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Pulse Power and Measurement Ltd |
Pulse Power and Measurement INC, dba ViaLite Communications
Pulse Power and Measurement Ltd
Terms and Conditions of Supply by Pulse Power and Measurement Ltd with registered number 2963819 (the Company) to the person, firm or company who purchase goods and/or services from the Company (the Customer)
1. The following definitions and rules of interpretation apply in these Conditions:
Conditions: these terms and conditions as amended from time to time by the Company.
Contract: the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these conditions.
Deliverables: the deliverables set out in any Order and produced by the Company for the Customer which may include reports and other materials developed or provided by the Company in the performance of the Services.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control including without limitation , e.g. (without limitation) acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, armed conflict, imposition of sanctions or breaking off of diplomatic relations; any instruction (whether enforceable or not) of any British or Foreign Government Department or Agency; court order; mechanical breakdown; accident; civil unrest; labour dispute, strikes or other industrial action; shortages of fuel, power, labour or raw materials or inability to obtain export/import permission.
Goods: the goods (including Software) or any part of them set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.
Order: the Customer’s order for the supply of Goods and/or Services as set out in the in the Customer’s purchase order, confirmation of order or specification, acceptance of the Company’s quotation, as the case may be
Quotation: the description or specification for the Goods and Services to be supplied to the Customer by the Company.
Services: the services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Company’s Quotation;
Software: the software, computer programs and operating systems together with any Maintenance Releases pre-loaded on applicable Goods acquired by the Customer.
2. These Conditions shall: (i) apply to and be incorporated in the Order and the Company's acceptance of it (in accordance with condition 3); (ii) form the basis of the Contract; and (iii) prevail over any inconsistent terms or conditions contained in or referred to in the Order, the Customer’s confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Company unless in writing and signed by a duly authorised representative of the Company.
3. Any Quotation given by the Company shall not constitute an offer, is valid for a period of 30 days only and the Company may withdraw it at any time by notice to the Customer.
4. Each Order by the Customer shall be deemed to be an offer by the Customer subject to these Conditions. The Customer shall ensure that its Order is complete and accurate. The Order shall only be deemed to be accepted when the Company issues a written order acknowledgement to the Customer, or the Company delivers the goods or performs the services to the Customer (whichever occurs earlier) at which point and on which date the Contract shall come into existence.
5. No Order which has been acknowledged by the Company may be cancelled by the Customer, except with the agreement in writing of the Company and provided that the Customer indemnifies the Company in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
6. The Company’s price list, catalogues and other advertising material are illustrative only and shall not form part of any Contract between the Company and the Customer.The Company's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the goods and/or services.
7. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. The Company reserves the right (but does not assume the obligation) to make any changes in the specification of the Goods which are required to conform with any applicable legislation or, where the Goods are to be supplied to the Customer's specification, which do not materially affect their quality or performance. Where the Company is not the manufacturer of the Goods, the Company shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Company.
8. A sample submitted by the Company shall be solely for the purpose of giving the Customer an indication of the type or class of goods or services to be supplied and shall not cause the Contract to be a sale by sample.
9. Goods sold by the Company may contain some reprocessed parts which are tested to ensure compliance with the product specification.
10. Unless otherwise stated, deliveries shall be FCA (PPM UK) (incoterms 2010)”. The Customer accepts responsibility for all losses occurring thereafter. Where the Customer reasonably requests delayed delivery, the Company may increase its price to reflect increases in wages or materials and the Customer shall be responsible for the cost of any storage charges. No failure by the Company to make any delivery or part delivery in the quantum of the Contract shall entitle the Customer to reject the balance of the Goods due under the Contract.
