1.1 In these terms, unless the context requires otherwise, the following expressions shall have the following meanings:
"Confidential Information" means all information marked as "Confidential" and disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), or to any employee or sub-contractor of the Receiving Party (the "Recipient"), whether before or after the date of these terms or the Contract including, without limitation, any information relating to the Disclosing Party's customers, products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunity and business affairs; "Contract" each agreement for the supply of the Products and/or Services, as referred to in clause 2.1; "Customer" means the person whose details are set out in each Order; "Delivery Date" means the estimated date of delivery of the Products and/or commencement of the Services, which may be set out in the Contract, or if not, communicated by Synthesis IT to the Customer; "Hardware" means the computer equipment to be sold to the Customer; "Synthesis IT" means Synthesis IT Limited of Unit 3, Old Dairy Buildings, Foxhunters Road, Whitley Bay, Tyne & Wear, NE25 8UG; "Synthesis IT Companies" means Synthesis IT and any body corporate which is from time to time: (i) a subsidiary of Synthesis IT; or (ii) a holding company or a subsidiary of a holding company of Synthesis IT; "Order" means a request by the Customer to purchase those Products and/or Services specified therein; "Premises" means the premises where the Products are to be delivered or installed; "Price" means the price for the provision of the Products and Services contained in the Contract; "Products" means collectively the Hardware and the Software, or any part thereof described in the relevant Contract and includes the Services; "Services" means the non-bespoke configuration and installation services to be supplied by Synthesis IT in connection with the supply of the Products. The Services shall not include ongoing support services or consultancy services each of which if provided shall be subject to separate terms and conditions; "Supplier" means a third party manufacturer and/or licensor of a Product; "Software" means the software to be licensed to the Customer.
1.2 In these terms, references to:
1.2.1 persons include bodies corporate, incorporated associations and partnerships;
1.2.2 Clauses are to clauses of these terms
1.2.3 a "subsidiary" or "holding company" shall be construed in accordance with Sections 736 and 736A of the Companies Act 1985; and
1.2.4 any statutory provision shall include reference to a statutory provision as modified or re enacted or both from time to time whether before or after the date of these terms or the Contract.
1.3 The headings in these terms or the Contract shall not affect the interpretation of either of them.
1.4 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.5 References to any party shall include its lawful successors in title and permitted assigns.
1.6 The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2. SCOPE AND TERM
2.1 Subject to clause 2.5, these terms and conditions shall apply to all Products ordered by the Customer. A separate agreement for the Products on these terms and conditions, together with any additional terms agreed in writing by the parties as applicable, shall come into force on the date on which each Order is accepted by Synthesis IT (a "Contract"). No Order shall be binding on Synthesis IT unless and until accepted by Synthesis IT in writing, either by the form of a written order acknowledgment or by the provision of a written invoice pertaining to the goods or services supplied.
2.2 Subject to clause 2.5, in respect of each Order and Contract, these terms and conditions shall apply to the exclusion of any terms or conditions contained or referred to in any purchase order or other documentation submitted by the Customer or in correspondence or implied by trade, custom or course of dealing (whether or not in conflict with or additional to these terms and conditions).
2.3 If any Contract contains provisions which are inconsistent or which conflict with these terms and conditions, the provisions of such Contract will prevail to that extent.
2.4 The Customer shall provide, promptly, any assistance, information, facilities or other matters reasonably requested by Synthesis IT to allow the Contract to be performed.
2.5 These terms and conditions shall not apply to any Products ordered by the Customer which the parties intend to be supplied under a written bespoke framework agreement agreed between the parties.
3. DELIVERY OF PRODUCTS
3.1 Synthesis IT shall use its reasonable endeavours to deliver Products and to ensure that the Services commence on the relevant Delivery Date.
3.2 Dates and times for delivery or performance by Synthesis IT are estimates only and time shall not be of the essence in respect of these and Synthesis IT shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delays in delivery, subject to clause 3.3. Synthesis IT may deliver early.
