ELECTRONIC BUSINESS SYSTEMS LIMITED
TERMS AND CONDITIONS OF SALE OF GOODS AND SUPPLY OF SERVICES (the “Conditions”)
1. DEFINITIONS
1.1. In these Conditions the following words and expressions shall have the following meanings:
“Contract” means the agreement between EBS and the Customer as set out in the Order and incorporating these Conditions;
“Customer” means the person, firm, company or other body with whom EBS enters into the Contract as identified in the Order;
“Customer Materials“ means any materials, information, Data, documents, software provided, made available or disclosed by or on behalf of the Customer to EBS, pursuant to or in connection with the Contract, whether before, on or after the date of the Contract, including any third-party materials, and any materials relating to the Customer’s or a third party’s business, products, customers or services;
“Charges” means the Price of Goods and the Service Charge (as defined in conditions 4.1 and 4.2 respectively) and all charges, fees and other amounts payable by the Customer to EBS, as set out in the Order (including but not limited to such charges as varied by EBS in accordance with these Conditions and any agreed expenses payable pursuant to condition 4.11);
“Commencement Date” means the date on which EBS receives an Order signed but otherwise unaltered by the Customer or from when the Goods are dispatched, installed or all or any part of the Services are performed, whichever is earlier;
“Conditions” means the terms and conditions set out herein;
“Data” means (at any relevant time) the Customer’s computer records in machine-readable form (whether held on file servers, network servers, internet servers or desktop computers or by means of any other computer media) relating to its own affairs or those of its clients, and includes any relevant passwords;
“Deliverables” means all services, works and materials to be and/or actually supplied, designed, obtained, generated, acquired, developed, produced or provided by EBS as part of or in or towards performance of the Contract;
“Deliverable Materials” means all materials to be supplied by EBS as part of the Services;
“EBS” means Electronic Business Systems Limited (Company number 01457911) whose registered office is 852 Tyburn Road, Erdington, Birmingham, B24 9NT;
“Goods” means any Hardware and/or Software to be supplied by EBS to the Customer under any Order and/or any other goods or products which may from time to time be supplied by EBS to the Customer as set out in the Order or any subsequent order;
“Hardware” means the items of hardware identified by type/serial number/description and price in the Order, if any;
“Industry Standards” means the legislation, rules and regulations, including codes of practice and conduct in force from time to time relating to the provision of the Services under the Contract;
“Installation” means the assembly and installation of the Goods (including relevant software), at the Customer’s Site by EBS’s employees, agents or sub-contractors;
“Maintenance and Support Agreement” means the Software Support Agreement or the Hardware Agreement entered into by the parties
(if any) a copy of which is appended to this Contract;
“Order” means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s acceptance of EBS’s quotation, as the case may be. ;
“Project” means the project as described in the Order;
“Project Milestone” means a date by which a part of the Project is estimated to be completed as set out in the Project Plan;
“Project Plan” means the detailed plan describing the Project setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services by EBS in accordance with the Contract;
“Sage” means Sage (UK) Limited, registered company number 1045967;
“Services” means all and any installation, configuration, training and any other services (as more particularly set out in the Order) works and warranty repair services to be supplied by EBS under the Contract or Software Licence Agreement;
“Site” means any site, premises or location of the Customer or any third party where EBS is to deliver or install any Goods or perform any Services as confirmed in the Order;
“Software” means the computer programs in the Order whether ultimately supplied by Sage, another third party and/or EBS;
“Specification” means any description and/or specification of the Goods and/or Services as set out or referred to in the Order, or as otherwise agreed in writing by the parties;
“Software Licence Agreement” means any agreement between the Customer and EBS and/or between the Customer and Sage, or any other third party, pursuant to which the Customer is granted a licence to use the relevant Goods on the terms of that Agreement ( copies of which are annexed to this Contract);
“Warranty” means the warranties given under the section entitled “Warranty Terms” in these Conditions and any other applicable express, implied or collateral warranty, term or condition as to the specification, standard, quality, fitness for purpose or condition of any Goods or Services.
1.2. Words and expressions defined in the Order shall have the same meanings herein unless the context otherwise requires or permits.
2. CONTRACT FORMATION
2.1. These Conditions shall:
2.1.1. apply to and be incorporated into the Contract; and
2.1.2. prevail over any inconsistent terms or conditions contained, or referred to, in any customer purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2. Any Customer’s purchase order, or the Customer’s acceptance of a quotation for the supply of the Goods and/or provision of the Services by EBS, constitutes an offer by the Customer to purchase and receive the Goods and the Services on and subject to these Conditions. Acceptance occurs and a Contract is formed only upon:
2.2.1. receipt by EBS of an Order signed but otherwise unaltered by the Customer; or
2.2.2. when all or any of the Goods are despatched or any part of the Services are performed as appropriate,
whichever occurs earlier.
2.3. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.4. EBS shall sell the Goods and/or supply the Services and the Customer agrees to pay for the Goods and/or to receive and purchase the Services in accordance with and on the basis of these Conditions which comprise the only terms upon which EBS will sell the Goods and/or supply the Services.
2.5. Any quotation given by EBS is on the basis that no Contract shall come into existence except in accordance with Condition 2.1.2 and unless otherwise agreed in writing by EBS, any quotation is valid until the expiration date specified on the Quotation, provided that EBS has not previously withdrawn or amended it.
2.6. Each Contract shall be subject to and shall incorporate the following documents:
2.6.1. these Conditions; and
2.6.2 the Order; and
2.6.3. the Software Licence(s) (if any) ; and
2.6.4. the Maintenance and Support Agreement (if any).
