(a) This Agreement is made between HHT Solutions Limited, registered in England as no. 04178883 (the "Supplier" which expression shall include its subsidiaries, agents and assigns)
AND
the "Customer" being the company, firm or individual particulars of which appear on page one and by and/or on behalf of whom this Agreement is accepted.
(b) The Supplier, by issue of its Letter of Acceptance or by delivery of the equipment specified herein to the Customer, agrees:
(i) to sell to the Customer the hardware equipment described on page one (excluding, the software); and
(ii) to furnish, in relation to Software, the Customer with either
1. the developer's software licence where the same accompanies the software upon the terms, including payment of any licence fee, therein contained, or, in the absence of the same,
2. a non-exclusive, non-transferable licence to use the software upon the terms herein contained.
(the hardware equipment and/or software specified in the Equipment Schedule is hereinafter referred to as the "Equipment" unless
otherwise or separately stipulated).
(c) The Customer, upon signing the Acceptance provision on page one, agrees:
(i) to accept delivery of the Equipment; and
(ii) to be bound by the Terms and Conditions specified herein.
(a) These Terms and Conditions shall apply to all orders (including telephone orders) placed with the Supplier by the Customer. Acceptance by the Supplier of any order is conditional upon acceptance by the Customer of these Terms and Conditions which shall override all other terms and conditions inconsistent herewith, whether express, implied or otherwise including but not limited to terms, conditions or stipulations contained in the Customer's purchase order or other form of writing or otherwise stipulated by the Customer and which are at variance with or additional to these Terms and Conditions. The same shall not be binding upon the Supplier unless specifically accepted in writing and signed by the Supplier.
(b) The Supplier shall not be bound by this Agreement by the Customer's signing of the Acceptance provision specified nor by the placing of an order unless and until the Supplier has issued its Letter of Acceptance, or delivery of Equipment has been effected.
(c) These Terms and Conditions shall supersede any arrangements made or existing between the parties prior to conclusion of this Agreement as specified in (b) and shall constitute the entire understanding between the parties hereto. Except as otherwise provided herein, no addition, amendment or modification of these Terms and Conditions shall be effective, unless in writing and signed or accepted by the Supplier.
(a) The price of the Equipment is based on the cost prevailing at the date hereof and the Supplier reserves the right to adjust the price by such an amount as may be necessary to cover any increase affecting the Supplier after the date hereof attributable to market conditions prevailing at the date of delivery to the Customer. The Supplier shall give to the Customer seven (7) days prior written notice of any such increase which increased price shall apply in addition to or in lieu of (as the case may be) the Agreement price and shall be deemed to have been accepted unless the Customer notifies the Supplier to the contrary during the period of notice. Without prejudice to the foregoing generality, market conditions shall include but shall not be limited to any direct or indirect increase in any foreign exchange rates relating to the Equipment or in the cost of labour, materials, handling, manufacture, supply or transport or such costs as may be incurred by the Supplier in complying with obligations imposed by law.
(b) The price of the Equipment includes (where applicable and unless otherwise stipulated by the Supplier or appearing as a separate item,) the licence fee for the Customer's right to use the operating system software.
(c) Where more than one item of Equipment is listed, the price may be based on the quantity specified and accordingly the Supplier reserves the right to adjust the price in the event of orders being placed by the Customer for a different quantity or in the event that the quantity actually delivered to the customer differs (for any reason) from that specified in the Schedule.
(d) The price of the Equipment is based on the supply of the Equipment to the address specified and to the relevant specifications and drawings at the date hereof and is subject to adjustment in the event of delivery to a different address or in the event of any modification being incorporated therein before or after delivery either at the request or with the consent or knowledge of the Customer.
(e) All prices are exclusive of any applicable purchase tax, value added tax and if applicable, packing, delivery and installation.
(a) All accounts are payable in accordance with the terms contained in the Supplier's invoice for the Equipment. Where credit terms are agreed with the Customer, the Supplier reserves the right to withdraw the same and substitute cash with order. Any discounts must be agreed in writing by the Supplier.