11. The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
12. In consideration of the provision of Goods and Services the Customer shall pay to the Company the charges as set out on the Quotation and associated invoice. The due date for payment of the charges is the date of Order unless agreed otherwise. If the Company offers Customer credit terms payment shall be made to the Company within 30 days (or as specified in the credit agreement between Company and Customer) of the date of an invoice; any failure to observe these terms shall render all monies owing to the Company payable forthwith and the Company may suspend any further deliveries under any Contract with the Customer. The Company shall also be entitled to charge interest on outstanding sums at 8% above current Bank of England base rate until the date of payment whether before or after judgment.
13. Time of delivery of Goods or performance of Services shall not be of the essence and the Company shall not be liable for direct or indirect damage attributable to any delay in delivery however caused unless negligence is proven against the Company.
14. The Company may suspend or delay deliveries or performance and shall not be liable for any delay or failure in the performance of the Contract for so long as and to the extent that any such delay or failure results from a Force Majeure Event or otherwise where performance of the Contract is hindered, delayed or rendered commercially impracticable, directly or indirectly through circumstances beyond the Company’s reasonable control. The Company may at its own discretion refund any monies paid to it to the extent that goods have not been delivered or services have not been rendered. In such circumstances the Company will not be under any further liability.
15. If the Company manufactures the Goods, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Company against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional 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 third party Intellectual Property Rights which results from the Company's use of the Customer's specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Company.
16. The Company shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Company.
17. Furthermore, the Customer acknowledges and agrees that all Intellectual Property Rights in and relating to the Goods or Services shall remain the exclusive property of the Company, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
18. In the event the Goods or Services include licensing of software: (a) the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals; (b) nothing contained in these Conditions shall be construed as an assignment of any Intellectual Property Rights in the software or user manuals; and (c) the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the software and user manuals (if any), and shall comply with all licence agreements, terms of use and registration requirements relating to them.
19. Risk of damage to or loss of the Goods shall pass to the Customer at:
a. In the case of Goods to be delivered at the Company's premises, the time when the Company notifies the Customer that the goods are available for collection; or
b. In the case of goods to be delivered otherwise than at the Company's premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the goods, the time when the Company has tendered delivery of the goods.
20. Notwithstanding the risk passing and without prejudice to the provisions of clause 19 above, legal and beneficial title of the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and any other Goods supplied by the Company and the Customer has repaid all moneys owed to the Company, regardless of how such indebtedness arose.
a. Until payment has been made to the Company in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Company and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Company and shall insure the Goods against all reasonable risks.
b. In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Company) shall be held by the Customer on behalf of the Company. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Company’s behalf are identified as such.
c. If the Goods are manufactured into another form or are used in the process of manufacturing other goods, the Company shall acquire legal and beneficial title to the resulting goods, or a proportion of the title equal to the contribution made to the resulting goods by the Goods.
d. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all money owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
e. The Company reserves the right to repossess any Goods in which the Company retains title without notice. The Customer irrevocably authorises the Company to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Company retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause
f. The Customer’s right to possession of the goods in which the Company maintains legal and beneficial title shall terminate and the Company may terminate the Contract forthwith by written notice but shall be paid for any work carried out prior to such termination if; (i) the Customer commits or permits any material breach of its obligations under these conditions, (ii) the Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors, (iii) the Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors, (iv) the Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or 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.
21. The Customer shall maintain insurance against loss or damage of the Goods to their full replacement value and hold the proceeds of such insurance upon trust for the Company. The Company reserves the right to insure the Goods in the joint names of the parties but at the Customer’s expense against loss or damage to their full replacement value but shall notify the Customer before doing so.
22. Partial deliveries shall be deemed to be sold under a separate contract. Unless otherwise agreed part delivery shall not entitle the Customer to reject the balance of the Goods. The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
23. The following provisions set out the entire liability of the Company (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:(a) any breach of the Contract howsoever arising; and (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
23.1 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
23.2 Nothing in these conditions excludes or limits the liability of the parties for: (a) death or personal injury caused by that party's negligence; (b) fraud or fraudulent misrepresentation or (c) the Customer’s payment obligations under the Contract.
