Standard Terms & Conditions of Sale
“Agreement” means the Order(s) submitted by the Buyer, and the subsequent QC Data Proposal(s), together with these Standard Terms and Conditions of Sale (“Standard Terms”) plus any documents referred to herein or included with an Order and accepted by QC Data.
“Buyer” means the person or company submitting an Order and shall include its heirs, successors in title, permitted assigns and personal representatives.
“Confidential Information” means information provided by the disclosing party and includes, without limitation, any business, marketing, technical and scientific information, trade secrets, processes, designs, drawings, sketches, data, formula, plans, prices, prototypes, specifications, know-how, improvements, inventions (whether patentable or not), techniques, software, source code, Buyer lists, business opportunities, agreements and other information whether or not related to or arising from the activities contemplated in the Agreement and which may be in any form or medium and whether or not designated as confidential (or like designation). Notwithstanding the foregoing, Confidential Information shall not include any information that: (a) is in the public domain without such disclosure being as a result, directly or indirectly, of a breach of the obligations of confidence, secrecy or non-use by the receiving party; or (b) was previously known to the receiving party, reasonable proof of which lies upon the receiving party; or (c) was received by the receiving party from a source (other than the disclosing party) lawfully having possession of such information and the right to disclose same; or (d) is released or disclosed to the public by the disclosing party or by its conduct; or (e) is trivial or obvious; or (f) is required to be disclosed by operation of law.
“Product” means the services, data, material, images, photographs, maps, drawings, plots, prints, posters and other data (whether in eye readable form or otherwise) and any part thereof as set out in the applicable Agreement.
“Proposal” shall mean the documentation issued by QC Data to Buyer setting out the details of the Agreement, including but not limited to a price quotation and estimated delivery dates.
“Price” means the price payable to QC Data by the Buyer for the supply of Product.
APPLICATION OF TERMS
Unless otherwise specifically agreed to in writing and signed by an authorized employee of QC Data, these Standard Terms will apply to any Agreement to the express exclusion of all other terms and conditions, including any and all terms or conditions which the Buyer purports to apply under any purchase order or otherwise. This Agreement represents the entire agreement between QC Data and Buyer and all interim proposals‚ negotiations‚ representations or agreements made or entered into prior to or contemporaneously with this Agreement‚ whether verbal or written‚ are cancelled and superseded by this Agreement.
ACCEPTANCE OF AGREEMENT
The Agreement shall only be effective from the date of QC Data’s written acknowledgement of receipt and acceptance of the Proposal; itself having been accepted and countersigned by the Buyer.
Price for the Products shall be as set out in the relevant Proposal. All price quotations are made for immediate acceptance and are subject to change without notice prior to acceptance by Buyer. Prices are EXW (Incoterms 2010) QC Data’s point of shipment unless otherwise specified. Prices are stated in Pounds Sterling or United States Dollars (as applicable), are exclusive of value-added, sales‚ use‚ excise or similar taxes and are subject to any price adjustment necessitated by QC Data’s compliance with any act of government. Any tax or other governmental charge upon the production‚ sale‚ shipment or use of the product which QC Data is required to pay or collect from Buyer shall be paid by Buyer to QC Data unless Buyer furnishes a tax exemption certificate acceptable to the appropriate taxing authority.
Payment terms are net30. Time is of the essence in the payment of invoices. For certain large scale or on-going assignments, credit terms may be quoted in the Proposal. If the Buyer fails to make any payment on or before the due date, QC Data shall have the right to suspend all further work or deliveries until such payment default is made good (without prejudice to QC Data’s other rights or remedies). In addition, QC Data reserves the right to charge interest on all late payments at the highest rate allowed by applicable law.
The work to be performed by QC Data pursuant to this Agreement shall not include, and QC Data shall not be liable or responsible for, the study, analysis, evaluation, judgment or other review of any information, data, or documents provided, assembled or developed by Buyer with respect to their appropriateness for design, assembly, installation, construction or the results thereof, whether by Buyer, or any other party.
All data and source documents provided by Buyer shall at all times be owned by the Buyer. Work products developed by QC Data including the deliverables developed for Buyer pursuant to this Agreement, and all copyright, patent rights or other intellectual property rights in such work products shall, promptly following payment in full to QC Data, vest in the Buyer. Notwithstanding the preceding sentences, all systems, computer programs and specifications, data, processes, and procedures, including but not limited to any configurations, enhancements, discoveries, inventions or modifications necessary or incidental to perform the services that are owned, used, developed, or otherwise in the possession of QC Data shall continue to belong exclusively to QC Data.
TITLE AND RISK
Title to the Product shall remain with QC Data and shall not pass to the Buyer until payment in full has been received. Notwithstanding this, risk in the Products shall pass to Buyer upon delivery.
Each party shall maintain the confidentiality of the Confidential Information of the other party with at least the same standard of care that it uses for its own Confidential Information, but in any event, no less than a reasonable standard of care. Further, each party will adhere to all applicable data protection legislation with respect to information and data classified as personal or private.
Any period or date for delivery or performance named by QC Data is an estimate only and QC Data shall not be liable for any damage resulting from any failure to deliver or perform by such dates howsoever caused.
