In these Conditions the following terms have the following meanings:
“Agreement” means these Conditions, the Order Confirmation and the ALTECH UK Documentation that is expressly incorporated by reference by ALTECH UK on the Order Confirmation, or by any other written or electronic means;
“Charges” means the Equipment Charges, Annual Service Charges or any other applicable Charges as set out in ALTECH UK Documentation;
“Commencement Date” means the date as contained in the Order Confirmation;
“Consultancy” means the general technical IT or Equipment or related consultancy services of ALTECH UK including project management.
“Customer” means the party to whom these terms and conditions are issued;
“ALTECH UK Documentation” means the applicable, valid and current quotation, proposal, offer or Service Description;
“ALTECH UK” means ALTECH UK LABELLING TECHNOLOGIES LTD, registered address 2 St Maur, Marlow Road, Lane End, High Wycombe, Buckinghamshire.
“Documentation” means any offer, quotation, order, confirmation or correspondence relating to this agreement.
“Equipment” means the equipment and hardware which is to be supplied and as identified in the Order Confirmation;
“Order Confirmation” means the ALTECH UK Order Confirmation incorporating these Conditions and/or the Customer's purchase order which may be accepted by ALTECH UK provided that these Conditions are automatically incorporated into such purchase order and subject always to clause 2.1;
“Charges” means the price for the Equipment, Materials and/or Services or Consultancy set out in the in the company's Quotation, offer and or Order Confirmation;
“Services” means the fixed or packaged service ALTECH UK shall deliver and are identified in detail in the relevant Service Description;
“Service Description” means the description of services and by of example may include support services or any other services each as defined in a Service Description;
“Software” means the software programs and each and every component thereof, including all upgrades or releases thereof, non-chargeable developments existing now or made available in the future, and all related documentation, which may be supplied by ALTECH UK or its sub-contractors in connection with the provision of the Service, whether integral to Equipment or otherwise.
Notwithstanding a duly executed agreement to the contrary the parties contract on these Conditions which shall prevail over any inconsistent terms which the Customer may seek to introduce on any purchase order or any other communication for the supply/purchase of Equipment, Software or Services. Such inconsistent terms shall have no effect on any supplies made by ALTECH UK to the Customer.
ALTECH UK shall supply and Customer shall pay the Charges for Equipment, Software, Consultancy and/or Services as set out in the Order Confirmation and on the terms and conditions of this Agreement.
ALTECH UK shall use its reasonable endeavours to deliver or complete or procure the delivery of the Equipment, materials or software or services to such location as stated in the Order Confirmation on or before any specified date for delivery. Unless specifically agreed, delivery date is not “of the essence”.
4 Title, Risk and Ownership
Risk in Equipment, materials or software shall pass to Customer on their delivery to the Customer. Title in the Equipment (excluding any rights in Software) shall pass to the Customer on receipt by ALTECH UK of full and cleared payment for the price of the Equipment (including VAT). ALTECH UK retains the right to access and recover any Goods, Equipment, Materials or software which is not fully paid for (subject also to clause 9).
In relation to any Goods, Goods, Equipment, Materials and/or software the copyright or other intellectual property rights therein shall remain vested in the owner thereof and Customer shall enter into contract with the owner of such intellectual property user licence agreement as may be prescribed by the owner. The Customer shall abide by the terms of and be responsible for any end user licence agreement with the software owner.
ALTECH UK warrants it has the right to provide or procure the provision of the Equipment, materials or software to the Customer and that the Customer shall have the right to use the Equipment, materials or software.
The warranties and remedies given by ALTECH UK to Customer in respect of Equipment, materials or software are those which are given by the manufacturer or owner of such Equipment, materials or software to ALTECH UK (with all necessary changes) and are subject to any relevant limitations and exclusions imposed by such manufacturer or owner. ALTECH UK shall provide Customer with details of such warranties and remedies for breach of such warranties (if applicable) upon request.
The Customer's sole remedy for breach of any warranties in clause 5.2 is to require ALTECH UK to repair, replace or refund (at ALTECH UK's option) the defective item within a reasonable time at no charge to the Customer provided any such defect is notified to ALTECH UK during the applicable warranty period. Customer shall provide all information as may be reasonably necessary to assist ALTECH UK in repairing the defective item including, without limitation, sufficient information to enable ALTECH UK to re-create the defect so as to remedy it.
