basis.
3.6 After an order has become binding on the Company, all prices will have Value Added Tax added at the appropriate rate.
3.7 Packaging, delivery and transport charges and insurance and expenses are included in the total cost of the Order detailed on the Front sheet. 3.8 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Company and shall pay all amounts due without making a deduction of any kind subject to the Company performing the total obligations under this Contract.
4. Customer's Obligations
4.1 The Customer shall: -
4.1.1 pay all sums, fees and other charges due under the Contract upon the due date or dates, time of payment being of the essence;
4.1.2 take all reasonable precautions to protect the health and safety of the Company’s personnel whilst at any location of the Customer;
4.1.3 permit the Company such access during normal working hours to the premises necessary for the purposes of performing the Company’s obligations under this Contract.
4.2 The Customer shall promptly provide the Company, on request, with all information and assistance that the Company may reasonably require.
4.3 The Customer acknowledges that he is relying solely upon his own skill and judgement and not that of the Company in determining the suitability of any Data or Software or Third Party Software or Maintenance or Services and the fitness for any general or specific purpose of any Data or Software or Third Party Software or Maintenance or Services subject to the Company providing accurate information on the Data or Software or Third Party Software or Maintenance or Services.
5.1 The Customer shall not copy or reproduce in any way the whole or a part of any user manual or any other documentation relating to any Data or Software or Third Party Software or Maintenance or Services which is supplied to the Customer under the Contract without the consent in writing of the Company.
6.1 All dates supplied by the Company for the delivery or installation or implementation or testing of an element of Data or Software or Third Party Software or the provision of any Maintenance or the provision of any Service shall be treated as being approximate only.
7. Acceptance and Warranty
7.1 The Customer shall inspect the Data or Software or Third Party Software within 14 (fourteen) Working Days of delivery. The Company shall remedy a substantial defect in the Data or Software or Third Party Software notified to the Company within 4 Working Days of such inspection provided always that if the Company is unable to do so, the Company may at its option replace the Data or Software or Third Party Software in question in which event the Customer shall forthwith return such Data or Software or Third Party Software to the Company. For the avoidance of doubt, Data or Software or Third Party Software will be deemed accepted by the Customer if the Customer has not notified the Company of a substantial defect in the Data or Software or Third Party Software within 14 (fourteen) Working Days of delivery and the Customer shall not be entitled to withhold acceptance for defects in the Data or Software or Third Party Software which are not substantial.
7.2 Without prejudice to Clause 7.1, the Company warrants that the Data and Software and Third Party Software, unless modified, shall for a period of sixty (60) days from the expiry of the Acceptance Period (as defined in Clause 7.1) be capable of performing the functions set out in respect of the user manual and other documentation.
7.3 If the Company receives written notice from the Customer of a breach in the warranty in Clause 7.2 then the Company shall, at its own expense and within a reasonable time after receiving such notice, use reasonable endeavours to remedy the defect or error in question. When notifying a defect or error the Customer shall (so far as it is able) provide the Company with a documented example of such a defect or error.
8. Provision of Maintenance
8.1 Where the Company agrees to provide Maintenance in respect of the Third Party Software or Data to be supplied to the Customer under the Contract, Maintenance will comprise:-
8.1.1 In respect of Software or Third Party Software, during Working Hours and for the agreed period
18.104.22.168 assistance in the resolution of queries via a telephone call originated by the Customer according to the Software License Agreement;
8 .1.1.2 the dispatch to the Customer to a jointly agreed schedule of updates of the Software or Third Party Software (as and when such are made available to the Company by the proprietor of the Third Party Software). The Customer shall be responsible for the installation of any such upgrades and the Company shall be responsible for Release Notes to support the installation of any such upgrades;
8.1.2 In respect of Data, Maintenance shall comprise the provision of updates of the Data to the Customer for the agreed period as and when such updates are available to the Company
8.1.3 Any additional maintenance which the Company agrees to supply to the Customer in relation to the Software or Third Party Software or Data shall be provided on a time and materials basis, to be confirmed in writing with the Customer prior to undertaking, at the Company’s then current rates for same.
9. Provision of Data, Software and Third Party Software
9.1.1 Where the price of any item does not include the cost of delivery to the Customer’s premises or installation (where applicable) and for which the Customer is liable in addition, this will be agreed in writing between the Customer and the Company.
9.1.2 The Customer is responsible for ensuring that its premises are ready to receive the items concerned.
9.2 The title to and the Intellectual Property Rights in the Data or Software or Third Party Software and in the media containing such Data or Software or Third Party Software does not pass to the Customer. The Customer is licensed to use such Data or Third Party Software in accordance with the applicable licence terms and by entering into the Contract the Customer agrees to comply with such terms by way of licence from the proprietor of such Data or Third Party Software whether stated in this Agreement in relation to Data originated or sublicensed by the Company or stated in documentation supplied by the proprietor of such Data or Third Party Software.
