Terms and Conditions of Sale (Effective from January 2017)
In buying from Consulto Ltd, the Customer acknowledges and agrees that it is buying goods and services as a business and not as a consumer.
The warranty provisions in clause 15 below set out Consulto Ltd’s responsibilities to the Customer in more detail: but as a business, purchases the Customer makes from Consulto Ltd will not benefit from the same statutory protection available to consumers under the Sale of Goods Act 1979 (as amended), the Consumer Contracts Regulations 2013 or any other consumer protection legislation.
Unless the context otherwise requires, the words “include(s)” and “including” will be construed without limitation and words in the singular shall include the plural, and vice versa. The headings in the Agreement are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of the Agreement. The following terms shall have the meaning set out below:
“Agreement” these terms and conditions, together with the relevant order form;
“Customer” a purchaser or licensee of the Products;
“Hardware” the computer equipment and other physical items to be purchased;
“Intellectual Property any and all patents, trademarks, service marks, copyright, database Rights” rights, moral rights, rights in a design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating or attached thereto;
“Products” any Hardware or Software sold or licensed by Consulto Ltd or any Subscription Service provided by Consulto Ltd, registered address of 58 Talbot Street, Nottingham, NG1 5GL, registered in England, registration number 10540171;
“Site” the Customer’s premises where the Products will be delivered and / or installed;
“Software” the software to be purchased and related materials, updates and enhancements developed by Consulto Ltd or third parties and supplied by Consulto Ltd;
“Subscription Service” access to a website or service over a period of time determined by Consulto Ltd;
“Working Day” the hours of 9am – 5pm, Monday to Friday inclusive excluding public/bank holidays in England and Consulto Ltd’s shutdown period between Christmas and New Year each year.
2.1 Unless a written quotation has been given (whereupon the price quoted will be fixed for a period of thirty (30) days or such other period as is specified therein) the prices for the Products are subject to alteration without notice and the price charged to the Customer will be that applicable at the date of Consulto Ltd’s acceptance of the order. Orders are not binding upon Consulto Ltd until accepted by Consulto Ltd. All prices are exclusive of value added tax (and any similar tax), packing, carriage, insurance and installation. Where applicable, these will be added as separate items on Consulto Ltd’s invoice.
2.2 Orders will be deemed accepted and binding on both parties as follows:
2.2.1 where an authorised officer of Consulto Ltd issues written acceptance to the Customer, at the point of such acceptance; or
2.2.2 in all other circumstances, following full payment for the Products or at the point that Consulto Ltd commences delivery of the Product in question.
2.4 In particular, but without limitation to the generality of the foregoing, the generation of any automatic electronic responses shall not constitute acceptance of an order.
3.1 Consulto Ltd may share customer credit history information with relevant credit agencies. Consulto Ltd reserves the right to run a credit check with a relevant credit agency before giving a Customer credit, and to validate any credit card account holder or delivery address details.
3.2 Consulto Ltd remains the owner of the Products until these have been paid for in full.
3.3 Unless otherwise notified to the Customer in writing by Consulto Ltd, the Customer shall pay for Products at the time of order. Where the Customer is invoiced by Consulto Ltd on the date of delivery for the Products, the Customer shall pay all invoices within thirty (30) days of the date thereof (time being of the essence). Terms of payment are within Consulto Ltd’s sole discretion.
3.4 Until payment of the order in full:
3.4.1 Consulto Ltd shall have absolute authority to retake, sell or otherwise deal with or dispose of any or part of the Products;
3.4.2 the Products will appear in the Customer’s books in the name of Consulto Ltd;
3.4.3 in the event of threatened liquidation or threatened seizure of the Products, the Customer will immediately notify Consulto Ltd and Consulto Ltd may take action to repossess the Products. The Customer will also notify interested third parties of Consulto Ltd’s ownership of the Products;
3.4.4 for the purpose specified in 3.4.3 above, Consulto Ltd or any of its agents or authorised representatives shall with reasonable cause be irrevocably entitled at any time and without notice to enter upon any premises in which the Hardware or any part thereof is installed, stored or kept, or is reasonably believed so to be; and
3.4.5 Consulto Ltd shall be entitled to seek a Court injunction to prevent the Customer from selling, transferring or otherwise disposing of the Hardware.
