Terms and Conditions
TERMS AND CONDITIONS OF KEY COMPUTER APPLICATIONS LIMITED
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
Business Days: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Conditions: these terms and conditions may be amended from time to time in accordance with clause 2.2.
Contract: the Order and KCA’s acceptance of it in accordance with condition 3.3.
Customer: the person, firm or company who purchases Equipment from KCA.
Equipment: the equipment agreed in the Contract to be purchased by the Customer from KCA (including any part or parts of it).
Intellectual Property Rights: copyright and all other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent proprietary rights or forms of protection in any part of the world.
KCA: Key Computer Applications Limited (Company Number 02542478) of Cavan House, Ellesmere Street, Leigh, Lancashire WN7 4LQ.
Order: the Customer’s order for the supply of Equipment and /or Services.
Service Specification: the description or specification for the Services provided by KCA to the Customer.
Services: the Services to be provided by KCA under the Contract (including any part or parts of them).
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract;
(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing; and
(c) apply to the supply of both Equipment and Services except where application to one or the other is specified.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on KCA unless in writing and signed by a duly authorised representative of KCA.
3. BASIS OF SALE
3.1 Any quotation is valid for a period of 30 days only, and KCA may withdraw it at any time by notice to the Customer.
3.2 Each Order or acceptance of a quotation by the Customer shall be deemed to be an offer by the Customer to purchase Equipment and/or Services subject to these Conditions. The Customer shall ensure that the Order is complete and accurate.
3.3 A binding contract shall not come into existence between KCA and the Customer unless and until KCA issues a written order acknowledgement to the Customer, or KCA delivers the Equipment and/or Services to the Customer (whichever occurs earlier).
3.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of KCA which is not set out in the Contract.
3.5 No Order which has been acknowledged by KCA may be cancelled by the Customer, except with the agreement in writing of KCA and provided that the Customer indemnifies KCA in full against all loss, costs, damages, charges and expenses incurred by KCA as a result of cancellation.
4. QUANTITY AND DESCRIPTION
4.1 The quantity and description of the Equipment shall be as set out in KCA’s acknowledgement of order or (if there is no acknowledgment of order) quotation.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by KCA, and any descriptions or illustrations contained in KCA’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by KCA shall be subject to correction without any liability on the part of KCA.
4.4 KCA reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
5. PRICES AND CHARGES
5.1 All prices shall be the quoted price, or where no price has been quoted (or a quoted price is no longer valid), the price listed in KCA’s standard price list at the date of acceptance. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other reasonably and properly incurred expenses, charges and duties which shall be paid for by the Customer when it pays for the Equipment and/or Services.
5.2 KCA reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of any Equipment and/or Services as have not
been delivered to reflect any increase in the cost to KCA which is due to any factor beyond the reasonable control of KCA (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment and/or Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give KCA adequate information or instructions.
6.1 Subject to any special terms agreed in writing between the Customer and KCA, KCA may invoice the Customer for the price of the Equipment and/or Services on or at any time before or after delivery of the Equipment and/or the Services.
6.2 The terms of payment shall be within 30 days of the date of KCA’s invoice, whether or not delivery has taken place.
6.3 Time for payment of the price shall be of the essence of the Contract.
6.4 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment and/or Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to KCA, KCA may:
(a) terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) or cease to provide the Services to the Customer;
(b) charge interest on the amount outstanding from the due date to the date of receipt by KCA (whether or not after judgment), at the annual rate of 5 % above the base lending rate from time to time of HSBC Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. KCA reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(c) exercise a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to KCA. KCA shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
7. DELIVERY AND ACCEPTANCE
7.1 KCA shall use its reasonable endeavours to deliver the Equipment and/or Services on the date or dates specified in the Contract but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and/or Services and KCA is not liable for any delay in delivery, however caused.
7.2 Delivery shall be made during normal business hours (excluding bank or public holidays). KCA may levy additional charges for any delivery made outside such hours at the Customer’s request.
7.3 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment and/or provide Services. If KCA is prevented from carrying out delivery of the Equipment and/or Services on the specified date because no such preparation has been carried out, KCA may levy additional charges to recover its loss arising from this event.
8. RISK AND PROPERTY
8.1 The Equipment shall be at the risk of KCA until delivery to the Customer at the place of delivery specified in KCA’s acknowledgement of order.
8.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when KCA has received in full in cleared funds all sums due to it in respect of:
(a) the Contract; and
(b) all other sums which are or which become due to KCA from the Customer on any account.
