TERMS AND CONDITIONS
1.1 In these Conditions, unless the context requires otherwise, the following words and expressions shall have the following meanings:
Associated Company means any subsidiary or holding company of Valbrio or any subsidiary of any such holding company;
Business Day means Monday to Friday excluding any statutory, public or bank holiday in England and Wales;
Conditions means these Valbrio standard terms and conditions as the same may be varied from time to timepursuant to Clause 2.2, a copy of which appears on the Valbrio Website;
Confidential Information means all information in any medium or format (whether marked “confidential” or not) which either Party receives from the other Party directly or indirectly or from any other person concerning these Conditions or any Contract including without limitation, any information relating to the business, trade secrets, customers, suppliers, products, processes, know-how, plans or intentions, product information, market opportunity, operations and/or affairs of the disclosing Party or any companies in its group;
Contract means an agreement between Valbrio and a Customer for the supply of Products and/or Services made via an Order as more particularly described in Clause 5.3;
Customer means the person whose details are set out in each Order;
Customer Assets means the assets, equipment, tools, materials and data (including, Intellectual Property Rights subsisting in the same) which are owned by or leased, licensed or sub-licensed to the Customer and which are made available to Valbrio to perform any obligations under a Contract;
Delivery Date means the estimated date of delivery of the Products and/or commencement of the Services, which may be set out in a Contract, or if not, communicated by Valbrio to the Customer;
Force Majeure Event means any of the following cause or causes beyond the affected Party’s reasonable control and unable reasonably to be planed for or avoided including act of God, act of civil or military authority, civil commotion, malicious damage, national emergency, war, insurrection, terrorism or strike or other industrial action including Supplier strikes, lock outs and labour disputes, accident, fire, flood or severe weather conditions;
General Industry Standard Norms means the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced supplier or operator engaged in a similar undertaking to Valbrio under the same or similar circumstances;
Goods means the computer equipment to be supplied to a Customer under a Contract and where relevant includes any documentation supplied to aid use of such equipment;
Intellectual Property Rights means trade marks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including, without limitation, copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
Loss means a loss, cost, damage, fine, charge, expense or other liability (including legal and other professional fees) and Losses shall be construed accordingly;
Order means a request by the Customer to purchase those Products and/or Services specified therein;
Party means either Valbrio or the Customer and Parties shall be construed accordingly;
Premises means the premises where the Products are to be delivered or installed;
Price means the price for the supply of the Products and/or the provision of the Services contained in each Contract;
Products means collectively the Goods and the Software, or any part of them described in the relevant Order;
Services means the services which Valbrio is to supply to the Customer under the Contract and in accordance with these Conditions;
Supplier means a third party manufacturer and/or licensor of a Product;
Software means the software to be licensed to the Customer;
Valbrio means Valbrio Limited, a company registered in England and Wales whose registered office is located at The Beehive, Beehive Ring Road, London Gatwick Airport, Gatwick, RH6 0PA with registered number: 10781618 and VAT Number: GB 269200703; and
Valbrio Website means www.valbrio.com.
1.2 In these Conditions and each Contract, references to:
(a) the clause headings are for ease of reference and shall not affect its interpretation;
(b) a subsidiary or holding company shall have the meanings ascribed to them by section 1159 of the Companies Act 2006; and
(c) any statutory provision shall be construed as including reference to a statutory provision as modified, consolidated or re-enacted from time to time whether before or after the date of these Conditions.
1.3 The clause headings in these Conditions are for ease of reference and shall not affect its interpretation.
1.4 Except where the context otherwise requires, words denoting the singular include the plural and vice versa, words denoting any one gender include all genders, and any reference to a person shall include a body corporate, unincorporated association of persons (including a partnership, joint venture or consortium) government, state, agency, organisation, and any other entity whether or not having separate legal entity.
1.5 References to any Party in these Conditions shall include its lawful successors in title and permitted assigns.
1.6 The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2.1 Subject to Clause 5.6, these Conditions shall apply to all Products and/or Services ordered by the Customer.
2.2 Valbrio shall be entitled to vary these Conditions from time to time without notice and any such variation shall be binding on the Customer with effect from the date on which these Conditions, as set out on the Valbrio Website, are updated to reflect the relevant variation. It shall be the Customer’s responsibility to visit the Valbrio Website periodically for the purpose of familiarising itself with the then current Conditions.
3 Information about Products and Services
3.1 All samples, drawings, descriptive matter, specifications and advertising which are issued by Valbrio and any descriptions or illustrations contained in any of Valbrio’s catalogues or on its website are issued or published for the sole purpose of giving the Customer and other businesses a general idea of the Products and Services. Although Valbrio makes every effort to ensure that information about the Products and Services is correct, sometimes it may be incomplete, out of date or inaccurate. In particular, some details, such as colour and dimensions, may not be a true representation and are subject to change without notice, and Valbrio reserves all of its rights in this regard.
3.2 If the Customer wishes to rely on a particular piece of information about the Products or Services then it must let Valbrio know in writing prior to doing so. If Valbrio is happy for the Customer to rely on a particular piece of information about the Products or Services then one of Valbrio’s directors will confirm this to the Customer in writing; in no other circumstances may the Customer rely on a particular piece of information about the Products or Services, make a claim against Valbrio or cancel an Order based on information given to it about the Products or Services, any sample or the suitability of the Products or Services for a particular purpose.