QC Data and any employees and agents of QC Data shall not be deemed to be at any time employees or servants of Buyer. The parties agree that QC Data shall be an independent contractor in its performance under this Agreement. Neither party to this Agreement is authorized to oblige the other party or act in the name of the other party other than as stated in this Agreement. This Agreement does not create a joint venture, partnership or association.
QC DATA EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, INCLUDING ANY AND ALL WARRANTIES AND CONDITIONS OF DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, PERFORMANCE AND ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LEGISLATION.
QC Data will at its option repair or replace any of the Products found within a period of 15 days from delivery to be defective in that they fail to comply with their description or due to failure by QC Data to exercise reasonable skill and care provided that:
•the Buyer has notified QC Data in writing of the alleged defect and has returned the Product to QC Data at the Buyer’s risk and expense;
•the Product has not been modified or put to use by the Buyer
•the defect is not due in whole or in part to any default or act or omission of the Buyer
The limited warranties set out above state the entire obligation of QC Data with respect to the Products.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL QC DATA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS OR RELATED LOSSES OR EXPENSES INCURRED BY BUYER WHICH MAY ARISE OUT OF THE USE OR INABILITY TO USE THE PRODUCT(S), WHETHER OR NOT QC DATA WAS TOLD OF, KNEW OF OR REASONABLY SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE OR INJURY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT IT ACCEPTS ALL RISKS, LOSSES AND DAMAGES THAT IT OR ANY THIRD PARTY USER MAY SUFFER AS A RESULT OF ANY FAILURE OF THE PRODUCT TO PERFORM PROPERLY OR AT ALL. THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR QC DATA TO ACCEPT ANY SUCH RISKS AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY QC DATA, THEN QC DATA WOULD NOT HAVE ENTERED INTO THE AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
Nothing in these Standard Terms affects the liability of QC Data for death or personal injury caused by QC Data’s negligence or for fraudulent misrepresentation. Subject to the above, QC Data’s total liability in contract, tort, misrepresentation or otherwise, arising in connection with the performance of the Contract shall be limited to the price paid by Buyer under the Agreement.
THIRD PARTY RIGHTS AND PROHIBITIONS
Buyer shall: (a) either own or have the right to use all data and information provided to QC Data for processing; (b) ensure that the data and information submitted to QC Data for processing does not infringe any rights of any third party; (c) indemnify, defend and hold harmless QC Data, its officers, directors, agents, employees, and affiliates from any and all damages, claims, losses, expenses and costs, including any legal costs, that may arise in any manner whatsoever as a result of Buyer’s use, processing or management of the data and information.
Buyer authorizes and hereby represents that it has the authority to authorize QC Data to conduct all activities contemplated under the Agreement.
Buyer shall not upload, deposit or process any data or information that: (a) infringes or potentially infringes any third party intellectual property or proprietary rights including, without limitation, copyright, patent, trademark or trade secret; (b) is harmful or potentially harmful including, without limitation, that which places the integrity or security of any computer system at risk or which is a virus, Trojan horse, worm, time bomb, malware or other harmful or invasive computer program or file; (c) in any way violates any federal, state or local law, statute, ordinance or regulation in any applicable jurisdiction including, without limitation, those relating to export control.
QC Data shall not be liable for any failure to perform its obligations under this Agreement arising directly or indirectly from circumstances outside its control including (without limitation) acts of God, acts of Buyer, acts of civil or military authority, war, riots, explosions, abnormal weather conditions, fire, flood, strikes or other labour disputes, lack of or inability to obtain materials, components, labour or supplies.
If the Buyer defaults in or commits any breach of any of its obligations to QC Data, QC Data shall have the right forthwith to terminate the Agreement in whole or in part, and such termination shall not prejudice or restrict the rights or remedies of QC Data. In the event of early termination for any reason or cancellation by Buyer, no refund of the Price (or part thereof) shall be made by QC Data.
Neither party shall assign the Agreement or any part thereof without prior written approval of the other party.
Any failure, delay or indulgence on the part of QC Data in exercising any power or right conferred hereunder shall not operate as a waiver of such power or right to preclude the exercise of any other right or remedy.
Any notice or other communication sent to either party shall be sufficient if sent in writing to that party’s address last known to the other party or to any address notified to the other party for that purpose.
If this Agreement is formed in the United Kingdom, then these Standard Terms and any Agreement between the Buyer and QC Data governed by and construed in accordance with the law of England and the Parties hereto irrevocably and unconditionally submit to the exclusive jurisdiction of the English Courts.
If this Agreement is formed in the United States, then these Standard Terms and the Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado, without regard to its choice of law provisions, and the laws of the United States applicable therein and the parties hereby attorn to the jurisdiction of the Colorado Courts.
•(a) Should any condition or term hereof be invalid, illegal or unenforceable, for any reason whatsoever, such condition or term shall be severed from this Agreement and the validity and enforceability of the remainder of the Agreement shall be unaffected.
•(b) No variation to these Standard Terms or the Agreement shall be effective unless in writing signed by the authorized representatives of both parties.
•(c) The parties hereby agree that signatures transmitted and received via email or other electronic means shall be treated as original signatures and shall be binding, valid and enforceable by and against each of the parties