ABSOLUTE SOFTWARE LTD TERMS & CONDITIONS...

Standard Terms And Conditions For The Supply of Goods And Services

Interpretation

1.1 - The definitions and rules of interpretation in this condition apply in these conditions.
Company: ABSOLUTE SOFTWARE LIMITED.
Company's Equipment: any equipment, including tools, systems, software, cabling or facilities, provided by the Company or its subcontractors and used directly or indirectly in the Supply of any Goods and/or Services.
Conditions: these Terms and Conditions of Supply.
Confidential Information: Any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential.
Contract: any contract between the Company and the Customer for the Supply of any Goods and/or Services, incorporating these conditions.
Customer: the person, firm or company who purchases the Goods and/or Services from the Company.
Customer's Equipment: any equipment, systems, software, cabling or facilities provided by the Customer and used directly or indirectly in the Supply of any Goods and/or Services.
Customer Software: any software developed by the Company specifically for the Customer under the Contract including the source code related thereto.
Document: any document in writing, and any map, plan, graph, drawing or photograph and any film, negative tape or other device embodying visual images and any disc, tape or other device embodying any other data.
Goods: any goods agreed in the Contract to be produced by the Company for the Customer and/or sold by the Company to the Customer (including any part or parts of them) and which for the avoidance of doubt, shall include any software so produced and/or sold.
Input Material: any Documents or other materials, and any data or other information provided to the Company by the Customer relating to the Goods and/or Services.
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
Output Material: any Documents or other materials, and any data or other information provided by the Company to the Customer relating to the Goods and/or Services.
Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including, but not limited to, any Services to be performed in relation to any Goods and which, for the avoidance of doubt, shall include any software services
Supply: the sale of any Goods and/or the provision of any Services by the Company to the Customer. For the avoidance of doubt, any Goods so sold, and/or Services so provided, (or to be so sold or provided, as applicable), are Supplied.
1.2 - A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 - Words in the singular include the plural and in the plural include the singular.
1.4 - A reference to one gender includes a reference to the other gender.
1.5 - Condition headings do not affect the interpretation of these Conditions.
1.6 - A reference to writing or written includes both faxes and email.

Application of Terms

1.7 - Subject to any variation under condition 1.9 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
1.8 - No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
1.9 - These Conditions apply to the Supply of any and all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
1.10 - Each order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to procure Goods and/or Services subject to these Conditions.
1.11 - No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.
1.12 - Without prejudice to the provisions of Condition 2.5, if the Customer wishes to change any order, (which, for the avoidance of doubt shall include, but shall not be limited to, any amendment, addition or substitution with respect to any Input Material and/or any specification), any such change is subject to acceptance by the Company and the Customer must pay any additional charges associated with fulfilling the changed order.
1.13 - The Customer shall ensure that the terms of its order and any Input Material and/or any applicable specification are complete and accurate and are submitted to the Company within a sufficient time period such as will enable the Company to fulfil the Company's obligations under the Contract.
1.14 - Any quotation is given on the basis that no Contract shall come into existence until the Company despatches a written acknowledgment of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.

Description

1.15 - The quantity and description of any Goods and/or Services shall be as set out in the Company's quotation or acknowledgement of order.
1.16 - All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract and this is not a sale by sample.
1.17 - If any Goods are to be manufactured, designed, programmed, built or configured and/or any process is to be applied to any Goods by the Company and/or any Services are to be performed by the Company in accordance with any Input Material and/or any specification submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any patent, copyright, design, trade mark or any other intellectual property right of any other person resulting from the Company's use of any Input Material and/or any specification so submitted.
1.18 - Subject to the provisions of Condition 8.1 (b), the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.

