Direct Insight Terms of Business

DIRECT INSIGHT LIMITED – TERMS OF BUSINESS
1. Orders for Goods, Software and Services
1.1. We supply our customers (referred to in the terms as “you”) with a range of goods,
software products and related services, such as prototype design. Some goods have both
hardware and software elements. In these terms of business references to “goods” means
the hardware component of goods, “software” means software products and the software
element of goods, and “services” means any of our services provided on an annual basis
or otherwise. Any additional terms relating to bespoke services will be set out in our
quotation/proposal document (referred to as a “Proposal” and which shall refer to or set
out any agreed specification / statement of work regarding the bespoke services) and/or
any separate written supply and support agreement, which shall take precedence over
these terms to the extent of any conflict. The details of our specific supply to you are set
out in our order documents. Orders for multi-drop contracts are accepted in accordance
with these terms, the schedule, the order documents and our policy on multi-drop
contracts, which we will provide to you prior to acceptance of your order. The terms of
our policy on multi-drop contracts will take precedence over these terms to the extent of
any conflict. Any terms set out in the order documents specific to your order will take
precedence over the policy on multi-drop contracts, and over these terms, to the extent of
any conflict.
1.2. All orders are placed under these terms of business (as supplemented in accordance with
paragraph 1.1 above) (together, the “Contract”) and exclude any other terms of business
that you seek to impose even though they may be submitted in a later document and/or
purport to exclude our terms of business. The Contract constitutes the entire agreement
between the parties and supersedes any previous agreement for the sale of goods,
software or services by us. You acknowledge that you have not relied or been induced
by any representation of any person which is not set out in the Contract, and you shall
have no remedy for pre-contractual misrepresentation. Nothing in this clause shall
exclude liability for fraudulent misrepresentation.
1.3. References to “deliverables” means any deliverables pursuant to a Contract, being goods,
software and services deliverables.
1.4. No contract comes into existence until we have accepted your order.
1.5. Our sales representatives are not authorised to vary the terms of any contract, quotation
document or Proposal, nor to make any representations on our behalf.
1.6. No amendment to these terms of business or any other terms of the Contract may be
made unless expressly accepted by one of our directors in writing.
1.7. Cancellation is not permitted except where expressly agreed in writing by one of our
directors. If we agree to cancel you shall indemnify us 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 us as a result of cancellation.
2. Price
2.1. Where no price has been quoted (or a quoted price is no longer valid) the price is as
listed in our published price list current at the date of acceptance of the order.
2.2. Unless otherwise stated all prices are EX WORKS our premises exclusive of VAT.
2.3. We reserve the right, by giving you notice, at any time prior to delivery to adjust the
price of the goods, software or services to take account of any increase in our costs
owing to factors beyond our control, including (but not limited to) variations in currency
exchange rates.
3. Payment
3.1. Unless agreed otherwise, payment is due with your order. If credit facilities are granted,
then payment must be received in full with 30 days of delivery.
3.2. Time for payment is of the essence. If you fail to pay any sums owing to us by the due
date, we may charge you a compensatory fixed sum and statutory interest on the sum due
in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 as
amended by The Late Payment of Commercial debts Regulations 2002. Interest shall be
calculated on a monthly basis.
3.3. As soon as payment becomes due we reserve the right to instruct our solicitors to recover
the sums due. If we do instruct our solicitors, you shall on demand and on a full
indemnity basis, pay to us all costs and expenses (including, but not limited to, court
costs, solicitors’ fees and disbursements and all other out of pocket expenses and any
VAT on such costs and expenses) which we incur in connection with any action or court
proceedings (including enforcement proceedings) taken by our solicitors to recover the
sums due.
3.4. We reserve the right at any time at our discretion to demand security for payment before
continuing with or delivering an order or supplying services.
3.5. You do not have the right to set-off counterclaims against the price of the goods,
software or services.
3.6. As soon as payment of any invoice is overdue, we reserve the right not to deliver any
goods and cease the supply of all support and services until all overdue invoices are paid
in full.
