1.1. “Anonymised Data” means data about the Customer or the Customer’s operations obtained by the Supplier during the provision of the Services, without any information specifically identifying the Customer or its clients and not including any personal data related to any individual persons.
1.2. The “Group” means Winnow Solutions Limited and its divisions, group, and (direct and indirect) subsidiary companies and any other marketing or trading names in use.
1.3. The “Company” or “Supplier” means the member of the Group that has been named as a party to the Contract.
1.4. “Contract” means a contract between the Company and the Customer for the sale and purchase of the Products, the description of which may be contained in documents which may carry various titles including but not limited to “Master Services Agreement”, “Specification Schedule”, “Quote”, “Term Sheet” and “Proposal”, and incorporates the Terms and Conditions.
1.5. The “Customer” means any person, firm, company or other legal entity which places an order, or buys any Products from the Company.
1.6. “Delivery Date” means any date on which the Company has agreed to provide Goods or Services to the Customer.
1.7. “Goods” means any equipment agreed in the Contract to be supplied by the Company to the Customer.
1.8. “Intellectual Property Rights” means:
1.8.1. any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names and email addresses, copyrights, database rights, know-how, rights in designs and inventions;
1.8.2. rights under license, consent, orders, statute or otherwise to the same; and
1.8.3. the right to sue for past infringements of any of the foregoing rights; as may exist now or in the future.
1.9. “Party” means the Company or the Customer.
.1.10. “Products” means any Goods or Services agreed in the Contract to be supplied by the Company to the Customer.
1.11. “Services” means any services agreed in the Contract to be supplied by the Company to the Customer, including, for the avoidance of doubt, software-as-a service subscriptions.
1.12. “Terms and Conditions” means these terms and conditions of sale.
These Terms and Conditions shall be incorporated into the Contract and shall apply in place of and prevail over any terms and conditions contained or referred to in any communication from the Customer or implied by trade, custom or practice or course of dealing; EXCEPT that, to the extent there is any conflict between these terms and any terms set out in the Contract, the terms of the Contract shall take precedence. Other purported terms and conditions which either Party seeks to impose or incorporate are expressly rejected by the Company.
3.1. By placing an order with the Company, the Customer is offering to purchase the Products on the basis of the Contract. The Contract shall be formed when the Customer signs the relevant “Specification Schedule”, “Quote”, “Term Sheet”, “Proposal”, or any similar document, or provides a purchase order which the Company accepts, or the Customer accepts delivery of the Products to the Customer, whichever occurs earlier.
3.2. The Customer is responsible for ensuring that the terms of any order are complete and accurate.
3.3. No pricing made available to the Customer in any way shall constitute an offer and the Company may amend its prices at any time prior to a Contract being formed. Prices are quoted exclusive of VAT or other sales taxes, which shall be charged if applicable.
3.4. The Contract is subject to availability of stock and resources and the Company reserves the right to vary or alter the specification of Products without notice unless otherwise agreed in writing with the Customer.
3.5.The Contract constitutes the entire agreement between the parties and the Customer acknowledges that it has not relied on any statement, promise or representation made or given by, or on behalf of, the Company which is not set out in the Contract.
3.6. Any drawings or descriptions contained in any of the Company’s brochures or on the Company’s website are produced for the sole purpose of giving an approximate idea of the Products. They shall not form part of the Contract or have any contractual force.
4.1. The risk of loss or damage to the Goods shall pass to the Customer upon delivery to the Customer’s premises or collection by the Customer.
4.2. Title in the Goods shall not pass to the Customer where the Goods are leased, or where the Goods are sold, title in the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Customer under the Contract or on any other account.
5.1. Where credit is granted, unless otherwise agreed in writing, all sums payable in respect of Products must be paid without deductions within 30 days from the date on which the invoice was raised.
5.2. The Customer may temporarily withhold payment of any sum disputed in good faith if it has raised the dispute in writing to the Supplier within 30 days of the invoice issuance date, however, for avoidance of doubt, the Customer may not withhold any undisputed portion of any invoice and must work with the Supplier to a swift resolution in good faith.
