In this document the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms of any applicable Specification Document;
1.2 “Company” means Blindmatrix Limited (Company Number +44 (0) 20 7096 1371) Challenge house, Sherwood Dr, Bletchley, Milton Keynes MK3 6DP, United Kingdom;
1.3 “Customer” means the organisation or person who purchases work, goods, design and/or services from the Company;
1.4 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how, Software, and all other forms of intellectual property wherever in the world enforceable;
1.5 “Software” means the source programs, compiled object code of the software, scripts and installation programs being developed or customised by the Company for the Customer, as set out in the Specification Document, including any enhancements and modifications made;
1.6 “Specification Document” means a statement quotation, order acknowledgement/confirmation document or other similar document written by the Company describing the work, goods, design and/or services to be provided by the Company.
2.1 These Terms and Conditions shall apply to all contracts between the Company and the Customer. Terms shall generally but not exclusively relate to the provision of a licence for companies specialising in the manufacture and retail of window blinds and curtains to use the Software.
2.2 Before the commencement of the services the Company shall submit to the Customer a Specification Document which shall specify the work, goods, design and/or services to be supplied and the price payable. The Customer shall notify the Company immediately if the Customer does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
2.3 The Company shall use all reasonable endeavours to complete its obligations within estimated time frames but time shall not be of the essence in the performance of any work, deliveries or services.
3 PRICE AND PAYMENT
3.1 The price for the supply of work, goods, design and/or services is as set out in the Specification Document. The Company shall invoice the Customer following the signing of the Specification Document by the Customer.
3.2 Invoiced amounts shall be due and payable prior to the installation of any Software. Ongoing maintenance packages and the like shall be payable in advance by standing order and the Company shall be entitled to charge interest on overdue amounts from the date when payment becomes due from day to day until the date of payment at a rate of 10 per cent per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order prior to payment, the Customer shall be responsible for issuing such purchase order before the work, goods, design and/or services are supplied. The Customer shall not withhold payment due to its delay or failure to provide a purchase order.
3.3 In addition to the remedies detailed in Clause 3.2, in the event that the Customer fails to pay a sum properly due under the Agreement and this is not rectified within seven days of a written notice from the Company, then the Company may turn off any Software without further notice. The Company shall have no liability to the Customer in respect of exercising its rights under this Clause 3.3.
4 SPECIFICATION OF FINAL PRODUCT
4.1 All Software, materials and goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Company and no representation written or oral, correspondence or statement shall form part of the contract.
4.2 Unless stated to the contrary in the Specification Document, the Company shall provide a licence to use the Software. The physical Software shall be located on a cloud computing infrastructure.
5.1 The date of delivery specified by the Company is an estimate only. Time for delivery shall not be of the essence of the contract and the Company shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
5.2 All risk in goods shall pass to the Customer upon delivery.
Title in goods shall not pass to the Customer until the Company has been paid in full for the goods.
7 CUSTOMER`S OBLIGATIONS
7.1 To enable the Company to perform its obligations under this Agreement the Customer shall:
7.1.1 co-operate with the Company;
7.1.2 provide the Company with any information reasonably required by the Company;
7.1.3 obtain all necessary permissions and consents which may be required before the commencement of any services; and
7.1.4 comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate the Company for any expenses incurred by the Company as a result of the Customer’s failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which the Company may be entitled, in the event that the Customer unlawfully terminates or cancels the work, goods, design and/or services agreed to in the Specification Document, the Customer shall be required to pay to the Company as agreed damages and not as a penalty the full amount of any third party costs to which the Company has committed and in respect of cancellations on less than five working days’ written notice the full amount of the work, goods, design and/or services contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of the Company’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 7.1shall be deemed to be a cancellation of the work, goods, design and/or services and subject to the payment of the damages set out in this Clause.
7.4 In the event that the Customer or any third party, not being a sub-contractor of the Company, shall omit or commit anything which prevents or delays the Company from undertaking or complying with any of its obligations under this Agreement, then the Company shall notify the Customer as soon as possible and:
7.4.1 the Company shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the project will be modified accordingly;
7.4.3 the Company shall notify the Customer at the same time if it intends to make any claim for additional costs.
7.5 The Customer shall undertake routine checking of any documentation that it generates using the Software to ensure that any errors of input or malfunction of the Software are identified and corrected without causing harm to the Customer’s business.
8 ALTERATIONS TO THE SPECIFICATION DOCUMENT
8.1 The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the scope of work, goods, design and/or services to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed work, goods, design and/or services and price and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Specification Document by notice in writing to the Company. On receipt of the request for alterations the Company shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Company gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Company by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Company gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Company shall perform this Agreement upon the basis of such amended terms.
9.1 The Company warrants that as from the date of delivery for a period of six months that any goods and all their component parts, where applicable, are free from any defects in design, workmanship, construction or materials.
9.2 The Company warrants that any services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.3 The Company warrants that any design work to be carried out under this Agreement will be completed using the reasonable skill and care to be expected of a reasonably competent company experienced in completing designs of a similar scope and complexity as detailed in the Specification Document.
9.4 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the work, goods, design and/or services to be provided by the Company.
The Customer shall indemnify the Company against all claims, costs and expenses which the Company may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Company alleging that any aspect of the work, goods, design and/or services provided by the Company in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
11 LIMITATION OF LIABILITY
11.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Company to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
11.2 In no event shall the Company be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Company had been made aware of the possibility of the Customer incurring such a loss.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
12.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
12.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
12.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
12.6 In addition, the Customer may terminate any service arrangements upon giving 3 months written notice to the Company.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or the making of agreements with third parties.
14 COMMENCEMENT DATE FOR SERVICESAny services such as maintenance or rental periods shall be deemed to commence on the first day that any training takes place, unless stated to the contrary in the Specification Document.
15.1 The Company shall not be liable for any data loss experienced by the Customer due to failure of any Software; this is particularly likely if the Customer’s hardware systems or broadband connections are inadequate. The Customer shall be responsible for ensuring that they retain suitable copies of all electronic information.
15.2 The Company shall not have any liability in respect of any downtime experienced by the Software. In the event that downtime is the result of any error by the Company or malfunction of the goods supplied by the Company, then the Customer shall allow the Company seven days from the receipt of any written notice in order to carry out any repairs.
15.3 The Company has no responsibility in respect of the suitability of the Customer’s hardware systems and broadband connections and it is the responsibility of the Customer to ensure the adequacy of these facilities.
The Company shall take reasonable steps to protect the confidentiality or information and data belonging to the Customer and shall not disclose its confidential information to third parties without the Customer’s authorisation.
The Company owns the copyright to the Software. The Customer shall not make any unauthorised copies of any of the Company’s products and services. A licence to download a product shall be for the sole purpose of fulfilling the Company’s obligations under the Agreement and no other licensing rights are granted.
18 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Company.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
23 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
24 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
25 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.