3.5 Consultancy day pre-orders that have been paid for are time capped to a maximum period of 6 months. Any consultancy days must be fulfilled prior to this 6 month cap; any requests to fullfill a prepaid consultancy day past 6 months will be at the sole discretion of Consulto Ltd.
4. Automatic Renewal Products
4.1 Consulto Ltd may offer some Products which have automatic renewals. Consulto Ltd will inform the Customer by email, using the email address provided, before automatically renewing any Subscription Service, together with details regarding how to cancel such renewal. Once Consulto Ltd has informed the Customer that the subscription will be automatically renewed, Consulto Ltd will automatically renew the services and charge the Customer the then current price for the renewal term. Consulto Ltd will charge the Customer’s chosen payment method for the subscription Product renewal. The Customer must cancel the Subscription Service before the renewal date set out in the relevant contract for the Subscription Service or, in the absence of such contract, thirty (30) days before the renewal date to avoid being charged and invoiced for the renewal. Consulto Ltd reserves the right to charge an additional administration fee to set up or renew any Subscription Service where the Customer has opted out of the aforementioned automatic renewal provision.
5. Late payment
5.1 Consulto Ltd reserves the right to charge interest and compensation under the Late Payment of Commercial Debts (interest) Act 1998 from time to time on any payment or any part payment overdue calculated from the date due and to recover its expenses including legal fees and costs of collection and to suspend delivery, performance of any warranty or (at Consulto Ltd’s option) forthwith to determine the same. Consulto Ltd has no obligation to provide service or support until Consulto Ltd has received full payment for the Product or services or support that the Customer has purchased.
5.2 If any sum owed by the Customer to Consulto Ltd under the Agreement or any other contract the Customer has with Consulto Ltd is not paid by the due date, Consulto Ltd may deduct this sum from any
payment or credit due to the Customer under the Agreement or any other contract with Consulto Ltd.
5.3 Consulto Ltd reserves the right to suspend or cancel the Customer’s credit account if any invoice is overdue.
6. Site preparation and access
6.1 If Consulto Ltd installs the Product the Customer:
6.1.1 agrees to prepare the Site according to any instructions Consulto Ltd may give and to provide Consulto Ltd with reasonable access to the Site for the purposes of the Agreement; and
6.1.2 will obtain any permission needed, including permission for any changes to the Site. For the avoidance of doubt this includes, without limitation, any licences, planning permissions or other consents.
6.2 The Customer and Consulto Ltd will meet each other’s reasonable safety and security requirements when on the Site. If the Customer or Consulto Ltd damages the other’s equipment it must pay for any repair or replacement needed.
6.3 The Customer is responsible for making the Site good, after any work undertaken by Consulto Ltd at the Site, including putting items back and for re-decorating.
7. Delivery and Installation
7.1 Upon delivery, the Customer is responsible for protecting and insuring the Products against loss, damage or destruction.
7.2 All deliveries shall be made during Working Days. If the Customer requires delivery to be made outside such times, subject to Consulto Ltd’s sole discretion, an additional charge shall be payable. Consulto Ltd reserves the right to make partial deliveries.
7.3 If the Customer delays or prevents the delivery or installation of the Products, Consulto Ltd may apply reasonable additional charges.
7.4 Dates for delivery of the Products are estimates only and are subject to Consulto Ltd’s availability schedule. Consulto Ltd shall use its reasonable endeavours to meet any delivery date acknowledged but shall not be liable for failure to meet such date. Consulto Ltd does not accept liability for delays and time shall not be of the essence. Consulto Ltd will try to inform the Customer if Consulto Ltd believes that performance is likely to be delayed for any reason.
7.5 Where Consulto Ltd installs Hardware, Consulto Ltd shall perform the standard inspection diagnostic checks. If Consulto Ltd has not agreed to install the Hardware, the Customer shall be responsible for the installation of Hardware in accordance with instructions provided by Consulto Ltd or third party supplier. If installation is not performed by Consulto Ltd, Consulto Ltd shall be under no obligation to perform any acceptance test procedures and the date of acceptance shall be the date of delivery to the Customer.