4.1 All quotations and offers made by Valbrio to the Customer about the sale of Products and the provision of Services
are subject to these Conditions.
4.2 All quotations and offers made by Valbrio are made on an “invitation to treat” basis only. This means that Valbrio is not obliged to sell Products or provide Services to the Customer on the quotation or offer until, and only to the extent that, those terms are agreed as part of a binding Contract. Each offer or quotation made by Valbrio shall lapse automatically 30 days after it is made.
5.1 To place an order with Valbrio for the purchase of Products the Customer shall provide Valbrio with, as a minimum,
the description and number of the Products it wishes to order.
5.2 To place an order with Valbrio for the provision of Services, the Customer shall provide Valbrio with, as a minimum, the description of the Services required, the amount or volume of Services required, the location at which the Services are to be provided and the duration for which those Services are required.
5.3 A separate agreement for the Products and/or Services on these Conditions, together with any additional terms expressly agreed in writing by the Parties to be an addition to these Conditions, shall come into force on the date on which each Order is accepted by Valbrio (Contract). No Order shall be binding on or deemed to be accepted by Valbrio unless and until Valbrio issues a written confirmation to the Customer accepting the Order.
5.4 Subject to Clause 5.6, in respect of each Order and Contract, these Conditions shall apply to all supplies of Products and/or Services by Valbrio to the exclusion of any terms and/or conditions contained or referred to in any purchase order, invoice or other documentation submitted by the Customer or in correspondence or implied by trade or custom or course of dealing (whether or not in conflict with or additional to these Conditions).
5.5 To the extent that any of the terms agreed and set out in a Contract (including any Order) are inconsistent with these Conditions, these Conditions will prevail.
5.6 These Conditions shall not apply to any Products and/or Services ordered by the Customer which the Parties intend to be supplied under a written bespoke framework agreement to be agreed between the Parties.
6.1 The Customer may cancel or modify an Order at any time before it is accepted by Valbrio.
6.2 The Customer may not cancel or modify an Order that has been accepted by Valbrio unless:
(a) it notifies Valbrio in writing that it wishes to modify or cancel the Order; and
(b) one of Valbrio’s directors has agreed in writing to that modification or cancellation; and
(c) if the Customer wishes to cancel that Order, it pays all costs incurred by Valbrio up to the date of cancellation.
7.1 Valbrio shall use its reasonable endeavours to deliver the Products to or perform the Services at the delivery destination specified in the Contract on the relevant Delivery Date or to deliver the Products or perform the Services at such other delivery location as may subsequently be advised in writing by the Customer to Valbrio. Delivery of the Products shall be completed on the Products’ arrival at the delivery destination specified in the Contract or to such other delivery location as may subsequently be advised in writing by the Customer to Valbrio.
7.2 Any dates and times quoted for delivery of the Products or performance of the Services are approximate only. Valbrio shall use its reasonable endeavours to meet such delivery or performance dates but subject to Clause 7.3, provided it uses reasonable endeavours, Valbrio shall not be liable for any loss, damage, cost or expense caused directly or indirectly by any delay in the delivery of the Products or performance of the Services however caused. Time for delivery shall therefore not be of the essence unless previously agreed by Valbrio in writing. The Products may be delivered and/or the Services may be performed by Valbrio in advance of the Delivery Date upon giving reasonable notice to the Customer.
7.3 Notwithstanding Clause 7.1, if Valbrio fails to deliver the Products or perform the Services within thirty (30) days of the Delivery Date, the Customer shall be entitled to terminate the Contract in respect of those Products and/or Services and Valbrio’s liability, however arising as referred to in Clause 20.7, shall be limited to a credit of the price due for those Products not delivered and/or those Services not performed. In no circumstances shall Valbrio have any further liability to the Customer in damages or otherwise for non-delivery or late delivery of the Products or non- performance or late performance of the Services.
7.4 Any claims by the Customer for damages to the Products or for late delivery of or for shortage in delivery of the Products must be notified to Valbrio in writing within 48 hours of the Delivery Date or the actual delivery date.
7.5 Where the Products are to be delivered and/or the Services are to be performed in instalments, each instalment shall constitute a separate contract and each delivery of the Products and/or performance of the Services shall be invoiced and paid for separately. Any failure by Valbrio to deliver one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more of the instalments shall not entitle the Customer to cancel any other instalment or treat the Contract as a whole as repudiated.
7.6 If the Customer refuses or fails to take delivery of any of the Products (or any instalment), the Customer shall, without prejudice to any other rights that Valbrio may have, pay all reasonable costs of storage and any other reasonable additional costs incurred by Valbrio as a result of such refusal or failure (including insurance).
7.7 Valbrio shall not be liable for any late delivery of the Products and/or late performance of the Services or for any failure to deliver the Products and/or perform the Services to the extent that such failure is caused by a Force Majeure Event or any act or omission of the Customer or the Customer’s employees, agents and/or contractors or the Customer’s failure to provide Valbrio with adequate delivery instructions or any other instructions that are relevant to the supply of the Products and/or Services.
8 Risk and Title
8.1 Risk of damage to or loss of the Products shall pass to the Customer upon delivery to the Customer (whether delivered to the Customer or to a third party at the Customer’s direction) and the Customer shall be responsible for insuring the Products thereafter.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provisions of these Conditions, title to the Goods shall not pass to the Customer until Valbrio has received in cash or cleared funds payment in full of:
(a) the price of the Goods and any additional costs including any applicable value added tax or other applicable tax; and
(b) the price of all other goods/products agreed to be sold by Valbrio to the Customer for which payment is then due.
