Standard Terms and Conditions for the Supply of Goods and Services by Geode Networks Europe Limited
In these terms and conditions: –
“Geode” means Geode Networks Europe Ltd, a company registered under the Companies Acts with company number 04039101 and having its registered office at The Stables, Manor Farm, Chavenage, Tetbury, Gloucestershire, GL8 8XW and its main place of business at, Trull Farm Buildings, Trull, Gloucestershire, GL8 8SQ,
“Quotation” means a quotation from Geode for the cost of Geode supplying goods and/or services to a Customer, the details of which goods & services may be contained in a schedule to such a quotation,
“Customer” means the party to whom a Quotation is addressed,
“Purchase Order” means a binding order issued in writing by the Customer accepting Geode’s Quotation and these terms and conditions.
“the Contract” means the contract formed between Geode and the Customer by a Quotation, Purchase Oder and these terms and conditions.
2. CUSTOMER INFORMATION WARRANTED
Where the Customer provides information upon which the Quotation is to be based the Customer warrants that such information is comprehensive and accurate in all respects and may be relied upon by Geode.
3. WHOLE CONTRACT
- Geode’s Quotation shall not be binding beyond any date or time period stated on it.
- The Quotation together with any schedule attached thereto, Purchase Order and these terms and conditions will, subject to subsection 3. c. below, form the whole Contract between Geode and the Customer.
- Where a Customer, in a Purchase Order or by any other means, seeks to insert new or additional contractual terms and/or conditions and particularly where these are at variance with these here stated these will not form part of the Contract or be in any way binding on Geode unless expressly accepted by Geode.
4. SERVICES PROVISION
- The work specified in the Quotation shall be carried out by Geode with not less than appropriate and reasonable care and skill,
- Geode personnel carrying out work shall be competent to carry out such work,
- Geode personnel shall comply with all safe procedures notified to and acknowledged in writing by Geode in accordance with the obligations of the Customer under the Health & Safety at Work Act 1974,
5. PROVISION OF GOODS & SERVICES
- Geode will use its best endeavours to supply goods from reputable manufacturers only so that they are of not less than satisfactory quality.
- Geode reserves the right, without prior approval from or notice to the Customer to provide alternative goods provided that does not affect their function, interchange ability or performance, or if an alternative is required for the purposes of safety, or are required to meet Geode’s specifications.
- Geode warrants to the customer that it has the necessary know-how, expertise and experience as well as full authority and right to perform its obligations to the customer and that in doing so will comply with all relevant regulatory requirements.
- The customer warrants to Geode that it has full authority and right to enter into contractual obligations with Geode and to perform its obligations under such contract.
7. LIMITATIONS OF WARRANTY
- All goods supplied by Geode are, unless it is expressly stated otherwise by Geode, supplied with the benefit of the manufacturer’s warranty only.
- Geode shall not be liable to the Customer or any other person for any direct, indirect or consequential losses caused by any defects, failure, breakdown or unsuitability of goods supplied.
- Geode shall endeavour to assist the Customer in the prosecution of any claim against the manufacturer in respect of any defect, failure, breakdown or the unsuitability of any goods supplied.
- The Customer shall be deemed to have accepted goods supplied unless Geode is notified within 3 working days of their delivery of any defect or problem.
- Goods with a duly notified defect must be returned to Geode (at the Customer’s expense) in order to allow Geode sufficient opportunity to determine whether and to what extent they are defective.
- Geode shall then have a reasonable time to examine goods returned to determine whether or not defective.
- Goods found to be defective shall be replaced or repaired (or, if practicable, the defective part only shall be replaced or repaired) and that at Geode’s discretion as to how best to fulfil its contractual obligations.
- Geode shall not be liable for any defective goods where: –
- Any further use of the product is made after giving notice of a defect,
- Any applicable instructions for their storage, installation, commissioning, use, maintenance or transportation are not followed,
- Alteration, repair or modification of the goods has been attempted or carried out,
- The defect has is as a result of the Customer’s negligence.
- If a Customer is not satisfied with Geode’s assessment of any alleged defect their sole remedy shall be with the manufacturer.
- Provided that it has complied with this clause Geode shall have no further liability in respect of defective goods.
8. LIMIT OF LIABILITY
- Both parties accept liability for fraud or fraudulent misrepresentation and for death or personal injury resulting from its own negligence or that of its employees, subcontractors or agents.
