Terms and Conditions of Sale of Goods and Services
1.1 In these terms and conditions “Goods” includes the supply of products and services in accordance with the provisions hereof and “Delivery” includes performance of services as the context may admit. “Order” means an order accepted by the company and includes contracts to provide products and services and also authorised amendments to an order. “Price” includes payment for products and/or services according to materials used or supplied, time expended or on any other basis than fixed price.
1.2 Estimates or quotations are based on an invitation to treat only and are valid for 30 days No order will become effective until it is accepted or confirmed on behalf of the company. Such accepted or confirmed order(s) will then comprise the Company’s entire agreement with the buyer and merge all prior discussions, quotations and offers.
1.3 These terms and conditions exclude any other terms and conditions which a buyer might seek to impose even though such other terms and conditions may have been submitted in an earlier or later document.
1.4 Company means Progeny Ltd trading as Progeny Access Control. Buyer means the person, firm or company ordering the products and services from Progeny Ltd. Contract means the contract for sale and purchase of the products or services of the system and/or the licensing of software made between Progeny Ltd and the buyer.
Amendments to Order
Amendments to orders are only valid if expressly agreed in writing and signed by the company’s duly authorised representative.
2.1 If any information supplied by or on behalf of the buyer is insufficient, incorrect, inaccurate or misleading or if the buyer notifies the company of any change of requirements in relation to any order after acceptance thereof by the company the company shall be entitled to amend the price, the terms of payment and the delivery date or delivery schedule as in the circumstances the company shall consider fair and reasonable. The company shall as soon as practicable notify the buyer in writing of such amendments In particular all wasted journeys undertaken by the company as a consequence of such information or notification shall be charged to the buyer at net cost of labour and transport.
2.2 Any variation or amendment requested by the buyer will only be valid and binding on the company when subject to a revised order relating to the order duly placed upon and accepted by the company in writing signed by a duly authorised representative. Any revised order will be subject to appropriate adjustment in price, delivery dates and other matters related to the order.
3.1 The company will endeavour to make delivery at the time and in the manner specified in the order but any delivery date given is an estimate only. Under no circumstances shall the company be penalised in any way for later delivery and the company will inform the buyer as soon as is practicably possible any delay or issue affecting the original specified delivery date. Delivery may be made by instalments if the company so requires.
3.2 If in the company’s opinion any part of the products or services is usable by the buyer independently of other parts of the order the company shall be entitled to deliver and to be paid for such part alone in the event of the whole of the goods not being immediately available.
3.3 Unless otherwise stated in the order, delivery of goods and services shall be at buyer’s premises or as specified in the order.
3.4 Where the Company has undertaken to install the goods the buyer shall at its expense provide all such installation space, environment, power points and other facilities as the company shall have specified in the order or shall at any time reasonably require and any failure to do so shall be deemed a failure to accept delivery.
Amendments to Price
The Price, delivery dates or other terms relating to any products or services specified in the order are based upon the company’s assessment of materials, labour and third party bought in prices from manufacturers and are subject to revision in respect of any increased cost to the company. In these circumstance the company shall give notice of any such intended revision and the buyer may within 2 days of receiving notice cancel the order if the price or delivery time would increase by more than 20% in which case neither party shall be liable to the other except that the company shall be entitled to payment for the work it has done on a time and materials basis in progressing the order to that point and this will be charged at its usual rates.
Liabilities and Indemnities
5.1 All goods will be carefully inspected before delivery to ensure freedom from defects and general compliance with the order. The company undertakes to repair or replace at its discretion, free of charge, any component part of the Goods which fails due to an inherent defect within a period of 12 months from the date of sale unless ( or any other period published in the Company’s sales literature from time to time), provided that in the case of parts not manufactured by the company the company shall only be liable to the extent of guarantees given to the company by its suppliers and subject to the compliance by the buyer with all its obligations and undertakings in clause 5.6.6 and the other terms and conditions herein.
