In these conditions of sale the following terms shall have the meaning ascribed to them:
|‘BrightCloud’||means BrightCloud Technologies Limited|
|‘Customer’||means the person, firm or organization placing an order with BrightCloud|
|‘Consultant’||means all employees, agents, consultants and contractors of BrightCloud|
|‘Consultancy Services’||means all of the activities to be undertaken by or to be performed by BrightCloud as described in the Scope of Work as may be amended from time to time|
|‘Consultancy Bank’||means days of consultancy work purchased in bulk which can be called off as and when the Customer needs them|
|‘Equipment’||means hardware, software or other services ordered by the customer from BrightCloud|
|‘Order’||means acceptance of quotation, instruction to proceed or other confirmation by the customer|
|‘Working Day’||means any day other than a Saturday, Sunday or public holiday in England and Wales|
2.1 If a delivery date is specified or otherwise given by BrightCloud, the same shall be taken as an estimate made by BrightCloud in good faith and shall not be a term of the contract.
2.2 In no circumstances shall BrightCloud be liable for any loss or damage sustained by the Customer in consequence of failure to deliver by such date.
2.3 BrightCloud’s liability shall, in respect of the Equipment or any part thereof, cease on delivery to the Customer’s premises and all subsequent risk shall pass to the customer.
3.1 Unless the quotation in writing given by BrightCloud expressly provides that the price shall remain firm for a specified period the prices quoted shall be subject to increases reflecting any increase in BrightCloud’s costs in respect of materials, labour, services or transport or changes in exchange rates between the date of order and the date of dispatch.
3.2 Unless stated otherwise, prices do not include tax, insurance, freight and delivery costs.
4.1 Unless otherwise agreed in writing, payment is due to BrightCloud with order or on delivery of the equipment against invoice except where the Customer establishes and maintains a satisfactory credit arrangement with BrightCloud. Under the terms of credit payment the Customer shall pay all invoices not later than 30 days after date of invoice.
4.2 BrightCloud reserve the right to impose a surcharge equating to 3% over National Westminster Bank plc base rate for lending on accounts which exceed these payment terms.
In respect of all Orders, excluding Consultancy Services (see clause 18), in the event that the Customer:
the Customer shall agree to pay BrightCloud cancellation charges by way of liquidated damages as a percentage of the list price of the cancelled equipment as detailed below.
Cancellation charges payable:
The Customer may not cancel the Order or portion thereof after delivery.
Goods returned to stock in special circumstances only.
6.1 Such goods will only be accepted for return if (a) approved by BrightCloud and covered by an official returns number issued by BrightCloud and (b) the intention to return is notified within 7 days of delivery.
6.2 Goods not in their original packing or damaged will not be accepted.
6.3 A restocking charge of 20% of the value of the Equipment will be payable.
6.4 BrightCloud’s obligation for the defective Equipment shall be limited to the repair or replacement (at its option) pursuant to provisions of Clause 7.
7.1 Unless otherwise agreed in writing the Equipment purchased hereunder is warranted on a return to depot basis against defects in workmanship and materials under normal and proper use and conditions in its unmodified condition for a period of 90 days from date of delivery or within the manufacturer’s warranty period.
7.2 As a condition of this warranty the Customer must:
If BrightCloud determines that the Equipment returned to it for warranty correction is not defective as herein defined, the Customer shall pay BrightCloud all costs of handling, diagnosis and transportation.
7.3 BrightCloud’s sole responsibility under the above warranty shall be at its option to either repair or replace the Equipment and/or components which fail during the Warranty period due to defects in workmanship and material provided the customer has promptly reported the same to BrightCloud in writing and BrightCloud has upon inspection found such equipment and/or components to be defective.
7.4 All replaced Equipment shall become BrightCloud’s property.
7.5 This warranty does not apply to Equipment or components which have been altered, treated, processed or worked upon while in the customer’s hands other than in the ordinary course of installation in accordance with BrightCloud’s installation manual or operated in accordance with the recommendations of BrightCloud or manufacturer.
