- DEFINITIONS
In these conditions:-
“Company” means Mobile GIS Services Limited (t/a MGISS);
“Customer” means the other contracting party;
“Contract” means an Order accepted by the Company (in writing);
“Products” means all the hardware goods supplied by the Company under the Contract;
“Services” means all the services supplied by the Company in relation to the Products;
“Solutions” means any combination of products and services supplied by the Company
under the Contract;
“Order” means the order placed by the Customer with the Company for the Products,
Services, and/or Solutions;
“Total Contract Price” means the aggregate price of all the Products, Services, and/or
Solutions (excluding VAT) supplied by the Company under the Contract;
“Specification” means the Company’s specification for the Products and/or any
specification agreed by the Company and the Customer for Services, and/or Solutions;
“Anniversary” means the annual recurrence date of the commencement of the Contract;
“deals as consumer” has the same meaning as in Section 12 of the Unfair Contract
Terms
Act 1977; “Group Company” means Mobile GIS Services Limited and any subsidiary thereof.
- QUOTATION
All quotations shall be subject to these conditions and unless otherwise stated or unless
withdrawn by the Company shall be valid for a period of 30 days from the date of the
quotation. The quotation is not an offer to proceed, and the Customer is required to
place a written Order with the Company using the same reference as on the quotation. The Order shall not be binding on the Company until specifically accepted in writing.
- PRECEDENCE OF THESE CONDITIONS
The Customer agrees that the Order fully specifies its requirements for Products,
Services, and/or Solutions and unless agreed to by the Company in writing shall be
deemed to be placed subject to these conditions notwithstanding anything to the contrary contained in or referred to on the Order.
- PRICES
Unless otherwise stated all prices are strictly net of all taxes, commercial packing and
shipping.
- PRICE VARIATION
The Company reserves the right at any time prior to delivery to vary the price quoted for
the Products, Services and/or Solutions if following the date of the Order there is any
change in rates of exchange, any imposition or alteration of Government tax, any
increase in the supply of goods and labour which are constituent parts the Products,
Services, and/or Solutions up to a maximum of 5% above the Consumer Price Index
(CPI) as measured by the United Kingdom’s Office for National Statistics (ONS).
The Company shall be entitled to increase any subscription or recurring fees for all
Products, Services, and/or Solutions at the anniversary, according to the latest rate-card.
Any such increases will be limited to the percentage increase in the CPI plus 5% over the preceding 12 months.
- PAYMENT
The Customer shall pay for all Products ordered net cash within 30 days of the date of
invoice. However, at the Company’s discretion it may choose to extend credit to
Customer on such terms and conditions as the Company may specify; provided,
however, that the Company may revoke any such credit terms at any time, at the
Company’s sole discretion. Any sums not paid on the date due shall be subject to an
interest charge at the rate of 4% per annum above LIBOR (the London Inter Bank
Offered Rate) from time to time compounded monthly on all amounts overdue until
payment thereof. The Company reserves the right to stop all shipments during any
period when an invoice is past due.
If required by the Company an Order must be accompanied by a remittance or advice
that an irrevocable Sterling Pounds Letter of Credit has been established with and
confirmed by a major U.K. Clearing Bank in favour of the Company.
In relation to any Products purchases, this Letter of Credit shall have a validity equal to
the full delivery period of the Products, Services, and/or Solutions plus one month and
shall provide for part shipment and delivery and trans-shipment and delivery with the
release of one hundred per cent of the value for each shipment and delivery against
presentation of commercial invoices, packing list and bill of lading or forwarding agents
receipt or airwaybill in evidence of despatch of the Products.
In relation to any Services, and/or Solutions, this Letter of Credit shall have a validity
equal to the full period of delivery of the Services, and/or Solutions plus one month and
shall provide for the part delivery split into suitable milestone payments pre-agreed
between the Company and the Customer. Payment shall be made immediately once the
relevant milestones have been achieved and the Services, and/or Solutions delivered in part of full.
- SET-OFF
In the event that either:-
(a) the Customer has not paid any sum or sums which are due and payable to the
Company: or
(b) the Company has not paid any sum or sums which are due or about to be due
and payable to the Customer for any reason;
The Company shall have the right at its sole discretion to reduce the Customer’s
indebtedness referred to in sub-clause (a) above by setting off against each
indebtedness any sums due and payable to the Customer by any Group company or
reduce the Company’s indebtedness referred to in sub-clause (b) above by setting-off
against such indebtedness any sums due and payable by the Customer to any Group company.