5.2 The company shall have the right whether before or after the date of the Order to alter the specification of the products or services or any part thereof without notice to the buyer provided that such alteration shall not adversely affect the performance of the products and services and for the avoidance of doubt it is agreed that the sale and purchase shall not be a sale and purchase by sample.
5.3 The buyer must examine the goods immediately upon delivery and within 7 days thereafter notify the company in writing of any defects and return any allegedly defective part or parts of the goods to the company. The company shall direct at the buyers expense within 18 days of delivery and the buyer will pay to the company the costs of any tests carried out to such part or parts (such cost to be certified by the company) together with costs of return thereof to the buyer in the event that no liability attaches to the company in respect of defects. In default the buyer will be deemed to have examined and accepted the goods.
5.4 In relation to components parts bought in from outside manufacturers the company will use all reasonable endeavours to allow the buyer the benefit of such rights against the manufacturers as the company may have.
5.5 The company shall not be liable for any loss or damage caused by or resulting from any variation (for whatever reason) in the specifications or technical data of any such outside manufacturer or for any loss or damage arising out of curtailment or cessation of supply following such variation.
5.6 Unless described or set out in the order in the absence of specific written agreement signed by the company’s duly authorised representative the following applies:
5.6.1 The buyer accepts that he is not relying upon the company’s judgement as to the fitness of the goods for any specific purpose of the buyer.
5.6.2 The buyer accepts that he is not placing an order in reliance upon any promise, representation or inducement on the part of the company.
5.6.3 The company shall not be liable for any consequential loss or loss of profit howsoever arising (including by negligence) to the buyer the buyer’s staff or any third party.
5.6.4 The company shall not be liable for any loss, expense or damage howsoever arising (including by negligence) to any property of or furnished by the buyer and the buyer must insure itself adequately in this eventuality.
5.6.5 The company shall not be liable and the buyer shall indemnify and hold the company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly by or arising from the use or operation (otherwise than by the company) or possession of any part of the goods and from negligence (including the use of any part of the goods otherwise than in accordance with the company’s operating instructions and manuals) or default (including any non-compliance with any obligation imposed by these terms and conditions or any delay, wrong information or lack of required information) or misuse by or on the part of the buyer or any person or persons other than the company and this indemnity shall extend to any costs and expenses incurred by the Company and shall continue in force notwithstanding the termination of any agreement between the buyer and the company.
5.6.6 Until the expiry of any warranty period granted by the company or until the payment in full by the buyer of all monies whichever shall be the later:
18.104.22.168 The company’s representative shall have a full and free right of access to the goods and services.
22.214.171.124 The buyer shall only permit duly authorised representatives of the company to effect replacement of parts, maintenance and repairs to the products.
126.96.36.199 The buyer shall properly maintain the installation space and environment for the products and services so as to comply with the company’s specifications.
188.8.131.52 The buyer shall use with the products only such operating supplies as shall comply with the company’s specifications.
184.108.40.206 the buyer shall permit operation of the products only by such operators as shall be competent and conversant with the products and the buyer shall not permit any addition or attachment to or movement of any item or part of the products or purport to assign or transfer its interest under any agreement between the buyer and the company.
220.127.116.11 The buyer shall on request enter into the company’s standard form of Health and Safety Undertaking.
5.7 The buyer shall conform to all instructions and labelling prescribed by the company in relation to the Consumer Protection Act 1987 or other health and safety legislation. Where the company incurs any liability whether by court proceedings or by a bona fide out of court settlement as a result of a claim against the company in respect of an alleged defect in the goods then the buyer shall indemnify the company against all liability and all related works and expenses (except to the extent the company would be liable to indemnify the buyer in respect thereof under these terms and conditions)
5.8 Each exclusion or limitation of liability in this clause 5 or any sub clause or paragraph thereof:
5.8.1 Shall be construed as separate, distinct and severable.
5.8.2 Shall not apply to direct claims for death or personal injury arising from the company’s negligence as defined in the Unfair Contract Terms Act 1977 but the buyer shall have no claims to indemnity in respect of and shall fully indemnify the company, its employees agents and representatives against any claims by third parties (and all related costs and expenses) in respect of death or personal injury (save that the company otherwise accepts liability therefore).