5.3. Failure by the Customer to pay any undisputed sum by the due date shall entitle the Company to suspend delivery of all unexecuted or future orders, and Services including subscription-based Services under any Contract with the Customer. The time for payment of the price of the Products shall be of the essence.
5.4. If payment is not made in due time, the Company reserves the right to charge 8% interest on the overdue balances for the period from the date on which payment became due until the date on which payment is made including any period after the date of any judgement or decree against the Customer.
5.5. Except for sums disputed in good faith, in the event any payment under a Contract is overdue for more than 30 days, the Company shall be entitled to forthwith cancel such Contract without any liability to the Customer and to the extent that any Products have been delivered but not paid for, the price therefor shall become immediately payable notwithstanding any previous agreement to the contrary.
5.6. The Company reserves the right in its absolute discretion to refuse to grant credit.
5.7. Except as expressly stated in the Contract, prices are exclusive of applicable charges for packaging, transport, delivery, Supplier personnel travel, accommodation, and incidentals, and any sales, excise, or other duties, levies, or value added tax. Customer will pay such relevant charges, subject to receiving a valid invoice.
5.8. All sums payable by Customer under a Contract shall be paid free and clear of any deductions, withholdings, set-offs or counterclaims (together “Withholdings”), save only as may be required by applicable law. If any Withholdings are required by applicable law, the amount Customer is obliged to pay shall be increased to an amount which would leave the Company with the same amount as the Company would have been entitled to receive in the absence of a requirement to make a Withholding.
6.1. Delivery Dates set out in any Contract, or otherwise specified by the Company, are estimates only and shall under no circumstances be deemed firm deadlines, unless the Company explicitly confirms in writing that a certain Delivery Date is binding. The Company shall not be liable for any loss or damage whatsoever arising as a result of a delay or failure to deliver Products by a particular date, unless explicitly stipulated in the Contract. Time for delivery shall not be of the essence unless otherwise agreed by the Company in writing, but if delivery of a Product is delayed for more than four weeks after the Delivery Date Customer may cancel delivery of the relevant Product (without any liability of either Party, and without such cancellation affecting any other portion of the Contract).
6.2. If the Customer fails to take delivery or fails to give the Company adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Company, the Company may do one or more of the following:
6.2.1. charge the Customer the cost of carriage of the refused delivery both to and from the premises of the Customer in addition to the Company’s administration charges involved; and
6.2.2. charge the Customer the full cost price of the Products and a sum in respect of its loss of profit provided that the Company shall use its reasonable endeavours to mitigate such loss.
6.3. The Company may deliver the Products by instalments, which may be invoiced separately. Any delay in delivery shall not entitle the Customer to cancel any other instalment.
6.4. The Customer must check that the quantity and specifications of Products delivered correspond with the Contract before acceptance of the delivery note.
6.5. Claims in respect of short deliveries or damage to Products reasonably visible on inspection must be made to the Company within 7 days of the time of the delivery which gives rise to the claim. The Customer must retain damaged Goods for inspection, packaged for collection. Credit will only be granted by the Company if the provisions of this Condition are complied with.
7.1. The Company warrants and represents that:
7.1.1. the Products do not infringe any Intellectual Property Rights of the Company or any third party;
7.1.2. the Company is not in breach of any agreement with a third party by entering into the Contract and it is free to unconditionally do so; and
7.1.3. the Company shall indemnify the Customer against all liabilities, costs, expenses, and damages (including any direct losses, penalties and professional costs and expenses) incurred by the Customer as a result of or in connection with the Company’s breach of this Condition.
7.2. The Goods provided will be associated to the location(s) defined in the Contract. Any movement of the Goods between locations or to another location requires agreement of the Company, and may require additional services from the Company, to be agreed on a case-by-case basis.