3.3 Notwithstanding clause 3.2, if delivery by Synthesis IT of any Products or performance of the Services has not been made 30 days after the advised estimated date for delivery of the Products, the Customer shall be entitled to terminate the Contract in respect of those Products and any liability of Synthesis IT however arising, as referred to in clause 13.4, shall be limited to a credit of the price due for those Products not delivered. In no circumstances shall Synthesis IT have any further liability to the Customer in damages or otherwise for non-delivery or late delivery of any of the Products.
3.4 Claims for late or short delivery or in respect of goods delivered or damaged must be notified in writing within 48 hours of the expected Delivery Date, or actual delivery date, as appropriate.
3.5 If the Customer unlawfully refuses or fails to take delivery of any Products the Customer shall, without prejudice to any other rights Synthesis IT may have, pay all reasonable costs of storage and any other reasonable additional costs incurred as a result of such refusal or failure.
3.6 Synthesis IT may deliver the Products in batches as agreed with the Customer. In such an event, each delivery of the Products shall be separately invoiceable and payable.
4. LICENCE OF SOFTWARE
4.1 All Software is owned by Suppliers, who determine the terms upon which Software is licensed. Synthesis IT hereby either (a) grants to the Customer with effect from the actual date of delivery a non exclusive, non transferable licence to use the Software for its own internal purposes only and in accordance with the Supplier's standard licensing terms, and for operation in an environment deemed suitable under the Supplier's standard licensing terms (which are available to the Customer on request), or (b) shall procure the grant of a licence directly from the Supplier to the Customer to enable the Customer to use the Software (on terms which shall be specified by the Supplier).
4.2 The Customer hereby indemnifies Synthesis IT in respect of any loss (of any kind) which Synthesis IT may suffer as a result of the breach by the Customer of a licence granted under or pursuant to Clause 4.1.
5. TITLE AND RISK
5.1 Risk of loss or damage to the Products shall pass to the Customer when delivered (whether delivered to the Customer or to a third party at the Customer's direction) and the Customer shall be responsible for insuring the Products thereafter. Title to the Hardware shall pass to the Customer on the date that the Price and any additional costs payable, including any applicable value added tax, have been paid in full to Synthesis IT. For the avoidance of doubt, title to the Software (and all documentation relating to the Software) shall remain with the Supplier at all times. Notwithstanding title in any Products passing to the Customer, Synthesis IT shall retain the right to maintain an action for the price of the Products.
5.2 Until the Customer has settled in full any accounts owed to Synthesis IT under any Contract, the Customer shall:
5.2.1 hold such Products as a fiduciary of Synthesis IT;
5.2.2 not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Products;
5.2.3 not dispose of or deal with the Products or any documents of title relating to them or any interest in them, except that the Customer may without prejudice to clause 5.2.1, on its own account use and sell the Products in the ordinary course of its business.
5.3.1 payment becomes overdue; or
5.3.2 the Customer is in breach of any of its obligations under clause 5.2;
5.3.3 Synthesis IT exercises any right to terminate the relevant Contract; or
5.3.4 any event referred to in clauses 9.1.2 or 9.1.3 occurs; Synthesis IT shall be entitled upon demand to the immediate return of all the Products which remain in the ownership of Synthesis IT pursuant to clause 5.1 and Synthesis IT shall be entitled (without prejudice to any other legal remedies which it may have) to enter the Premises or any other place of, or under the control of, the Customer, without notice to the Customer and remove the Products at any time. Demand for, or recovery of, the Products shall not of itself discharge the Customer's liability to pay the whole of the price or any other rights of Synthesis IT under the Contract.
6.1 Synthesis IT warrants that:
6.1.1 it is entitled to enter into the Contract;
6.1.2 it shall use its reasonable care and skill in carrying out any Services;
6.1.3 all employees and replacements thereof used by Synthesis IT for the purposes of carrying out Synthesis IT's obligations hereunder will have the necessary expertise and skills to perform Synthesis IT's obligations hereunder.
6.2 Synthesis IT shall either (a) procure for the Customer the benefit of any standard end-user warranties in respect of the Products from the Supplier(s) (whether by assignment from Synthesis IT or granted directly by the Supplier(s)) or (b) grant the Customer the same warranties that Synthesis IT receives from the Supplier(s) in respect of the Products. Details of these warranties are available upon request. Where a direct warranty is given to the Customer by a Supplier (as referred to in (a)), Synthesis IT does not give any express warranties except as set out in clause 6.1.