In the event of any conflict or inconsistency between the above mentioned documents, the Order shall prevail over the Maintenance and Support Agreement, the Maintenance and Support Agreement shall prevail over the Software Licence and the Software Licence shall prevail over the Conditions, save where the Order or the provisions of any other above mentioned document expressly states otherwise.
2.7. No Order which has been accepted by EBS in accordance with Condition 2.2 may be cancelled or varied by the Customer, except in accordance with the terms of Condition 18 or on terms otherwise agreed in writing by EBS.
2.8. In relation to any Contract, the Contract shall constitute the entire agreement between the Customer and EBS and supersedes any previous agreement or arrangement between them relating to the subject matter of that Contract.
2.9. No representation, undertaking, promise or statement shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of any Contract except as expressly stated in that Order. The Customer shall not have any remedy in respect of any untrue statement made by EBS (including without limitation in the case of giving advice, if any, in relation to the Customer’s selection of particular Goods or Services otherwise) upon which the Customer relied in entering into a Contract.
2.10. For the avoidance of doubt, it is the sole responsibility of the Customer to select the correct Goods and Services when placing an Order. EBS will demonstrate any functions of the Goods if so requested by the Customer however, EBS shall not accept any liability for the selection of Goods and Services ordered by the Customer and in particular for any functionality subsequently required which is not disclosed by the Customer to EBS prior to placing an Order.
3. COMMENCEMENT AND DURATION
3.1. These Conditions shall commence on the Commencement Date.
3.2. Subject to Condition 18 and any other provisions of these Conditions entitling the Customer or EBS to terminate, the Services supplied under the Contract shall continue to be supplied by EBS until completion of the Services in accordance with this Contract (unless otherwise stated in the Order).
4. PRICE AND PAYMENT
4.1. The price payable for the Goods shall be as set out by EBS in the Order or as otherwise agreed in writing by the parties and any additional amount EBS is entitled to charge in addition to the price under Condition 4.9 (the “Price of Goods”).
4.2. The price payable for the Services shall be on the basis set out by EBS in an Order or as otherwise agreed in writing by the parties and any additional amount EBS is entitled to charge in addition to the price under Condition 4.9 and/or Condition 10.5 (the “Service Charge”).
4.3. Condition 4.4 shall apply if the Services are to be provided on a time-and-materials basis. Condition 4.5 shall apply if the Services are to be provided for a fixed price. The remainder of this Condition 4 shall apply in either case.
4.4. Where the Services are provided on a time-and-materials basis:-
4.4.1. the charges payable for the Services shall be calculated in accordance with EBS’s standard daily fee rates as amended from time to time;
4.4.2. EBS’s standard daily fee rates are calculated on the basis of an seven hour working day between 9.00am and 5.00pm on weekdays (excluding weekends and public holidays);
4.4.3. EBS shall be entitled to charge reasonable overtime at a rate of double the normal rate for part days and for time worked by employees of EBS outside the hours referred to in Condition 4.4.2 on a pro rata basis;
4.4.4. EBS shall invoice the Customer upon completion of each Project Milestone all charges in respect of time, expenses and materials (together with VAT where appropriate) in respect of the period concerned.
4.5 Where the Services are provided on any other basis
4.5.1 the total price payable for the Services is the amount set out in an Order. The total Service Charge shall be paid to EBS in accordance with this Condition 4 in instalments as set out in the Project Plan on its achieving the correspondence Project Milestone. On achieving a Project Milestone, EBS shall invoice the Customer for the charges that are then payable along with expenses and the costs of materials (and VAT where appropriate), calculated as provided in Condition 4.6 ; and
4.5.2 any time included in the quote but remaining unused and unbilled 12 months after the Contract is formed will be invoiced and any remaining time unused will be cancelled and may not be used or called out thereafter.
4.6. Any fixed price contained in the Project Plan excludes:-
the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by EBS Employees in connection with the Services and the cost of any materials or services reasonably and properly provided by third parties required by the EBS for the supply of Services. Such expenses, materials and third party services shall be invoiced by EBS at cost; and VAT, which EBS shall add to each invoice at the appropriate rate
4.7. The Price of Goods and the Service Charge shall together be referred to as “the Charges”.
4.8. EBS reserves the right at any time by giving notice to the Customer, to increase the Price of Goods and/or the Service Charge by any amount attributable to any increase in cost to EBS which is attributable to any factor beyond the control of EBS including but without limitation:
4.8.1. any variation or fluctuation in the cost of materials (and in particular any Software), manufacturing costs, labour, transport, duties, taxes, exchange rates, energy costs, data usage or any other costs of whatsoever nature including without limitation between the date of the Contract and the date of delivery of the Goods; and/or
4.8.2. any change in or delay or insufficiency of the Customer’s instructions, Specification or information (if applicable); and/or
4.8.3. any failure by the Customer to provide such information, materials or resources (including but without limitation access to the Site) as may reasonably be required by EBS to supply the Goods and/or Services.