The buyer covenants with the company that it shall forthwith notify the company of any allegation of infringement of any patent, registered design, trade mark, copyright or other intellectual property right enjoyed by the company or by the manufacturer or supplier of the products or services or any part thereof.
The buyer warrants that any design or instruction furnished or given by it does not infringe any patent, registered design, trade mark, or copyright or any such right or interest.
8.1 Carriage charges, VAT and all indirect taxes, duties and levies, customs and import duties are, unless otherwise specified, are payable in addition to the price quoted in our price lists or as detailed on the order.
8.2 Any sums paid by deposit, retainer or prepayment are not in any circumstances returnable.
8.3 Unless otherwise provided in the order the company will invoice monthly in arrears.
8.4 Payment in full shall be due to the company 30 days after the date of the company’s invoice and is the essence of the contract.
8.5 The time sheets maintained by the company shall be conclusive.
8.6 If the buyer (being a company) enters into administration liquidation or receivership or (being an individual) becomes bankrupt or in either case makes any arrangement with his creditors or commits a material or serious breach of this agreement (and in the case of such a breach being remediable fails to remedy it within 7 days of receiving notice to do so) he will be deemed to have repudiated the contract.
8.7 Interest is payable at 2% per month or part thereof on any late payment.
8.8 The company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.
9.1 All information supplied by the company in any form (other than information in the public domain) is supplied in confidence and must not be used by the buyer for any other purpose than the order and must not be disclosed to any other party without the company’s express written consent and then only on conditions equivalent to this condition and with an express notification that the information was provided for the buyer only and is not intended to be relied upon by any other party.
9.2 The company may use its connection with the buyer in its advertising of its products and services.
Assignment and Sub Contracting
The company may assign or sub contract such part or parts of any order as it sees fit.
Title and Risk in Goods
11.1 The title in products and services supplied shall not pass from the company to the buyer until the later of delivery and receipt by the company of payment in full of all sums due or owing from the buyer to the company on any account. Until title shall have passed the products and services shall be held in trust for the company and shall be marked as the property of the company stored separately not incorporated into any larger assembly or system or disposed of or used in any way by the buyer. If the buyer defaults in the punctual payment of any sum owing to the company then the company shall be entitled to the immediate return of all products sold by the company to the buyer in which the title has not passed to the buyer and the buyer hereby irrevocably authorises the company to recover the products and enter any premises of the buyer for that purpose
11.2 The risk in the products supplied shall pass to the buyer on delivery at the company’s works immediately prior to loading onto appropriate transport but if the buyer fails to accept delivery by loading onto such transport when required so to do by these terms and conditions the risk shall pass at the time the buyer was obliged to accept delivery by such loading. As soon as the risk passes to the buyer he shall keep the products insured in the amount at which the products and other mixed or incorporated products were sold to the buyer against all insurable risks. Any sums paid by such insurance prior to the products being paid for in full and all other accounts being paid to the company by the buyer shall be paid to the company to the extent of the outstanding price.
Buyers Property and Premises
12.1 Without prejudice to the company’s rights under clause 2.1 all materials, tools, jigs fixtures, drawings, artwork, specifications, samples and property provided by the buyer of whatever nature (“Buyer’s Property”) shall be correct and accurate and satisfactory in all respects and the buyer shall indemnify and save harmless the company from any damage flowing from breach of the buyer’s obligations under this condition and from any liability and expense howsoever (including from negligence) arising from any injury or damage to any third party caused by any buyer’s property.