7.3. If the Company becomes aware that any part of the Products may infringe the Intellectual Property Rights of any third party, it may take reasonable steps to cease any infringement or potential infringement without liability to the Customer, including without limitation:
7.3.1. cancelling any portion of a Contract, withdrawing the infringing Products, and refunding the Customer any amounts paid for any associated Services not yet delivered; and
7.3.2. altering the Products to eliminate the infringement or potential infringement, subject to the Customer’s agreement that such altered Products are still suitable.
7.4. The Customer shall be responsible to ensure that, except to the extent that instructions as to the use of the Products are contained in the packaging or labelling of the Products, any use of the Products by the Customer is in compliance with all applicable statutory provisions and that handling and use of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority.
Where erection, installation and positioning of equipment are part of the Contract the Customer shall ensure that the site is clear and ready for installation. Should the site not be ready as stipulated for such installation, the Company reserves the right to make a charge for any reasonable costs incurred as a result of it being so prevented and any delay or subsequent installation.
9.1. With effect from any date specified in the Contract the Company shall, in consideration of the fees being paid in accordance with the Terms and Conditions provide the Services to the Customer.
9.2. The Supplier will use reasonable care and skill to perform the Services. Any failure by the Supplier to meet any of the specifications with respect to the Services shall not in and of itself constitute a breach of the Contract by the Supplier, provided that the Supplier used its reasonable care and skill to meet such specifications.
9.3. For the site(s) where so agreed, as per the Contract, the Company shall provide training and follow-up consultation to a reasonable number of appropriate employees of the relevant site to enable such employees to use and support the Products.
9.4. The Company shall reply to the Customer’s reasonable enquiries regarding the Products, and shall provide reasonable remote assistance from time to time with the day to day operation of the Products at any location.
9.5. The Company shall use all reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of these obligations.
9.6. A number of the Services may be reliant on data provided by the Customer to the Company. Where such data is not available, for example due to interruptions to connectivity for data transmission, these Services may not be provided, or may be delayed until the required data becomes available, at the Company’s discretion.
9.7. Where training or other Services requiring Winnow personnel or other resources to be reserved have been scheduled between the Customer and the Company, should the Customer wish to cancel or postpone such services, at least 14 days’ notice should be given.
9.7.1 Where the Customer gives less than 14 days’ notice, the Customer will be required to pay 50% of the associated service costs plus any non-refundable travel and expenses incurred;
9.7.2 where the Customer provides less than 48 hours’ notice, the Customer will be required to pay 100% of the service costs plus any non-refundable travel and expenses incurred.
9.7.3 Where such services are provided at no additional cost or no specific cost as part of a package, the same terms will apply, and cost will be calculated based on the applicable day rates and standard service costs involved.
10.1. The Contract shall commence on the date thereof and continue in full force and effect unless and until terminated by either Party in accordance with the Contract terms.
10.2. Each Contract shall constitute an individual order distinct and separate from these Terms and Conditions and from each other but any such Contract shall be governed by and subject to these Terms and Conditions. The Parties hereby agree that each Contract or subscription therein may be terminated separately.
10.3. Each individual subscription or Contract shall be deemed to have come into force on the commencement date and subject to any provisions for earlier termination shall last for a minimum period as specified in the Contract. Thereafter, each Contract and subscription shall continue in full force and effect unless and until terminated by either Party in accordance with the Contract terms or by either Party serving three (3) month’ written notice on the other Party. Notwithstanding this, the Company may terminate any Services by notice if the Contract is terminated in accordance with clauses regarding Customer non-payment, Customer Insolvency, or other material breach not remedied within reasonable time after having received a notice in writing from the Company. Similarly, the Customer may terminate a Contract by notice if any material breach has not been remedied by Company within one month after it having received a notice in writing from the Customer.
10.4. Except where the Contract is terminated for Company’s breach, if notice is given by either Party to terminate the Contract, the Company may recover any sums owed to the Company for Goods or Services performed prior to the effective termination date.