4.9. EBS will give the Customer written notice of any such increase one month before the proposed date of the increase.
4.10. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by EBS to the Customer, the Customer shall, on receipt of a valid VAT invoice from EBS, pay to EBS such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
4.11. The Charges shall be the amount set out in the Order plus any reasonable expenses as agreed between the parties. The Charges shall be paid to EBS (without deduction, withholding, counterclaim or set-off) at the time or at such intervals as set out in the Order and these Conditions. EBS shall invoice the Customer for all relevant Charges that are payable at such intervals as set out in the Order. In the event of the Customer cancelling any time scheduled in any Project Plan cancellation charges will be payable as follows:-
- Notice of 48 hours (2 Working Days) or less – 100% of the quoted Charges
- 72 hours (3 Working Days) or less – 75% of the quoted Charges
- 120 hours (5 Working Days) or less – 50% of the quoted Charges
- 168 hours (7 Working Days) or less – 25% of the quoted Charges
- More than 168 hours (7 Days) – no charge.
4.12. Without prejudice to any other rights or remedies of EBS, whether hereunder or otherwise at law or in equity, in the event of the Customer defaulting on any of its obligations under either the Contract (including any Condition relating to an instalment payment) or any other contract between the Customer and EBS and/or if EBS at any time has any concerns regarding the financial circumstances of the Customer, EBS reserves the right at any time at its sole option to:
4.12.1. require immediate payment in full or in part by the Customer of the Charges and/or any other amounts payable to EBS under any other contracts; and/or
4.12.2. charge the Customer in respect of any overdue and undisputed amounts from the due date for payment at the annual rate of 4% above the base lending rate from the Bank of England, or 10% per annum (whichever is greater) accruing on a daily basis and being compounded quarterly Commencement Date until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and/or
4.12.3. enter into the Customer’s Site and any other of the Customer’s premises or location in order to recover and remove all Goods and/or Deliverable Materials in the possession of the Customer; and/or
4.12.4. suspend any further deliveries to the Customer (whether of the Goods or any goods ordered under any other contract between EBS and the Customer) and suspend any further performance of the Services until any payments then overdue and payable by the Customer have been received in full in cleared funds by EBS; and/or
4.12.5. cancel any allowance of credit (whether under the Contract or under any other contract between the Customer and EBS if any); and/or
4.12.6. demand security for payment before continuing with an order or delivery of the Goods, any installation of the Goods or performance of the Services and/or any other goods or performance of the Services ordered under any other contract between the Customer and EBS; and/or
4.12.7. cancel the Contract and/or any other contract between EBS and the Customer.
4.13. All Charges payable to EBS under the Contract shall become due immediately on its termination, notwithstanding any other provision. The Customer shall be required to pay EBS any Service Charge due in respect of any Services performed as at the date of termination and in addition the Customer shall at the date of termination fully indemnify and keep EBS fully indemnified in respect of any losses (including loss of profit), charges, costs, expenses (including legal expenses), claims, damages or liabilities incurred as a result of the termination of the Contract prior to full performance of the Services, including without limitation in respect of any amounts paid to sub-contract the provision of any Services or work declined due to the expectation of EBS personnel being involved in providing the Services pursuant to the Contract.
4.14. Time for payment of the Charges and any other amount due to EBS under the Contract shall be of the essence.
4.15. The Customer shall on demand fully indemnify and keep EBS fully indemnified from and against any and all charges, costs, expenses (including without limitation legal costs and expenses (including without limitation legal costs and expenses), losses and other liabilities, any other liabilities whatsoever and howsoever incurred by EBS or its agents as a result of any failure by the Customer to make payment in accordance with provisions of this Condition 4, including (without limitation) any costs incurred by EBS or its agents in the collection of any monies due to it.
4.16. EBS may at any time in its absolute discretion appropriate any payments made by the Customer in respect of Goods and/or Services to such outstanding debt as EBS thinks fit notwithstanding any purported appropriation to the contrary by the Customer.
4.17. All payments made by the Customer in respect of the Charges shall be made in pounds sterling (unless otherwise agreed in the Order) or otherwise by EBS in writing.
4.18. This Condition 4 is without prejudice to any right to claim for interest at law, or any such right under the Contract.
5. SPECIFICATION
5.1. Unless otherwise agreed in the Order or otherwise in writing the specification of the Goods and/or Services shall be in accordance with the Specification. EBS may at any time change the Specification for any Goods or Services to conform to any change in any law or standard applicable to the Goods occurring after the date of any Contract and/or as a result of any modification or change by any third-party supplier of the Goods for any reason whatsoever (including without limitation due to any defect or actual or threatened breach of any third-party intellectual property rights).
5.2. The Customer shall be responsible to EBS for ensuring the accuracy of the detail submitted in an Order (including without limitation the Goods and Services required, the Customer Materials (if any) and any Specification) or otherwise submitted by the Customer to EBS, and for providing EBS with all necessary information and Customer Material including without limitation in relation to the required Specification of the Goods and/or Services at the Commencement Date or otherwise in sufficient time if in response to any reasonable request for information by EBS to enable EBS to perform the Contract in accordance with its terms.
5.3. To the extent that Goods are to be manufactured or Services designed and/or provided in accordance with a specification supplied by the Customer, the Customer shall indemnify EBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by EBS arising out of or in connection with any claim made against EBS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with EBS’s use of the specification. This clause 5.3 shall survive termination of the Contract.
6. DELIVERY OF GOODS
6.1. Any period or dates for delivery stated in the Order or elsewhere shall be treated as an estimate only and EBS will not be liable to the Customer for any loss or damage whatsoever and howsoever sustained by the Customer as a result of EBS’s failure to comply with such delivery periods or dates although EBS shall use reasonable endeavours to do so. Any such dates included by the Customer in any Order, acceptance of quotation or other document shall not form part of the terms of the Contract. The Customer shall not be entitled to refuse to accept late delivery or to treat late delivery as a breach of the Contract.
