Terms & Conditions

Terms & Conditions

Maintenance of hardware

1            Scope and Interpretation

• These terms and conditions  (terms) together with the Order Form constitute    the contract between the Buyer and Supplier (contract) for the maintenance of hardware by the Supplier. Separate terms and conditions apply to the sale and installation of hardware and the development, supply and support of software.
• In these Terms each capitalised term will have the meaning set out in Schedule 1 (Definitions) or as defined by bold, bracketed text.

2            Orders

• The Contract shall take effect when the Buyer issues a purchase order and the Supplier has issued an order acknowledgement and the supplier takes any action towards fulfilling the Contract (Commencement Date).  The Supplier has no obligation to accept any order forms. Unless terminated earlier in accordance with its terms, the Contract shall continue for the Initial Period and shall automatically renew for successive Renewal Periods. The Buyer may give written notice to the Supplier, not later than 60 days before the end of the Initial Period or the relevant Renewal Period, to terminate the Contract at the end of the Initial Period or the relevant Renewal Period as the case may The Supplier may, at any time by giving the Buyer not less than 30 days’ notice in writing, terminate the Contract.
• The Contract constitutes the entire agreement between the parties in respect of maintenance of the Maintained Hardware. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
• Any provisions not set out in the Contract, including but not limited to, any provisions the Buyer applies or purports to apply by way of any purchase order/order confirmation or similar document, shall have no application to the maintenance of the Maintained Hardware by the Supplier, however those provisions are introduced. The Buyer acknowledges and agrees that the Supplier shall not be bound by any such provisions.

3            Cancellation of Contract

• Save as provided by clause 1 and clause 14, the Buyer shall have no right to terminate the Contract. Any deposits or pre-paid charges paid by the Buyer shall be non-refundable.

4            Supply of Maintenance Services

• Prior to, or shortly after, the Commencement Date, the Supplier may attend the Location and inspect the Maintained Hardware. Where, at the Supplier’s sole discretion, the Supplier determines that any Maintained Hardware is not in Good Working Order, the Supplier may remove that Maintained Hardware from the Contract (in which case such hardware shall cease to be Maintained Hardware), or may require that the Buyer carries out remedial repair works (at the Buyer’s cost) (Rectification Works) before the Supplier will cover the relevant Maintained Hardware under the If the Supplier agrees to carry out the Rectification Works, such works will be chargeable as an Additional Service.
• During the Term, the Supplier shall provide the Buyer with the Maintenance Services for the Maintained Hardware at the Location subject to all Charges and other payments having been paid. The Maintenance Services will only be provided during Normal Business Hours unless otherwise agreed by the Supplier. Any Maintenance Services provided by the Supplier outside of Normal Business Hours shall incur additional charges at the Supplier’s then applicable rates for overtime, weekend or holiday work. Test weight hire and lifting equipment will be chargeable where applicable.
• The Maintenance Services to be supplied by the Supplier will depend on the level of cover subscribed to by the Buyer in the Order Form (Cover Level). The extent of the Maintenance Services for each Cover Level and any additional applicable exclusions are set out in the Order Form and in more detail in the Contract Options Form and/or the Final
• Depending on the Cover Level subscribed to by the Buyer, the Maintenance Services may be comprised of non-reactive periodic services (e.g. calibration checks/inspections) (Periodic Services) and reactive services in the event of an Incident (Emergency Maintenance Services).
• The Supplier shall attend at the Location and deliver the Periodic Services at the frequency set out in the Order Form, subject to the parties agreeing a mutually convenient time and date in advance of each
• Emergency Maintenance Services will be delivered by the Supplier only if included in the Buyer’s Cover Level. The Buyer (if subscribed to a Cover Level including Emergency Maintenance Services) shall promptly notify the Supplier of an Incident and shall provide a detailed description of the Incident and the impact of the same on the Buyer’s business Subject to the following sentence, following an Incident being reported, the Supplier shall attend at the Location within a reasonable period of time to investigate the cause of the Incident and shall use commercially reasonable endeavours to restore the Maintained Hardware to Good Working Order. In the event that an Incident renders the Maintained Hardware inoperable with no reasonable workaround available, and providing that such inoperability is having a significant adverse impact on the Buyer’s business operations, then the Supplier will use reasonable endeavours to attend

at the Location to assess the Incident within 8 Normal Business Hours. Where completion of the Maintenance Services (or any part thereof) is not reasonably practicable within Normal Business Hours, the Supplier shall either arrange for a further visit to the Location within Normal Business Hours to complete the Maintenance Services and/or may at its discretion remove the Maintained Hardware or part of the Maintained Hardware in order to carry out the relevant elements of the Maintenance Services at an alternate location.

• The Supplier does not guarantee that it will be able to resolve all Incidents or return the Maintained Hardware to Good Working Order, whether in any given timescale or at all. The Supplier shall have no obligation to continue to provide Maintenance Services where the Maintained Equipment is Obsolete.

5            Supply of Additional Services

• The Supplier is not obliged to perform any Additional
• In the event that the Buyer requires Additional Services, the Supplier shall, subject to the Supplier agreeing to perform such Additional Services, use reasonable endeavours to perform the Additional Services within a reasonable time.
• Save as expressly provided for in the Order Form, Additional Services shall be charged at the Standard Rates for each of the Supplier’s personnel reasonably required to provide such Additional Services. With the exception of any Additional Services not provided at the Location, such fees shall be calculated from the time when the Supplier’s personnel arrive at the Location until completion of the Additional Services. Travel time shall also be payable in addition at the Standard Rates along with any expenses.
• Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Maintained Hardware was not in Good Working Order due to any of the Excluded Causes, the Supplier may charge, and the Buyer shall pay, additional Charges calculated at the Standard Rates in respect of that work.

6            Replacement Parts

• Save where the Buyer has subscribed to Inclusive Cover, and subject to any exclusions applicable to Inclusive Cover, the Buyer must pay for all replacement parts at the Supplier’s then standard rates in addition to the Charges payable for the Services.
• Title to any replacement parts provided by the Supplier to the Buyer shall not pass to the Buyer until installation of such replacement parts, strictly subject to the Supplier having received payment in full (in cleared funds) for all applicable Charges in respect of the replacement Risk in any such replacement parts shall pass to the Buyer on arrival at the Location.
• All parts and components removed from the Maintained Hardware by the Supplier in the course of performing the Services shall no longer constitute part of the Maintained Hardware and will be the property of the Supplier. The Buyer will assign to the Supplier, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Hardware by the Supplier in accordance with this clause 3, such assignment to take effect immediately on the removal of the relevant part from the Maintained Hardware. For the purposes of this sub-clause, ‘assign’ includes ‘transfer ownership of’.
• Inclusive Cover only covers the cost of electronic components and mechanical wear parts. Inclusive Cover does not include, without limitation, consumable items (e.g. printer rolls and ink ribbons), the weighbridge deck or civil foundations. Inclusive Cover does not include the cost of replacement parts required due to any of the Excluded
• The Supplier may supply “used” replacement parts or
• The Supplier shall not be required to provide replacement parts where the Maintained Hardware is Obsolete and shall have no liability to the Buyer whatsoever in this regard.

7            Charges and Payment

• The Charges payable for the supply of Maintenance Services are set out in the Order Form or, if no Charges are set out in the Order Form, such Charges shall be calculated in accordance with the Standard The Charges for any Additional Services shall be calculated in accordance with the Standard Rates. The Charges and the Standard Rates are exclusive of VAT and any other import taxes, duties, expenses or other similar charges which the Buyer shall also pay.
• The Supplier may increase the Charges to take account of additional time or costs incurred which have not been included as part of the Charges stated in the Order Form, such increase to be calculated in accordance with the Standard Rates.
• Subject to clause 4, the Supplier may increase its Charges on each anniversary of the Commencement Date and any such increase will be reflected in the next invoice issued to the Buyer. Any increases implemented by the Supplier shall be capped in line with the greater of the percentage increase in the Consumer Prices Index during the previous year and 4%.
• The Supplier may increase its Standard Rates and its Charges for replacement parts from time to time.
• The Supplier shall raise invoices for the Charges in accordance with the timings stated in the Order Form save that, where no timings are stated in respect of any Charges, the Supplier may raise invoices at such intervals as the Supplier reasonably determines which may include invoicing in advance. The Buyer must pay all invoices in cleared funds by payment into the bank account nominated by the Supplier before the end of the calendar month in which the invoice was raised.

• If the Buyer fails to pay any Charges by the due date for payment then the Supplier shall be entitled to charge interest on the overdue amount at the rate of 5% per annum above HSBC Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment, whether before or after judgment.

