The following are the general terms and conditions under which Taupo Consulting Limited, sells computer software and supplies consultancy, training and related services and the same shall, unless otherwise expressly stated in writing, apply to the subject matter of any agreement in respect thereof.
GENERAL
1. In these conditions:-
(i)‘The Company’ means Taupo Consulting Linited , Company Np 238096
(ii) ‘Customer’ means the individual firm, company or other party with whom the Company contracts.
(iii) ‘Agreement’ means any Agreement(s) entered into between the Company and a Customer to which these Terms and Conditions are stated to apply.
(iv) ‘Product(s)’ means computer Software and associated equipment provided pursuant to the Company’s Products Supply Agreement.
(v) ‘Services’ means Software Services and/or Consulting Services and/or Training Services and/or Project Services.
2. DELIVERY AND ACCEPTANCE
2.1. Delivery shall be to the address designated by the Customer. The Company shall not be liable for any delay in delivery due to causes beyond its control.
2.2 Acceptance of all Product(s) and Service(s) shall be by the Customer and not by the parent company of the Customer nor by any subsidiary company of the parent company of the Customer nor by a representative of the Customer.
3. CHARGES
3.1 The Company shall render to the Customer an invoice or series of invoices pursuant to the supply of Products and Services.
3.2 Charges specified in the Agreement do not include Value Added Tax which, if applicable, will be added at the rate in force at the time of supply.
3.3 Without prejudice to any other rights the Company may have in respect of any failure by the Customer to pay the charges or other monies payable pursuant to this Agreement, the Company may charge interest at the rate of 3% above the base rate of the Bank of Scotland plc from time to time in force, after as well as before judgement on any amount due from the Customer to the Company from the date due for payment until payment is received.
3.4 In the case of supply to a Customer outside the UK the Customer will be responsible for all import levies, customs duties or other similar taxes of whatever nature.
3.5 Where travel and subsistence expenses are incurred by the Company these will be added to the Customer invoice.
3.6 All invoices shall be submitted and payable in Pounds Sterling unless by specific agreement in writing with the Company.
4. PAYMENT
4.1 An initial payment to the value of 40% of the total order value will be payable on placement of purchase order.
4.2 Further payments will be called down monthly based upon the appropriate work schedule and as agreed with the customer, with payment for the software and support, where applicable, being due when ordered by Taupo.
4.3 Invoices shall be payable on terms of 14 days of the Invoice date.
4.4 The time stipulated for payment shall be of the essence of the Agreement and failure to pay within the period specified shall entitle the Company upon the expiry of 14 days notice in writing to the Customer to suspend further performance of the Agreement pending payment and in addition the Company shall be entitled without liability wholly or partially to cancel the Agreement without prejudice to any other remedy available to the Company.
4.5 If payment is not due it shall become automatically due immediately on the commencement of any act or proceeding in which the Customer’s solvency is involved.
4.6 The Customer may assign to a bank, leasing or finance company its obligations to make payments to the Company in respect of the Products but such assignment shall not prejudice any of the other rights and obligations of either the Customer and Company provided by the Agreement. At the request of the Customer the Company will be prepared to negotiate a suitable novation agreement if the bank, leasing or finance company requires further clarification of this clause.
5. PERFORMANCE
5.1 The Company will use its best endeavours to comply with any day or dates for despatch or delivery of the Product(s) and for the supply of Service(s) as stated in the Agreement, but unless the Agreement otherwise expressly provides, such dates shall constitute only statements or expectation and shall not be binding. If the Company, having used its best endeavours fails to despatch or deliver the Product(s) or to supply or complete the Service(s) by such date or dates, such failure shall not constitute a breach of the Agreement nor shall the customer be entitled to treat the Agreement as thereby repudiated or to rescind it or any ancillary Agreement in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom.
5.2 When expedited delivery is agreed to by the Company and necessitates overtime or other additional costs, the Customer shall reimburse the Company for the amount of such overtime payment or other costs. Where postponement of delivery is agreed by the Company, the Customer shall, if required by the Company pay all costs and expenses occasioned thereby.
5.3 If performance of the Agreement is suspended at the request of or delayed through default of the Customer (including but without prejudice to the generality of the foregoing) lack of, incomplete or incorrect instructions, or refusal to accept delivery of the Product(s) or Service(s) for a period of 30 days, the Company shall be entitled to payment at the then prevailing rates for the Service(s) already performed, Product(s) supplied or ordered and any other additional costs thereby incurred.
