STANDARD TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
In these Conditions the following meanings shall apply:
“Agreement” means these terms and conditions, including the Summary of Services;
“Consultancy Services” means the consultancy services (if any) specified in the Summary of Services;
“Consultancy Services Charge” means that part of the Contract Charge (if any) which relates to the Consultancy Services as specified in the Summary of Services;
“Contract Charge” means the charge for the Services specified in the Summary of Services;
“Customer” means the organisation to whom Software Kingdom (Limited / AB / Services SRL) agrees to supply Services as specified in the Summary of Services;
“Equipment” means the services and /or items of equipment specified in Schedule B;
“Emergency Hourly Rate” means the rate charged by Software Kingdom (Limited / AB / Services SRL) for Services performed outside the standard working hours at the request of Customer additional to those set out in the Summary of Services;
“Standard Working Hours” is defined as follows:
UK/Ireland: Monday to Friday 09:00 GMT – 17:00 GMT
Sweden/Norway/Finland/Denmark: Monday to Friday 09:00 GMT+1 – 17:00 GMT+1
“Initial Period” means the initial period of this Agreement specified in the Summary of Services;
“Intellectual Property Right” means any copyright, patent, registered design, trade mark, rights in databases or other industrial or intellectual property right;
“Response Time” means the number of hours which elapse between the receipt of a request for maintenance and the Software Kingdom (Limited / AB / Services SRL) engineer’s providing a resolution;
“Specification” means the facilities and functions of any item of Software and Hardware as set out in the manufacturer’s or supplier’s documentation;
“Summary of Services” means the listing of key details of the Services offered pursuant to this Agreement annexed as Schedule A;
“Support Services” means the services to be provided in relation to the support of the Equipment and the Software as set out in the Summary of Services;
“Support Services Charge” means that part of the Contract Charge (if any) which relates to the Support Services as specified in the Summary of Services;
2. GENERAL
2.1 Software Kingdom (Limited / AB / Services SRL) agrees to provide the Services on the terms set out herein. Notwithstanding anything to the contrary in the Customer’s standard conditions or elsewhere, this Agreement contains the only terms upon which Software Kingdom (Limited / AB / Services SRL) will carry out Services and shall not be varied except to the extent they are varied by the amendments to the standard terms and conditions unless expressly agreed in writing, signed by a Director of Software Kingdom (Limited / AB / Services SRL) . No other servant or agent of Software Kingdom (Limited / AB / Services SRL) is authorised to vary the conditions herein contained whether orally or in writing or to make representations or promises about the Services provided. In the case of any conflict or inconsistency between the standard terms and those amendments to the standard terms and conditions set out in Schedule D, such amendments shall prevail.
2.2 This Agreement supersedes all prior agreements, arrangements and understandings between the parties relating to the subject matter hereof and constitutes the entire agreement between the parties relating to the subject matter hereof. The Customer acknowledges that in entering into this Agreement it has not relied on any representation, warranty, agreement, or statement not set out in this Agreement and that (in the absence of fraud) it will not have any right or remedy arising out of any such representation, warranty, agreement, or statement.
2.3 Each of the provisions of this Agreement is distinct and severable from the others and in the event that any one or more of the provisions contained in this Agreement shall for any reason be or become unenforceable, illegal or otherwise invalid in any respect (whether wholly or in part), such unenforceability, illegality or invalidity shall not affect any other provisions of this Agreement (or, as the case may be, the remaining parts of the relevant provisions) which shall continue in full force and effect and this Agreement shall then be construed as if such unenforceable, illegal or invalid provisions (or parts thereof) had never been contained herein. The parties shall thereupon use their respective best endeavours to agree valid and enforceable terms to replace such unenforceable illegal or invalid provisions to meet so far as possible the original intention of the parties.
2.4 The Customer shall not assign, sub-contract, sub-licence or otherwise transfer any right or obligation under this Agreement without the prior written consent of Software Kingdom (Limited / AB / Services SRL).
2.5 Software Kingdom (Limited / AB / Services SRL) reserves the right to sub-contract any of the Services to be provided under this Agreement and to assign this Agreement in whole or in part to a third party and the Customer hereby agrees to any such sub-contracting or assignment.
