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Terms of Sale

Amtec Computer Corporation Limited

1. Definitions and Interpretation

13. Consequences of Termination

2. Orders and Scope of the Services

14. Force Majeure

3. The Customer’s Responsibilities

15. Assignment and Sub-Contracting

4. Website/Software Development and Acceptance

16. Confidentiality and Publicity

5. Supply and Installation of Goods

17. Non-Solicitation

6. Charges and Payment

18. Waiver

7. Warranties and Indemnity

19. Severability

8. Limitation of Remedies and Liability

20. Amendments

9. Intellectual Property Rights

21. Third Party Rights

10. Performance and Maintenance

22. Notices

11. Data Protection

23. Entire Agreement

12. Term and Termination

24. Governing Law and Jurisdiction

1. Definitions and Interpretation

 1.1       In these Terms the following words and phrases shall, unless the context otherwise requires, have the following meanings:

Acceptance:

The acceptance or deemed acceptance of the Software by the Customer pursuant to clause 4;

Acceptance Tests:

The tests to be carried out on the Software by Amtec as referred to in clause 4;

Amtec:

Amtec Computer Corporation Limited, company number 02715785, whose registered office is at 229 West Street, Fareham, Hampshire PO16 0HZ;

Business Day:

Any day (other than a Saturday or Sunday) when banks are generally open for business in London;

Charges:

The charges in respect of the Goods and Services set out in Amtec’s quotation or standard price list at the date of Acceptance or invoice (as applicable) together with any charges arising from agreed variations thereto;

Customer:

Any person who accepts a quotation from Amtec or whose order is accepted by Amtec;

Customer Data:

Any data provided to Amtec by the Customer from time to time for incorporation in, or use in relation to, the Software, or inputted by the Customer or its employees, agents or contractors into any program containing the Software;

Goods:

The goods that Amtec is to supply;

Intellectual Property Rights:

All intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off;

Personal Data:

Shall have the meaning given in the Data Protection Act 1998;

Services:

The Software development, product supply and/or installation, support, maintenance and/or consultancy services (as applicable) to be provided by Amtec pursuant to these Terms;

Software:

The software (including any website) commissioned by the Customer (if applicable) and the underlying code;

Specification:

The specification for the Goods and/or the functionality of the Software set out in Amtec’s quotation or agreed in writing from time to time;

Terms:

These terms and conditions as amended from time to time in accordance with their terms;

Third Party Products:

Those third party software, hardware and other  products to be provided to the Customer as described in Amtec’s quotation and/or notified to the Customer from time to time.

1.2       The headings in these Terms do not affect their interpretation. Save where the context otherwise requires, references to clauses are to   clauses of these Terms.

1.3       Unless the context otherwise so requires:

1.3.1    References to Amtec and the Customer include their permitted successors and assigns;

1.3.2    References to statutory provisions include those statutory provisions as amended or re-enacted; and

1.3.3    References to any gender include all genders.

 

2. Orders and Scope of the Services

2.1       All Goods and Services are supplied subject to these Terms.

2.2       Subject to availability, Amtec shall provide the Goods and/or Services from time to time agreed with the Customer in writing.  No order submitted by the Customer shall be deemed to be accepted by Amtec unless and until confirmed by Amtec and in most cases shipment of your order will be deemed acceptance of your order.  All orders must be submitted on Amtec’s standard form.  The parties may agree to vary the Services in the same manner.

2.3       The Customer is responsible for ensuring the accuracy of the terms of any order (including any applicable specification).

2.4       No order which has been accepted by Amtec may be cancelled by the Customer except with the agreement in writing of Amtec and on terms that the Customer shall indemnify Amtec in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Amtec as a result of cancellation.  Without limitation any deposit shall be non refundable.

2.5       Amtec reserves the right to make without notice any minor modifications in the Goods, Specifications, designs or materials as Amtec thinks necessary or desirable.

3. The Customer’s Responsibilities

3.1      The Customer acknowledges that Amtec’s ability to provide the Goods and/or Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide).  Accordingly, the Customer shall provide Amtec with access to, and use of, all information, data and documentation reasonably required by Amtec for the performance by Amtec of its obligations under these Terms.