6.2. Delivery of the Goods shall be deemed to have occurred immediately on the Goods arriving at the agreed delivery address.
6.3. From the time delivery of the Goods is deemed to have taken place pursuant to Conditions 6.1 or 6.2:
6.3.1. risk in the Goods shall pass to the Customer; and
6.3.2. EBS shall have no further obligations whatsoever in relation to the transportation, care or storage of the Goods provided always that if EBS elects to arrange transportation of the Goods to the Customer, to load or unload the Goods and/or store the Goods pending collection by the Customer (as applicable), the Customer shall indemnify and keep indemnified EBS fully on demand in respect of any and all costs and/or expenses incurred by EBS in connection with or paid by EBS in so doing.
6.4. In the event that EBS agrees to supply Goods to the Customer’s Specification and/or EBS agrees to allocate or source Goods solely for supply to the Customer in accordance with an Order, the Customer hereby agrees to purchase from EBS the entire quantity of the Goods in question obtained by EBS in order to fulfil any such Order placed by the Customer in respect of such Goods.
6.5. If the Customer fails to take delivery of Goods at the time stated for delivery (otherwise than by reason of EBS’s fault) or fails to give EBS adequate delivery instructions or access to allow delivery of the Goods then, without prejudice to any other right or remedy available to EBS, EBS may at its sole option without giving notice to the Customer:
6.5.1. store the Goods until actual delivery occurs and charge the Customer for the reasonable costs (including handling and insurance) of storage; and/or
6.5.2. sell the Goods and retain any proceeds of sale and charge the Customer for the reasonable costs (including handling and insurance) and storage and selling expenses; and/or
6.5.3. dispose of the Goods in any manner it sees fit and recover from the Customer (less any proceeds of sale retained by EBS pursuant to Condition 6.5.2) all sums payable to EBS under the Contract.
6.6. EBS may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7. SERVICES
7.1. Except as otherwise stated in an Order or otherwise agreed in writing by EBS, EBS shall be entitled to determine the plan and method for the content, design, supply and provision of the Services under the Contract.
7.2. The Customer acknowledges that EBS shall rely on the timely provision and accuracy of any Customer Materials and information in the provision of the Services. EBS shall have no liability to the Customer in respect any inability of EBS to provide the Services at all, on time or in conformity with the Contract as a result of incomplete, incorrect, inaccurate, illegible, out of sequence, or incorrectly formed Customer Materials or information, or arising from the late arrival or non-arrival of such Customer Materials or information, the failure of all or any part of the Customer’s customer systems or utilities or any other fault of the Customer. Where the Services are dependent on any service of any third party, then unless otherwise agreed, EBS shall not be responsible for or liable to the Customer for any failure, non-operation, default, or non-availability of such third-party service or other malfunction in relation to such third party system or service or any resulting effects on the Services, or Deliverables unless due to EBS negligence or default.
7.3. EBS shall provide to the Customer a checklist of actions which the Customer agrees at its own cost and expense to fully undertake and implement to prepare the proposed delivery location for the installation of the Goods and/or performance of the Services in accordance with the requirements of EBS and good industry practice and by agreed dates including without limitation the provision of a suitable power supply.
7.4. Unless otherwise stated in the Order or otherwise in writing the following assumptions are made concerning each Site and the Customer shall be responsible for ensuring that (1) any relevant parts of the Site will be prepared by the Customer in accordance with the reasonable requirement of EBS; (2) EBS and its employees, agents and sub-contractors will have free and safe access to the Site; (3) the Customer shall comply with all laws in relation to the Site, and have a staff member on the Site adequately trained in health and safety; (4) that the Site will be safe, and that EBS will not have to deal with or make special provision for any safety hazards at the Site; and (5) the Site where the Services shall be provided shall meet all and any applicable safety legislation and standards.
7.5. The Services shall be delivered to and provided at each delivery location as set out in the Order or otherwise agreed in writing by EBS.
7.6. EBS agrees to use all reasonable endeavours to perform the Services or supply any Deliverables by such reasonable date or time as EBS shall specify. Time for supply or performance is not of the essence, and any specified dates or times for delivery or performance are estimates only. If EBS shall have failed to deliver or perform the Services by any specified date or time, EBS will deliver or perform the Services and the Contract by such reasonable final date or time as EBS shall further specify. EBS shall not be considered to be in breach of these Conditions for delay in or non-delivery or performance. If EBS is delayed in or prevented from delivering or performing the Services as a result of any event beyond its reasonable control, including any delay or inability of a third party to supply any other material or Goods required by EBS in order to perform the Services in accordance with this Contract to EBS for any reason whatsoever, any delay in performance, breach, or non-performance of the Contract by the Customer, or any delay, act or omission of any of the Customer’s employees or contractors, or as a result of anything for which the Customer is responsible under the Contract, then EBS shall not be in breach of these Conditions and shall be entitled to a reasonable extension of time for delivery or performance.
7.7. EBS shall ensure that its employees and other representatives comply with all such training and safety requirements and certification applicable to the provision of the Services as may be prescribed by Industry Standards.
7.8. The Customer shall liaise with EBS as reasonably required in order to make arrangements with EBS for receiving and taking delivery of the Goods and Services.