- Geode shall not be liable for any direct, indirect, consequential or other loss or damage to property, whether owned by the Customer or otherwise, other than loss or damage arising out of the negligence of Geode.
- Geode shall expressly have no liability to the Customer for: –
- Any indirect or consequential loss or damage,
- Any loss of business, capital, profit, anticipated savings, reputation or goodwill,
- Any destruction, loss or corruption to any of the Customer’s or other end user’s data.
- The Customer shall be liable for all losses and claims for injuries or damage to any person or property whatsoever (save those arising out of Geode’s negligence) which arises out of or in consequence of the work set out in the Quotation or from instructions given by the Customer not forming part of the Quotation or any attendance at the Customer’s premises in connection therewith and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
- Geode’s entire liability, whether in contract, tort, negligence or otherwise arising out of, or in connection with, the Contract in respect of any single cause of action or related cause of actions shall be limited to the value of the Charges payable under the Contract (excluding VAT) and the Customer hereby agrees to indemnify Geode from and against all claims, demands, proceedings, damages, costs, charges and expenses in excess of such sum.
9. PAYMENT TERMS
- “Invoice” in this clause means the invoice to be submitted by Geode for payment against the Customer’s Purchase Order.
- The price payable shall be that specified in the Quotation and it is the prime consideration of this Contract that payment is made by the due date stated on the Invoice.
- Where no interim payments are requested by Geode, either in terms stated below or otherwise, the terms of payment are full settlement in terms of the Invoice.
- Where there is likely to be, or has been delay in completing work (including but not restricted to such delays as identified in Clause 10 hereof) immediate interim payments shall be made at the request of Geode as work proceeds, these to the value of not less than 90% of work completed as well as goods delivered, and the balance to be paid on completion of the work in terms of the Invoice therefor.
- Ownership of all goods and services, as well as all materials and components including software, firmware and licences, permissions upgrades and updates therefor remains entirely with Geode until all invoices for work have been settled in full, the Customer remaining liable until such payment is made.
- Failure to meet the Invoice terms will attract an additional interest charge on any sums outstanding. This will be charged on a day to day basis from the date of the Invoice until the date of payment at the Statutory Late Payment Interest Rate being, 8% plus Bank of England base rate on the day the payment became overdue.
- At Geode’s discretion, timely payment may attract a deduction from the sum due.
- No payments shall be withheld due to: –
- delays on site,
- non-completion of works,
- late arrivals on site by Geode, or
- delays due to equipment failure.
Nor shall any of the above preclude Geode’s charging in terms hereof.
- No contractual retentions or main contractor’s discounts shall be withheld from payments to Geode.
- The Customer hereby irrevocably authorises Geode to enter onto any premises over which it has control for the purpose of recovering any such goods in the event of non-payment.
- All work will be charged out either: –
- at a fixed rate, or
- at an hourly, daily or weekly rate – where a day is a working day of 8 hours and a week a working week of 40 hours, or
- for such other period, as may be mutually agreed between the Customer and Geode,
- Where charged on a daily basis without qualification as to hours the full daily rate will be charged irrespective of the hours worked except in the case of stoppage for which Geode is responsible in which case stoppage hours will be deducted pro rata to the average working day.
- If the Quotation does not specify the work to be executed but is for the supply of personnel (with or without equipment) to work at the direction of the Customer, Geode’s charges will be calculated at the rate set out in the Quotation notwithstanding that the Customer is for any reason unable to engage the personnel and/or equipment of Geode in any work when present at the Customer’s premises.
- Overtime and shift working shall be charged at the appropriate Geode overtime and shift rates.
- Where Geode personnel and/or equipment are engaged by the customer on a standby basis, that is to say that the personnel and/or equipment will be available for the use of the Customer for the number of hours per week set out in the Quotation, the Customer will be charged at the below stated standing time rate, if a charge is not set out in the Quotation, whether or not there is an attendance at the Customer’s premises.
- Standing time to be charged at £85 + vat per hour unless otherwise specified.
- Any subsistence allowance provided in the Quotation for Geode personnel shall be charged in full and is not dependant on or subject to adjustment for hours worked.
11. DELAY AND ADVERSE CONDITIONS
- Where the Quotation specifies start and finish dates Geode will commence work and endeavour to complete all works in terms thereof.
- If not stated in the Quotation a date for starting (and finishing) works will be agreed with the Customer.