7.6 For Consulto Ltd installed Products, satisfactory completion of Consulto Ltd’s standard test procedure and an Acceptance Form (if applicable) signed by the Customer, which the Customer shall not unreasonably refuse to sign, and Consulto Ltd will be sufficient to establish acceptance. If the Acceptance Form is not signed by the Customer within seven (7) days after installation of the Products and in the absence of written notification of valid reasons justifying non acceptance, the Customer shall be deemed to have accepted the Products on the eighth (8th) day.
8.1 Any Software made available to download or purchase from Consulto Ltd is the copyrighted work of Consulto Ltd and/or its suppliers. When the Customer purchases Software, the Customer is actually purchasing a license to use the Software rather than purchasing the Software itself. Software licenses purchased from Consulto Ltd are subject to the licence agreement that accompanies the Software (the “Licence Agreement”). The Customer will be required to agree to the terms and conditions of the Licence Agreement when the Software is installed.
8.2 If the Customer is furnished with a developer’s software licence, the same must be signed and returned to Consulto Ltd or, if applicable, the developer within seven (7) days or as otherwise specified in the said licence. In the event that the Customer fails to sign and return the said licence in accordance with this sub-clause:
8.2.1 Consulto Ltd reserves the right to withhold release and/or support of the Software; or
8.2.2 if Software has been released to the Customer, Consulto Ltd reserves the right to terminate the Software Licence and to receive full payment for the Software.
8.3 Subject to clause 8.2, upon delivery of the Software, the Customer will be granted and will accept a non-exclusive, non-transferable licence to use the Software on a single designated system or temporary back up system containing not more than one central processing or master unit (“CPU”), on the terms of the Agreement including the following:
8.3.1 the Customer undertakes not to copy Software in whole or in part other than up to a maximum of three (3) machine readable copies for Customer’s internal use on a single designated CPU;
8.3.2 the Customer undertakes not to reproduce, translate, adapt, vary or modify the Software;
8.3.3 the Customer undertakes to reproduce and include Consulto Ltd’s or any third party’s copyright notice and/or any other legend on each copy of the Software including partial copies and modifications of the Software; and
8.3.4 the Customer agrees not to reverse assemble or reverse compile the Software in whole or in part except to the extent permitted by law.
8.4 The Customer shall grant access to the Software only to those employees and contractors requiring such access and shall take all such reasonable steps to ensure that all such persons are bound by the same obligations as the Customer and in particular shall ensure that such obligations are expressed so as to enure beyond any termination of such persons’ contracts with the Customer.
8.5 Consulto Ltd shall be entitled from time to time during a Working Day, on giving reasonable notice, to enter on to the Customer’s premises where the Software is installed to verify whether the Customer is complying with the Agreement.
9. Order Amendments
9.1 The Agreement cannot be varied without the written agreement of the parties, except that Consulto Ltd may make minor changes to the specification of the Products at any time and without notice which do not materially affect the performance of the Products.
9.2 The Customer may request an amendment to an order prior to despatch of the Product. Amendments requested by the Customer may incur an additional charge to be calculated by Consulto Ltd at its sole discretion and may result in delayed delivery of the Product. A Customer may only request an amendment to an order in writing (including via email). The request must state clearly the Customer name, order number, the requested amendment and the reason for the amendment. No change to the order will be effective until Consulto Ltd has confirmed in writing (which for these purposes shall include e-mail) its acceptance to a Customer requested amendment.
9.3 Consulto Ltd may request an amendment to an order prior to delivery of the Product. Amendments requested by Consulto Ltd may incur an additional charge and may result in delayed delivery of the Product. Consulto Ltd will only request an amendment to an order in writing (which for these purposes shall include e-mail) setting out the reason for the amendment. The Customer has five (5) Working Days to reject the order amendment, otherwise the revised order will be valid for the purposes of the Agreement.
10. Cancellation and Returns
10.1 The Customer must ensure that all Products are inspected IMMEDIATELY upon delivery and in all cases the Customer must inform Consulto Ltd of any defects or damages in writing or via telephone within two (2) Working Days of delivery so that the repair or replacement process can begin with the manufacturer.
Damage in transit
10.2 Consulto Ltd will accept responsibility for damages or loss in transit only if:
10.2.1 the Customer reports the damage or loss in accordance with clause 10.1;
10.2.2 such loss or damage is noted on the consignment note or delivery document upon receipt;
10.2.3 the added packaging is retained for inspection; and
10.2.4 the Products are handled by the Customer in accordance with Consulto Ltd’s or the carriers conditions of carriage or handling stipulations.
