CONDITIONS OF SALE FOR ISIP PRODUCTS
The “Conditions” means these conditions of sale.
“KINETIX ” means KINETIX Limited.
The “Purchaser” means any person or company who purchases products from KINETIX.
The “Customer” means the end user organisation on whose premises the products supplied by KINETIX are registered and/or delivered to.
The “Contract” means any contract between KINETIX and a Purchaser for the provision by KINETIX of any products.
The “Products” means the Equipment and the Licences provided by KINETIX.
The “Equipment” means the ISIP Hardware and associated programs provided by KINETIX.
The “Licenses” means the ISIP software supplied by KINETIX to each Equipment to provide the specific product capacity purchased.
2. EFFECT OF CONDITIONS
A. Except where agreed in writing by KINETIX to the contrary, the Conditions shall apply to all Contracts made between KINETIX and a Purchaser. Any of the terms and provisions contained in a Purchaser’s order which are inconsistent with these Conditions shall not be binding on KINETIX and shall not apply to any transaction between the parties.
B. Any order placed by a Purchaser shall be deemed to incorporate the current terms contained in this document.
3. PRICEA. The prices for the Products are ex-works KINETIX, and exclusive of all carriage, hoisting, installation, commissioning and other charges and VAT which shall be paid by the Purchaser. If the Products are to be exported outside the United Kingdom the Purchaser shall pay the cost incurred by KINETIX or on its behalf of obtaining all necessary export authorisations and all import duties, sales taxes, charges and assessments.
B. KINETIX reserves the right to increase the price for the Products in the event of:
(i) Increase in costs incurred by KINETIX resulting from delays caused by any reason directly attributable to any act or default of the Purchaser.
(ii) Changes in Product or specifications or design thereof which are requested by the Purchaser.
(iii) Incorrect or incomplete information furnished by the Purchaser.
(iv) Increases in costs incurred by KINETIX resulting from delays which are attributable to reasons beyond KINETIX’s control.
A. Payments shall be made in accordance with the payment status of the Purchaser.
B. Where the purchaser is an accepted Account Holder and currently within their credit limit and with a clean payment history, payment shall be made in full within 20 days of invoice date by cleared funds transferred directly to the stated KINETIX bank account. The Purchaser shall not be entitled to make any deduction from the price in respect of any set-off counterclaim. Notwithstanding the foregoing KINETIX shall have a right to present an invoice in respect of the Products or any part thereof that has been delivered to the Purchaser or made available to him.
C. Without prejudice to any other remedy, including the right to terminate all Contracts if payment is not made in accordance with Clause 4B above.
D. KINETIX reserves the right, upon written notice to the Purchaser, to declare all sums owing to KINETIX immediately due and payable in the event of a breach by Purchaser of any of its obligations in any contract with KINETIX.
E. All payments shall be made in Pounds sterling, unless agreed to the contrary by KINETIX in writing and prices quoted are exclusive of any currency control or restrictions and any taxes all of which shall be payable in addition.
F. All purchases by non-account holders or by account holders who are not in compliance with the terms of their credit limit or payment schedule, shall be made via the up-front electronic payment services provided for non-account holders.
G. Acceptance of any purchase order is subject to confirmation of receipt of full payment by KINETIX, or for account holders; confirmation that the purchase order meets their account requirements, and an invoice will be sent to the purchaser upon such event to confirm order acceptance. KINETIX will not be obliged to the Purchaser in any way until this invoice is sent.
5. DELIVERY AND INSTALLATION
A. KINETIX will use its best endeavours to deliver or make available (as the case may be) the products or any part thereof on the delivery date(s) and at the delivery address (es) agreed between the parties.
6.FORCE MAJEUREIf KINETIX shall be prevented (directly or indirectly) from performing or completing any of its obligations under these Conditions by reason of Act of God, war, strike, lockout, trade disputes, fires, breakdowns, interruptions of transport, government action, delays in delivery to KINETIX of any Equipment or parts thereof or any cause whatsoever (whether or not of the like nature to those already mentioned) outside its control. KINETIX shall be entitled (if it has notified the Purchaser within 21 days of the occurrence of such cause) to extend the time for its performance of its obligations hereunder by a period equivalent to that during which its performance has been delayed or prevented by the cause referred to.
