1. Definitions
1.1. “Seller” means CRYPTOCard.
1.2. “Buyer” means the purchaser of software, hardware or services from CRYPTOCard.
1.3. “Contract” means this contract for the supply of Goods formed by the Seller's acceptance (which, however made or communicated, shall be deemed made subject to these Conditions) of the Buyer's order.
1.4. “Goods” means software and hardware supplied by Seller to Customer as a result of this Contract, as set out in the accompanying.
2. Formation of Contract
2.1. All Goods sold by the Seller are sold subject to these Conditions of Sale and any contract into which they are incorporated.
2.2. Terms and conditions on the Buyer's Order Form or other similar document shall not be binding on the Seller and the placing of an order for or the acceptance of the Goods by the Buyer shall indicate unqualified acceptance of these Conditions of Sale.
2.3. No representative, agent or sales person has the Seller's authority to vary, amend or waive any of these Conditions of Sale on behalf of the Seller and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by the Seller.
3. Specifications
3.1. All drawings, photographs, illustrations, dimensions, weights and other technical information and particulars of the Goods and any sample books are given by the Seller in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract.
3.2. Seller shall have the right to make substitutions and modifications of the specifications of the Goods provided that such substitutions or modifications will not affect materially overall performance of the Goods.
4. Orders and delivery
4.1. Orders are accepted by the Seller subject to the availability of Goods for delivery.
4.2. Unless otherwise agreed, delivery of Goods within the UK will be made at the cost of the Buyer to the address specified in the Buyer's order by any method of transportation regarded as suitable by the Seller at its discretion and delivery of Goods destined for export outside the UK will be as stated in the Contract.
4.3. Although the Seller will use all reasonable efforts to meet delivery dates, it shall not be liable to the Buyer for any loss or damage, whether direct, indirect or consequential if it is delayed or prevented, in whole or in part, from delivering the Goods.
4.4. If the Buyer refuses or fails to take delivery of the Goods on the date of delivery, the Seller will be entitled at its discretion to store the Goods at the risk of the Buyer and the Buyer shall in addition to the price payable for the Goods pay all costs and expenses of such storage and any additional costs of carriage incurred.
4.5. The Seller reserves the right to deliver in instalments at its discretion.
4.6. All Goods must be inspected by the Buyer immediately on delivery. If any Goods are damaged or lost or if there has been short delivery, the Buyer must endorse the consignment note accordingly and submit a detailed written claim to the carrier within 3 days of delivery of the Goods and supply a copy of such claim to the Seller within 7 days of delivery of the Goods.
5. Payment
5.1. The Buyer shall make payment for the Goods on or before the 30th day following the date of invoice.
5.2. If the Buyer does not make the payment when due then the Seller may, without prejudice to its other rights, charge interest at an annual rate of 2 per cent above the current base rate of the Bank of Scotland, calculated on a day-to-day basis on the balance outstanding until the Buyer makes payment in full.
5.3. The Buyer shall not purport to set off or withhold any payments claimed or due to the Seller under this or any other contract.
6. Support and Maintenance Services
6.1. Support and Maintenance agreements will renew annually on the payment of appropriate fees by the Buyer.
6.2. An Support and Maintenance contract will provide you with:
· Telephone and email support for trouble calls answered normally within two hours and in no case over four hours.
· Updates of CRYPTO-Shield software (maintenance releases and software point upgrades) as well as discounted upgrades to new software releases and access to documentation and updates.
6.3. Seller shall support at least the release immediately prior to the then current Version of the Software. CRYPTOCard will provide support only for supported versions of the software.
6.4. If technical support is not renewed, the Contract will lapse, other than those clauses with an express longer term. For the avoidance of doubt, the limited hardware warranty will lapse if the Contract has lapsed.
7. Risk
7.1. Except as otherwise provided in these Conditions, the risk of loss or damage to the Goods shall pass to the Buyer upon delivery of the Goods in accordance with clause 4 of this schedule.
