“these Conditions” means these terms and conditions. “Yellow Tree Integration Ltd.” to which these Conditions are attached. “Commissioning” means the delivery of the Equipment and the completion of the Services. “the “Purchaser” means the person or company identified overleaf. “the Equipment” means the equipment listed in the Schedule and includes where the context so requires all or any of the components and parts of that equipment and any computer programs incorporated in that equipment or delivered with it. “the Schedule” means the Schedule to this Agreement. “the Services” means the services in the Schedule. “the Programs” means the computer programs referred to in the definition of the Equipment. “this Agreement” means the Agreement to which these Conditions are attached, together with the Schedule and these Conditions.
2. EFFECT OF CONDITIONS
These Conditions prevail over any conditions contained in the Purchaser’s order and over any other conditions that the Purchaser seeks to impose. Together with the Schedule and the Agreement signed by the parties, these Conditions and any terms expressly incorporated in them form the entire agreement between the parties relating to their subject matter.
A. The price for the Equipment and the Services is as stated in the Schedule. It includes delivery of the Equipment and the provision of the Services, and is subject to the addition of VAT at the then prevailing rate. If any of the Equipment or Services is to be exported outside the United Kingdom the Purchaser shall pay the costs incurred by Yellow Tree Integration Ltd. or on its behalf of obtaining all necessary export authorizations and all import duties, sales taxes, charges and assessments.
B. Yellow Tree Integration Ltd. reserves the right to increase the price in the event of any increase in the costs incurred by Yellow Tree Integration Ltd. or the work done by Yellow Tree Integration Ltd. resulting from:
(i) any delay caused by the Purchaser, its agents or other suppliers;
(ii) any change to any of the Equipment or the Services or specifications or design of them which are requested by the Purchaser;
(iii) incorrect or incomplete information furnished by the Purchaser;
(iv) reasons beyond Yellow Tree Integration Ltd.’s control;
(v) unless the price in the Schedule is expressed to be fixed, any increase in the British Electrical and Allied Manufacturers Association Index between the date of this Agreement and the date of delivery, in which case Yellow Tree Integration Ltd. may increase the price by a percentage equal to the percentage increase in that index.
A. Unless otherwise specified in the Schedule, fifty percent of the price shall be paid when the Purchaser places its order. All equipment to be paid for by the time of delivery to site. The remaining balance shall be paid within 15 days after Commissioning.
B. If payment is not made in accordance with Clause 4(A) above the Purchaser shall pay on demand, in addition to any monies due hereunder, interest on the overdue amount at 3% per annum above the base rate of Lloyds TSB Bank from time to time in force in England calculated on a monthly basis from the due date to the date of actual payment (both dates inclusive), as well after as before judgment.
C. Payment by credit card will attract a surcharge of 2.5%, payment by debit card attracts no surcharge. 5. DELIVERY AND INSTALLATION. Any date given to the Purchaser for delivery or Commissioning is an estimate only and Yellow Tree Integration Ltd. will not be liable if it fails to meet any such date.
B. The Purchaser shall make available to Yellow Tree Integration Ltd. such access to the Purchaser’s premises and facilities as are necessary for Yellow Tree Integration Ltd.’s performance of this Agreement and the Purchaser will ensure that those premises and facilities are adequately prepared for and ready for the commencement of the Services.
C. Unless otherwise agreed in writing, all Services will be performed during Yellow Tree Integration Ltd.’s normal working hours, and Yellow Tree Integration Ltd. shall not be required to work outside those hours.
D. The Purchaser will be deemed to have accepted the Equipment and the Services on Commissioning.
E. Cables first fixed by other are required to be clearly marked and identified in accordance with the wiring diagrams. Yellow Tree Integration reserves the rights to increase the price if this clause is not adhered to.
F. If the cables are first fixed by others the resistance and continuity tests are the responsibility of others.
G. Should any cables be missing since the date of the first fix survey, this will be the responsibility of others, this also applies to any cables or cores that maybe found to be damaged.
