These are Clearswift Corporation‘s (“Vendor”) standard terms and conditions of business which apply to the sale by vendor of the products or services identified on the invoice overleaf to the customer designated thereupon ("Customer").
Please read this content carefully.
Vendor draws customer's attention in particular to clauses 7 and 8 below and also the following:
- if this agreement concerns the sale of products comprising software, then the use of the software will be subject to additional terms and conditions (including restrictions, warranties, exclusions of liability and indemnities) contained in the applicable license agreement supplied with the software;
- if this agreement concerns the provision of services by vendor, then those services will be subject to additional terms and conditions (including warranties, exclusions of liability and indemnities) in the applicable services agreement; and
- if this agreement concerns the sale of products or provision of services to resellers or distributors, then the arrangement with resellers or distributors will be subject to additional terms and conditions (including warranties, exclusions of liability and indemnities) in the applicable reseller or distributor agreement.
If there is any conflict between any of the below terms and conditions and the terms and conditions of any license agreement, services agreement or reseller/distributor agreement (as applicable), then the terms and conditions of the latter shall prevail.
“Agreement” means these terms and conditions and the Invoice; “Products” means, where applicable, the products as set out on the front of the Invoice; “Invoice” means the invoice on the front of this document (overleaf); “Price(s)” means the price payable or paid for the Products and/or Services as set out on the Invoice; and “Services” means, where applicable, the services to be provided by Vendor to Customer as set out on the Invoice.
2.1 This Agreement, together with any applicable License Agreement, Services Agreement and/or Reseller or Distributor Agreement between Vendor and Customer, constitutes the entire and exclusive statement of the agreement and understanding between the Vendor and Customer with respect to the subject matter, and supersedes all prior agreements, proposals, representations and understandings (whether oral or written). No term, condition or provision that is different from or in addition to the provisions of this Agreement, which is proffered by Customer (whether in any purchase order, confirmation of order, specification or otherwise) shall form part of this Agreement or the relationship between Vendor and Customer, unless Vendor specifically agrees to such provision in a writing signed by Vendor.
2.2 The terms and conditions comprising this Agreement represent Vendor’s standard terms of business for the supply of Products and/or Services. No representations about the Products or Services shall be deemed to form part of this Agreement unless expressly agreed in writing and signed by a director of Vendor. All specifications, drawings, documentation, catalogues, price lists and advertising materials issued by Vendor from time to time are for the purposes of indicating the price and range of products offered and for information only, and do not form part of this Agreement.
3. ORDER ACCEPTANCE
3.1 All orders placed with Vendor by Customer shall be deemed to be an offer by Customer to purchase the Products or Services (as the case may be) on and subject to the terms and conditions of this Agreement.
3.2 All orders submitted are subject to availability and acceptance by Vendor, and shall not be deemed to be accepted by Vendor until the issuance of an Invoice by Vendor to Customer.
4. PERFORMANCE AND DELIVERY
4.1 Any times and dates specified by Vendor for delivery of the Products and/or provision of Services are intended to be an estimate only and are not, and shall not be made, of the essence.
4.2 Unless otherwise agreed (or as set out on the Invoice), delivery of the Products shall take place and shall be deemed to have occurred on the earlier of:
4.2.1 date of shipment of the Products from Vendor’s place of business by Vendor to Customer; or
4.2.2 date of shipment or transmission of any license key which enables use of any software supplied as or as part of the Products.
4.3 The quantity of any consignment of Products as recorded by Vendor upon shipment shall be conclusive evidence of the quantity received by Customer unless Customer can provide conclusive evidence proving to the contrary.
5. RISK AND TITLE
5.1 Risk of loss of and/or damage to the Products shall pass to Customer on shipment and subject to sub-clause 5.3, Vendor accepts no liability for loss or damage arising during transit.