2.6 This Agreement is enforceable by the parties and by their successors in title and permitted assignees. Any rights of any other person to enforce the terms of this Agreement are excluded.
3. PERIOD OF AGREEMENT
3.1 This Agreement shall remain in force for the Initial Period unless terminated earlier in accordance with the terms of this Agreement. At the end of the Initial Period, this Agreement shall be automatically renewed for periods of one year (each such period being referred to as a “Renewal Period”), unless terminated earlier in accordance with the terms of this Agreement or by either party giving at least 90 days written notice to the other (such notice to expire on the last day of the Initial Period or any Renewal Period).
4. TERMS OF PAYMENT
4.1 The Customer shall pay the Contract Charge in accordance with the terms stated in the Summary of Services. Where any services additional to those set out in the Summary of Services are provided at the request of the Customer, the Customer shall pay Software Kingdom (Limited / AB / Services SRL) forthwith on presentation of an invoice for the charges.
4.2 If an invoice is not paid in accordance with Clause 4.1, Software Kingdom (Limited / AB / Services SRL) reserves the right to charge interest on a daily basis on outstanding sums at the rate of 4% above Starling
Bank base rate per annum as published from time to time, from the due date for payment until receipt by Software Kingdom (Limited / AB / Services SRL) of the full amount whether before or after judgement.
4.3 The Customer shall pay all accounts in full and not exercise any rights of set-off or counterclaim.
4.4 All charges are exclusive of Value Added Tax which will be payable by the Customer at the rate applicable from time to time.
4.5 Software Kingdom (Limited / AB / Services SRL) reserves the right subject to giving a minimum of 12 days’ notice in writing to suspend performance of the Services where payment is not received in accordance with Clause 4.1 or any alternative terms of payment agreed in writing in advance.
5. CHARGES
5.1 Software Kingdom (Limited / AB / Services SRL) shall vary the Contract Charge up or down, with the exception of one off set up costs, on an annual basis with effect from the first anniversary of the commencement of the Initial Period if it deems necessary to do so.
5.2 Software Kingdom (Limited / AB / Services SRL) may increase the Contract Charge or any component of it, upon giving not less than 90 days’ notice in writing prior to the expiry of the Initial Period or any Renewal Period, as appropriate. Such increase will take effect upon the expiry of the Initial Period or the relevant Renewal Period, save that the Customer shall have the right to terminate this Agreement in relation to such item.
5.3 If Services are supplied by Software Kingdom (Limited / AB / Services SRL) outside the period of the Standard Working Hours (at the request of the Customer) or if work done at the request of the Customer is not within the scope of the Services as set out in the Summary of Services or if for any reason the work is necessitated by any failure on the part of the Customer to comply with its obligations hereunder then the Customer shall pay Software Kingdom (Limited / AB / Services SRL) at the then applicable Hourly Rate for such services.
5.4 If the Equipment is moved from the Site, Software Kingdom (Limited / AB / Services SRL) will continue to provide the Services, provided the Equipment is not moved to a Site outside mainland England, Scotland, Wales, Northern Ireland, Sweden, Norway, Finland or Denmark. However, the Customer shall give Software Kingdom (Limited / AB / Services SRL) 30 days written notice before moving any item of the Equipment to a new Site. Any additional costs incurred by Software Kingdom (Limited / AB / Services SRL) as a result of the Customer not notifying the change of location as required shall be separately chargeable.
5.7 Without prejudice to clauses 5.2 and 11.2, in addition to the Contract Charge, Software Kingdom (Limited / AB / Services SRL) shall have the right to charge the Customer at the applicable Hourly Rate and for parts and consumables in the following circumstances:
· The Customer (or any of its employees, agents or contractors) informs Software Kingdom (Limited / AB / Services SRL) that there is a fault or defect with any Equipment or Software and requests Software Kingdom (Limited / AB / Services SRL) to rectify this fault or defect and Software Kingdom (Limited / AB / Services SRL) establishes that no such fault or defect exists or such fault or defect is the result of incorrect operation or mishandling by the Customer, its employees, agents or contractors;
6. SOFTWARE KINGDOM (Limited/AB/Services SRL) WARRANTY
6.1 Software Kingdom (Limited / AB / Services SRL) warrants that the Services shall be supplied and rendered with all due skill, care and diligence by appropriately experienced, qualified and trained personnel in accordance with good industry practice.