7.9. If the performance of these Conditions is delayed for any reason, other than the neglect or default of EBS, including due to any unreasonable delay caused by the Customer or failure of the Customer to perform its obligations hereunder, or the Customer refuses to take delivery of the Services when tendered, or any site of the Customer or any other person is not ready on the dates agreed with EBS or if no dates are agreed in a reasonable time, or the Customer wrongfully rejects the Services (or any part thereof), then unless due to the negligence or default of EBS: (1) the Customer shall pay an additional charge for returning any Deliverables to EBS, storage of any Deliverables, redelivery of the Deliverables, and the wasted cost of labour for all personnel allocated to any delivery, installation or work forming part of the Deliverables; and (2) EBS shall be entitled to retain any payment already made by the Customer in respect of the Services already made and to invoice the Customer for all Services including such Deliverables as if they had been delivered or performed when first planned, or if EBS does not so invoice, EBS may charge interest on its charges at the rate set out in Condition 4.12.2 running from the date such charges would have been payable had they been so invoiced until the date of actual payment.
8. CUSTOMER OBLIGATIONS
8.1. The Customer may only use the Goods and Services and strictly in accordance with any Software Licence Agreement for the benefit of its business, and may not use them for the benefit of any other person or resell them to any person. The Customer must not use the Goods or Services for any illegal or improper purposes or in a manner which may cause EBS to incur any liability or commit any crime.
8.2. The Customer shall fully co-operate with EBS and do all those things which it has agreed to do or which are within its power or control to assist and facilitate the performance of the Services by EBS, including: (1) providing access to and assistance from relevant employees of the Customer and access to all necessary computer systems (2) providing any information, data, software or materials and doing those things which are within the power, control and possession of the Customer, which EBS requires or are necessary to perform the Contract and provide the Deliverables, and ensure that the same are accurate, (3) confirming its requirements for the Services, (4) approving any Deliverables proposed to be supplied by EBS, and (5) performing all work which is agreed to be the responsibility of the Customer. EBS shall have no liability to the Customer for any errors, omissions or defects in any information, materials or appliances provided by the Customer.
9. TITLE AND RISK IN THE GOODS
9.1. The risk in the Goods shall pass to the Customer on completion of delivery.
9.2. Title in any Software shall, at all times, remain vested as per the Software Licence Agreement, the relevant licensor and any right of the Customer shall be governed by the terms of any relevant Software Licence. The Customer must fully comply with the terms and conditions of all Software Licence Agreements.
9.3. The Customer shall on demand fully indemnify and keep EBS fully indemnified against the consequences of any breach or infringement of any Software Licence Agreement.
9.4. Title to the Goods shall not pass to the Customer until EBS receives payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment.
9.5. Until title to the Goods has passed to the Customer, the Customer shall:
9.5.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as EBS’s property;
9.5.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.5.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on EBS’s behalf from the date of delivery;
9.5.4. notify EBS immediately if it becomes subject to any of the events listed in conditions 17.1.1 to 17.1.5; and
9.5.5. give EBS such information as EBS may reasonably require from time to time relating to:
9.5.6.the Goods; and
9.5.7. the ongoing financial position of the Customer.
9.6. Subject to condition 9.7, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before EBS receives payment for the Goods. However, if the Customer resells the Goods before that time title to the Goods shall pass from EBS to the Customer immediately before the time at which resale by the Customer occurs.
9.7. At any time before title to the Goods passes to the Customer, EBS may:
9.7.1. by notice in writing, terminate the Customer’s right under condition 9.6 to resell the Goods or use them in the ordinary course of its business; and
9.7.2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9.8. The Customer is not entitled to pledge or in any way charge by way of security for any indebtedness, any Hardware and/or Software which remains the property of EBS (or any third-party licensor including without limitation Sage) but, if the Customer does so, all monies owing by the Customer to EBS shall, without prejudice to any other right or remedy of EBS, become immediately due and payable.
9.9. Any Goods supplied to the Customer which are subject to any restrictions or provisions imposed by the manufacturer’s or licensor’s conditions of supply to the Customer by EBS are supplied subject to any such conditions and on the terms of any applicable Software Licence Agreement.
9.10. On termination of the Contract, this Condition 9 shall remain in full force and effect.
10. WARRANTIES AND LIABILITY
10.1 Subject to Condition 10.4, Condition 10.5 and Condition 10.6 EBS warrants to the Customer that the Goods shall, at the time of delivery (deemed or otherwise pursuant to Condition 6) conform in all material respects with and provide the functionality and will perform substantially in accordance with the Specification. The Software is not warranted to operate error free or on an uninterrupted basis.
10.2. EBS makes no warranty as to the description, quality, fitness for purpose, suitability or otherwise of any Hardware and/or Software supplied. EBS shall accept no liability for any loss or damage of any kind whatsoever arising directly or indirectly from the use of any Hardware and/or Software supplied by it, including by any reason of any failure of any Goods to comply with any Specification provided by the Customer.
