1. DEFINITIONS
"Matmos" means the company or companies
identified as Matmos in your invoice or any other Matmos affiliate, as the context
requires. "Customer" means the legal entity accepting Matmos's written or oral quotation for the supply of
Products or Services or whose order for Products or Services is accepted by
Matmos or the party otherwise commissioning the Services in each case as named
on the Invoice. "Maintained Products" means hardware, software or
peripheral products in respect of which Services are either bundled with the
Products or required under a Service Offering selected and ordered by the
Customer, accepted by Matmos and specified on the Invoice, and such additions
or changes thereto as may from time to time be agreed in writing between the
parties. "Invoice" means the document sent by Matmos to the Customer,
demanding payment for the Products or the Services and containing, recording
and evidencing contractual terms relating to the Agreement. "Service
Offering (s)" means the service options offered by Matmos for Maintained
Products, as published in Matmos's literature.
"Services" means the services to be performed by Matmos pursuant to
the Service Offering selected by the Customer. "Price" means the
charge for the Products or Services. "Products" means goods sold by
Matmos pursuant to the Agreement, as specified on the Invoice "Agreement"
means a contract for the supply by Matmos to the Customer of the Products
and/or the Services incorporating these terms and conditions and the terms of
any Service Offerings selected by the Customer. "Third Party
Products" means Products not manufactured or assembled or authored by Matmos
and supplied to Matmos by third parties for resupply
by Matmos.
2. PRODUCTS AND
SERVICES
1. Matmos shall
supply and the Customer shall purchase, the Products and/or the Services as
principals only, to the intent and with the effect that no other party shall
have any rights or obligations, or be entitled to sue or liable to be sued,
under the Agreement.
2. The Products and Services are
supplied subject to the terms and conditions of this Agreement to the exclusion
of any other terms or conditions of the Customer and variations or amendments
must be confirmed by Matmos in writing.
3. The supply of Services will start on
the agreed date as shown on Matmos's Invoice.
3. DELIVERY, TITLE AND RISK
1. The Products
are delivered at Matmos manufacturing facility or other agreed delivery point.
2. Manufacturing
requirements may cause Products to be delivered by installments. Delivery dates
are approximate.
3. Risk passes on
delivery. Title to Products passes to Customer when full payment is made and
Matmos shall be entitled at any time before title passes (without any
liability):
II. to enter the premises of Customer and re-possess
Products;
III.to use or sell Products.
4. ACCEPTANCE OF PRODUCTS
Unless Customer shall, promptly after delivery, inspect
the Products and notify Matmos, in writing, of any defects found, the Products
shall be deemed to have been accepted on delivery. At Matmos discretion, goods may be returned
unopened & unused for refund within 14 days but will be subject to a 20%
restocking fee.
5. THE SERVICE
OFFERINGS
1. Services are
provided in accordance with the provisions contained in the Service Offering
selected by the Customer, as shown on the Invoice.
2. Matmos will use reasonable endeavours to meet relevant response times.
3. Customer
agrees that Matmos shall not be liable for any direct, indirect or
consequential losses occurring as a result of Matmos's
failure to meet relevant response times except as set in Clause 11.
4. The Customer
may purchase extended service coverage in accordance with then current Matmos
policy.
6. EXCEPTIONS
1. Matmos shall
be under no obligation to supply the Services where, in Matmos's
reasonable opinion, these are needed because of improper or inadequate
installation, use or maintenance; actions or modifications by unauthorised third parties or the Customer; or accidental
or wilful damage.
2. The Services
do not include the correction or avoidance of software defects or errors or the
loading or re-loading of Customer's applications software or data or any
reconfiguration of the Maintained Products beyond reloading the operating
system software as carried out before shipment.
7. SUBSTITUTIONS
Matmos reserves the right to replace the whole or any
part of the Maintained Products. Repairs may be carried out using reconditioned
parts or products which, whilst not necessarily identical to the faulty
Maintained Products, are equivalent to new in functionality and appearance.
8. CUSTOMER'S
RESPONSIBILITY
1. Customer shall
properly use the Maintained Products and shall provide Matmos with all
reasonable facilities and information to enable Matmos to perform its duties.
