"Company" means JPY plc. " Software" means the computer programs to be provided by the Company. "Hardware" means tangible items to be provided by the Company. "Services" means consultancy or training to be provided by the Company. "Goods" means the Hardware, Software or Services to be provided by the Company. "Customer" means the person or entity to whom the Company may agree to sell Hardware, license to use Software or provide consultancy in accordance with these standard terms and conditions of sale "Order" means the Customer's purchase order and the Company's acceptance of it by a written acknowledgement issued and executed by the Company. "End-User" is the person or entity that is the ultimate recipient of the Goods. "Manufacturer" means the original producer of the Goods. "Key" means a sequence of numbers or letters provided by the Company to the Customer. A "Dongle" is a special item of Hardware that contains a Key. "Keyed Software" means software that is rendered useable only by the provision of a key (or Dongle containing a Key). "Temporary Key" means a Key that will render the Software useable for a fixed period of time. "Permanent Key" means a Key that will render the Software useable for an indefinite period. "Support" has the meaning set out in condition 6.
These Conditions shall apply to all Orders accepted and Goods supplied by the Company subject to the following express terms and conditions and will prevail over any inconsistent terms of conditions contained, or referred to, in the Customer's order, confirmation of Order, acceptance of a quotation, or other documents supplied by the Customer, or implied by trade custom, practice or course of dealing.
All other conditions, warranties, representations and other terms, implied by statute or common law are, to the fullest extent permitted by law, hereby excluded.
The Customer acknowledges that all Orders are subject to availability of the Goods and to written acceptance of the Order by the Company's authorised representative. Any prior confirmation by the Company by facsimile or telephone or e-mail shall be deemed to be provisional only.
Catalogues, price lists and other advertising literature or material as used by the Company are intended only as an indication of the price and range of Goods offered and no prices, descriptions or other particulars contained therein shall be binding on the Company.
All quoted or listed prices are based on the cost to the Company of supplying the Goods to the Customer. If, before delivery of the Goods, there occurs any increase in any way of such costs in respect of Goods which have not yet been delivered, the price payable shall be subject to amendment without notice at the Company's discretion.
5. Manufacturer's Specifications
The Company will not be liable in respect of any loss or damage caused by or resulting from any variation for whatever reason in the Manufacturer's specifications or technical data or definition of support and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Company will endeavour to advise the customer of any such impending variation as soon as it receives notice thereof from the Manufacturer.
"Support" means the Customer's entitlement to: written responses to written problems; telephone access during normal working hours (from 9.00am to 5.00pm Monday to Friday, except on days which are bank holidays in England or as otherwise specified from time to time) to a specialist familiar with the supported Software; and Software updates including but not limited to minor improvements, bug fixes and added functionality.
The Goods are provided with an initial period of Support ("Initial Period") and will expire on the renewal date ("Renewal Date"). The Initial Period and Renewal Date will be specified at the time of acceptance of the Order by the Company.
When purchasing Support, it is the Customer's responsibility to clarify what Support options are provided for the Software and the category of customer (e.g. End-User or reseller). Support may only be handled through a single contact of the Customer (the "Manager") to be appointed by the Customer at the time of placing the Order. The Customer shall notify the Company in writing promptly in the event of any proposed change to the Manager.
After the Initial Period of Support expires, Support will be automatically renewed on the Renewal Date.
If the Customer wishes to terminate Support, then the Customer must inform the Company in writing at least 6 weeks before the annual Renewal Date.
7. Carriage and Delivery
Prices do not include delivery charges to the Customer, and the Company reserves the right to levy a charge for delivery to any destination advised by the customer.
8. Passing of Risk, Property and Other Rights
Risk in and title to, the Goods or other information that may from time to time be supplied by the Company to the Customer shall pass to the Customer on delivery and acceptance by the Customer.
Property in Hardware shall remain with the Company until payment in full has been made by the Customer. Property in Software shall normally remain with the Manufacturer and the Customer may purchase the right to use the software subject to specific conditions.
The Company retains the right to allocate and/or change keys until payment for the software is made in full.
9. Defects and Use
Save as herein expressly provided, and save to the extent that the exclusion or restriction of liability may be prohibited by statute, the Company shall not be liable for any loss of whatsoever nature or to whosoever or whatsoever caused arising out of the use of the Goods. The Customer shall indemnify the Company against all claims made against the Company by any third party in respect thereof.
Unless otherwise agreed:
where the Goods are rejected by the Customer as not being in accordance with the Order, the Company will only accept the return of such Goods provided that it receives written notice thereof, giving detailed reasons for rejection, within 14 days of receipt of the Goods by the Customer, and if such notice is not received by the Company within the said period of 14 days, the Goods shall be deemed to have been accepted by the Customer. The Company 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 costs of the Goods be deducted or set off by the Customer until the Company has passed a corresponding credit note; and,
in the case of defects or incorrect specification or faulty workmanship in the Goods or any part thereof the Customer shall not be entitled to receive any compensation, credit or refund in excess of that received by the Company under any guarantee or warranty given to it by the Manufacturer or the supplier thereof. Customers requesting a Permanent Key or Dongle are deemed as having accepted Software.
In consideration of the Goods or Support received, the customer shall pay the amount as set out in an invoice (the "Charges"). Due dates for payment will be calculated from the date of delivery (as specified on the invoice), independent of whether installation, where applicable, is ordered from the Company.