8.3 For clarity, title to the Software and all documentation relating to the Software shall remain with Valbrio at all times. The licence to use the Software may be terminated if Valbrio has not received in cash or cleared funds payment in full of:
(a) the price for the licence of the Software including any applicable value added tax or other applicable tax; and
(b) the price of all other goods/products agreed to be sold by Valbrio to the Customer for which payment is then due.
8.4 Notwithstanding title in any Goods passing to the Customer, Valbrio shall retain the right to maintain an action for the price of the Goods.
8.5 Until such time as title in the Goods passes to the Customer, the Customer shall:
(a) hold such Goods as Valbrio’s fiduciary agent and bailee;
(b) keep the Goods separate from those of the Customer and other third parties so that they remain readily identifiable as Valbrio’s property;
(c) not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Goods;
(d) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(e) not dispose of or deal with the Goods or any documents of title relating to them or any interest in them, except that the Customer may without prejudice to paragraph 8.5(a), on its own account use and sell the Goods in the ordinary course of its business on the understanding that the proceeds of sale belong to Valbrio; and
(f) maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
(a) payment becomes overdue; or
(b) the Customer is in breach of any of its obligations under Clause 8.5; or
(c) Valbrio exercises any right to terminate the relevant Contract; or
(d) any event referred to in Clause 16.1(b) occurs or Valbrio reasonably believes that such an event is about to occur and notifies the Customer,
then Valbrio shall be entitled upon demand to the immediate return of all the Products which remain in the ownership of Valbrio pursuant to Clauses 8.2, 8.4and 8.5 and, if the Customer fails to do so promptly, Valbrio shall be entitled (without prejudice to any other legal remedies which it may have) to enter the Premises or any other place of, or under the control of, the Customer, without notice to the Customer and remove the Products at any time. Demand for, or recovery of, the Products shall not of itself discharge the Customer’s liability to pay the whole of the Price or any other rights of Valbrio under the Contract.
9 Acceptance of Products
9.1 Valbrio recommends that the Customer checks that the Products sold to it conform with the relevant Contract at the
time at which those Products are delivered to Valbrio.
9.2 Signature on the proof of delivery note on delivery shall be conclusive proof that the Products packaging has not been damaged or tampered with whilst the Products have been at Valbrio’s risk (except to the extent that anything to the contrary is clearly marked on the proof of delivery note).
9.3 Without prejudice to Clause 9.2, if the Customer does not receive all of the Products or discovers, on inspection, that any of the Products do not conform to the terms and conditions set out in these Conditions or the Contract then the Customer shall promptly notify Valbrio of this in writing within three days of the date of delivery of the Products. If no such notification is received by Valbrio within this period then the Customer will be deemed to have accepted that:
(a) it has received the correct quantity of Products;
(b) the Products are free from damage; and
(c) the Products conform to the terms and conditions set out in these Conditions and the Contract.
9.4 If the Customer notifies Valbrio that it has not received all of the Products ordered then it (that is, the Customer) shall promptly provide Valbrio with reasonable evidence supporting its claim. If Valbrio accepts the Customer’s claim then
it shall, by way of full and final settlement of all Valbrio’s obligations and liabilities to the Customer in relation to that claim, and at Valbrio’s sole discretion, either:
(a) credit the Customer’s trading account with an amount equal to any monies which the Customer has paid for the unreceived Products;
(b) refund any monies which the Customer has paid to Valbrio for the unreceived Products; or
(c) as soon as reasonably practicable dispatch the unreceived Products to the Customer in accordance with these Conditions and the terms of the relevant Contract.
9.5 In circumstances where the Customer notifies Valbrio (in accordance with the provisions of this Clause 9.5 that any of the Products received by it were damaged whilst they were at Valbrio’s risk or do not conform to these Conditions or the relevant Contract, then the Customer shall promptly return the Products to Valbrio and provide Valbrio with reasonable evidence supporting its claim. If Valbrio accepts the Customer’s claim then it shall, by way of full and final settlement of all Valbrio’s obligations and liabilities to the Customer in relation to that claim, and at Valbrio’s sole discretion, either:
(a) credit the Customer’s trading account with an amount equal to any monies which the Customer has paid for the damaged/non-conforming Products;
(b) refund any monies which the Customer has paid to Valbrio for the damaged/non-conforming Products;
(c) repair the damaged/non-conforming Products; or
(d) replace the damaged/non-conforming Goods with Goods that conform with the terms and conditions set out in these Conditions and the relevant Contract.
10 Licence of Software
10.1 All Software is owned by Suppliers who determine the terms upon which the Software is licensed. Valbrio hereby
(a) grants to the Customer with effect from the actual date of delivery a non-exclusive, non-transferable licence to use the Software for its own internal purposes only and in accordance with the Supplier’s standard licensing terms, and for operation in an environment deemed suitable under the Supplier’s licensing terms (which are available to the Customer on request); or
(b) shall procure the grant of a licence directly from the Supplier to the Customer to enable the Customer to use the Software (on terms which shall be specified by the Supplier).