12.2 The buyer shall fully indemnify the company, its employees, agents and representatives against any loss, damage, injury or liability howsoever (including from negligence) and any expense incurred in connection therewith arising to any of the same or to any third party as a result directly or indirectly of the company carrying out any work at the buyer’s premises or with equipment loaned by the buyer.
Until the company has received payment in full for any products or services provided, from the buyer the company shall have a general and specific lien on the entire buyer’s property in the possession or control of the company for all monies due to the company from the buyer.
Matters Beyond Company’s Control
The company shall not be liable for any loss, damage or expense howsoever arising from any delay or failure of performance arising from circumstances beyond its control; including but not limited to earthquake, flood, storm, act of God, or of public enemies, national emergency, invasion, insurrection, riots, strikes, picketing, boycott, interruption of services rendered by any public utility, or interference from any government agency or official.
This agreement shall in all respects be governed by and construed in accordance with the laws of England and Scotland. The buyer submits to the jurisdiction of the English and Scottish courts.
Separate section on Software
The Buyer agrees and acknowledges that Progeny Ltd or the licensor of the Software have and shall retain all right, title and interest including copyright and any other intellectual property rights in an to the Software and the Buyer shall obtain only such rights as are specifically provided or referred to in the Conditions, the Special Conditions, or in any specific software licence agreement.
9.2 If Progeny Ltd informs the Buyer provide that a specific software licence agreement relating to the software applies to the Buyer shall enter into such agreement as a condition of delivery.
9.3 In the absence of any such agreement, supply of the Software to the Buyer as an end user shall be deemed to confer upon the Buyer an on-exclusive non-transferable paid up licence or sub-licence from Progeny Ltd or the licensor of the Software (as appropriate) to use the Software and Documentation only on or with conjunction with the System upon and subject to these Conditions and in particular the following Conditions 9.4 to 910
9.4 Progeny Ltd shall supply the Buyer with a single copy of the Software in machine readable form and the Buyer shall not make or cause to be made any copy, reproduction, translation, adaptation, variation, version or modification of the Software (other than copies for back-up use and archival purposes) without prior written consent of Progeny Ltd.
9.5 The Buyer shall keep the Software and the rest of the documentation and all and any copies of the Software and the rest of the Documentation in whatever form at all times within its own control and shall take all steps as necessary to ensure that such materials do not come into other hands whether by loan or theft or otherwise.
9.6 No right or licence granted to the Buyer in respect of the Software shall be assigned, sub-licensed or transferred or otherwise dealt with in any way without the prior consent of Progeny Ltd.
9.7 All and any rights and licenses granted to the Buyer in respect of the Software (and any other software supplied by Progeny to the Buyer) shall terminate automatically without the need for notice on the part of Progeny in the event of the termination of the Contract for any reason.
9.8 Should the Buyer fail to comply with any of the Conditions or any Special Conditions or agreements relating to the Software or to the rest of the Documentation (and if capable of remedy fail to rectify such non-compliance within 30 days of written notice of it) or upon the occurrence in relation to the Buyer of any of the events specified in Condition 11.1 (b) then (and in any such case) Progeny Ltd reserves the right to give written notice to the Buyer terminating all and any rights and licences granted to the Buyer in respect of the Software (and any other software supplied by Progeny to the Buyer with immediate effect).
9.9 In the event of termination of the rights and licences granted to the Buyer in respect of the Software howsoever rising, the Buyer shall return to Progeny Ltd or destroy (as Progeny Ltd shall direct) the Software, the Documentation and all copies (in whole or in part) of the Software and (where required by Progeny Ltd) certify that to the best of its knowledge all such copies have been returned or destroyed.
9.10 Supply of the Software to the Buyer when not an end user shall not confer on the Buyer any right, licence or interest in the Software and the Buyer shall not supply the System or Software to any person without first obtaining from that person a signed software licence agreement in the form required by Progeny Ltd and condition 10.4 shall also apply. Conditions 9.5 and 9.9 (in the case of termination of the Contract) shall apply to Software and Documentation in the Buyer’s possession.