1.1 These terms and conditions shall apply to the contract between Twofold and the Customer to the exclusion of all others. Any terms and conditions presented by the Customer shall have no effect whatsoever.
1.2 No variation to these terms and conditions shall be valid unless agreed in writing by a duly authorised representative of Twofold.
2.1 The price for the equipment and/or software (and any services) is exclusive of value added tax and any other applicable taxes or duty relating to the manufacture, transportation, export, import, sale, delivery or provision of the equipment and/or software (and any services) (whether initially charged on or payable by Twofold or the Customer).
2.2 If Twofold arranges or undertakes the carriage, freight, insurance and other transport costs beyond its premises, such costs shall be for the Customer's account and shall not affect the passing of rights in the equipment and/or software.
Payment for the equipment and/or software shall be due upon delivery. Payment for the services will be due on receipt of invoice. Invoicing of the services will occur following performance of the services although Twofold reserve the right to invoice on a staged basis. The monies remain payable despite any suspension of deliveries of the equipment and/or software (and any services). When deliveries are spread over a period of time each assignment will be invoiced as despatched and treated as a separate account and payable accordingly. Failure to pay any invoice in accordance with the foregoing terms shall entitle Twofold to suspend further deliveries without prejudice to any other right Twofold may have. Twofold reserves the right, where genuine doubts arise as to the Customer's financial position, to stop equipment and/or software in transit, suspend deliveries without liability until payment in full is received or satisfactory security for payment has been proved. If payment is delayed for more than 30 days the Customer agrees to pay interest at a rate of 4% per annum over the Natwest base rate from the date payment was first due until payment is received in full.
4.1 The equipment and/or software shall be delivered to such premises as agreed in writing by a duly authorised representative of Twofold. Risk in the equipment and/or software shall pass when they leave Twofold's premises.
4.2 The dates for delivery of the equipment and/or software (and any services) are approximate only and time is not of the essence. Twofold will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver the equipment and/or software (and any services). No delay in delivery shall entitle the Customer to reject any delivery or any further instalment or part of an order or any other order from Twofold or repudiate the contract or order, unless agreed otherwise by Twofold in writing by a duly authorised representative.
4.3 If for any reason the Customer is unable to accept delivery of the equipment and/or software (and any services) when the equipment and/or software (and any services) are due and ready for delivery, Twofold may charge storage for the equipment and/or software at the Customer's risk and the Customer shall be liable to Twofold to pay the reasonable costs of storage and insurance. This provision is without prejudice to any other rights which Twofold may have in respect of the Customer's failure to take delivery of the equipment and/or software (and any services) or pay for them in accordance with these terms and conditions.
5.1 Title in the equipment shall pass on payment in full of all amounts due to Twofold from the Customer in respect of the equipment being supplied howsoever arising whether in respect of the supply hereunder or otherwise. No title shall pass in respect of any software delivered.
5.2 Until title in the equipment has passed the Customer shall:
5.2.1 not remove the equipment supplied hereunder or allow them to be removed from the address to which they are delivered;
5.2.2 keep the equipment in good condition and complete;
5.2.3 not allow the equipment to become the subject of any charge or lien whether by operation of law or otherwise.
5.3 Any resale by the Customer of the equipment in which right has not passed to the Customer shall be made by the Customer as agent for Twofold.
5.4 Equipment shall be deemed sold or used in the order delivered to the Customer.
5.5 If payment for the equipment and/or software is not made within 30 days of the due date (in respect of which time is of the essence) and Twofold have not been advised in writing that the amount due for payment is in dispute, the Customer agrees at Twofold's request to immediately deliver up any equipment and/or software supplied hereunder in good condition and complete to Twofold. Alternatively Twofold may retake possession of all or any part of the equipment and/or software and enter premises for that purpose (or authorise others to do so) which the Customer hereby irrevocably authorises. If Twofold has been advised in writing that the amount due for payment is in dispute Twofold will not exercise its right to demand the return of the equipment and/or software and/or take possession of the equipment and/or software until six months have passed following the date payment was due when Twofold shall then be entitled to exercise those rights.
5.6 Twofold may appropriate sums received from the Customer as it thinks fit notwithstanding any purported appropriation by the Customer.
5.7 Each part of this Condition 5 is separate, severable and distinct and accordingly in the event of any of them being for any reason whatever unenforceable the others shall remain in full force and effect.
6.1 Twofold grants to the Customer and the Customer accepts from Twofold a non-exclusive, non-transferable, irrevocable, perpetual licence to use any software supplied with the equipment. Such licence is conditional on Twofold receiving payment as provided in these terms and conditions. Further terms of the licence for the software is set out below hereunder:
6.1.1 Subject to Clause 6.1.2 the Customer shall use any software supplied for its own use only and shall not permit any third party to use such software nor shall use the software on behalf of or for the benefit of any third party.
6.1.2 In the event that the Customer is a member of a group of companies any software supplied may be used by or for the benefit of any subsidiary or holding company of the Company provided that at no time may any more than one copy of the software supplied be used.
6.2 In the event that the equipment for the software is provided by Twofold, then the software shall only be used in conjunction with that equipment.
7.1 Twofold warrants that in accordance with this agreement:
7.1.1 it has title to the equipment and/or software and the right to sell and/or licence the same; and
7.1.2 the equipment will, on delivery, be free from material defects in material and workmanship under normal use and service; and
7.1.3 any software included in the equipment materially conforms to its specification; and
7.1.4 it shall provide the services using reasonable care and skill.
7.2 The Customer's sole and exclusive remedy in the event of breach of the above warranty is the correction of any failure accepted by Twofold as a failure by Twofold free of charge replacing, repairing or adjusting the equipment at Twofold's sole discretion provided that the Customer shall have given Twofold prompt written notice of the failure and the circumstances in which it arose.