8            Warranties

• No guarantee or warranty is given for any parts which are not manufactured by the Supplier and all liability for any damage, loss or expense caused by such parts being defective are expressly excluded. The Supplier’s sole obligation in respect of such parts shall be to use reasonable endeavours to pass on the benefits of any warranty provided by the manufacturer or supplier of those parts.
• Subject to clause 1 the Supplier warrants to the Buyer that:
  • the Services performed under the Contract shall be performed:
    • using reasonable care and skill;
    • in accordance with all applicable law; and
  • on delivery, and for a period of 6 months thereafter, any replacement parts provided by the Supplier shall be free from material defects in design, material and workmanship.
• Subject to clause 4, if the Buyer gives notice in writing within 6 months of the delivery of any Services that any of the Services were not performed in accordance with the warranty set out at clause 8.2.1 then the Supplier shall re-perform or make good the defective Service.
• The Supplier’s obligations under clause 3 are strictly subject to:
  • the Buyer promptly notifying the Supplier upon discovery of the defect;
  • the Supplier being given a reasonable opportunity to examine such alleged defect; and
  • the Supplier, acting reasonably, determining that the relevant Service was not performed in accordance with clause 2.1.
• Subject to clauses 6 and 8.7, if the Buyer gives written notice within 6 months from the date of delivery of a replacement part that the replacement part does not comply with the warranty set out in clause 8.2.2, then the Supplier shall, at its sole option, repair or replace the defective replacement part, save where the defective part is beyond repair and an appropriate replacement is unavailable.
• The Supplier’s obligations under clause 5 are strictly subject to:
  • the Buyer promptly notifying the Supplier upon discovery of the defect;
  • the Supplier being given a reasonable opportunity to examine such replacement part;
  • the Supplier, acting reasonably, determining that the replacement part does not comply with the warranty given under clause 2.2; and
  • the Buyer transferring (with full title guarantee) title in the defective replacement part to the Supplier where title to the replacement part has already passed to the Buyer.
• The Supplier shall not be liable for any failure to comply with any warranty in clause 2.2 if:
  • the defect arises because the Buyer has failed to follow any oral or written instructions of the Supplier or good trade practice, or because the Buyer alters or repairs the replacement part without the Supplier’s prior written consent; or
  • the defect arises as a result of fair wear and tear, wilful damage, negligence (not by the Supplier), abnormal working conditions or any act or omission of the Buyer.
• Except as provided in this clause 8, the Supplier shall have no liability to the Buyer in respect of the Supplier’s failure to comply with the warranties set out in clause 2.1 or 8.2.2. All warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are, to the fullest extent permitted by law, excluded from the Contract.
• The terms of the Contract shall apply to any repaired or replacement parts supplied under clause 5, however, such repaired or replacement part shall only benefit from the warranties provided under this clause for the unexpired element of the original warranty period relating to the repaired or replaced part. The terms of the Contract shall not apply to any re-performed Services.
• Each party warrants that it has the full capacity and authority and all necessary permits, licences and consents necessary to enter into the Contract and that those signing the Contract are duly authorised to bind the party for whom they sign.

9            Buyer’s obligations

• The Buyer shall:
  • provide and procure all reasonable assistance, and information as required by the Supplier including all relevant instruction manuals, drawings and other information supplied by the manufacturer, designer or installer of the Maintained Hardware;

• ensure that any Rectification Works have been carried out strictly in accordance with the Supplier’s requirements;
• obtain and maintain of its own cost all necessary licences, permissions and consents required in relation to the delivery and receipt of the Services;
• ensure that the Maintained Hardware is installed and kept at the Location and under suitable conditions as specified in the terms and conditions under which the Maintained Hardware was supplied;
• ensure that the Location is suitably and properly prepared for the delivery of the Services in accordance with the Supplier’s instructions and is safe for entry and performance of the Services by the Supplier and its employees, agents and subcontractors;
• permit only trained and competent personnel to use the Maintained Hardware;
• ensure that any applicable manufacturer’s manuals and guidance along with any instructions as the Supplier may give from time to time are followed;
• not move the Maintained Hardware from the Location without the prior written approval of the Supplier;
• notify the Supplier in writing of any changes or alterations made to the Maintained Hardware;
• notify the Supplier promptly if the Maintained Hardware is discovered to be operating incorrectly;
• at all reasonable times permit full and free access to the Location and to the Maintained Hardware to the Supplier, its employees, sub-contractors and agents and provide them with adequate working space and any facilities or services as are reasonably required to enable the Supplier to perform the Services whilst at the Location; and
• take any steps reasonably necessary to ensure the safety of the Supplier’s personnel when attending the Location.

• Buyer warrants that it is the sole beneficial owner of the Maintained

10          Indemnity

• The Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against any Losses arising from or in connection with any breach by the Buyer of its obligations under clause 9 and/or clause 3.

11          Relief Events

• The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from any events, circumstances or causes beyond its reasonable control including, without limitation, acts of God; natural disasters; terrorist attacks; civil war, commotion or riots; imposition of sanctions or embargos; any law or action taken by a governmental or public authority (including without limitation export or import restrictions, quotas or prohibitions); failure to obtain or renew, or the cancellation of, any licence, permit or consent; collapse of buildings; unavailability, interruption or failure of utility supplies; labour or trade disputes, strikes or industrial action; and non-performance by suppliers or subcontractors (Force Majeure Event).
• If any act or omission of the Buyer (including without limitation the Buyer failing to comply with its obligations under the Contract) causes or contributes to the Supplier failing or being delayed in the Supplier’s performance of any obligation under the Contract, or if the Buyer fails to make any payment when due, (Relief Event), the Supplier shall without limiting its other rights or remedies:
  • have the right to suspend performance under the Contract until the Buyer remedies the default; and
  • have the right to rely on the Relief Event to relieve it from the performance of any such obligation; and
  • have no liability howsoever arising from the Supplier’s failure or delay to perform any such obligation.
• The Buyer acknowledges that where the Supplier exercises any of the remedies under clauses 2.1 to 11.2.2 (inclusive), it may not be possible for the Supplier to recommence performance of its obligations immediately on the remedying of the Relief Event by the Buyer. As such, any recommencement of performance will be subject to the Supplier’s ability to re-allocate its resources accordingly.
• The Buyer shall reimburse the Supplier on written demand for any Losses sustained or incurred by the Supplier arising from the Relief Such Losses may include the costs of the Supplier being unable to re-allocate or otherwise utilise its personnel or the costs associated with performing the Services at a later date.

12          Intellectual Property

• All intellectual property rights in or arising out of or in connection with the Services or any other services performed by the Supplier shall be owned by the Supplier.

13          Liability

• Nothing in the Contract shall limit or exclude the Supplier’s liability for:
• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• fraud or fraudulent misrepresentation; or
• any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
• Subject to clause 1:
  • the Supplier shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit (direct or indirect), loss of business or business opportunities, loss or corruption of data or information, loss of revenue, loss of anticipated savings, loss of (or loss or liability under) other contracts, loss of production, loss of use, or any indirect or consequential loss arising under or in connection with the Contract; and
  • the Supplier’s total liability to the Buyer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total amount of Charges paid by the Buyer for the Services during the twelve (12) month period immediately preceding the date on which the cause of action first arose or, if the claim arose during any period before 12 months has elapsed from the Commencement Date, during that shorter period.
• Where any Maintained Hardware is designed to be used for safety purposes, the Buyer agrees that it will not be the only safety system it employs in respect of the relevant risks and agrees to employ other protective measures against such risks to protect against the relevant Maintained Hardware failing to perform.

14          Termination

• Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within twenty-one (21) days of that party being notified in writing to do so.
• Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer if:
  • the Buyer 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), 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 or, if any step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • the Buyer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
  • the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such
• Where the Supplier is entitled to terminate the Contract under this clause 14, it shall also be entitled to terminate any other contracts with the
• Termination of the Contract shall not affect either of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
• Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
• On termination of the Contract for any reason:
  • the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services performed and any costs or expenses already incurred by the Supplier but for which no invoice has been submitted, the Supplier shall submit an invoice which shall be payable by the Buyer immediately on receipt; and
  • the Buyer shall on request return or destroy or permanently erase any Confidential Information of the Supplier;
  • the Buyer shall return all of the Supplier’s materials and equipment and if the Buyer fails to do so, then the Supplier may enter the Buyer’s premises and take possession of them.

15          General

• Each party undertakes that it shall not at any time disclose to any person any Confidential Information or information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.

• Each party may disclose the other party’s Confidential Information:
  • to its employees, officers, representatives or advisers (and in the case of the Supplier being the recipient of Confidential Information, to its Affiliates, agents and subcontractors) who need to know such information for the purposes of exercising the party’s rights or performing its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses such Confidential Information comply with clause 1; and
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
• No party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
• The Supplier may refer to the Buyer as being a client of the Supplier in customer reference lists and sales presentations, advertising or press
• Assignment and other dealings. The Buyer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
• No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• A waiver of any right or remedy by the Supplier is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy by the Supplier shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy of the Supplier.

15.8     Dispute Resolution

• If a dispute arises out of or in connection with the contract or the new performance, validity or enforceability of it (Dispute) then, except as expressly provided in teh contract, the parties shall follow the proceedure set out in this clause:
  • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents;
  • following service of the Dispute Notice, the parties shall use reasonable endeavours to promptly resolve the Dispute by way of without prejudice discussions between the relevant representatives and in accordance with the following escalation levels and timescales:

Escalation Level	Supplier representative	Buyer representative	Time for resolution
1	Service Manager	Manager	10 Business Days
2	Managing Director	Managing Director	5 Business Days

and

• if, for any reason, the parties are unable to resolve the Dispute within the timescales and escalation levels referred to in clause 8.1(b), or should either party fail to engage or cease its engagement in that process, then the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 15.13.

• Nothing in clause 8 shall prevent the Supplier from commencing Court proceedings in accordance with clause 15.13 at any time.