4. Delivery
4.1. Unless agreed otherwise, delivery of deliverables will be made EX WORKS our
premises.
4.2. We shall deliver software in object code form on the designated storage media.
4.3. Time of delivery is not of the essence. Any date mentioned is given only as a guide and
we are not liable for any loss whatsoever arising from our failure to deliver on the stated
date.
4.4. Unless otherwise stated on our quotation, on delivery you shall be responsible for
installing the software on your computer system.
4.5. If you do not accept delivery of any deliverables in accordance with the Contract on or at
any time following the relevant delivery date, we will be entitled to arrange for or
provide the storage and insurance of the deliverables concerned as we think appropriate.
Where we provide such storage and insurance, we will be entitled to charge you a
reasonable sum for such storage and insurance. We shall also be entitled to charge you a
reasonable sum for all labour and transport costs for delivery into storage and, later
delivery (if any) to the delivery site, less any amount already invoiced specifically for
delivery. The appropriation or despatch of any of the deliverables for storage in
accordance with this condition will be deemed to constitute their delivery to you from
the date of delivery stated in the Contract.
5. Risk
5.1. Risk in deliverables passes to you on delivery or deemed delivery. Risk in the media
upon which any deliverables is recorded passes to you on delivery or deemed delivery.
6. Title
6.1. Subject to clause 6.3, ownership of deliverables does not pass to you until payment due
under all your contracts with us is made in full.
6.2. Until ownership of the deliverables passes to you:
6.2.1. you hold the deliverables as fiduciary agent and bailee for us;
6.2.2. the deliverables must be stored and marked in such a way as to be clearly
identifiable as belonging to us and their date of delivery;
6.2.3. you shall keep a record of the numbers of all serial numbered deliverables; and
6.2.4. the deliverables must be kept in good repair and insured for an amount equal
to the contract price.
6.3. If you are purchasing the deliverables for re-sale you may, before the condition in clause
6.1 is satisfied, in the ordinary course of your business sell and deliver the deliverables to
a third party on the following conditions:
6.3.1. any sale will be made by you as our agent, provided that you shall have no
authority to create privity of contract between us and any customer to whom the
deliverables are sold; and
6.3.2. you shall hold the proceeds of such sales, up to an amount payable to us in
respect of the deliverables sold, in trust for us and in a separate identifiable bank
account.
6.4. If the deliverables are combined with other items or materials or utilised or consumed in
the production of other items or materials we shall retain legal and beneficial ownership
of the deliverables if they remain capable of removal or separation from the resulting
items.
6.5. We reserve the right to re-possess deliverables if any payment is overdue, or if we have
any bona fide doubts as to your solvency, or if an administrator, administrative receiver,
receiver or a liquidator is appointed in respect of your business, and therefore to re-sell
the same. This right shall continue to subsist notwithstanding the termination of any
Contract for any reason and is without prejudice to our accrued rights thereunder or
otherwise. Once we have served notice that we intend to enforce the right to re-possess
deliverables, your right under clause 6.3 to resell any deliverables for which title has not
passed shall terminate.
6.6. You hereby grant us, our agents and employees an irrevocable licence to enter upon all
or any of your premises with or without vehicles during normal business hours to inspect
the deliverables, or recover them pursuant to clause 6.5 above.
6.7. Notwithstanding any provision in this clause 6, we shall be entitled to claim the price for
goods, software or services delivered or deemed delivered to you even where property in
any deliverables has not passed to you.
7. Inspection of Deliverables
7.1. We shall not be liable for any shortage or damage to deliverables on delivery unless you
comply with all of the following conditions:
7.1.1. you must whenever possible inspect the deliverables on delivery;
7.1.2. where the deliverables cannot be inspected on delivery then the delivery note
must be marked “not inspected”;
7.1.3. you must give us written notice of the alleged shortage in quantity, damage or
failure to comply with its description or sample within seven days of delivery; and
7.1.4. you must give us a reasonable opportunity to inspect the deliverables before
you use, alter or modify them.