7.6 Save as aforesaid all express or implied conditions or Warranties statutory or otherwise as to the state, quality, fitness, suitability or performance of the Equipment and components are expressly excluded.
8.1 The Customer agrees to notify BrightCloud promptly in writing of any action (and all prior claims related) brought against the Customer claiming that the Customer use or resale of BrightCloud’s products infringes a patent or copyright.
8.2 In the event that an injunction shall be obtained against the Customer’s use of the product by reason of such infringement BrightCloud will at its option and at its expense either procure replace or modify the same so that it becomes non-infringing or if the above is not reasonably feasible grant the Customer a credit for the normal depreciated value of the product.
8.3 BrightCloud will not be liable if the alleged infringement is based upon:
8.4 The foregoing states the entire liability of BrightCloud for infringement by the Equipment purchased.
8.5 BrightCloud retains all rights of Patent Design Copyright or otherwise in connection with Equipment supplied under the contract.
BrightCloud reserves the right without prior approval from, or notice to, the Customer to make changes to the Equipment:
10.1 All Equipment delivered by BrightCloud to the Customer shall remain the property of BrightCloud (and legal ownership shall remain vested in it) until the Customer has met all outstanding debts and other contractual obligations in relation to the Equipment.
10.2 Until such time as the Customer has paid in full all monies owing for any equipment supplied by BrightCloud the Customer shall keep in a fiduciary capacity for BrightCloud and shall take all steps necessary to ensure that the same are kept in a safe place and are properly insured to their full value while in the Customers custody.
10.3 Should the customer fail to complete the payment within the time stipulated or be in default of payment for any other reason than BrightCloud shall be entitled to stop all delivery of Equipment whether such deliveries relate to the contract under which the debt is still owed or not.
10.4 BrightCloud will in addition be entitled to terminate all outstanding orders and to repossess immediately all Equipment which is its property under sub-clause (1) and (2) of this Clause and the Customer expressly grants BrightCloud the right of entry on its premises to exercise such right of repossession.
11.1 BrightCloud will entertain no claim for loss or damage to the Equipment delivered unless notification of the nature and extent of such a claim is received by BrightCloud within ten days.
11.2 The liability of BrightCloud shall in no circumstances exceed the invoiced value of the goods lost or damaged.
If the customer shall make default in or commit any breach of any of his obligations to BrightCloud or if any distress or execution shall be levied upon the Customer his property or assets or if he (the Customer) shall compound with his creditors or commit any act of bankruptcy presented or made against him, or if the Customer shall be a limited company and any resolution or petition to wind up such company’s business shall be made, passed or presented otherwise than for reconstruction or amalgamation or if a receiver of such company’s undertaking property or assets or any part thereof shall be appointed BrightCloud shall have the right forthwith:
13.1 The Customer and BrightCloud undertake that they will keep confidential and not disclose to any third party without the other’s prior consent in writing any drawings or information (whether of a commercial or technical nature) required in connection with the Equipment.
13.2 BrightCloud and the Customer shall only divulge confidential information to those employees who are directly involved in the contract and will ensure that those employees are bound by the requirements of the Clause.
14.1 BrightCloud shall indemnify the Customer against any claims arising out of the death or physical injury of persons caused by the defects in any of the equipment supplied by BrightCloud.
14.2 BrightCloud shall indemnify the Customer against any claims arising from direct damage to property caused by any defect in the Equipment or by negligence of BrightCloud’s employees in connections with the performance of their duties. BrightCloud’s total liability under this Clause shall be limited to the value of the Equipment for any one event or connection of events.
14.3 In no event shall BrightCloud be liable to the Customer for loss of use, profits or contracts or any other indirect or consequential damages or losses however arising.