3.2       For the duration of these Terms, the Customer will permit designated employees and contractors of Amtec:

3.2.1    to access such of the Customer’s equipment and software as is necessary to enable Amtec to provide the Services; and

3.2.2    subject to such conditions as aforesaid, to enter the Customer’s offices during agreed hours for the purpose of performing the Services.

3.3       Where Amtec carries out work at the Customer’s premises the Customer must comply with any applicable laws and regulations.

3.4       The Customer shall appoint a project manager who shall:

3.4.1    provide professional and prompt liaison with Amtec; and

3.4.2    have the necessary expertise and authority to commit the Customer.

3.5       The Customer agrees to make a reasonable amount of relevant human resource available at its premises to assist Amtec at crucial times such as during the Acceptance Tests.

4. Website/Software Development and Acceptance

4.1       Once Amtec has completed design and development of the Software (and any further works agreed from time to time) in accordance with these Terms (or as otherwise agreed) Amtec shall run the Acceptance Tests as it sees fit.

4.2       The Acceptance Tests shall test compliance of the Software with the Specification.

4.3       Acceptance of the Software shall occur when the Software has passed the Acceptance Tests.  Amtec shall notify the Customer when the tests have been passed.

4.4       If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer or by one of the Customer’s sub-contractors or agents for which Amtec has no responsibility (“Non-Supplier Defects”), the Software shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect.  Amtec shall provide assistance reasonably requested by the Customer in remedying any Non-Supplier Defects by supplying additional services or products. If so requested, the Customer shall pay Amtec in full for all such additional services and products at Amtec's then current fees and prices.

4.5       Acceptance of the Software shall be deemed to have taken place upon the happening of any of the following events:

4.5.1    the Customer uses any part of the Software “live” (that is for any purposes other than for internal test purposes); or

4.5.2    the Customer unreasonably delays the start of relevant Acceptance Tests or any retest for a period of 7 (seven) working days from the date when Amtec is ready to commence running the Acceptance Tests or retests.

4.6       All times quoted for delivery or work are estimates only and shall not be of the essence.

5. Supply and Installation of Goods

5.1       Risk in the Goods shall pass to the Customer on delivery.

5.2       The Customer shall prepare the site for installation and provide all necessary facilities.  If Amtec is unable to install when planned due to the act or omission of the Customer, it may invoice the Customer for all additional time which may be incurred at its standard day rates and for all expenses incurred.

5.3       The Customer shall inspect the Goods on delivery or installation (as applicable) and unless the Customer notifies any defects within 7 days of such date shall be deemed to have accepted them.  After acceptance the Customer shall not be entitled to reject Goods which are not in accordance with the Terms.  In no event shall the Customer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Customer to reject.

5.4       Where Amtec is an accredited reseller, the Third Party Products will be supplied in accordance with the relevant licensor’s standard terms.  Where applicable, the one-off licence fee for such Third Party Products is included in the Charges payable pursuant to clause 6.

5.5       Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Customer until Amtec has received in cleared funds payment in full of the price of the Goods and all other items agreed to be sold by Amtec to the Customer for which payment is then due.

5.6       Until such time as the property in the Goods passes to the Customer, it shall:

5.6.1    hold them as Amtec's fiduciary agent and bailee, shall keep them separate from those of the Customer and third parties and properly stored, protected and insured and identified as Amtec's property but may use them in the ordinary course of its business;

5.6.2    it shall deliver up the Goods to Amtec on demand and, if the Customer fails to do so immediately, Amtec may enter any premises of the Customer or any third party where the Goods are stored and repossess them and charge the Customer for all costs and expenses associated with the repossession.

6. Charges and Payment

6.1       Amtec shall issue an invoice in respect of the Charges, and the Customer shall pay to Amtec the Charges set out in Amtec’s invoice within 30 (thirty) days of the date of delivery or Amtec’s invoice (whichever is the sooner).  Time of payment shall be of the essence.  Late payment shall result in withdrawal of credit and subsequent orders must be paid for on order

6.2       All Charges are exclusive of VAT.  Rates of tax and duties on the goods and services will be those applying at the time of delivery.