- Geode will endeavour to adhere to any work programme in the Quotation and to perform all work with due diligence but Geode shall not be liable to the Customer, its employees or agents or any third party for any direct, indirect or consequential losses caused by any delays for any reason in the performance of its obligations including unavailability of any materials or components necessary for completion of the contract.
- Charges for the work specified in the Quotation shall be calculated on the basis of Geode carrying out an uninterrupted programme of work, so that: –
- any delay in commencing or progressing the specified work or any other work required by the Customer, as a result of any cause beyond the reasonable control of Geode, shall attract extra charges which shall be calculated for the duration of such delay at the appropriate waiting time rate specified in the Quotation, or if not so specified at the standing time rate in terms of Clause 9 hereof.
- If during the execution of any of the work Geode shall encounter any conditions or obstruction forming an obstacle to their completing the work timeously, which conditions or obstruction could not have reasonably been foreseen by them and as a result Geode are of the opinion that additional work will be necessary which would not have been necessary if the conditions had not been encountered then Geode shall, either in writing or as is appropriate notify the Customer of the conditions encountered, the additional work proposed, the extent of any anticipated delay or interference with the execution of the original work and the additional charges that will be incurred as a result.
- Upon receiving such notice and instructing Geode to proceed to carry out said extra work the Customer shall be responsible for the additional charges incurred thereby which shall be quantified and payable in terms hereof.
- Should the Customer upon receiving such notice elect not to proceed with such extra works and choose to terminate the Contract the Customer shall forthwith give written notice thereof and notwithstanding termination the Customer shall be responsible for the full charge specified in the Quotation as if the Contract had not been terminated.
12. CONFIDENTIAL INFORMATION
“Confidential Information” means all information disclosed, by whatever means, by Geode to the Customer, whether before or after the date of the Contract, including, but not limited to information relating to Geode’s products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs in addition to all information marked as confidential or proprietary and all information which would, in the normal course of business, be regarded as confidential or proprietary. The Customer shall keep and maintain any Confidential Information in the strictest confidence so that it shall not be disclosed to any third party nor to any of its Directors, employees, contractors, subcontractors or agents than those to whom disclosure is necessary for the purposes of the Contract.
13. INTELLECTUAL PROPERTY RIGHTS
- All intellectual property rights to any software produced or developed by Geode, its employees or subcontractors in the course of Geode fulfilling its obligations under the Contract shall remain at all times the property of Geode or its licensors.
- Where Geode, in fulfilling its obligations under the Contract, produces or develops for the Customer any specially written software (“specially written software”), Geode grants to the Customer an exclusive, non-transferable licence to use the specially written software only for the purpose it was produced or developed for in terms of the Contract.
- Where Geode, in fulfilling its obligations under the Contract, provides to the Customer any third-party software (“third party software”), Geode shall use its best endeavours to have granted to the Customer a licence to use such third-party software but that only for the purpose it was provided for in terms of the Contract.
- The Customer shall not disclose, make available or copy any part or parts of the specially written software or any third-party software without the prior written consent of Geode which consent, where it is in Geode’s power to grant such, will not be unreasonably withheld. Any copies permitted to be made shall include appropriate copyright or proprietary notices where applicable and as directed by Geode.
- The Customer shall not reverse assemble, reverse compile or translate any specially written software or third party software; or seek to derive or obtain any source code, structure, algorithms or know how underlying or contained therein for the purpose of altering, copying or modifying the specially written software or third party software.
- The Customer warrants and represents that it shall at all times comply with terms of this clause together with the terms of any separate software licence agreement or agreements granted to it.
14. INTELLECTUAL PROPERTY INFRINGEMENT
- The Customer shall immediately notify Geode if the Customer becomes aware of any allegation or claim that the Customer’s use (or resale) of any products or software supplied by Geode infringes the intellectual property rights of any third party.
- Geode will not be liable for any such alleged infringement or claim where: –
- Such use is not that for which it was supplied by Geode,
- The products and/or software are used in combination with other products or software not supplied by Geode, or
- The products or software have been modified, altered or repaired without Geode’s knowledge or consent.
- The Customer agrees to indemnify Geode against all losses, damages, injury, costs and expenses suffered by Geode as a result of any such allegation or claim.
15. LOSS, DAMAGE OR DELAY IN TRANSIT
- Delivery dates are, unless otherwise expressly stated, approximate only and time is not of the essence for delivery.
- Any claim by the Customer for loss or damage of any goods in transit requires to be notified to Geode within 3 working days of their delivery or in the event of non-delivery within 3 working days of their scheduled delivery date.