H. In the unlikely even any interference is found to be disturbing or reducing the communications path would be the responsibility of others.
6. FORCE MAJEURE
If Yellow Tree Integration Ltd. is prevented (directly or indirectly) from performing or completing any of its obligations under the Agreement by reason of Act of God, war, strike, lockout, trade dispute, fire, breakdown, interruption in transport, failure of or interruption in telecommunications systems, government action, delay in delivery to Yellow Tree Integration Ltd. of any Equipment and Services or parts thereof or any cause whatsoever (whether or not of the like nature to those already mentioned) outside its control, Yellow Tree Integration Ltd. shall not be liable and may extend the time for its performance of its obligations hereunder by a period equivalent to that during which its performance has been so delayed or prevented.
7. DELIVERY BY INSTALLMENTS
Where delivery of Equipment and provision of the Services is made in instalments these Conditions shall (with any necessary alterations) apply to each instalment of such Equipment. In particular, payment of the remaining 50% of the price shall be made within 15 days after the Commissioning of each instalment.
8. PASSING OF PROPERTY AND RISKA.
Except for any loss or damage caused by or attributable to Yellow Tree Integration Ltd. prior to Commissioning, risk in the Equipment and in each part of them shall pass to the Purchaser at the time of delivery to the Purchaser.
B. Until the Purchaser has paid Yellow Tree Integration Ltd. in full for the Equipment:
(i) all rights, title and property in equity and law in the Equipment shall remain vested in Yellow Tree Integration Ltd. (or its suppliers) and shall not pass to the Purchaser;
(ii) the Purchaser shall not sell, assign, mortgage, pledge, lend or otherwise transfer or dispose of any interest in or create any charge or lien over or otherwise encumber the Equipment or do any act or thing or permit any act or thing to be done which may in any way prejudice Yellow Tree Integration Ltd.’s rights to and title to the Equipment;
(iii) the Purchaser shall hold the Equipment in such a way as to indicate clearly that it is the property of Yellow Tree Integration Ltd.;
(iv) the Purchaser shall keep the Equipment in its own physical possession and control at the address to which the Equipment is delivered;
(v) the Purchaser shall keep the Equipment in good and substantial repair and operating condition;
(vi) the Purchaser shall keep the Equipment fully insured; and
(vii) if the Purchaser sells any of the Equipment, the Purchaser shall receive the proceeds of sale as agent for Yellow Tree Integration Ltd., shall keep those proceeds separate from the Purchaser’s funds, and account for them to Yellow Tree Integration Ltd.
C. Yellow Tree Integration Ltd. may maintain an action for the price notwithstanding that property in the Equipment may not have passed to the Purchaser.
D. The Purchaser hereby acknowledges that until the Purchaser acquires title to the Equipment, the relationship between Yellow Tree Integration Ltd. and the Purchaser in relation to the Equipment shall be a fiduciary one and the Purchaser shall hold the equipment as bailee for Yellow Tree Integration Ltd. and shall deliver them up to Yellow Tree Integration Ltd. immediately on Yellow Tree Integration Ltd.’s request. Any such request shall terminate this Agreement.
E. Each of the paragraphs and sub-paragraphs of the Clause 8 shall be construed as a severable contract term not affected by any invalidity or unenforceability of any other term of this Agreement and shall survive the termination of this Agreement.
F. Title to the Programs shall not pass to the Purchaser who shall have a limited licence to use them.
9. EXCLUSIONS, LIMITATIONS OF LIABILITY AND WARRANTY
A. The Purchaser hereby acknowledges that the Equipment and the Programs are such that breakdowns, errors, interruptions in use or malfunctions may occur and that Yellow Tree Integration Ltd. gives no warranty of uninterrupted or fault or error free use.