7. DELIVERY BY INSTALMENTSWhere delivery is made by installments these Conditions shall (with any necessary alternations) apply to each installment of such Product. (In particular (but without any way limiting the generality of the foregoing) unless otherwise agreed between the Purchaser and KINETIX payments shall be made as if the installment delivered had been comprised in a separate agreement and the price and payment date specified in such separate agreement had been the price and payment date agreed between the parties or date of actual delivery (whichever shall be the earlier).
8. PASSING OF PROPERTY AND RISKA. Risk in the Equipment or any part thereof shall pass to the Purchaser at the time of actual delivery thereof to the delivery address provided by the Purchaser at the time of Purchase.
B. Until all moneys due to KINETIX by the Purchaser have been paid:
(i) All rights, title and property in equity and in law in the Equipment shall remain vested in KINETIX and shall not pass to the Purchaser; and
(ii) The Purchaser shall not sell, assign, mortgage, pledge, lend or otherwise transfer or dispose of any interest in or create any charge or lien over or otherwise encumber the Product to do any act or thing or permit any act or thing to be done which may in any way prejudice KINETIX’s rights to and title to the Product; and
(iii) The Purchaser shall hold the Equipment in such a way as to indicate clearly that it is the property of KINETIX; and
(iv) The Purchaser shall keep the Equipment in good and substantial repair and operating condition.
C. KINETIX may maintain an action for the price notwithstanding that property in the Equipment may not have passed to the Purchaser.
D. The Purchaser hereby acknowledges that until the Purchaser acquires title to the Equipment, the relationship between KINETIX and the Purchaser in relation to the Equipment shall be a fiduciary one and the Purchaser shall hold the Equipment as bailee for KINETIX.
E. At all times, the rights, title and property in equity and in Law in the Licences remain vested in KINETIX and shall not pass to the purchaser.
F. Each of the paragraphs of this Clause 8 shall be construed as a severable contract term not affected by any invalidity or unenforceability of any other contract term and shall survive the termination of the Contract.
9. EXCLUSIONS AND LIMITATIONS OF LIABILITY
A. The Purchaser hereby acknowledges that the nature of the Product is inherently such that breakdowns or malfunctions may occur. The Purchaser agrees that KINETIX’s obligations in respect of such breakdowns or malfunctions are limited to those set out in this Clause 9. If the Purchaser and KINETIX shall not enter into a maintenance agreement then but not otherwise, KINETIX will provide the following limited service:
(i) if before the expiration of two years from the date of actual delivery of the Products and if the Purchaser shall have complied with its obligations hereunder any part of the Product shall prove defective and shall be returned to KINETIX’s factory at the cost of the Purchaser and if upon inspection KINETIX agree that the part is defective KINETIX will repair or replace the same (as KINETIX may think fit) and will return the same to the Purchaser but KINETIX shall be under no further liability or obligations in respect thereof.
(ii) KINETIX shall not be required to provide the limited service referred to sub-paragraph (i) of this paragraph.
a. if any such works of maintenance, repair or replacement shall be required because of accident, neglect, misuse, failure of electrical power, failure to maintain the recommended environmental conditions or because of use which is other than the ordinary and proper use of the Product.
b. if anything which may be connected to the Product is unsuitable for such connection or interferes with the proper functioning of the Product.
c. for any party other than the Purchaser and exclusively for the Customer to whom the Product was first supplied by KINETIX.
d. in respect of any magnetic disk or other such consumable item.
C. KINETIX will in no circumstances have any liability for loss of profit, revenue or goodwill or for any liability of the Purchaser to any other person (save only as set out in Clause 12) or for any other indirect or consequential loss howsoever arising.
D. Except where the negligence or default of KINETIX results in death or personal injury, the aggregate liability of KINETIX under or in conjunction with the Contract and/or the Product or any part thereof (no matter how many claims are made or whatever the basis of such claims) shall be limited in total to the price paid for the Product.
E. The Purchaser agrees that he is in a better position to foresee and evaluate any indirect or consequential loss he may suffer in connection with the Product and that the price therefore has been calculated on the basis that KINETIX will exclude and limit liability as set out in this Clause. The Purchaser agrees that he has an opportunity to insure against such loss.