6.3 The Customer shall notify Synthesis IT in writing of any failure by Synthesis IT to comply with any of the warranties set out in Clause 6.1, or any failure of the Products to comply with the relevant Supplier's standard warranties, as soon as practicable after discovery of the failure, failing which Synthesis IT shall be entitled to reject the claim if the delay means that Synthesis IT is unable to make a corresponding claim against a Supplier, or is otherwise unable to establish the validity of the claim. The notice from the Customer to Synthesis IT shall identify and, where possible, substantiate the breach.
6.4 Except for the express warranties and conditions expressly contained or referred to in these terms and conditions, or in the Contract, Synthesis IT makes no other warranties or representations regarding the Products and all warranties, conditions and other terms express or implied statutory or otherwise in respect of compliance with descriptions, the quality or the fitness for purpose of the Products which are not expressly set out in these terms or the Contract are excluded to the fullest extent permitted by law.
7. PROPRIETARY RIGHTS AND INDEMNITY
7.1 The copyright and all other intellectual property rights of whatever nature in the Products shall be and remain vested in the Supplier(s).
7.2 The Customer shall not remove any notices of copyright or other intellectual property rights contained on or in the Products.
7.3 Synthesis IT shall either (a) procure for the Customer the benefit of any standard end-user warranties and/or indemnities from the Supplier(s) (whether by assignment from Synthesis IT or granted directly by the Supplier(s)) in respect of any alleged infringement of intellectual property rights by the Products or Services or (b) grant the Customer the same warranties and/or indemnities that Synthesis IT receives from the Supplier(s) in respect of the Products and Services. Details of these warranties and indemnities are available upon request.
7.4 The Customer shall promptly notify Synthesis IT in writing of any allegations of infringement of which it becomes aware and shall not make any admission without Synthesis IT's prior written consent.
7.5 The provisions of this Clause 7 shall survive the termination of the Contract in so far as it relates to events occurring before the date of termination of the relevant Contract.
8. PRICE AND PAYMENT
8.1 The Customer shall pay to Synthesis IT the Price as invoiced. Delivery of the Products will be charged for in addition, unless otherwise agreed in writing.
8.2 All valid invoices issued to the Customer pursuant to these terms or the Contract shall be payable within 30 days of date of issue. Invoices in respect of Services shall be issued in advance of the supply of the Services. The Customer shall not be permitted to make any deduction from the Price whether in respect of set-off, counterclaim or otherwise.
8.3 Unless otherwise agreed in writing with the Customer, Synthesis IT is entitled to allocate payments received to settle (in full or in part) any sums due from the Customer under any Contract, in any order or manner Synthesis IT determines, and in particular shall be entitled to apply any part payment to settle outstanding interest on overdue amounts, ahead of principal.
8.4 The Price, and any additional charges payable hereunder, are exclusive of VAT, customs charges and duties, which shall be paid by the Customer in the amount and manner prescribed by law.
8.5 Notwithstanding clause 8.2 or any other arrangements for provision of credit which Synthesis IT may have agreed with the Customer in respect of a Contract, the whole price of all Products and/or Services bought or agreed to be bought by the Customer shall be immediately payable without demand in any circumstances entitling Synthesis IT to terminate the Contract pursuant to clauses 9.1.2 - 9.1.3.
8.6 Without prejudice to any of its other rights, if the Customer fails to make any payment when due Synthesis IT shall be entitled to:
8.6.1 suspend its obligations under the Contract for so long as any payment due hereunder remains outstanding; and/or
8.6.2 charge interest on the overdue amount at the statutory rate, and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 Either party ("Initiating Party") may terminate a Contract at any time forthwith by notice in writing if:
9.1.1 the other party (the "Breaching Party") is in material breach of any of its material obligations under that Contract and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing from the Initiating Party giving particulars of the breach and requiring the Breaching Party to do so;
9.1.2 a resolution is passed or an order is made for the winding up (or equivalent order in the relevant jurisdiction) of the other party otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction and in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the obligations imposed on the other party under the Contract; or
9.1.3 the other party becomes subject to an administration order; a liquidator, receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of, any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors; the other party ceases or threatens to cease to carry on business; the other party becomes insolvent; or the other party ceases to be able to pay its debts as they fall due.