• If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
• Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have notified to the other party, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service. Any other form of delivery including, without limitation, delivery via fax or email, shall not be valid. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
• The provisions of clause 10 shall not apply to the service of any proceedings or other documents in any legal action.
• Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
• Governing law and jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

Schedule 1 – Definitions

The terms listed here shall have the following meanings:

Additional Services: any services which fall outside the scope of the Buyer’s Cover Level including, but not limited to: (i) any services which are required to restore any malfunctioning or failed Maintained Hardware to Good Working Order where the malfunction or failure results from, or is caused by, any of the Excluded Causes; and (ii) any site visits/additional inspections of Maintained Hardware which the Buyer may require;

Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;

Business Day: any a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

the Buyer: the entity identified as such on the Order Form;

Charges: the charges payable by the Buyer to the Supplier in respect of the Services and any replacement parts;

Commencement Date: has the meaning given to it in clause 2.1;

Confidential Information: information of commercial value and any other confidential or proprietary information, in whatever form or medium, disclosed by a party (or any of its Affiliates) to the other party (or any of its Affiliates), including, without limitation, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to business affairs, customers, suppliers, pricing and marketing and, for clarity, including (in the case of the Supplier’s information) information relating to the Maintained Hardware or any of its constituent parts and the Services;

Consumer Prices Index: the Consumer Prices Index (CPI) (all items) (United Kingdom);

Contract Options Form: the contract options form provided to the Buyer by the Supplier which set out details of the services included and excluded for each Cover Level;

Cover Level: has the meaning given to it in clause 4.3;

Emergency Maintenance Services: has the meaning given to it in clause 4.4;

Excluded Causes: means

• wilful damage;
• accidents including any accidental damage;
• flooding or other similar occurrences;
• rodent/animal damage;
• a defect in the manufacturer’s design of the Maintained Hardware;
• faulty materials or workmanship in the manufacture of the Maintained Hardware or any other defect covered by manufacturer warranty;
• use of the Maintained Hardware with other hardware or materials not supplied or approved in writing by the Supplier or the relevant manufacturer of the Maintained Hardware;
• any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents;
• the Buyer or a third party moving the Maintained Hardware within and/or from the Location;
• the use of the Maintained Hardware in breach of any of the agreement under which the Maintained Hardware was supplied;
• failure to adhere to and any manufacturer guidance, documentation or advice in relation to the use, storage and maintenance of the Maintained Hardware;
• high water levels;
• build up of dirt in the scale pit;
• a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Hardware;
• the Maintained Hardware becoming Obsolete;
• the neglect or misuse of the Maintained Hardware; or
• any other exclusions set out in the Contract or otherwise made know to the Buyer;

Final Quotation: the final agreed written quotation and accompanying documentation provided to the Buyer setting out, amongst other things, details of the Maintenance Services;

Good Working Order: the Maintained Hardware operates materially in accordance with generally accepted and reasonable industry standards for that type of hardware taking account of its age and condition;

Inclusive Cover: the Cover Level offered by the Supplier which is inclusive of the costs of certain spare/replacement parts, but does included two service visits with a calibration check at the time of one visit with labour to attend callouts/emergency visits. Unless amended in writing and subject to applicable exclusions;

Breakdown Cover: the Cover Level offered by the supplier excludes spare parts but does included two service visits with a calibration check at the time of one visit with labour to attend callouts/emergency visits .Unless amended in writing and subject to applicable exclusions.

Standard Cover: the Cover Level offered by the supplier excludes spare parts but does included two service visits with a calibration check at the time of one visit unless amended in writing and subject to applicable exclusions.

Annual Calibration: the Cover Level offered by the supplier only includes for one annual calibration check, unless amended in writing and subject to applicable exclusions.

Exclusions for All Cover Levels:

• Re-verification fees on trade approved equipment if required.
• Off-site repairs subject to a separate quotation.
• Certain equipment may need to be sent to the manufacture for calibration which will involve additional charges.
• Calibration adjustment will be carried out where & if technical manuals are available.
• Week end and out of hours are extra & subject to an additional quotation.
• Hire of replacement equipment if application while repairs are being carried out at discounted rates.
• Calibration visits are pre-booked with customer if the equipment is not available at this time an additional charge will be applicable.

Incident: the Maintained Hardware malfunctioning or suffering a breakdown such that it ceases to be in Good Working Order other than as a result of an Excluded Cause;

Initial Period: 12 months from the Commencement Date;

Location: the location of the Maintained Hardware as specified in the Order Form, or any other location as may be agreed by the parties in writing from time to time;

Losses: all liabilities, costs, expenses, damages, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses and any indirect or consequential losses;

Maintained Hardware: the hardware to be maintained by the Supplier pursuant to the Contract as specified in the Order Form;

Maintenance Services: the Periodic Services and (if applicable) Emergency Maintenance Services to be supplied by the Supplier in relation to the Maintained Hardware, such Maintenance Services shall be limited to the scope of the relevant Cover Level subscribed to by the Buyer;

Normal Business Hours: any hours between 8:00am and 4:30pm GMT Monday -Thursday and 8.00am -1.00pm Fridays.

Obsolete: the Maintained Hardware is, in the Supplier’s reasonable opinion:

(i) obsolete, whether by virtue of spare parts not being reasonably available on commercially reasonable terms, or otherwise; or (ii) beyond reasonable economic repair taking account of the time and costs required to effect necessary repairs to, or carry out Services on such Maintained Hardware;

Order Form: the order form attached to or accompanying these Terms;

Periodic Services: has the meaning given to it in clause 4.4;

Renewal Period: each successive 12-month period after the Initial Period for which the Contract is renewed;

Services: the Maintenance Services and the Additional Services;

Standard Rates: the Supplier’s standard rates as may be amended from time to time including, without limitation, its standard hourly rates, any rates that apply in relation to travel time and rates applicable to holiday, weekend, and out of hours work;

the Supplier: Phoenix Scales Ltd; and

Term: the Initial Period together with the Renewal Periods.

Hire, Sales and Installation of Hardware

1            Scope and Interpretation

• These terms and conditions (Hardware Terms) together with the Order Form (to the extent the Order Form applies to the supply and installation of Hardware) constitute the contract between the Buyer and Supplier (Hardware Contract) for the sale and installation of the Hardware by the Supplier. Separate terms and conditions apply to maintenance of the Hardware and the development, supply and support of
• In these Hardware Terms each capitalised term will have the meaning set out in Schedule 1 (Definitions) or as defined by bold, bracketed

2            Orders

• The Contract shall take effect when the Buyer issues a purchase order and the Supplier has issued an order acknowledgement and the supplier takes any action towards fulfilling the Contract (Commencement Date). The Supplier has no obligation to accept any order forms.
• agreement between the parties in relation to its subject The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Hardware Contract.
• Any provisions not set out in the Hardware Contract, including but not limited to, any the Buyer applies or purports to apply by way of any purchase order/order confirmation or similar document, shall have no application to the sale and installation of the Hardware by the Supplier, however those provisions are The Buyer acknowledges and agrees that the Supplier shall not be bound by any such provisions.

3            Cancellation of Hardware Contract

• Save as provided by clause 13.1, the Buyer shall have no right to terminate the Hardware The Deposit paid by the Buyer and any pre-paid charges shall be non-refundable.

4            Supply of Hardware

• The Buyer is responsible for ensuring that the Specification meets its
• The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements and shall have no liability to the Buyer in respect of any such amendment.
• The Supplier shall deliver the Hardware to the Location. Delivery of Hardware shall be completed on the Hardware’s arrival at the Location. The Supplier shall use reasonable endeavours to deliver the Hardware on the Delivery The time of delivery shall not be of the essence in this Hardware Contract.
• The Supplier may deliver Hardware by instalments. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel or reject any other instalment.
• If the Buyer fails to accept or take delivery of any Hardware then the Supplier may resell or otherwise dispose of that Hardware and, after deducting storage, insurance, selling and other costs incurred, charge the Buyer for any shortfall below the charges for that If the Supplier is unable to sell the relevant Hardware within a reasonable time period, the Supplier may charge the Buyer for the full amount of the charges for that Hardware.
• If the Buyer causes a delay to the delivery or installation of the Hardware and the Supplier can demonstrate that the delay has resulted in an increase in cost (Additional Costs) to the Supplier of carrying out its obligations under the Hardware Contract, the Supplier may notify the Buyer that it wishes to increase the charges by an amount not exceeding any such Additional Costs. The Supplier may invoice the Buyer for any Additional Costs within 14 days of demonstrating the Additional Costs.
• Title to the Hardware shall not pass to the Buyer until the Supplier receives payment in full (in cleared funds and including any Additional Costs) for that Hardware.
• The risk in the Hardware shall pass to the Buyer on the earlier of completion of delivery in accordance with clause 3 and the Supplier receiving payment in full for the Hardware.
• Until title to the Hardware has passed to the Buyer in accordance with clause 4.6, the Buyer shall hold the Hardware on a fiduciary basis as bailee for the Supplier and the Buyer shall:
  • keep and maintain the Hardware in excellent condition (including without limitation ensuring that all maintenance and servicing set out in the User Guide is carried out) and clearly marked as the property of the Supplier and shall keep it insured against all risks for its full price and to the Supplier’s satisfaction;
  • not sell, pledge or in any way charge by way of security for any indebtedness the Hardware, and
  • not remove the Hardware from the
• If before title to Hardware passes to the Buyer, the Buyer becomes subject to any of the events listed in clauses 2.1 to 13.2.3 (inclusive) or the Hardware Contract is terminated for any other reason then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
  • require the Buyer to deliver up all such Hardware in its possession or control; or

• enter any premises of the Buyer to recover the Hardware and the Buyer hereby grants an irrevocable license to the Supplier, its officers, employees and agents, to enter any premises of the Buyer (including with vehicles and removal equipment) to remove any such Hardware; or
• recover the relevant Hardware from the premises of any third party where it is located and the Buyer shall use (at the Buyer’s sole cost and expenses) best endeavours to facilitate such

5            Installation of Hardware

• The Supplier and Buyer shall agree where within the Location, and how, installation of the Hardware is to take place. The Buyer acknowledges that such location will be an approximation and that the actual location of installation may need to be changed at the Supplier’s discretion. On request, the Buyer shall facilitate access to the Supplier to carry out a survey/analysis of the Location and shall provide all necessary assistance to the Supplier to enable the Supplier to determine how installation is to be carried out. The Supplier reserves the right at its absolute discretion to change how installation is to be carried out.
• The Buyer consents to the Supplier carrying out the installation of the Hardware in the manner the Supplier deems The Supplier shall not be responsible for any remedial works or cleaning costs.
• The Supplier shall use reasonable endeavours to install the Hardware on the Installation Date. Time of installation is not of the essence.