- DELIVERY AND RISK
(a) Subject to the following sub-clauses all risks shall pass to the Customer upon
delivery.
(b) Unless otherwise specified delivery shall be deemed to take place when the
Products have been delivered to the Customer’s offices, depots, warehouses, other
authorised places of work, and/or approved carriers or FCA U.K. port/airport as
defined in Incoterms of the International Chamber of Commerce 2000 Edition if for
despatch overseas.
(c) All dates and times specified to the Customer for delivery are estimates only and
the Company shall not have any liability for delay or any damages or losses
sustained by the Customer as a result of such dates or times not being met. The
Customer shall not be entitled to refuse acceptance of the Products, Services,
and/or Solutions as a consequence of such delays.
(d) If the Customer does not accept delivery of a consignment of Products in
accordance with the Contract then:
(i) the Products refused shall be in all respects at the Customers risk; and
(ii) the cost of storing the Products shall be borne by the Customer; and
(iii) if such failure to accept delivery continues for more than ten days the Company
shall have the right to terminate the Contract.
- NOTICES
Any notice required to be given hereunder shall be sufficiently given if properly
addressed and sent by registered post to in the case of the Company its registered
office and in the case of the Customer its last known address and shall be deemed to
have been properly served at the time when in the ordinary course of transmission it would reach its destination.
- TITLE
(a) The Company shall retain title to the Products, Services, and/or Solutions, as legal
and equitable owner until it shall have received all sums due to it from the
Customer.
(b) Until the Customer has paid the Total Contract Price:-
(i) the relationship of the Customer to the Company shall be fiduciary in respect of
the Products and accordingly the Company shall have the right to trace any proceeds of sale.
(ii) the Customer is licensed by the Company to agree to sell the Products for a fee
agreeable by the Company, subject to the express condition that the entire proceeds
thereof are held in trust for the Company.
- SPECIFICATION
(a) The Products, Services, and/or Solutions will be supplied generally in accordance
with the Specification. The Company’s policy is one of continuous development and
consequently the Specification may vary from time to time. The Company will not
accept liability for the Products in respect of variations from the Specification except
where any variation from the Specification is material.
(b) Descriptions and illustrations in Company catalogues shall not form part of the
Contract.
(c) Alterations to the Specification requested by the Customer will be made by the
Company only by agreement and on terms acceptable to the Company. The company
makes no guarantees to undertake any alterations to the Specification.
- WARRANTY
THIS WARRANTY DOES NOT AFFECT THE CUSTOMER’S STATUTORY RIGHTS WHERE THE
CUSTOMER DEALS AS CONSUMER.
(a) Any Products which are found to the Company’s satisfaction to be defective as a
result of faulty design manufacture or workmanship will at the sole discretion of the
Company either be replaced free of charge or repaired free of charge provided that:-
(i) the Products (or samples thereof showing the alleged defects) are returned
properly packed and with carriage paid to the Company’s premises in the U.K. at the
Customer’s risk within 12 months from the date of delivery, and
(ii) the Products have not been misused, mishandled, overloaded, amended,
modified, and/or repaired in any way by the Customer, its servants or agents, or used
for any purpose other than that for which they were designed, and
(iii) if the Products have been manufactured to the Customer’s Specification, the
defects are not as a result of faulty or inaccurate Specification of the Customer.
(b) Repaired or replaced Products will be returned free of charge to destinations on
the mainland of the U.K. or delivered FCA U.K. for other destinations.
(c) This warranty is exclusive of all labour costs and, where work is to be carried out
in a place other than the Company’s premises, travelling costs (including travelling time
and all applicable expenses) shall be borne by the Customer.
(d) In the case of Products not of the Company’s manufacture any warranty shall be
limited to that given to the Company by the manufacturer thereof. The Company will
make the details of such warranties available to the Customer within 10 (ten) business
days of any such request.
- LIABILITY
(a) The warranty given above is the only warranty given by the Company and
otherwise this clause specifies the entire liability of the Company including liability for
negligence and in particular but without limitation all statutory other or express implied
or collateral terms conditions or warranties are excluded.
(b) The Company accepts liability except in the case of international supply contract
as described in the Unfair Contract Terms Act 1977:
(i) for death or personal injury resulting from its negligence, and
(ii) arising out of any breach of the obligations as to title implied by statute, and
(iii) where the Customer deals as consumer for any breach of any condition or
warranty implied by statute as to the correspondence of the Products with
description or sample or as to their quality or fitness for purpose or particular
purpose, and
(iv) up to the amount calculated pursuant to sub-clause (f) below for direct physical
damage to or loss of property resulting from the negligence of the Company.
