Terms and conditions of supply

1. DEFINITIONS

“Client” means the party identified as the “Client” in this Agreement to whom Trace may agree to supply Products and /or Services in accordance with this Agreement.

“Trace” means Trace Solutions Limited, 30A Great Sutton Street, London EC1V 0DU or any subsidiary or associated company.

“Products” means the products including but not limited to computer hardware and software items detailed in the attached Schedule to be provided by Trace to the Client in accordance with this Agreement.

“Services” means the services detailed in the attached Schedule to be provided by Trace to the Client in accordance with this Agreement.

“Third Party Software” means all software owned by or licensed to the Client from a third party owner (whether or not supplied by Trace) and which may comprise part of the Products.

2. ORDER ACCEPTANCE

2.1 All orders placed with Trace by the Client for Products and/or Services shall constitute an offer to Trace, under the terms and conditions of this Agreement, subject to availability of the Products and to acceptance of the order by Trace’s representative.

2.2 All orders are accepted and Products and/or Services supplied subject to these express terms and conditions only.  No amendment of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by Trace’s authorised representative.

3. INDEPENDENT CONTRACTOR

The relationship between the Trace and Client is that of independent contractor.  Neither party is the agent of the other and neither party has any authority to make any contract or make any obligation expressly or implied in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this Agreement.

4. DESPATCH

4.1 Any time quoted for despatch is to be treated as an estimate only, as despatch may be postponed because of conditions beyond Trace’s reasonable control, and in no event shall Trace be liable for any damages or penalty for delay in despatch or delivery.

4.2 Risk shall pass to the Client at the time the Products are despatched by Trace.  Trace accepts no liability for loss or damage caused by the carrier.

If Products have not been received, the Client must notify Trace within 7 days of the invoice.  If proof of delivery is required, this must be requested within 14 days of the date of invoice.

5. CANCELLATIONS AND RESCHEDULING

Any request by the Client for cancellation of any order for the Products or for rescheduling of deliveries of the Products will only be considered by Trace if made at least 12 hours before despatch the Products, and shall be subject to acceptance by Trace at Trace’s sole discretion, and subject to a reasonable administration charge therefore by Trace.  The Client hereby agrees to indemnify Trace against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.

5.1 Costs quoted for technical staff time will be payable in full if service is cancelled within 48 hours.

6. VARIATION to the SERVICES

There will be no variation, alteration or addition to the Services detailed in the Schedule hereto unless the parties have agreed such variation, alteration or addition in writing. Where Trace agrees at the Client’s request to a variation, alteration or addition to the Services detailed in the Schedule, the Client shall pay Trace the cost of such variation, alteration or addition at the time.

7. PRICES

Price Lists and other advertising literature or material as used by Trace are intended only as an indication as to price and range of Products and Services offered and no prices, descriptions or other particulars contained therein shall be binding on Trace.

All prices for Products are given by Trace at the time of the order on an ex-works basis and the Client is liable to pay for transport, packing and insurance.

All quoted or listed prices for Products are based on the costs to Trace of supplying the Products to the Client.  If before delivery of the Products there occurs any increase in any way of such costs in respect of Products that have not yet been delivered, the price payable may be subject to amendment without notice at Trace’s discretion.

All prices are exclusive of Value Added Tax and any similar taxes.  All such taxes are payable by the Client and will be applied in accordance with UK legislation in force at the tax point date

8. PAYMENT TERMS

8.1 Invoices will be raised and dated by Trace. Unless otherwise specifically negotiated and agreed, invoices will be payable by the Client 30 days from the date of the invoice.  Unless otherwise specifically negotiated and agreed, payment for hardware and/or third party items must be made on order.

Payments which are not received when payable will be considered overdue and remain payable by the Client together with interest for late payment from the date payable at the rate of 2% per annum above the base for the time being of the National Westminster Bank plc.  Such interest shall accrue on a daily basis and shall be payable on demand after as well as before judgement.

8.2 When all prices, taxes and charges due in respect of the Products and any products supplied previously to the Client have been paid in full, title to hardware products only shall pass to the Client.

8.3 Until such time as the property in the Products passes to the Client (and provided that the Products are still in existence and have not been resold), Trace shall be entitled at any time to require the Client to deliver up the Products to Trace and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Products are stored and repossess the Products.

8.4 Trace reserves the right to cease supplies of Products or to provide Services to the Client at any time. On such cessation, Trace reserves the right to withdraw any credit facility such that the whole of the Client’s account becomes due for payment forthwith.

9. SPECIFICATION OF PRODUCTS

Trace will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation.  Trace will use its reasonable endeavours to advise the Client of any such impending variation as soon as it receives any notice thereof from the manufacturer.

Unless otherwise agreed, the Products are supplied in accordance with the manufacturers’ standard specifications and these may be improved, substituted or modified.  Trace reserves the right to increase its quoted or listed price, or to change accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the products.

10. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS

10.1 The Client hereby acknowledges that any proprietary rights in any Third Party Software supplied hereunder including but not limited to any title or ownership rights, patent rights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner.

