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Terms and Conditions of Supply - Smoothwall Ltd

1. DEFINITIONS

    1.1 "Customer" means the party identified as the Customer in this Agreement to whom Smoothwall may agree to supply products or services in accordance with these terms and conditions. 

    1.2 "Smoothwall" means Smoothwall Ltd. as registered with Companies House (Number: 4298247) at:

    1 John Charles Way
    Leeds
    LS12 6QA
    United Kingdom

    or any subsidiary or associated company. 

    1.3 "Products" means goods including but not limited to computer hardware and software items to be provided by Smoothwall to the Customer in accordance with these terms and conditions. 

    1.4 "Open Source Software" means all software which comprises part of the Products that has been licensed by its authors or owners under an Open Source license such as the GNU General Public License Version 2 (GPL) (see www.gnu.org/licenses/gpl2.html for license details), the GNU Lesser General Public License (LGPL) (see www.gnu.org/licenses/lgpl.html for license details) or other Open Source license. 

    1.5 "Third Party Software" means all proprietary software, excluding all Open Source Software, owned by or licensed to the Customer from a third party (whether or not supplied by Smoothwall) and which comprises part of the Products.

2. ORDER ACCEPTANCE

    2.1 All orders placed with Smoothwall by the Customer for Products shall constitute an offer to Smoothwall under these terms and conditions, subject to availability of the Products and to acceptance of the order by Smoothwall's authorized representative. 

    2.2 All orders are accepted and Products supplied to these express terms and conditions only. No amendment of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by authorized representatives of both parties. 

    2.3 In the case of orders placed via an on-line store the order will only be deemed to have been accepted by Smoothwall upon receipt by the Customer of either an 'order acceptance' or an 'order dispatch' email or similar communication. Any other email notification from Smoothwall, its agents or servants does not constitute order acceptance. 

    2.4 It is agreed that these terms and conditions prevail over the Customers terms and conditions of purchase unless these latter terms and conditions are amended by Smoothwall in writing and signed by Smoothwall.

3. INDEPENDENT CONTRACTOR

    The relationship between Smoothwall and the Customer is that of independent contractor. Neither party is the agent of the other, and neither party has any authority to make any contract or make any obligation expressly or implied in the name of the other party without that party's prior written consent for express purposes connected with the performance of this Agreement.

4. DISPATCH

    4.1 Any time quoted for dispatch is to be treated as an estimate only, but dispatch may be postponed because of conditions beyond Smoothwall's reasonable control, and in no event shall Smoothwall be liable for any damages or penalty for delay in dispatch or delivery. 

    4.2 Risk shall pass to the Customer at the time the Products are dispatched by Smoothwall. Smoothwall accepts no liability for loss or damage caused by the carrier. 

    4.3 If Products have not been received, the Customer must notify Smoothwall within 7 days of the date of the invoice or within 14 days of the date of email dispatch notification if ordered from an on-line store. If proof of delivery is required, this must be requested within 14 days of the date of the invoice. 

    4.4 In the case of Products supplied by Electronic Delivery where the Customer is to download a copy of the Products from a server operated by Smoothwall its servants or agents, the "Date of Dispatch" will be the date and time when the Electronic Delivery was first made available for the Customer to download or when the Serial Number License Key was issued by Smoothwall or its authorized representative. 

    4.5 Failure of the Customer to download the Products before the Electronic Delivery download should "time-out" and be unavailable (typically 3 to 7 days) shall not constitute a breech of the Agreement. The Customer should contact Smoothwall by email using the appropriate email address as published on its website to notify Smoothwall and arrange for a new Electronic Download to be set-up.

5. CANCELLATION AND RESCHEDULING

    Subject to Clause 8.2, any request by the Customer for cancellation of any order or rescheduling of deliveries will only be considered by Smoothwall if made at least 12 hours before dispatch of the Products, and shall be subject to acceptance by Smoothwall at Smoothwall's sole discretion, which shall not be unreasonably withheld, and subject to a reasonable administration charge therefore by Smoothwall. The Customer hereby agrees to indemnify Smoothwall against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.

6. PRICES

    6.1 Catalogues, price lists, prices stated on web sites and other advertising literature or material used by Smoothwall or its authorized representatives are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on Smoothwall. 

    6.2 All prices are given by Smoothwall at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance. 

    6.3 All quoted or listed prices are based on the cost to Smoothwall of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at Smoothwall's discretion. 