23.3 Subject to conditions 23.1 and 23.2:
(a) the Company shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of profits; or(ii) loss of sales or business; or(iii) depletion of goodwill or similar losses; or(iv) loss of anticipated savings; or(v) loss of goods; or(vi) loss of agreement or contracts; or(vii) loss of use; or(viii) loss or corruption of data or information; or(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company's total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be the lower of a) replacement of the affected Goods or re-performance of the affected Services or b) £100,000 (one hundred thousand pounds).
(c ) to the extent that the Company’s performance of its obligations under the Contract is prevented or delayed
(d) this clause 23 shall survive termination of the Contract.
24. In the event of any claim relating to the Goods, the Customer shall notify the Company in writing of the alleged defect asking for RMA number to return Goods. The Company shall quote an evaluation fee and Customer places a purchase order for evaluation fee. Following the completion of the evaluation, the Company may either (i) offer a warranty repair (in which case the purchase order shall be cancelled and the repaired Goods returned to the Customer free of charge), or (ii) offer a non-warranty repair (in which case the Company informs the Customer of the applicable charges and asks for an accordingly modified purchase order). The repair is completed and the Company invoices the Customer accordingly.
25. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company or its agents, and any other confidential information concerning the Company's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer. All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Customer shall at all times be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation. The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or adapt the goods or services in whole or in part and may not use any information provided by the Supplier or obtained by the Customer to create any goods or services whose expression and design is substantially similar to that of the Company’s goods nor use such information in any manner which would be restricted by any copyright subsisting in it. This condition shall survive termination of the Contract, however arising. This confidentiality undertaking shall not apply to information which is in the public domain other than by reason of the Customer's default.
26. The Customer shall not infringe any of the Company’s Intellectual Property Rights and shall notify the Company upon becoming aware of any infringement. The Company shall indemnify the Customer against any award and associated costs fees and expenses incurred by the Customer where a third party claim is made against the Customer in respect of Intellectual Property Rights infringement provided that the Customer allows the Company to conduct the defence of the claim and accepts all decisions made by the Company in doing so; notifies the Company within 7 (seven) days of receiving any such claim; does not compromise any such claim and does not incur any costs or expenses without the Company’s prior written approval. This indemnity shall not cover any modification or alterations to the goods or services or where the goods are used in combination with other items or where the goods were manufactured or services performed in accordance with detailed instructions, which did not originate from the Company.
27. This clause is applicable where any goods are exported from, imported into or otherwise transferred to or from a European Union Member Statement (“Member State”) and the Waste Electrical and Electronic Equipment Directive (2002/96/EC) including any amendments and re-enactments thereof and all applicable Member States implementing regulations and laws (“WEEE Directive”) is in force. The Customer agrees that the collection, treatment, recovery, reporting and environmentally sound disposal of the goods shall be carried out in accordance with the provisions of the WEEE Directive and that all the costs and expenses of this shall be paid by the customer. The customer further agrees to notify the Company of such disposal including the serial numbers of the items so disposed of and such additional information as the Company may reasonably request and to indemnify and keep indemnified the Company and its suppliers against any claims arising out of infringement or breach of the WEEE Directive and/or this section.
28. Unless within ten calendar days from date of receipt (or such longer period as agreed in writing by the Company’s authorised representative) the Company is notified in writing to the contrary, Goods delivered and Services rendered shall be deemed to have been accepted by the Customer.
29. Whilst the Company makes every effort to ensure all prices and descriptions quoted by it are precise and accurate, on occasions where an error may occur, the Company is entitled to rescind any contract or order, notwithstanding that it may have already accepted the Customer’s order. The Company’s liability will then be limited to the return of any money the Customer has paid relating to that order.