6.2 Should the Customer become dissatisfied with the performance of any personnel assigned by Software Kingdom (Limited / AB / Services SRL) to perform the Services, the Customer shall notify Software Kingdom (Limited / AB / Services SRL) in writing with details of the unsatisfactory performance, and provided that
Software Kingdom (Limited / AB / Services SRL) is satisfied that the Customer’s dissatisfaction is reasonable, Software Kingdom (Limited / AB / Services SRL) shall replace that person as soon as reasonably practicable.
7. CUSTOMERS’ WARRANTIES
7.1 Save where Software Kingdom (Limited / AB / Services SRL) has been notified otherwise and has agreed in writing to accept the Equipment in other than full working order, the Customer warrants that the Equipment is in good working order and good mechanical and electrical condition at the date of commencement of the Initial Period or in the case of Equipment added to the scope of the Agreement in accordance with Clause 9.1 at the date at which it comes within scope.
7.2 The Customer warrants that any information provided to Software Kingdom (Limited / AB / Services SRL) about whether the Equipment was in or out of warranty or which was provided for Software Kingdom (Limited / AB / Services SRL) to calculate which Equipment was in or out of warranty is accurate and complete.
7.3 The Customer warrants that it is entitled or empowered to authorise Software Kingdom (Limited / AB / Services SRL) to perform the Services in respect of the Equipment and the Software.
7.4 In the event that any of Customer warranties set out in this clause 7 are inaccurate, Software Kingdom (Limited / AB / Services SRL) may recover from the Customer any additional costs that it incurs.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
8.1.1 Ensure that all Equipment and Software is installed and operated in accordance with the supplier’s instructions;
8.1.2 Give Software Kingdom (Limited / AB / Services SRL) 30 days’ notice of the installation of additional Equipment and/or Software for which support is required and Software Kingdom (Limited / AB / Services SRL) will decide whether or not it wishes to support them in accordance with the provisions of clause 9.1;
8.1.3 Operate Equipment and Software in a proper manner and always under the supervision of trained and competent personnel;
8.1.4 Co-operate fully with Software Kingdom (Limited / AB / Services SRL) in the diagnosis of any malfunction of the Equipment or the Software;
8.1.5 Insofar as it is legally authorised to do so, provide Software Kingdom (Limited / AB / Services SRL) with full and free access at all reasonable times to all technical manuals and other documentation relating to the Equipment or the Software, and any diagnostic software which the Customer possess in relation to the Equipment;
8.1.6 Maintain a suitable environment and electrical supply for the Equipment which complies with specifications given by the manufacturer(s) of the Equipment or Software Kingdom (Limited / AB / Services SRL), and keep all external surfaces of the Equipment clean and in good condition;
8.1.7 Provide such services as may reasonably be required for safety or other reasons by Software Kingdom (Limited / AB / Services SRL) engineers in pursuance of the maintenance of the Equipment and Software;
8.1.8 Notify Software Kingdom (Limited / AB / Services SRL)immediately if it makes any addition to, modification of, or adjustment to the Equipment and/or the Software. Software Kingdom (Limited / AB / Services SRL) shall notify the Customer of the implications of any such addition, modification or adjustment in relation to the provision of the Services and in particular, reserves the right to increase the Contract Charge or to terminate this Agreement in relation to the item of Equipment or Software concerned as a result of such addition, modification or adjustment, by giving 7 days’ notice in writing to the Customer. For the avoidance of doubt, this clause is not intended to apply where the Customer wishes to add or remove any items of Equipment of Software from the lists in Schedules B to which the provisions of Clause 9 of Section 1 shall apply;
8.1.9 Use only media of a type that is approved of by the manufacturer of the Equipment or Software or Software Kingdom (Limited / AB / Services SRL). Software Kingdom (Limited / AB / Services SRL) will not unreasonably withhold such approval;
8.1.10 Provide sufficient working space and access for inspection and maintenance of the Equipment or Software and reasonable storage space for stocks of spares as reasonably required at no charge to Software Kingdom (Limited / AB / Services SRL);
8.1.11 In the event of a maintenance call, before calling for Software Kingdom (Limited / AB / Services SRL) engineers to visit the Site, ensure and confirm that the following basic checks have been implemented:
· Mains power, external fuses and any external or internal sub-units not covered by this Agreement have been checked and restored;
· Diagnostic self-check facilities (where appropriate) have been used in accordance with the instructions in the appropriate operating manual; and
· Any adjustments required as part of the relevant self-checks have been implemented wherever possible.