10.5. Save as agreed in any Proposal, Quote, Term Sheet, Specification Schedule, or similar, the Contract may not be cancelled by the Customer before the end of the minimum period set out in the Contract without cause. If not specified elsewhere in the Contract, the default minimum period for subscription is 36 months. After the minimum period, the termination clause described in Clause 10.3 applies.
10.5.1. If Customer does wish to cancel the Contract before the end of the minimum period without cause, and the Company consents to such cancellation, the Company reserves the right upon consent being given to levy a cancellation charge of up to 30% of the Contract value to cover the Company’s losses arising from the cancellation, plus any Services and bespoke Goods.
10.6. Any bespoke Goods ordered on behalf of the Customer cannot be returned, unless the manufacturer agrees to accept them. Where this is not the case the Customer shall purchase all such bespoke Goods from the Company within 14 days.
10.7. Where any Contract includes lease of any equipment, the equipment must be returned to the Company on or prior to the effective termination date. For billing purposes any associated subscription Services and lease costs will continue indefinitely until such time as the equipment is returned to the Company.
10.8. Clauses 1 (Definitions), 5 (Payment Terms), 12 (Warranties), 13 (Limitation of the Company’s Liability), 14 (Intellectual Property), 16 (Use of Data), 17 (Force Majeure), 18 (Confidentiality), 19 (Additional Terms) hereof shall continue to have effect notwithstanding termination of the Contract. Termination of the Contract shall not affect the accrued rights of the parties at the date of such termination; the remedies of the parties shall be cumulative and not exclusive.
In the event that:
11.1. the Customer makes any voluntary arrangement with its creditors, proposes to enter into a company voluntary arrangement, enters into administration, is unable to pay its debts as they fall due, makes application to a Court to suspend enforcement action against it, goes into liquidation (in the event that the Customer is a company) or becomes insolvent, enters into a trust deed or voluntary arrangement for the benefit of its creditors (in the event that the Customer is an individual or firm), or if the equivalent occurs under any jurisdiction; or
11.2. an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, any of the property or assets of the Customer; or
11.3. the Customer suspends any payments hereunder without cause or ceases, or threatens to cease, to carry on business; or
11.4. the Company reasonably considers that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then without prejudice to any other rights or remedies available to the Company, the Company shall be entitled forthwith to cancel the Contract(s) or suspend any further deliveries under the Contract(s) without any liability to the Customer and to the extent that the Products and Services have been delivered but not paid for, the price shall become immediately payable notwithstanding any previous agreement to the contrary. Additionally, the Supplier may appropriate any payment made by the Customer for any of the contracted Products as the Supplier may think fit.
12.1 The Company warrants that all Products, including leased equipment (with the exception of bespoke Goods, where the Company relies entirely upon the supplier in this respect) shall comply with all relevant legislation from time to time in force and be fit for purpose.
12.2 The Company will to the extent that it is able at the sole cost and expense of the Customer assign or make available to the Customer the benefit of any warranties or guarantees relating to the Goods obtained from the manufacturer thereof.
12.3 In the event of malfunction of any of the Products:
12.3.1. Customer will conduct initial troubleshooting routines unless deemed unsafe to do so;
12.3.2. If initial troubleshooting fails to solve the issue, Customer will contact the Company (or other level 1 support point as specified in the Contract) for remote troubleshooting support;
12.3.3. If the issue remains following troubleshooting support, for Contracts including an ongoing warranty service, Supplier may in its sole discretion determine whether repair or replacement is required, and Supplier will instruct the Customer to send the relevant parts for inspection. Within ten business days of receipt, the Company will inspect, repair or replace any failed parts as necessary, and dispatch them to the Customer. Costs of packing and shipping parts are alternately borne by the shipping Party in each direction; and
12.3.4. If in the Company’s sole judgement the failure was due to defect in materials or workmanship, or normal wear and tear, the Company will return the repaired or replaced item at no cost for the Customer to replace.
