Oriel Systems

Provision of Goods, Services and Service
Related Products

Meanings

In this Agreement, the following words are defined:

 

Agreement	this agreement and the quote or technical proposal for the provision of the Goods and Services (as defined in the quote) including any schedules, specifications etc…;
Confidential Information	in relation to either party, any information (whether or not stated to be confidential or marked as such) which that party discloses to the other, or which the other party obtains from any information disclosed to it by that party, either orally or in writing or by any other means, under or in connection with this Agreement;
Deliverables	all documents, items, plans, products, goods and materials supplied by the Supplier, including any methodologies, ideas, designs, computer programs, data, disks, tapes, and reports, in whatever form, which are developed, created, written, prepared, devised or discovered by the Supplier or its agents, sub-contractors, consultants and employees in relation to the Services;
Effective Date	the date on which the supplier receives a purchase order or other written statement from the client;
Equipment	any equipment, systems, tools, cabling, items, materials or facilities requested or used directly or indirectly in the supply of the Services, by the Supplier or its sub-contractors;
Intellectual Property Rights	any invention, patent, utility model right, copyright and related right, registered design, unregistered design right, trade mark, trade name, internet domain name, design right, design, service mark, database rights, topography rights, rights in get-up, rights in goodwill or to sue for passing off and any other rights of a similar nature or other industrial or intellectual property rights owned or used by the Supplier in any part of the world whether or not any of the same is registered (or capable of registration), including applications and the right to apply for and be granted, extensions or renewals of, and rights to claim priority from, such rights and all equivalent or similar rights or protections which subsist now or will subsist in the future;
Services	the services which are set out and described in the quote or technical proposal and any schedules, together with any other services which the Supplier provides or agrees to provide to the Customer through the change control procedure set out below (Change Control);
Charges	the charges for the Goods and Services, which are set out in the quote or technical proposal;
Specification	the description or specification for the Services as set out in the quote or technical proposal and any schedules or as otherwise agreed between the parties through Change Control;
Working Day	any day other than a Saturday, Sunday or public holiday in England.

 

Application and entire agreement

1. These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by Oriel Systems Limited a company registered in England and Wales under number 01863005 whose registered office is at Unit 1 Industry Park, Cricketts Lane, Chippenham, Wiltshire, SN15 3EQ (we or us) to the person buying the services (you).
2. You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Interpretation

4. A “business day” means any day other than a Saturday, Sunday or bank holiday.
5. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
6. Words imparting the singular number shall include the plural and vice-versa.

Services

7. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
8. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
9. All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.

Goods

10. The description of the Goods is set out in our sales documentation, unless expressly changed in our quotation. In accepting the quotation, you acknowledge that you have not relied upon any statement, promise or other representations about the Goods by us. Descriptions of the Goods set out in our sales documentation are intended as a guide only.
11. We can make any changes to the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements.

Your obligations

12. You must obtain any permissions, consents, licences or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.
13. If you do not comply with clause 10, we can terminate the Services.
14. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).

Prices, Fees and Deposit

15. The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis.
16. The price (Price) of the Goods is set out in our quotation current at the date of your order or such other price as we may agree in writing.
17. If the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, we can increase the Price prior to delivery.
18. Any increase in the Price under the clause above will only take place after we have told you about it.
19. You may be entitled to discounts. Any and all discounts will be at our discretion.
20. The Price is exclusive of fees for packaging and transportation / delivery.
21. In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.
22. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 14 also apply to these additional services.
23. The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
24. You must pay a deposit (“Deposit”) as detailed in the quotation at the time of accepting the quotation.
25. If you do not pay the Deposit to us according to the clause above, we can either withhold provision of the Services until the Deposit is received or can terminate under the clause below (Termination).
26. The Deposit is non-refundable unless we fail to provide the Services and are at fault for such failure (where the failure is not our fault, no refund will be made).

Cancellation, alteration and amendment

27. We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, within a period of 7 days from the date of the quotation, (unless the quotation has been withdrawn).
28. Details of the Goods as described in the clause above (Goods) and set out in our sales documentation are subject to alteration without notice and are not a contractual offer to sell the Goods which is capable of acceptance.
29. The quotation (including any non-standard price negotiated in accordance with the clause on Price (above) is valid for a period of 30 days only from the date shown in it unless expressly withdrawn by us at an earlier time.
30. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation.
31. If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
32. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.

Payment

33. We will invoice you for payment of the Fees either:
    1. when we have completed the Services or delivered the goods; or
    2. on the invoice dates set out in the quotation.
34. You must pay the Fees due within 1 day of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
35. Time for payment shall be of the essence of the Contract.
36. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 8% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.
37. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
38. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you.
39. Receipts for payment will be issued by us only at your request.
40. All payments must be made in British Pounds unless otherwise agreed in writing between us.