6.3        All quotations given by Amtec lapse after 30 days (unless otherwise stated) if Amtec does not withdraw them earlier.

6.4       The price for services is based on work carried out between 8am and 5pm, Monday to Friday.  Amtec may charge premium rates for out of hours work.

6.5       If the Customer fails to pay any amount payable by it under these Terms, Amtec shall be entitled but not obliged to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2% a year above the base rate for the time being of Barclays Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. Amtec reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6.6      The Customer does not have the right to withhold any retention money or to set off any money the Customer may claim from Amtec against anything the Customer may owe Amtec.

6.7       While the Customer owes money to Amtec, Amtec has a right to keep any property it may hold of the Customer’s until the Customer has paid Amtec in full (a lien).

6.8       Payment shall be applied to invoices in the order in which they were issued and to the Goods and Services in the order in which they are listed in the invoice(s).

7. Warranties and Indemnity

7.1       Each of the parties warrants to the other that it has full power and authority to enter into and perform these Terms.

7.2       Amtec shall perform the Services with reasonable care and skill.

7.3       Except as set out in clause 10.1, Amtec gives no warranty (and excludes any warranty, term or condition that would otherwise be implied), including without limitation as to the quality of the Goods or Software or their fitness for any purpose or the potential performance of the Software.  Amtec does not warrant that the operation of the Software will be uninterrupted or error free.

7.4       These Terms set out the full extent of Amtec’s obligations and liabilities in respect of the supply of the Goods and Services. All conditions, warranties or other terms concerning the Goods and/or Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby expressly excluded. 

7.5       The Customer agrees to fully indemnify Amtec from and against all actions, costs, claims, demands, expenses, liabilities, losses and proceedings (including, where relevant, fines, penalties, legal fees, fees of consultants or experts) whether direct or consequential (including, but without limitation, any economic loss or other loss of turnover, profits, business or goodwill), incurred by Amtec as a result of or in connection with the Customer Data, breach by the Customer of any term of these Terms or any relevant law, or the use of the Software or any website by the Customer’s employees, agents or contractors.

7.6       The Customer expressly acknowledges that the provisions of clauses 7, 8 and 10 satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that the Customer shall be stopped from claiming the contrary at any future date in the event of any dispute with Amtec concerning liability under these Terms.

8. Limitation of Remedies and Liability

8.1       Nothing in these Terms shall operate to exclude or limit Amtec’s liability for:

8.1.1    death or personal injury caused by its negligence;

8.1.2    any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

8.1.3    fraud; or

8.1.4    any other liability which cannot be excluded or limited under applicable law.

8.2       Subject to condition 8.1, Amtec shall not be liable to the Customer for any increased costs, expenses, loss of profits, loss of or corruption to data, loss of goodwill, business, contracts, revenues or anticipated savings or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of a claim made by a third party) even if such loss was reasonably foreseeable or Amtec had been advised of the possibility of the Customer incurring the same.

8.3       Subject to clause 8.1, Amtec’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these Terms or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the total Charges paid by the Customer to Amtec under these Terms in that calendar year.        

8.4       The Customer acknowledges that no representations were made prior to entering into these Terms.  The Customer agrees that, in entering into these Terms, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in these Terms.  The Customer shall have no remedy in respect of any representation (whether written or oral) made to it upon which it relied in entering into these Terms and Amtec shall have no liability otherwise than pursuant to the express terms of these Terms.

9. Intellectual Property Rights

9.1       All Intellectual Property Rights in the Goods and Software, but excluding the Customer Data, arising in connection with these Terms shall remain the property of Amtec or its licensors and Amtec hereby grants the Customer a non-transferable non-exclusive licence of such Intellectual Property Rights for the purposes of operating the Goods and/or Software in accordance with these Terms only.  On any breach of these Terms the licence shall immediately terminate.