10.3. Subject to condition 10.4, if:
10.3.1. the Customer gives notice in writing to EBS within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 10.1;
10.3.2. EBS is given a reasonable opportunity of examining such Goods; and
10.3.3. the Customer (if asked to do so by EBS) returns such Goods to EBS’s place of business at the Customer’s cost,
EBS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
10.4. EBS shall not be liable for the Goods’ failure to comply with the warranty set out in condition 10.1 if:
10.4.1. the Customer makes any further use of such Goods after giving a notice in accordance with condition 10.3;
10.4.2. the defect arises because the Customer failed to follow EBS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
10.4.3. the defect arises as a result of EBS following any drawing, design or specification supplied by the Customer;
10.4.4. the Customer alters or repairs such Goods without the written consent of EBS;
10.4.5. the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal working conditions; or
10.4.6. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.5. If the Goods are supplied to EBS by a third party and are not manufactured by EBS, the warranties set out in Condition 10.1 shall not apply to the Contract and the Customer acknowledges and agrees that EBS shall provide no warranties in relation to the quality or fitness for purpose of the Goods. However, where EBS is given the benefit of warranties equivalent to those set out in Condition 10.1 from any third party EBS shall, to the extent only that EBS itself has the benefit of such equivalent warranties, grant to the Customer the benefit of the remedies for breach of warranty set out in Condition 10.3 only. To the extent the Customer is entitled to repair or replacement of any Sage or Third Party Goods pursuant to any warranty referred to in this Condition 10.5, EBS shall be entitled to make an additional charge in a reasonable amount (at current rates) to the Customer in respect of any additional Services provided in order to install or otherwise implement any repair of such Goods (“Corrective or Services”) and EBS shall provide the Customer with a written estimate/quotation in respect of such Corrective Services (“Proposal”) prior to commencing performance of the Corrective Services and the Customer shall notify EBS in writing within 5 working days if it requires performance of the Corrective Services in accordance with the Proposal by submitting an Order. A further Contract shall be entered into in relation to the Corrective Services in accordance with the provisions of Condition 2.
10.6. Without prejudice to Condition 11.1 and subject to Condition 10.3, EBS’s liability for any breach of the warranty contained in Condition 10.1 shall in all circumstances be limited to, at EBS’s sole option, repair or replacement as soon as reasonably practicable of the defective Goods (or any part(s) in question) free of charge or a refund of any amount paid in respect of the Price of Goods (“Refund”) and in the case of any Software the Supplier may terminate the Software Licence immediately by notice in writing and pay a Refund less any reasonable sum in respect of the Customer’s use of the Software to the date of termination upon return of the Software Licence and all copies thereof an amount equal to the Price of Goods charged in respect of the first year of use. Such repair, replacement or refund shall be EBS’s sole liability and the Customer’s sole remedy for breach of the warranty in Condition 10.1.
10.7. EBS warrants that it will provide the Services with reasonable care and skill (“Service Warranty”). In the event that a Contract contains any obligation or requirement, in relation to the provision of the Services which is uncertain then EBS shall be entitled to determine what it is required to do in its reasonable professional opinion. For the avoidance of doubt, the provision of any Corrective Services shall be outside the scope of the Services and the parties shall enter into a further Contract in respect of any Corrective Services required in relation to any Goods and/or Services supplied under this Contract where the defect requiring correction has arisen other than through any fault of EBS, EBS shall not be obliged to do anything which would be or is likely to cause EBS to be in breach of any law, legal duty or contractual term with the Customer or any third party applicable to EBS.
10.8. Where EBS has not been involved in advising a Customer as to a Customer’s requirements, the Seller gives no warranty that the Services will be fit for any specific purposes of the Customer (whether made known to EBS or not).
10.9. Liability under the Service Warranty shall continue for all claims made in writing to EBS in the 30-day period from and including the date of completion of the Services.
10.10. When reporting a Service Warranty claim under the Service Warranty, the Customer shall provide full details of the claim. The Customer shall allow EBS a reasonable opportunity to inspect any Deliverables subject to a claim and the Customer shall at EBS’s request either hold the Deliverables ready for inspection or (where possible) return the Deliverables to EBS. The Customer shall give EBS a reasonable opportunity to correct any breach of a Service Warranty, including a replacement or re-performance of any Deliverable or Service at the sole discretion of EBS. This shall be the Customer’s sole liability under a Service Warranty. EBS may make an additional charge for any inspection, investigation, rectification or other work or services in relation to a claim if it is accepted or found not to have been a breach of any Service Warranty under a Contract.
10.11. Except as otherwise expressly provided, and except where the Customer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties/conditions and other terms implied by statute or common law) are hereby excluded to the fullest extent permitted by law.
11. LIMITS OF LIABILITY
11.1. Nothing in these Conditions shall exclude or limit EBS’s liability for:
11.1.1. fraud or fraudulent misrepresentation;
11.1.2. death or personal injury caused by its negligence;
11.1.3. breach of terms regarding title implied under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
11.1.4. any other liability to the extent that the same may not be excluded or limited as a matter of law.
11.2. Without prejudice to Condition 11.1 above, EBS’s maximum aggregate liability to the Customer under or in connection with the Contract whether arising in contract, tort (including, without limitation, negligence) or otherwise shall in no event exceed an amount equal to the aggregate price paid by the Customer for the Goods and/or Services under the Contract plus any additional amount paid (if any) in respect of any replacement Goods and/or Corrective Services.
11.3. Without prejudice to Condition 11.1, EBS shall, in no circumstances, be liable to the Customer by reason of breach of contract, tort (including, without limitation, negligence) breach of statutory duty or otherwise for any:
11.3.1. special damages; or
11.3.2. loss of business or profit (actual or anticipated), loss of income, loss of revenue, loss of goodwill, loss of use, loss of chargeable time, loss of anticipated savings or other economic loss; or
11.3.3. any loss arising from any claim against the Customer by any third party; or
11.3.4. any consequential or indirect loss, damage or expense of any kind howsoever caused or arising whether or not such loss or damage was foreseeable or in the contemplation of the parties; or
11.3.5. work stoppage; or
11.3.6. loss as a result of third-party claims; or
11.3.7. data loss or corruption of data; or
11.3.8. computer failure.