8. Ownership
8.1. Title to the Proprietary Rights embodied in the Licensed Software shall remain in and be the sole and exclusive property of CRYPTOCard and its licensors.
9. Warranty
9.1. The Seller provides limited warranties for its hardware and software, available at any point from: http://www.cryptocard.com
9.2. Except for these, there are no warranties, express or implied, of merchantability or of fitness for a particular purpose, or of any other kind except as to title. In particular, all conditions and warranties which would otherwise be implied by statute or under the common law are hereby excluded. In some territories, additional rights are given to consumers and so parts of the above limitation may not apply.
10. Third Party Intellectual Property Rights
10.1. CRYPTOCard shall indemnify, keep indemnified and hold the Buyer harmless against any and all damages, costs, claims and expenses (including reasonable legal costs) which the Buyer incurs or becomes liable for as a result of any infringement of third party intellectual property rights through the possession or use by the Buyer of the Goods
10.2. The indemnity in clause 10.1 will not apply to the extent that the relevant infringement results from:
· any act or omission of the Buyer contravening these terms and conditions;
· the modification of any component of the Goods without the consent of CRYPTOCard;
· failure to use updated or replacement Goods the use of which would have avoided the infringement (provided they were supplied by CRYPTOCard in good time so as to avoid the infringement and they were of the same or better specification to the original Goods);
· failure to comply with the terms of any third party licence agreement applying to the use of any software.
10.3. In relation to any claim by a third party to which any of the indemnities in clause 10.1 relates, the party claiming the indemnity shall:
· at the indemnifying party's request and expense, allow the indemnifying party to conduct the defence of the claim (including settlement);
· make no admission in relation to the claim without the prior consent of the indemnifying party;
· notify the indemnifying party as soon as is reasonably practicable of the claim;
· at the expense of the indemnifying party, co-operate and assist to a reasonable extent with the indemnifying party's defence of the claim;
· use its reasonable efforts to mitigate its losses to the fullest extent reasonably possible.
11. Liability
11.1. Neither Seller’s nor Buyer’s liability for the following is excluded or limited by any contract, even if any other term of such contract would otherwise suggest that this might be the case:
· for death or personal injury caused by the party's negligence or the negligence of the party's employees or agents;
· under any express indemnities contained in clause 10.1
11.2. Neither buyer nor Seller accepts any liability under or in relation to any contract or its subject matter (whether such liability arises due to negligence, breach of Contract, misrepresentation or for any other reason) for any:
· loss of profits, sales, turnover, contracts, Customers, wasted management or other staff time;
· loss of or damage to business or reputation;
· loss of, or loss of use of, any software or data;
· loss of use of any computer or other equipment or plant;
· losses or liabilities under or in relation to any other contract; or
· indirect, special or consequential loss of damage; and for the purposes of this clause the term "loss" includes a partial loss or reduction in value as well as a complete or total loss.
11.3. WITH THE EXCEPTION OF CLAUSE 10.1 THE LIABILITY OF EACH PARTY ARISING FROM OR IN CONNECTION WITH THE CONTRACT AND IN RELATION TO ANYTHING WHICH THE PARTY CONCERNED MAY HAVE DONE OR NOT DONE IN CONNECTION WITH THE CONTRACT (AND WHETHER THE LIABILITY ARISES BECAUSE OF BREACH OF CONTRACT, NEGLIGENCE OR FOR ANY OTHER REASON) SHALL BE LIMITED TO ONLY DIRECT DAMAGES UP TO THE PRICE PAID BY THE BUYER IN RELATION TO THIS CONTRACT. NO OTHER DIRECT DAMAGES CAN BE RECOVERED, OR ANY CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES. THE ESSENTIAL PURPOSE OF THIS CLAUSE IS TO LIMIT THE LIABILITY OF CRYPTOCARD;