(b) Where payment of the price or any part thereof is not made, the Supplier, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest on the outstanding amount at the rate of four per cent per month from the due date until the outstanding invoiced price or outstanding part thereof is paid.
(c) If the Customer shall fail to take delivery of any Equipment under any contract within twenty one (21) days of notification that it is ready for delivery, the Supplier shall have the right to present its invoice for payment at any time after the expiry of the said period and payment shall be due thereon as if delivery had been made notwithstanding the Customer's liability for storage charges and the Supplier's lien there for in accordance with the provisions of Clause 8 hereof.
(d) Should the Customer fail to make any payment when due under any contract the Supplier shall have the right by notice in writing forthwith to suspend all further manufacture, deliveries, installation or warranty service until the default be made good or at the Supplier's absolute discretion, to determine any contract or agreement where goods remain to be delivered, without prejudice to any other rights or remedies (including, without prejudice to the foregoing generality, re-possession of the Equipment in accordance with the provisions of Clause 10 below), which may be available to the Supplier in accordance with these terms and conditions, this Agreement, at law or otherwise.
With respect to all operating system software and applications to be supplied hereunder, the following provisions shall apply.
(a) Where the Customer has been furnished with a developer's software licence, the same must be signed and returned to the Supplier within seven (7) days or as otherwise specified in the said licence unless the said licence is a "shrink wrap" licence.
In the event that the Customer fails to sign and return the said licence in accordance with this sub-clause:
(i) the Supplier reserves the right to withhold release of the Software; or
(ii) if the same has been delivered, to collect the Software from the Customer.
(b) In absence of the developer's software licence being furnished, the Customer, on issue of the Supplier's Letter of Acceptance or upon delivery of the Software, hereby accepts a non-exclusive, non-transferable licence to use the Software upon the terms of this Agreement where the same shall apply including the following:
(i) the Customer undertakes not to copy (other than for normal Equipment operation and except to the extent permitted by the applicable law), reproduce, translate, adapt, vary or modify the Software nor to communicate the same to any third party without the Supplier's prior written consent;
(ii) The Customer undertakes to use the Software only on the Equipment specified in the Schedule and undertakes not to remove, add to, change or otherwise tamper with any copyright notice, legend or logo appearing in or on the Software or the medium upon which it resides;
(iii) The licence hereby granted shall continue until or unless
1. either party gives to the other party one (1) month prior written notice of termination whereupon and before the expiry of which the Customer undertakes to return or destroy the Software as the Supplier shall direct PROVIDED that the Supplier shall only exercise its right to terminate in the event that the continued use or possession of the Software by the Customer infringes the developer's or third party rights or where the Supplier is enforced so to do by law.
2. the Supplier terminates the Licence forthwith if the Customer fails or has failed to comply with any of the Terms and Conditions herein contained including but not limited to breach of copyright or confidentiality.
All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature and price list are approximate only and shall not form part of this Agreement. In addition, drawings or technical documents issued either before or after the conclusion of this Agreement for the use or information of the Customer and such other information as may be supplied to the Customer including specifications shall not be copied, reproduced or communicated to any third party without the Supplier's prior written consent.
The Equipment undergoes a system of testing before delivery. If any additional testing is required by the Customer the additional expense which is incurred thereby shall be borne by the Customer.
(a) Delivery dates are estimates only and unless the Supplier expressly agrees in writing to be bound by a delivery date as being of the essence of this Agreement, the Supplier shall not be liable for direct, indirect or consequential loss arising from part, late or non-delivery.
(b) Where the Supplier expressly agrees in writing to be bound by a delivery date, the Supplier's liability, subject to Clause 9 and subject always to Clause 13 hereof, in respect of any loss or damage suffered by the Customer which is directly attributable to such part or late or non-delivery shall be limited to the value of the Equipment not delivered.
