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 personally identifiable information 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. “Contract” means a contract between Winnow 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 these Terms and Conditions.
1.4. The “Customer” means any person, firm, company or other legal entity which places an order, or buys any Products from Winnow.
1.5. 1.5. “Delivery Date” means any date on which Winnow has agreed to provide Goods or Services to the Customer.
1.6. “Goods” means any equipment agreed in the Contract to be supplied by Winnow to the Customer.
1.7. “Intellectual Property Rights” means:
1.7.1. 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;
1.7.2. rights under license, consent, orders, statute or otherwise to the same; and
1.7.3. the right to sue for past infringements of any of the foregoing rights; as may exist now or in the future.
1.8. “Party” means Winnow or the Customer.
1.9. “Products” means the Goods or Services agreed in the Contract to be supplied by Winnow to the Customer.
1.10. “Services” means any services agreed in the Contract to be supplied by Winnow to the Customer, including, for the avoidance of doubt, software-as-a service subscriptions.
1.11. “Site” means the named location where the Goods will be used as stated in the Contract.
1.12. “Terms and Conditions” means these terms and conditions of sale.
1.13. “Winnow” means Winnow Solutions Limited or the Group entity that has entered into and signed the Contract with the Customer.
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 Winnow, the Customer is offering to purchase the Products on the basis of the Contract. The Contract shall be formed when the Customer signs the Contract or provides a purchase order which Winnow 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. Pricing made available by Winnow to the Customer during the course of any contract discussions does not constitute an offer. Winnow in its absolute discretion may amend its prices at any time prior to a Contract being signed.
3.4. The Contract is subject to availability of stock and resources and Winnow 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, Winnow 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
4.3. Where the Goods are purchased by the Customer, title in the Goods shall only pass to the Customer when Winnow has received in full (in cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to Winnow 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. Failure by the Customer to pay any invoice by its due date shall entitle Winnow to suspend delivery of all unexecuted or future orders, and Services, including subscription-based Services under a Contract with the Customer.
5.3 Recurring subscription fees are issued in advance of and payable prior to each license extension date.
5.4. Winnow reserves the right to charge interest on all invoices it presents to Customer which are not paid by their relevant due date in accordance with its statutory right to claim interest and compensation for debt recovery under late payment legislation.
5.5. Winnow reserves the right in its absolute discretion to refuse to grant credit.
5.6. If any payment to Winnow remain overdue by more than 30 days, Winnow shall be entitled to 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.
5.7. Except as expressly stated in the Contract, prices are exclusive of packaging, transport, delivery, Winnow employee travel, accommodation and incidental costs, and any sales, excise, or other duties, levies, or value added tax. Such additional charges will be invoiced by Winnow accordingly.
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 Winnow with the same amount as Winnow would have been entitled to receive in the absence of a requirement to make a Withholding.
5.9. All payments are due in immediately available funds in the agreed currency to Winnow’s nominated bank account. Any deviations including but not limited to alternative currency payments and cheque payments may be accepted at Winnow’s discretion. Winnow’s then-applicable additional payment processing charges will be applied.
6.1. Delivery Dates set out in the Contract, or otherwise specified by Winnow, are estimates only and shall under no circumstances be deemed firm deadlines, unless Winnow explicitly confirms in writing that a certain Delivery Date is binding. Winnow 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 Winnow in writing.
6.2. Without prejudice to any other right or remedy available to Winnow, should the Customer fail to take delivery or fail to give Winnow adequate delivery instructions at the time stated for delivery, Winnow may charge the Customer for the cost of carriage of the refused delivery both to and from the premises of the Customer in addition to the Winnow’s administration charges involved.
6.3. Winnow 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 Winnow by the Customer 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 Winnow 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, on condition that Company be notified as soon as reasonably possible, given sole conduct of the claim, and that the Customer and its personnel make no admissions or act in other ways that may damage the Company’s ability to successfully defend against the claim.
7.2. If Winnow 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; 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 or altering the Products to eliminate the infringement or potential infringement.
7.3. The Customer shall be responsible to ensure that use of the Products is in compliance with all applicable local statutory provisions, in addition to complying with the usage instructions contained in the packaging or labelling of the Products.
7.4. The Goods are to be confined to the Site location(s) as defined in the Contract. Any movement of the Goods between locations or to another location requires the agreement of Winnow, which will be agreed on a case-by-case basis.
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. Winnow shall use all reasonable endeavours to complete its obligations under the Contract.
9.6. A number of the Services may be reliant on data being sent by Customer to Winnow. 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 to Winnow.
9.7. Where the Contract provides training or other services that requires Winnow personnel or other resources to be reserved in advance, the Customer is required to provide Winnow with at least 14 days’ notice if it wishes to cancel or postpone such services.
9.7.1. Where the Customer provides 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 an agreed package under the Contract, 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.
10.4. Notwithstanding Condition 10.3, the Company may terminate any Contract (including the relevant Services) by notice (a) in accordance with Condition 5.5 (Customer non-payment) or Condition 11 (Customer Insolvency), or (b) in case of any material breach by the Customer that is not remedied within one month after Customer 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.
10.5. 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.
10.6. 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 Condition 10.3 applies.
10.7. 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.
10.8. 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.
10.9. 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.