F. Insofar as it limits or excludes liability, this Clause 9 shall override any other provision in these Conditions and each of the paragraphs of this Clause shall be treated as a severable contract term not affected by any invalidity or unenforceability of any other paragraph or contract term, and shall survive the termination of the Contract.
10. TERMINATIONA. Without prejudice to any other rights of KINETIX, KINETIX shall have the right to terminate the Contract (including the licence contained in these Conditions) forthwith by notice in writing to the Purchaser in the following circumstances.
(i) If the Purchaser should be in breach of any of its material obligations under a Contract and either such breach is incapable of remedy or the Purchaser should not remedy such breach within thirty days after receipt of notice requiring it to remedy the same.
(ii) if any distress or execution should be levied on the property of the Purchaser or if it should make any arrangement or composition with its creditors generally or commit an act of bankruptcy or if any receiving order should be presented or made against it or if the Purchaser (being a Company) has any petition presented or resolution passed for its winding up (otherwise than for the purpose of and followed by an amalgamation or reconstruction) or dissolution or an encumbrancer should take possession or a receiver or administrator should be appointed of the whole or any material part of the assets of the Purchaser
B. In the event of termination for whatever reason, KINETIX shall be entitled to retain (to the extent it shall prove necessary) and set off against any liability of the Purchaser to KINETIX any part of any moneys payable under this Agreement already paid.
C. If KINETIX is prevented or delayed in the performance of its obligations under the Contract by any of the events specified in Clause 6 for a continuous period of six months or more then either KINETIX or the Purchaser may terminate such Contract by notice in writing to the other.
If such Contract is frustrated or so terminated KINETIX shall be entitled to remuneration or re-imbursement on a quantum merit basis.
D. If the Contract is terminated (for whatever cause) and any moneys due and payable have not been paid to KINETIX in full the Purchaser shall promptly deliver to KINETIX the Product(s) and if the Purchaser should not do so, KINETIX shall have the right, without prejudice to any other rights or remedies, to send its employees or agents onto the Purchaser’s premises or the Customer’s premises to where the Products were delivered, or to remotely access the products at any time to take possession of or prevent the working of the Product. Upon termination of the Contract for whatever cause, the Programs, Licences and all copies of the whole or part thereof (including flow charts, logic diagrams, source codes, users’ manuals and modified programs) shall be returned by the Purchaser to KINETIX within 15 days of such termination.
11. PROGRAMS & LICENCES
In consideration of the payment by the Purchaser to KINETIX of the full purchase price of the Products and the performance of the other obligations of the Purchaser, KINETIX hereby grants to the Customer a non-exclusive non-transferable licence to use the programs and Licenses and any user documentation incorporated in or delivered with the Equipment upon the following terms:
A. the Programs will be supplied as part of the Equipment. The Licences will be enabled remotely.
B. the Customer shall use the Programs and Licences only with the Equipment (and only for the Customer’s business purposes and shall not market or commercialise the Programs or Licences in any way.
C. Neither the Purchaser nor the Customer may make any copies of the Programs or Licences.
D. the Purchaser will not remove any copyright or other notice supplied by KINETIX with the Programs or Licences.
E. The Purchaser shall bring to the attention of KINETIX any infringement by any third person of the property rights referred to in Clause
12 and shall at the request and expense of KINETIX take or join KINETIX in taking all such action as KINETIX may at its sole discretion decide and require for the purpose of protecting all such rights.
F. Neither the Purchaser nor the Customer will alter, modify or update the Equipment, Programs or Licences nor merge with other computer programs without the prior written consent of KINETIX.
G. the Purchaser will ensure that the Programs and Licences will be used only in accordance with the Contract and to satisfy itself at all reasonable times that the Programs and Licences are so used.
H. the Purchaser will not (save so far as necessary in the case of any employee of the Purchaser who uses the equipment and then only in confidence).
(i) Disclose any details of the method of operation of the Programs or Licences to any third party, or
(ii) Give or lend to any third party any of the Programs or Licences in whatever form (or any copy of the user manual or other documentation relating thereto) or
(iii) Suffer or permit any unauthorised person to copy, take or remove from the premises on which the Programs and Licences are used by the Customer any of the Programs or Licences or the user manual and neither the Purchaser nor the Customer may sub-licence or assign or otherwise transfer the Programs or Licences.