ALTECH UK shall not be liable for a breach of the warranties in clause 5.2 if such breach arises directly or indirectly because: (a) Customer makes or causes to be made any modifications to the Equipment, materials or software without ALTECH UK's consent; (b) Equipment, materials or software is used in combination with any software or materials not supplied by ALTECH UK or not recommended by ALTECH UK; (c) Software or Equipment is used incorrectly; (d) causes external to the Software or Equipment including but not limited to failure or fluctuations of electrical power, fire, flood or other natural disasters or are commonly regarded as “Force Majeure” events.
6 Consultancy & Services
Where the Customer engages ALTECH UK to provide:
Services: the Services shall be provided in accordance with the Service Description for the Charges set out the Order Confirmation;
Consultancy: Consultancy shall be provided in accordance with the quotation or work specification at the Charge rates or sum set out in the Order Confirmation.
Where Services or Consultancy contain elements of project management the Customer and ALTECH UK shall prior the commencement of Services:
each nominate an authorised representative who will be the prime point of contact (“Project Manager”) for the provision of Services or Consultancy; and
agree the appropriate methods and frequency of monitoring the progress of Services or Consultancy and fulfilment of the Agreement; and
agree and define each respective parties obligations for the Services or Consultancy.
Subject to the Customer complying with its obligations of confidentiality and payment under this Agreement, ALTECH UK hereby grants a non-exclusive licence in respect of its copyright in the ALTECH UK Documentation, to the Customer to use the same for its own internal business use.
ALTECH UK shall own and be fully entitled to use in any way it deems fit any intellectual property skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing Consultancy or Services and any improvements made or developed in the Equipment, materials or software during the course of Consultancy or Services.
ALTECH UK warrants and undertakes to the Customer that subject to clauses 7.2 and 11.3 the Consultancy or Services will be provided in a timely and professional manner and ALTECH UK shall use its reasonable endeavours to provide the same in accordance with any time schedules agreed in writing between the parties and the Consultancy or Services will conform to the standards generally observed in the industry for similar services and will be provided with reasonable skill and care.
The Customer shall indemnify and keep indemnified ALTECH UK in respect of any losses, costs, damages, claims and/or expenses incurred by ALTECH UK due to any claims by a third party arising out of any use, access to or modification of the Customer's computer systems accessed by ALTECH UK and/or use of any materials supplied to ALTECH UK by the Customer. The indemnity in this clause 6.6 shall survive the termination or expiry of this Agreement.
7 Customer Obligations
The Customer agrees to perform in a timely and professional manner all Customer obligations set out in the ALTECH UK Documentation that are required for the provision of Consultancy or Services including but not limited to: access to Customer premises or computer systems as is necessary; to afford ALTECH UK reasonable working conditions and facilities: to promptly furnish the information requested of the Customer in the ALTECH UK Documentation and ensure it employees or agents co-operate with ALTECH UK; to ensure proper insurances are in place.
If the provision of Consultancy or Service is delayed other than through the fault of ALTECH UK the Customer shall pay the Charges in respect of idle-time incurred for the delay including delay as a result of Customer's agents or subcontractors. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of the delay.
8 Charges and Payment
Unless agreed otherwise in writing, all Charges shall be invoiced by ALTECH UK and are payable within 30 days of the date on the invoice in Sterling and paid by Customer without deduction, set off or retention. Where relevant, Customers shall thereafter pay Annual Service Charges annually or if by instalments quarterly by direct debit or similar standing order and each case in advance and prior to the commencement or continuation of Services.
ALTECH UK shall be entitled at any time and from time to time (subject as mentioned below) to increase/decrease the Annual Service Charges by giving to the Customer not less than 60 days' prior written notice (effective on the next anniversary of the Commencement Date).
All prices and Charges stated are exclusive of value added tax, sales tax, gross tax withholding tax any other similar tax which may be applicable thereto and ALTECH UK's reasonable charges notified in advance which shall be paid by the Customer at the prevailing rates.
Failure of the Customer to pay the Charges or any other sum due under this Agreement shall entitle ALTECH UK without prejudice to any other rights and remedies to (a) charge interest on a daily basis from the date due at the rate of 4 percent above Lloyds TSB Banks' base rate in force from time to time; and/or (b) suspend Services or terminate this Agreement, having given Customer written notification of intention to do so and Customer has failed to remedy its payment default within 14 days from the date of such first notification of any overdue amount.
