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Terms & Conditions of Sale

1. INTERPRETATION

1.1 In these Conditions: -
“Buyer” means the customer named overleaf;
“Contract” means this contract for the purchase and sale of the Goods and Services subject to these Conditions;
“Goods” means the goods (including any instalments or parts) which the Seller is to supply;
“Seller” means whichever of the following companies is named on the front of this document in the “Signatories” box: Fovia (Innovation) Limited (Registered in England No. 4259043) or Copytrend Limited (Registered in England No. 1643467),
“Services” the services which the Seller is to perform.
“Software” means software written by the Seller for the Buyer.

2. BASIS OF THE SALE

2.1 The Seller shall sell and the Buyer shall buy the Goods and the Services subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing.

2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s order or other document will form part of the Contract simply as a result of such document being delivered to the Seller or referred to in the Contract.

2.3 Any variation to these Conditions is of no effect unless agreed in writing by a Director or Company Secretary of the Seller.

2.4 Any typographical, clerical or minor/other error or omission in any sales literature, price list, acceptance of offer, invoice or other any document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. QUOTATIONS, ORDERS AND SPECIFICATIONS

3.1 A quotation by the Seller is not an offer. Quotations are valid for 21 days only and subject to withdrawal or revision at any time before acceptance of the Buyer’s order by the Seller.

3.2 Each order for Goods and/or Services by the Buyer is an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.

3.3 No order submitted by the Buyer by whatever means is accepted by the Seller until the Seller confirms its written acceptance on the Seller’s acknowledgement of order form or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer.

4. DESCRIPTION

4.1 All descriptions, illustrations, drawings, samples, specifications and advertising issued by the Seller contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving a general and approximate idea of the Services and/or Goods described in them. They will not form part of the Contract.

4.2 The description of the Goods and Services shall be as set out in the Seller’s quotation.

5. CANCELLATION AND DELAY

5.1 No order, once accepted, may be cancelled by the Buyer except with the Seller’s written agreement and on terms that the Buyer shall indemnify the Seller against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

5.2 If the Buyer extends or delays the Contract or fails to take delivery of any Goods at the agreed time or (if no time is agreed) within a reasonable time then the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Seller as a result of such extension, delay or failure.

5.3 The Seller shall not be liable for any loss (consequential or otherwise) or business disruption caused to the Buyer by late delivery/installation of any third party services relating to the sellers products (e.g. telephone lines, broadband etc).

6. PRICE

6.1 The price of the Goods and Services is the Seller’s quoted price (exclusive of any applicable VAT) or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of delivery or supply.

7. PAYMENT

7.1 Payment of the price for the Goods and Services is due on receipt (save where the Seller’s quotation or invoice provides for payment to be due 30 days after the date of the invoice.) Time of payment is of the essence.

7.2 Payment by the Buyer shall be made without any deduction, set off, discount, abatement, counter-claim or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

7.3 The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and to recover all and any costs incurred by it (including costs, fees and disbursements of any outside agency and/or legal fees) in collecting any monies due. This will not affect any other right or remedy available to the Seller.

8. DELIVERY

8.1 Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place at the Buyer’s cost. The Seller may make delivery by instalments.

8.2 Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.

8.3 No claim for damage or shortages will be considered unless the Seller is given written notice within seven days of delivery. If no such notice is received by the Seller, the Buyer is deemed to have accepted the Goods.

8.4 Where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate contract and failure by the Seller to deliver or perform any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.

9. RISK AND PROPERTY

9.1 The Goods remain the property of the Seller until:-

9.1.1 their full price has been received by the Seller; and
9.1.2 all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller save that the title in respect of software supplied on the basis that the Buyer will use it under licence shall remain in the licensor.

9.3 The Goods are at the risk of the Buyer from the time of delivery.

9.4 Until ownership of the Goods passes to the Buyer, the Buyer must:-
9.4.1 store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller;
9.4.2 maintain the Goods in a satisfactory condition insured on the Seller’s behalf for their full price against all risks; and
9.4.3 hold the proceeds of insurance on trust for referred to in Condition 9.4.3 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account.

10 CLAIMS BY THE BUYER

10.1 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Seller [and, where applicable, the Seller’s carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection within 7 days of the time when the Buyer discovered or ought to have discovered the defect or failure.

10.2 In the event the Buyer has a valid claim which has been notified to the Seller pursuant to Condition 10.1, the Seller shall be entitled at its option to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at the Seller’s option, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer for loss or damage whatsoever arising from the initial delivery of the Goods or performance of the Services or from the delay before the defective services were rectified or the repayment is made.

