Terms and conditions of sale
Introduction
The below agreement provides the terms and conditions upon which Customer shall procure, and Supplier shall provide, Products and Services for any Order that is valid and accepted by Supplier.
“Addendum” or “Addenda” means one or more addendum attached to this Agreement which sets forth, where deemed required, specific additional terms and conditions for the purchase of Products or Services, and the Prices in respect of the Products or Services.
“Agreement” means this Agreement and each Addendum and all or any exhibits, attachments or related Agreements which are incorporated herein by this reference.
“Authorised User” means an employee, agent, or contractor of Customer to whom Customer grants access to the Software (web portal) and permits to order Products and Services from Supplier.
“Charges” means the prices or charges payable by Customer for Products or Services as set out in a Quotation, Price List or as sold on-line at podia.work. The terms Charges and Prices may be used interchangeably and should be considered to have the same meaning.
“Confidential Information” means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of either Party, together with all information derived by the receiving Party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked "confidential"), or which ought reasonably be considered to be confidential.
“Order” means where either a Customer agrees with a Quotation provided by Supplier and thereafter it issues to Supplier a purchase order for Products or Services, or where Customer places an order with Supplier on-line at podia.work through an Authorised User.
“Prices” means the prices or charges payable by Customer for Products or Services as set out in a Quotation, Price List or as sold on-line at podia.work. The terms Charges and Prices may be used interchangeably and should be considered to have the same meaning.
“Products” means the equipment, software, licenses, services, goods, materials or as otherwise defined to be provided by Supplier to Customer. The specification of the Products
to be supplied by Supplier shall be set out in each Quotation provided by Supplier and/or on-line at podia.work.
“Quotation” means a list of Products or Services, quantities and their Prices provided by Supplier to Customer.
“Services” means the services made available to Customer by Supplier through the Software or otherwise and as specified in an Order.
“Software” means (i) any software provided by Supplier to the Customer whether as standalone software, or, as part of a Product (ii) the web portal made available to Customer for the purposes of Authorised Users ordering and managing Products and Services on-line, and includes any firmware, upgrades, updates or new versions issued in accordance with this Agreement.
“Warranty Support” means a service provided by Supplier or a Vendor in association with a Product which provides the Customer with any replacement parts they may require to use the Product over the term, subject to the terms and conditions applied to such Product warranty.
“Vendor” means a third-party manufacturer or supplier of Products or Services for which Supplier is authorised to resell to Customer.
2.1. Any and all terms and conditions in addition to, or in conflict with these terms and contained in any order or acknowledgement relating to the Products or Services and issued by either party are hereby superseded by this Agreement which takes precedence, unless mutually agreed in writing. This Agreement will constitute the controlling terms for any Order that is accepted by Supplier and valid.
3. Ordering and Customer Orders
3.1. Customer, or its Authorised Users, may submit Orders to Supplier. Each Order must be from an Authorised User when placed on-line at podia.work. Customer is solely responsible for the appointment, authorisation, and on-going management of Authorised Users. Any Order submitted by an Authorised User online at podia.work is considered by Supplier to be a valid Order from Customer once accepted.
3.2. The Customer shall be entitled from time to time to request from Supplier the provision of Products or Services. Supplier will issue the Customer with a Quotation detailing the quantity of the Products or Services together with the associated Prices. If the Customer agrees with such Quotation, it shall issue to Supplier an Order for Products or Services. Supplier shall accept such Order if accurate compared to the supplied Quotation. The Parties agree that this Agreement and the terms of such Quotation and Order shall form the Agreement between the Parties including any Addenda.
3.3. In order to accurately describe the Products or Services that form part of any Quotation or Order, Supplier may provide additional documents in the form of bill of materials, Scope of Work or other similar documentation. Such documents shall be found in Addendum, Exhibits, and/or on-line at podia.work. Where such documentation is provided as part of a Quotation the contents of such documents are considered part of the Quotation and any subsequent Order shall constitute acceptance of the contents of such documents. Where such documentation is provided on-line at podia.work and/or referenced in Addenda to this Agreement the contents of such documents are considered part of any Order and shall constitute acceptance of the contents of such documents.
4. Cancelling and Rescheduling
4.1. Customer may cancel without charge any Order prior to it being accepted by Supplier, by giving written notice.
4.2. Should Supplier fail to deliver part or all of any Order then Supplier will supply a recommended alternative(s) at an equivalent or higher specification and price to the affected Product to the Customer at its own expense. Supplier will notify Customer in advance of delivery and Customer may cancel without charge the Order for the affected Product at this stage by giving written notice.