    6.4 For ongoing products and services such as support, Upgrade Assurance or subscriptions, Smoothwall shall have the right to periodically change the prices in accordance with its then current pricelist, unless agreed otherwise in writing with the Customer. 

    6.5 All prices are exclusive of Value Added Tax (VAT) and any similar taxes. All such taxes are payable by the Customer and will be applied in accordance with UK legislation in force at the tax point date. 

    6.6 All sales are FOB at their point of origin and the Customer is responsible for the payment of any local duties or taxes levied by the destination country. Unless agreed otherwise all shipments will be made by the method most advantageous to Smoothwall. 

    6.7 If the Customer should arrange their own shipping then Smoothwall is not responsible for insurance of the goods.

7. PAYMENT TERMS

    7.1 Invoices will be raised and dated by Smoothwall on the date of dispatch of the Products, or if supplied electronically, the date of order. Unless otherwise specifically negotiated and agreed, invoices will be payable by the Customer 30 days from the date of the invoice. Time for payment is of the essence. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 8% above the current Bank of England Late Payment Reference Rate. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgment. 

    7.2 When all prices, taxes and charges due in respect of the Products and any products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer. 

    7.3 Notwithstanding dispatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, in the case of software products the license to the Products shall not be granted to the Customer, or in the case of hardware Products the property in the Products shall not pass to the Customer, until Smoothwall has received in cash or cleared funds payment of the price of the Products and all of the products agreed to be sold by Smoothwall to the Customer for which payment is then due. 

    7.4 Until such time as the software license is granted to the Customer or the property in the Products passes to the Customer, the Customer shall hold the Products as Smoothwall's fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as Smoothwall's property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to Smoothwall for the proceeds of sale or otherwise of the Products whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. 

    7.5 Until such time as the software license is granted to the Customer or the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold), Smoothwall shall be entitled at any time to require the Customer to deliver up the Products to Smoothwall and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products. 

    7.6 The Customer's power of sale or right to use such Products shall immediately cease if an Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986. 

    7.7 On termination of the Customer's power of sale or right to use the Products the Customer will immediately hold the Products to the order of Smoothwall. 

    7.8 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Smoothwall, but if the Customer does so, all monies owing by the Customer to Smoothwall shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable. 

    7.9 Smoothwall reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Smoothwall reserves the right to withdraw any credit facility such that the whole of the Customer's account becomes due for payment forthwith. 

    7.10 Smoothwall reserves the right to apply a surcharge not exceeding 4% of the invoice value to credit card payments.

8. SPECIFICATION OF PRODUCTS

    8.1 Smoothwall will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in either Smoothwall or the manufacturer's specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. Smoothwall will use its reasonable endeavors to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer. 

    8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's standard specifications. As these standard specifications may be improved, substituted or modified, Smoothwall reserves the right to change its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products.

9. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS

    9.1 The Customer hereby acknowledges that any proprietary rights in any Product, including Third Party Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in Smoothwall or the Third Party Software owner. 

    9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of license attaching to Third Party Software supplied and delivered by Smoothwall (including if so required the execution and return of a Third Party Software license). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software license or having the same revoked by the proprietary owner. The Customer further agrees to indemnify Smoothwall in respect of any costs, charges or expenses incurred by Smoothwall at the suit of a Third Party Software owner as a result of any breach by the Customer of such conditions. 

    9.3 The rights, ownership and copyright in any Smoothwall program code, data and documentation, including text, tabulations and graphical images created by Smoothwall or by a third-party under contract to Smoothwall or to the instruction of Smoothwall, shall remain with Smoothwall. 

    9.4 The Customer's right to use any program code or documentation in which the rights remain with Smoothwall shall be governed by the applicable license terms for the Products. If Smoothwall has not received full payment in respect of such Products within 45 days of the due date the Customer's right to use the Products shall cease forthwith. 

    9.5 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE LICENSED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.

10. RETURNS

    10.1 Smoothwall reserves the right to levy an administration charge in respect of returned Products.

    10.2 Returns must be made subject to the following:-

(a) prior authority having been obtained from Smoothwall which will given at Smoothwall's sole discretion; 
(b) within 30 days of the date of the invoice; 
(c) the Products must be properly packed in the original packaging; 
(d) the Products must be in a saleable condition;

11. WARRANTY

    11.1 Smoothwall warrants that it has good title to or license to supply all Products to the Customer. 

    11.2 If any part of any hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover and terms provided by the manufacturer of the Products PROVIDED THAT no unauthorized modifications to the Product or to the system of which the Product forms part have taken place. Smoothwall is not responsible for the cost of labour or other expenses incurred in repairing or replacing defective or non-conforming parts. 

