In these Terms the following words shall bear the following meanings:
Acceptance Tests means the tests devised by LJC to test the Equipment and Licensed Programs
Computer means any PC, Work Station or Terminal under the Customer’s control which has access to the Licensed Programs.
Contract means the contract or contracts for the purchase and supply of the Equipment and/or Licensed Program Materials and/or the Installation Services and/or the Training Services and/or the Customer Support agreed to be provided by LJC to the Customer in accordance with these Terms
Customer means the person whose Order for the supply of Equipment and/or Licensed Program Materials and/or Installation Services and/or Training Services and/or Customer Support LJC accepts in an Order Acknowledgment
Customer Support means the support services described in Clause 12 to be performed by LJC in respect of the Equipment and the Licensed Program Materials on an as required basis
Delivery Date means the delivery date agreed by LJC and the Customer.
Delivery Address means the address as to the point of delivery as specified on the Order Acknowledgement.
Equipment means the computer or other equipment specified on LJC’s Quotation to which these Trading Termsare attached.
Installation Services means the services of LJC personnel in relation to the installation of the Equipment and/or Licensed Program Materials.
Intellectual Property Rights means patents, trademarks, service marks, registered designs, applications for any of the foregoing, copyright, design rights, know how, confidential information and other similar protected rights in any country.
LJC means LJ Computers Limited registered in England and Wales under Number 3417271
Licensed Programs means the Third Party Licensed Programs and the LJC Licensed Programs
Licensed Program Materials means the LJC Licensed Program Materials and the Third Party Licensed Program Materials.
LJC Licensed Programs means the applications computer programs specified in LJC’s Quotation as being the LJC Licensed Programs.
LJC Licensed Program Materials means the LJC Licensed Programs and any Media on which they are contained.
LJC’s Quotation means LJC’s written invitation for the Customer to make an offer to buy the Equipment and/or Licensed Program Materials and/or Installation Services and/or Training Services at the Price therein specified subject to these Terms.
Location means the site where the Equipment and/or the Licensed Program Materials are to be installed or Training Services supplied where Installation Services or Training Services are specified on LJC’s Quotation or Order Acknowledgement
Media means any media on which the LJC Licensed Programs or the Third Party Licensed Programs are recorded as provided to the Customer by LJC.
Order means the Customer’s offer purchase the Equipment and/or Licensed Program Materials and/or Installation Services and/or Training Services as described on LJC’s Quotation subject to any amendments specified in the Order Acknowledgement.
Order Acknowledgement means LJC’s acceptance of the Order subject to these Terms
Price means the price of the Equipment and/or the Licensed Program Materials and/or the Installation Services and/or the Training Services specified on LJC’s Quotation unless amended by the Order Acknowledgement
Program Documentation means the operating manuals, user instructions, technical literature and other related materials supplied to the Customer by LJC for aiding the use and application of the Licensed Programs.
Third Party Licensed Programs means the applications computer programs devised by any third party and supplied by LJC to the Customer and specified in LJC’s Quotation.
Third Party Licensed Program Materials means the Third Party Licensed Programs and any Media on which they are contained.
Third Party Product License means the agreement required to be executed by the Customer as a condition precedent to the Customer’s right to use the Third Party Licensed Program Materials
Takeover Date means the date on which the Equipment and/or Licensed Program Materials are accepted by the Customer pursuant to clause 13 or one month after the Customer starts operational use of the Equipment and/or to Use the Licensed Program Materials whichever shall be the earlier
Training Services means the training in relation to the use of the Equipment and the Licensed Program Materials to be provided by LJC to the Customer as specified on LJC’s Quotation unless amended by the Order Acknowledgment
Use the Licensed Program Materials means to load and use the Third Party or the LJC Licensed Program Materials (as the case may be) on a Computer and to read and possess the Program Documentation in conjunction with the use of the Licensed Programs.
2. Products and Services to be provided
- LJC hereby agrees to sell, deliver and where Installation Services are specified in LJC’s Quotation or as amended by the Order Acknowledgement install the Equipment and/or Licensed Program Materials and to supply any Training Services specified on LJC’s Quotation or as amended by the Order Acknowledgment in each case upon these Terms.