9.2       The Customer shall fully indemnify Amtec against all damages, losses and expenses arising as a result of any action or claim that the Customer Data infringes Intellectual Property Rights of a third party.

9.3       The Customer shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or in part except as permitted by law; and/or to the extent that such action is legitimately required for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer where Amtec is not prepared to carry out such action at a reasonable fee.

9.4       Without prejudice to the right of the Customer or any third party to challenge the validity of any of Amtec’s Intellectual Property Rights, the Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with Amtec’s Intellectual Property Rights and shall not omit (or authorise any third party to omit) to do any act which could, if not done, invalidate or be inconsistent with any Amtec’s Intellectual Property Rights.

10. Performance and Maintenance

10.1     Unless otherwise stated by Amtec and subject to the terms of any warranty given to Amtec by the manufacturer of the Goods (details available on request), Amtec warrants that the Goods (excluding any Software) will perform substantially in accordance with the Specification for a period of 12 (twelve) months from delivery.  Subject to clause 10.2, if the Goods do not so perform, then Amtec shall for no additional charge ensure that the Goods substantially comply with the Specification or refund the charges paid in respect of the Goods.  The Client shall have no other remedy.

10.2     The above warranty does not apply in respect of any defect arising from fair wear and tear, wilful damage, negligence (including improper storage), improper use or maintenance, abnormal working conditions, failure to follow Amtec's instructions (whether oral or in writing), alteration or repair without Amtec's approval, Customer Data, any Third Party Products for which Amtec is not an accredited reseller, if any sum owing by the Customer to Amtec has not been paid, if the Customer moves the System, use of the Goods in combination with any equipment or software not provided by Amtec or any fault in any such equipment or software, any act or omission of any person for which Amtec is not responsible and any breach of the Customer’s obligations under these Terms.

10.3     Unless otherwise stated by Amtec, the Charges exclude maintenance, and the hosting of any website by Amtec.  Following Acceptance or delivery (as applicable) Amtec may provide maintenance/support services on the terms of the maintenance agreement entered into by the parties on or around the date of these Terms.

11. Data Protection

Amtec warrants that to the extent it processes any Personal Data on behalf of the Customer:

11.1     it shall act only on instructions from the Customer; and

11.2     it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

12. Terms and Termination

12.1     These Terms may be terminated by either party on 30 days’ notice.

12.2     Each party shall have the right, without prejudice to its other rights or remedies, to terminate these Terms immediately by notice to the other if the other:

12.2.1  is in material or persistent breach of any of its or its obligations under these Terms and either that breach is incapable of remedy or it shall have failed to remedy that breach within 30 days after receiving written notice requiring it to do so; or

12.2.2  is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); or becomes insolvent; or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administra­tive or other receiver, manager, trustee, liquidator, administrator or similar officer  appointed over all or any substantial part of its assets; or enters into or proposes any composition or arrangement with its creditors generally; or is subject to any analogous event or proceeding in any applicable jurisdiction.

12.3     Amtec shall have the right, without prejudice to its other rights or remedies, to termi­nate these Terms immediately by notice to the Customer, if the Customer:

12.3.1  sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or

12.3.2  disputes the ownership or validity of Amtec’s Intellectual Property Rights.

13. Consequences of Termination

13.1     On termination of these Terms:

13.1.1  the Customer’s right to receive the Goods and/or Services shall cease automatically;

13.1.2  each party shall immediately return to the other all property and materials containing Confidential Information belonging to the other; and

13.1.3  all amounts due from the Customer under these Terms shall be paid immediately by the Customer.

13.2     Any termination of these Terms (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of these Terms which is expressly or by implication intended to come into force or continue in force on or after that termination.

14. Force Majeure

Amtec shall not be liable to the Customer for any delay or non-performance of its obligations under these Terms arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion.

15. Assignment and Sub-Contracting

15.1     The Customer may not assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of Amtec.

15.2     Amtec may sub-contract any of its obligations under these Terms on notice to the Customer provided that it shall remain liable to the Customer for the performance of all such obligations.