6            Charges and payment

• The charges payable for the purchase of the Hardware, delivery and installation are set out on the Order Form. If no charges are set out on the Order Form, charges shall be calculated in accordance with the Supplier’s standard rates applicable at the time of Any charges stated are exclusive of VAT and any other import taxes, duties or other similar charges which the Buyer shall also pay.
• The Supplier may increase its delivery and installation charges to take account of additional time or costs incurred which have not been included as part of the charges stated on the Order Form.
• The Buyer shall pay the Deposit on or before the Deposit Payment
• The Supplier shall raise invoices for the remaining charges in accordance with the timings stated on the Order Form or, if no such timings are stated, on delivery of the The Buyer must pay all invoices in cleared funds by payment into the bank account nominated by the Supplier before the end of the calendar month in which the invoice was raised.
• If the Buyer fails to pay any sum due under the Hardware Contract by the due date for payment then the Supplier shall be entitled to charge interest on the overdue amount at the rate of 5% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment, whether before or after judgment.

7            Warranties

• Any samples, drawings, descriptions, illustrations or advertising materials issued by or on behalf of the Supplier are for the sole purpose of giving an approximate idea of the Hardware and have no contractual
• Subject to clause 8, the Supplier warrants that on delivery, and for the Hardware Warranty Period the Hardware shall be free from material defects in design, material and workmanship and shall in all material respects correspond with its Specification for 12 months.
• The Supplier warrants to the Buyer that the installation of the Hardware and any other services provider under this Hardware Contract (together Services) shall be performed with reasonable care and skill.
• Subject to clause 7.5, if the Buyer gives notice in writing during the Installation Warranty Period that any of the Services were not performed in accordance with the warranty set out at clause 3, then the Supplier shall, at its sole option, re-perform or make good the defective Service or refund the Buyer for any charges already paid in respect of such Service.
• The Supplier’s obligations under clause 4 are strictly subject to:
  • the Buyer promptly notifying the Supplier upon discovery of the defect;
  • the Supplier being given a reasonable opportunity to examine such alleged defect; and
  • the Supplier, acting reasonably, determining that the relevant Service was not performed in accordance with clause 7.3.
• Subject to clauses 7.7 and 7.8, if the Buyer gives written notice during the Hardware Warranty Period that any of the Hardware does not comply with the warranty set out in clause 2 then the Supplier shall, at its sole option, repair or replace the defective Hardware, or refund the charges already paid for the defective Hardware only. The amount of any refund will be reduced to reflect any diminution in value of the Hardware resulting from damage to, or failure to properly maintain, the Hardware and to reasonably reflect any use by the Buyer.
• The Supplier’s obligations under clause 6 are strictly subject to:
  • the Buyer promptly notifying the Supplier upon discovery of the defect;
• the Supplier being given a reasonable opportunity to examine such Hardware;
• the Buyer (if asked to do so by the Supplier) returning such Hardware to the Supplier at the Supplier’s cost;
• the Supplier, acting reasonably, determining that the Hardware is defective such that it does not comply with the warranty given under clause 7.2; and
• the Buyer transferring (with full title guarantee) title in the defective Hardware to the Supplier where the Supplier has elected to refund the charges paid for the Hardware pursuant to clause 7.6 and title to the Hardware has already passed to the
• The Supplier shall not be liable for Supplier’s failure to comply with any warranty in clause 7.2 if:
  • the defect arises because the Buyer has failed to follow the User Guide, any oral or written instructions of the Supplier or good trade practice in respect of the Hardware or because the Buyer alters or repairs the Hardware without the Supplier’s prior written consent;
  • the defect arises as a result of the Supplier following any design, specification or requirement of the Buyer;
  • the defect arises as a result of fair wear and tear, wilful damage, negligence (not by the Supplier), abnormal working conditions or any act or omission of the Buyer; or
  • the Hardware differs from the specification as a result of changes made in accordance with clause 4.2.
• Except as provided in this clause 7, the Supplier shall have no liability to the Buyer in respect of the Supplier’s failure to comply with the warranties set out in clause 7.2 and 7.3 or the Hardware Contract The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Hardware Contract.
• The terms of the Hardware Contract shall apply to any repaired or replacement Hardware supplied under clause 7.6, however, such repaired or replacement Hardware shall only benefit from the warranties provided under this clause 7 for the unexpired element of the original Hardware Warranty Period relating to the repaired or replaced The terms of this Hardware Contract shall not apply to any reperformed Services.
• Each party warrants that it has full capacity and authority, and all necessary licenses, permits and consents to enter into and perform the Hardware Contract and that those signing the Hardware Contract are duly authorised to bind the party for who they sign.

8            Buyer’s obligations

• The Buyer shall:
  • provide and procure all reasonable assistance, access and information as required by the Supplier;
  • obtain and maintain at its own cost all necessary licences (including without limitation any import/export licences), permissions and consents required in relation to the delivery, installation and use of the Hardware;
  • ensure that the Location is suitably and properly prepared for the delivery and installation of the Hardware in accordance with the Supplier’s instructions and is safe for entry by the Supplier and its employees and sub-contractors;
  • provide such access to the Buyer’s premises (including the Location) and other facilities as reasonably required by the Supplier; and
  • comply with any additional obligations set out in the Order

9            Relief Events

• The Supplier shall not be in breach of the Hardware Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Hardware Contract if such delay or failure results from any events, circumstances or causes beyond its reasonable control including, without limitation, acts of God; natural disasters; terrorist attacks; civil war, commotion or riots; imposition of sanctions or embargos; any law or action taken by a governmental or public authority (including without limitation export or import restrictions, quotas or prohibitions); failure to obtain or renew, or the cancellation of, any licence, permit or consent; collapse of buildings; unavailability, interruption or failure of utility supplies; labour or trade disputes, strikes or industrial action; and non- performance by suppliers or subcontractors (Force Majeure Event).
• If any act or omission of the Buyer (including without limitation the Buyer failing to comply with its obligations under the Hardware Contract) causes or contributes to the Supplier failing or being delayed in the delivery or installation of any Hardware or the Supplier’s performance of any other obligation under the Hardware Contract, or if the Buyer fails to make a payment under the Hardware Contract when due, (Relief Event), the Supplier shall without limiting its other rights or remedies:
  • have the right to suspend performance under the Hardware Contract until the Buyer remedies the default; and
  • have the right to rely on the Relief Event to relieve it from the performance of any such obligation; and
  • have no liability howsoever arising from the Supplier’s failure or delay to perform any such obligation.

• The Buyer acknowledges that where the Supplier exercises any of the remedies under clauses 9.2.1 and 9.2.2, it may not be possible for the Supplier to recommence performance of its obligations immediately on the remedying of the Relief Event by the Buyer. As such, any recommencement of performance will be subject to the Supplier’s ability to re-allocate its resources accordingly.
• The Buyer shall reimburse the Supplier on written demand for any Losses sustained or incurred by the Supplier arising from the Relief Such Losses may include, without limitation, the costs of the Supplier being unable to re-allocate or otherwise utilise its personnel and the costs associated with delivering and installing the Hardware at a later date.
• When agreeing the Delivery Date and Installation Date the Supplier takes into account a number of factors which impact the lead time for delivery and installation. Such lead times do not start to run until the Deposit is paid. Without prejudice to the foregoing, any delay in payment of the Deposit will impact the Delivery and Installation
• Installation is strictly subject to the Buyer having returned a completed Foundations Ready Form if applicable (as provided by the Supplier) (FRF) within the timescales required by the Supplier, and the copy of the FRF being complete and accurate. Any delay in the Buyer providing a completed FRF shall delay installation.

10          Intellectual Property

• All intellectual property rights in or arising out of or in connection with the Hardware, its Specification, the Delivery Information Pack and any Services performed by the Supplier shall be owned by the Supplier.

11          Indemnities

• To the extent that Hardware is manufactured in accordance with the Specification and all or part of the Specification is supplied by the Buyer, the Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against all Losses suffered or incurred by the Supplier in connection with any claim for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification (or relevant part thereof).
• The Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against any Losses arising from or in connection with any breach by the Buyer of its obligations under clause 8 or clause 12.3.

