Standard Terms and Conditions of Contract for The Provision of Equipment and Services The following are the standard Terms and conditions under which Options Direct Ltd. hereinafter referred to as “ODL” provides equipment and associated services.
1 DEFINITIONS
In these Terms and Conditions the under-noted words and expressions shall have the following meaning: “The Contract” means such documents as are agreed at date of the formation of the Contract together with such variations in writing as shall be agreed subsequently. “The Purchaser” means the trading entity or organisation specifically identified as the party placing the Contract with ODL. “Sub-Contractor” means any trading entity with whom ODL may place order (s) for work and/or supply of goods and/or services in connection with the Task. “The Task” means the work described in the relevant sections of the Contract and/or Appendices thereto in respect of which the Purchaser has engaged ODL. “Contract Price” means the sum of money specified in the Contract as the consideration for the Task. “Equipment” means all machinery, apparatus, materials, products, and articles to be provided by ODL under the Contract. “Plant” means all machinery, apparatus, materials, and articles to be provided by the Purchaser on the site to be used in conjunction with or in association with the Equipment. “Standard Tests” means those tests performed on items of Equipment at ODL’s premises to standard test procedures.
2 GENERAL
2.1 The acceptance of ODL’s Quotation includes the acceptance of the following Terms and conditions and of the special conditions (if any) stated in or referred to in the Quotation.
2.2 The Contract shall represent the entire agreement between the parties hereto and may not be and shall not be deemed
or construed to have been modified, amended, rescinded, cancelled or waived in whole or in part, except as provided for herein or by written instruments signed by the parties hereto.
3 LIMITS OF CONTRACT
3.1 The Quotation includes only such Equipment and work as are specified therein. Notwithstanding the above ODL reserve the right as detailed design proceeds to make minor changes to the Equipment and work, provided
that such changes shall not impair the performance of the Equipment or adversely affect the Contract or the completion
date.
4 SUPPLY OF INFORMATION TO ODL
4.1 The Purchaser shall provide ODL with all the information necessary to enable ODL to perform the Contract and in the event that work is delayed or the work in increased by reason of delay in the provision by the Purchaser of the necessary information or of any change or inaccuracy in such information, ODL, shall be at liberty to amend the Contract Price to compensate for any additional costs that may reasonably and properly incurred, and to extend the completion date by a reasonable period.
5 SUPPLY OF INFORMATION BY ODL
5.1 Unless otherwise specified in the Quotation all particulars of weights and dimensions submitted therein are approximations only. Descriptions and illustrations contained in advertising literature provided by ODL are intended merely to present a general idea of the subject matter thereof and shall in no way form part of the Contract.
5.2 ODL will furnish the Purchaser with such information as may reasonably be required to interface the Purchasers Plant with the Equipment.
5.3 ODL will furnish the Purchaser with all necessary documentation to enable the Purchaser to operate the Equipment.
6 COPYRIGHT OF CONFIDENTIALITY
6.1 All specifications, drawings and technical descriptions submitted with or in connection with the Quotation or the Contract are copyright.
6.2 The Purchaser shall keep confidential and not disclose to any third party without the prior consent of ODL in writing any drawings, designs or information (whether of a commercial or technical nature) acquired from ODL in connection with the Quotation or the Contract.
6.3 ODL undertakes to keep confidential and not to disclose without prior consent from the Purchaser in writing to any third party any trade or business secrets or similar confidential information supplied by the Purchaser to ODL relating to plant or processes except as may be necessary for the proper performance of the Contract.