10. EFFECTS OF TERMINATION
10.1 Any termination of a Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party which have arisen on or before the date of termination, nor shall it affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination, including without limitation clauses 1, 5, 7, 9. 10, 12, 13, 15, 16, 19.
10.2 Unless terminated pursuant to Clause 9.1, the licence to use the Software contained in Clause 4 shall survive any termination of the relevant Contract.
11.1 The Customer shall not, nor shall it purport to, assign, transfer or sub contract any of its rights or obligations under the Contract without the prior written consent of Synthesis IT, such consent not to be unreasonably withheld or delayed.
11.2 Synthesis IT shall be entitled to assign the Contract to any Synthesis IT Company. The Customer will be informed of any such assignment.
12.1 Where a Receiving Party has obtained Confidential Information of a Disclosing Party, the Receiving Party shall:
12.1.1 keep the Confidential Information confidential;
12.1.2 not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 12.2, 12.3 and 12.4; and
12.1.3 not use the Confidential Information for any purpose other than the performance of its obligations under the Contract.
12.2 During the term of the Contract the Receiving Party may disclose the Confidential Information to its Recipients to the extent that it is necessary for the purposes of the Contract, or any other Contracts between the parties.
12.3 The Receiving Party shall use all reasonable endeavours to ensure that each Recipient is made aware of and complies with all the Receiving Party's obligations of confidentiality under these terms as if the Recipient were a party hereto.
12.4 The obligations contained in Clauses 12.1 to 12.3 shall not apply to any Confidential Information which:
12.4.1 is at the date of the Contract in, or at any time after the date of the Contract comes into, the public domain other than through a breach of these terms by the Receiving Party or any Recipient;
12.4.2 can be shown by the Receiving Party to the satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to the Receiving Party; or
12.4.3 subsequently comes lawfully into the possession of the Receiving Party from a third party.
12.5 The obligations contained in clauses 12.1 to 12.3 shall not prevent any disclosure of Confidential Information which is required by law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a party's professional advisors, acting in their capacity as such.
12.6 No public announcements concerning the existence or contents of these terms or any Contract shall be made by either party without the prior written consent of the other party.
13. LIABILITIES AND INDEMNITIES
13.1 All exclusions and limitations in these terms or any Contract shall only apply so far as permitted by law and in particular nothing shall exclude or restrict liability:
13.1.1 for death or personal injury resulting from the negligence of a party or its employees acting in the course of their employment, or its agents, acting in the furtherance of their duties;
13.1.2 for fraudulent misrepresentation or other fraud;
13.1.3 for any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
13.1.4 to the extent prohibited by the Consumer Protection Act 1987.
13.2 The exclusions and limitations of liability contained in these terms and each Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies Synthesis IT of the possibility of any greater loss.
13.3 Neither party shall in any circumstances be liable to the other for (i) loss of or damage to profits, business, contracts, opportunities, anticipated savings or goodwill or for (ii) any indirect or consequential loss or damage however arising.
13.4 Subject to clause 13.1 and 13.5 the total aggregate liability of one party to the other for any claims arising out of or in connection with these terms, the Contract, the Products and/or the Services, however arising will not exceed 125% of the Price.
13.5 Synthesis IT shall be responsible for taking out and maintaining in its own name during the continuance of the Contract public liability insurance details of which shall be made available to the Customer upon written request. Any liability Synthesis IT may have for claims concerning damage to the physical property of the Customer or its employees arising out of or in connection with these terms, the Contract, the Products and/or the Services however arising, shall be limited to £2 million.
13.6 The term "however arising" when used or referred to in this clause 13 shall cover all causes and actions giving rise to liability of Synthesis IT arising out of or in connection with these terms, each Contract, the Products and/or Services (i) whether arising by reason of any misrepresentation (whether made prior to and/or in these terms or a Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Products and/or Services or by any defect in hardware, software or materials; and (iv) whether deliberate (but not with malicious intent) or otherwise, however fundamental the result.