10.10. Conditions 1 (Definitions), 2 (Applicability of Terms and Conditions), 5 (Payment Terms and Pricing), 12 (Warranties), 13 (Limitation of the Company’s Liability), 14 (Intellectual Property), 16 (Use of Data), 17 (Force Majeure), 18 (Confidentiality), and 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. In the event that 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 (iii) the Customer suspends any payments hereunder without cause or ceases, or threatens to cease, to carry on business; or,
11.3. Winnow reasonably considers that any of the events mentioned above are about to occur and notifies the Customer accordingly then Winnow shall be entitled 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, Winnow may appropriate any payment made by the Customer for any of the contracted Products as Winnow may think fit.
12.1. Winnow warrants that all Products, including leased equipment (with the exception of bespoke Goods, where Winnow relies upon a third party supplier in this respect) shall comply with all relevant legislation from time to time in force and be fit for purpose.
12.2. Winnow to the extent that it is able to, at the sole cost and expense of the Customer, will assign or make available to the Customer the benefit of any warranties or guarantees relating to the Goods obtained from the manufacturer.
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 Winnow (or other level 1 support point as specified in the Contract) for remote troubleshooting support.
12.3.3. For Contracts including an ongoing warranty service if the issue remains following troubleshooting support, Winnow may in its sole discretion determine whether repair or replacement is required, and Winnow will instruct the Customer to send the relevant parts for inspection. Within ten business days of receipt, Winnow 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.
12.3.4. If in Winnow’s sole judgement the failure was due to defect in materials or workmanship, or normal wear and tear, Winnow will return the repaired or replaced item at no cost for the Customer to replace.
12.4. Winnow reserves the right to substitute a similar device during the course of warranty provision.
12.5. Winnow shall be under no liability in respect of any defect arising from any wilful damage, negligence, subjection to abnormal conditions, failure to follow Winnow’s instructions (whether oral or in writing), misuse or alteration of the Goods without Winnow’s approval, or any other act or omission not agreed by Winnow on the part of the Customer, its employees or agents or any third party.
12.5.1 If the failure or request for service is due to such causes, or if Winnow 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.
12.7. Winnow provides no representation, warranty or undertaking that the Products will operate uninterrupted or error-free, and Winnow 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. Winnow 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 Winnow under all Contracts shall under all circumstances be maximized at the amount Winnow 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. Winnow’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, Winnow 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 Winnow’s negligence or other wrongful act on Winnow’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 Group entity that is named in the Contact, 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. All Intellectual Property Rights in the Products shall remain at all times the property of Winnow. 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 Winnow 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:
14.2.1. grant any person access to any Product if access to such person is not explicitly permitted in the Contract;
14.2.2. reproduce, copy, duplicate, transmit, publish, display, distribute, (sub)license, or sell (i) any Product, (ii) any software or material subject to Winnow’s Intellectual Property Rights, (iii) material from Winnow’s websites, or (iv) any software or material provided as part of the Services, without the explicit written consent of Winnow;
14.2.3. make adaptations or variations of, modify, repair or maintain any of the Products, or any other software or materials subject to Winnow’s Intellectual Property Rights; nor
14.2.4. replicate, duplicate, disassemble, decompile, reverse translate, reverse engineer or in any other manner decode any of Winnow’s Products, software or other materials subject to Winnow’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 Condition shall continue in force in accordance with these terms, notwithstanding the termination of any Contract(s) for any reason.
Winnow maintains insurance relevant to the provision of the Products and Services. Winnow may provide the Customer upon request with details of such insurances.
16.1. In the course of providing the Services, Winnow collects data about the Customer and the Customer’s operations. This data is used to deliver and improve the Services provided by Winnow. Where this data is, or can be converted into, Anonymised Data, Winnow may use such Anonymised Data for other purposes including but not limited to benchmarking and credentials
16.2. Winnow will not disclose any data about the Customer which is not Anonymised Data to any third party other than:
16.2.1 on the Customer’s written instructions or as required by law,
16.2.2 to parties involved in the fulfilment of Winnow’s obligations under the Contract (including other members of the Group) to the extent this is reasonably deemed necessary, and Winnow shall procure such third parties to comply with the provisions of Condition 18 in respect of such data,
16.2.3 to those parties reasonably understood by Winnow to have an expectation to access the data, including but not limited to other members of the Customer’s group of companies and the Customer’s franchisors, operating/management partners, agents, and contractors.
16.3. Winnow acts as data processor and manages data with due care, including ensuring the policies of any data sub-processors meet its standards. Winnow abides by the data protection and privacy laws of each jurisdiction in which it operates.
Winnow 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 Condition 16 (Use of Data) or as set out in Condition 18.2 below , neither Party (Receiving Party) shall 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 to:
18.2.1. 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 under the Contract, 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 Condition.
18.2.2. 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
18.2.3. in the case of Winnow, it may also disclose the Disclosing Party’s confidential information to its investors or potential investors.
18.3. The provisions of this Condition shall continue in force in accordance with their terms, notwithstanding the termination of any Contract(s) for any reason.
Each Party shall comply with the Bribery Act 2010 and Modern Slavery Act 2015, and any related applicable laws, statutes and regulations.
20.2. 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, Winnow 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.
20.3. 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.
20.3.1. 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.
20.3.2. Communications addressed to Winnow 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.
20.4. 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 Winnow shall be subject to correction without any liability on the part of Winnow.
20.5. 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.
20.6. The Contract shall be governed by the laws of England and Winnow and the Customer agree to submit to the non-exclusive jurisdiction of the English Courts.
20.7. 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.
20.8. 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.