- Geode’s liability under this Clause 14 shall in no event exceed the pro rata Contract price in respect of the goods lost, damaged or delayed in transit and Geode shall have no liability for any direct or consequential losses caused by any loss, damage or delay in transit.
16. THE CUSTOMER’S RESPONSIBILITIES AND ASSURANCE
- The Customer shall provide Geode with: –
- suitable and safe access to locate all materials, components and equipment to where required on site,
- Unrestricted access and continuity of working to Geode requirement on site,
- on-site facility for the disposal of all refuse/packaging,
17. RISK & TITLE
- Risk shall, unless specifically stated otherwise, pass on delivery.
- Title to any goods supplied by Geode shall remain with Geode until all sums owed to Geode in respect thereof are paid in full. Mixing or incorporating goods supplied by Geode with any other goods or real property shall not in any way confer or grant a title to such goods where any sums remains due therefor.
Both parties shall, at their own expense, each maintain at all times during the period of this contract insurance necessary to provide adequate cover in accordance with sound business practice in connection with the operation of the contract and each party shall, if so required by the other, produce evidence of any applicable policy for inspection.
The Customer shall be responsible for: –
- Ensuring that the provisions of the Health & Safety at Work etc. Act 1974 or any re-enactment thereof or any order, regulation or title made thereunder are complied with, and
- The safety of its employees and agents and of any other persons (including Geode personnel) entering within the curtilage of the Customer’s premises and shall indemnify Geode personnel against any loss, damage or injury which may be suffered by them as a result of any act or default of the Customer, its employees or agents or from any other cause whatsoever.
20. EARLY TERMINATION
- If, at any time, the Customer makes a default or commits any breach of its Contract obligations and fails to remedy the same within 30 days, or is involved in any legal proceedings concerning its solvency, or commences liquidation or ceases or threatens to cease trading, or if serious doubts arise as to its solvency, Geode shall be entitled, without prejudice to any other rights and entitlements it may have, to terminate the Contract, stop all goods in transit, suspend further deliveries and cease providing any services under the Contract.
- Upon Geode terminating the Contract, for whatever reason, Geode shall, without prejudice to any other rights, remedies and entitlements it may have, forthwith: –
- be paid the price of any goods or services delivered to the Customer prior to the date of termination,
- be paid the price for any goods and services ordered by Geode on behalf of the Customer prior to termination for which Geode is unable to obtain a refund from its suppliers, and
- have returned to it by the Customer any specially written software and/or third party software (as defined in Clause 13).
- For the avoidance of doubt early termination shall not prejudice Geode’s right and entitlement to recover any unpaid sums due.
Neither Geode or the Customer shall sublet or assign the benefit of this contract except that Geode (without in any way altering the rights and obligations of the parties) may employ such of its approved independent contractors or agents as it thinks fit to perform all or any part of its contractual duties.
22. NO WAIVER
No failure, delay, relaxation or indulgence by Geode in exercising any power or right conferred upon it in the Contract shall operate as a waiver of such power or right nor will any waiver of its rights operate as a waiver of any past or subsequent breach.
Should any provision of the Contract be held to be void or voidable the remaining provisions will continue in full force and effect
The Parties’ obligations under the Contract shall survive termination of the Contract for any reason where it is intended that such provision shall survive termination.
25. THIRD PARTY RIGHTS
A person who is not party to the Contract shall have no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any terms of the Contract. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
26. FORCE MAJEURE
Neither party shall be liable to the other for any delay in, or failure of, the performance of its obligations under the Contract, other than an obligation to make payment, if such delay or failure arises from any cause beyond its reasonable control including, without limitation, any act of God, Governmental act (including any act of any foreign government, the European Union or other international body), war, fire, flood, explosion or civil commotion, failure of a third party (except one for whom one of the parties is contractually responsible) and industrial action.
Any notice required hereunder shall be in writing and delivered either by hand, registered first-class (pre-paid) post, fax or e-mail properly addressed to the appropriate, authorised representative of the recipient party at their usual working address. In the case of delivery by fax or by e-mail any such notice shall not be deemed delivered unless and until the sending party has obtained, from the recipient confirmation of delivery.
28. GOVERNING LAW
The Contract shall be governed by and construed in accordance with English Law. Each party irrevocably agrees to submit to the exclusive jurisdiction of the English Courts over any claim or matter arising under or in connection with the Contract.