12          Liability

• Nothing in this Hardware Contract shall limit or exclude the Supplier’s liability for:
  • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • fraud or fraudulent misrepresentation;
  • breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
  • any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
• Subject to clause 1:
  • the Supplier shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit (direct or indirect), loss of business, loss of revenue, loss of (or loss and liability under) other contracts, loss of production, loss of use, loss of anticipated savings or any indirect or consequential loss arising under or in connection with the Hardware Contract; and
  • the Supplier’s total liability to the Buyer for all other losses arising under or in connection with the Hardware Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total amount of the charges paid by the Buyer for the Hardware under the Hardware Contract.
• Where any Hardware is designed to be used for safety purposes, the Buyer agrees that it will not be the only safety system it employs in respect of the relevant risks and agrees to employ other protective measures against such risks to protect against the relevant Hardware failing to perform.

13          Termination

• Without limiting its other rights or remedies, either party may terminate the Hardware Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Hardware Contract and (if such a breach is remediable) fails to remedy that breach within twenty-one (21) days of that party being notified in writing to do so.
• Without limiting its other rights or remedies, the Supplier may terminate the Hardware Contract with immediate effect by giving written notice to the Buyer if the Buyer:
  • takes any step or action in connection with it entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), 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 or, if any such step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
• the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
• the Buyer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Hardware Contract has been placed in jeopardy; or
• the Buyer fails to pay any amount due under the Hardware Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment.
• Where the Supplier is entitled to terminate the Hardware Contract under this clause 13, it shall also be entitled to terminate any other contracts with the Buyer.
• Termination of the Hardware Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Hardware Contract which existed at or before the date of termination.
• Any provision of the Hardware Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
• On termination of the Hardware Contract for any reason:
  • the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of any Hardware or services supplied and any costs or expenses already incurred by the Supplier but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
  • the Buyer shall on request return or destroy, or permanently erase, any Confidential Information of the Supplier; and
  • the Buyer shall return all of the Supplier’s materials and equipment and if the Buyer fails to do so, then the Supplier may enter the Buyer’s premises and take possession of them.

14          General

• Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 14.2.
• Each party may disclose the other party’s confidential information:
  • to its employees, officers, representatives or advisers (and in the case of the Supplier being the recipient of the Buyer’s Confidential Information, to its Affiliates, agents and subcontractors) who need to know such information for the purposes of exercising the party’s rights or performing its obligations under or in connection with the Hardware Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses such confidential information comply with clause 14.1; and
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
• No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Hardware Contract.
• The Supplier may refer to the Buyer as being a client of the Supplier in customer reference lists, sales presentations, advertising or press
• Assignment and other The Buyer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Hardware Contract without the prior written consent of the Supplier.
• No variation of the Hardware Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• A waiver of any right or remedy by the Supplier is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy by the Supplier shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy by the Supplier.
• Dispute Resolution. If a dispute arises out of or in connection with the Hardware Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in the Hardware Contract, the parties shall follow the procedure set out in this clause:
  • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents;
  • following service of the Dispute Notice, the parties shall use reasonable endeavours to promptly resolve the Dispute by way of without prejudice discussions between the relevant representatives in accordance with the following escalation levels:

Escalation Level	Supplier representative	Buyer representative	Time for resolution
1	Service Manager	Manager	10 Business Days
2	Managing Director	Managing Director	5 Business Days

; and

• if, for any reason, the parties are unable to resolve the Dispute within the timescales and escalation levels referred to in clause 14.8.2, or should either party fail to engage or cease its engagement in that process, then the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 14.13.

Nothing in clause 14.8 shall prevent the Supplier from commencing court proceedings at any time.

• If any provision or part-provision of the Hardware Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
• Any notice or other communication given to a party under or in connection with the Hardware Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have notified to the other party, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service. Any other form of delivery including, without limitation, delivery via fax or email, shall not be valid. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
• The provisions of clause 10 shall not apply to the service of any proceedings or other documents in any legal action.
• Third party No one other than a party to the Hardware Contract and their permitted assignees shall have any right to enforce any of its terms.
• Governing law and jurisdiction. The Hardware Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or

Schedule 1 – Definitions

• The terms listed here shall have the following meanings:

Affiliate                    any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;

Business Day           means any a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

the Buyer                 means the entity identified as such on the Order Form;

Confidential Information

information of commercial value and any other confidential or proprietary information, in whatever form or medium, disclosed by a party (or any of its Affiliates) to the other party (or any of its Affiliates), including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to business affairs, customers, suppliers, pricing and marketing and, for clarity, including (in the case of the Supplier’s information) information relating to the Hardware or any of its constituent parts or its design and construction;

Delivery Date           means the target date for the delivery of the Hardware as agreed between the Buyer and Supplier;

Delivery Information Pack

means the pack of documentation provided to the Buyer on delivery of the Hardware which shall include a User Guide;

Deposit                   means the deposit payable by the Buyer in respect of the Hardware as set out in the Order Form;

Deposit Payment Date

means the final date for payment of the Deposit, as set out on the Order Form;

Final Quotation        means the final agreed written quotation and accompanying documentation provided to the Buyer setting out, amongst other things, the Specification of the Hardware;

Hardware                 means the hardware identified in the Order Form;

Hardware Warranty Period

the duration of the warranty provided by the Supplier in relation to the Hardware as set out in the Final Quotation, such period to commence on delivery of the Hardware;

Installation Date       means the target date for installation of the Hardware as agreed between the Buyer and Supplier;

Installation Warranty Period

the duration of the warranty provided by the Supplier in relation to the Services, as set out in the Final Quotation;

Location                  the location for delivery and installation of the Hardware, as identified on the Order Form;

Losses                    means all liabilities, costs, expenses, damages, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses and any indirect or consequential losses);

Order Form              means the order form attached to or accompanying these Hardware Terms;

Specification           means the specification for the Hardware which is set out in the Final Quotation;

the Supplier             means Phoenix Scales Ltd;

User Guide              means the instruction guide for the Hardware provided to the Buyer as part of the Delivery Information Pack;

Supply and Development of Software

1            Scope and Interpretation

• These terms and conditions (Software Terms) together with the Order Form to the extent it applies to the supply, development and installation of Supplied Software constitute the contract between the Buyer and Supplier (Software Contract) for the supply, development and installation of Supplied Software by the Supplier. Separate terms and conditions apply to the sale and installation of hardware, the maintenance of hardware and the maintenance of the Licensed
• In these Software Terms each capitalised term will have the meaning set out in Schedule 1 (Definitions) or as defined in bold, bracketed,

2            Orders

• The Contract shall take effect when the Buyer issues a purchase order and the Supplier has issued an order acknowledgement and the supplier takes any action towards fulfilling the Contract (Commencement Date) and shall continue unless terminated earlier in accordance with clause The Supplier has no obligation to accept any Order Forms.
• The Software Contract constitutes the entire agreement between the parties regarding its subject The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Software Contract.
• Any provisions not set out in the Software Contract or the Third Party Terms, including but not limited to, any provision the Buyer applies or purports to apply by way of any purchase order/order confirmation or similar document, shall have no application to the supply and development of software by the Supplier, however those provisions are The Buyer acknowledges and agrees that the Supplier shall not be bound by any such provisions.

3            Cancellation of Software Contract

• Save as expressly provided in the Software Contract, the Buyer shall have no right to terminate the Software Contract. Any Deposit paid by the Buyer shall be non-refundable.

4            Supply of Software

• Subject to clause 4.2, the Supplier grants, subject to the terms of the Software Contract, the Buyer, its Affiliates and the Licensed Users a non-exclusive, non-transferable right to use the Licensed Software (in object code form only) and the Documentation at the Location(s) solely for the Buyer’s normal business purposes and solely in connection with use of the Hardware.
• Strictly where an End Customer is specified on the Order Form, the Buyer shall be entitled to grant a sub-licence of the licence granted pursuant to clause 4.1 to the End Customer (Sub-Licence) strictly subject to the following:
  • the Sub-Licence shall be granted to the End Customer only;
  • the terms of the Sub-Licence shall be the same as the terms of the licence granted in the Software Contract (with the term “Buyer” replaced with “End Customer” where the context requires) and shall be subject to all of the restrictions as set out in the Software Contract (including the number of Licensed Users and the Concurrent User Limit). The Sub-Licence shall not permit the End Customer to grant a sub-licence of, nor to assign or novate the benefit or the burden of, the Sub-Licence to a third party without the Supplier’s prior written consent;
  • the Buyer shall remain liable under the Software Contract for the acts and omissions of the End Customer, including for any breaches of the Sub-Licence; and
  • the Buyer shall ensure that the Sub-Licence shall terminate immediately upon the termination of the licence granted under the Software Contract.
• Where a Sub-Licence has been granted pursuant to clause 4.2, neither the Buyer nor its Affiliates nor its Licensed Users shall have rights to use the Licenced Software.
• The Buyer hereby agrees to indemnify and hold harmless the Supplier against all Losses incurred by the Supplier arising from or in connection with:
  • the Buyer’s breach of any term of this clause 4; and
  • the End Customer’s failure to comply with any term of the Sub
• The number of Licensed Users of the Licensed Software is unlimited, however, concurrent use of the Licensed Software shall be limited to the Concurrent User Limit.
• The Buyer acknowledges that the Licensed Software is designed such that, should a Licensed User log into the Licensed Software at any time when the Concurrent User Limit is met, one of the Licensed Users already logged into the Licensed Software may be logged out. The Buyer accepts that it has the responsibility for managing use of the Licensed Software within the Concurrent User Limit and the Supplier shall have no liability whatsoever (whether relating to loss of data or otherwise) in connection with a Licensed User being logged out of the Licensed Software in such circumstances.