(c) The Supplier shall inform the Customer when any part or all of the Equipment is ready for delivery, and the Customer shall inform the Supplier of the location for delivery if the same does not appear or is different from the address stated on page one. If the Customer shall fail to give to the Supplier instructions for delivery within twenty-one (21) days of such notification by the Supplier that the Equipment is ready for delivery, the Supplier may without further reference to the Customer arrange for storage of the Equipment. Charges for storage shall be paid by the Customer and the Equipment shall be subject to a lien of the Supplier there for.
(d) Delivery shall be made during normal working hours (excluding local and national holidays). If the Customer requires delivery to be made outside such times, an additional charge shall be payable. The Supplier reserves the right to deliver in more than one delivery.
(e) The Customer shall prepare the area of delivery and installation for the Equipment and provide free access to the location and to any services or facilities that may be required to deliver and install the Equipment. Where the same has not been prepared or provided or the Supplier is prevented from carrying out delivery or installation at the pre-arranged day and time through no fault of the Supplier, the Supplier shall be entitled to charge for same.
The Supplier accepts responsibility for damage, shortage or loss in transit if:
(a) the same is notified to the Supplier and the carrier (if not delivered by the Supplier) within 24 hours of receipt or proposed date of receipt of the Equipment by the Customer; and (where applicable)
(b) the Equipment has been handled by the Customer in accordance with the Supplier's or the carrier's conditions of carriage or handling stipulations.
Where the Supplier accepts responsibility under this Clause, it shall, at its sole option, replace or repair (as the case may be) any such Equipment or part thereof, proved to the Supplier's satisfaction to have been lost or damaged in transit.
(a) Notwithstanding delivery, installation, acceptance and passing of risk, title to the Equipment shall not pass to the Customer but shall be retained by the Supplier until full payment for the Equipment has been received by the Supplier from the Customer.
(b) Until such time as title in the Equipment has passed to the Customer, the Supplier:
(i) shall be entitled to repossess at any time any of the Equipment in which title remains vested in the Supplier;
(ii) for the purpose specified in (b)(i) above, the Supplier or any of his agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the Equipment or any part thereof is installed, stored or kept, or is reasonably believed so to be;
(iii) shall be entitled to seek a court injunction or equivalent judicial order under the applicable law of this Agreement to prevent the Customer from selling, transferring or otherwise disposing of the Equipment.
(c) Until such time as title in the Equipment has passed to the Customer, the Customer shall, subject to the Supplier's rights hereunder:
(i) hold the Equipment as the Supplier's fiduciary agent and be entitled to use the same in the ordinary course of the Customer's business; but shall not be entitled to sell or otherwise dispose of the same or part with possession thereof;
(ii) cause to be added to its audited accounts for each year a note that Equipment supplied by the Supplier is subject to retention of title and shall be the property of the Supplier until full payment of all sums in respect thereof has been made to the Supplier; and
(iii) insure such Equipment to its replacement value naming the Supplier as the loss payee until all payments to the Supplier have been made as specified in this Clause and the Customer shall forthwith, upon request, provide the Supplier with a Certificate of such Insurance.
The aforementioned provisions relate to the Equipment and not to the Software which is subject to licence as specified in Clause 1 and 5 hereof and the terms of which are (where applicable) contained in the developer's software licence or failing which, the licence contained in Clause 5 above.
Notwithstanding Clause 10 hereof, risk in the Equipment shall pass to the Customer upon delivery by the Supplier or its carriers to the Customer or his agent and the Supplier shall not be liable for any loss or damage to the Equipment from the time that the Equipment is so delivered.
(a) The Supplier warrants to the Customer that the Equipment marketed by the Supplier is believed to be free from defects of workmanship and materials and the Supplier undertakes, subject to paragraph (c) and (d) below, to replace or, at its option, to repair the Equipment purchased hereunder and detailed in the foregoing Schedule (other than rubber parts and/or printing heads and/or consumable items) found to be defective within 90 days (or such other period as may be specified) of the date of original delivery and installation in accordance with Clause 8 above, where such defects are a result of faulty materials or workmanship.