12.4. The Company reserves the right to substitute a similar device during the course of warranty provision.
12.5. The Company shall be under no liability in respect of any defect arising from any wilful damage, negligence, subjection to abnormal conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Company’s approval, or any other act or omission on the part of the Customer, its employees or agents or any third party. If the failure or request for service is due to such causes, or if the Company or its authorised servicer determines that the device is outside the warranty coverage period, repair or replacement will be billed at the then-applicable rate for labour, parts, and materials.
12.6. Except as expressly provided in the Terms and Conditions and the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Supplier specifically denies any implied or express representation that the Products will operate uninterrupted or error-free, and the Supplier does not warrant or guarantee that it will be able to rectify all defects in the Products, nor that any such defect which does not materially affect the Customer's operations will be corrected.
13.1. The Company limits its liability to the maximum extent permitted by law as follows:
13.1.1. the Company’s liability shall be limited at its option to replacing the whole or any part of any Products found to be damaged or otherwise defective or refunding or crediting the purchase price or a pro rata portion of the purchase price of the Products of which the defective Products form part;
13.1.2. the total aggregate liability of the Company under all Contracts shall under all circumstances be maximized at the amount the Company has received from the Customer in connection with such Contracts during the six month period immediately prior to the date the cause of action first arose; and
13.1.3. the Company’s liability in respect of death, personal injury or fraud caused by the Company’s negligence shall not be limited.
13.2. To the extent permitted by law, the Company shall have no liability for any loss or damage suffered by the Customer or any other person:
13.2.1. as a consequence of any defect in any Product caused by abnormal conditions of storage, treatment or handling or any negligence or wrongful act on the part of the Customer or its employees or agents;
13.2.2. for claims for damage reasonably apparent on inspection at the time of delivery or for short delivery unless the provisions of Condition 6.5 (Acceptance and Claims Procedure) have been complied with; and
13.2.3. for any loss of profit, loss of sale, loss of goodwill, loss of reputation, loss of customers, loss of business opportunities, loss of anticipated savings or wasted expenditure (including management time), loss or corruption of data or information, and any indirect or consequential losses caused by the Company’s negligence or other wrongful act on the Company’s part or that of its employees or agents or otherwise.
13.3. Customer shall only be entitled to enforce its rights under or in relation to the Contract against the Company, and Customer shall under all circumstances refrain from making any claim (whether in contract, tort or otherwise) against any other member of the Group.
14.1. Copyright and all other Intellectual Property Rights in the Products shall remain at all times the property of the Company. The Customer shall acquire no rights in the Products except as expressly provided for in these Terms and Conditions.
14.2. The Customer guarantees and undertakes towards the Company that it shall not, and the Customer shall procure that each of its affiliates and its and their respective officers, directors, employees, agents and related persons shall not:
(a) grant any person access to any Product if access to such person is not explicitly permitted in the Contract;
(b) reproduce, copy, duplicate, transmit, publish, display, distribute, (sub)license, or sell (i) any Product, (ii) any software or material subject to the Company’s Intellectual Property Rights, (iii) material from the Company websites, or (iv) any software or material provided as part of the Services, without the explicit written consent of the company;
(c) make adaptations or variations of, modify, repair or maintain any of the Products, or any other software or materials subject to the Company’s Intellectual Property Rights; nor
(d) replicate, duplicate, disassemble, decompile, reverse translate, reverse engineer or in any other manner decode any of the Company’s Products, software or other materials subject to the Company’s Intellectual Property Rights.
14.3. For the duration of any software subscription period associated with the Services, the Company shall be deemed to automatically grant a royalty-free, non-exclusive license (without the right to sublicense) to the Customer to use the Products in accordance with the terms of the Contract. Any unauthorised use or breach of this Condition 14 by the Customer immediately terminates such license and any other permissions granted.
14.4. The provisions of this Section shall continue in force in accordance with their terms, notwithstanding the termination of any Contract(s) for any reason.