10.3 Where Consulto Ltd accepts responsibility under clause 10.2, Consulto Ltd shall at its option replace or repair any Products proved to Consulto Ltd’s satisfaction to have been lost or damaged in transit.
Non-cancellable / Non-returnable Products
10.4 Returns of the Products, unless they are dead on arrival, will not be accepted in the following circumstances:
10.4.1 the Products were made to the Customer’s own specification or configured to order;
10.4.2 audio or video recordings or Software that the Customer has unsealed;
10.4.3 open packaged Software or pre-loaded / downloaded Software Licences; or
10.4.4 a Product stipulated on the order form or quotation as non-cancellable or non-returnable.
10.5 For quotes / orders containing exclusively non-standard items the entire quote / order shall be designated as non-cancellable / non-returnable. For quotes / orders containing both standard and non-standard items, only the non-standard items or items the Customer has been told are non-returnable shall be non-cancellable / non-returnable.
10.6 With the exception of the Products which fall within clause 10.4 above, the Customer may cancel an order after acceptance of the order by Consulto Ltd, but before despatch of the Product, subject to a cancellation fee of up to but not greater than the total order value. Such cancellation fee to be calculated by Consulto Ltd at its sole discretion and may include:
10.6.1 Consulto Ltd’s charges for order processing and management; and / or
10.6.2 a restocking fee of the manufacturer; and / or
10.6.3 the full charges for the Product.
10.7 Consulto Ltd normally allows Customers to return unopened Products, however all returns are at Consulto Ltd’s sole and absolute discretion. Consulto Ltd will only consider returns provided:
10.7.1 the Customer informs Consulto Ltd, in writing (including via email), of its wish to return the unopened Product within seven (7) Working Days following delivery, whereupon Consulto Ltd shall give further instructions regarding the returns process which the Customer must follow;
10.7.2 the Product is received by Consulto Ltd, or such other place as instructed to the Customer by Consulto Ltd, within fourteen (14) days of the date the Product was delivered to the Customer; and
10.7.3 the manufacturer accepts the return of the goods and certifies that they are in resaleable condition.
10.8 In all events the Customer will be responsible for the cost of returning the Product to Consulto Ltd or the manufacturer and will be responsible for up to the full value of the Product if it is received damaged, opened or not in a resaleable condition.
10.9 In circumstances where return of Product(s) is permitted by Consulto Ltd, Consulto Ltd will issue a credit note on the Customer’s account so that the invoice for the relevant Product is deemed cancelled. In the event a Customer has paid for the Products in full, a refund will be granted.
Opened Product: Dead on Arrival (“DOA”)
10.10 The Customer must satisfy themselves of the manufacturer’s DOA or warranty policies before they purchase the Products. Individual manufacturer’s DOA policies should be included in the warranty which is delivered with the Product. The Consulto Ltd customer service department will not have details of the DOA policies.
10.11 If the Customer has inspected the Products in accordance with clause 10.1 and finds the Products to be DOA, the Customer must contact Consulto Ltd within two (2) Working Days to obtain a repair or refund. Consulto Ltd will not accept the return of faulty goods to Consulto Ltd’s premises.
10.12 The refund or replacement of faulty or defective DOA Products is subject strictly to individual manufacturer’s DOA policies.
10.13 The Customer may be required to contact the manufacturer’s technical department to troubleshoot and / or to obtain DOA authorisation which must be retained by the Customer and presented to Consulto Ltd upon request.
10.14 The Customer is also required to make a note of any call / case reference numbers issued by the manufacturer to assist Consulto Ltd with return of the DOA Product.
10.15 In the case where it is established that Products are faulty or defective Consulto Ltd’s customer service department will arrange with the Customer to have the Products collected. In some instances the manufacturer’s warranties require the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by Consulto Ltd’s customer service department.
10.16 Generally any returns will need to authorised by the manufacturer via Consulto Ltd and then any credit will only be issued once the manufacturer has confirmed acceptance of the return and confirmed that Consulto Ltd will receive the credit. If the Customer reports a fault and Consulto Ltd finds there is none or that the Customer has caused the fault, Consulto Ltd may apply a charge. Any credit will exclude the original cost of delivering the Product plus any restocking fee.