- The Contract is SUBJECT to any Customer who purchases Third Party Licensed Program Materials duly executing any Third Party Product License.
- LJC reserves the right prior to delivery of the Equipment to substitute an alternative item of equipment for any item of equipment agreed to be supplied hereunder provided that such substitution will not materially affect the performance of such equipment and will not result in an increase in the Price.
- Operating supplies such as disk packs, stationery, printing cartridges and similar accessories are not supplied as part of the Equipment.
3. Price and Payment of the Price
- LJC shall invoice the Price at any time after the satisfactory completion of the Acceptance Tests in the case of the supply of Equipment and/or Licensed Program Materials and provision of Installation Services and in the case of Training Services at any time after delivery of the Training Services.
- The Customer shall pay the Price within 30 days of the invoice.
- Unless otherwise stated the Price for the Equipment and/or Licensed Program Materials in respect of Contracts for delivery within the United Kingdom includes the cost of basic packaging and delivery to the Customer.
- The Price and any additional charges payable under this Contract are exclusive of Value Added Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
- If any sum payable under these Termsis not paid within 7 days after the due date LJC reserves the right to charge interest (payable on demand) on such sums on a day to day basis at the rate of 2% above the base rate of Barclays Bank plc.
4. Title and Risk in the Equipment and Media
- The legal and beneficial ownership of the Equipment and the Media on which the Licensed Program Materials are recorded shall pass to the Customer on payment in full and in cleared funds of the Price and any other sums which may be due in respect of the supply of the Equipment and/or Licensed Program Materials and/or Installation Services and/or Training Services.
- Risk in the Equipment and Media shall pass to the Customer on delivery to the Delivery Address. The Customer shall be responsible for insuring the Equipment against all normal risks with effect from the time risk passes.
5. Right to Use the Third Party Licensed Programs
- The performance by LJC of its obligations under these Terms and the Customer’s right to Use the Third Party Licensed Programs is in all respects conditional upon the Customer duly executing any Third Party Product License.
6. Right to Use the LJC Licensed Programs
- LJC grants to the Customer with effect from the takeover date a non-exclusive and non-transferable License to use the LJC Licensed Programs.
- The LJC Licensed Programs and the Intellectual Property Rights therein relating thereto are and shall remain the property of LJC.
- The Customer shall not permit any third party to Use the LJC Licensed Programs in any way whatever.
- The Customer shall not assign, sub-lease, gift, rent or loan or otherwise deal in the LJC Licensed Programs without the prior written consent of LJC which LJC may withhold at its absolute discretion.
- LJC shall be entitled to terminate the licence granted at 6.a forthwith by notice in writing to the Customer if the Customer shall commit any material breach of these Terms or shall become insolvent or shall have a liquidator receiver administrator or administrative receiver appointed.
7. Location Preparation
- LJC shall supply to the Customer in reasonable time before delivery of the Equipment and Licensed Program Materials such information and assistance as may be necessary to enable the Customer to prepare the Location for the Installation Services and/or the Training Services. The Customer shall at its own expense prepare the Location and provide proper environmental and operational conditions prior to delivery.
- Unless otherwise agreedLJC shall deliver the Equipment and any Licensed Program Materials to the Delivery Address on the Delivery Date directly or by courier
- At point of delivery by courier of the equipment and any Licensed Program Materials to the Delivery Address on the Delivery Date the Customer should note the delivery sheet as ‘UNCHECKED’ before signing.
9. Time Not of the Essence
- Any dates quoted for delivery of the Equipment or the Licensed Program Materials or Installation Services or Training Services are approximate only and LJC shall not be liable for any delay howsoever caused. The time of delivery and time of installation and time of provision of the Training Services shall not be of the essence of these Terms unless previously agreed by LJC in writing.
10. Installation Services
- Where Installation Services are specified in LJC’s Quotation or the Order Acknowledgement LJC shall install the Equipment and/or Licensed Program Materials (as the case may be) at the Location.