8.1.12 Follow the manufacturer’s advice on operating the Equipment and on carrying out operator’s routine maintenance; and
8.1.11 Keep all consumable items supplied by the Customer in a serviceable condition.
8.2 The Customer acknowledges that the provision of the Support Service and the helpdesk Service are not a substitute for proper user training or comprehensive end user documentation. The Customer shall where applicable ensure that:
8.2.1 its staff are fully and properly trained in the use of the Equipment and Software in accordance with Software Kingdom (Limited / AB / Services SRL) reasonable recommendations from time to time;
8.2.2 its staff are competent in the use of the Equipment or Software and all software products loaded thereon; and
8.2.3 the Customer has a complete set of comprehensive and up to date end user documentation.
9. CHANGE REQUEST PROCESS
9.1 If either party wishes to make changes in relation to the Services, the parties shall use the Change Request procedure outlined in Schedule E
9.2 The Customer may request that certain items of Equipment, Software and/or Services be added to, or deleted. Software Kingdom (Limited / AB / Services SRL) agrees that it will consider any such reasonable requests in good faith, but Software Kingdom (Limited / AB / Services SRL) reserves the absolute right to refuse any such requests.
9.3 In the event that Software Kingdom (Limited / AB / Services SRL) agrees to such changes, in accordance with Clause 9.1, Software Kingdom (Limited / AB / Services SRL) may increase or reduce the Contract Charge as it in its sole discretion deems appropriate, such increase or reduction to take effect from the date of the installation or removal of the Equipment and/or Software as the case may be. The contract value net of additions and deletions can fall by no more than 10% of the value at the start of last annual renewal without written agreement from Software Kingdom (Limited / AB / Services SRL).
9.4 Deletions and/or reductions in service levels to contract shall be effective after ninety calendar days of notification.
10. EXCLUSIONS
10.1 The Services do not include maintenance of the Equipment or Software necessitated by other than fair wear and tear and in particular does not include:
10.1.1 Repair of damage caused (a) by accident, misuse, neglect, movement of or interference with the Equipment, software errors in operating systems or application software; or (b) by failure to maintain a
suitable environment and electrical supply including (but not limited to) failure of electrical power, poor air conditioning or humidity control, static electricity, or (c) by any cause other than the normal usage of the Equipment;
10.1.2 Equipment found to be faulty prior to the date it was added to contract;
10.1.3 Calls received within 10 working days from the date of notification for Equipment added to contract;
10.1.4 Repair of damage caused by any person other than an authorised representative of Software Kingdom (Limited / AB / Services SRL) attempting to maintain the Equipment or Software;
10.1.5 Maintenance of accessories, attachments, equipment or any other items not included in the Equipment specified in Schedule B;
10.1.6 Electrical work external to the Equipment, making modifications or specification changes to the Equipment, reconditioning, refurbishing, painting or refinishing the Equipment or adding or removing accessories, attachments or other devices;
10.1.7 Provision, maintenance or replacement of supplies or accessories, including (but not limited to) items defined by the manufacturer of the Equipment as consumables;
10.1.8 Normal operator functions as recommended by the manufacturer and/or Software Kingdom (Limited / AB / Services SRL;
10.1.9 Maintenance necessitated as a result of fire, flood, storm, earthquake, wilful damage, accidental damage and other similar causes;
10.1.10 Maintenance of laptop screens and batteries;
10.1.11 Maintenance of unlicensed Software or whereby the Customer can not prove ownership of the software and maintenance of Software whereby the release of such Software is no longer supported by the software provider;
10.2 At the Customer’s request, Software Kingdom (Limited / AB / Services SRL) may, in its sole discretion, agree to perform any of the services set out in this Clause 12. Software Kingdom (Limited / AB / Services SRL) shall in such circumstances be entitled to levy additional charges in accordance with the Hourly Rate and cost of parts, consumables and software.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Customer acknowledges that all Intellectual Property Rights in all data, reports, drawings, specifications, designs, plans, programs, course materials or other material produced, provided, made available or acquired by Software Kingdom (Limited / AB / Services SRL) in the course of the performance of the Services shall vest in and remain the property of Software Kingdom (Limited / AB / Services SRL) or its licensors, suppliers or sub-contractors, unless expressly agreed otherwise in advance and in writing. No copies may be made of such material unless expressly agreed otherwise in advance and in writing by Software Kingdom (Limited / AB / Services SRL).
