Terms and Conditions
The following are the General Terms and Conditions under which LapSafe® Products Limited sells its product range and other business related services and the same shall, unless otherwise expressly stated in writing, apply to the subject matter of any agreement in respect thereof.
In these conditions:-
1.1 LapSafe® Products Limited is called “the Company” and the individual firm, company or other party with whom the Company contract is called “the Customer”.
1.2 ‘Agreement’ means any Agreement(s) entered into between the Company and a Customer to which these Terms and Conditions are stated to apply.
1.3 “Product(s)” means the product and associated equipment provided by the Company.
1.4 ‘Service(s)’ means Software Support Services and/or Consulting Services and/or Technical Services provided by the Company.
2.1 Delivery shall be to the address designated by the Customer. The Company shall not be liable for any delay in delivery due to causes beyond its control.
3.1 The Company shall render to the Customer an invoice or series of invoices pursuant to the supply of Products and Services and unless otherwise specified in the Agreement the Customer agrees to pay such charges in full within one month of the date of each invoice.
3.2 Unless agreed by the Company in advance with the Customer, the minimum individual order value under the Agreement shall be £250.
3.3 Charges specified in the Agreement do not include Value Added Tax, which, if applicable, will be added at the rate in force at the time of supply.
3.4 Without prejudice to any other rights the Company may have in respect of any failure by the Customer to pay the charges or other monies payable pursuant to this Agreement, the Company may charge interest at the rate of 5% above the base rate of National Westminster Bank plc from time to time in force, after as well as before judgement on any amount due from the Customer to the Company from the date due for payment until payment is received.
3.5 In the case of supply to a Customer outside the UK the Customer will be responsible for all import levies, customs duties or other similar taxes of whatever nature.
4.1 The time stipulated for payment shall be of the essence of the Agreement and failure to pay within the period specified shall entitle the Company upon the expiry of one months notice in writing to the Customer to suspend further performance of the Agreement pending payment and in addition the Company shall be entitled without liability wholly or partially to cancel the Agreement without prejudice to any other remedy available to the Company. (See Payment Terms as Section 6 Business Partner Application Pack).
4.2 If payment for completed work is not due, it shall become automatically due immediately on the commencement of any act or proceeding in which the Customer’s solvency is involved.
4.3 The Customer may assign to a bank, leasing or finance company its obligations to make payments to the Company in respect of the Products but such assignment shall not prejudice any of the other rights and obligations of either the Customer or the Company provided by the Agreement. At the request of the Customer the Company will be prepared to negotiate a suitable novation agreement if the bank, leasing or finance company requires further clarification of this clause.
5.1 The Company will use its reasonable endeavours to comply with any day or dates for despatch or delivery of the Product(s) and for the supply of Service(s) (as the case may be) as stated in the Agreement, but unless the Agreement otherwise expressly provides, such dates shall constitute only statements or expectation and shall not be binding. If the Company, having used its reasonable endeavours fails to despatch or deliver the Product(s) or to supply or complete the Service(s) by such date or dates except where expressly contracted, such failure shall not constitute a breach of the Agreement nor shall the customer be entitled to treat the Agreement as thereby repudiated or to rescind it or any ancillary Agreement in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting there from.
5.2 When expedited delivery is agreed to by the Company and necessitates overtime or other additional costs, the Customer shall reimburse the Company for such overtime payment or other costs. Where the Company agrees postponement of delivery, the Customer shall, if required by the Company pay all costs and expenses occasioned thereby.
5.3 If performance of the Agreement is suspended at the request of or delayed through default of the Customer (including but without prejudice to the generality of the foregoing) lack of, incomplete or incorrect instructions, or refusal to accept delivery of the Product(s) or Service(s) for a period of 30 days, the Company shall be entitled to payment at the then prevailing rates for the Service(s) already performed, Product(s) supplied or ordered and any other additional costs thereby incurred.
6.1 The Customer shall not be entitled to cancel any order for the Product(s) and/or the Service(s) or any part thereof except upon terms which reimburse the Company for loss of all costs, charges and expenses incurred by the Company in respect of the Product(s) and/or the Service(s) or any part thereof up to the date of receipt by the Company of written notification of cancellation from the Customer.
6.2 Details of all cancellation costs are available upon application. (See Cancellation Policy as Section 5 Business Partner Application Pack).
7. PROPRIETARY RIGHTS
7.1 Title, copyright and all other proprietary rights in the Product(s) and associated documentation and any documentation supplied in respect of the Service(s) and all parts and copies thereof shall remain vested in the Company, except for the intellectual rights of customer specific and/or bespoke developments, which shall become the property of the Customer upon payment in full.