11.4. Clause 11.3 applies even if CRYPTOCard knew or should have known about the possibility of the damages.
11.5. CRYPTOCard will not be liable under any contract for breach of any of its terms (even where any other term of such contract might suggest otherwise) to the extent that the breach concerned arises from:
· use of any Goods other than in accordance with normal operating procedures as described in the documentation or as otherwise notified to the Buyer by CRYPTOCard;
· any alterations to any Goods made by anyone other than CRYPTOCard or someone authorised by CRYPTOCard;
· any act or omission by the Buyer that is in breach of the relevant Contract or any other illegal or unlawful act or omission of the Buyer;
11.6. Some territories do not allow the exclusion or limitation of incidental, consequential or other damages. In those specific cases some parts of clause 11.3 may not apply.
12. Confidentiality
12.1. Each party shall keep confidential any confidential information disclosed to it by the other. This includes any information which is marked as being confidential or which, from its nature, content or the circumstances in which it is provided, might reasonably be supposed to be confidential. For the avoidance of doubt, this includes information within this contract, such as pricing. Neither party shall disclose any such information to anyone else except to:
· anyone who the Contract says the information may be disclosed to;
· those of their employees who need the information in order to enable the party concerned to carry out any of its obligations under the Contract or exercise any of its rights under the Contract;
· their auditors or lawyers; and
· any temporary staff, contractors or consultants working for the relevant party, provided that disclosure of the information is necessary in order to enable the person to whom it is disclosed to carry out the work concerned.
12.2. Each party shall be responsible for ensuring that any person to whom information is disclosed by them complies with any conditions of confidentiality applying to the information concerned under the Contract.
12.3. The obligations of confidentiality set out in clause 10.1 do not apply to any information:
· that is generally available to the public, unless this availability results from a breach of these terms;
· that the party receiving the information already possesses or which it obtains or originates independently in circumstances in which that party is free to disclose it to others;
· that is required to be disclosed by any court or tribunal that is authorised to order its disclosure.
12.4. If either party wishes to disclose any confidential information belonging to the other party, then the other party may require that prior to the disclosure taking place the person to whom it is to be disclosed enters into a confidentiality agreement directly with the other party.
12.5. This clause 12 will survive termination of the Contract.
13. Title and lien
13.1. The Seller shall retain title to and ownership of the Goods until it has received payment in full of all sums due for all Goods supplied to the Buyer. If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
13.2. If the Buyer fails to make any payment to the Seller when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or if the Seller has reasonable cause to believe that any of these events is likely to occur, the Seller shall have the right, without prejudice to any other remedies:
· to enter without prior notice any premises where Goods owned by it may be, and to repossess and dispose of any Goods owned by it so as to discharge any sums owed to it by the Buyer under this or any other contract;
· to require the Buyer not to resell or part with possession of any Goods owned by the Seller until the Buyer has paid in full all sums owed by it to the Seller under this or any other contract;
· to withhold delivery of any undelivered Goods and stop any Goods in transit.
13.3. Unless the Seller expressly elects otherwise, any contract between it and the Buyer for the supply of Goods shall remain in existence notwithstanding any exercise by the Seller of its rights under this clause 13.
13.4. The Goods shall, once the risk has passed to the Buyer in accordance with clause 7 or otherwise, be and remain at the Buyer's risk at all times unless and until the Seller has retaken possession of them, and the Buyer shall insure accordingly.
14. Regulations and labelling
14.1. The Buyer shall be responsible for compliance with all relevant laws and regulations and for obtaining and maintaining at its expense any necessary import or export licences, customs clearance, exchange control consent or other authorisations and permits whatsoever and the Buyer shall ensure that the Goods are at all times labelled in such a way as to ensure the safety which a person is entitled to expect from the Goods.
15. Waiver
15.1. The failure by either party to insist upon the strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Party’s right to enforce such provision later.
16. Severability
16.1. If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