Delivery of Goods and Performance of Services

1.19 - Unless otherwise agreed in writing by the Company, delivery of any Goods shall take place at the Customer's place of business and performance of any Services shall take place at the Company's place of business. All carriage charges in relation to the delivery of any Goods, including, without limitation, all costs in relation to transport, insurance and unloading, shall be borne by the Customer.
1.20 - Any dates specified by the Company for delivery of the Goods and/or performance of the Services, as applicable, are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery and/or performance shall be within a reasonable time.
1.21 - Without prejudice to Condition 4.2, the Customer shall not be entitled to hold the Company to any project milestone and/or acceptance testing criteria unless the Company has expressly agreed to be so bound in the Company's written acknowledgment of order.
1.22 - Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services (even if caused by the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
1.23 - The Goods are at the risk of the Customer from the time of delivery.
1.24 - Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
  • the Goods; and
  • all other sums which are or which become due to the Company from the Customer on any account.
1.25 - The Customer's right to possession of the Goods shall terminate immediately if:
  • the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
  • the Customer suffers or allows any execution distress or diligence, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a secured lender to the Customer takes any steps to obtain possession of the secured property or otherwise enforce its security or the Customer ceases to trade; or
  • the Customer encumbers or in any way charges any of the Goods.
1.26 - If for any reason the Customer fails to accept delivery of any of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence) and the Goods shall be deemed to have been delivered.
1.27 - The Company shall not be liable for any non-delivery of the Goods (even if caused by the Company's negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
1.28 - Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

Customer's Obligations

1.29 - With respect to any Services which the Company is to perform for the Customer (including but not limited to any Services which the Company has agreed to perform at the Customer's premises pursuant to Condition 4.1), the Customer shall:
  • co-operate with the Company in all matters relating to the Services;
  • provide the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with such access to the Customer's premises, office accommodation, data and other facilities as may be required by the Company;
  • be responsible (at its own cost) for preparing and maintaining any relevant premises for the Supply of the Services;
  • inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises;
  • ensure that all of the Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
  • obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Company's Equipment, the use of Input Material and the use of the Customer's Equipment in relation to the Company's Equipment, in all cases before the date on which performance of the Services is to commence; and
  • keep and maintain the Company's Equipment in good condition, and shall not dispose of or use the Company's Equipment other than in accordance with the Company's written instructions or authorisation.
  • effect and maintain appropriate insurance in an adequate amount with respect to all possible risks which may arise in connection with the deployment of any person engaged by the Company to perform the Services at the Customer's place of business and shall, at the Company's request, provide such evidence of such insurance as the Company may reasonably require.
1.30 - If the Company's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
1.31 - The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
1.32 - The Customer shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Customer and/or any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the use of any Intellectual Property Rights by the Company in the Supply of any Goods and/or Services, or the Customer's use of any Goods and/or Services and/or any Intellectual Property Rights therein, or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
1.33 - The Customer shall not, without the prior written consent of the Company, whether acting on the Customer's own account, on behalf of, or with any other person (including any person which the Customer directs to act on its behalf) , at any time from the date of the Contract to the expiry of 12 months after the last date of Supply of the Services, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
1.34 - Any consent given by the Company in accordance with Condition 5.5 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company's employee, consultant or subcontractor.

Price

1.35 - Unless otherwise agreed by the Company in writing, the price for any Goods and/or Services shall be the price stated in the Company's written acknowledgment of order, (with any Services being provided on a fixed price basis), save that the Company reserves the right to increase the price for the Services should the Company's estimated time for completion of the Services be significantly exceeded.
1.36 - The price for the Goods and/or Services shall be exclusive of any value added tax. The price of any Goods shall additionally be exclusive of all costs and charges in relation to packaging, loading, unloading, carriage and insurance. The price of any Services shall additionally be exclusive of any and all travel, accommodation and meal costs, charges and expenses for those individuals engaged by the Company to perform the Services.

Payment

1.37 - The price for any Goods and/or Services shall be paid by the Customer to the Company, as follows:
7.1.1 - If the Company has agreed monthly credit terms with the Customer, the Company's invoices must be paid within 14 days of the date of the invoice; or
7.1.2 - If no credit terms have been agreed, then full payment must be made when the Customer's order is placed.
1.38 - Time for payment shall be of the essence.
1.39 - No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
1.40 - All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
1.41 - The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
1.42 - If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8 % above the base lending rate from time to time of The Co-operative Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 7.
1.43 - Without prejudice to Condition 7.6, any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 4.6 shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
7.7.1 - To suspend or cancel the further delivery of any Goods and/or the performance of any Services, including, without limitation, stopping the delivery of any Goods in transit;
7.7.2 - To withdraw or reduce any agreed monthly credit limit; and
7.7.3 - To treat the Contract as having been repudiated by the Customer.
1.44 - The Customer may not cancel any order for Goods and/or Services for which a written acknowledgment of order has been issued by the Company pursuant to Condition 2.5 and if the Customer cancels, or purports to cancel any such order (or the Contract or any part thereof), then the Company may, by notice in writing to the Customer, elect to treat the Contract as repudiated.
1.45 - For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 7.7 or 7.8, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.