16. Confidentiality and Publicity

16.1     The Customer agrees and undertakes that during the term of these Terms and thereafter it will keep confidential all, and will not use for its own purposes nor without the prior written consent of Amtec disclose to any third party any, information of a confiden­tial nature (including trade secrets and information of commercial value and the technical details of the code in the Website or Software or any of it, and the content of the Training) which may become known to the Customer in the course of the Services (“Confidential Information”) unless such information is public knowledge or already known to the Customer at the time of disclosure or subsequently becomes public knowledge other than by breach of these Terms or subsequently comes lawfully into the possession of the Customer from a third party.

16.2     For the avoidance of doubt, nothing in these Terms shall prevent Amtec from referring in its literature, website and advertising and marketing material or elsewhere to the fact that Amtec supplied the Goods and/or designed and developed the Software, and including details.

16.3     The provisions of this clause 16 shall remain in full force and effect notwithstanding any termination of these Terms.

17. Non-Solicitation

17.1     The Customer shall not either on his own account or in conjunction with or on behalf of any person, firm or company and whether directly or indirectly invite solicit or induce any officer, employee, agent or contractor of Amtec involved with any of the Services to terminate their employment or engagement with Amtec, or attempt to do so.

17.2     The restriction in clause 17.1 shall continue in force during the continuance of the Services, supply of Goods, or licence of any intellectual property rights under these Terms (whichever is the longer) and for a period of six months thereafter.

17.3     The Customer:

17.3.1  agrees that its obligations arising pursuant to clause 17.1 and 17.2 are separate and severable; and

17.3.2  acknowledges that, while such obligations are considered by the Customer to be reasonable in all the circumstances as at the date of the contract under these Terms, they may by their nature become invalid because of changing circumstances or other unforeseen reasons; and

17.3.3  agrees that if any of the obligations arising pursuant to clauses 17.1 and/or 17.2 shall be judged to be void or ineffective for whatever reason but would be judged to be valid and effective if part of the wording of the relevant undertaking were amended to reduce the extent of the obligation, the relevant obligation shall apply with such modifications as may be necessary to make it valid and effective.

17.4     The obligations under this clause 17 shall survive the expiry or the termination of these Terms for whatever reason.

18. Waiver

18.1     By placing an order with Amtec, the Customer is expressly waiving any printed terms the Customer may have to the extent that they are inconsistent with the Terms.

18.2     No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.

19. Severability

If any provision of these Terms is judged to be illegal or unenforceable, the contin­uation in full force and effect of the remainder of the provisions will not be prejudiced.

20. Amendments

Any amendment, waiver or variation of these Terms shall not be binding on the parties unless set out in writing, expressed to amend these Terms and signed by or on behalf of each of the parties.

21. Third Party Rights

No term of these Terms is intended to confer a benefit on, or to be enforceable by, any person who is not a party to these Terms.

22. Notices

Notices (regarding, for example, termination of or claims under these Terms) shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in these Terms.  Notices may be sent by first-class mail or facsimile or electronic mail transmission provided that facsimile and electronic mail transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above. Unless stated otherwise, the provisions of this clause 22 shall not apply to day-to-day communications relating to the performance of the Services.

23. Entire Agreement

23.1     These Terms and the documents annexed hereto or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

23.2     All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between Amtec and the Customer should not rely on them in entering into any contract with Amtec.  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 Amtec shall be subject to correction without any liability on the part of Amtec.

23.3     Amtec's employees or agents are not authorised to make any representations concerning the Goods and/or Software unless confirmed by Amtec in writing.  In entering into this agreement the Customer acknowledges that it does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind this agreement for any such representations which are not so confirmed (unless such representations were fraudulently made).

23.4     Any advice or recommendation given by Amtec or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods and/or Software which is not confirmed in writing by Amtec is followed or acted upon entirely at the Customer's own risk and, accordingly, Amtec shall not be liable for any such advice or recommendation which is not so confirmed.

23.5     Nothing in these Terms affects or limits Amtec’s liability for fraudulent misrepresentation.

24. Governing Law and Jurisdiction

These Terms shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.

August 2005

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