The Company shall effect and maintain insurances which a prudent and competent person entering into the Contract would maintain in respect of its obligations thereunder including without limitation employers’ liability and product liability coverage. The Company shall provide the Customer upon request with details of all such insurance cover held by it.
In the course of providing the Services, the Company collects data about the Customer and the Customer’s operations. This data is used to deliver and improve the Services provided by the Company. In addition, where this data is, or can be converted into, Anonymised Data, the Supplier may use such Anonymised Data for other purposes including but not limited to benchmarking and credentials. For the avoidance of doubt, the Supplier will not disclose any data about the Customer which is not Anonymised Data to any third party other than on the Customer’s written instructions or as required by law, or to parties involved in the fulfilment of the Supplier’s obligations under the Contract (including other members of the Group) to the extent this is reasonably deemed necessary and under the condition the Supplier shall procure such third parties to comply with the provisions of Condition 18 hereof in respect of such data.
The Company reserves the right to defer the date of delivery of Products ordered by the Customer or to cancel the Contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions or unusually severe traffic congestion which could not reasonably have been anticipated leaving no alternative route, loss of power or telecommunications systems.
18.1. Save as permitted by Section 16 (Use of Data), either Party (Receiving Party) undertakes that it shall not at any time disclose any confidential information concerning the business, affairs, customers, suppliers, pricing or other financial information of the other Party (Disclosing Party) to any third party whatsoever, except as specified within the Contract.
18.2. The Receiving Party may however disclose the Disclosing Party’s confidential information (i) to its other group entities, resellers, distributors and contractors, employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations to under the Contract or to any of the Company’s investors or potential investors, provided that such other group entities, resellers, distributors and contractors, employees, officers, representatives, advisors and investors to whom the Receiving Party discloses such information comply in full with this Section; and (ii) as may be required by law, court order or any government or regulatory authority, provided that the Receiving Party gives as much advance notice of such disclosure to the Disclosing Party as reasonably possible.
18.3. Either Party shall not use the other Party’s confidential information for any purpose other than to perform its obligations under the Contract.
18.4. The provisions of this Section shall continue in force in accordance with their terms, notwithstanding the termination of any Contract(s) for any reason.
19.1. Failure or delay on the part of either Party in enforcing any provision of the Contract shall not be construed as a waiver of any of such Party’s rights under the Contract. Any waiver by a Party of any breach of, or any default under, any provision of the Contract by the other Party shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
19.2. If any provision of the Contract is found by any Court, tribunal or other administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.3. Either Party may assign any of its rights and obligations under the Contract(s) to another group company, successor entity, or third party, unless such assignment would reasonably be considered by an independent observer to have a material adverse impact on the other party. In such case, consent of that party should be requested, and not unreasonably withheld. In addition, the Supplier may subcontract activities to third parties (including to other members of the Group), on ensuring those parties adhere to the relevant standards and obligations set forth in the Contract.
19.4. Any written communication given pursuant to the Contract must be sent by pre-paid first class post to the registered office of the addressee or by electronic mail to any address of the other Party set out in any document which forms part of the Contract or such other address as may have been notified in writing.
19.4.1. Communications shall be deemed to have been received by the addressee two days after the date of posting if sent by post or at the time of transmission if by electronic mail.
19.4.2. Communications addressed to the Company shall be marked for the attention of account manager. Communications addressed to the Customer shall be marked for the attention of the financial controller, unless otherwise notified.
19.5. Any typographical, clerical, or other accidental errors of omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
19.6. The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
19.7. The Contract shall be governed by the laws of England and the Company and the Customer agree to submit to the non-exclusive jurisdiction of the English Courts.
19.8. The signature on behalf of a Customer who is a limited company by any person purporting to sign with the Customer’s authority shall bind the Customer and the Customer shall be liable to comply with the terms of the Contract.
19.9. The Customer shall be liable to comply with the terms of the Contract and pay for any Products and Services which are ordered using its Customer account.