B. At the request of the Purchaser made within 30 days after Commissioning, Yellow Tree Integration Ltd. will enter into an agreement (hereinafter referred to as “the Maintenance Agreement”) with the Purchaser for the provision by Yellow Tree Integration Ltd. of a maintenance, repair and parts replacement service on the terms and conditions for maintenance attached to this Agreement.
If the Purchaser and Yellow Tree Integration Ltd. shall not enter into the Maintenance Agreement then but not otherwise Yellow Tree Integration Ltd. will provide the following limited service:
(i) if before the expiration of one year after Commissioning (“the Warranty Period”)and if the Purchaser has complied with its obligations under this Agreement any stand-alone part of the Equipment is defective and is returned to Yellow Tree Integration Ltd. at the cost of the Purchaser, and if upon inspection Yellow Tree Integration Ltd. agrees that the part is defective, Yellow Tree Integration Ltd. will repair or replace the same (as Yellow Tree Integration Ltd. thinks fit) and will return the same to the Purchaser. If during the Warranty Period the Purchaser notifies Yellow Tree Integration Ltd. that any part of the Equipment (other than stand-alone Equipment) is defective, Yellow Tree Integration Ltd. will repair or replace that part free of all charges other than standard labour charges then in effect. Touch screens shall be excluded from this “warranty period” and be covered for a total of 60 days from the date of commissioning.
(ii) Yellow Tree Integration Ltd. shall not be required to provide the limited service referred to in sub-paragraph (i) above if any maintenance, repair or replacement is necessary because of:
a) accident, neglect, misuse;
b) Failure of electrical power;
Failure to maintain the recommended environmental conditions;
d) Use which is other than the ordinary and proper use of the Equipment;
e) Anything connected to the Equipment being unsuitable for such connection or interfering with the proper functioning of the Equipment;
(iii) Yellow Tree Integration Ltd. shall not be obliged to carry out any repair or replacement for anyone other than the Purchaser, or in respect of any magnetic disk or other consumable item.
C. Subject to Conditions D, K and L below, Yellow Tree Integration Ltd. will in no circumstances have any liability for loss of profit, loss of business, loss of revenue, loss of savings, loss or corruption of data, loss of goodwill or for any liability of the Purchaser to any other person (save only as set out in Condition 11), or for any other indirect or consequential loss howsoever arising.
D. Nothing in this Agreement limits or excludes Yellow Tree Integration Ltd.’s liability for death or personal injury caused by its negligence of for and fraudulent misrepresentation or other fraudulent act committed by it.
E. Except where the negligence or default of Yellow Tree Integration Ltd. results in death or personal injury and except for fraud, the aggregate liability of Yellow Tree Integration Ltd. under or in connection with this Agreement, the Equipment and the Services or any part of them (no matter how many claims are made or whatever the basis of those claims) shall be limited in total to the price paid for the Equipment and Services.
F. The Purchaser agrees that it is in a better position to foresee and evaluate an indirect or consequential loss he may suffer in connection with the Equipment and Services and that the price therefore has been calculated on the basis that Yellow Tree Integration Ltd. will exclude and limit liability as set out in this Condition 9. The Purchaser agrees that it is better placed than is Yellow Tree Integration Ltd. to insure against such loss.
G. Insofar as it limits or excludes liability, this Condition 9 shall override any other provision in these Conditions, and each of the paragraphs of this Condition 9 shall be a severable term not affected by any invalidity or unenforceability of any other paragraph or term, and shall survive the termination of this Agreement and the performance of Yellow Tree Integration Ltd.’s obligations under it.
H. Yellow Tree Integration Ltd. will not, unless specified in writing, be responsible for ensuring equipment and services that form or modify a system are in accordance with the EMC Directive 89/336 EEC and amendments and statutes pertaining to it.
I Yellow Tree Integration Ltd. will not, unless specified in writing, be responsible for ensuring equipment and services that form or modify a system will not create excessive traffic conditions. Yellow Tree Integration Ltd. will therefore not be responsible for any re-imbursement of carrier or telecommunications charges even where these formed part of the Services. J. All conditions, warranties and other terms (express or implied, statutory or otherwise) are excluded from this Agreement to the extent permitted by law.