10.2 The Customer hereby indemnifies Valbrio in respect of any loss (of any kind) which Valbrio may suffer as a result of the breach by the Customer of a licence granted under or pursuant to this Clause 10.
11 Customer Obligations
11.1 In relation to each Contract, the Customer shall:
(a) use reasonable endeavours to perform its obligations under each Contract in accordance with any agreed timetable;
(b) co-operate with Valbrio in any manner reasonably required by Valbrio to perform its obligations under each Contract, including:
(i) providing information, data and assistance;
(ii) providing prompt responses to queries raised by Valbrio;
(iii) making available relevant suitably qualified employees and contractors of the Customer;
(iv) providing access to the Premises for Valbrio and its agents, sub-contractors, consultants and employees, and informing Valbrio in advance of all health and safety rules and security requirements that apply to the Premises; and
(v) meeting with Valbrio on a regular basis as is agreed between the Parties.
11.2 In relation to the Services, the Customer shall (where required and as relevant) make available to Valbrio, such Customer Assets as are reasonably required by Valbrio to assist Valbrio in carrying out any of its obligations under a Contract and the Customer hereby grants to Valbrio a non-exclusive, royalty-free licence for the duration of the Contract to use such assets solely for the purpose of performing its obligations under the Contract on the following terms:
(a) Valbrio shall comply with any instructions, conditions and security requirements in relation to its use of such assets that the Customer notifies to Valbrio from time to time;
(b) Valbrio shall return such assets to the Customer on demand; and
(c) Valbrio shall return such assets to the Customer on termination of the Contract, or if earlier, on completion of any relevant Services.
12.1 Valbrio warrants that:
(a) it is entitled to enter into each Contract;
(b) it shall use its reasonable care and skill in carrying out any Services;
(c) all employees and replacements thereof used by Valbrio for the purposes of carrying out Valbrio’s obligations hereunder will have the necessary expertise and skills to perform Valbrio’s obligations hereunder.
12.2 Valbrio shall either:
(a) procure for the Customer the benefit of any standard end-user warranties in respect of the Products from the Supplier(s) (whether by assignment from Valbrio or granted directly by the Supplier(s)); or
(b) grant the Customer the same warranties that Valbrio receives from the Supplier(s) in respect of the Products.
To the extent that these warranties are not set out in a Contract, Valbrio shall make details of these warranties are available upon request. Where a direct warranty is given to the Customer by a Supplier (as referred to in Clause 12.2(a)), Valbrio does not give any express warranties except as set out in Clause 12.1.
12.3 The Customer shall notify Valbrio in writing of any failure by Valbrio to comply with any of the warranties set out in Clause 12.1, or any failure of the Products to comply with the relevant Supplier’s standard warranties, as soon as practicable after discovery of the failure, failing which Valbrio shall be entitled to reject the claim if the delay means that Valbrio is unable to make a corresponding claim against a Supplier, or is otherwise unable to establish the validity of the claim. The notice from the Customer to Valbrio shall identify and, where possible, substantiate the breach.
12.4 Except for the express warranties and conditions expressly contained or referred to in these Conditions and each Contract (including any Order), Valbrio makes no other warranties or representations regarding the Products and/or the Services and all warranties, conditions and other terms express or implied statutory or otherwise in respect of compliance with descriptions, the quality or the fitness for purpose of the Products and/or the Services which are not expressly set out in these Conditions or a Contract are excluded to the fullest extent permitted by law.
13 Intellectual Property Rights
13.1 All Intellectual Property Rights of whatever nature in the Products shall be and remain vested in Valbrio and/or its Supplier(s).
13.2 The Customer shall not (nor cause or permit anyone else to) modify or remove any Intellectual Property Rights notices contained on or in the Products and shall reproduce such notices on any copies of the Products or part thereof in the form in which they appear in the original.
13.3 Valbrio shall either:
(a) procure for the Customer the benefit of any standard end-user warranties and/or indemnities from the Supplier(s) (whether by assignment from Valbrio or granted directly by the Supplier(s)) in respect of any alleged infringement of Intellectual Property Rights by the Products; or
(b) grant the Customer the same warranties and/or indemnities that Valbrio receives from the Supplier(s) in respect of the Products. To the extent that these warranties and/or indemnities are not set out in a Contract, details of these warranties and indemnities are available upon request.
13.4 The Customer shall promptly notify Valbrio in writing of any allegations of infringement of which it becomes aware and shall not make any admission without Valbrio’s prior written consent.
13.5 The provisions of this Clause 13 shall survive the termination of a Contract in so far as it relates to events occurring before the date of termination of the relevant Contract.
14 Intellectual Property Rights Indemnity from the Customer
14.1 The Customer shall indemnify Valbrio against all costs (including the cost of defending any legal action brought against Valbrio), damages, losses, and expenses suffered or incurred by Valbrio arising out of or in connection with any claim made or threatened alleging that the use of the Customer Assets (or any part of them) constitutes an infringement or other violation of any Intellectual Property Rights of any third party (Claim) provided that:
(a) the Customer is notified promptly in writing of such Claim;
(b) Valbrio makes no statement, admission or settlement of any such Claim without the Customer’s prior written consent;
(c) the Customer has sole control of the defence and any negotiations or compromise; and
(d) Valbrio provides, at the Customer’s expense, such assistance as the Customer reasonably requires.