10.17 The Customer is responsible for ensuring that the Products are returned in their original packaging together with all disks, manuals and cables so as to ensure safe transit and ease of identification.
10.18 If a fault is found and an applicable manufacturer’s DOA period is not exceeded, then the Products will be repaired and / or replaced under the terms of the manufacturer’s warranty.
10.19 Without prejudice to clause 15 below, the remedies in this returns section represent the Customer’s sole and exclusive remedies in respect of any issues experienced with the DOA Products provided by Consulto Ltd.
11.1 Consulto Ltd shall have the right, without prejudice to any other remedies, at any time by giving notice in writing to the Customer to terminate forthwith the Agreement, including any Software licence in any of the following events:
11.1.1 if the Customer commits any breach of any of the Agreement provided that if the breach in question is one which the Customer can effectively remedy then the said notice of termination shall not be effective to terminate the Agreement unless the Customer fails within thirty (30) days of the date of such notice effectively to remedy the breach complained of;
11.1.1 if the Customer ceases to carry on business or substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due;
11.1.2 the Customer has given any false or misleading information to Consulto Ltd;
11.1.3 the Customer is in material breach of the Agreement, which includes non-payment of any valid invoice by the due date; or
11.1.4 if the Site is changed.
11.2 If Consulto Ltd is prevented, hindered or delayed from performing any obligation under the Agreement because of something beyond its reasonable control including: act of God, natural disaster, lightning, flood, subsidence, earthquake, weather conditions, epidemic, pandemic, fire, explosion, war, civil disorder, acts of terrorism, something beyond the reasonable control of its suppliers, industrial disputes, acts or omissions of local or central government or other competent authorities, or acts or omissions of parties for whom Consulto Ltd is not responsible, change of law or any other cause whether similar or dissimilar that is outside its reasonable control, then it will have no liability to the other for any resulting failure, delay, defect or omission in performing the Agreement.
Any dispute must be raised in writing with the Customer’s or Consulto Ltd’s representative as appropriate giving all relevant details including the nature and extent of the dispute. The Customer and Consulto Ltd will use reasonable endeavours to resolve any dispute. If a dispute cannot be resolved then the Customer should refer to Consulto Ltd’s complaints process.
13 Intellectual Property Rights
13.1 Consulto Ltd (and/or its licensors) shall retain all rights, title and interest in any Intellectual Property Rights in the Products or services supplied to the Customer under the Agreement or created in the course of providing the Products and services.
13.2 All Intellectual Property Rights whether pre-existing or created by the Customer or Consulto Ltd during or arising from the performance of the Agreement will remain the absolute property of that party or its licensors.
13.4 Consulto Ltd will indemnify the Customer against all claims and proceedings arising from infringement of any third party’s Intellectual Property Rights by Consulto Ltd’s provision of the Products to the Customer. This indemnity will not apply to claims or proceedings arising from:
13.4.1 use of the Products in conjunction or combination with other equipment or software or any other service not supplied by Consulto Ltd; or
13.4.2 any unauthorised modification of the Products; or
13.4.3 content, designs, specifications or software supplied by or on behalf of the Customer.
13.5 In relation to any claim or allegation of infringement the Customer will promptly notify Consulto Ltd in writing and must not make any admission without Consulto Ltd’s prior written consent.
13.6 The Customer will allow Consulto Ltd sole conduct of all negotiations and proceedings and give Consulto Ltd all reasonable assistance in doing so. Consulto Ltd will pay the Customer’s reasonable expenses for such assistance.
13.7 If the Product becomes, or Consulto Ltd believes it is likely to become, the subject of a claim of infringement of any Intellectual Property Rights Consulto Ltd, at its option and expense, may:
13.7.1 secure for the Customer a right of continued use; or
13.7.2 modify or replace the Product so that it is no longer infringing, provided that modification or replacement must not materially affect the performance of the Product.
13.8 If the indemnity in clause 13.4 applies and none of the remedies in this clause is available to Consulto Ltd on reasonable terms, Consulto Ltd may notify the Customer and collect the Product from the Site and refund the Customer the sums paid to Consulto Ltd for the Product.
13.9 The options in clause 13.7 and 13.8 set out the Customer’s sole and exclusive remedy for infringement of Intellectual Property Rights.