30. If the Goods and/or Services ordered include PLECS Software then PLECS Licence Agreement applies, a copy is available from the Company upon request. If the Goods and/or Services ordered include the ViaLite Systems Designer Service then the PPM ViaLite Systems Designer Service Acceptable Usage Policy and the PPM ViaLite Systems Designer Service Agreement apply, a copy of both are available from the Company upon request.
31. If the Company refers to a Software licence in the acknowledgment of order, the price of the Goods includes the licence fee for the Customer's right to use the Software.
32. If the Customer is provided with any operating system software licence in respect of the Software, the Customer shall sign and return it to the Company within seven days of installation of the Software, unless the licence has been supplied on a "shrink-wrap" or "click-wrap" basis.
33. If no software licence has been provided to the Customer regarding provided Software, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions: (i) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the goods), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Company's prior written consent (ii) the Customer shall not use the Software on any equipment other than the relevant Goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides (iii) such licence shall be terminable by either party on 28 days' written notice, provided that the Company terminates only if the continued use or possession of the Software by the Customer infringes the developer's or a third party's rights, or the Company is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract including payment (iv) on or before the expiry of this licence, the Customer shall return to the Company all copies of the Software in its possession.
34. The Company reserves the right to amend any services specification in the Quotation where necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
35. The Customer shall co-operate with the Company in all matters relating to he Services and provide the Company, its employees, agents and subcontractors with timely access to the Customer’s premises, office accommodation and other facilities and such information and materials as reasonably required by the Company to provide the Services.
36. The Company may terminate the Contract immediately upon written notice in the event the Customer fails to pay any amount due under the Contract on the due date for payment.
37. The Company shall not be liable for any losses incurred by the Customer as a result of using draft Deliverables as finished work. The Company shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding any customer materials contained within them. The Company grants to the Customer a non-exclusive, royalty free, non-transferable perpetual licence to use, copy and modify the Deliverables for the purposes of receiving and using the Deliverables in its business.
38. English law shall apply to these conditions and the Contract, which is subject to the non-exclusive jurisdiction of the English Courts.
39. These conditions constitute the entire agreement between the parties and supersede and extinguish all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to their subject matter. The Customer acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that the Company’s only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.
40. The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract. The Company may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
41. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
42. Nothing in these conditions is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).A person who is not a party to this agreement shall not have any rights under or in connection with it.
43. If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these conditions shall not be affected. If any invalid, unenforceable or illegal provision of these conditions would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
44. A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
Pulse Power and Measurement Inc
ViaLite Communications (“Company”) Purchase Order Terms and Conditions for purchasers of goods or services (“Customer”)
1. These terms and conditions shall: (i) apply to and be incorporated into the Customer's order upon the Company's acceptance of the Customer’s order; (ii) form the contract (“Contract”); and (iii) prevail over any inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Company unless such change is in writing and signed by a duly authorized representative of the Company.
2. Any price quote is valid for a period of 30 days only and the Company may withdraw it at any time by written notice to the Customer.
3. Each order or acceptance of a price quote for goods or services by the Customer shall be deemed to be an offer by the Customer subject to this Contract. The Customer shall ensure that its order is complete and accurate. A binding contract shall not come into existence between the Company and the Customer unless and until the Company issues a written order acknowledgement to the Customer, or the Company delivers the goods or performs the services to the Customer (whichever occurs earlier).
4. No order which has been acknowledged by the Company may be cancelled by the Customer, except with the agreement in writing of the Company and provided that the Customer indemnifies the Company in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labor and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
5. The Company’s price list, catalogs and other advertising material shall not form part of any Contract between the Company and the Customer. The Company's employees, contractors and agents are not authorized to make any representations or contractually binding statements concerning the goods and/or services.
6. Any typographical, clerical or other error or omission in any sales literature, price quote, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. The Company reserves the right (but does not assume the obligation) to make any changes in the specification of the goods which are required to conform with any applicable legislation or, where the goods are to be supplied to the Customer's specification, which do not materially affect their quality or performance. Where the Company is not the manufacturer of the goods, the Company shall use commercially reasonable efforts to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Company.