11.2 Software Kingdom (Limited / AB / Services SRL) warrants that the provision of the Services and use by the Customer of the Software in accordance with the terms of this Agreement will not infringe the Intellectual Property Rights of any third party.
11.3 Software Kingdom (Limited / AB / Services SRL) shall indemnify the Customer from all liabilities (including reasonable legal costs) incurred by the Customer as a result of any claim or action made by a third party alleging that the provision of the Services or any portion thereof infringes the Intellectual Property Rights of such third party, provided that the Customer:
11.3.1 gives Software Kingdom (Limited / AB / Services SRL) prompt written notice of such claim;
11.3.2 gives Software Kingdom (Limited / AB / Services SRL) reasonable assistance and sole authority to conduct and/or settle all negotiations and litigation and defend and/or settle such claims. For the avoidance of doubt, the costs incurred or recovered in such negotiations and litigation shall be at Software Kingdom (Limited / AB / Services SRL) expense; and
11.3.3 has no dealings with such third party in relation to its claim and makes no admissions in relation to such a claim without Software Kingdom (Limited / AB / Services SRL) prior written consent.
11.4 If any infringement claim is made of the type referred to in clause 11.3, or in Software Kingdom (Limited / AB / Services SRL) opinion is likely to be made, Software Kingdom (Limited / AB / Services SRL) shall have the right, at its option to either:
11.4.1 obtain for the Customer the right to continue using the item in question or to receive the services;
11.4.2 replace or modify the item in question or the service so it ceases to be infringing; or
11.4.3 as a last resort, grant to the Customer a credit for that portion of the Contract Charge attributable to the item/service at issue in such claim, as depreciated , and accept such item’s return or termination of the service affected.
11.5 Software Kingdom (Limited / AB / Services SRL) shall not have any obligation to indemnify the Customer if the alleged infringement is based upon:
11.5.1 use of the item, other than in accordance with the terms of the Agreement and any other instruction Software Kingdom (Limited / AB / Services SRL) may give concerning its use;
11.5.2 use of the item in an unauthorized manner for which the item is not designed; or
11.5.3 use of the item in a manner other than in accordance with the instructions.
11.6 Neither Software Kingdom (Limited / AB / Services SRL) nor any third-party licensors shall have any liability to the Customer in respect of any infringement, alleged infringement, violation, or misappropriation of any Intellectual Property Right.
12. LIMITATION OF LIABILITY
12.1 Software Kingdom (Limited / AB / Services SRL) shall not be liable for any loss or damage sustained or incurred by the Customer or any third party resulting from any breakdown of or fault in the Equipment or the Software unless such breakdown or fault is caused by the negligence or wilful misconduct of Software Kingdom (Limited / AB / Services SRL), its employees, agents or sub-contractors or except to the extent that such loss or damage arises from any unreasonable delay by Software Kingdom (Limited / AB / Services SRL) in providing the Services.
12.2 Software Kingdom (Limited / AB / Services SRL) shall not be liable for any damage to physical or real property (not including data) sustained whilst providing the Services to the Customer.
12.3 Except in respect of injury to or death of any person caused by Software Kingdom (Limited / AB / Services SRL) negligence (for which no limit applies) the liability of Software Kingdom (Limited / AB / Services SRL) under or in connection with this Agreement shall not exceed the annual contract value at the time the last event giving rise to the claim occurred.