13.10 The Customer will hold Consulto Ltd harmless against any expense, judgement or loss of infringement of any patents, copyrights or trademarks which results from Consulto Ltd’s compliance with Customer’s designs specifications or instructions.
14.1 Nothing in the Agreement excludes the liability of either party:
14.1.1 for death or personal injury caused by their negligence; or
14.1.2 for fraud or fraudulent misrepresentation.
14.2 Neither party shall in any circumstances be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
14.2.1 loss of profits; or
14.2.2 loss of business; or
14.2.3 depletion of goodwill or similar losses; or
14.2.4 loss of anticipated savings; or
14.2.5 loss of goods; or
14.2.6 loss of use; or
14.2.7 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
14.3 Subject to clause 14.1, Consulto Ltd WILL NOT, UNDER ANY CIRCUMSTANCES OR CAUSES OF ACTION BE LIABLE FOR ANY DAMAGES, INCLUDING TO TANGIBLE PROPERTY, IN EXCESS OF THE PRICE PAID BY THE CUSTOMER FOR THE PRODUCTS.
14.4 The Customer agrees that Consulto Ltd will not be liable for any loss arising out of the provision of Products or services by any company, organisation or person other than Consulto Ltd or for any loss caused by the Customer’s failure to perform its obligations under the Agreement.
15.1 Consulto Ltd warrants and represents to the Customer that on the date hereof:
15.1.1 it is properly constituted and incorporated under the laws of England and Wales ;
15.1.1 it has the power to enter into and to exercise its rights and perform its obligations under the Agreement;
15.1.2 all action necessary on the part of Consulto Ltd to authorise the execution of and the performance of its obligations under the Agreement has been taken;
15.1.3 the execution, delivery and performance by it of the Agreement does not contravene any provision of:
220.127.116.11 any existing legislation either in force, or enacted but not yet in force, binding on Consulto Ltd;
18.104.22.168 the Memorandum and Articles of Association of Consulto Ltd;
22.214.171.124 any order or decree of any court or arbitrator which is binding on Consulto Ltd; or
126.96.36.199 any obligation which is binding upon Consulto Ltd or upon any of its assets or revenues.
15.2 The Products have been manufactured or developed by Consulto Ltd or third parties to Consulto Ltd’s specifications. The Customer accepts that Consulto Ltd is acting only as a supplier and that it is the Customer’s responsibility to verify that the Hardware and Software will be suitable for its requirements. The Products are sold on an “as is” basis and, subject to clause 10, Consulto Ltd disclaims all warranties, express or implied, written or oral, including all implied warranties such as satisfactory quality or fitness for purpose but does not disclaim the statutory implied warranty of title.
15.3 The Customer will get the benefit of the manufacturer’s warranty in respect of all the Hardware. Please note that Consulto Ltd does not provide any warranties in respect of the Hardware and all other warranties and representations, whether express or implied, by statute, common law or of any other kind are hereby excluded to the maximum extent permitted by law.
15.4 Consulto Ltd does not warrant that the Software supplied under the Agreement will be free of all faults or that its use will be uninterrupted, but Consulto Ltd will remedy those defects which significantly impair performance (where necessary by arrangement with the Customer) within a reasonable time.
15.5 In the case of Software produced by Consulto Ltd (“Consulto Ltd Software”), such Consulto Ltd Software is warranted to conform substantially to its published functional specifications for a period of ninety (90) days from the date of installation. Consulto Ltd will during the said period, at its own expense, correct any such non-conforming Software provided that the Customer has notified Consulto Ltd and upon inspection Consulto Ltd has found the Software to be non-conforming. The Customer’s sole and exclusive remedy under this warranty will be limited to such correction. This warranty is subject to the following conditions:
15.7.1 any modification of the Software by any persons not authorised by Consulto Ltd shall void this warranty;
15.7.2 damage resulting from or aggravated by negligence or misuse is excluded.
All other warranties and representations, whether express or implied, by statute, common law or of any other kind are hereby excluded to the maximum extent permitted by law.