7. A sample submitted by the Company shall be solely for the purpose of giving the Customer an indication of the type or class of goods or services to be supplied and shall not cause the Contract to be a sale by sample.
8. Goods sold by the Company may contain some reprocessed parts which are tested to ensure compliance with the product specification.
9. Unless otherwise stated, deliveries shall be FOB shipping point. The Customer accepts responsibility for all losses occurring thereafter. Where the Customer reasonably requests delayed delivery, the Company may increase its price to reflect increases in wages or materials and the Customer shall be responsible for the cost of any storage charges. No failure by the Company to make any delivery or partial delivery shall entitle the Customer to reject the balance of the order.
10. The Company reserves the right, by giving written notice to the Customer at any time before delivery, to increase the price of the goods or services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the goods or services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
11. If the Company offers Customer credit terms payment shall be made to the Company within 30 days (or as specified in any credit agreement between Company and Customer) of the date of an invoice; any failure to observe these terms shall render all monies owing to the Company to be immediately due and payable and the Company may suspend any further deliveries under any contract with the Customer. The Company shall also be entitled to charge interest on outstanding sums at the highest rate permitted under applicable law.
12. Time of delivery of goods or performance of services shall not be of the essence and the Company shall not be liable for direct or indirect damage attributable to any delay in delivery however caused unless negligence is proven against the Company.
13. The Company may suspend or delay deliveries or performance where performance of the Contract is hindered, delayed or rendered commercially impracticable, directly or indirectly through circumstances beyond the Company’s reasonable control, e.g. (without limitation)accidents, strikes, labor disputes or shortages, civil disturbances, plant shutdown, devaluation or revaluation of currency, equipment failure, war, warlike operations, invasion, rebellion, hostilities, military or usurped power, sabotage, voluntary or involuntary compliance with governmental regulations or controls, fire, bad weather, flood, explosion or other casualty, inability to obtain any material or services, or through acts of God. The Company may at its own discretion refund any monies paid to it to the extent that goods have not been delivered or services have not been rendered. In such circumstances the Company will not be under any further liability.
14. If the Company manufactures the goods, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Company against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional 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 third party Intellectual Property Rights which results from the Company's use of the Customer's specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Company.
15. The Company shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Company.
16. Furthermore, the Customer acknowledges and agrees that all intellectual property rights in and relating to the goods or services shall remain the exclusive property of the Company, and the Customer shall not at any time make any unauthorized use of such intellectual property rights, nor authorize or permit any of its agents or contractors or any other person to do so.
17. In the event the goods or services include licensing of software: (a) the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals; (b) nothing contained in this Contract shall be construed as an assignment of any intellectual property rights in the software or user manuals; and (c) the Customer shall be subject to the rights and restrictions imposed by the owner of the intellectual property rights in the software and user manuals (if any), and shall comply with all licence agreements, terms of use and registration requirements relating to them.
18. Risk of damage to or loss of the goods shall pass to the Customer at:
a. In the case of goods to be delivered at the Company's premises, the time when the Company notifies the Customer that the goods are available for collection; or
b. In the case of goods to be delivered otherwise than at the Company's premises, the time when the Company has tendered delivery of the goods to the shipper.
19. Notwithstanding the risk passing and without prejudice to Section 17 above, legal and beneficial title of the goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the goods and any other goods supplied by the Company and the Customer has repaid all moneys owed to the Company, regardless of how such indebtedness arose.