6.4 Subclause 6.2 and 6.3 are each subject to the provision that nothing therein contained shall apply to prevent either party from disclosing information: A in its possession (with full right to disclose) prior to receiving it from the other, or B which is or later becomes public knowledge other than by breach of this clause, or C which it may independently receive from a third party (with full right to disclose)
7 PATENT INDEMNITY
7.1 ODL will indemnify the Purchaser against any claim or infringement of Letters Patent or
similar protection (published at the date of the Contract) by the use or sale of the Equipment or parts thereof and against all costs and damages which may be incurred in any action for such infringement provided that this indemnity shall not apply to any infringement which is due to ODL having followed a design or instruction given by the Purchaser or the use of the Equipment or parts thereof in association or combination with the Plant or any other Equipment supplied by ODL or it’s Sub-Contractors. Furthermore, this indemnity is also conditional upon the Purchaser giving ODL the earliest possible notice in writing of any claim being made or any action threatened or brought against the Purchaser so that ODL may at its sole discretion either procure for the Purchaser at ODL’s expense the right to continue the use of the Equipment or parts thereof or to modify or replace such Equipment or parts thereof. ODL also reserves the right in the event of any claim for action threatened or brought against the Purchaser to conduct at its own expense any litigation that may ensue and all negotiations for settlement of the claim.
7.2 The Purchaser warrants to ODL that any design or instruction given to ODL by the Purchaser will not be such as to cause infringement of any Letters Patent, Registered Design, Trademark, Trade Name, Copyright or similar protection. In the event of any such instruction being likely to cause infringement, the Purchaser will amend the contract so that, at the risk and expense of the Purchaser, ODL shall: A disregard the existence of the conflicting rights in the satisfaction of the Task, or B delay the implementation of the Task pending the outcome of any negotiation necessary to obtain illustration of the conflicting right (s) by the Purchaser, or C under-take extra development work to avoid infringement of the conflicting right (s).
8 TESTS
8.1 The Equipment will be submitted to the standard Tests. Certification that the Equipment has passed the Standard Tests will be supplied on request. If the Purchaser wishes to be present during the Testing, at least five working days notice must be given to ODL who will arrange the appropriate demonstration and will advise the Purchaser of the charge thereof, if any. Should the Purchaser fail to attend any such Test or demonstration at the time appointed then the Test or demonstration shall take place as though the Purchaser were in attendance and, where practical, the results of the Test or
demonstration shall be made available to the Purchaser at ODL’s premises.
9 PACKING
9.1 Unless others specified in the Quotation, all packing containers and materials are non-returnable and no charges for packing or the materials are included except when specifically stated. Charges for the return of packing materials will not be accepted unless otherwise agreed.
10 TRANSPORT
10.1 Unless otherwise specified in the Quotation the cost of Transport of Equipment to the Purchaser’s site is not included in the Contract Price.
10.2 In the absence of any specific instructions from the Purchaser, ODL will select the method of Transport and the carrier whose Standard Conditions of Carriage will then apply but by so doing ODL will not thereby assume any liability in connection with Transport nor shall the carrier in any way be deemed to be an agent of ODL.
10.3 Unless otherwise specified, ODL shall not be responsible for off-loading the Equipment and moving it to the place of installation.
11 DELIVERY, PROPERTY AND TITLE
11.1 ODL will not be liable for any loss arising directly or indirectly due to late delivery or non- delivery. Claims for goods lost or damaged in transit will only be considered if notified in writing: (a) To the carrier in accordance with its conditions of carriage. (b) To ODL within three days of delivery if goods are damaged or short delivered or within fourteen days from date of notification of despatch in the event of non-arrival.
11.2 Unless otherwise stated in the contract, the Purchaser will assume responsibility for providing adequate insurance of the Equipment subsequent to such delivery.
11.3 Any times quoted for delivery are to date from a written acceptance of the Purchaser’s order to proceed, and receipt of all necessary information and drawings to enable ODL to put the work in hand. The time for such delivery shall be extended by a reasonable period if delay in such delivery is caused by industrial dispute or by any cause beyond the reasonable control of ODL. Any other times quoted in the Quotation are estimates only not involving ODL in any liability for failure to meet them. 12 RETURNS
12.1 The action taken by ODL will be dependent upon the terms and conditions of the company’s suppliers and the manufacturer’s warranty.
12.2 In the case of Equipment delivered to the Purchaser that is subsequently reported as being “dead
on arrival,” the Purchaser must notify ODL within 3 days of delivery.
12.3 ODL will not accept the return of any Equipment for credit that is not returned in its original packaging; is not in re-
saleable condition; and has not been inspected by the company’s engineers. 12.4 The acceptance of all returns will be at the discretion of ODL.