11.4. Save as expressly provided in Conditions 10.1 and/or 10.6, all conditions, warranties, representations and terms, express or implied whether by statute, common law or otherwise in relation to the Goods and/or Services are hereby expressly excluded to the fullest extent permitted at law.
12. INTELLECTUAL PROPERTY AND THIRD-PARTY CLAIMS
12.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by EBS.
12.2. EBS grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables.
12.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by Condition 12.2.
12.4. The Customer grants EBS a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to EBS for the term of the Contract for the purpose of providing the Services to the Customer.
12.5. Notwithstanding delivery of and the passing of title in any Goods or Deliverables, nothing in any Contract shall have the effect of granting or transferring to, or vesting in, the Customer any intellectual property rights, or any other right, title or interest in or to any Goods or Deliverables or any methodologies for the supply, design or content of the Deliverables or otherwise.
12.6. The Customer shall indemnify and keep indemnified EBS fully on demand from and against any and all actions, claims, costs, losses (including without limitation, loss of profits whether actual or anticipated, revenue or goodwill), damages, demands, expenses (including without limitation legal costs and expenses), proceedings, and other liabilities incurred by, or awarded against, EBS in connection with, or paid or agreed to be paid by EBS in settlement of, any claim of alleged infringement of any rights of a third party as a result of or in connection with the carrying out by EBS, its employee, sub-contractor or agent of the manufacture of the Goods or any work required to be done to Goods or performance of the Services in accordance with the requirements or Specifications of the Customer or arising out of any defect in the Goods or Deliverables to the extent occasioned or contributed to or resulting from any act or omission of the Customer, its employees, sub-contractors or agents.
13. INFRINGEMENT OF THIRD-PARTY RIGHTS
13.1. The Customer shall promptly inform EBS of any threat, claim or allegation of which the Customer becomes aware that the Goods, Deliverables (or any of them) infringe the intellectual property or other rights of any person and comply with any reasonable request of EBS in relation to the continued use of the Goods and/or the return of the Goods to EBS The Customer shall use all reasonable endeavours to minimise any losses it incurs or is likely to incur.
13.2. The Customer shall not take any action or make any admission of liability in connection with any threat, claim or allegation of the nature outlined in Condition 13.1 without the prior written consent of a duly authorised representative on behalf of EBS.
13.3. If required by a duly authorised representative on behalf of EBS, the Customer agrees to take such action or steps in connection with any threat, claim or allegation notified to EBS pursuant to the Customer’s obligations under Condition 13.1 as EBS may request. Subject to Condition 13.4, any such action or steps taken by the Customer shall be at EBS’s cost.
13.4. Where any threat, claim or allegation of the nature outlined in Condition 13.1 has, in the reasonable opinion of EBS, arisen as a result of any use of the Goods or Deliverables by the Customer in any manner or for any purpose prohibited by EBS or other than in accordance with EBS’s instructions and in accordance with these Conditions, any action or steps taken by the Customer at EBS’s request under Condition 13.2 shall be at the Customer’s sole cost.
14. DESIGN ALTERATIONS AND SUBSTITUTION OF GOODS
14.1. The Customer agrees that:
14.1.1. EBS shall be entitled at any time to alter or change the general specifications of its products or services as published on either or both EBS’s website and Order subject to reasonable prior notice of any such alteration or change being given to the Customer to the extent only that EBS itself is given such notice by any third-party supplier; and
14.1.2. should any materials or products required for the Goods or Deliverables be unavailable or otherwise for any reason whatsoever, EBS reserves the right to supply substitutes materials or products reasonably deemed by EBS to be similar to the required Specification and suitable for the general purpose of the Goods or Deliverables and suitable for the intended purpose of the Goods or Deliverables as understood by EBS and that any such change or alteration affecting the Goods or Deliverables and/or the use by EBS of such substitutes shall be accepted by the Customer and deemed to constitute proper performance by EBS of its obligations under the Contract.
14.2. Should EBS be required by any regulatory authority, any safety requirement or other statutory requirement to alter the specification of any Goods or Deliverables, EBS reserves the right to amend the Specification of the Goods or Deliverables without prior notice to the Customer.
15. CONFIDENTIAL INFORMATION
15.1. The Customer shall treat all drawings, procedures, instructions, documents and other information of any kind whatsoever and in any form (written, electronic or otherwise) (including without limitation the Deliverables and any and all information relating to the Goods, Deliverables and Services) supplied by EBS to the Customer as strictly confidential (except to the extent that any such information is available in the public domain) (“Confidential Information”) and shall not without the prior written consent of EBS, use, disclose or part with possession of any such Confidential Information extracts therefrom or copies thereof or use any such Confidential Information otherwise than in connection with the purchase and use (but not the re-sale of) Goods and for the purpose of receiving the Services under a Contract to which they relate.
16. FORCE MAJEURE
16.1. EBS reserves the right to suspend, delay or cancel the performance of a Contract or any part thereof where EBS is prevented or hindered from performing the same due to any cause beyond its reasonable control, including but not limited to transportation delays, acts of god, earthquake, fire, flood, accident, strike, lockout, war, riot, civil unrest, martial law, embargo, excessive demand for the Goods or Services over the available supply, government regulation or any other cause or circumstance which prevents or hinders EBSs performance of the Contract.
16.2. Notwithstanding anything to the contrary in these Conditions, EBS shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of Goods or performance of the Services by EBS being prevented, hindered, delayed or rendered uneconomic or for the suspension or cancellation of a Contract or for non-conformity of Goods or Deliverables with the requirements of a Contract by reason of any circumstances or event beyond EBS’s reasonable control, including but not limited to the matters set out at Condition 16.1.