7.2. In the case of short delivery, damaged or defective deliverables, or in the case of any
genuine dispute in respect of any deliverables, you will pay in full the balance of the
invoice not relating to such short delivery, damage, defect or dispute.
8. Acceptance Testing of Deliverables
8.1. Deliverables shall be deemed to have passed acceptance testing, and been accepted by
you, if on inspection appear free from manufacturing and workmanship defects and on
testing substantially perform the functions as specified in our published specification or,
in respect of bespoke goods and/or services, as specified in the relevant Proposal . It is
your responsibility to perform acceptance testing and accept or reject the deliverables on
this basis within 15 days of delivery. If you do not reasonably reject the deliverables
within 15 days of delivery as having failed acceptance testing, and provide us with
reasonable details of the reasons for/evidence of the failure, you shall be deemed to have
accepted the deliverables at the expiration of the 15 day period as being defect free and
substantially performing the functions in accordance with our published specification or,
in respect of bespoke goods and/or services, as specified in the relevant Proposal.
8.2. Provided any deficiencies in the deliverables as compared to the relevant specification,
together with details of the failure, are notified to us within the acceptance period as
specified above, we are entitled to repair or replace the deliverables within a reasonable
period so that the identified deficiencies are removed, or cancel the Contract and refund
to you a reasonable sum reflecting the extent of the deficiency. The provisions regarding
acceptance in this section will apply to the repaired/replaced deliverables. Any work
done by us as a consequence of an amendment to the relevant specification shall be at
your cost.
9. Software Licences
9.1. Where deliverables contain software owned by our suppliers, your use of the software is
conditional on you accepting the terms of the software licence which is supplied with the
software. The software licence is between you and our suppliers, unless we have agreed
with our suppliers to grant a sub-licence to you.
9.2. You undertake to us to comply with the terms of all relevant software licences.
9.3. No software licence shall come into force until we have received all your outstanding
payments for goods, software and services.
9.4. Where the deliverables contain software owned by us, we hereby grant you a nonexclusive,
non-transferable licence to use the software for the purposes specified in the
published specification or, in respect of bespoke goods and/or services, as specified in
the relevant Proposal, or as contemplated by the relevant Contract.
10. Intellectual Property Rights
10.1. All copyright and other intellectual property rights in any software or any other
element of the deliverables are and shall remain our property or, where relevant, the
property of our suppliers.
10.2. You shall notify us immediately if you become aware of any unauthorised use of the
software or any other element of the deliverables.
10.3. You shall permit us to check the use of the software at all reasonable times, and for
this purpose you hereby irrevocably licence us, our employees and agents to enter any of
your premises.
10.4. Where any Proposal amends these terms, or any other amendment to these terms
applies, notwithstanding any such amendment or contrary provision:
10.4.1. nothing shall prevent us from utilising general know how developed by us as a
result of a Contract or during the provision of services, subject to any obligations of
confidentiality; and
10.4.2. you hereby grant to us a non-exclusive, non-transferable, world-wide, royalty –
free and perpetual licence to use for any purpose any generic portions of any
deliverables.
11. Warranties
11.1. We have title to the goods and the right to sell them.
11.2. If on delivery, the deliverables are found to be in a condition or form that but for this
condition would have entitled you to terminate the contract or claim damages, we reserve
the right to repair or at our option replace the deliverables.
11.3. Subject to clause 11.7, we shall repair or at our option replace deliverables found to
be defective because of faulty design, manufacture, materials or workmanship, during
the period of 12 months from delivery; thereafter, subject to any agreed extended
warranty terms, repair services are available at our standard costs. For the avoidance of
doubt, where a deliverable has passed or is deemed to have passed acceptance testing in
accordance with clause 8 above, we shall have no obligation or liability, under this
warranty or otherwise, in respect of any aspect of performance of the deliverable, or its
design or manufacture, which is substantially in accordance with the published
specification or, in respect of bespoke goods and/or services, as specified in the relevant
Proposal .