5.2 If Customer fails to accept delivery of the Products (or part thereof), or if Vendor is unable to deliver the
Products on time because Customer has not provided appropriate instructions, documents, licenses or authorizations:
5.2.1 risk in the Products shall be deemed to have passed to Customer (including for loss or damage caused by the Vendor’s negligence) in accordance with sub-clause 5.1;
5.2.2 the Products shall be deemed to have been delivered; and
5.2.3 Vendor may store the Products until collection by Customer or re-delivery whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.3 Vendor shall use reasonable efforts to meet any delivery date specified in an applicable order, but will not be liable for any late or non-delivery of Products (even if caused by its negligence). In the event that Vendor shall be liable to Customer for late or non-delivery, subject to clause 7, such liability shall be limited to replacing the Products within a reasonable time or, at Vendor's option, refunding to Customer the sums paid for such Products.
5.4 Title to the physical Products (but excluding any software) shall not pass to Customer unless and until Vendor has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all and any other sums which are or which become due to Vendor from Customer on any account. Until title has passed to Customer, Customer shall:
5.4.1 hold the Products on a fiduciary basis as Vendor’s bailee;
5.4.2 store the Products (at no cost to Vendor) separately from all other of Customer’s products (or those of any other party) in such a way that they remain readily identifiable as Vendor’s property;
5.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
5.4.4 maintain the Products in their original condition and keep them insured on the Vendor’s behalf for their full price against all risks to the reasonable satisfaction of Vendor. Customer shall produce to Vendor on request the policy of insurance;
5.4.5 hold the proceeds of any insurance referred to in sub-clause 5.4.4 on trust for Vendor and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
5.4.6 not encumber or charge the Products in any way or part with possession thereof.
5.5 Prior to title of the physical Products passing in accordance with sub-clause 5.4, Customer’s right to possession of the Products shall terminate immediately if:
5.5.1 Customer (a) ceases to function as a going concern, (b) makes a general assignment for the benefit of creditors, (c) has a receiver, trustee in bankruptcy or similar officer appointed to take charge of all or any part of Customer's property or business, or (d) avails itself of, or becomes subject to any liquidation proceeding under the Federal Bankruptcy Act or under any other statute of any state relating to bankruptcy, insolvency, dissolution or liquidation; or
5.5.2 Customer breaches any term of this Agreement (or any other contract between Vendor and Customer); or
5.5.3 Customer encumbers any of the Products.
5.6 Vendor shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Vendor.
5.7 Customer grants to Vendor, its agents and employees an irrevocable license at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6. PRICE AND PAYMENT
6.1 Payment of the Price is due, and shall be made by Customer, within 30 days from the date of this Invoice. Time for payment shall be of the essence. No payment shall be deemed to have been received until Vendor has received cleared funds.
6.2 Customer shall make all payments without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. All Prices are exclusive of value added tax, sales tax, import taxes, tariffs or levies and any similar taxes, duties or levies. All such taxes, duties, tariffs or levies are payable by Customer in accordance with relevant legislation.
6.3 All sums payable to Vendor under this Agreement shall become due immediately upon termination of Agreement.
6.4 Any sums not paid when due will be subject to a finance charge of 1.5% per month or the highest rate allowable by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of any interest will not excuse or cure Customer's breach or default for late payment. Vendor may accept any check or payment in any amount without prejudice to Vendor's right to recover the balance of the amount due or to pursue any other available right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.
7. LIMITATION OF LIABILITY
7.1 Except as otherwise provided in an applicable license agreement, services agreement or reseller or distributor agreement, to the fullest extent permitted by law, in no event will vendor be liable to customer for any loss or damage whatsoever in connection with this agreement, whether direct, indirect, special, incidental or consequential (including, without limitation, lost profit, impaired goodwill or other financial loss) and whether arising in contract (including under any indemnity or warranty), in tort (including negligence) or under any applicable legislation or otherwise howsoever caused and notwithstanding any fault, negligence, strict liability or product liability of vendor.
7.2 Should any portion of the foregoing limitations on liability be deemed unenforcable, in no event shall vendor be liable to customer in respect of any loss or damage whether arising in contract (including under any indemnity or warranty), in tort (including negligence) or under any applicable legislation or otherwise howsoever in connection with this agreement (including, without limitation, late delivery under sub-clause 5.3 in excess of the price paid by customer for products and services hereunder.