Where a stage payment is paid or payable, such amount is required to cover the cost of raw materials required to fulfil your order. Unless otherwise stated at the time of contract, all stage payments are non refundable in the event of subsequent termination of an Order
9 Term and Termination
Notwithstanding earlier termination under clause 9.2 or above, this Agreement shall commence on the Commencement Date and continue:
Until the Consultancy or supply of Goods or Services is completed; and/or
In full force and effect for Services for the Initial Term (as set out in the Order Confirmation) thereafter this Agreement shall continue for Services for successive 12 month periods unless a party gives written notice to terminate this Agreement to the other party at least 60 days before the end of the Initial Term or any renewal thereof.
Either party may, by written notice terminate this Agreement immediately without prejudice to any other rights or remedies it may otherwise have if (a) the other party is guilty of any material breach, non-observance or non-performance of any of its obligations and does not remedy the same within 28 days of notice of such breach being given by the non-defaulting party; (b) the other party becomes insolvent or makes any special arrangement or any special assignment for the benefit of its creditors, or is the subject of a voluntary or involuntary filing under the bankruptcy laws of any jurisdiction; (c) the other party is adjudicated bankrupt; or (d) a receiver is appointed for the other party's business. The effective date of termination shall be the date of receipt of such notice.
Any termination of the Agreement shall discharge ALTECH UK from any liability for further performance and shall entitle ALTECH UK to enter the Customer's premises and recover any Equipment, Software and materials which are the property of ALTECH UK and the Customer shall immediately pay for any unpaid Charges, expenses and a reasonable sum for any work carried out by it prior to such termination.
10 Limitation of liability
Subject to 10.3 in no event shall ALTECH UK be liable in contract, tort (including negligence), breach of statutory duty or otherwise howsoever for: (a) any loss of profit; (b) loss of business; (c) loss of goodwill; (d) loss of contracts; (e) loss of revenues; (f) loss of anticipated savings; (g) any increased costs or expenses; (h) loss of, damage to or corruption of data; (i) any special, indirect or consequential loss or damage of any nature whatsoever, whatever the cause thereof arising out of or in connection with the Agreement.
Subject to clauses 9.3 and 10.3 and without prejudice to clauses 10.1 and 10.3 and the Customer's obligations to pay any Charges hereunder, the parties' maximum liability under this Agreement is limited in respect of each event or series of connected events to the value of all sums actually received by ALTECH UK under this agreement for goods or services.
Nothing in this Agreement shall exclude or limit the liability of either party for death, personal injury or fraudulent misrepresentation caused by its negligence to the extent that the same is prohibited by UK statute.
ALTECH UK's sole obligations and liabilities in respect of the provision of the Goods, Service, Consultancy, Equipment, materials or software are as stated in these Conditions and all other representations (innocent or negligent), conditions, warranties and terms express or implied whether by statute, law or otherwise are hereby excluded to the fullest extent permitted by law.
Each party shall treat as confidential such information obtained from the other pursuant to this Agreement (including, where the Customer is the recipient, without limitation, the Software and the ALTECH UK Documentation) and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend to information which was rightfully in the possession of such party. Each party shall ensure that its employees are aware of and comply with the provisions of this clause.
The Customer shall not assign the benefit of this Agreement in whole or in part without the prior written consent of ALTECH UK.
Neither Party shall be responsible for any failure to perform these obligations for reasons beyond its reasonable control.
Save as expressly stated herein and in relation to the enforcement of any intellectual property rights of ALTECH UK the parties hereby expressly exclude the provisions of the Contracts (Rights of Third Parties) Act 1999.
The UK shall be considered the principal place of performance of services or publication of material over the Internet and this Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree to submit to the non-exclusive jurisdiction of the English Courts.
No failure or delay of either Party in exercising any right, power, or privilege under these Conditions (and no course of dealing between the Parties) shall operate as a waiver thereof.
If any provision of these Conditions or any part of such provision is held invalid or unenforceable, the remainder of the provisions contained herein will not be affected thereby and each remaining provision or part thereof will be valid and enforceable to the full extent permitted by law.
This Agreement is not intended to create a joint venture or partnership between the Parties and neither Party is authorised to act as the agent of the other.