• The Licensed Software may: (a) be transferred to and used by the Licensed Users at another Location only if the Buyer transfers the whole of its business permanently to that other Location and provided that the Supplier is informed in writing of the change of Location prior to use of the Licensed Software at the new Location; (b) be temporarily used on backup hardware if the Hardware becomes inoperable for any reason; (c) be used with any replacement for all or any part of the Hardware; and (d) be used at an alternative emergency location if any Location becomes temporarily unusable due to flood, fire or similar damage, or an emergency situation, until the Location is again usable, provided that the Buyer gives the Supplier notice of such alternative If the alternative Location is managed by a third party, the third party must have signed a confidentiality undertaking addressed to the Supplier to protect the Supplier’s Confidential Information before the Licensed Software is transferred to the alternative Location.
• The Buyer may make one copy of the Licensed Software strictly as is necessary for use in accordance with the Software Contract and for the purposes of backup and security only. The Buyer has no right to make, or authorise the making of, any other copies of the Licensed Software.
• The Supplier shall at all times own all copies of all or any part of the Licensed Software. For copies recorded on a tangible medium, the Buyer shall place on each copy of all or any part of the Licensed Software a clearly visible label indicating that the copy is the property of the Supplier and shall include on such label the Supplier’s proprietary rights notice. For electronic copies, the Buyer shall ensure that all proprietary notices contained in the Licensed Software shall be maintained in such copies and shall display when the software is run, in the same way as in the case of the Licensed Software. The Buyer shall keep all copies of the Licensed Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or
• The Buyer shall not: (a) sub-license, rent, lend, assign or transfer in any other way the Licensed Software to any person without the prior written consent of the Supplier; (b) give access to the Licensed Software through any network of hardware to users who are not employees or agents of the Buyer; (iii) make adaptations or variations of the Licensed Software without the prior written consent of the Supplier; or

(iv) disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.

• The Supplier reserves the right to amend the Specification of the Licensed Software if required by any applicable statutory or regulatory requirements and shall have no liability to the Buyer in respect of any such amendment.
• The Supplier shall provide the Third Party Software to the Buyer and its Affiliates and does so under the standard terms of the relevant third party licensors of such Third Party Software (Third Party Terms). The Buyer agrees to be bound to the relevant third party under the Third Party Terms, and shall at all times comply with and procure that its Licensed Users and Affiliates comply with, the Third Party Terms notified to it/them from time to time (including on any notices (or similar) contained within the Third Party Software itself). The Buyer shall ensure that its Affiliates are bound by such Third Party Terms.
• The Third Party Software may be contained on a USB stick (or similar portable device) (USB). The Buyer is responsible for ensuring that the USB remains connected as installed or stipulated by the If the USB is disconnected, the Supplied Software cannot be used. The Buyer is solely responsible for the costs associated with replacing any USB. Any training whatsoever other than that set out on the Order Form shall be paid for by the Buyer and be subject to the relevant sections of the Supplier’s Terms and Conditions for the Maintenance of Software.
• The Supplier may provide to the Buyer, from time to time, copies of the Documentation containing sufficient up-to-date information for the proper use of the Licensed Software. Such Documentation may be supplied in electronic form.
• The Buyer may only make such further copies of the Documentation as is strictly necessary for the use of the Licensed Software and for the training of the Licensed Users. The Buyer shall ensure that all of the Supplier’s proprietary notices are reproduced in any such copy.
• The Supplier has no obligation to supply or make available any Maintenance Releases or New Versions to the Buyer.
• The Supplier does not guarantee that support services for the Licensed Software will be available to the Buyer nor that any support services for the Licensed Software which the Supplier may offer under separate terms from time to time will continue to be available to the Buyer. The Supplier may release a New Version at any time and cease to support any old versions of the Licensed Software.

5            Software Development Services

• The Supplier shall, develop any elements of Bespoke Software. The Supplier shall do so with reasonable skill and care and materially in accordance with the Specification so far as it relates to Licensed
• The Supplier shall provide such training as set out in the Order Form (if any) and such training will be undertaken at times to be mutually agreed between the Supplier and the Buyer.

6            Pre-Installation Testing

• Either before delivering any Licensed Software and Third Party Software (together the Supplied Software) to the Location or post-

delivery of the Supplied Software to the Location (as agreed between the Supplier and the Buyer), the Supplier shall carry out such tests as it reasonably deems necessary to demonstrate that the Supplied Software is in operable condition and capable of meeting (where conducted pre-delivery) or does meet (where conducted post-delivery) the Specification, or such alternative tests as the parties may mutually agree in writing (Tests). The Tests shall be carried out at a mutually agreed time and the Buyer shall observe the Tests. The outcome of the Tests shall be that:

• both parties agree that the Supplied Software has passed the Tests in which case the Buyer shall immediately sign the relevant Acceptance Certificate; or
• the Buyer fails to attend the Tests, or informs the Supplier that it does not require the Tests to take place, in which case the Supplied Software shall be deemed to have passed the Tests and the relevant Acceptance Certificate(s) shall be deemed to have been signed by the Buyer; or
• one, or both, of the parties reasonably considers that the Supplied Software has failed the Tests (a Fail).

• If a Fail occurs, the Supplier shall use reasonable endeavours to rectify the defects identified with the Supplied Software following which the Tests shall be repeated in respect of the defective element of the Supplied Software only. The Supplier may, at its discretion, change the nature of such Tests to be re-performed. The process set out in clause
• shall be repeated until such time as the Tests are passed (whether pursuant to clause 6.1.1 or 6.1.2) save that:
  • if the Tests have not been passed within 6 months of the Installation Date, then either party may terminate the part of the Software Contract relating to the relevant element of the Supplied Software only by giving the other party notice in writing and, following such termination, the Buyer shall be entitled to a pro-rata refund of any pre-paid Charges paid in respect of such element of the Supplied Software only. Exercise of the termination right under this clause 6.2 shall be the Buyer’s exclusive remedy in relation to such failure or delay; and
  • the Buyer may agree to accept the Supplied Software notwithstanding any defects identified in which case the parties shall, in accordance with clause 19.6, agree an appropriate variation to the Specification and if necessary the Charges. Immediately following such variation the Buyer shall sign the relevant Acceptance Certificate.
• Acceptance of the Supplied Software shall be deemed to have occurred on the signing by the Buyer of the relevant Acceptance Certificate, or the deemed signing of the relevant Acceptance Certificate.

7            Delivery and Installation

• The Supplier shall use reasonable endeavours to deliver and install the Supplied Software at the Location by the Software Delivery Date. The time of delivery and installation shall not be of the essence in the Software Contract.
• The Buyer shall be responsible for ensuring that any Third-Party Hardware is installed at the relevant Location and is in Good Working Order and available to the Supplier in advance of the Software Delivery
• If any delivery is delayed at the request of the Buyer, or because of the Buyer’s acts or omissions, the Software Delivery Date shall be amended to take account of such delay in accordance with clause 12.2. If the Supplier can demonstrate that the delay has resulted in an increase in cost to the Supplier of carrying out its obligations under the Software Contract, the Supplier may notify the Buyer that it wishes to increase the Charges by an amount not exceeding any such demonstrable cost. The Supplier may invoice the Buyer for any additional monies that become payable in this way, within 14 days of demonstrating the increase in costs.

8            Charges and payment

• The Charges are set out on the Order Form. If no Charges are set out on the Order Form, charges shall be calculated in accordance with the Supplier’s standard rates applicable at the time of Any charges stated are exclusive of VAT and any other import taxes, duties or other similar charges which the Buyer shall also pay.
• Reasonable out of pocket expenses may be charged by the Supplier on the production of reasonable evidence of expenditure to the Buyer.
• The Supplier shall charge the Buyer, on a time and materials basis in accordance with Supplier’s standard rates, for any time spent on investigating a defect in the Licensed Software which is not covered by any warranty under the Software Contract. The Supplier may raise an invoice for such Charges at any time.
• The Buyer shall pay the Deposit on or before the Deposit Payment
• The Supplier shall raise invoices for the remaining Charges in accordance with the timings stated on the Order Form, or if no timings are specified on the Order Form, the Supplier may raise its invoices in advance of delivery. The Buyer must pay all invoices in cleared funds by payment into the bank account nominated by the Supplier before the end of the calendar month in which the invoice was raised.

• If the Buyer fails to pay any sum due under the Software Contract by the due date for payment then the Supplier shall be entitled to charge interest on the overdue amount at the rate of 5% per annum above the Bank of Englnad’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment, whether before or after judgment.

9            Changes

• The Buyer may, by giving written notice to the Supplier at any time during the term of the Software Contract, request a change to the Licensed
• Within seven working days of receipt of such a notice, the Supplier shall, at its standard rates then in force, prepare for the Buyer a written estimate of any increase or decrease in the Charges in relation to such change, or alternatively, the Supplier may inform the Buyer that it is not willing or able to implement such change in which case no change will be
• Within 14 working days of receipt of a written estimate referred to in clause 9.2, the Buyer shall inform the Supplier in writing of whether or not the Buyer wishes the requested change to be If the change is required, the Supplier shall not make the requested change until the parties have agreed a variation in accordance with clause 19.6 specifying, in particular, any changes to the Specification and Charges.