14.2 If any Customer Asset becomes the subject of any Claim, the Customer shall (at its sole discretion):
(a) modify the Customer Asset without materially reducing the performance or functionality of the same;
(b) replace the Customer Asset with work product that is of equivalent performance and functionality so as to avoid the infringement; or
(c) procure for Valbrio, a right to continue using such Customer Asset on the same terms and conditions as set out in the relevant Contract.
14.3 The Customer shall have no liability for any Claim to the extent that the relevant claim arises due to Valbrio:
(a) not complying with the restrictions placed on Valbrio by the Customer in respect of the Customer Assets; or
(b) using the Customer Assets for any purposes other than performing its obligations under a Contract.
15 Price and Payment
15.1 The Customer shall pay to Valbrio the Price as invoiced. Delivery of the Products will be charged for in addition,
unless otherwise agreed by Valbrio in writing.
15.2 All invoices issued to the Customer pursuant to these Conditions or a Contract shall be payable within 30 days of the date of issue. Invoices in respect of Services shall be issued in advance of the supply of the Services. Time for payment is of the essence of the Contract. For clarity, the Customer shall pay the total amount set out in an invoice notwithstanding that it may dispute the invoiced amount (whether wholly or in part) on the understanding that if the dispute is resolved such that the total amount invoiced is too great, Valbrio will rectify the mistake by promptly making an appropriate payment to the Customer. The Customer must notify Valbrio of any query which it may have regarding an invoice within seven (7) days of the date of the relevant invoice.
15.3 The Customer shall not be entitled by reason of set-off, counterclaim, abatement or similar deduction to withhold payment of any amount due to Valbrio under or in connection with these Conditions or any Contract. Where any sales or withholding tax or similar deduction is required by law to be made, the Customer shall pay such further sum or sums to Valbrio as may be necessary to ensure that Valbrio receives the full amount of the payment due to it as if such sales or withholding tax or similar deduction had not been made.
15.4 Unless otherwise agreed in writing with the Customer, Valbrio is entitled to allocate payments received to settle (in full or in part) any sums due from the Customer under any Contract, in any order or manner Valbrio determines, and in particular shall be entitled to apply any part payment to settle outstanding interest on overdue amounts, ahead of principal.
15.5 Unless expressly stated otherwise in a Contract, the Price and any additional charges payable by the Customer are exclusive of:
(a) VAT, customs charges and duties (or other applicable tax, charge or duty in a jurisdiction outside England and Wales);
(b) in the case of the Products, certain costs and charges relating to the loading, unloading, carriage and insurance;
(c) in the case of the Services, accommodation, travel or subsistence expenses which may be incurred in the performance of the Services,
all of which the Customer shall pay to Valbrio in addition to the Price and in the amount and manner prescribed by law.
15.6 All payments under or in connection with any Contract must be in Pounds Sterling unless otherwise agreed by Valbrio in writing.
15.7 Notwithstanding Clause 15.2 or any other arrangements for provision of credit which Valbrio may have agreed with the Customer in respect of a Contract, the whole price of all Products and/or Services bought or agreed to be bought by the Customer shall be immediately payable without demand in any circumstances entitling Valbrio to terminate the Contract pursuant to Clause 16.1.
15.8 If the Customer fails to make any payment when due Valbrio shall be entitled to, amongst other things and without prejudice to any of its other rights (whether under these Conditions, any Contract or at law):
(a) suspend its obligations under a Contract for so long as any payment due thereunder remains outstanding;
(b) charge the Customer interest on the overdue amount at the statutory rate, and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis and be compounded monthly;
(c) deduct from any monies Valbrio owes to the Customer any monies owed by the Customer to Valbrio; and/or
(d) disallow any discount (if any) that applies to any part of the outstanding payment.
16.1 Either Party (Terminating Party) may terminate a Contract at any time immediately by notice in writing if:
(a) the other Party (Other Party) is in material breach of any of its obligations under that Contract and (if the breach is capable of remedy) fails to remedy the breach within thirty (30) days after receipt of notice in writing from the Terminating Party giving particulars of the breach and requiring the Other Party to do so;
(b) any of the following events occurs in respect of the Other Party (or any event analogous to any of the following occurs in respect of the Other Party in a jurisdiction other than England and Wales):
(i) insolvency or winding-up proceedings are instituted by or against the Other Party;
(ii) a receiver, liquidator or administrator is appointed for the Other Party or the Other Party passes a resolution for the appointment of a liquidator (other than (in any such case) a voluntary winding-up of a solvent company for the purposes of amalgamation or reconstruction);
(iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the Other Party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Other Party or notice of intention to appoint an administrator is given by the Other Party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986);
(iv) the Other Party takes steps to enter into a company voluntary arrangement, an arrangement under Part 26 of the Companies Act 2006 or any analogous compromise or arrangement (whether formal or informal) with any of its creditors (other than (in any such case) a voluntary winding-up of a solvent company for the purposes of amalgamation or reconstruction);
(v) any substantial part of the assets of the Other Party is the object of attachment, sequestration or other type of comparable proceeding; or
(vi) the Other Party is unable or admits in writing its inability to pay its debts as they fall due.
16.2 As an alternative to termination of a Contract by Valbrio pursuant to Clause 16.1(a), Valbrio may, in its sole discretion, elect to suspend:
(a) the provision of any goods/software, maintenance, professional or other services being provided to the Customer; and/or
(b) the effectiveness of any covenants, representations or warranties made under a Contract,
if a Customer fails to remedy the breach within the relevant period referred to in Clause 16.1(a).