In any other case the Customer shall be responsible for and bear all risks in relation to the installation of the Equipment and the Licensed Program Materials at the Location
- If in the reasonable opinion of LJC it is necessary to remove or otherwise disconnect any of the Customer’s existing equipment at the Location in order to carry out the installation of the Equipment and the Licensed Program Materials then the Customer shall permit and obtain all necessary consents for such removal and/or disconnection and shall give LJC all necessary assistance to enable such work to be carried out.
11. Training Services
- Where Training Services are specified in LJC’s Quotation or the Order Acknowledgment LJC shall provide such training as it considers appropriate to assist the Customer as to how to Use the Licensed Program Materials on the basis described in LJC’s Quotation or the Order Acknowledgment.
- The Training Services shall be provided at the Location or such other place as may be agreed during normal business hours and the Customer shall provide LJC with access to and use of computer facilities, electric power, lighting, office space and normal office facilities.
12. Customer Support
- LJC shall provide technical advice by way of telephone support to assist the Customer in overcoming problems and resolving queries in relation to the use and operation of the Licensed Program Materials and the Equipment during the hours between 0900 and 1300 and 1400 and 1730 Mondays to Fridays excluding Public Holidays.
- The Customer shall pay for the telephone support by way of the premium rate telephone charge. Calls to the telephone support help line are charged at 60p per minute.
The Equipment and/or the Licensed Program Materials shall be deemed to be accepted 48 hours after delivery (such acceptance not to be unreasonably withheld) save where Acceptance Tests are specified in LJC’s Quotation or the Order Acknowledgement in which case the Equipment and the Licensed Program Materials shall be deemed to be accepted by the Customer upon the Equipment and/or Licensed Program Materials successfully passing the Acceptance Tests. In any event the Equipment and/or the Licensed Program Materials shall be deemed to be accepted on the Takeover Date.
14. Force Majeure
Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
15. Customer’s Default
If LJC is prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of the Customer (other than a delay by the Customer for which the Customer is excused under Clause 14) then the Customer will pay to LJC all reasonable costs, charges and losses sustained or incurred by LJC as a result (including without limitation the cost of storage and insurance of the Equipment). LJC shall promptly notify the Customer in writing of any claim which it may have under this Clause giving such particulars thereof as it is then able to provide.
- The Contract may be terminated forthwith by either party on giving notice to the other if the other party shall have a receiver or administrative receiver appointed or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
- Any termination under sub-clause 1 shall discharge the parties from any liability for further performance of the Contract and in the case of a termination by LJC shall entitle LJC to enter any of the Customer’s premises and recover any equipment and materials the property of LJC (and so that the Customer hereby irrevocably licenses LJC, its employees and agent to enter any such premises for that purpose) and also to be paid a reasonable sum for any work carried out by it prior to such termination and in the case of a termination by the Customer shall entitle the Customer to be repaid forthwith any sums previously paid under the Contract(whether paid by way of a deposit or otherwise) and to recover from LJC the amount of any direct loss or damage sustained or incurred by the Customer as a consequence of such termination.
- Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force of any provision whatsoever.
17. Warranties and Liability
- LJC warrants that the LJC Licensed Program Materials will perform substantially as described (provided that the LJC Licensed Program Materials are properly used on the Computer for which they were designed). If LJC is notified of significant errors during the period of six months after delivery it will correct such demonstrable errors in the LJC Licensed Program Materials within a reasonable time or at its option provide or authorise a refund of the price paid by the Customer for the LJC Licensed Program Materials against return to LJC of the LJC Licensed Program Materials. Where a fault arises in the performance of the LJC Licensed Program Materials other than as a result of breach of this Warranty and LJC is erroneously called upon to correct an error and it is conclusively found that the error or problem arose as a result of the improper use of the LJC Licensed Program Materials or for a reason not connected with the LJC Licensed Program materials then LJC reserves the right to charge a reasonable fee (based on its standard daily rate) for the cost of investigation of the source of the fault.
- LJC warrants that the Training Services and Installation Services and Customer Support will be provided with reasonable care and skill.
- The above represents the Customer’s sole remedies for any breach of LJC’s warranties in relation to the LJC Licensed Program Materials and the Training Services and the Installation Services which are given only to the Customer.