6. CANCELLATION
The Customer shall not be entitled to cancel any order for the Product(s) and/or the Service(s) or any part thereof except upon terms which reimburse the Company for loss of Profit and all costs, charges and expenses incurred by the Company in respect of the Product(s) and/or the Service(s) or any part thereof up to the date of receipt by the Company of written notification of cancellation from the Customer.
7. PROPRIETARY RIGHTS
7.1 Title, copyright and all other proprietary rights in the Product(s) and associated documentation and any documentation supplied in respect of the Service(s) and all parts and copies thereof shall remain vested in the Company. The customer shall have unrestricted licence to use and modify any code for amendments made to base code by the Company.
7.2 Hardware and Software Products(s) not manufactured by the Company are supplied on the terms and conditions to use such Product(s) as defined by the original manufacturer.
7.3 The Customer shall follow all reasonable instructions given by the Company from time to time with regard to the use of trade marks.
8. SOFTWARE PRODUCTS
8.1 The Company shall deliver executable run-time versions of the Software in conjunction with the appropriate code where developed by the company. (This will include documentation and code for amendments and enhancements).
8.2 The Customer may make such copies of Software Product(s) as are necessary for the operational use and security thereof only if permitted under the terms of the Third Party’s Software Licence.
8.3 Every such copy or reproduction of Software Product(s) made by the Customer shall contain or have annexed to it in a prominent position an express notice stating that the Software Product(s) are confidential and subject to copyright and/or other intellectual property rights and may not be communicated wholly or in part by any means whatsoever to any other person.
9. INTELLECTUAL PROPERTY INDEMNITY
9.1 The Company shall indemnify and hold the Customer and its employees, hereunder from and against all loss and damage and cost and expense resulting from or arising out of any threatened or actual infringement of patent, copyright, registered design or other intellectual property rights of any person provided that the Customer shall:
9.1.1 Notify the Company in writing of any allegation or infringement.
9.1.2 Make no admission without the Company’s consent
9.1.3 At the Company’s request allow the Company to conduct and/or settle all negotiations in litigation and give the Company all reasonable assistance in respect thereof.
10. GENERAL INDEMNITY LIMITATION OF LIABILITY
10.1 The Company and the Customer shall indemnify each other and keep each other fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by negligent act or omission, wilful misconduct or breach of contract by the other, its employees or agents.
10.2 Except in respect of injury or death of any person caused by negligence the liability of the Company under condition 10.1 in respect of the any one event or series of connected events shall not exceed the maximum value of the respective individual Agreement.
10.3 The Company shall under no circumstances (whether for negligence, breach of contract or otherwise) be liable for any indirect or consequential loss or damage including but not limited to the loss of use or of profit or of contracts or loss of data.
11. TERMINATION
11.1 Either the Company or the Customer may terminate the Agreement by notice in writing forthwith in any of the following events:-
11.1.1 The other party commits a material breach of the Agreement which is incapable of remedy, or
11.1.2 The other party fails to perform its obligations under the Agreement or commits a material breach which is capable of remedy but which the other party fails to remedy within 28 days of written notice by either party specifying the event of default and requiring its remedy.
11.1.3 The other party is taken over by a company which markets products which in any way competes with the Product(s).
11.2 Each of the Company and the Customer may by notice in writing to the other terminate the Agreement if the other shall have a receiver or liquidator appointed or shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction) or a Court shall make an order to that effect or if the other party shall enter into composition or arrangement with its creditor(s) or shall become insolvent.
12. CONSEQUENCES OF TERMINATION
12.1 Any termination of the Agreement howsoever caused shall not affect any accrued rights or liabilities of either the Company or the Customer arising from the Agreement.
12.2 On termination of the Agreement for whatsoever reason, the Customer shall return forthwith to the Company the Product(s) and all copies thereof, the documentation and the media supplied therewith and other items in the possession of the Customer which are the property of the Company.
13. TITLE AND RISK
13.1 Risk of loss or damage shall pass to the Customer on Delivery of Products.
13.2 The legal and beneficial ownership of the Products and/or associated material supplied as part of Products and/or Services shall remain with the Company which reserves the right to dispose of the Products until payment in full of all such Products and associated material supplied as part of Products and/or Services has been received by the Company in accordance with the terms of this Agreement.
13.3 Until such payment is paid in full the Company may (without prejudice to any of its rights) recover or resell any of the Products and/or associated material and may enter upon the Customer’s premises by its servants or agents for that purpose.
13.4 If any Products before payment are, in whole or in part, incorporated in or used as components or material for other goods, systems or documentation the whole of the goods, systems or documentation shall remain with and vest automatically in the Company and the Customer or, where appropriate the owner or owners of the other goods systems or documentation as tenants in common, until payment is made.