9.3 Except as stated elsewhere in these Terms and Conditions, the liability of the Company in respect of the Data or Third Party Software is limited to assigning to the Customer (in so far as the Company is legally permitted to do so) the benefit of any warranties with which such items have been supplied to the Company.
9.4.1 Subject to payment by the Customer to the Company of the monies due under the Contract and subject further to the provisions of any licence proffered by or on behalf of the owner of the Data or Third Party Software, the Company hereby grants to the Customer a nonexclusive non-transferable licence to use the Data or Software upon the Terms and Conditions.
9.4.2 This licence shall be deemed to incorporate and include all updates of Data and Software and Third Party Software which is supplied to the Customer by the Company, whether further or bespoke software is expressly referred to in the Customer’s order or not (including without limitation any further or bespoke software from time to time created by the Company for the Customer). This clause 9.4.2 is without prejudice to the Company's right to charge the Customer for the supply of such further or bespoke software.
9.4.3 The licence hereby granted and the Customer's rights to use the Data or Software are subject in any event to the following restrictions:-
22.214.171.124 Subject to clause 9.4.4, the Data or Software shall be used only by the Customer for the purposes of the Customer's own internal business;
126.96.36.199 the Data or Software may be used on a computer network provided the Customer has purchased such number of copies of the Data or Software equal to the maximum number of copies of the Data or Software in use on that network at any one time;
188.8.131.52 the Customer shall not load the Data or Software onto a network server for the purpose of distribution to one or more other computer(s) network or to affect such distribution;
184.108.40.206 the Customer shall not alter, modify, copy or adapt the Data or Software or any part thereof;
220.127.116.11 the Customer shall ensure that the number of users accessing the Data or Software do not exceed a number of copies of the Data or Software purchased by the Customer.
18.104.22.168 the Customer shall not assign, sub-licence, charge or otherwise dispose of or grant rights over or out of the licence hereby granted or the Data or Software, without the Company’s prior written consent (such consent not to be unreasonably withheld) and shall not attempt to do any such thing;
22.214.171.124 the Customer shall not copy or reproduce in any way the whole or a part of the Software or Data, (except that the Customer may maintain up to three (3) copies of such)
126.96.36.199 to the maximum extent permissible in law, the Customer agrees not to attempt to ascertain or list the source programs or source code relating to the Software; and 9.4.4 Notwithstanding clause 188.8.131.52 above, the Customer shall not without the prior written consent of the Company use the Software as part of a computer bureau business or for a business which the Customer does not at the date of the Contract carry on.
9.4.5 The Customer shall not interfere with or attempt to circumvent the operation of any dongle or other device whose function is to prevent the unlawful copying or use of the Data or Software.
9.4.6 The Customer acknowledges and agrees that none of the acts which are prohibited by the provisions of these Terms and Conditions (including, without limitation, the prohibitions on copying or adapting Data or Software for the purpose of correcting errors in the same) are necessary for the purposes of the use of that Data or Software by the Customer in accordance with its intended purpose or for the purposes of the use of that Data or Software in accordance with this licence.
9.4.7 The Customer shall not modify, alter or in any way interfere with the Data or the Software or merge the same with other data, programs or systems. Without prejudice to any other remedy of the Company if the Customer (in breach of this clause) does modify, alter, interfere with or merge the same no such modification, alteration, interference or merger however extensive shall derogate from the obligations of and restrictions on the Customer under there Terms and Conditions which shall henceforth apply to the Data or Software as so modified, amended, altered, interfered with or merged.
9.5 Notwithstanding a description of the Customer's rights as or by virtue of a sale (and whether made orally or in writing and whether made in their Terms and Conditions or in any other document) the Customer's only right to use the Data or Software is by way of a licence pursuant to these Terms and Conditions and the Contract (and any licence proffered by or on behalf of the owner of the Data or Third Party Software). The Customer acknowledges that all Intellectual Property Rights in or relating to that Software, Third Party Software or Data and all related documentation shall remain the exclusive property of the Company (or in the case of Data belonging to a Third Party or the Third Party Software , the exclusive property of the owner of that Data or Third Party Software).
10. Provision of Services
10.1 Where the Company agrees to provide Services, any estimate or indication by the Company as to the number of man days or man hours required by the Company to undertake a specific task shall be construed as being an estimate only. The Company shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Consequential Loss) suffered or incurred by the Customer where such estimate or indication is incorrect.
10.2 The charges agreed for the Services do not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which the Company shall charge its then current rates unless expressly implied subject to prior written agreement with the Customer.
10.3 The Company reserves the right to levy additional charges in respect of any expenses incurred by the Company in the provision of the Services subject to prior written agreement with the Customer.
11. General Exclusions and Limitations of Liability
11.1 To the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise by general law into these Terms and Conditions or relating to the Data or Software or Third Party Software or Maintenance or the Services are hereby excluded. Notwithstanding, any Software or Data supplied under these Terms and Conditions will conform to any specifications given in relation thereto and any Services or Maintenance provided under these will be provided with reasonable skill and care.