- LJC does not warrant that the LJC Licensed Program Materials will meet the Customer’s requirements or that the operation of the LJC Licence Program Materials will be uninterrupted or error free or that all software bugs which are not material to the operation of the LJC Licensed Programs will be resolved or that defects in the LJC Licensed Programs will be corrected. The Customer shall load and use the LJC Licensed Programs at its own risk and in no event shall LJC be liable to the Customer for any loss or damage of any kind (except personal injury or death resulting from LJC’s negligence) including loss of profits or other consequential loss or damage even if LJC shall have been advised of the possibility thereof arising from the Customer’s use of or inability to use the LJC Licensed Programs or from errors or deficiencies in the LJC Licensed Programs or from acts or omissions of LJC in connection with the Installation Services or Training Services or Customer Support whether caused by negligence or otherwise except as expressly provided. In no event shall LJC’s liability exceed the amount paid by the Customer for the LJC Licensed Program Materials.
- In relation to the Equipment and the Third Party Licensed Program Materials or other items or materials not manufactured by LJC the Customer shall be entitled to the benefit of any warranty or guarantee as is given by the manufacturer or supplier to LJC and not to any warranty from LJC.
- LJC does not give any warranty that the Equipment is suitable for any particular purpose unless that purpose is specifically advised to LJC in writing by the Customer and LJC confirms in writing the Equipment can fulfill that purpose.
- LJC shall not be liable to the Customer for any loss arising out of any failure by the Customer to keep full and up to date security copies of the computer programs and data it uses in accordance with best computing practice.
- These Terms are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise all of which are hereby excluded to the fullest extent permitted by law.
18. Intellectual Property Rights Indemnity
LJC shall indemnify the Customer against any claim that the normal use or possession of the Equipment and/or LJC Licensed Program Materials infringes the intellectual property rights of any third party provided that LJC is given immediate and complete control of such claim, that the Customer does not prejudice LJC’s defence of such claim, that the Customer gives LJC all reasonable assistance with such claim and that the claim does not arise as a result of the use of the Equipment and/or LJC Licensed Program Materials otherwise than in accordance with the terms of this Contract or in combination with any equipment or programs not supplied or approved in writing by LJC. LJC shall have the right to replace or change all or any part of the Equipment and/or LJC Licensed Program Materials in order to avoid any infringement. The foregoing states the entire liability of LJC to the Customer in respect of the infringement of the intellectual property rights of any third party.
19. Customer’s Warranty
The Customer hereby warrants to LJC that the Customer has not been induced to enter into the Contract by any prior representations or warranties, whether oral or in writing, except as specifically contained in these Trading Terms and the Customer hereby irrevocably and unconditionally waives any right it may have to claim damages and/or rescind the Contract for any misrepresentations not contained in these Terms or for any breach of any warranty not contained herein (unless such misrepresentation or warranty was made fraudulently).
20.1 Waiver of Remedies
No forbearance delay or indulgence by either party in enforcing the provisions of this Contract shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
20.2 Entire Agreement
These Trading Terms supersede all prior agreements, arrangements and understandings between the parties and constitutes the whole agreement between the parties relating to the subject matter hereof. No addition or modification of any provision of the Contract shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties.
Save as expressly provided in this contract, neither party shall assign or otherwise transfer the Contract or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Contract or such other address as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched.
In these Terms:
- words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and (in each case) vice versa;
- any reference to a party in these Trading Terms includes a reference to his successors in title and permitted assigns;
- the headings to the Clauses are for ease of reference only and shall not affect the interpretation or constitution of these Trading Terms.
These Terms shall be governed by and construed in accordance with the laws of England.
Any dispute which may arise between the parties concerning these Terms shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such a purpose.
Notwithstanding that the whole or any part of any provision of these Terms may prove to be illegal or unenforceable all other provisions of these Terms and the remainder of the provision in question shall remain in full force and effect.
20.9 Third Party Claims
Any Contract entered into in accordance with these Terms shall not confer any benefit or right of action on any third party and the provisions of the Contract (Rights of Third Parties) Act 1999 and any subsequent supplementary or modifying legislation are hereby excluded to the fullest extent permissible by law.