8. Maintenance and Support
Maintenance of the equipment and support for the software is available and is provided subject to Twofold's maintenance and support terms and conditions a copy of which is available on request.
9. Limits of Liability
9.1 Notwithstanding any other provisions in these terms and conditions Twofold's liability to the Customer for death or injury resulting from Twofold's negligence or that of its employees agents or sub-contractors negligence shall not be limited.
9.2 Subject to Condition 9.4, Twofold shall be liable to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of Twofold or its employees agents or sub-contractors provided that such liability is limited in respect of each event or services of connected events to £1,000,000.
9.3 Subject to Condition 9.4 Twofold's entire liability in respect of any breach of its contractual obligations or any representations statement or tortuous act or omission including negligence or arising under or in connection with these terms and conditions shall be limited to £100,000 or the cost of equipment supplied hereunder whichever is the greater.
9.4 In no event shall Twofold have any liability:
9.4.1 for loss of profits goodwill or any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party);
9.4.2 in respect of any liability (including breach of warranty) which arises as a result of the use of the equipment supplied hereunder in combination with any equipment not approved by Twofold or as a result of any defect or error in any equipment and/or software not supplied by Twofold;
9.4.3 unless the Customer shall have served notice in writing of any facts which may give rise to a claim against Twofold hereunder within one year of the date it either became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become so aware.
9.5 Except as expressly provided in these terms and conditions all warranties (express or implied statutory or otherwise) including, without limitation, any implied warranty of satisfactory quality are hereby excluded to the fullest extent permitted by law.
10. Intellectual Property Rights Indemnity
Twofold will indemnify the Customer and keep the Customer fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the equipment and/or software that is supplied under this contract infringes the intellectual property rights of any third party, provided that Twofold is given immediate and complete control of such claim, that the Customer does not prejudice Twofold's defense of such claim, that the Customer gives Twofold all reasonable assistance with such claim and that the claim does not arise as a result of the use of the equipment and/or software otherwise than in accordance with these terms and conditions or as a result of any error omission or negligence on the part of the Customer or any of its employees or agents.
One copy of any software supplied (other than in respect of non PC software) may be made without the prior written consent of Twofold, provided such copy is required for operational security and use. No copies of non PC software may be made whatsoever.
The Customer shall effect and maintain adequate security measures to safeguard any equipment and/or software supplied by Twofold to the Customer from access or use by any person other than one authorised by the Customer.
The Customer hereby undertakes not to alter or modify the whole or any part of any software supplied nor without the prior written consent of Twofold to permit the whole or any part of the software supplied hereunder to be combined with or become incorporated in any other software.
14. Customer's Obligations
14.1 The Customer agrees:
14.1.1 to provide and maintain a proper operating environment for any equipment;
14.1.2 to give Twofold's staff, contractors, agents and workmen full access to its computer system (including but not limited to equipment and software);
14.1.3 to make available suitable technically competent staff, contractors, agents and workmen to assist Twofold;
14.1.4 that all information and data reasonably required by Twofold will be supplied promptly;
14.1.5 that all personnel will follow Twofold's reasonable advice and will be properly trained in the operation of any equipment and/or software and that all security and other procedures outlined in the operator manuals will be adhered to.
14.2 The Customer shall indemnify Twofold in respect of any increased costs or expenses incurred or suffered by Twofold as a result of the failure by the Customer to comply with its obligations under this condition.
Each party shall treat as confidential information all information (including software) obtained from the other pursuant to the contract between them and shall not divulge such information to any person (except to such party's own employees and then only to those employees who need to know the same) without the other party's prior written consent provided that this shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the order (and not subject to any confidentiality undertakings), which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this condition and ensure that it is observed and performed by them.
16.1 Twofold may without prejudice to its other rights, stop equipment and/or software (and any services) in transit, suspend further deliveries, terminate the contract with the Customer and any licence granted hereunder forthwith on giving notice in writing to the Customer if:
16.1.1 the Customer commits any serious breach of any term of these terms and conditions and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from Twofold so to do, to remedy the breach; or
16.1.2 the Customer has an interim or bankruptcy order made against it or enters into or becomes subject to a scheme, composition or voluntary arrangement with its creditors or becomes subject to a winding-up, dissolution, administration or receivership proceedings;
16.1.3 the Customer permanently discontinues the use of any equipment and/or software supplied hereunder.
16.2 Forthwith upon the termination any licence granted hereunder the Customer shall return to Twofold the software supplied hereunder and all copies of the whole or any part thereof or, if requested by Twofold, shall destroy the same and certify in writing to Twofold that they have been destroyed.
The Customer shall not be entitled to assign, sub‑licence or otherwise transfer the rights and obligations granted hereunder whether in whole or in part. Twofold shall be entitled to sub-contract any work relating to the sale order without the consent of the Customer or giving notice but shall indemnify the Customer in respect of any liability arising from such sub-contracting of any work.
18. Force Majeure
Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
19.1 Any notice or other communication to be given under these terms and conditions must be in writing and may be delivered or sent by pre-paid first class letter post or facsimile transmission.
19.2 Any notice or document shall be deemed served: if delivered at the time of delivery, if posted 48 hours after posting and if sent by facsimile transmission at the time of delivery.
The invalidity, illegibility or unenforceability of any provision of these terms and conditions should not affect the other terms and conditions.
21 Entire Agreement
These terms and conditions comprise the entire agreement and understanding between the parties in relation to the subject matter referred to herein.
22 Third Party Rights
A person who is not a party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This condition does not affect any right or remedy of any person which exists or is available otherwise pursuant to the Act.
23. Law and Jurisdiction
These terms and conditions shall be governed by and construed in accordance with the Laws of England and shall be subject to the exclusive jurisdiction of the English Courts.