16.3. If due to such circumstances or events EBS has insufficient stocks or personnel resources to meet all its commitments, EBS may apportion available stocks and personnel resources between its customers at its sole discretion.
16.4. Cancellation of a Contract under this Condition 16 shall be without prejudice to any rights or liabilities of either party which accrued prior to the date of cancellation other than as a result of the relevant event of force Majeure.
17. INSOLVENCY OF CUSTOMER
17.1. Without prejudice to any other right or remedy available to EBS, EBS shall be entitled to treat any Contract as repudiated and/or withhold any further deliveries of Goods or performance of Services without any liability to the Customer and, if any Goods have been delivered or Services performed but not paid for, the total amount payable therefor shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary, if:
17.1.1. the Customer is, or is deemed to be insolvent, or is unable to pay its debts as they fall due;
17.1.2. the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
17.1.3. an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Customer; or
17.1.4. the Customer ceases, or threatens to cease, to carry on business, or suspends its business operations, unless the Customer is succeeded by a permitted assignee under Condition 20.1; or
17.1.5. any equivalent or analogous event or proceeding occurs in any other applicable jurisdiction; or
17.1.6. EBS reasonably believes that any of the events mentioned above is about to occur in relation to the Customer or any other matter which in the opinion of EBS may prejudice its rights against the Customer.
18. TERMINATION
18.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 60 days, nor more than 180 days’ prior written notice.
18.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
18.2.1. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
18.2.2. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
18.2.3. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy or
18.2.4. the Customer commits any breach of the Contract or any other contract with EBS or any Software Licence or Maintenance Agreement with any third party.
18.3. Without affecting any other right or remedy available to it, EBS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
18.4. Without affecting any other right or remedy available to it, EBS may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and EBS if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in Condition 18.2, or EBS reasonably believes that the Customer is about to become subject to any of them.
19. CONSEQUENCES OF TERMINATION
19.1. On termination of the Contract:
19.1.1. the Customer shall immediately pay to EBS all outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, EBS shall submit an invoice, which shall be payable by the Customer immediately on receipt;
19.1.2. the Customer shall return all of the Deliverable Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then EBS may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
19.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
19.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
20. ASSIGNMENT AND SUB-CONTRACTING
20.1. The Customer shall not assign, transfer, subcontract, novate, charge or otherwise dispose of or deal in any other manner with the Contract or all or any of its rights, interests and/or obligations under the Contract without the prior written consent of an authorised representative of EBS.
20.2 EBS may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its rights and obligations under the Contract to any third party or agent.
20.3. Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
20.4. The Customer will not solicit, attempt to solicit or recruit any employee, agent or consultant of EBS without the prior written consent of EBS (such consent not to be unreasonably withheld or delayed). The Customer agrees to cooperate fully with EBS so far as reasonably possible to minimise the interruption to the EBS business.
21. GENERAL
22.1. For the avoidance of doubt, the Customer acknowledges that for the purposes of the Contract, EBS is acting as an independent contractor in its own right and not as any member of the Sage group of companies and EBS is not authorised to act on behalf of Sage or to make any representation, warranty or guarantees on behalf of Sage or bind Sage in any way. Any Software Licence entered into with Sage pursuant to this Contract will be between the Customer and Sage directly.
23. WAIVER
23.1. No waiver by EBS of any of EBS’s rights under the Contract shall be effective unless it is in writing and signed by a duly authorised representative on behalf of EBS. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of EBS’s right in relation to different circumstances or the re-occurrence of similar circumstances.
23.2. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
23.3. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
24. RIGHTS OF THIRD PARTIES
24.1. EBS and the Customer do not intend that any term of a Contract should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, by any person who is not a party to the Contract other than any third party software provider with whom you enter a Software Licence pursuant to this Contract and save that where a Contract is entered into pursuant to which any rights contained in the Contract are assigned to a third party, nothing in this Condition 24 shall, of itself, operate to prevent the assignee from taking the benefit of, and enforcing, any right so assigned. However, EBS and the Customer reserve the right to terminate the Contract or change any term of it by written agreement without the consent of any third-party software provider.
25. LAW AND JURISDICTION
25.1. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
25.2. Any proceedings relating to any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims) instituted against either party shall be brought in the courts of England and Wales. Each party agrees that the courts of England and Wales shall have exclusive jurisdiction over such disputes or claims.
26. CONSTRUCTION AND SEVERANCE
26.1. The headings of these Conditions are for convenience only and shall not affect the interpretation thereof.
26.2. Each of the Conditions contained herein shall be construed as a separate condition. If any provision or part of a provision of these Conditions shall be found by any court or other authority of competent jurisdiction to be invalid, illegal, void or unenforceable, it shall be deemed to be severed from these Conditions and therefore not to form part of the Contract and shall not affect the remaining provisions or parts of such provisions of these Conditions which shall continue in full force and effect.
26.3. If a provision of the Contract (or part of a provision) is found to be illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
27. NOTICES
27.1. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier or email to the other party at the address specified in the Order (in the case of the Customer) and the registered address (in the case of EBS) or the email address specified in the order or order acceptance, as the case may be, or as otherwise specified by the relevant party by notice in writing to the other party.
27.2. Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact (if provided) or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed or if sent by email, at 9.00am on the first Business Day of sending.
27.3. This Condition 27 shall not apply to the service of any court proceedings in any proceedings or other documents in any legal action.