11.2 The Company shall in no circumstances be liable to the Customer for any Consequential Loss.
11.3 The total liability which the each party shall owe to the other party and in respect of all claims under these Terms and Conditions shall not exceed the price paid by the Customer in respect of the Data or Software or Third Party Software or Maintenance or Services.
11.4 Notwithstanding anything to the contrary contained in these Terms and Conditions the Company's liability to the Customer for:-
11.4.1 death or personal injury resulting from the negligence of the Company, its employees, agents or sub-contractors;
11.4.2 damage suffered by the Customer as a result of a breach by the Company of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982;
11.4.3 damage for which the Company is liable to the Customer under Part I of the Consumer Protection Act 1987; shall not be limited save that nothing in this Clause 11 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled; and
11.4.4 no actions regardless of form arising out of the Contract may be brought by the Customer more than four years after the Customer becomes aware or should reasonably have become aware of the facts constituting the cause of action.
11.5 The Company shall at its own expense indemnify the Customer against any liability under any final judgement or settlement made in relation to any proceedings brought against the Customer in the event that such proceedings are based on a claim that the Data or Software infringes copyright subsisting in the United Kingdom provided that the Customer notifies the Company forthwith of any claims, demands or actions which may develop into such a claim, makes no admission or settlement of any such claim actual or threatened, allows the Company to have the sole control of the defence of any such claim or action and all negotiations for its settlement or compromise, and gives the Company all reasonable assistance and information in connection therewith.
12. Force Majeure
Neither party shall be liable to the other party in any manner whatsoever for any failure or any delay or for the consequences of any delay in performing its obligations under these Terms and Conditions (save in respect of any obligation to pay monies) due to any cause beyond the reasonable control of the party in question which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God.
13.1 In the event of:-
13.1.1 any distress, execution or other legal process being levied upon either of the parties assets;
13.1.2 either party entering into any arrangement or composition with its creditors, committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up, except for the purposes of amalgamation or reconstruction as a solvent company, or a receiver, manager receiver, administrative receiver or administrator being appointed in respect of the whole or any part of its undertaking or assets
13.1.3 either party ceasing or threatening to cease to carry on business;
13.1.4 any breach of these Terms and Conditions by either party;
13.1.5 non payment by either party of any monies due from it to the other party;
13.1.6 either party reasonably apprehending that any of the events mentioned above is about to occur; either party shall be entitled to terminate the Contract and suspend all or any work on current or future deliveries and instalments of the Data or Software or Third Party Software or the provision of Maintenance or the provision of any Services and on written notice to cancel the undelivered or unperformed portion of the Contract between the Company and the Customer.
13.2 The Customer may terminate this Contract by 90 days prior written notice provided that such notice shall not expire earlier than the end of the License Term specified on the Front Sheet.
13.3 If the Contract is terminated before the License Term specified on the Front Sheet then the Customer will pay to the Company a cancellation charge on a pro-rata by time basis.
If a provision in the Contract is held by any competent authority to be invalid or wholly or partly unenforceable such invalidity or unenforceability shall not in any way affect the remainder of the Contract.
15.1 The Customer will not be entitled to assign the benefit or delegate the burden of the Contract without the prior written consent of the Company which it may in its absolute discretion refuse.
16.1 Each party agrees with the other in respect of all information of a confidential nature disclosed in the Contract or discovered further to the operation of the Contract (which includes without limitation, information as to the operation of the business of the Company and information relating to the Data or Software or the Third Party Software) ("Confidential Information"):-
16.1.1 to keep the Confidential Information in strict confidence and secrecy;
16.1.2 not to use the Confidential Information save for complying with its obligations under the Contract;
16.1.3 not to disclose the same to a Third Party unless required to do so by law; and
16.1.4 to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who of necessity need the same in the performance of their duties as envisaged by the Contract and in such circumstances to ensure that such employees and others are aware of the confidential nature of the Confidential Information; provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under the Contract) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
16.2 This obligation of confidentiality shall survive the termination of the Contract.
17. Amendment and Waiver
17.1 No amendment of the Contract shall be binding unless executed in writing and signed by an authorised representative of the Company and by an authorised representative of the Customer.
17.2 The failure of the Company at any time to enforce a provision of the Contract shall not be deemed a waiver of such provision or of any other provision of the Contract or of the Company's right thereafter to enforce any provision of the Contract.
18.1 Any demand, notice or other communication shall be in writing and may be served by hand, prepaid first class post or facsimile.
19. Entire Agreement and Representations
19.1 These Terms and Conditions (including the Front Sheet and Software License Agreement and any licence proffered by or on behalf of the owner of the Data or Third Party Software) supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of the Contract including without limitation all documents proffered by the Customer and relating to the subject matter of the Contract.
19.2 The parties acknowledge that in entering into a Contract they have not relied upon any representations other than those reduced to writing in the Contract. The provisions of this clause 19.2 shall not apply to any fraudulent misrepresentation.
20 Law and Jurisdiction
The formation, construction, performance, validity and all aspects whatsoever of the Contract shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the English courts.