12.4 Notwithstanding anything else contained in this Agreement Software Kingdom (Limited / AB / Services SRL) shall not be liable to the Customer or any third party for any loss of profits, contracts, business, revenue, or goodwill or indirect, special, or consequential loss arising under or in connection with this Agreement, whether arising from negligence, breach of contract or otherwise.
12.5 Except as expressly provided in this Agreement, all conditions, warranties, or representations, express or implied, statutory, or otherwise, relating to the provision of the Services by Software Kingdom (Limited / AB / Services SRL) to the Customer, are hereby excluded.
12.6 Notwithstanding anything else contained in this Agreement, Software Kingdom (Limited / AB / Services SRL) shall not be liable for any loss or damage sustained or incurred by the Customer or any third party, to the extent that such loss or damage was caused by the provision of incorrect or inadequate information to Software Kingdom (Limited / AB / Services SRL) by the Customer, its employees, agents or contractors or by any failure on the part of the Customer to take back up copies of software and data in accordance with best computing practice.
13. TERMINATION
13.1 This Agreement may be terminated forthwith by notice in writing by either party if:
13.1.1 the other commits any material breach of any term of this Agreement which is either incapable of remedy or which, in the case of a breach capable of being remedied, shall not have been remedied within 28 days of a written request to remedy the same;
13.1.2 the other is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (but for this purpose ignoring the words “if it is proved to the satisfaction of the court that” in section 123(1)(e) and 123(2)), admits its inability to pay its debts as they fall due, commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of, or a composition with, its creditors; or
13.1.3 the other takes any corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution, reorganisation or for it to enter into any arrangement or composition for the benefit of creditors or for the appointment of a receiver, administrator, administrative receiver, trustee or similar person of any of its revenues or assets or distress is executed against, or an encumbrance takes possession of, any of its revenues or assets.
13.2 Any termination of this Agreement for whatever reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights and liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
13.3 Upon completion by Software Kingdom (Limited / AB / Services SRL) of any Services or the termination or expiry of this Agreement, the Customer will promptly return to Software Kingdom (Limited / AB / Services SRL) all software, documentation and manuals used by Software Kingdom (Limited / AB / Services SRL) for performing the Services, or any other items belonging to Software Kingdom (Limited / AB / Services SRL) which the Customer has no contractual right to retain.
13.4 In the event that the Customer wishes Software Kingdom (Limited / AB / Services SRL) to support the transition of services to another provider after the completion or termination of the Services then Software Kingdom (Limited / AB / Services SRL) shall advise the Customer of the costs associated with the transition. Where the Customer agrees to pay these costs then Software Kingdom (Limited / AB / Services SRL) shall support the transition employing all reasonable endeavours.
14. CONFIDENTIALITY
14.1 Each of the parties undertakes to the other to keep confidential the terms of this Agreement and all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to the entering into or the performance of this Agreement save that which is:
14.1.1 already in its possession or which subsequently comes into its possession other than as a result of a breach of this clause; or
14.1.2 in the public domain other than as a result of a breach of this clause.
14.2 Each of the parties undertakes to the other to take all such steps as from time to time may be reasonable to procure compliance with the provisions of this clause by its employees, agents and sub-contractors. The foregoing obligations as to confidentiality shall survive any termination or expiry of this Agreement.
14.3 It shall not be a breach of the provisions of this Agreement to disclose confidential information as required by law or by order of a court of competent jurisdiction provided that the disclosing party shall (where possible) notify the other party in advance of such disclosure and take reasonable steps to minimize the impact and extent of such disclosure.
15. NOTICES
Any notice required or permitted to be given hereunder shall be in writing and shall be given by delivering the same by hand or by sending the same by prepaid first class post or courier service or facsimile to the registered
office of the addressee or such other address or number as that party may have notified to the other pursuant to this Clause 18 (or if no such address has been notified, the last known relevant place of business of that party). Any notice given as aforesaid shall be deemed to have been given or received at the time of delivery or transmission (if delivered by hand or courier or given by facsimile) or 48 hours after posting (if sent by post). In proving service, it shall be sufficient to prove that the letter was correctly addressed and was posted, or where it was delivered otherwise than by post that it was delivered to the correct address or where it was sent by facsimile that it was transmitted to the correct number.
16. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with English Law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts for customers contracting the service in the UK.
This Agreement shall also be governed by and construed in accordance with the European Law in the respective country where the customer is registered to own the business contracting the services and the parties hereby submit to the non-exclusive jurisdiction of the European Courts for customers contracting the service in the EU.
17. TITLE AND RISK
17.1 Title to the any goods supplied shall not pass to the Customer until payment in full of the price (including any interest or other payment due under the contract and as stated in Schedule A).
17.2 Risk in the goods shall pass to the Customer on installation.
17.3 Software Kingdom (Limited / AB / Services SRL) reserves the right to re-possess any goods in respect of which payment is overdue and thereafter to re-sell the same and for this purpose the Purchaser hereby grants an irrevocable right and licence to Software Kingdom (Limited / AB / Services SRL) servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. The provisions of this sub-clause shall continue in force notwithstanding termination of the relevant contract howsoever caused.
18. STATUTORY AND OTHER REGULATIONS
18.1 If the cost to Software Kingdom (Limited / AB / Services SRL) of performing the Services shall be increased by reason of the making or amendment after the date of this Agreement of any law or of any order, regulation or by-law having the force of law that shall affect the performance of Software Kingdom (Limited / AB / Services SRL) obligations under this Agreement, the amount of such increase shall be added to the Contract Charge 30 days after Software Kingdom (Limited / AB / Services SRL) gives the Customer notice in writing of such increase.
19. HEADINGS
The headings in these Conditions are for convenience only and shall not affect the construction or interpretation thereof.
20. WAIVER
No failure or delay to exercise any power, right or remedy under this Agreement shall operate as a waiver of it or impair or prejudice it nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy.
21. FORCE MAJEURE
21.1 Neither party shall be liable for delay in or failure to perform its obligations under this Agreement if such delay or failure results from circumstances beyond its reasonable control.
21.2 If such event of Force Majeure continues for more than three (3) months the Parties shall meet to attempt to renegotiate the terms of this Agreement but if the Parties are not successful in negotiating alternative terms, either Party shall be free to terminate this Agreement on thirty (30) days written notice to the other Party and neither party shall be responsible for, or liable for, any losses or costs arising from such termination.
22. SUPPORT SERVICES AND HELP DESK
22.1 In the event that the Customer upgrades the Software, the Customer undertakes to reimburse Software Kingdom (Limited / AB / Services SRL) for any costs which it incurs in relation to the retraining of its employees who are involved in the provision of the Help Desk Service and the Support Services which are necessitated by the upgrade.
22.2 If as a result of a query raised by the Customer it becomes apparent that any item or part of the Equipment or the Software may not be performing in accordance with the manufacturer’s or supplier’s Specification, Software Kingdom (Limited / AB / Services SRL) shall inform the Customer as soon as reasonably possible.
23. CONSULTANCY SERVICES
23.1 Software Kingdom (Limited / AB / Services SRL)warrants and undertakes to the Customer that:
23.1.1 Software Kingdom (Limited / AB / Services SRL)employees, agents and sub contractors will have the necessary skill and expertise to provide the Consultancy Services described in the Summary of Services.
23.1.2 Software Kingdom (Limited / AB / Services SRL)will provide independent and unbiased advice and will exercise reasonable skill and care in the provision of the Consultancy Services.
23.1.3 the Consultancy Services will be provided in a timely and professional manner.
23.2 The terms of reference for the Consultancy Services to be performed by Software Kingdom (Limited / AB / Services SRL)shall be as specified in the Summary of Services. The Customer may from time to time wish to vary the terms of reference. Under these circumstances, Software Kingdom (Limited / AB / Services SRL)will use all reasonable endeavours to accommodate such variation. Any changes in the Contract Charge and/or timescales as a result of such variation shall be negotiated between the Customer and Software Kingdom (Limited / AB / Services SRL).
23.3 Unless otherwise agreed between the parties, the end product of the Consultancy Services will be a report document, together with all necessary supporting material, proposing a recommended solution. It is the Customers’ responsibility to check and verify the viability and suitability of the proposed solution. No liability can be accepted by Software Kingdom (Limited / AB / Services SRL) for the implementation of the proposed solution by the Customer.