14. CONFIDENTIALITY
14.1 The Customer shall keep confidential the Product(s) and documentation in respect thereof and any documentation supplied in respect of the Service(s) or any part thereof and shall not disclose the same to any third party without the prior written consent of the Company.
14.2 The Company and the Customer shall keep confidential the Agreement and all other information of the other party obtained under, or in connection with, the Agreement and shall not divulge the same to any third party without the prior written consent of the other party.
14.3 The provisions of this Clause shall not apply to:
14.3.1 Any information in the public domain otherwise than by breach of the Agreement.
14.3.2 Information in the possession of the receiving party thereof before divulgence as aforesaid.
14.3.3 Information obtained from a third party who is free to divulge the same.
14.4 The Company and the Customer shall divulge confidential information only to those employees who are directly involved in the use of the Product(s) and shall ensure that such employees are aware of and comply with these obligations as to confidentiality.
14.5 The obligations of the parties as to disclosure and confidentiality shall come into effect on the signing of the Agreement and shall continue in force notwithstanding the termination of the Agreement.
15. NOTICE
15.1 Any notice pursuant to the Agreement shall be in writing signed by (or by some person duly authorised) the person serving it and shall be delivered personally or sent by post prepaid recorded delivery (airmail if overseas) or by facsimile transmission to the party due to receive such notice at the address of the party on whom it is to be served as shown in the Agreement or to such other address as shall be notified in writing to the other party to the Agreement from time to time.
15.2 Any notice delivered personally shall be deemed to be received when delivered and any notice sent be pre paid recorded delivery post shall be deemed (in the absence of evidence of earlier receipt to be received 48 hours after posting (6 days if sent by airmail) and in proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted.
15.3 Any notice sent by facsimile transmission shall be deemed to have been received upon receipt by the sender of the correct answerback or transmission report.
16. WAIVER
The rights and remedies of either party under the Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time, by the other nor any failure or delay by the other in asserting or exercising any such rights or remedies.
17. SEVERANCE
If at any time any one or more clause, sub-clause, paragraph, subparagraph or any other part of the Agreement is held to be, or becomes, void or otherwise unenforceable for any reason under any applicable law the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby.
18. VARIATION
No variation in the provisions of the Agreement shall be of any effect unless made in writing and signed on behalf of the Customer and the Company.
19. ASSIGNMENT
19.1 The Customer shall not be entitled to assign, lease, transfer or part with its rights, responsibilities or obligations or any part thereof under the Agreement without the prior written consent of the Company.
19.2. The Company shall be entitled to assign, lease, transfer or part with its rights, responsibilities or obligations or any part thereof under the Agreement to its Parent Company without the prior written consent of the Customer.
20. SET-OFF
Unless otherwise agreed in writing, the Customer shall not be entitled to set off against any monies due to the Company under the
Agreement or any other account whatsoever, any amount claimed by or due to the Customer from the Company whether pursuant to the Agreement or in any other account whatsoever.
21. FORCE MAJEURE
Neither party will be liable for failure to perform obligations under the Agreement if that failure results from any circumstances beyond its reasonable control including (but without the generality of the foregoing) strikes, lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any cause of whatever kind and whenever occurring.
22 HEALTH AND SAFETY
22.1 The Customer shall take all reasonable precautions to ensure the health and safety of the Company’s employees while on the Customer’s premises.
22.2 The Company shall not be liable to the Customer in any civil proceeding brought by the Customer against the Company under any Health and Safety Regulations, except where such exclusion of liability is permitted by Scottish law.
22.3 The Customer shall indemnify and keep indemnified the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the Product(s) and Service(s) incurred directly or indirectly by the Company under any Regulations, orders or directions made thereunder arising
23. OFFERS OF EMPLOYMENT
For the duration of the Agreement and for a period of 6 months thereafter persons in the employment of either party who have worked on the Agreement shall not by mutual consent of the Company and Customer be taken under contract of employment by the other party.
24. ARBITRATION
Any dispute or difference which may arise between the Customer and the Company in connection with or arising out of the Agreement may, by agreement of both parties, be resolved by arbitration, in resulting from the Customer’s default which event such dispute or difference shall be referred to a single arbitrator to be agreed between the Customer and the Company.
25. LAW
Unless otherwise agreed in writing between the Company and the Customer the Agreement shall be subject to and construed and interpreted in accordance with Scottish Law and shall be subject to the exclusive jurisdiction of the Courts of Scotland.
26. HEADINGS
Headings are inserted for convenience of reference only and shall have no effect in construing the Agreement.