Warranties

1.46 - The Company warrants that (subject to the other provisions of these Conditions):
  • on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
  • if the Customer has made it expressly known to the Company in the Customer's order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in the acknowledgment of order that it will supply Goods suitable for that purpose, then the Goods shall, on delivery, be reasonably fit for the purpose so stated; and
  • any Services will be performed with reasonable skill and care.
1.47 - The Company shall repair or, at the Company's option, replace any Goods which do not conform with the warranties in Condition 8.1 and/or shall re-perform any Services which are proved to the reasonable satisfaction of the Company to have not been performed with reasonable skill and care.
1.48 - Except as set out in Condition 9.1 below, the obligation set forth in Condition 8.2 is the Company's sole obligation and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of any Goods or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.

1.49 - The Company does not exclude its liability to the Customer:
9.1.1 - For breach of the Company's obligations under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
9.1.2 - For personal injury or death arising as a result of the Company's negligence;
9.1.3 - Under section 2(3) of the Consumer Protection Act 1987;
9.1.4 - For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
9.1.5 - For fraud or fraudulent misrepresentation.
1.50 - Except as provided in Conditions 8 and 9.1, the Company shall be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, or loss of contracts and like loss) howsoever caused.
1.51 - The Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions ) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.
1.52 - Save as set out in Condition 9.1, the Company's total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at the Company's option, refunding any monies already paid.

Confidential Information and Intellectual Property Rights

1.53 - The Customer and the Company agree that in the course of the Company providing Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information.  The Customer and the Company agree that each party will maintain the Confidential Information's confidentiality and not disseminate it to any third party without the disclosing party's prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party's possession through no fault of the receiving party.
1.54 - The Customer shall not use any Confidential Information for any purpose other than to perform its obligations under the Contract and without limitation shall not, without the Company's prior written consent, disclose that any Goods and/or Services are to be, are being, or have been Supplied by the Company, nor shall the Customer disclose the fact of the Company's involvement in any aspect of the Contract. The Company shall, however, subject to the provisions of this Condition 10, be free to disclose the Company's role and involvement in the Contract and in the Supply of any Goods and/or Services.
1.55 - Upon receipt by the Company of full payment of the price for any Customer Software, any and all rights (including but not limited to any Intellectual Property Rights), in that Customer Software shall be assigned to the Customer. For the avoidance of doubt, any assignment pursuant to this Condition 10.3 shall not prevent the Company from making any present or future use of any part or parts of the Customer Software source code, either individually or together or for any purpose, and the Customer grants the Company a royalty-free, irrevocable, perpetual, non-exclusive licence to make any and all use of the Customer Software source code together with any and all rights related thereto (including but not limited to any Intellectual Property Rights), provided that any such use by the Company shall not include use of the entire source code in the bespoke form developed by the Company specifically for the Customer.
1.56 - Each party acknowledges the other's Intellectual Property Rights in any Customer Software and, without limitation, in any of the Company's Equipment, the Customer's Equipment and in any Input Material, Output Material and in any Goods and/or Services provided pursuant to the Contract and agrees not to contest the other's ownership or use of any such Intellectual Property Rights, nor to attempt to acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor to register or attempt or permit to be registered any such Intellectual Property Rights or any licence or grant of rights therein.

Assignment/Subcontracting

1.57 - The Company may assign the Contract or any part of it to any person, firm or company.
1.58 - The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
1.59 - The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.

Force Majeure

The Company reserves the right to defer the date of delivery and/or performance, or to cancel the Contract or reduce the volume of the Goods and/or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

General

1.60 - Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
1.61 - If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
1.62 - Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
1.63 - Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
1.64 - The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
1.65 - The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

Communications

1.66 - All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent electronically via email.
  • (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
  • (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
1.67 - Communications shall be deemed to have been received:
  • if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
  • if delivered by hand, on the day of delivery; or
  • if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day; or
  • if sent by email, within one hour of sending.
Communications addressed to the Company shall be marked for the attention of Mr. Paul Massey.
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