23.4 Where progress reports are to be provided in accordance with the Summary of Services, Software Kingdom (Limited / AB / Services SRL) shall render such reports at the time and in the manner specified or as otherwise agreed between Software Kingdom (Limited / AB / Services SRL)and the Customer.
23.5 The parties agree that all Intellectual Property Rights which existed prior to the date of this Agreement in relation to any items used in the performance of the Consulting Services, shall remain the property of the existing owner of such Intellectual Property Rights.
23.6 Except in respect of injury to or death of any person caused by Software Kingdom (Limited / AB / Services SRL) negligence (for which no limit applies), in no event shall Software Kingdom (Limited / AB / Services SRL) total cumulative liability to the Customer arising out of the provision of the Consultancy Services, exceed the Consultancy Services Charge, in respect of the Services giving rise to the claim.
ANEX 1
1. Supply of Goods
Processing Orders for Goods
1.1 Online orders paid by credit card online, enjoy the same delivery times of between 7 to 30 days from the date of the Order in the majority of cases. Goods requiring longer delivery times will be as to the standard procedures of delivery times for such Goods. Licence certificates which are issued direct from vendors may take longer.
1.2 Orders are accepted by Software Kingdom (Limited / AB / Services SRL) in writing in original documents, fax, internet email, or any other means bearing proof of sender and originator. The Customer agrees to send Software Kingdom (Limited / AB / Services SRL) a written Order in confirmation of any orders placed by telephone, duly marked with any confirmation reference provided to properly identify the Customer and the Goods ordered, otherwise Software Kingdom (Limited / AB / Services SRL) reserves the right not to process the Order. To avoid doubt, Orders placed by e-mail or fax shall in any event be treated as confirmed written Orders from the Customer (pending receipt of any original documents), as long as they are received by Software Kingdom (Limited / AB / Services SRL).
1.3 All Orders are subject to availability and to credit approval by Software Kingdom (Limited / AB / Services SRL), which may, in its sole discretion at any time, change the terms of Customer's credit and require payment in cash, bank wire transfer or by official bank cheque. If Software Kingdom (Limited / AB / Services SRL) believes that the Customer's ability to make payments may be impaired, Software Kingdom (Limited / AB / Services SRL) may suspend delivery even after the Order has been accepted.
2. Delivery of Goods
2.1 The Customer acknowledges that delivery dates of the Goods provided by Software Kingdom (Limited / AB / Services SRL) are estimates only and that Software Kingdom (Limited / AB / Services SRL) is not liable for failure to deliver on such dates.
3. Software
3.1 If the Goods consist of third party licensed software, the Customer acknowledges that Software Kingdom (Limited / AB / Services SRL) will not be responsible for the delivery of such software. Upon receipt of full payment, Software Kingdom (Limited / AB / Services SRL) will provide the Customer with a letter containing a grant number. The Customer is responsible for using the grant number to download the software (and any updates or modifications) from the manufacturer's website.
4. Hardware
4.1 Delivery of the Goods to the carrier shall constitute delivery to the Customer and risk in the Goods shall pass to the Customer on delivery.
4.2 Title to the hardware passes on full payment (in cash or cleared funds) of the hardware and any other goods or Services that Software Kingdom (Limited / AB / Services SRL) has supplied to the Customer in respect of which payment has become due, and until then the Customer must insure and store the hardware separately from other goods so that they remain readily identifiable as Software Kingdom (Limited / AB / Services SRL) property and may not modify, pledge or sell them. Software Kingdom (Limited / AB / Services SRL) and/or its agents, may enter the storage premises to repossess the hardware. In the event that the Customer sells the hardware before title passes, the Customer will become Software Kingdom (Limited / AB / Services SRL) agent and the proceeds of that sale shall be held on behalf of Software Kingdom (Limited / AB / Services SRL), separately from the Customer’s general funds. Software Kingdom (Limited / AB / Services SRL) may sue for the price before title passes.
4.3 Software Kingdom (Limited / AB / Services SRL) may deliver the hardware by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.4 Software Kingdom (Limited / AB / Services SRL) reserves the right to modify the specification of its Goods from time to time.