13.7 In view of the exclusions and limitations of Synthesis IT's liability in these terms, Synthesis IT recommends that the Customer considers taking out its own insurance in respect of those risks for which Synthesis IT excludes or limits liability. Additionally, the Customer acknowledges that the price of the Products and/or Services provided for under the Contract reflects the exclusions and limitations on Synthesis IT's liability as set out in this clause 13, and that the Customer had the opportunity to negotiate variations to the exclusions and limitations, upon the agreement of a higher price. Accordingly, the parties agree that such exclusions and limitations are reasonable in all the circumstances.
13.8 Other than in respect of Clause 13.1, neither party shall have any liability to the other in any respect unless it shall have served notice of the same on the other party within 12 months of the date on which it became aware of the circumstances giving rise to any such claim or the date when it ought reasonably to have become so aware.
13.9 Each provision of this Clause 13, limiting or excluding liability, operates separately and shall survive independently of the other provisions.
14. FORCE MAJEURE
14.1 Save for the payment obligations in Clause 8, a party (the "affected party") shall not be liable for its failure to perform or the delayed performance of its obligations under the Contract if such failure or delay results from the actions or omissions of the other party (its employees, agents or contractors) or from any circumstances beyond the affected party's reasonable control including but not limited to Supplier strikes, lock-outs and labour disputes, acts of God, war, riot, civil commotion, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction not in force on the date of the Contract, accident, fire, flood or severe weather conditions ("Event of Force Majeure").
14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3 If an Event or Force Majeure continues for more than a period of 30 days, either party shall have the right to terminate the Contract, without further liability to the other.
15. EXPORT CONTROL REGULATIONS
The Customer acknowledges that the Products may be subject to the export control regulations of the UK and/or another country. Accordingly, the Customer agrees that any Products to which such regulations apply will not be exported from the UK to any country prohibited by such regulations, unless prior approval in writing has been obtained from the relevant regulatory authorities, which shall be the Customer's responsibility and at the Customer's expense.
16.1 During the term of the Contract and for a period of 12 months from its termination neither party will employ or solicit for employment any member of the other's then current personnel connected with the performance of the Contract.
16.2 In respect of any breach by either party of Clause 16.1, the other party, in addition to any other remedies available in the Contract or at law, shall be entitled to recover from the party in breach the costs of recruiting and training a replacement for any member of that party's personnel employed or solicited for employment.
17.1 No variation of these terms or the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties by a duly authorised officer of each of the parties.
17.2 The failure to exercise or delay in exercising a right or remedy under these terms or the Contract shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under these terms or the Contract shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
17.3 The invalidity, illegality or unenforceability of any provision of a Contract shall not affect or impact the continuation in force of the remainder of the Contract.
17.4 Nothing in a Contract shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party, or to contract in the name of, or to create a liability against, the other party in any way or for any purpose.
17.5 The parties agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.
18. ENTIRE AGREEMENT
18.1 These terms, together with the other agreed terms comprising the Contract and any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms or the Contract.
18.2 The Customer confirms that, in entering into each Contract, it has not relied on and shall have no remedy in respect of any statement, representation or warranty that is not set out in these terms or the Contract and agrees that the only remedy available to it for breach of any statement, representation or other term that is expressly set out in these terms or a Contract shall be for breach of contract. Nothing contained in this Clause 18.2 shall however operate to limit or exclude any liability of Synthesis IT for fraud or fraudulent misrepresentation.
19.1 Any notice under or in connection with a Contract shall be in writing and shall be either (i) delivered personally or sent by recorded delivery to the address of the party set out in the Contract; or (ii) sent by e-mail or facsimile to the e-mail or facsimile address of the other party normally used for business communications in connection with the Contract; or (iii) sent to any other person or address subsequently notified by one party to the other.
19.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly given:
19.2.1 if delivered personally when left at the address referred to in Clause 19.1; or
19.2.2 if sent by recorded delivery three (3) days after posting it;
19.2.3 if sent by email or facsimile, when received.
20. GOVERNING LAW
These terms and the Contract shall be governed by, and construed in accordance with, the laws of England and Wales and the Customer agrees to submit to the exclusive jurisdiction of the English courts.