13 TERMS OF PAYMENT
13.1 Payments must be made by the Purchaser within thirty (30) days from the invoice date. 13.2 If ODL are unable, due to causes within the control of the Purchaser or that of other contractors, to deliver all or any of the Equipment by the date specified in the Contract, ODL shall be entitled to arrange either at their own works or elsewhere on behalf of the Purchaser; all charges for packing and storage, for insurance, for demurrage, for additional carriage, and for any re-testing and necessary refurbishing shall be payable by the Purchaser. In any case, the Purchaser will make any payment due to ODL on delivery as though delivery was made on the date of notification that the Equipment is ready for delivery.
13.2 Final payment shall not be withheld on account of minor defects or omissions in the Equipment which do not affect its use.
14 CONTRACT PRICE ADJUSTMENT
14.1 If, by any reason of any rise or fall in the cost of materials, labour or transport, or of conforming to any Act of Parliament or to any order, regulation or by-law made with statutory authority by Government Departments or by local or
other authorities, that shall be applicable to the Equipment above or below such costs ruling at the date of Quotation, the costs to ODL of performing it’s obligations under the Contract shall be increased or reduced, the amount of such increase or reduction shall be added to or deducted from the Contract Price as the case may be, provided that no account shall be taken of any amount, by which any cost incurred by ODL has been increased by it’s default or negligence.
14.2 In the event that ODL incur extra costs due to variation or suspension of the work by the Purchaser’s instructions or
absence of instructions, or to interruptions, delays, overtime or shift work occasioned by the Purchaser, and not covered
by the Contract, mistakes or work for which ODL are not responsible, or to any specified site environment or Plant conditions, the Purchaser will accept such extra costs as an addition to the Contract Price, and will pay ODL accordingly. 14.3 In the event that ODL’s Quotation includes imported Equipment, the price of the Equipment will be converted into sterling at the ruling rate of exchange, which will be stated in the Quotation. The Purchaser agrees that if the rate of exchange alters by more than 5%, between the times of Quotation and importation, the Contract Price will be amended to reflect the revised Equipment Price.
15 WARRANTY
15.1 ODL will, at its own discretion, repair or replace any Equipment or part supplied in accordance with the Contract, which during the twelve months immediately following delivery (the Warranty period) has been found by ODL to be defective due to ODL, or their sub-contractors workmanship or materials, and which has been returned prepaid to ODL. Any repair or replacement as above will be effected without Labour charge to the Purchaser, providing that the Equipment has been properly used, operated and maintained and that the ODL recommended facilities, environment conditions and instructions have been employed throughout the Warranty period.
15.2 The Warranty will not be applicable to faults attributable to: (a) actions outside the control of ODL which affects the performance of the Equipment. (b) The use of the Purchaser’s non-specified or any third party programme with the Equipment.
15.3 In the case of Equipment made solely in accordance with the Purchaser’s specifications and designs and in respect of any installation work carried out by, or on it’s own behalf, of ODL’s entire liability and the Purchasers sole remedies shall be as follows: (a) ODL accepts liability for death or personal injury to the extent that it results from the negligence of ODL, its employees, agents or subcontractors. (b) Subject to paragraph (d) below, ODL accepts liability for direct physical damage or tangible property to the extent that such damage is caused by the negligence of ODL, its employees, agents or sub-contractors. (c) The total liability of ODL to the Purchaser over the above (whether in Contract or in tort including negligence) in respect of any one cause of loss or damage claimed to result from any breach of ODL’s obligations hereunder shall be limited to actual money damaged, which shall not exceed the smaller of £1,000,000 or the cost of the Equipment provided that such monetary limit shall not apply to any liability on the part of the ODL referred to in paragraph (a)
above. (d) Except as provided in paragraph (a) but otherwise not withstanding any other provision herein contained, in no event shall ODL be liable for the following loss or damage however caused, and even if foreseeable by, or in the contemplation of ODL. (i) economic loss which shall include loss of profits, business revenue, goodwill or anticipated savings. (ii) damage in respect of special indirect or consequential loss or damage (other than death, personal injury and damage to tangible property). (iii) any claim made against the Purchaser by any other party (save as expressly provided in Paragraph (b) above). (e) Except in respect of the liability of ODL referred to in Paragraph (a) above no claim may be or action brought (whether in Contract or tort including negligence) by the Purchaser in respect of any Equipment supplied by ODL more than one year after date of invoice for the relevant Equipment. (f) Nothing in these conditions shall confer on the Purchaser any rights or remedies to which the Purchaser would not otherwise be legally entitled. (g) Changes in the specified Plant such as to alter the agreed interface between the Equipment and the Plant. (h) Any adjustments made to the Equipment by the Purchaser, including non-scheduled maintained. (i) Failure of the power supply of air-conditioning or other environmental control. (j) Misuse of the Equipment by the Purchaser.