    11.3 All software Products supplied hereunder are supplied 'as is' and the sole obligation of Smoothwall in connection with the supply of software Products is either to provide the Customer with an alternative product or to use all reasonable endeavors to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Product should fail to conform to its product description PROVIDED ALWAYS THAT the Customer notifies Smoothwall of any such non-conformity within 30 days of the date of delivery of the applicable software Product. 

    11.4 If the products are rejected by the Customer as not being in accordance with the Customer's order pursuant to Clause 11.2 or 11.3, Smoothwall will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Smoothwall will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the Invoiced Products be deducted or set off by the Customer until Smoothwall has passed a corresponding credit note. 

    11.5 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, SMOOTHWALL DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BE STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.

12. INDEMNITIES AND LIMITS OF LIABILITY

    12.1 Smoothwall shall not be liable for loss damage or injury, directly or indirectly foreseeable or otherwise including loss of profits, goodwill or other special, incidental, consequential or punitive damages even if Smoothwall has been advised of the possibility of the same, whether caused by the negligence of Smoothwall, its servants or agents. 

    12.2 Nothing in clause 11 will restrict the liability for fraud, death or personal injury caused by negligence of its assigned employees acting within the course of their employment and the scope of their authority. 

    12.3 Except as stated in Clause 12.1 or 12.2 above, Smoothwall disclaims and excludes all liability to the Customer in connection with these terms and conditions including the Customer's use of the Products and in no event shall Smoothwall be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of the Products. All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded. 

    12.4 Subject to 12.1, 12.2 and 12.3 above, Smoothwall's entire liability and the Customer's sole remedy shall in any event be limited to the contract price. 

    12.5 The Customer shall indemnify and defend Smoothwall and its employees in respect of any claims by third parties which are occasioned by or arise from any Smoothwall performance or non-performance pursuant to the instructions of the Customer or its authorized representatives. 

    12.6 The Customer shall indemnify and keep indemnified Smoothwall against any and all claims, costs and expenses relating to the infringement of Rights in respect of program code, data and documentation provided to Smoothwall its agents or servants by the Customer in respect of work done by Smoothwall its agents or servants in accordance with the instructions of the Customer. 

    12.7 The Customer shall indemnify and keep indemnified Smoothwall against any and all claims, costs and expenses relating to any assertion by a Third Party that any data or information provided to Smoothwall its servants or agents by the Customer is libelous or defamatory. 

    12.8 The Customer shall properly use the supplied Products and shall provide Smoothwall its agents or servants with all reasonable facilities and information to enable Smoothwall to perform its duties. 

    12.9 The Customer shall be responsible for complying with all applicable regulatory requirements that apply to the Customer.

13. TERMINATION FOR CAUSE

    This Agreement may be terminated forthwith by notice in writing: 

    13.1 By Smoothwall if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in Clause 7.1. 

    13.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party. 

    13.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a Receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.

    13.4 Any termination of this Agreement pursuant to this Clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.

14. EXPORT AND/OR RE-EXPORT LIMITATION

    Having regard to the current statutory or other United Kingdom government and European Union regulations in force from time to time and, in the case of Products manufactured in the United States of America or containing software or technology originating in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to Smoothwall of an ultimate destination for any Products, the Customer will not export or re-export directly any Products without first obtaining all such written consents or authorizations as may be required by any applicable government regulations.

15. CONFIDENTIALITY

    Both the Customer and Smoothwall are to respect the confidential nature of any business or technical information made available to the other. Unless any such information is already freely available in the public domain, or advised that in writing that it is not confidential, then such information is to be treated as confidential by the recipient. It is only to be made available to those employees who have a genuine reason for access to the information, unless ordered to be disclosed by a court of competent jurisdiction.

16. CONTRACT

    16.1 The headings in these Terms and Conditions of Supply are for ease of reference only and shall not affect its interpretation or construction. 

    16.2 No forbearance, delay or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach. 

    16.3 The Customer agrees not to assign or transfer any of its rights or obligations herein or under any proprietary software license without the prior written consent of Smoothwall. 

    16.4 In the event of any of these terms and conditions or any part of any of them being judged illegal or unenforceable for any reason, the continuation in full force of the remainder of them shall not be prejudiced. 

    16.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from Force Majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control. 

    16.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement. 

    16.7 These terms and conditions shall be governed and construed in accordance with English Law and the parties to this Agreement hereby submit to the exclusive jurisdiction of the English Courts.