I. Should the Purchaser or Customer dispose of the Equipment to any third party, the Licences will become null and void. KINETIX may at the request and cost of the Purchaser (and if the Purchaser shall have complied with all its obligations hereunder) grant to that third party, new Licences to use the Programs upon the same terms as are contained in the Contract or as near thereto as the circumstances shall then permit and may agree to provide such Licences to said third party at the appropriate commercial rates.
J. The Intended purpose of the Programs and Licences are to provide the Customer with the right to use the Programs and Licences for the specific purpose that KINETIX agreed to deliver them at the time of initial delivery. While KINETIX may provide software upgrades that contain fixes and additional features, neither the Purchaser nor the Customer have any right to use or claim title to such additional features without the written consent from KINETIX which can only be granted on a case by case request, prior to said features being used.
K. The Lawful acquirer of the Equipment is the original Purchaser of the Equipment or the original Customer of the Equipment depending on the commercial agreement between said parties. No other party can become the Lawful Acquirer of the Equipment, nor any other Products/ Licences supplied by KINETIX for use with the Equipment without the written agreement of KINETIX and satisfaction of these terms and conditions.
12. THIRD PARTY INTELLECTUAL PROPERTY RIGHTSA. KINETIX will indemnify the Purchaser in respect of any costs and damages awarded against the Purchaser based on an allegation that the Purchaser’s use of the Product in the United Kingdom infringes any patent, copyright, design right or other intellectual property rights provided that:
(i) this indemnity shall not apply to any infringement which is due to KINETIX having followed designs or instructions furnished by the Purchaser or to the use of the
Product in a manner or for a purpose not specified or agreed to in writing by KINETIX, or to any infringement which is due to the use of the Product in association or combination with any other equipment not supplied by KINETIX;
(ii) in the event of such proceedings KINETIX shall have the right at its discretion either to procure for the Purchaser at KINETIX’s expense the right to continue the use of the
Product to which such proceedings relate or to modify or replace such Product or if in the opinion of KINETIX no other reasonable alternative is available to terminate the Contract and re-purchase the Product at the purchase price, less depreciation to be established by KINETIX taking into account the expected useful life of the Product the duration of the Purchaser’s use thereof and then current accounting practice;
(iii) KINETIX is promptly notified in writing by the Purchaser of any claim being made or action threatened or brought against the Purchaser and KINETIX is given the sole right to defend the proceedings and sole control of any negotiations for settlement or compromise; and
(iv) the Purchaser gives at its own expense all reasonable assistance and does not by any act or omission do anything which may directly or indirectly prejudice KINETIX in this connection.
B. Except as aforesaid, KINETIX shall not be under any liability to the Purchaser where the Product infringes third party intellectual property rights.
13. KINETIX’S INTELLECTUAL PROPERTY RIGHTSAll copyright, patents, trade secrets, know-how, rights to confidence and other property rights in the Licences, Programs and the Equipment, and all parts thereof and anything supplied in connection therewith or to facilitate the use thereof are and remain the property of KINETIX and no rights in or under such property pass to the Purchaser or any other party save for those expressly granted under these Conditions.
14. NOTICESAny notice to be given under these Conditions shall be given in writing or by email and/or fax and shall be deemed to have been duly given if sent or delivered to the party concerned at its address or email address or fax number at the time of Contract or such other address or number as that party may from time to time notify in writing to the other and shall be deemed to have been served if sent by post or email or fax to and from an address within the United Kingdom three working days after posting.
15. ASSIGNMENTThe Purchaser shall not assign or transfer or purport to assign or transfer the Contract or the benefits thereof to any other person without the prior written consent of KINETIX.
16. DISPUTESThese Conditions and all Contracts between KINETIX and any Purchaser shall be construed in accordance with the Laws of England and KINETIX and the Purchaser hereby agree to submit to the non-exclusive justification of the English Courts.
17. GENERALA. No alteration or modification of these Conditions or of any Contract shall have effect unless made in writing and signed by or on behalf of the Purchaser and by or on behalf of a Director of KINETIX.
B. Any forbearance of delay on the part of any party in enforcing any provisions of these conditions or any of its rights hereunder shall not be construed as a waiver of such provisions or a right thereafter to enforce the same.