7.3 No claim or cause of action may be asserted against vendor in connection with this agreement by customer at any time after 18 months after the grounds for such claim or cause of action arises.
8.1 Except as otherwise provided in an applicable license agreement, services agreement or reseller or distributor agreement, vendor is providing the products and services "as is" and without warranty of any kind. Vendor hereby disclaims all warranties and conditions with regard to such products and services, including, without limitation, any implied warranty arising from course of performance, course of dealing or usage of trade or the implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement.
9. CONFIDENTIAL INFORMATION
9.1 Customer agrees to keep confidential all information (whether written or oral) concerning the business, trade secrets, know-how, customers, suppliers and affairs of Vendor together with all information, data, drawings, specifications, documentation, software listings, source or object code which Vendor may have disclosed and may from time to time disclose to in connection with this Agreement (the “Confidential Information”).
9.2 Customer agrees that the Confidential Information is commercially valuable and proprietary to Vendor. Customer further agrees that it shall be used by Customer solely in accordance with the provisions of this Agreement, and that Customer shall not at any time during or after expiry or termination of this Agreement, disclose the Confidential Information, whether directly or indirectly, to any third party without Vendor's prior written consent.
10.1 Any communication or other document to be given by a party under this Agreement shall be in writing and shall be considered to have been given if hand delivered to the other party's representative or sent by registered post or facsimile to the other party as follows:
Vendor: The Contracts Manager, Clearswift Corporation, 309 Fellowship Road, Suite 200, Mount Laurel, NJ 08054, United States of America, Fax: +1 856-359-2361
Customer: as set out on the invoice
or such other address as one party may from time to time designate by written notice to the other.
10.2 Any communication or other document shall be considered to have been received by the addressee 3 business days following the date of mailing of the notice or other document by registered post or air mail or where the notice or other document is delivered by hand or is sent by facsimile, simultaneously with the delivery or transmission. To prove that a notice or other document was received it shall be sufficient to show that it was mailed or successfully transmitted.
11.1 This Agreement is personal to Customer, and Customer may not assign, transfer, sub-contract, sub-license, encumber, novate or otherwise part with this Agreement or any right or obligation under it without Vendor’s prior written consent.
11.2 Vendor may assign, transfer, sub-contract, sub-license, encumber, novate or otherwise part with this Agreement or any right or obligation under it in its absolute discretion.
11.3 Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by each of the parties and their respective successors and assigns.
12 FORCE MAJEURE
12.1 Vendor reserves the right to defer the date of delivery or to cancel this Agreement or reduce the volume of the Products (without liability to Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Vendor including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 60 days, Customer shall be entitled to give notice in writing to Vendor to terminate this Agreement.
13.1 Headings used in this Agreement are for convenience only, have no legal effect and shall not affect its construction.
13.2 Words in this Agreement in the singular shall include the plural and vice versa; words importing a gender include every gender and references to persons include corporations, partnerships and other incorporated associations or bodies of persons;
13.3 The relationship between the Vendor and Customer is that of independent contractors. Neither party is the agent of the other, and neither party has any authority to make any contract or make any obligation expressly or impliedly in the name of the other party, without that party's prior written consent for express purposes connected with the performance of this Agreement.
13.4 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
13.5 If any provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, then it is the intention of the parties that Vendor shall amend that provision in a reasonable manner to the extent necessary to render it enforceable without losing its intent, or at Vendor’s discretion, such provision shall, to the extent of the unenforceability, be deemed not to form part of the Agreement. In either case, such provision will not affect the legality, validity or enforceability of any other provision of this Agreement, which shall continue in force and effect.
14 THIRD PARTY BENEFICIARIES
14.1 This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
15 LAW AND JURISDICTION
This Agreement shall be governed by and interpreted in accordance with the laws of the state of New York, United States of America, without respect to its conflicts of laws principles to the contrary. Customer irrevocably submits to the exclusive jurisdiction and venue of the state and federal courts of the State of New York in relation to all claims, suits and proceedings arising out of or related to this Agreement of the subject matter hereof and will not commence or prosecute such a claim, suit or proceeding other than in such courts.