Save as herein expressly provided, unless otherwise specifically negotiated and agreed, all Orders are: payable in cash with Order or against a proforma invoice, or
for account Customers only, payable not later than 30 days following the date of invoice. For any amounts outstanding after the due date, the Customer will be charged 2% of the amount outstanding for each calendar month, or part of, that the account remains unpaid, or the value of any discounts indicated on the original invoice whichever is the greater.
Any times quoted for despatch are to be treated as estimates only and without prejudice, although best endeavours will be made by the Company to adhere to them. All despatch dates are calculated from the date of acceptance of the Order or from the date when all license agreements have been returned, whichever is the later. In the case of Software where there is no material intrinsic value and/or Software may be duplicated from a Customer's existing copy, the actual date of despatch is, by definition, the date specified on the Company's invoice.
12. Customer's Default, Cancellations and Re-scheduling of Deliveries
If the Customer shall make default in or commit any breach of any of its obligations to the Company or if the Customer being an individual (or when the Customer is a firm, any partner in that firm) shall at any time become bankrupt or shall have order or administration order made against him or shall make any composition or arrangement with or for the benefit of his creditors or shall purport to do so if in Scotland, he shall be made insolvent or notour bankrupt or any application shall be made under any Bankruptcy Act for the time being in force for sequestration of his estate or a Trust Deed shall be granted by him on behalf of his creditors or the customer being an incorporated body, any resolution or petition to wind up its business shall be passed or presented otherwise than for reconstruction or amalgamation, or if a liquidator or receiver or manager of such corporate body or its undertaking property of assets or any part thereof shall be appointed or if the customer shall be insolvent or shall be unable or shall admit its inability to meet its commitments promptly as and when due the Company shall have the right (without prejudice to any further or other claims or right which the Company might have) forthwith to cancel any uncompleted order or to cancel or suspend delivery and, notwithstanding any other provisions of the Company's standard conditions of sale, payments for any delivery already made shall immediately become due.
Requests by a Customer for cancellation of any order or for re-scheduling of deliveries will only be considered by the Company if made in writing, and shall be subject to the written acceptance of the Company in accordance with Clause 3. If an Order is cancelled or re-scheduled at the request of the Customer as aforementioned, the Customer shall indemnify the Company against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the Order and the cancellation or re-scheduling thereof, or 20% of the total invoiced amount, whichever is greater.
Requests by a Customer for cancellation of any Order for which a Permanent Key has been requested will not be considered by the Company.
13. License to use software
Unless otherwise stated, licenses to use Software are sold to or for specific Customers, for use on specific computers. The sale does not imply the right to transfer the license to any other Customer or computer. Transfer requests will be considered only for licenses that are supported at the time of request and may be chargeable.
14. Force Majeure
The Company shall not be liable for the cancellation by it of any order or any unfulfilled part thereof or for effecting partial delivery or performance, if performance by the Company is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of the Company whether such cause existed or was foreseeable at the date of acceptance of the customer's order by the Company or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent, hinder or delay the Company, if the Company is thereby prevented or delayed from fulfilling other commitments whether to the customer or to third parties.
If, and to the extent that any provision or any part of the provision of the Company's standard conditions of sale is illegal, void or unenforceable for any reason, then such provision or part thereof (as the case may be) shall be deemed to be severable from the remaining provisions or parts of the relevant provision (as the case may be) all of which remaining provisions shall remain in full force and effect.
Unless agreed otherwise in writing by the Company's authorised representative, any Order placed by a Customer shall constitute an offer to contract upon these Conditions. No addition thereto or variation therefrom whether in the Customer's Order or otherwise shall be valid unless it is in writing and signed by the Company's authorised representative.
Schedule 1: Consultancy rates
Consultancy rates (weekdays, 0900-1700) are as follows:
Telephone consultancy and remote access
£100 per consultant per hour or part hour, subject to two hour minimum.
Half-day (up to 4 hours): £600 per consultant
Day (up to 8 hours): £1,000 per consultant
Software development - Principal Developer
Day (up to 8 hours) £700 per consultant
Software development - Senior Developer
Day (up to 8 hours) £650 per consultant
At weekends, bank holidays and outside working hours consultancy rates are increased by 50%.
For all visits, up to 2 hours of travelling time is provided at no additional cost. Beyond, 2 hours, travelling is charged at £25 per hour.
For visits beyond a total of 5 hours travelling time or when more than one consecutive consultancy day is required, JPY reserves the right to charge for an overnight stay at a convenient 3 or 4 star hotel.
Travel, accommodation and subsistence expenses will be charged at cost. Our travel mileage charge is £0.40 per mile from Surbiton. For overseas visits or visits beyond 200 miles from Surbiton, the Company will charge the lowest available public transport (air, train) fare.
Any cancellation must be made 24 hours before scheduled consultancy. For notice less than this, the Company reserves the right to charge a consultancy fee plus any expenses incurred.
VAT will be added at the prevailing rate.
Conditions for providing consultancy
Consultancy is undertaken on the strict understanding that:
It is permissible to connect the Company's computer to the Customer's network;
The Customer has backed-up all data prior to any consultancy;
Internet access is available on the customer's site.
Unless otherwise agreed, consultancy is provided purely on a time/materials basis during normal working hours. There are no guarantees of the work that can be accomplished in the available time/date.