7.2 The Customer shall follow all reasonable instructions given by the Company from time to time with regard to the use of trademarks owned by the Company and other indications in respect of the property rights of the Company.
8. SOFTWARE PRODUCT COPYING
8.1 The Customer may make such copies of software Product(s) developed by the Company as are necessary for the operational use and security thereof.
8.2 Every such copy or reproduction of software Product(s) made by the Customer shall contain or have annexed to it in a prominent position an express notice stating that the software Product(s) are confidential and subject to copyright and/or other intellectual property rights and may not be communicated wholly or in part by any means whatsoever to any other person.
8.3 All third party software products are subject to individual manufacturers license agreements in respect of copying.
9. INTELLECTUAL PROPERTY INDEMNITY
9.1 The Company shall indemnify and hold the Customer and its employees, hereunder from and against all loss and damage and cost and expense resulting from or arising out of any threatened or actual infringement of patent, copyright, registered design or other intellectual property rights of any person provided that the Customer shall:
9.1.1 Notify the Company in writing of any allegation or infringement.
9.1.2 Make no admission without the Company’s consent
9.1.3 At the Company’s request allow the Company to conduct and/or settle all negotiations in litigation and give the Company all reasonable assistance in respect thereof.
10. GENERAL INDEMNITY LIMITATION OF LIABILITY
10.1 The Company and the Customer shall indemnify each other and keep each other fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by negligent act or omission, wilful misconduct or breach of contract by the other, its employees or agents.
10.2 Except in respect of injury or death of any person caused by negligence the liability of the Company under condition
10.1 in respect of the any one event or series of connected events shall not exceed the maximum value of the respective individual Agreement.
10.3 The Company shall under no circumstances (whether for negligence, breach of contract or otherwise) be liable for any indirect or consequential loss or damage including but not limited to the loss of use or of profit or of contracts or loss of data.
11.1 The Company may terminate the Agreement by notice in writing forthwith in any of the following events:-
11.1.1 The Customer commits a material breach of the Agreement which is incapable of remedy, or
11.1.2 The Customer fails to perform its obligations under the Agreement or commits a material breach which is capable of remedy but which the Customer fails to remedy within 28 days of written notice by the Company specifying the event of default and requiring its remedy.
11.1.3 The Customer is taken over by a company that markets products which in any way competes with the Product(s).
11.2 Each of the Company and the Customer may by notice in writing to the other terminate the Agreement if the other shall have a receiver or liquidator appointed or shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction) or a Court shall make an order to that effect or if the other party shall enter into composition or arrangement with its creditor(s) or shall become insolvent.
11.3 The Customer may by three months notice in writing terminate the Agreement providing that all payments due to the Company are made within one month of the date of written notice.
12. CONSEQUENCES OF TERMINATION
12.1 Any termination of the Agreement howsoever caused shall not effect any accrued rights or liabilities of either the Company or the Customer arising from the Agreement.
12.2 On termination of the Agreement for whatsoever reason, the Customer shall return forthwith to the Company the Product(s) and all copies thereof, the documentation and the media supplied therewith and other items in the possession of the Customer which are the property of the Company.
13. TITLE AND RISK
13.1 Risk of loss or damage shall pass to the Customer on Delivery of Products.
13.2 The legal and beneficial ownership of the Products and/or associated material supplied as part of Products and/or Services shall remain with the Company which reserves the right to dispose of the Products until payment in full of all material has been received by the Company in accordance with the terms of this Agreement.
13.3 Until such payment is paid in full the Company may (without prejudice to any of its rights) recover or re-sell any of the Products and/or associated material and may enter upon the Customer’s premises by its servants or agents for that purpose.
13.4 If any Products before payment are, in whole or in part, incorporated in or used as components or material for other goods, systems or documentation the whole of the goods, systems or documentation shall remain with and vest automatically in the Company and the Customer or, where appropriate the owner or owners of the other goods systems or documentation as tenants in common, until payment is made.
14.1 The Customer shall keep confidential the Product(s) and documentation in respect thereof and any documentation supplied in respect of the Service(s) or any part thereof and shall not disclose the same to any third party without the prior written consent of the Company.
14.2 The Company and the Customer shall keep confidential the Agreement and all other information of the other party obtained under, or in connection with, the Agreement and shall not divulge the same to any third party without the prior written consent of the other party.
14.3 The provisions of this Clause shall not apply to:
14.3.1 Any information in the public domain otherwise than by breach of the Agreement.
14.3.2 Information in the possession of the receiving party thereof before divulgence as aforesaid.
14.3.3 Information obtained from a third party who is free to divulge the same.
14.4 The Company and the Customer shall divulge confidential information only to those employees who are directly involved in the use of the Product(s) and shall ensure that such employees are aware of and comply with these obligations as to confidentiality.