10.2 The Client hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by Trace (including if so required the execution and return of a Third Party Software licence).  The Client is hereby notified that failure to comply with such terms and conditions could result in the Client being refused a software licence or having the same revoked by the proprietary owner.  The Client further agrees to indemnify Trace in respect of any costs, charges or expenses incurred by Trace at the suit of a Third Party Software owner as a result of any breach by the Client of such conditions.

10.3  NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE LICENSED TO THE CLIENT UNDER THIS AGREEMENT IS TRANSFERRED TO THE CLIENT UNDER ANY CIRCUMSTANCES.

10.4 The copyright of all programs supporting systems designed and written by Trace shall belong to Trace and not the Client.

10.5 The Licence for any programs where installed at the Client’s premises (which are not third party programs) is granted on the payment of an agreed fee in force at the time of installation and is subject to annual maintenance charges during the duration of the Licence (such Licence fee will not cover alterations to the original specifications of the program).

10.6 Programs or special reports written for the Client (whether held on the Client’s premises or otherwise) will be subject to an annual maintenance fee.

11. RETURNS

11.1 Trace reserves the right to levy an administration charge in respect of the rotation of Products and returns.

11.2 Returns may only be made subject to the following: –

• (a) Prior authority having been obtained from Trace, which will be given at Trace’s sole discretion;
• (b) Within 30 days of the date of the invoice;
• (c) The Products must be properly packed;
• (d) The Products must be in a saleable condition;
• (e) The Products must be accompanied by a detailed packing list;
• (f) The Products are covered by warranty (see section 12).

11.3 Trace reserves the right to reject any Products returned which do not comply with the conditions set out in clause 11.2.

11.4 If Trace nevertheless agrees to accept any Products returned in a non-saleable condition, Trace reserves the right to charge the cost to the Client of bringing the Products to a saleable condition.

12. WARRANTY

12.1 Trace warrants that it has good title to or licence to supply all Products to the Client.

12.2 If any part of the hardware Products prove defective in materials or workmanship under normal operation or service, such Products will be repaired only in accordance with any warranty cover and terms provided by the manufacturer of the Products PROVIDED THAT no unauthorised modifications to the Product or to the system of which the Product forms part have taken place.  Trace is not responsible for the costs of labour or other expenses incurred in repairing or replacing defective or non-conforming parts or for reloading software corrupted by hardware failures.

12.3 All Third Party Software Products supplied hereunder are supplied “as is” and the sole obligation of Trace in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Product should fail to conform to its product description PROVIDED ALWAYS THAT the Client notifies Trace of any such non-conformity within 90 days of the date of delivery of the applicable software Product.

12.4 If the Products are rejected by the Client as not being in accordance with the Client’s order pursuant to clause 12.2 or 12.3, Trace will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection.  Trace will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company.  Under no circumstances shall invoiced Products be deducted or set off by the Client until Trace has issued a corresponding credit note.

12.5 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 12, TRACE DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.

13. INDEMNITIES AND LIMITS OF LIABILITY

13.1 Trace will indemnify the Client for direct physical injury or death caused solely by defects in any of the Products or caused solely by the gross negligence of its assigned employees acting within the course of their employment and the scope of their authority.

13.2 Except as stated above, Trace disclaims and excludes all liability to the Client in connection with these terms and conditions including the Client’s use of the Products or the provision of Services to the Client and in no event shall Trace be liable to the Client for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of the Products or the provision of the Services.  All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.

13.3 The Client shall indemnify and defend Trace and its employees in respect of any claims by third parties, which are occasioned or arise from any Trace performance or non-performance pursuant to the instructions of the Client or its authorised representative.

14. TERMINATION

14.1 In the event that the Client wishes to terminate this agreement, then the Client must provide Trace with 12 months written notice thereof, such notice to expire on an anniversary of the date of commencement of this agreement.

This agreement may be terminated forthwith in notice by writing:

14.2 By Trace if the Client fails to pay any sums due hereunder by the due date notwithstanding the provisions of late payment in clause 8.1.

14.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.

14.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a Receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.

14.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.

15. EXPORT AND/OR RE-EXPORT LIMITATION

Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Client to Trace of an ultimate destination for any Products, the Client will not export or re-export directly any Products without first obtaining all such written consents as may be required by any applicable government regulations.

16. CONTRACT

16.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.

16.2 No forbearance, delay or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.

16.3 The Client agrees not to assign any of its rights herein without the prior written consent of Trace.
In the event of any of these terms and conditions or any part of any of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.

16.4 Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.

16.5 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this agreement.

16.6 Trace  will act at all times in accordance with Date Protection Legislation ( which is deemed to include the Data Protection Act 2018 and the GDPR (Regulation (EU) 2016/679 and any equivalent legislation amending or implementing the GDPR from time to time)  for the purposes of processing personal data and maintaining computerised records.

16.7 These terms and conditions shall be governed and construed in accordance with English Law.