Delivery

41. We will arrange for the delivery of the Goods to the address specified in the quotation, or your order or to another location we agree in writing.
42. If you do not specify a delivery address or if we both agree, you must collect the Goods from our premises.
43. Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 8 am to 8 pm.
44. If you do not take delivery of the Goods we may, at our discretion and without prejudice to any other rights:
    1. store or arrange for the storage of the Goods and will charge you for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or
    2. make arrangements for the redelivery of the Goods and will charge you for the costs of such redelivery; and/or
    3. after 10 business days, resell or otherwise dispose of part or all of the Goods and charge you for any shortfall below the price of the Goods.
45. If redelivery is not possible as set out above, you must collect the Goods from our premises and will be notified of this. We can charge you for all associated costs including, but not limited to, storage and insurance.
46. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond our control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
47. We can deliver the Goods by installments, which will be invoiced and paid for separately. Each installment is a separate contract. Any delay in delivery or defect in an installment will not entitle you to cancel any other installment.

Inspection and acceptance of Goods

48. You must inspect the Goods on delivery or collection.
49. If you identify any damages or shortages, you must inform us in writing within 1 day of delivery, providing details.
50. Other than by agreement, we will only accept returned Goods if we are satisfied that those Goods are defective and if required, have carried out an inspection.
51. Subject to your compliance with this clause and/or our agreement, you may return the Goods and we will, as appropriate, repair, or replace, or refund the Goods or part of them.
52. We will be under no liability or further obligation in relation to the Goods if:
    1. if you fail to provide notice as set above; and/or
    2. you make any further use of such Goods after giving notice under the clause above relating to damages and shortages; and/or
    3. the defect arises because you did not follow our oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; and/or
    4. the defect arises from normal wear and tear of the Goods; and/or
    5. the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by you, your employees or agents or any third parties.
53. You bear the risk and cost of returning the Goods.
54. Acceptance of the Goods will be deemed to be upon inspection of them by you and in any event within 1 day after delivery.

Risk and title

55. The risk in the Goods will pass to you on completion of delivery.
56. Title to the Goods will not pass to you until we have received payment in full (in cash or cleared funds) for: (a) the Goods and/or (b) any other goods or services that we have supplied to you in respect of which payment has become due.
57. Until title to the Goods has passed to you, you must (a) hold the Goods on a fiduciary basis as our bailee; and/or (b) store the goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or (c) keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
58. As long as the Goods have not been resold, or irreversibly incorporated into another product, and without limiting any other right or remedy we may have, we can at any time ask you to deliver up the Goods and, if you fail to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.

Sub-Contracting and assignment

59. We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
60. You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.

Change control

61. The Customer may at any time during the term of this Agreement request an increase or decrease in the volume of the Services, a change in the Specification, or the addition of new Services (Change Request) by notifying the Supplier in writing of its requirements.
62. The Supplier shall give due consideration to any Change Request from Customer and shall, within 10 Working Days of receiving a Change Request from the Customer:
    1. confirm its acceptance of the Change Request, without any further variation to the terms of the Agreement, in which case the parties shall execute a variation to the Agreement as soon as reasonably practicable and the Supplier shall implement the Change Request accordingly; or
    2. provide a written proposal for accepting the Change Request, subject to any variation that it reasonably considers necessary to the Services, the Specification or the Service Charges, including any new Services (Change Proposal) agreement date; or
    3. if the Supplier believes it is not reasonably practicable to accept the Change Request, with or without any such variation, provide the Customer with a written statement of its reasons for doing so.
63. Any Change Proposal provided by the Supplier under the above clause shall be based on the Service Charges or, if this is not appropriate, shall be a fair and reasonable quotation for the Change Request
64. The Customer shall give due consideration to the Supplier’s Change Proposal under the clause above and shall within 10 Working Days after receipt of the Change Proposal either give the Supplier a written notice accepting the Change Proposal (subject to or without further negotiation) or rejecting the Change Proposal. If the Customer accepts the Change Proposal, the parties shall as soon as reasonably practicable execute a variation to the Agreement and the Supplier shall implement the agreed variation.
65. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, provided that the Supplier gives the Customer reasonable notice of such changes and that such changes do not materially affect the nature/scope of the Services or the Service Charges.

Termination

66. We can terminate the provision of the Services or goods immediately if you:
    1. commit a material breach of your obligations under these Terms and Conditions; or
    2. fail to make pay any amount due under the Contract on the due date for payment; or
    3. are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
    4. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
    5. convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.

Intellectual property

67. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.

Confidentiality

68. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
    1. where required by law, court order or any governmental or regulatory body;
    2. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
    3. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
    4. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
    5. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.

Non-Solicitation

69. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this Agreement to the expiry of 36 months after the last date of supply of the Services or termination of this Agreement (whichever is the latest), solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Supplier in the provision of the Services.

Liability and indemnity

70. Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
71. Subject to the clauses above on Inspection and Acceptance and Risk and Title, all warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
72. If we do not deliver the Goods, our liability is limited, subject to the clause below, to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
73. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract.
74. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or any goods or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
    1. any indirect, special or consequential loss, damage, costs, or expenses or;
    2. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or
    3. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
    4. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
    5. any losses arising directly or indirectly from the choice of Services or goods and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
75. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
76. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.

Circumstances beyond a party’s control

77. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 180 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions.

Communications

78. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
79. Notices shall be deemed to have been duly given:
    1. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
    2. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
    3. on the fifth business day following mailing, if mailed by national ordinary mail; or
    4. on the tenth business day following mailing, if mailed by airmail.
80. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.

No waiver

81. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.

Severance

82. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).

Law and jurisdiction

83. These Terms and Conditions are governed by and interpreted according to English law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the English courts.