17 Effects Of Termination
17.1 If a Contract is terminated for any reason:
(a) the Customer shall immediately without set-off or deduction pay Valbrio for any Products and/or Services specified in a Contract that have been delivered/completed in accordance with the Contract prior to the date of such termination and for which Valbrio has not previously been paid;
(b) each Party shall return to the other Party (or destroy, and certify as destroyed if requested by the other Party), all property and Confidential Information belonging to the other Party in its possession, custody or control; and
(c) each Party will cease using the other Party’s Confidential Information.
17.2 Any termination of a Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party which have arisen on or before the date of termination, nor shall it affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination, including without limitation Clauses 1,11,12,13,14,15,17,18,20,23 to 35 inclusive..
18.1 Where a Party (Receiving Party) has obtained Confidential Information of the other Party (Disclosing Party), the
Receiving Party shall:
(a) keep the Confidential Information confidential;
(b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 18.2, 18.6 and 18.7; and
(c) not use the Confidential Information for any purpose other than exercising its rights and performing its obligations under a Contract.
18.2 During the term of a Contract the Receiving Party may disclose the Confidential Information to those of its officers, employees, professional advisers, parent or subsidiary companies, or agents or sub-contractors as may be reasonably necessary for the purpose of fulfilling its obligations under that Contract or, in the case of professional advisers for use in their professional capacity (Recipients).
18.3 The Receiving Party shall hold the Disclosing Party’s Confidential Information in strictest confidence and shall take all reasonable security measures for the safe-keeping of the Confidential Information and for the prevention of its unauthorised access, disclosure or misappropriation, such measures to be no less stringent than those measures the Receiving Party has in place to protect its own information that it does not wish to publicly disclose, publish or disseminate which shall in no event constitute less than a reasonable degree of care.
18.4 The Receiving Party shall notify the Disclosing Party as soon as reasonably practicable of any unauthorised use, copying or disclosure of the Disclosing Party’s Confidential Information of which the Receiving Party becomes aware and shall provide all reasonable assistance to the Disclosing Party to terminate such unauthorised use or disclosure.
18.5 The Receiving Party shall ensure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under each Contract as if the Recipient were a party thereto.
18.6 Notwithstanding any other provisions to the contrary, the obligations of the Parties under this Clause 18 shall not apply if and to the extent that:
(a) the Disclosing Party’s Confidential Information was rightfully known to or already in the possession of the Receiving Party prior to disclosure;
(b) the Disclosing Party’s Confidential Information is or becomes part of the public domain without breach of any Contract by the Receiving Party or the negligence of the Receiving Party;
(c) a third party rightfully disclosed the Disclosing Party’s Confidential Information to the Receiving Party without violating any obligations of confidence;
(d) the Confidential Information has been independently developed by the Receiving Party without access to or knowledge or use of the Disclosing Party’s Confidential Information; or
(e) the Disclosing Party has consented in writing to the disclosure by the Receiving Party to a third party of specific Confidential Information of the Disclosing Party.
18.7 The obligations contained in Clauses 18.1 to 18.5 shall not prevent the Receiving Party from disclosing Confidential Information which is required:
(a) by any order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body;
(b) to comply with the rules of any relevant stock exchange on which the securities of the Receiving Party are listed; or
(c) required by the laws or regulations of any country with jurisdiction over the affairs of the Receiving Party.
18.8 If legally permissible, and to the extent possible, the Receiving Party will give prior notice to the Disclosing Party of any disclosure of the kind referred to in Clause 18.7, so that the Disclosing Party, at the Disclosing Party’s discretion, may seek confidential and protected status for such information. If notice to the Disclosing Party is not legally permissible, the Receiving Party shall use reasonable efforts to receive confidential or protected status for such information.
18.9 The Parties acknowledge that:
(a) the provisions of this Clause 18 shall continue to apply to each Party without limit in time notwithstanding the return or destruction of the Confidential Information; and
(b) damages alone may not be an adequate remedy for any breach of this Clause 18 by the Receiving Party and accordingly, without prejudice to any other rights or remedies that the Disclosing Party may have, the Disclosing Party shall, without proof of special damage, be entitled to seek the remedies of injunction, specific performance or other equitable relief against the Receiving Party for any threatened or actual breach of the provisions of this Clause 18.
18.10 No public announcements concerning the existence or contents of a Contract shall be made by either Party without the prior written consent of the other Party.
19 Data Protection
For the purposes of a Contract, both Parties may receive Personal Data (as defined in the Data Protection Act 1988 and from25 May 2018 the EU General Data Protection Regulation (GDPR)). The Parties agree to process such information only in accordance with the lawful instructions of the other Party and to take appropriate technical and organisational measures against unauthorised or unlawful processing of such information and against accidental loss or destruction of or damage to such information.
20 Limitations of Liability
20.1 All exclusions and limitations in these Conditions and each Contract shall only apply so far as permitted by law and
in particular nothing shall exclude or restrict liability:
(a) for death or personal injury resulting from the negligence of a Party or its employees acting in the course of their employment, or its agents or contractors, acting in the furtherance of their duties;
(b) for fraudulent misrepresentation or other fraud;
(c) for any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
(d) to the extent prohibited by the Consumer Protection Act 1987.