15.8 The Consulto Ltd Software warranty is subject to the Customer following the following procedures:
15.8.1 the Customer reporting any faults in the Consulto Ld Software within five (5) Working Days of the fault becoming apparent and co-operating with Consulto Ld in carrying out such diagnostic and test routines as Consulto Ltd may require in accordance with Consulto Ltd’s instructions;
15.8.2 the Customer returning to Consulto Ltd, if so required by Consulto Ltd, at its own expense the Consulto Ltd Software suitably packed.
15.9 In the case of non Consulto Ltd software (“Non Consulto Ltd Software”), the Customer will have the benefit of any warranty given by a third party in respect of Non Consulto Ltd Software delivered subject to the Customer complying with the conditions of such warranties. All other warranties and representations, whether express or implied, by statute, common law or of any other kind are hereby excluded to the maximum extent permitted by law.
15.10 In the event of any claim presented under warranty being found on investigation by Consulto Ltd or the manufacturer either to be outside the scope or duration of the warranties under this clause 15 or the fault not being confirmed, then the cost of such investigation and repair shall be borne by the Customer.
16 WEEE Regulations
16.1 The Customer is responsible under Regulation 9 of the Waste Electrical and Electronic Equipment Regulations 2006 (the “WEEE Regulations”) for the costs of collection, treatment, recovery, recycling and environmentally sound disposal of any equipment supplied under the Agreement that has become waste electrical and electronic equipment (“WEEE”). Consulto Ltd and the Customer acknowledges that for the purposes of Regulation 9 this clause 16 is an agreement stipulating other financing arrangements for the collection, treatment, recovery, recycling and environmentally sound disposal of WEEE.
16.2 The Customer is responsible for any information recording or reporting obligations imposed by the WEEE Regulations. The Customer shall indemnify and hold harmless Consulto Ltd against any claims or legal proceedings that are brought or threatened against Consulto Ltd by a third party which would not have been caused or made had the Customer fulfilled its express or implied obligations under this clause or in connection with the WEEE Regulations. Consulto Ltd will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
17 Export Control
Under regulations governing United Kingdom trade and by virtue of its agreements with suppliers, Consulto Ltd requires to be pre-notified of shipments outside the United Kingdom. The Customer is required to obtain all necessary licences prior to export. Delivery of Products is subject to all such authorisations being available at the time of delivery. Consulto Ltd will provide guidance and required data or at its option seek to obtain the relevant licences on behalf of the end user.
18 Data Protection
18.1 In the Agreement, the terms data controller, data processor, personal data, sensitive personal data and processing shall be as defined in the European Data Protection Directive 95/46/EC and “Data” shall mean the personal data and sensitive personal data provided to Consulto Ltd in connection with the Agreement. “Data Protection Law” means applicable data protection legislation implementing the European Data Protection Directive 95/46/EC and any amendments, revisions, re-enactments or consolidations thereof.
18.2 The Customer acknowledges that it is a data controller and that Consulto Ltd is a data processor.
18.3 Consulto Ltd shall:
18.3.1 use the Data only on the Customer’s instructions as set out or referred to in the Agreement to provide the services;
18.3.2 provide appropriate technical and organisational measures to protect the security of the Data, in particular against unauthorised or unlawful access or processing, alteration, accidental loss or destruction of or damage to the Data; and
18.3.3 take all reasonable steps to ensure the reliability of any of its staff who have access to Data processed in connection with the service.
18.4 The parties acknowledge that Consulto Ltd’s provision of the service under the Agreement may require the transfer of Data to Consulto Ltd’s sub-contractors (including Consulto Ltd group entities) (“Recipients”) outside the European Economic Area in countries which have not been approved by the European Commission as having adequate protections in place for the purpose of the transfer of personal data. Consulto Ltd will be permitted to transfer Data to such Recipients provided that Consulto Ltd shall have entered into an agreement with the relevant Recipient based upon standard contractual clauses approved by the European Commission for transfers of personal data to processors outside of the European Economic Area and which agreement shall include security obligations on the Recipient which are no less onerous than those contained in the Agreement.
18.5 The parties also acknowledge that Consulto Ltd may also use services and/or products from other third parties in order to provide the services under the Agreement and that, in doing so, Consulto Ltd may transfer Data to such third parties. This may include (by way of example only) third parties that provide online storage and other facilities. If Consulto Ltd becomes aware of any such third party wishing to transfer Data outside the European Economic Area, Consulto Ltd shall request that the third party enters into an agreement of the sort noted in clause 18.4 above.