10          Warranties

• The Buyer acknowledges that the only warranties in relation to the Third Party Software or the supply thereof are those provided to the Buyer by the relevant third-party licensor of such Third-Party Software, as set out in the relevant Third Party Terms. The Supplier has no liability to the Buyer in this regard.
• The Supplier warrants that:
  • it has the right to license all Intellectual Property Rights in and to the Licensed Software and the Documentation to the Buyer;
  • the use of the Licensed Software by the Buyer in accordance with the Software Contract shall not infringe the Intellectual Property Rights of any third party; and
  • the Licensed Software will, at the date of delivery and for 90 days thereafter, perform materially in accordance with the
• The sole remedies for breach of the warranties in clause 10.2.1 and clause 10.2.2 are set out in clause 14.
• The sole remedy for breach of the warranty under clause 10.2.3 shall be correction of Defects by the Supplier within a reasonable time from notification by the Buyer of the Defect that constitutes such breach.
• The warranties set out in clause 10.2 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to the Software Contract. Without limitation, the Supplier specifically excludes any implied or express warranties, representations and conditions that the Licensed Software will: (a) operate in conjunction with any hardware items or software products other than with those that are identified in the Documentation as being compatible with the Licensed Software; (b) operate uninterrupted; or (c) be error-
• The Supplier does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defect which does not materially affect the Buyer’s operations using the Licensed Software will be corrected.
• Any unauthorised modifications, use or improper installation of the Licensed Software by, or on behalf of, the Buyer shall render all the Supplier’s warranties and obligations under the Software Contract null and void.
• The Supplier shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Buyer’s personnel or third parties without the permission of the Supplier.
• Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform the Software Contract and that those persons signing the Software Contract are duly authorised to bind the party for whom they sign.

11          Buyer’s obligations

• The Buyer is responsible for ensuring that the Specification for the Supplied Software meets its requirements.
• The Buyer shall:
  • provide all reasonable assistance, access and information as required by the Supplier;
  • if requested by the Supplier, appoint a project manager to have the responsibility and authority in relation to the progress of the Software Contract;
  • co-operate with the Supplier and attend all meetings scheduled by the Supplier on all matters relating to the Software Contract;
  • obtain and maintain (at its own cost) all necessary licences (including without limitation any import/export licences), permissions, approvals and consents required in relation to the Software Contract (including without limitation the installation and use of the Supplied Software);
• ensure that the relevant Location is suitably prepared for the installation of the Supplied Software in accordance with the Supplier’s instructions and is safe for entry by the Supplier and its employees and sub-contractors;
• provide such access to the Buyer’s premises, the Location(s) and other facilities as reasonably required by the Supplier; and
• comply with any other obligations set out on the Order

12          Relief Events

• The Supplier shall not be in breach of the Software Contract nor liable for any delay in performing, or failure to perform, any of its obligations under the Software Contract if such delay or failure results from any events, circumstances or causes beyond its reasonable control including without limitation, acts of God; natural disasters; terrorist attacks; civil war, commotion or riots; imposition of sanctions or embargos; any law or action taken by a governmental or public authority (including without limitation export or import restrictions, quotas or prohibitions); failure to obtain or renew, or the cancellation of, any licence, permit or consent; collapse of buildings; unavailability, interruption or failure of utility supplies; labour or trade disputes, strikes or industrial action; and non-performance by suppliers or subcontractors (Force Majeure Event).
• If any act or omission of the Buyer (including without limitation the Buyer failing to comply with its obligations under the Software Contract) causes or contributes to the Supplier failing or being delayed in the development or delivery or installation of the Supplied Software or the Supplier’s performance of any other obligation under the Software Contract (Relief Event), the Supplier shall without limiting its other rights or remedies:
  • have the right to suspend performance under the Software Contract until the Buyer remedies the default;
  • have the right to rely on the Relief Event to relieve it from the performance of any such obligation; and
  • have no liability howsoever arising from the Supplier’s failure or delay to perform any such obligation.
• The Buyer acknowledges that where the Supplier exercises use of the remedies under clauses 12.2.1 and 12.2.2, it may not be possible for the Supplier to recommence performance of its obligations immediately on the remedying of the Relief Event by the Buyer. As such, any recommencement of performance will be subject to the Supplier’s ability to re-allocate its resources accordingly.
• The Buyer shall reimburse the Supplier on written demand for any Losses sustained or incurred by the Supplier arising from the Relief Such Losses may include the costs of the Supplier being unable to re-allocate or otherwise utilise its personnel or the costs associated with delivering and installing the Supplied Software at a later date.

13          Ownership and Intellectual Property

• The Licensed Software and the Documentation are the property of the Supplier (or the appropriate third-party rights-owner(s)) and the Buyer acquires no rights in or to the Licensed Software or the Documentation other than those expressly granted by the Software Nothing in the Software Contract shall affect the ownership of the Licensed Software, the Documentation and any other Intellectual Property Rights of the Supplier (or its licensors (as applicable)).
• To the extent that any Intellectual property Rights in any Bespoke Software do not automatically vest in the Supplier, or should any Intellectual Property Rights of the Supplier or its licensors be transferred to the Buyer contrary to clause 13.1, the Buyer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that the Supplier may consider necessary or desirable to give effect to the provisions of this clause 13 and, if necessary, to perfect the right, title and interest of the Supplier in and to the relevant Intellectual Property
• The Buyer shall use best endeavours to prevent any infringement of the Supplier’s Intellectual Property Rights in the Licensed Software and Documentation and shall promptly report to the Supplier any such infringement or suspected infringement that comes to its attention. In particular, the Buyer shall: (a) ensure that each Licensed User, before starting to use the Licensed Software and Documentation, is made aware that the Licensed Software is proprietary to the Supplier and that it may only be used and copied in accordance with the terms and conditions of the Software Contract; (b) implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Licensed Software and Documentation; and (c) not permit third parties to have access to the Licensed Software without the prior written consent of the Supplier which may be given or withheld at the Supplier’s absolute discretion and the Supplier may require that such third party executes a written confidentiality agreement before being given access to the Licensed Software and/or Documentation.

14          Intellectual Property Rights Indemnity

• The Supplier shall indemnify the Buyer against the losses, damages, costs or expenses (including reasonable legal fees on the standard basis) incurred by the Buyer which arise directly from any claim made against the Buyer for actual or alleged infringement of a third party’s Intellectual Property Rights where such claim arises directly from the use of the Licensed Software in compliance with the Software Contract (Claim). The indemnity provided in this clause 14.1 is strictly conditional

on the Buyer: (a) notifying the Supplier (such notice to specify the nature of the Claim in reasonable detail) as soon as reasonably practicable upon the Buyer being notified of any Claim or being notified of a third party’s intention of making a Claim or becoming aware of a potential Claim; (b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier; and (c) giving the Supplier and its professional advisers access to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Buyer, so as to enable the Supplier and its professional advisers to examine them and to take copies for use in connection with the Claim.

• Without prejudice to clause 10.7, the Supplier shall not in any circumstances have any liability in relation to a Claim: (a) caused or contributed to by the Buyer’s use of the Licensed Software in combination with software or hardware not supplied or approved in writing by the Supplier; (b) based on use of any version of the Licensed Software other than the latest version supplied by the Supplier, if such Claim could have been avoided by the use of such supplied version; or

(c) where the Claim arises in respect of a feature, part or element of the Licensed Software or Documentation which was specified by the Buyer, whether set out in the Specification or otherwise.

• If use of the Licensed Software or Documentation becomes, or is likely to become, the subject of a Claim, the Supplier may at its absolute discretion: (a) replace all or part of the Licensed Software or Documentation with software or documentation which is, in the Supplier’s reasonable opinion, similar to the Software or Documentation in material respects; (b) modify the Licensed Software or Documentation as necessary to avoid such claim, provided that any modified software functions in substantially the same way as the Licensed Software before modification; or (c) procure for the Buyer a licence from the relevant claimant to enable the continued use of the Licensed Software or Documentation. If any Claim arises from the circumstances set out in clause 14.2, the Buyer shall be liable to the Supplier for any costs and charges arising from and connected with any of the steps set out in this clause 14.3.
• Subject to clause 14.5, if: (a) use of the Licensed Software or Documentation by the Buyer becomes or, or is likely to become subject to a Claim; (b) use of the Licensed Software or Documentation is determined in a court of law as infringing the Intellectual Property Rights of a third party; (c) the Supplier is of the opinion that use or possession by the Buyer or Licensed Users of the Licensed Software and/or the Documentation in accordance with the Software Contract is likely to constitute infringement of a third party’s rights; or (d) an injunction or similar order is granted in connection with a claim of the type(s) referred to in clause 14.1 which prevents or restricts the use or possession by the Buyer or any Licensed User of the Licensed Software and/or the Documentation in accordance with the Software Contract; and if the Supplier is unable to procure for the Buyer the right to continue using the Licensed Software and/or Documentation or to provide the Buyer with functionally equivalent non-infringing software on commercially reasonable terms, the Software Contract and the licences granted hereunder may be terminated by the Supplier (in whole or in part) and a relevant pro-rata refund of any pre-paid Charges made to the Buyer.
• If, however, any of the circumstances referred to in clause 14.4 arise from any of the circumstances set out in clause 14.2 then:
  • the Supplier may terminate the Software Contract forthwith;
  • the Buyer shall not be entitled to any refund; and
  • the Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against all associated Losses.

15          Data Protection

• Each party undertakes to comply with the Data Protection Legislation and all applicable laws and regulations relating to the processing of personal data or privacy or any amendments and re-enactments thereof, and shall procure that its employees, agents and subcontractors shall observe the provisions of the same.