2. Customer shall
be responsible for complying with all Customer applicable regulatory
requirements.
9. PRICE AND
PAYMENT
1. Payment shall
be made in full on or before supply of Products or Services or, if agreed at
the time of order, within 30 days of the date of Invoice.
2. The Price of
the Products and/or Services shall be Matmos's quoted
price or, where no Price has been quoted (or a quoted Price is no longer
valid), the price listed in Matmos's published price
list current at the date of the Customer's order and in any case as shown on
the Invoice.
3. All Prices
quoted in writing are valid for 14 days except written quotations in respect of
Third Party Products which are valid for 10 days only. Oral quotations are
valid only to the end of the business day upon which they are given.
4. All Prices for
the sale of Products exclude Matmos's charges for
transport and insurance.
5. The Price and
any additional charges payable under the Agreement are exclusive of all sales
taxes including Value Added Tax.
6. Time for
payment is of the essence. Matmos reserves the right to charge interest on sums
more than 7 days overdue on a day to day basis, as well after as before any
judgment, from the date or last date for payment thereof to the date of actual
payment (both days inclusive) at the rate of 2% above the base rate of HSBC
Bank plc from time to time in force, compounded quarterly. Such interest shall
be paid on demand.
10. WARRANTY
1. Matmos
manufactures its hardware Products from parts and components that are new in
accordance with industry standard practices and Matmos warrants that the
Products (excluding Third Party Products and software) will be free from
defects in materials, workmanship and design for a period of 12 months from the
date of purchase and that spare parts used in repairing Maintained Products
under any Service Offering will be free from defects in materials, workmanship
and design for a period of 90 days from installation in the Maintained Products
or the remainder of the Warranty Period or Service Offering appropriate to or
purchased by the Customer in respect of the Maintained Products, whichever is
the longer.
2. In respect of Third Party Products,
the Customer shall only be entitled to the benefit of any warranty or guarantee
given by the Third Party manufacturer.
3. If, before the
expiry of the warranty period or appropriate Service Offering, Matmos receives
written notice from the Customer of any breach of the warranty then Matmos
shall, within a reasonable time, repair or, at its option, replace Products or
spare parts that are defective or otherwise remedy such defects.
4. This warranty
does not apply to defects resulting from improper or inadequate installation,
use or maintenance; actions or modifications by unauthorised
third parties or the Customer or accidental or wilful
damage.
5. Matmos does not give any warranty
that the Products are fit for any particular purpose and this warranty is given
in place of all warranties, conditions, terms, undertakings and obligations
implied by statute, common law, custom, trade, usage, course of dealing or
otherwise, all of which are excluded to the fullest extent permitted by law.
11. LIABILITY
1. Matmos shall
not be liable for any loss or damage sustained or incurred by the Customer or
any third party (including without limitation any loss of use of the Maintained
Products or loss of or spoiling of any of the Customer's programs or data)
resulting from any breakdown of or fault in the Maintained Products, unless
such breakdown or fault is caused by the negligence or wilful
misconduct of Matmos, its employees, agents or sub-contractors and then only to
the extent not excluded by the Agreement.
2. Matmos shall
indemnify the Customer and keep the Customer fully and effectively indemnified
against any loss of or damage to any property or injury to or death of any
person caused by any negligent act or omission or wilful
misconduct of Matmos, its employees, agents or sub-contractors, or by any
breach of its contractual obligations.
3. The Customer
shall indemnify Matmos and keep Matmos fully and effectively indemnified
against any loss of or damage to any property or injury to or death of any
persons caused by any negligent act or omission or wilful
misconduct of the Customer, its employees, agents or sub-contractors or by any
breach of its contractual obligations.
4. Except in
respect of injury to or death of any person, for which no limit applies, the
respective liability of Matmos and the Customer under sub-clauses 11.1, 11.2,
and 11.3 in respect of each event or series of connected events shall not
exceed the Invoice Total.
5.
Notwithstanding anything else contained in the Agreement, Matmos shall
not be liable to the Customer for loss of profits or contracts or other
indirect or consequential loss whether arising from negligence, breach of
contract or howsoever.