8.3 Until ownership of the Equipment has passed to the Customer under condition 8.2, the Customer shall:
(a) hold the Equipment on a fiduciary basis as KCA’s bailee;
(b) store the Equipment (at no cost to KCA) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as KCA’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
(d) keep the Equipment insured on KCA’s behalf for its full price against all risks to the reasonable satisfaction of KCA, and hold the proceeds of such insurance on trust for KCA and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.4 The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 14 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to KCA on the due date.
8.5 The Customer grants KCA, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by KCA in repossessing the Equipment shall be borne by the Customer.
9. SUPPLY OF SERVICES
9.1 KCA shall provide the Services to the Customer with reasonable care and skill and in accordance with any agreed Service Specification.
9.2 KCA shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and KCA shall notify the Customer in any such event.
9.3 Any technical support forming part of the Contract shall unless specifically agreed otherwise in writing, be KCA’s Standard Support Service.
9.4 The Customer shall be deemed to have accepted any software developed or modified by KCA as part of the Services on whichever is the earliest of:
(a) the signing by the Customer of an acceptance certificate;
(b) the expiry of 10 days after delivery of the developed or modified software program; or
(c) the use of the software program by the Customer in the normal course of its business.
10. CUSTOMER’S OBLIGATIONS
10.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with KCA in all matters relating to the Services;
(c) provide KCA, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by KCA to provide the Services; and
(d) provide KCA with such information and materials as KCA may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.
10.2 If KCA’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) KCA shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays KCA’s performance of any of its obligations;
(b) KCA shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from KCA’s failure or delay to perform any of its obligations as set out in this clause 10; and
(c) the Customer shall reimburse KCA on written demand for any costs or losses sustained or incurred by KCA arising directly or indirectly from the Customer Default.
11. EQUIPMENT WARRANTY
11.1 KCA warrants to the Customer that the Equipment is free from defects of workmanship and materials. KCA undertakes (subject to the remainder of this condition 11), at its option, to repair or replace any Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship only in accordance with any warranty cover and terms provided by the manufacturer of the products.
11.2 KCA shall not be liable for a breach of the warranty contained in condition 11.1 unless:
(a) the Customer gives written notice of the defect to KCA within 14 days of the time when the Customer discovers or ought to have discovered the defect; and
(b) after receiving the notice, KCA is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by KCA) returns such Equipment to KCA’s place of business at the Customer’s cost for the examination to take place there.
11.3 KCA shall not be liable for a breach of the warranty in condition 11.1 if:
(a) the defect arises because the Customer failed to follow KCA’s or the manufacturer’s written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; or
(b) the Customer alters or repairs the relevant Equipment without the written consent of KCA.
11.4 KCA shall not be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.
12. LIMITATION OF LIABILITY
12.1 The following provisions set out the entire financial liability of KCA (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract; and
(b) any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
12.3 Nothing in these conditions excludes or limits the liability of KCA for:
(a) death or personal injury caused by KCA’s negligence; or
(b) fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3:
(a) KCA shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of contract; or
(vi) loss of use; or
(vii) loss or corruption of data or information; or
(viii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) KCA’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the relevant Equipment or Services (as the case maybe) under condition 5.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Customer acknowledges that (subject to anything specifically agreed in the Contract) any Intellectual Property Rights of KCA subsisting in the Equipment or arising out of or in connection with the Services are and shall remain the sole property of KCA, including any developed or modified software programs.
13.2 All materials, equipment and tools, drawings, specifications and data supplied by KCA to the Customer shall at all times be and remain the exclusive property of KCA, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to KCA, and shall not be disposed of or used other than in accordance with KCA’s written instructions or authorisation.
13.3 KCA shall supply any third party software to the Customer under the standard licence terms provided by the relevant third parties.
14.1 Without prejudice to any other right or remedy available to KCA, KCA may terminate the Contract or suspend the supply of Services or any further deliveries under the Contract without liability to the Customer and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
(a) the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach; or
(b) the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer’s reasonable control; or
(c) an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer; or
(d) an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(e) a receiver is appointed of any of the Customer’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the Customer’s assets; or
(f) the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(g) the Customer ceases, or threatens to cease, to trade; or
(h) the Customer takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.
15. FORCE MAJEURE
KCA reserves the right to defer the date of delivery of the Equipment and/or Services, or to cancel the Contract, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of KCA or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, failure of any communications network or third party server, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event).
16. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
17. GOVERNING LAW AND JURISDICTION
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England