16          Buyer Indemnities

• To the extent that Bespoke Software is designed and configured by Supplier in accordance with a Specification supplied or contributed to by the Buyer, the Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against all Losses suffered or incurred by the Supplier in connection with any claim for actual or alleged infringement of a third party’s rights (including its Intellectual Property Rights) arising out of or in connection with the Supplier’s use of the Specification.
• The Buyer shall indemnify (and keep indemnified) and hold harmless the Supplier against any Losses arising from or in connection with a breach by the Buyer of its obligations under clause 11.
• The Buyer shall comply with the Third-Party Terms and shall indemnify (and keep indemnified) the Supplier and hold the Supplier harmless against any and all Losses resulting from a breach of such terms (howsoever arising) by the Buyer, its Affiliates and/or any Licensed

17          Liability

• Nothing in the Software Contract shall limit or exclude the Supplier’s liability for:
  • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

• fraud or fraudulent misrepresentation; or
• any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

19      General

Supplier may enter the Buyer’s premises and the Location(s) (if different) and take possession of them.

• Subject to clause 1:
  • the Supplier shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profits (direct or indirect), loss of production, loss of use, loss of business or business opportunities, loss of revenue or any loss or corruption of data or information; loss of anticipated savings, loss of (or loss or liability under) any other contract or any indirect or consequential loss arising under or in connection with the Software Contract;
  • the Supplier shall have no liability to the Buyer in relation to the Third Party Software (however arising); and
  • the Supplier’s total liability to the Buyer for all other losses arising under or in connection with the Software Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the amount of the Charges actually paid by the Buyer under the Software Contract.

18          Termination

• Without limiting their other rights or remedies, either party may terminate the Software Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Software Contract and (if such a breach is remediable) fails to remedy that breach within twenty-one (21) days of that party being notified in writing to do so.
• Without limiting its other rights or remedies, the Supplier may terminate the Software Contract with immediate effect by giving written notice to the Buyer if the Buyer:
  • 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); it being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring); it having a receiver appointed to any of its assets or ceasing to carry on business; or, if any such step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • the Buyer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Software Contract has been placed in jeopardy; or
  • the Buyer fails to pay any amount due under the Software Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment.
• Where the Supplier is entitled to terminate the Software Contract under this clause 18, it shall also be entitled to terminate any other contracts with the Buyer.
• Termination of the Software Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Software Contract which existed at or before the date of termination.
• Any provision of the Software Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
• On termination of the Software Contract for any reason:
  • the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Supplied Software or services supplied and any costs or expenses already incurred by the Supplier but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
  • the Buyer shall either return to the Supplier or, at the Supplier’s option, permanently delete and destroy, all material copies of the Licensed Software and Documentation and shall ensure that any copies of the Licensed Software on hard discs or other storage means associated with any Licensed Software or any computer equipment owned or controlled by the Buyer are permanently deleted;
  • all Third Party Terms shall be terminated and the Buyer shall comply with all relevant provisions of the Third Party Terms that apply following termination;
  • the Buyer shall on request return, or destroy, or permanently erase any Confidential Information belonging to the Supplier; and
  • the Buyer shall return all of the Supplier’s materials and equipment and if the Buyer fails to do so, then the

• Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 19.2.
• Each party may disclose the other party’s Confidential Information:
  • to its employees, officers, representatives or advisers (and in the case of Supplier being the recipient of the Buyer’s Confidential Information, to its agents, Affiliates and subcontractors) who need to know such information for the purposes of exercising the party’s rights or performing its obligations under or in connection with the Software Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses such confidential information comply with clause 19.1; and
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
• No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Software Contract.
• The Supplier may refer to the Buyer as being a client of the Supplier in customer reference lists, sales presentations, advertising or press
• Assignment and other dealings. The Buyer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Software Contract without the prior written consent of the Supplier.
• No variation of the Software Contract shall be effective unless it is in writing and signed by an authorised representative of both parties.
• A waiver of any right or remedy by the Supplier shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy by the Supplier shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy by the Supplier.
• Dispute Resolution. If a dispute arises out of or in connection with the Software Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in the Software Contract, the parties shall follow the procedure set out in this clause:
  • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents;
  • following service of the Dispute Notice, the parties shall use reasonable endeavours to promptly resolve the Dispute by way of without prejudice discussions between the relevant representatives in accordance with the following escalation levels and timescales;

 

Escalation Level	Supplier representative	Buyer representative	Time for resolution
1	Service Manager	Manager	10 Business Days
2	Managing Director	Managing Director	5 Business Days

and

• if, for any reason, the parties are unable to resolve the Dispute within the timescales and escalation levels referred to in clause 19.8.2, or should either party fail to engage or cease its engagement in that process, then the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 19.14.

• Nothing in clause 19.8 shall prevent the Supplier from commencing Court proceedings at any time.
• If any provision or part-provision of the Software Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
• Any notice or other communication given to a party under or in connection with the Software Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have notified to the other party, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service. Any other form of delivery, including without limitation, delivery via fax or email, shall not be valid. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

• The provisions of clause 19.11 shall not apply to the service of any proceedings or other documents in any legal action.
• Third party rights. No one other than a party to the Software Contract and their permitted assignees shall have any right to enforce any of its
• Governing law and jurisdiction. The Software Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or

SCHEDULE 1

Definitions

• The terms listed here shall have the following meanings:

Acceptance Certificate:              the certificate in the form and format to be determined by the Supplier and which is to be signed by the Buyer or which shall be deemed signed in accordance with clause 6;

Affiliate:                                    any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;

Bespoke Software:                    the Supplier’s Standard Software modified

by the Supplier specifically for the Buyer pursuant to the Software Contact and any other software developed for the Buyer by the Supplier, whether listed as such in the Order Form and described in more detail in the Specification, or otherwise;

Business Day                            means any a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

the Buyer                                  means the entity identified as such on the Order Form;

Charges:                                  the charges (including any Deposit) payable by the Buyer to the Supplier for the Supplied Software including its delivery and installation);

Concurrent User Limit               the number of Licensed Users able to access the Licensed Software at any one time. Unless otherwise specified in the Order Form the Concurrent User Limit under the Software Contract shall be 1;

Confidential Information:           information of commercial value and any other confidential or proprietary information, in whatever form or medium, disclosed by a party (or any of its Affiliates) to the other party (or any of its Affiliates), including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to business affairs, customers, suppliers, pricing and marketing and, for clarity, including (in the case of the Supplier’s information) information relating to the Licensed Software or any of its constituent parts, the source code relating to the Licensed Software or any parts thereof;

Data Protection Legislation   all applicable data protection law and regulations in any jurisdiction;

Defect                                       an error in the Licensed Software that causes it to fail to operate materially in accordance with the Specification;

Deposit                                    means the deposit (if any) payable by the Buyer in respect of the Supplied Software and/or its development, delivery or installation, as set out in the Order Form;

Deposit Payment Date               means the final date for payment of the Deposit, as set out on the Order Form;

Documentation                         the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms in respect of the Licenced Software supplied by the Supplier to the Buyer;

End Customer                           the ultimate intended recipient of the Supplied Software (if applicable) as set out in the Order Form where the Supplied Software is being procured by the Buyer for the benefit of that recipient pursuant to a contract between that recipient and the Buyer;

Hardware                                  means the relevant hardware identified in the Order Form with which the Supplied Software is to inter-operate, whether that hardware was supplied by the Supplier to the Buyer (under separate agreement) or is Third Party Hardware;

Good Working Order                 the  Third-Party  Hardware  operates  in accordance with its specification and any requirements notified by the Supplier to the Buyer;

Intellectual Property Rights:  patents, utility models, rights to inventions,

copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

Licensed Software:                    the Supplier Standard Software and the Bespoke Software;

Licensed Users                         those employees and agents of the Buyer who are authorised by the Buyer to use the Licensed Software;

Location:                                  the location for the delivery and installation of the Licensed Software and at which the Licensed Software and Documentation is to be used as specified in the Order Form, and includes in relation to use of the Licensed Software and Documentation: (i) any additional locations set out in the Specification; and (ii) any other location(s) as may be agreed by the parties in writing from time to time;

Losses                                     means all liabilities, costs, expenses, damages, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses and any indirect or consequential losses;

Maintenance Release:                a release of the Supplier Standard Software which corrects faults in, adds functionality to, or otherwise amends or upgrades the Supplier Standard Software, but which does not constitute a New Version;

New Version:                            any new version of the Supplier Standard Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;

Order Form                               means the order form attached to or accompanying these Software Terms;

Software Delivery Date              means the target date for delivery and installation of the Supplied Software, as set out on the Order Form;

Specification                            the functional design specification of the Supplied Software in final agreed form as agreed between the Supplier and the Buyer;

the Supplier                              means Phoenix Scales Ltd;

Supplied Software                     has the meaning given to it in clause 6;

Supplier Standard Software       the unmodified standard software programs

proprietary to the Supplier (including all subsequent amendments and updates to, or new versions of, such software programs) to be provided by the Supplier pursuant to the Software Contract as set out in the Order Form and described in more detail in the Specification;

Tests                                        has the meaning given in clause 6.1;

Third Party Hardware                hardware supplied other than by the Supplier; and

Third-Party Software:                the software programs proprietary to third parties (including open-source software), which are to be provided to the Buyer without modification pursuant to the Software Contract, as set out in the Order Form and described in more detail in the Specification.