F136b -ViaLite Communications Purchase Order Terms and Conditions - Iss 6 - CR4931
a. Until payment has been made to the Company in accordance with this Contract and title in the goods has passed to the Customer, the Customer shall be in possession of the goods as bailee for the Company and the Customer shall store the goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Company and shall insure the goods against all reasonable risks.
b. In the event that the Customer sells or transfers the goods to a third party before legal and beneficial title has passed to Customer under this Contract, the proceeds of the sub-sale or transfer (or such proportion as is due to the Company) shall be held by the Customer on behalf of the Company. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Company’s behalf are identified as such.
c. If the goods are manufactured into another form or are used in the process of manufacturing other goods, the Company shall acquire legal and beneficial title to the resulting goods, or a proportion of the title equal to the contribution made to the resulting goods by the goods.
d. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Company, but if the Customer does so all money owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
e. The Company reserves the right to repossess any goods in which the Company retains title without notice. The Customer irrevocably authorizes the Company to enter the Customer’s premises during normal business hours for the purpose of repossessing the goods in which the Company retains title and inspecting the goods to ensure compliance with the storage and identification requirements of sub-clause
f. The Customer’s right to possession of the goods in which the Company maintains legal and beneficial title shall terminate if; (i) the Customer commits or permits any material breach of its obligations under this Contract, (ii) in the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency by or against Customer, including any proceeding under the United States bankruptcy laws , or (iii) in the event of the appointment, with or without Customer’s consent, of a receiver or an assignee for the benefit of creditors.
20. The Customer shall maintain insurance against loss or damage of the goods to their full replacement value and hold the proceeds of such insurance in trust for the Company. The Company reserves the right to insure the goods in the joint names of the parties but at the Customers expense against loss or damage to their full replacement value but shall notify the customer before doing so.
21. Partial deliveries shall be deemed to be sold under a separate contract. Unless otherwise agreed part delivery shall not entitle the Customer to reject the balance of the order. The Company may deliver the goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each installment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an installment shall entitle the Customer to repudiate or cancel any other Contract or installment.
22. In the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency by or against Customer, including any proceeding under the United States bankruptcy laws or in the event of the appointment, with or without Customer’s consent, of a receiver or an assignee for the benefit of creditors, the Company may terminate the Contract forthwith by written notice but shall be paid for any work carried out prior to such termination.
23. The following provisions set out the entire liability of the Company (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:(a) any breach of the Contract however arising; and (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
23.1 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
23.2 Nothing in this Contract excludes or limits the liability of the parties for: (a) death or personal injury caused by that party's negligence; or
(b) fraud or fraudulent misrepresentation.
23.3 Subject to Sections 23.1 and 23.2:
(a) the Company shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of profits; or(ii) loss of business; or(iii) depletion of goodwill or similar losses; or(iv) loss of anticipated savings; or(v) loss of goods; or(vi) loss of contract; or(vii) loss of use; or(viii) loss or corruption of data or information; or(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company's total liability in contract, tort (including without limitation negligence and breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be, at the election of the Company, a) replacement of the goods or re-performance of services or b) the lesser of the actual cost of goods or
$100,000.00 (one hundred thousand dollars).
24. In the event of any claim within the goods or services, the Customer shall notify the Company in writing of the alleged defect asking for return authorization number to return goods. The Company shall quote an evaluation fee and Customer places a purchase order for evaluation fee. Following the completion of the evaluation, the Company either (i) offers a warranty repair (in which case the purchase order shall be cancelled and the repaired goods returned to the Customer free of charge), or (ii) offers a non-warranty repair (in which case the Company informs the Customer of the applicable charges and asks for an accordingly modified purchase order). The repair is completed and the Company invoices the Customer accordingly.
25. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Company or its agents, and any other confidential information concerning the Company's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer. All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Customer shall at all times be and remain the exclusive property of the Company, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorization. The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or adapt the goods or services in whole or in part and may not use any information provided by the Supplier or obtained by the Customer to create any goods or services whose expression and design is substantially similar to that of the Company’s goods nor use such information in any manner which would be restricted by any copyright subsisting in it. This Section 25 shall survive termination of the Contract, however arising. This confidentiality undertaking shall not apply to information which is in the public domain other than by reason of the Customer's default.