20.2 The exclusions and limitations of liability contained in these Conditions and each Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies Valbrio of the possibility of any greater loss.
20.3 Subject to Clause 20.1, neither Party shall be liable to the other Party (and no Supplier of Valbrio shall be liable to the Customer) whether arising from tort (including negligence), breach of contract or otherwise under or in connection with these Conditions or a Contract for:
(a) any indirect or consequential loss or damage;
(b) any special, punitive or exemplary damages; or
(c) any loss of contracts, loss of business, loss of revenue, loss of data, loss of profit or loss of opportunity,
which arises out of or in relation to these Conditions or that Contract whether such Party was advised of the possibility of any of the foregoing.
20.4 Subject to Clauses 20.1 and 20.5, the total aggregate liability of one Party to the other under or in connection with a Contract, however arising, will not exceed the total Price payable by the Customer to Valbrio under that Contract.
20.5 Subject to Clauses 20.1 and 20.5, the total aggregate liability of one Party to the other under or in connection with these Conditions, however arising, shall be limited in each calendar year to £1,000.
20.6 Any liability Valbrio may have for claims concerning damage to the physical property of the Customer or its employees arising out of or in connection with these Conditions, a Contract, the Products and/or the Services however arising, shall be limited to £2 million.
20.7 The term “however arising” when used or referred to in this Clause 20 shall cover all causes and actions giving rise to liability of Valbrio arising out of or in connection with these Conditions, a Contract, the Products and/or Services (i) whether arising by reason of any misrepresentation (whether made prior to and/or in these Conditions or a Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Products and/or Services or by any defect in hardware, software or materials; and (iv) whether deliberate (but not with malicious intent) or otherwise, however fundamental the result.
20.8 The warranties and conditions stated in these Conditions are in lieu of all other conditions, warranties and other terms and conditions that might be implied into or incorporated into these Conditions or any Contract whether by statute, common law or otherwise, all of which are hereby excluded to the extent permitted by law.
20.9 In view of the exclusions and limitations of Valbrio’s liability in these Conditions and each Contract, Valbrio recommends that the Customer considers taking out its own insurance in respect of those risks for which Valbrio excludes or limits liability. Additionally, the Customer acknowledges that the price of the Products and/or Services provided for under the Contract reflects the exclusions and limitations on Valbrio’s liability as set out in this Clause 20 and that the Customer had the opportunity to negotiate variations to the exclusions and limitations, upon the agreement of a higher price. Accordingly, the Parties agree that such exclusions and limitations are reasonable in all the circumstances.
20.10 Other than in respect of Clause 20.1, neither Party shall have any liability to the other in any respect unless it shall have served notice of the same on the other Party within 12 months of the date on which it became aware of the circumstances giving rise to any such claim or the date when it ought reasonably to have become so aware.
20.11 Each provision of this Clause 20, limiting or excluding liability, operates separately and shall survive independently of the other provisions.
Valbrio shall be responsible for taking out and maintaining in its own name during the continuance of each Contract, adequate and appropriate insurance cover (including, without limitation, professional indemnity and public liability insurance cover) with a reputable insurance company to cover its potential liability to the Customer under a Contract details of which shall be made available to the Customer upon written request.
22 Force Majeure
22.1 Save for the payment obligations in Clause 15, neither Party shall be liable to the other Party for its failure to perform or the delayed performance of its obligations under a Contract if such failure or delay results from a Force Majeure Event provided that the affected Party:
(a) promptly notifies the other Party by the most expeditious method then available of the cause of the delay or non-performance and the likely duration of the delay or non-performance; and
(b) uses reasonable endeavours to limit the effect of that delay or non-performance on the other Party.
22.2 If a Force Majeure Event continues for more than a period of thirty (30) days, either Party shall have the right to terminate the affected Contract, without further liability to the other Party.
23 Export Control Regulations
23.1 The Customer acknowledges that the Products (or any part of them) may be subject to the export control regulations of the UK and/or another country. Accordingly, the Customer agrees that any Products to which such regulations apply will not be exported from the UK to any country prohibited by such regulations, unless prior approval in writing has been obtained from the relevant regulatory authorities, which shall be the Customer’s responsibility and at the Customer’s expense.
23.2 The Customer shall indemnify Valbrio in respect of all claims made by any third party or regulatory body as a result of any breach by the Customer of the provisions of Clause 23.1.
24 Acts or Omissions of the Customer
Valbrio shall not be liable for any delay or failure to perform its obligations under a Contract or be liable for any Losses suffered or incurred by or awarded against the Customer under or in connection with that Contract if and to the extent that such delay, failure or Losses is or are caused by any acts or omissions of the Customer or the Customer’s employees, agents or contractors or due to a breach of such Contract by the Customer.
25.1 During the term of a Contract and for a period of twelve months thereafter neither Party shall actively solicit or seek to attempt to entice away from the employment of the other, any person employed (or any person who has been so employed in the preceding twelve (12) months) by the other Party in connection with the performance of that Contract. For clarity, this Clause shall not apply to unsolicited responses by employees to general recruitment advertising.
25.2 In respect of any breach by either Party of Clause 25.1, the other Party, in addition to any other remedies available in a these Conditions or in a Contract or at law, shall be entitled to recover from the Party in breach the costs of recruiting and training a replacement for any member of that Party’s personnel employed or solicited for employment.