14.5 The obligations of the parties as to disclosure and confidentiality shall come into effect on the signing of the Agreement and shall continue in force notwithstanding the termination of the Agreement.
15.1 Any notice pursuant to the Agreement shall be in writing signed by (or by some person duly authorised) the person serving it and shall be delivered personally or sent by post prepaid recorded delivery (airmail if overseas) or by telex or facsimile transmission to the party due to receive such notice at the address of the party on whom it is to be served as shown in the Agreement or to such other address as shall be notified in writing to the other party to the Agreement from time to time.
15.2 Any notice delivered personally shall be deemed to be received when delivered and any notice sent be pre-paid recorded delivery post shall be deemed (in the absence of evidence of earlier receipt to be received 48 hours after posting (6 days if sent by airmail) and in proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly addresses, stamped and posted.
15.3 Any notice sent by telex or facsimile transmission shall be deemed to have been received upon receipt by the sender of the correct answerback or transmission report.
16.1 The rights and remedies of either party under the Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time, by the other nor any failure or delay by the other in asserting or exercising any such rights or remedies.
17.1 If at any time any one or more clause, sub-clause, paragraph, sub-paragraph or any other part of the Agreement is held to be, or becomes, void or otherwise unenforceable for any reason under any applicable law the same shall be deemed omitted herefrom and the validity and/or enforceability of the remaining provision of the Agreement shall not in any way be affected or impaired thereby.
18.1 No variation in the provisions of the Agreement shall be of any effect unless made in writing and signed on behalf of the Customer and the Company.
19.1 The Customer shall not be entitled to assign, lease, transfer or part with its rights, responsibilities or obligations or any part thereof under the Agreement without the prior written consent of the Company.
20.1 Unless otherwise agreed in writing, the Customer shall not be entitled to set off against any monies due to the Company under the Agreement or any other account whatsoever, any amount claimed by or due to the Customer from the Company whether pursuant to the Agreement or in any other account whatsoever.
21. FORCE MAJEURE
21.1 Neither party will be liable for failure to perform obligations under the Agreement if that failure results from any circumstances beyond its reasonable control including (but without the generality of the foregoing) strikes, Lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any clause of whatever kind and whenever occurring.
22. HEALTH AND SAFETY
22.1 The Customer shall take all reasonable precautions to ensure the health and safety of the Company’s employees while on the Customer’s premises.
22.2 The Company shall not be liable to the Customer in any civil proceeding brought by the Customer against the Company under any Health and Safety Regulations made pursuant to the Health and Safety at Work 1974 Act, where such exclusion of liability is permitted by law.
22.3 The Customer shall indemnify and keep indemnified the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the Product(s) and Service(s) incurred directly or indirectly by the Company under the Health and Safety at Work Act 1974 or any Regulations, orders or directions made there under arising or resulting from the Customer’s default.
23. OFFERS OF EMPLOYMENT
23.1 For the duration of the Agreement and for a period of 12 months thereafter persons in the employment of either party who have worked on or in connection with the Agreement shall not except by mutual consent of the Company and Customer be taken under contract of employment by the other party.
24.1 Any dispute or difference which may arise between the Customer and the Company in connection with or arising out of the Agreement may, by agreement of both parties, be resolved by arbitration, in which event such dispute or difference shall be referred to a single arbitrator to be agreed between the Customer and the Company or, failing such agreement within 14 days, to be nominated by the President for the time being of the British Computer Society.
25.1 Unless otherwise agreed in writing between the Company and the Customer the Agreement shall be subject to and construed and interpreted in accordance with English Law and shall be subject to the exclusive jurisdiction of the Supreme Court of Judication in London.
26.1 All work to be done and Product(s) to be delivered shall be in accordance with the Agreement and fit for the purpose intended. To the extent that the standards of work and Product(s) are not separately specified the Company shall use good quality materials techniques and standards and shall execute the Agreement with the care skill and diligence required in accordance with reasonable professional standards.
27. ENTIRE AGREEMENT
27.1 The Customer hereby acknowledges that the terms and conditions of this Agreement supersede all and any prior agreements and undertakings existing between the parties in respect of this Agreement and all obligations of any kind owed by the Company to the Customer in respect thereof howsoever arising which the Customer may have either directly or indirectly against the Company and constitutes the entire Agreement in respect thereof.
28.1 Headings are inserted for convenience of reference only and shall have no effect in construing the Agreement.
29.1 The above General Terms and Conditions as stated in this document are accepted and will be adhered to.