4.3. Supplier does not provide any other cancellation facility and will not accept any cancellation outside of 4.1 and 4.2 above.
4.4. Customer may request the re-scheduling of the delivery of an Order. Such request must be submitted no less than five (5) business days before the original delivery date. The requested new delivery date must be no more than twenty (20) business days after the original delivery date unless agreed in writing with Supplier. The change shall not take effect until confirmed by the Supplier.
5. Prices
5.1. Prices for products are to be provided by Supplier online at podia.work or in each Quotation or Price List and exclude any taxes which may be applicable and shall be invoiced at the prevailing rate at the time of invoicing.
6. Delivery, Installation & Collection
6.1. The preferred delivery date and address for all Orders placed by the Customer must be agreed with the Supplier in writing and/or on-line at podia.work. Where there is more than one delivery address in relation to delivery of the Products, there may be a separate delivery date for each delivery address. The Supplier shall notify the Customer at its earliest convenience if Supplier does not believe the order can be delivered on, or before the preferred delivery date.
6.2. Supplier shall use all reasonable endeavours to deliver the Products on the agreed date however any delivery period quoted is an estimate only.
6.3. The Customer shall accept delivery of the Products at the agreed time and point of delivery in accordance with these Conditions and the Customer shall reimburse the Supplier for any costs or expenses (including, without limitation, any re-delivery and storage costs) incurred by the Supplier as a result of the Customer failing to accept delivery or failing to provide the Supplier with such instructions and/or documentation as it shall require in order to effect delivery of the Products.
6.4. Any shortfall in the quantity of Products delivered from that stated in any Order shall not give rise to a right to claim damages for breach of contract solely as a result of such shortfall but the Customer shall only be obliged to pay the Price and Charges for the quantity of the Products delivered or Supplier will fulfil the entire Order in a subsequent shipment(s).
6.5. All Products supplied by the Supplier shall be at the Customer's risk immediately following delivery of the Products to the Customer. The Customer must maintain appropriate insurance for all delivered Products against all usual risks and ensure Products are at all times used in a suitable environment.
6.6. The Customer shall ensure that the Products ordered are of a suitable size for their intended use and the Supplier does not accept responsibility where this is not the case. Supplier shall install and assemble the Products at the delivery address and Customer shall ensure that the environment is suitable for the Products. The Customer shall ensure that the Supplier has free and unobstructed access to the delivery address(es) in order to deliver and install the Products.
6.7. Unless stated otherwise, title to the Products delivered to the Customer shall pass to the Customer upon payment in full by the Customer of the Price for the Products and Services, including or subject to any additional final payment required under the terms of a fixed term lease agreement.
6.8. If for any reason Supplier needs to collect the Products during the term (including on behalf of any third party) the Customer acknowledges and agrees that the Supplier shall check the Products for any damage at the time of collection of such Products. The Customer further acknowledges and agrees that the Supplier shall have the right to charge the Customer for costs associated with the repair of any damage that is reasonably considered by the Supplier to be beyond reasonable wear and tear or, where such damage is not capable of being repaired or where the cost of doing so exceeds the cost of replacing the Product, the Customer agrees that the Supplier has the right to charge the Customer for the full cost of replacing the Product.
6.9. The Supplier may charge the Customer, at the Supplier’s sole discretion, for its own costs in relation to re-arranging the collection of a Product if the Customer cancels a collection within two (2) business days of the Collection Date, or if the Customer (including a nominated contact) is not present at the collection address during the collection.
7. Limited warranty and disclaimer of warranty
7.1. Customer acknowledges that Supplier is not the manufacturer of the Products and that any Warranty (or Warranty Support during the term) are only those of the Vendor. The specifications and performance of the Products are only those published and made publicly available by the Vendor and/or as made available at podia.work. If any conflict arises in specification or warranty of Products between Supplier and Vendor, then Vendor should take precedence.
7.2. Supplier warrants that all Products (except any software forming part of the Products) shall at all times meet the standards and certifications as set forth in each Quotation provided to Customer and as described at podia.work.
7.3. Supplier warrants that the Products supplied will conform in all material respects to the functional description as in each Quotation and as described at podia.work. The limited warranty for Software granted hereunder is supplemental to any warranties contained in any related Software License Agreement from Vendor or otherwise.