10.3 If the Buyer does not notify claims in accordance with Condition 10.1 then:-
10.3.1 the Buyer shall not be entitled to reject the Goods and/or Services; and
10.3.2 the Seller shall have no liability for such defect or failure; and
10.3.3 the Buyer shall be bound to pay the full price for the Goods and/or Services

10.4 In no event shall the Buyer 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 Buyer to reject them.

11 SOFTWARE LICENCE

11.1 Grant of Licence
In consideration of payment made by the Buyer, the Seller shall grant to the Buyer a non-exclusive perpetual licence to use the Software.

11.2 Scope of Use
11.2.1 For the purposes of sub-clause 11.1 above “use” of the Software shall be restricted to use of the Software in object code form for the purpose of processing data for the Buyer’s normal business purposes but shall include any act which is reasonably incidental to such use, including (without limitation) the maintenance of a reasonable number of back-up or test copies of the Software.
11.2.2 Save as stated above the Buyer shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or in part except:
(a) as permitted by law; and/or
(b) 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 Buyers in circumstances where the Seller is not prepared to carry out such action at a reasonable commercial fee.

12 GOODS WARRANTY

12.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller

12.2 The Seller warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 3 months from the date of delivery, the Goods will be of satisfactory quality and be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the Seller’s skill and judgement.

12.3 The Seller shall not be liable for a breach of the warranty in condition 12.2 unless:
12.3.1 The Buyer gives the Seller written notice of the defect, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovered or ought to have discovered the defect; and
12.3.2 The Seller is given a reasonable opportunity after receiving the notice of examining the Goods and the Buyer (if asked to do so) has returned such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there

12.4 The Seller shall not be liable for a breach of the warranty in condition 12.2 if:
12.4.1 The Buyer makes any further use of the Goods after giving such notice; or
12.4.2 the defect arises because the Buyer failed to follow the Seller’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
12.4.3 The Buyer has altered or repaired the Goods without the Seller’s written consent

12.5 Subject to conditions 12.3 and 12.4, if any of the Goods do not conform with the warranty in condition 12.2 the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at its expense, return to the Seller the Goods or the part of such Goods which is defective

12.6 If the Seller complies with condition 12.5 the Seller shall have no further liability for a breach of the warranty in condition 12.2 in respect of such Goods

12.7 Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 3 month period

13 SOFTWARE WARRANTIES AND INDEMNITIES

13.1 For any computer programs or data (not being the Software) provided by the Seller, the Seller warrants that the Seller owns or possesses (or at any time of performance will own or possess) all necessary licences or rights required in order to perform the Seller’s obligations under this Agreement and that such licences and rights will extend to all enhancements, improvements or upgrades to such programs or data.

13.2 In relation to the Software only the Seller warrants that it will conform in all material respects to the Specification for a period of 3 months from the date of supply (the “Warranty Period”). If, within the Warranty Period, the Buyer notifies the Seller of any defect or fault in the Software in consequence of which it fails to conform in all material respects with the Specification, and such defect or fault does not result from the Buyer, or anyone acting with the Buyer’s authority, having amended the Software or used it for a purpose or in a context other than the purpose or context for which it was designed, the Seller shall, at the Seller’s option, do one of the following:
13.2.1 repair the Software; or
13.2.2 replace the Software; or
13.2.3 refund the licence fee (if any)

13.3 The Seller gives no warranty in relation to Software, which is not the Seller’s own original work. Such Software is supplied subject to the Publisher’s Terms and Conditions and with the benefit of the publisher’s warranty only (if any)

14. LIMITATION OF LIABILITY
THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

14.1 Save as expressly provided in these terms the Seller makes no warranty, representation or condition of any kind concerning the Services and/or Goods and, in particular (without limitation), the Seller makes no warranty condition or representation as to standard, value, condition, design, operation or performance and all such warranties, representations, conditions, obligations and liability of any kind whatever, whether in contract or tort, whether express or implied or otherwise in respect of the Services and/or Goods are expressly excluded to the fullest extent permitted by applicable law.

14.2 Nothing in these Conditions excludes or limits the Seller’s liability for death or personal injury caused by the Seller’s negligence or for fraudulent misrepresentation.