12. FORCE
MAJEURE
Neither party shall be liable for any delay in
performance caused by circumstances beyond its reasonable control and the party
in delay shall be entitled to a reasonable extension of time for performance.
13. INTELLECTUAL
PROPERTY RIGHTS
Each party will indemnify the other against all costs,
claims, demands, expenses and liabilities arising out of or in connection with
any claim that the normal use or possession of the Products or Third Party
Products or products supplied by the Customer for integration purposes (whether
used separately or in combination) infringes the intellectual property rights
(including without limitation any patent, copyright, registered design, design
right or trade mark) of any third party.
14. CONFIDENTIALITY
Each party shall treat as it does its own trade secret
information, all information obtained from the other pursuant to the Agreement
which is marked "confidential" or the equivalent or has the necessary
quality of confidence about it.
15. EXPORT
CONTROL
The Customer acknowledges that the Products licensed or
sold hereunder are subject to the export control laws and regulations of the
I. any countries
that are subject to USA or EU export restrictions (currently included, but not
necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, and Syria) or
II. any end user who has been prohibited
from participating in the
The Customer also confirms that the Products will not be
sold or licensed to an end user who the Customer knows or has reason to know
will utilise the Products directly or indirectly in
nuclear activities listed in US EAR 778.3(b)(1), (2) & (3), whether the
items are specifically designed or modified for such activities. The Customer
further states that the Products will not be destined for or used in the
design, development, production or use of missiles or missile projects. The
Customer further acknowledges that the Products may include technical data
subject to export and re-export restrictions imposed by the
16. TERMINATION
1. The Agreement
may be terminated forthwith by written notice from either party if:
I. the other
commits any material breach of any of the terms of the Agreement and, if
capable of remedy, shall have failed within 30 days after the receipt of a
request in writing from the other party so to do, to remedy the breach (such
notice to detail the breach and to contain a warning of such party's intention
to terminate); or
II. the other
becomes insolvent or bankrupt or is otherwise unable to pay its debts as they
fall due.
2. The Agreement may be terminated
forthwith by written notice from Matmos if:
I. Customer fails
to pay any sum due and such sum remains unpaid for 14 days after written notice
from Matmos that such sum has not been paid; or
II. Customer
breaches or Matmos has reason to suspect that Customer has breached Clause 15.
17. ENTIRE
AGREEMENT
1. The Agreement
supersedes all prior agreements, arrangements and understandings between the
parties and constitutes the entire agreement between the parties relating to
the subject matter hereof.
2. The Customer warrants to Matmos that
it has not been induced to enter into the Agreement by any prior oral
representation (whether innocently or negligently made) except as specifically
contained in the Agreement.
18. CONSUMERS
The statutory rights of a Customer dealing with Matmos
as a consumer as defined in the Unfair Contract Terms Act 1977 remain
unaffected.
19. ASSIGNMENT
Matmos may sub-contract all or any of its obligations
under the Agreement to a competent third party. Except for this, neither party
shall assign or otherwise transfer any of its rights or obligations.
20. NOTICES
1. Notices must be in writing and sent to the address of
the recipient set out in the Agreement or the recipient's registered office or
such other address as the recipient may designate.
2. Any such
notice may be delivered personally or by first class prepaid letter, telex or
facsimile transmission and shall be deemed to have been served if by hand when
delivered, if by first class post 48 hours after posting and if by telex or
facsimile transmission when despatched.
3. Any notice
concerning the validity or existence of the Agreement must be delivered
personally or sent by Recorded Delivery first class letter post.
21. SEVERANCE
If any provision of the Agreement is held by any
competent authority to be invalid or unenforceable in whole or in part, the
validity of the other provisions of the Agreement and the remainder of the
provisions in question shall not be affected.
22. LAW AND
JURISDICTION
The Agreement shall be governed by and construed in
accordance with the laws of
THESE TERMS AND CONDITIONS ARE TO BE READ TOGETHER WITH
THE TERMS OF ANY SERVICE OFFERING SELECTED BY THE CUSTOMER.