15.1 With regard to any Software developed or provided by BrightCloud or licensed by it specifically for the Order the title thereto shall remain in BrightCloud or the licensor (as the case may be) but BrightCloud shall grant to the Customer the free and unfretted rights to use and modify such Software for his own use. BrightCloud shall not be responsible for any defect in such Software should the Customer modify the same.
15.2 With regard to any Software supplied under the order over which BrightCloud and/or third parties hold title of other rights. BrightCloud shall permit or procure for the Customer (as the case may require) the right to use and apply that Software in the operation of the Equipment.
15.3 With regard to any Software, which is referred to in sub-clause 2 above the Customer undertakes not to disclose or make available any part or parts thereof to any third party without the prior, written consent on BrightCloud.
15.4 Software is supplied on the terms of the License Agreement provided with the equipment which is to be read in conjunction with these General Conditions of Sale.
16.1 The waiver by BrightCloud of any breach of any term of this Agreement shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
16.2 The Customer is an independent party and shall not have the authority to act for and /or bond BrightCloud in any way or to represent that BrightCloud is in any way responsible for acts of the Customer.
16.3 Either party hereunder may assign neither this Agreement nor any rights without the prior written consent of the other.
16.4 English Law shall govern this Agreement.
16.5 Neither party shall be responsible for any failure to perform or delay in performance of the contract due to Act of God, Embargo or Government, War or Strikes.
16.6 BrightCloud shall not be liable for any breach of the Conditions arising as a result of war, riot, explosion, fire, flood, strike or shortage of materials or labour.
16.7 In any of these Conditions or part thereof are held to be illegal then such Conditions or part thereof shall be severable and in no way invalidate the remainder.
The Customer accepts that BrightCloud may charge all reasonable expenses for travel and accommodation unless otherwise agreed in writing.
The Customer may cancel or change Consultancy Services only by giving written notice. The following will apply in each situation:
BrightCloud may waive the right to charge for a specific cancellation if we are able to deploy the Consultant’s time with an alternative customer (this is not always possible when consultancy days are cancelled close to the planned work). BrightCloud also reserves the right to charge for any non-refundable expenses incurred in respect of travel and accommodation arrangements made in line with this agreement for any consultancy days that are cancelled, irrespective of the notice period.
If work is delayed or over-runs due to events within the scope of our control, work may be extended with no further charge to the Customer.
If the provision of Consultancy Services is delayed through the fault of the Customer and caused by matters beyond the control of BrightCloud, the Customer shall pay the charges at BrightCloud’s prevailing hourly or daily rates in respect of idle-time incurred for the delay. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of delay.
During the Consultancy Services, BrightCloud Consultant will work towards the completion of the project deliverables defined in the Scope of Work (Service Engagement Document).
Should the Customer request additional assistance from BrightCloud Consultants with questions and requests for advice that are not directly included in the scope of the specified work then BrightCloud consultants will endeavour to assist with such matters to the extent that they do not result in a significant deviation from the project plan and timescales.
In the event that the provision of additional assistance or Consultancy Services to the Customer is likely to require increased time commitment from BrightCloud Consultants, then BrightCloud will endeavour to discuss any schedule impact and additional costs with the appropriate Customer representatives prior to proceeding with such assistance and Consultancy Services. Where discussion is not possible and the work is considered urgent by the customer then BrightCloud reserves the right to charge for such work at the appropriate rate.
All Consultancy Bank days purchased in advance of service delivery shall expire exactly 12 months after the Order date unless they are otherwise terminated in accordance with these Conditions, or otherwise lawfully terminated.
No work will be documented or reports produced without a specific request and time allocated.
The Customer and BrightCloud hereby undertake to each other that for the period of 12 months following completion of the Consultancy Services, neither of them will either directly or by an agent or otherwise and whether for himself or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his or her employment or an associate or contractor of any sort to breach the terms of his or her contract with the Customer or BrightCloud as the case may be.