K. Except where this Agreement is an international supply contract as specified in section 26 of the Unfair Contract Terms Act 1977, nothing in these Conditions shall exclude or restrict:
(i) any liability of Yellow Tree Integration Ltd. for breach of its implied undertakings as to title;
(ii) where the Purchaser deals as consumer within the meaning of the Unfair Contract Terms Act 1977, Yellow Tree Integration Ltd.’s liability for breach of its implied undertakings as to conformity of the goods with description or sample, or as to their quality or fitness for purpose.
L. Nothing in these Conditions affects the statutory rights of the Purchaser as defined in the Consumer Transactions (Restrictions on Statements) Order 1973 (as amended).
A. Without prejudice to any other rights of Yellow Tree Integration Ltd., Yellow Tree Integration Ltd. shall have the right to terminate this Agreement (including the licence in Condition) forthwith by notice in writing to the Purchaser in the following circumstances.
(i) if the Purchaser breaches any of any of its material obligations under this Agreement and either that breach is incapable of remedy or the Purchaser does not remedy that breach within thirty days after receipt of notice requiring it to remedy the same;
(ii) if any distress or execution is levied on the property of the Purchaser, or if the Purchaser makes any arrangement or composition with its creditors generally or commits an act of bankruptcy or if any receiving order is presented or made against it, or if the Purchaser (being a Company) has any petition presented or resolution passed for its winding up (otherwise than for the purposes of and followed by a solvent amalgamation or reconstruction) or dissolution, or an encumbrancer takes possession, or a receiver or administrator is appointed over the whole or any material part of the assets of the Purchaser.
B. In the event of termination for any reason, Yellow Tree Integration Ltd. shall be entitled to retain (to the extent it shall prove necessary) and set off against any liability of the Purchaser to Yellow Tree Integration Ltd. any monies already paid by the Purchaser.
C. If Yellow Tree Integration Ltd. is prevented or delayed in the performance of its obligations under this Agreement by any of the events specified in Condition 6 for a continuous period of 6 months or more either Yellow Tree Integration Ltd. or the Purchaser may terminate this Agreement by giving notice in writing to the other. If this Agreement is frustrated or so terminated Yellow Tree Integration Ltd. shall be entitled to remuneration or re-imbursement on a quantum meruit basis.
D. If this Agreement is terminated for any reason) and any monies due and payable have not been paid to Yellow Tree Integration Ltd. in full, the Purchaser shall promptly return the Equipment to Yellow Tree Integration Ltd. and if the Purchaser does not do so, Yellow Tree Integration Ltd. shall have the right, without prejudice to any other rights or remedies, to send its employees or agents onto the Purchaser’s premises at any time to take possession of the Equipment. Upon termination of the Contract for whatever cause the Programs and all copies of them (including flow charts, logic diagrams, source codes, user manuals and modified programs) shall be returned by the Purchaser to Yellow Tree Integration Ltd. within 15 days after termination. E. Condition 10D and Condition 9 shall survive the termination of this Agreement and continue indefinitely.