26.1 Subject to Clause 26.2, neither Party shall be entitled to assign, novate or otherwise transfer any of its rights and/or obligations under these Conditions or any Contract without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
26.2 Valbrio shall be entitled to assign, novate or otherwise transfer any or all of its rights and/or obligations under a Contract to any Associated Company.
No amendment or variation to any Contract shall be valid unless it is in writing and signed by duly authorised
representatives of each of the Parties. The variation shall take effect from the date of last signature.
No failure or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach. No waiver by either Party of any requirements of any Contract or of any remedy or right under a Contract, shall have effect unless given in writing signed by that Party.
If any provision of a Contract is found by any court or other competent authority to be illegal, invalid or unenforceable in whole or in part, the continuation in force and effect of the remainder of that Contract will not be prejudiced but such provision will be deemed modified to the extent necessary in the court’s or competent authority’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent, the intent and agreements of the Parties as set out in such Contract.
The relationship between Valbrio and the Customer is that of supplier and purchaser. Nothing in a Contract shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting either Party as the agent of the other Party for any purpose whatsoever and neither Party shall have the authority or power to bind the other Party, or to contract in the name of, or to create a liability against, the other Party in any way or for any purpose.
31 Third Party Rights
The Parties intend that no third party shall have any right under or in connection with these Conditions or any Contract by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of these Conditions or any Contract.
32 Entire Agreement
32.1 These Conditions and each Contract (including the terms of any relevant Order), together with any documents referred to in them or made under them contains the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the Parties in relation to such matters. No oral explanation or oral information given by any Party shall alter the interpretation of these Conditions or any Contract.
32.2 The Customer confirms that, in entering into each Contract, it has not relied on and shall have no remedy in respect of any statement, representation or warranty that is not set out in these Conditions or the Contract and agrees that the only remedy available to it for breach of any statement, representation or other term that is expressly set out in these Conditions or a Contract shall be for breach of contract. Nothing contained in this Clause 32.2 shall however operate to limit or exclude any liability of Valbrio for fraud or fraudulent misrepresentation.
33 Dispute Resolution
33.1 The Parties shall use their best endeavours to settle all disputes or controversies (Dispute) which arise out of or in connection with these Conditions and each Contract by means of good faith negotiation and internal escalation within their respective organisations.
33.2 Any Dispute which the Parties are unable to resolve in accordance with the provisions of Clause 33.1 shall, at the request of either Party to that Dispute (Request), be referred to mediation in accordance with the Centre for Dispute Resolution Mediation Procedure as follows:
(a) the mediation shall be conducted by a single mediator who shall be appointed by agreement in writing between the Parties or, if the Parties are unable to agree on the identity of the mediator within five (5) Business Days after the date of the Request, or if the mediator nominated by the Parties for appointment is or becomes unable or unwilling to act, the mediator shall be appointed by the Centre for Dispute Resolution on the application of any Party to the Dispute;
(b) the mediation shall be conducted in London, England and in the English language;
(c) save for the purposes of implementing and/or enforcing a written legally binding settlement agreement or as otherwise required by law, the mediation shall be conducted without prejudice to the rights of the Parties in any future proceedings; and
(d) the costs of the mediation, including the fees and expenses of the mediator (but excluding the Parties’ own costs, which shall be borne by the Party incurring those costs), shall be borne equally by the Parties, unless otherwise agreed in writing.
33.3 The commencement of a mediation shall not prevent the Parties commencing or continuing legal proceedings in respect of any Dispute.
33.4 The provisions of this Clause 33 are without prejudice to either Party’s right to seek interim relief against any other Party (such as an injunction) through the English courts to protect its rights and interests, or to enforce the obligations of the other Party.
34.1 Any notice given under or in connection with a Contract by one Party to the other Party must be in writing (which shall include communications in electronic form), given in English and must be either (i) delivered personally; or (ii) sent by recorded delivery post or first class post; or (iii) prepaid express courier service, service fee prepaid; or (iv) email; to the address or email address (as applicable) of the Party set out in the Contract or to such other address as the recipient may designate in writing from time to time in accordance with this Clause 34.1.
34.2 In the absence of evidence of earlier receipt any notice shall be deemed to have been received (i) if delivered personally, at the time of delivery; or (ii) if sent by recorded delivery post or first class post, at 10.00 a.m. on the second Business Day after it was put into the post; or (iii) if sent by express courier service, at 10.00 a.m. on the third Business Day after dispatch; or (iv) if sent by email, upon generation of a receipt notice by the recipient’s server, or if no receipt notice is generated, upon delivery to the recipient’s server.
35 Governing Law
35.1 These Conditions and each Contract and any claim or dispute arising our of or in connection with any of them or their subject matter or formation (including non-contractual claims or disputes) shall be governed by, and construed in accordance with, the laws of England and Wales.
35.2 Subject to Clause 35.3, the Parties hereby submit to the exclusive jurisdiction of the English courts in respect of any claim or dispute arising out of or in connection with these Conditions and each Contract or their subject matter or formation (including non-contractual claims or disputes).
35.3 The Customer acknowledges and agrees that if it fails to pay Valbrio for any Products and/or Services on time or if it infringes the Intellectual Property Rights of Valbrio or its Suppliers, Valbrio may bring a claim against the Customer for non-payment or infringement of Intellectual Property Rights (as applicable) in any jurisdiction in which the Customer or its assets are located.