15.4 This warranty applies to European Countries only. Special arrangements maybe negotiated for other countries of the world, otherwise no liability is accepted.
16 TRANSFER AND SUB-LETTING
16.1 Notwithstanding any sub-contracting specified in the Contract, ODL reserves the right to assign, sub let or otherwise dispose of the Contract or any part thereof, or the benefit or advantage of the Contract, or any part thereof as circumstances may require, but will not enter into any such transaction without prior notification to the Purchaser unless any such transaction be within the normal business practice of ODL.
17 BREAK
17.1 Without prejudice or it’s rights in law, ODL reserve the right to terminate the Contract at any time in the event of a serious breach of the Contract terms and conditions by the Purchaser, by giving notice to the Purchaser in writing, to expire at the end of such period as may be specified in the Contract under this clause, or if no such period is specified, at the end of one month. Upon the expiration of the notice, the Contract shall be terminated without prejudice to the rights of both ODL and the purchaser accrued to the date of termination.
17.2 If either party petitions for re-organisation under the bankruptcy laws, is adjudicated as bankrupt, has a receiver appointed for it’s business, or makes an assignment for the benefit of creditors, then the other party may immediately terminate the Agreement.
18 LAW
18.1 Unless otherwise specified in writing, the Contract shall in all respects be considered as a Contract made in England, and subject to English law. Clause heading shown in the body of the Contract and all appendices thereto, which form part of the Contract, are for information only and shall not affect the interpretation or construction of the Contract.
19 FORCE MAJEURE
19.1 If either the Purchaser or ODL are prevented or delayed in performing any requirement or obligation of the Contract which affects the production of the Equipment as a result of circumstances beyond the reasonable control of the Purchaser or ODL as the case may be, such requirement for as long as and to such extent as may be justified by the circumstances must be made immediately in writing by one party to the other.
19.2 The work on the Contract has substantially ceased as a result of circumstances falling within the provisions of the Contract and is not resumed within a reasonable time, either party may, by giving notice in writing, terminate the Contract. 19.3 If the Contract is terminated, under this condition the parties shall agree, and the purchaser shall pay, such proportion of the Contract Price as the work actually done bears for the work for which the Contract Price was fixed, together with such costs necessarily incurred by ODL in connection with the termination as has not been paid.
20 ARBITRATION
20.1 The Purchaser agrees that if at any time, any question, dispute or difference whatsoever arises between the Purchaser
or ODL upon, in relating to or in connection with the Contract, the Purchaser or ODL may give notice to the other in
writing, of the existence of such question, dispute or difference and both parties will attempt to reach a solution. If no such mutually acceptable solution can be found, the question, dispute or difference will then be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within 14 days of receipt of such notice, of some person appointed by the chairman for the time being of the British Computer Society, in accordance with the Arbitration Act 1950, or any statutory modification or re-enactment thereof.
21 NOTICES
21.1 All notices, requests and demands given to or made upon the parties hereto shall, except as otherwise specified
herein, be in writing and delivered or mailed to any such party at it’s registered address.
21.2 Any party by notice may hereafter to all parties, designate a changed address for such party within the UK. Any notice, if mailed properly addressed, postage prepaid, registered or certified mail receipts, shall be deemed received
within the fourth business day thereafter, or when it is actually received, whichever is the sooner.
22 WAIVERS
22.1 No failure on the part of either party to exercise, and no delay in exercising, any rights or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, or remedy hereunder, preclude any other or further exercise of any other right or remedy granted hereby or by any related document or by law.
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