(c) The Customer is required to notify the Company of any claim under clause 13b
above as soon as reasonably possible except that any claim under sub-clause (b) (iv)
above shall be notified to the Company within ten days of the Customer suffering any
alleged loss or damage.
(d) Except as provided in clauses 13a, 13b, and 13c the Company shall not be under
any liability (including liability for negligence) for any loss or damage or injury to the
Customer whatsoever no matter when or how arising out of the Products or Services or
otherwise whether direct or indirect consequential or contingent and whether
foreseeable or not and in particular shall not be liable for financial loss or loss of profits
contracts business anticipated savings use or goodwill.
(e) The Customer will indemnify the Company against any liability (including liability
for negligence) no matter when or how arising out of any claim by any third party
against the Company together with all legal costs relating thereto except that insofar as
the claim relates to direct physical damage to or loss of property resulting from the
negligence of the Company this indemnity shall only apply if and to the extent that the
claim and/or legal costs exceed the sum calculated pursuant to clauses 13f(i) and 13f(ii)
below.
(f) Under no circumstances except as provided in clauses 13b(i), 13b(ii), and 13b(iii)
above will the Company’s liability whether in contract tort or otherwise exceed:
(i) where the Total Contract Price is £200,000 or less, the sum of £100,000; or
(ii) where the Total Contract Price exceeds £200,000, fifty percent of the Total Contract
Price.
N.B. THIS CLAUSE DOES NOT AFFECT THE CUSTOMER’S STATUTORY RIGHTS WHERE THE
CUSTOMER DEALS AS CONSUMER.
- PATENT INDEMNITY
If the Customer is threatened with any action by a third party alleging that the Products
in the form sold infringe any patent, copyright registered design, or other intellectual
property rights then provided that the Customer informs (within 5 business days) and
fully co-operates with the Company and in cases where the Company so requests
permits the Company to defend any action on the Customer’s behalf and have the sole
control of any and all negotiations for settlement, then the Company will indemnify the
Customer against any award of damages and costs against the Customer arising from
such action. Further, if such event occurs the Customer agrees that the Company shall
have the option at its discretion and own expense either:
(a) to modify the Products so that they do not infringe, or
(b) to replace the Products with non-infringing goods, or
(c) to procure for the Customer the right for the Customer to continue its use of the
Products, or
(d) to repurchase the Products from the Customer at the price paid by the Customer
less depreciation.
The Company shall have no liability in respect of claims for infringement or alleged
infringement of third parties patent or other proprietary rights arising from the
execution of the Order in accordance with the Customer’s Specification, negligence,
and/or wilful misconduct and the Customer shall indemnify the Company against all
losses, damages, expenses, and costs or other liability arising from such claims.
- EXCUSABLE EVENTS
The Company shall be under no liability to the Customer for any breach of any provision
hereof or failure on its part to perform any obligation as a result of acts of God, war
(whether declared or not), sabotage, riot, explosion, Government control, restrictions or
prohibitions or any other Government act or omission whether local or national, fire,
accident, earthquake, storm, flood, epidemic, pandemic, drought, or other natural
catastrophes, inability to obtain equipment, suitable raw materials, components, fuel,
power or transportation, disputes with workers, strikes or lockouts, shortage of labour
or any other cause beyond the control of the Company and the Company will notify the
Customer if affected by any of the causes referred to in this sub-clause. In the event
that the Company is unable to perform its obligations under the Contract by reason of
any of the causes referred to above for a period of six months or more then either party
may at any time after the expiration of such six-month period terminate the Contract by
written notice.
- TERMINATION
Without prejudice to any claim or right it might otherwise make or exercise the
Company shall have the right forthwith to determine the Contract by notice and to claim
for any losses, costs or expenses thereby incurred if the Customer commits any serious
breach of any of the terms of these conditions or if the Customer makes or offers to
make any arrangement or composition with creditors or commits any act of bankruptcy,
or if any petition or receiving order in bankruptcy is presented or made against the
Customer, or if any resolution or petition to wind up the Customer is passed or
presented otherwise than for reconstruction or amalgamation or if a receiver of the
Customer’s undertaking property or assets or any part thereof is appointed or if a third
party seizes or threatens to seize the Products before legal ownership has passed to the
Customer. If any event occurs which would entitle the Company to terminate any
Contract all sums due to the Company shall become immediately payable and the
Company by its servants or agents may for the purposes of recovery of all or any of the
Products enter upon any premises where they are reasonably thought to be stored and may repossess the same.