26. The Customer shall not infringe any of the Company’s intellectual property rights and shall notify the Company upon becoming aware of any infringement. The Company shall indemnify the Customer against any award and associated costs fees and expenses incurred by the Customer where a third party claim is made against the Customer in respect of patent, copyright or trademark or other intellectual property rights infringement provided that the Customer allows the Company to conduct the defense of the claim and accepts all decisions made by the Company in doing so; notifies the Company within 7 (seven) days of receiving any such claim; does not compromise any such claim and does not incur any costs or expenses without the Company’s prior written approval. This indemnity shall not cover any modification or alterations to the goods or services or where the goods are used in combination with other items or where the goods were manufactured or services performed in accordance with detailed instructions, which did not originate from the Company.
27. The Customer agrees that the collection, treatment, recovery, reporting and environmentally sound disposal of the goods, if applicable, shall be carried out in accordance with applicable law and that all the costs and expenses of this shall be paid by the customer. The customer further agrees to notify the Company of such disposal including the serial numbers of the items so disposed of and such additional information as the Company may reasonably request and to indemnify and keep indemnified the Company and its suppliers against any claims arising out of infringement or breach sectional applicable rules and regulations related to the disposal of hazardous waste, including e-waste.
28. Unless within ten calendar days from date of receipt (or such longer period as agreed in writing by the Company’s authorized representative) the Company is notified in writing to the contrary, goods delivered and services rendered shall be deemed to have been accepted by the Customer.
29. While the Company makes every effort to ensure all prices and descriptions quoted by it are precise and accurate, on occasions where an error may occur, the Company is entitled to rescind any contract or order, notwithstanding that it may have already accepted the Customer’s order. The Company’s liability will then be limited to the return of any money the Customer has paid relating to that order.
30. If the goods and/or services ordered include the ViaLite Systems Designer Service then the PPM ViaLite Systems Designer Service Acceptable Usage Policy and the PPM ViaLite Systems Designer Service Agreement apply, a copy of both are available from the Company upon request.
31. If the Company refers to a software licence in the acknowledgment of order, the price of the goods includes the licence fee for the Customer's right to use the software.
32. If the Customer is provided with any operating system software licence in respect of the software, the Customer shall sign and return it to the Company within seven days of installation of the software, unless the licence has been supplied on a "shrink-wrap" or "click-wrap" basis.
33. If no software licence has been provided to the Customer regarding provided software, the Customer is hereby granted a limited, non-exclusive, non- transferable licence to use the software on the following conditions: (i) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement) or for normal operation of the goods), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Company's prior written consent; (ii) the Customer shall not use the software on any equipment other than the goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the software on the medium on which it resides; (iii) such licence shall be terminable by either party on 28 days' written notice, provided that the Company terminates only if the continued use or possession of the Software by the Customer infringes the developer's or a third party's rights, or the Company is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; or (iv) on or before the expiry of this licence, the Customer shall return to the Company all copies of the software in its possession.
34. Any questions concerning the validity, interpretation or performance of any purchase order shall be governed by the laws of the State of Florida, and the venue for any litigation arising hereunder shall be exclusively in Manatee County, Florida and the federal court whose jurisdiction includes Manatee County, Florida. The Customer hereby consents to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available to them. The prevailing party in any action will be entitled to receive from the non-prevailing party all of those costs it incurred including, but not limited to, the reasonable fees and costs of its attorneys, paralegals and consultants incurred as a result of such enforcement action and all appeals thereof.
35. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to their subject matter. The Customer acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that the Company’s only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud.
36. The Customer shall not, without the Company’s prior written consent, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract. The Company may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
37. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
38. Nothing in this Contract is intended to, or shall operate to, create a partnership between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).A person who is not a party to this Contract shall not have any rights under or in connection with it.
39. If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected. If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
40. A waiver of any right or remedy under this Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall preclude or restrict the further exercise of any such right or remedy.