In consideration of the payment by the Purchaser to Yellow Tree Integration Ltd. of the full purchase price of the Equipment and the performance of the other obligations of the Purchaser, Yellow Tree Integration Ltd. hereby grants to the Purchaser a non-exclusive non-transferable licence to use the Programs and any user documentation incorporated in or delivered with the Equipment upon the following terms:
A. The Programs will be supplied on such media as Yellow Tree Integration Ltd. thinks fit;
B. The Purchaser shall use the Programs only with the Equipment (or other Equipment from time to time supplied by Yellow Tree Integration Ltd.) and only for the Purchaser’s internal business purposes and shall not market or commercialise or sub-license or share the use of the Programs in any way;
C. The Purchaser may not make any copies of the Programs except for back up purposes;
D. The Purchaser will not remove any copyright notice or other notice supplied by Yellow Tree Integration Ltd. with the Programs;
E. The Purchaser shall bring to the attention of Yellow Tree Integration Ltd. any infringement of suspected infringement by any third party of any of the property rights referred to in Condition 13 and shall at the request and expense of Yellow Tree Integration Ltd. take or join Yellow Tree Integration Ltd. in taking all such action as Yellow Tree Integration Ltd. may at its sole discretion decide and require for the purpose of protecting all such rights;
F. The Purchaser will not alter, modify or update the Programs nor merge them with other computer programs without the prior written consent of Yellow Tree Integration Ltd.;
G. The Purchaser will ensure that the Programs as used only in accordance with this Agreement and the Purchaser will permit Yellow Tree Integration Ltd. to inspect the Equipment and the Programs and to satisfy itself at all reasonable times that the Programs are so used;
H. The Purchaser will not (save so far as necessary in the case of any employee of the Purchaser who uses the Equipment and then only in confidence);
(i) Disclose any details of the method of operation of the Programs to any third party; or
(ii) Give or lend to any third party any of the Programs in whatever form (or any copy of the user manual or other documentation relating thereto); or
(iii) Suffer or permit any unauthorised person to copy, take or remove from the premises on which the Programs are used by the Purchaser any of the Programs or the user manual; and the Purchaser shall ensure that those persons who with the Purchaser’s consent have access to the Programs (and user manual) are aware of and comply with the provisions of this Condition.
I. The Purchaser may not sub-license or assign or otherwise transfer this licence; and
J. Upon the Purchaser disposing of the Equipment to any third party Yellow Tree Integration Ltd. may (but will not be obliged to) at the request of the Purchaser (and if the Purchaser shall have complied with all its obligations hereunder) grant to that third party a licence to use the Programs upon the same terms as are contained in this Agreement or as near thereto as the circumstances shall then permit.
12. INTELLECTUAL PROPERTY RIGHT INFRINGEMENTA
Yellow Tree Integration Ltd. will indemnify the Purchaser in respect of any costs and damages awarded against the Purchaser in any proceedings brought against the Purchaser based on an allegation that the Purchaser’s use of the Equipment in the United Kingdom infringes any patent or copyright provided that;
(i) this indemnity shall not apply to any infringement which is due to Yellow Tree Integration Ltd. having followed designs or instructions furnished by the Purchaser or to the use of the Equipment in any manner or for a purpose not specified or agreed to in writing by Yellow Tree Integration Ltd., or to any infringement which is due to the use of the Equipment in association or combination with any other equipment or software not supplied by Yellow Tree Integration Ltd.;
(ii) in the event of such proceedings Yellow Tree Integration Ltd. shall have the right at its discretion either to procure for the Purchaser at Yellow Tree Integration Ltd.’s expense the right to continue the use of the Equipment to which such proceedings relate or to modify or replace such Equipment or, if in the opinion of Yellow Tree Integration Ltd. no other reasonable alternative is available, to terminate this Agreement and re-purchase the Equipment at the purchase price less depreciation to be established by Yellow Tree Integration Ltd. taking into account the expected useful life of the Equipment, the duration of the Purchaser’s use thereof and then current accounting practice;
(iii) Yellow Tree Integration Ltd. is promptly notified in writing by the Purchaser of any claim being made or action threatened or brought against the Purchaser and Yellow Tree Integration Ltd. is given the sole right to defend and settle the proceedings and sole control of any negotiations for settlement or compromise; and
(iv) the Purchaser gives at its own expense all reasonable assistance and does not by any act or omission do anything which may directly or indirectly prejudice Yellow Tree Integration Ltd. in this connection.
B. Except, as aforesaid Yellow Tree Integration Ltd. shall not be under any liability to the Purchaser where the Equipment infringes a patent or other intellectual property right.