14.3 Subject to Conditions 14.1 and 14.2:-
14.3.1 the Seller shall not be liable to the Buyer for any loss of actual or anticipated profits or savings, loss of contract, loss of business, loss of production, financial loss, depletion of goodwill, punitive, indirect, special, incidental or consequential loss or damages, loss of income, loss of business opportunities, damage to or corruption of data or any damages due under penalty clauses, wasted expenditure, costs or expenses whatsoever which arise out of or in connection with the Contract (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if, in any such case, such loss was reasonably foreseeable or the Seller had been advised of the possibility of the Buyer incurring the same.
14.3.2 subject to Condition 14.3.1, the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited:
14.3.2.1 in the case of any liability in relation to any Goods to the cost of the Goods;
14.3.2.2 in the case of any liability in relation to Services to reperforming the Services (or if the Seller elects, to the cost of reperforming the Services);

15. TERMINATION

15.1 The Contract shall terminate immediately upon the happening of any one or more of the following: -
15.1.1 the Buyer is dissolved or has a bankruptcy order made against him or makes an arrangement or composition with his creditors; or
15.1.2 the Buyer (being a body corporate) convenes a meeting of creditors or enters into liquidation (whether voluntary or compulsory); or
15.1.3 the Buyer has a receiver, manager, administrator or administrative receiver appointed of the whole or any part of its undertaking, property or assets; or
15.1.4 a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer; or
15.1.5 any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction to which the Buyer or any of its assets is subject.

15.2 The Contract shall terminate immediately upon service of written notice of termination by the Seller on the Buyer on the happening of any one or more of the following:-
15.2.1 the Buyer has, suffers or allows any execution to be levied on its assets or obtained against it; or
15.2.2 the Buyer commits a material breach of any of its material obligations under the Contract or under any other contract with the Seller; or
15.2.3 the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
15.2.4 the Buyer ceases or threatens to cease to trade.

15.3 termination of the Contract shall not affect rights and duties accrued before termination.

16. DISCLAIMER OF LIABILITY IN RELATION TO WEBSITE DESIGN OR HOSTING/ EMAIL/ SECURE COMMERCE SYSTEMS

THE SELLER DOES NOT ACCEPT ANY LIABILITY FOR THE CONTENTS OF THE BUYER’S WEBSITE OR ITS ACCESSIBILITY OR INTERRUPTION OF USE FOR WHATEVER REASON.
THE BUYER IS RESPONSIBLE FOR PROTECTING THE SECURITY AND INTEGRITY OF ITS SYSTEMS AND DATA.
THE SELLER DOES NOT WARRANT THAT THE BUYER’S WEBSITE SHALL BE AND SHALL REMAIN FREE FROM VIRUSES OR OTHER COMPUTER OR DATA CORRUPTING OR DAMAGING MATERIAL. THE SELLER DOES NOT ACCEPT ANY LIABILITY FOR LOSS OR DAMAGE ARISING FROM THESE.

17. ANTI-COUNTERFEIT WARNING
THE BUYER MUST NOT USE OR ALLOW ANY IMAGING PRODUCT SUPPLIED BY THE SELLER TO BE USED FOR THE PURPOSE OF COMMITTING ANY CRIMINAL OFFENCE INCLUDING BUT NOT LIMITED TO MAKING ILLEGAL COPIES IN BREACH OF COPYRIGHT, ILLEGALLY COPYING PAPER CURRENCY, SECURITIES OR OTHER FINANCIAL INSTRUMENTS.

THE BUYER SHALL TAKE REASONABLE PRECAUTIONS TO ENSURE THAT ITS EMPLOYEES, AGENTS, CONTRACTORS AND THIRD PARTIES DO NOT USE THE IMAGING PRODUCT FOR SUCH PURPOSES.

18 INTELLECTUAL PROPERTY RIGHTS INDEMNITY

18.1 All Intellectual Property Rights in any Product created or developed by the Seller and any modification thereto belong and shall belong to the Seller unless otherwise agreed in writing;

18.2 The Seller undertakes to defend the Buyer from and against any claim or action that the possession, use, development, modification or maintenance of any Bespoke Software (or any part thereof) in accordance with these terms and conditions infringes the Intellectual Property Rights of a third party (an “Infringement Claim”) and shall fully indemnify and hold the Buyer harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Buyer as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, the above indemnity shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Buyer , any affiliate or any divested entity other than in accordance with the terms of these terms and conditions.

19. ASSIGNMENT

19.1 The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.

19.2 The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.

20 SEVERABILITY

If any provision in this agreement is held to be illegal or unenforceable in whole or part, such provision or part shall to that extent be deemed not to form part of this agreement and the validity and enforceability of the remainder of this agreement shall not be affected.

21. ENGLISH LAW

The Contract shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.

22. DISPUTES

If any dispute arises out of this Agreement the parties will attempt to settle it by mediation in accordance with the procedures of ADR Group (www.adrgroup.co.uk). Unless otherwise agreed between the parties the mediator will be nominated by ADR Group.

Issue Date: 21st April 2006