(b) Each claim of the Customer under this warranty shall be sent in writing to the Supplier specifying the type of Equipment and nature of the defect. Upon receipt of such written notice, the Supplier or its agent or representative shall have the option of testing or inspecting the Equipment at its location or of having the Equipment returned to the Supplier or such other address as may be notified to the Customer, freight pre-paid. Replacement parts, items or Equipment shall be sent by the Supplier to the Customer ordinary freight pre-paid, subject always to (c) and (d) below.
(c) In the event of any claim presented under warranty being found on investigation by the Supplier either to be outside the scope or duration of this warranty or the fault being unconfirmed, then the costs of such investigation and repair shall be borne by the Customer.
(d) The Supplier shall not be liable at any time for damage or defects in the Equipment or parts caused by improper use, abuse, mismanagement or by using the Equipment outside the specifications detailed in the manuals and documentation relating to the Equipment or outside the specific application of the Equipment.
(e) This warranty shall not be assigned without the prior written consent of the Supplier.
(f) Except as otherwise provided in this Clause, the Supplier makes no other representations or warranties and expressly excludes the same whether implied, statutory or otherwise especially as to quality or fitness of the Equipment for any particular purpose.
(a) Except to the extent that by the law relating to this Agreement it is not lawful to exclude such liability, the Supplier shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Equipment, its use or otherwise.
(b) Notwithstanding the generality of (a) above, the Supplier expressly excludes liability for consequential loss or damage, including but not limited to loss or damage to data or to other equipment or property, (whether or not the same may be in the Supplier's care, custody or control) or for loss of profit, business, revenue, goodwill or anticipated savings.
(c) In the event that any exclusion of liability contained in these Terms and Conditions shall be held to be invalid for any reason and the Supplier becomes liable for loss or damage that may be limited or capable of being limited in law, such liability shall be limited to the price of the Equipment specified on page one of this Agreement.
(d) The Supplier does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of the Supplier or its employees.
(a) The Customer acknowledges that any and all of the trade marks, copyright, patents and other intellectual property rights used or subsisting in or in connection with the Equipment including software, hardware and other parts thereof in which the Supplier or the respective manufacturer, developer or third party has an interest are and shall remain the sole property of the Supplier or such manufacturer, developer or third party. The Customer shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership thereof.
(b) In the event that new inventions, designs or processes evolve in performance or as a result of this Agreement, the Customer acknowledges that the same shall belong to the Supplier unless otherwise agreed in writing by the Supplier.
(c) The Customer shall indemnify the Supplier fully against all liabilities, costs and expenses which the Supplier may incur as a result of work done in accordance with the Customer's specifications involving infringement of any copyright, patent or other proprietary right.
All notices to or by the respective parties hereto shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery post, sent by facsimile or delivered as digitally signed email to the party to which such notice is required to be given under this agreement at the address and/or facsimile number stated at the commencement of this agreement or to such other address or facsimile number as the respective parties hereto may hereafter specify to the others in writing.
Notices delivered by hand, sent by facsimile or via email shall be deemed received the first working day following such delivery or sending. Notices which have been posted as above shall be deemed received on the Second working day following posting.
The Supplier shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of the Supplier 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, equipment, materials, breakdown or shortage of equipment and labour disputes of whatever nature and for whatever cause arising, including but without prejudice to the generality of the foregoing, work to rule, overtime bans, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
Failure or neglect by the Supplier to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Supplier's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Supplier's rights to take subsequent action.
The headings of the Terms and Conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the Terms and Conditions.
In the event that any or any part of these Terms or Conditions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement shall not be assigned by the Customer without the prior written consent of the Supplier.
The parties hereby agree that the Agreement concluded between them and constituted on these Terms and Conditions shall be construed in accordance with English Law.