13. PROPERTY RIGHTS
All copyright, patent, trade secrets, know-how, rights of confidence and other property rights in the Programs and the Equipment, and all parts thereof and anything supplied in connection therewith or to facilitate the use thereof, are the property of Yellow Tree Integration Ltd. (or its licensors or suppliers) and no rights in or under such property pass to the Purchaser save for those expressly granted under these Conditions.
Any notice to be given under these Conditions shall be given in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address at the date of this Agreement or such other address as that party may from time to time notify in writing to the other in accordance with this Condition and shall be deemed to have been served if sent by post to and from an address within the United Kingdom three working days after posting.
The Purchaser may not assign or transfer or purport to assign or transfer this Agreement or any obligation or any benefit under it to any other person without the prior written consent of Yellow Tree Integration Ltd.
This Agreement is governed by and is to be construed in accordance with the laws of England. Subject to the remainder of this Condition 16, the English Courts will have exclusive jurisdiction to deal with any dispute that arises out of or in connection with this Agreement. In the event of any dispute or difference arising in connection with this Agreement, the parties’ respective senior representatives will, within 10 days after receipt of a written request from either party to the other, meet in a good faith effort to resolve the dispute without recourse to legal proceedings.
If the dispute or difference is not resolved as a result of that meeting, either party may (at that meeting or within 14 days after its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor or mediator (“Neutral Advisor”).
If the parties are unable to agree on a Neutral Advisor or if the Neutral Advisor agreed upon is unable or unwilling to act, either party shall, within 14 days after the date of the proposal to appoint a Neutral Advisor or within 14 days after receipt of notice to either party that he or she is unable or unwilling to act, apply to the Centre for Dispute Resolution (“CEDR”) to appoint a Neutral Advisor.
The parties shall within 14 days after the appointment of the Neutral Advisor meet with him or her in order to agree a programme for the exchange of any relevant information and the structure to be adopted for the negotiations to be held in London, England. If considered appropriate, either of the parties may, at any stage, seek assistance from CEDR to provide guidance on a suitable procedure.
Unless concluded with a written legally binding agreement, all negotiations connected with the dispute shall be conducted in confidence and without prejudice to our respective rights in any future proceedings.
If the parties accept the Neutral Advisor’s recommendations, or otherwise reach agreement on the resolution of the dispute, that agreement shall be recorded in writing and, once it has been signed by the parties’ respective duly authorised representatives, will be binding on the parties.
That agreement will be implemented in full within the period of time agreed by the Neutral Advisor, failing which it will be rendered null and void (and may not be referred to any subsequent legal proceedings) unless legal proceedings have been initiated to enforce it by either you or us within a further 28 days.
Failing agreement, either party may invite the Neutral Advisor to provide a non-binding but informative opinion in writing. That opinion will be provided on a without prejudice basis and will not be used in evidence in any proceedings begun in relation to this Agreement without the prior written consent of both parties.
If the parties fail to reach agreement in the structured negotiations within 60 days after the Neutral Advisor being appointed, any dispute or difference between them may be referred to the Courts unless, within that period, the parties agree to refer the matter to arbitration before an arbitrator whose method of appointment is agreed between them.
A. No alteration or modification of these Conditions or any other part of this Agreement shall have effect unless made in writing and signed by or on behalf of the Purchaser and by a Director of Yellow Tree Integration Ltd.
B. Any forbearance or delay on the part of either party in enforcing any provision of these Conditions or any of its rights under this Agreement shall not be construed as a waiver of such provision or of any right thereafter to enforce the same.
C. If any of these Conditions is, for any reason, held in a final decision to be unenforceable, illegal or otherwise invalid in any way, that unenforceability, illegality or invalidity will not affect any other provisions, which will continue in full force and effect. These Conditions are then to be construed as if that unenforceable, illegal or invalid provision had never been contained in these Conditions. The parties shall use reasonable endeavors to agree valid and enforceable terms to replace those unenforceable, illegal or invalid provisions in order to meet, so far as is possible, their original intentions.