18.6 The Customer agrees to comply with its obligations under Data Protection Law in relation to its collection, processing and provision of Data to Consulto Ltd in connection with the services provided under the Agreement.
18.7 The Customer shall indemnify and hold harmless Consulto Ltd against all costs, claims, losses, damages and expenses (including legal expenses) arising out of, or in connection with, any breach of this clause 18 by the Customer and/or its employees, agents and/or sub-contractors.
18.8 The Customer acknowledges that Consulto Ltd is reliant on the Customer for direction as to the extent to which Consulto Ltd is entitled to use and process the Data. Consequently, Consulto Ltd will not be liable for any claim brought by the Customer or any data subject arising from any action or omission by Consulto Ltd to the extent that such action or omission resulted from the Customer’s instructions.
19.1 Where the Freedom of Information Act 2000 applies to the Customer and the Customer receives a request under the Act that includes any information held by the Customer that was provided by Consulto Ltd in connection with the Agreement the Customer will:
19.1.1 notify Consulto Ltd immediately of the request; and
19.1.2 give Consulto Ltd at least five (5) Working Days to make representations.
19.2 Customer agrees to maintain in confidence and not disclose, reproduce or copy any materials, documentation or specifications which are provided to the Customer hereunder. The Customer shall take all reasonable steps to ensure that its employees are bound by the same obligations and that such obligations enure beyond any termination of employment with the Customer.
20 Rights of Third Parties
No term of the Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person or entity who is not a party to it.
The Customer shall ensure that it and all of its staff, agents, contractors and any other party performing its obligations or exercising its rights under or in connection with the Agreement and/or any other agreement that the Customer may have with Consulto Ltd, complies at all times with all applicable anti-bribery and/or corruption laws, regulations and codes of conduct in all jurisdictions. The Customer shall, whenever requested by Consulto Ltd, provide evidence of the measures, steps and processes that it takes to ensure compliance with the provisions of this clause and the relevant laws, regulations and codes of conduct.
22 Assignment and sub-contracting The Customer may not assign the Customer’s rights or obligations under the Agreement without the prior written consent of the Customer. Consulto Ltd may use subcontractors to perform all or some of Consulto Ltd’s obligations under the Agreement but where Consulto Ltd does so Consulto Ltd will remain liable to the Customer in accordance with the Agreement for their acts and omissions. Consulto Ltd may on prior written notice to the Customer assign Consulto Ltd’s rights and obligations to a third party.
Nothing in the Agreement creates a joint venture, relationship of partnership or agency between the parties. Except as expressly authorised under the Agreement neither party has authority to pledge the credit of or make any representation or give any authority to contract on behalf of another party.
No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights in relation to a breach of the Agreement operate as a waiver of any subsequent breach and no right, power or remedy given to or reserved to either party under the Agreement is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the terms set out in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The parties shall use commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term.
26.1 Any notice required to be given under the Agreement shall be in writing and shall be sent to the address of the Customer set out in each order (for notices to be sent to the Customer) or the registered office of Consulto Ltd (for notices sent to Consulto Ltd).
26.2 Any notice shall not be effective unless sent by hand, registered post or equivalent and unless delivered by hand (where it shall be deemed received on delivery) it shall be deemed to have been received three (3) Working Days after the date of posting.
27.1 Consulto Ltd sometimes monitors or records telephone calls for training purposes.
27.2 Consulto Ltd reserves the right to amend the Agreement from time to time without notice by updating the same on its website at www.consulto.ltd.uk.
28 Entire Agreement
The Agreement together with any contract documents Consulto Ltd provides the Customer constitute the entire agreement and understanding between the parties relating to the subject matter. Except as may be expressly stated in the Agreement, the Agreement supersedes and cancels all prior agreements, statements, representations, understandings, negotiations and discussions, whether oral or written, between the parties. Each of the parties acknowledges and agrees that in entering into the Agreement it has not relied on (or has been induced to enter into the Agreement by) any statement, representation, warranty or understanding made prior to the Agreement. Nothing in this clause excludes any liability for fraudulent misrepresentation.
29 Governing Law
The Agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales and both the Customer and Consulto Ltd hereby agree to the exclusive jurisdiction of the English Courts.