- CONSENTS
Where applicable the Company shall use reasonable endeavours to obtain an export
licence and all other necessary consents to enable the Products to be exported from the
U.K. In the event that the Company is unable to obtain an export licence, visas, or
consents for personnel required to provide Services outside the U.K., the Company shall
not be held liable for its failure to perform the Contract. The Customer shall be
responsible for obtaining all consents necessary for the import of the Products to the
Country of its destination.
- SOFTWARE
Where software is incorporated in or forms part of or is supplied with the Products the
provision of the software is subject to the Company’s Software Licence Conditions. In
the event of conflict between these conditions and the Software Licence Conditions the
latter shall take precedence.
- INSTALLATION AND COMMISSIONING
If the Services required by the Customer are special services such as installation,
commissioning, training, development or management services any additional terms of
the Company applicable to such Services will apply except that in the event of any
conflict these conditions shall prevail.
- AMENDMENTS OR CANCELLATION
Once accepted by the Company no Order can be amended or cancelled except with the
Company’s prior written approval and upon terms, which indemnify the Company
against any losses including loss of profit or additional costs resulting therefrom.
- ENTIRE AGREEMENT
These conditions supersede all previous conditions, understanding, commitments,
agreements or representatives whatsoever whether oral or written relating to the
subject matter hereof and shall not be varied except with the Company’s written
consent.
- TAXES
All prices are exclusive of all taxes, charges, and/or levies of any kind including value
added tax whether payable on the supply of the Products and/or services to
destinations inside or outside the U.K. or otherwise, and these are payable by the
Customer.
- GOVERNING LAW
These conditions and all Contracts shall be governed construed and shall take effect in
accordance with the laws of England, and shall be subject to the jurisdiction of the
English Courts.
- CONSTRUCTION
If any of the words or provisions of these conditions shall be deemed to be invalid for
any reason then the conditions shall be read as if the invalid provisions had to that
extent been deleted there from and the validity of the remaining provisions of the
conditions shall not be affected thereby.
- GPS (GNSS) LIABILITY (Applicable if any GPS/GNSS content in Contract)
(a) The Purchaser acknowledges that the Global Positioning System (“GPS”) and its
collective term Global Navigation Satellite Systems “GNSS” are operated as follows; GPS
is the Global Navigation Satellite System of the United States Government, GLONASS is
the Global Navigation Satellite System of the Russian Federation, GALILEO is the Global
Navigation Satellite System of the European Union and BEIDOU is the Global Navigation
Satellite System of China, whom are solely responsible for the accuracy and
maintenance of their systems. Certain conditions can cause inaccuracies that could
require modifications to the receiver. (Examples of such conditions include but are not
limited to changes in the GNSS transmission.)
(b) The Customer agrees that neither the Company nor any third party service
operator and/or service provider shall be liable to the Customer for, and indemnifies
the Company and such third party service operator and service provider, as the case
may be, from and against, any loss or damage or other liability suffered or incurred by
the Customer arising out of or in connection with the provision of or failure to provide
the Company’s delivered differential GNSS (GPS) service; or the unavailability,
malfunctioning, interruption or other defect in such services, supplies or equipment for
which third parties or the Customer are responsible. No such unavailability,
malfunctioning, interruption, non-operation or other defect shall relieve the Customer
of any of its obligations in the Agreement.
- Intellectual Property
(a) The Customer acknowledges and agrees that the Company and/or its licensors own all
intellectual property rights in the Products, Services, Solutions, and/or the
Documentation. Except as expressly stated herein, this Contract does not grant the
Customer any rights to, or in, patents, copyright, database right, trade secrets, trade
names, trademarks (whether registered or unregistered), or any other rights or licences
in respect of the Products, Services, Solutions, and/or Documentation.
(b) The Customer acknowledges and agrees that the Company and/or its licensors own all
intellectual property rights unless otherwise stated with written confirmation, derived or
produced through the delivery of any Services, and/or Solutions when working on behalf
of the Customer or through the delivery of the Specification.
(c) The Company confirms that it has all the rights in relation to the Products, Services,
Solutions, and/or Documentation that are necessary to grant all the rights it purports to
grant under, and in accordance with, the terms of this Contract.
46A Jamaica Street
Liverpool
L1 0AF
+44 (0)151 329 0820
Company Registration No. 7858579 | VAT Registration No. 116330649