11.4. These warranties for deliverables do not extend to defects or damage caused by
improper or abnormal use, improper maintenance, unauthorised repair or modification of
the deliverables.
11.5. We have the right, power and authority to supply the software in any deliverable.
11.6. We do not warrant that:
11.6.1. the use of the software will meet your data processing requirements; or
11.6.2. the operation of the software will be uninterrupted or error free; or
11.6.3. the functions of the software will operate in the combinations which you select
for use; or
11.6.4. the deliverables will be fit for any particular purpose unless stated in writing
by one of our directors, or as specified in any published specification or, in respect
of bespoke goods and/or services, as specified in the relevant Proposal .
11.7. Where we are not the manufacturer of the goods, and in the case of defects or bugs in
software owned by a third party, you shall not be entitled to receive any greater benefit
under this contract than shall be received by us under any guarantee or warranty given to
us by our suppliers.
11.8. These warranties shall not apply if the deliverables have been subjected to damage or
abuse; or have been altered or changed in any way without our consent.
11.9. To claim the benefit of these warranties you must inform us of a relevant defect
within seven working days of discovering it and return the deliverable to us at your
expense. The deliverable will be at your risk in respect of accidental loss while in transit
to us.
11.10. We shall perform any services with reasonable skill and care.
11.11. In return for the benefit of these warranties, you agree that all warranties, conditions
or other terms implied by statute or common law are excluded to the fullest extent
permitted by law.
11.12. Each of the subclauses in this clause is to be treated as separate and independent.
12. Liability
12.1. We are not liable to you (whether in contract, tort (including but not limited to
negligence) or otherwise) for any loss of profit, production, data, goodwill or business
opportunities or anticipated savings or benefits or for any type of indirect, special or
consequential loss, even if that loss was reasonably foreseeable or was reasonably in our
contemplation at the time of contracting.
12.2. Our total liability for any one claim or for the total of all claims arising from any one
act or default (whether arising from our negligence or otherwise) shall not exceed the
contract price or in the case of an annual service contract the annual contract price.
12.3. We shall not be liable to you for any loss arising out of your failure to keep full and
up-to-date security copies of your computer programs and data.
12.4. Nothing in this clause is deemed to exclude or restrict our liability to you for death or
personal injury resulting from our negligence.
13. Termination
13.1. Either party may terminate the Contract prior to its completion immediately if the
other party:
13.1.1. is in breach of any of its obligations and in the case of a breach capable of
remedy, fails to remedy the same within 21 days after receipt of a notice giving full
particulars of the breach and requiring it to be remedied;
13.1.2. makes any voluntary arrangement with its creditors or becomes subject to an
administration order;
13.1.3. has a receiver or administrative receiver appointed over any of its property;
13.1.4. goes into liquidation; or
13.1.5. ceases, or threatens to cease, to carry on business.
13.2. If we terminate the Contract pursuant to clause 13.1 above, the fees for any goods,
software or services provided but not paid for shall become immediately due and payable
notwithstanding any previous agreement or arrangement to the contrary.
13.3. Termination of the Contract will be without prejudice to the rights and obligations of
the parties as at the date of termination.
14. Force Majeure
14.1. We shall not be liable to you for any failure or delay in the performance of our
obligations caused by circumstances beyond our control which would include act of God,
war, riot, sabotage, explosion, abnormal weather conditions, fire, flood, strikes, lockouts,
government action or regulations, delay by suppliers, accidents, and shortage of
materials, or labour.
15. Severance
15.1. If any provision in this Agreement is held by any court or other competent authority
to be illegal, void or unenforceable, then such provision shall be deemed to be severed,
but the validity, legality and enforceability of the remaining provisions shall not be
affected.
16. Applicable Law
16.1. English law applies to this Agreement and any dispute arising in connection with it is
subject to the non-exclusive jurisdiction of the English courts.