7.4. Supplier will provide Warranty Support to Customer for all Products purchased for a period of thirty-six (36) months from the date of delivery and/or installation (excluding Headsets which are for twenty-four (24) months only). Customer should return faulty hardware to Supplier during the term as per the process outlined in the Supplier Returns Process at podia.work.
7.5. Supplier warrants that all Services performed by it, if any, will be performed with utmost skill and care and in accordance with the standards expected from a market leader providing the same or similar Services.
7.6. Supplier warrants to the Customer that the Products shall not infringe any rights of any third-party and shall indemnify and keep the Customer indemnified against all costs, claims, damages and expenses suffered or incurred by the Customer arising out of or in connection with the Products infringing any third-party’s rights.
7.7. The foregoing product and Services warranties do not extend to defects or non-conformities from abuse of use or misuse of the Products, using Products in an unsuitable environment, acts of God, improper use, accidental damage, any modifications made, or misuse by the Customer or a 3rd party on the Customer’s request.
7.8. For any additional Support during or after the Warranty Support period Customer should purchase any such Support from Supplier in connection with the Products or Services as per each Quotation provided or as made available to purchase at podia.work.
8. Software
8.1. Software forming part of the Products and any included firmware is subject to any relevant Vendor Terms and Licenses as published and as publicly available.
8.2. Supplier grants to Customer a non-exclusive, royalty-free, non-transferable right to permit Authorised Users to use the web portal and to use the Software and the Services during the Term.
8.3. Customer warrants that no more than the number of Authorised Users shall be permitted to use the Software or Services and place Orders on the web portal. Each Authorised User shall keep a secure password for their use of the Software and Services. Customer shall take appropriate measures commensurate with its own information security policies in order to protect the security of Authorised User login Credentials. Customer is solely responsible for the appointment, authorisation and on-going management of Authorised Users. Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software and Services.
8.4. The Software is made available free-of-charge or subject to the Price stipulated in any Quotation, Order or on-line at podia.work.
8.5. Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and Services and, in the event of any such unauthorised access or use, promptly notify Supplier immediately in writing.
8.6. Both parties warrant that they shall comply with any provisions in the Supplier and/or Supplier Vendor Data Processing and Privacy policies referenced in Addenda, described at podia.work or which is part of any Conditions related to this Agreement.
8.7. Supplier does not warrant that Customer's use of the Services or Software will be uninterrupted or error-free.
8.8. Supplier can remove and revoke Customer access to use the Software and Service at any time and at its sole discretion.
9. Intellectual Property Rights
9.1. Except as described in this License, Supplier, and its Vendors do not grant and Customer acknowledges that it shall have no right, license or interest in any of the patents, copyrights, trademarks, Software and Services, or trade secrets owned, used or claimed now by Supplier and Vendors. All applicable rights to such patents, copyrights, trademarks, and trade secrets are and will remain the exclusive property of Supplier and its Vendors, subject to the rights expressly granted to Customer by this License. Title to and ownership of the intellectual property rights contained in the Software or any part thereof shall remain Supplier’s and its Vendors and any relevant licensors property.
9.2. Customer agrees;
(a) to notify Supplier as soon as it becomes aware of any third-party infringement of the Suppliers Intellectual Property Rights
(b) not to copy, modify, duplicate, republish, download, distribute, reverse engineer, compile or disassemble all or any part of the Software
10. Confidentiality
10.1. Either party (the "Disclosing Party") may disclose to the other party (the "Receiving Party") Confidential information of the Disclosing Party.
10.2. Confidential Information shall not include, or (as the case may be) shall no longer include information that:
(a) was in the public domain at the time of disclosure;
(b) enters into the public domain through no fault of the Receiving Party;
(c) was in the Receiving Party's possession free of any obligation of confidence at the time of disclosure;
(d) is received from the Receiving Party from a third party under no obligation of confidence;
(e) is developed by the Receiving Party independently of and without reference to the Confidential Information of the Disclosing Party; or
(f) is identified in writing by the Disclosing Party as no longer being Confidential Information.
10.3. The Receiving Party shall:
(a) use Confidential Information of the Disclosing Party only for the purposes of performing its obligations under this Agreement;
(b) not disclose such Confidential Information to others for any purpose without the prior written consent of the Disclosing Party (unless such disclosure is required by law as confirmed by written legal advice);
(c) limit dissemination of such Confidential Information to such of the Receiving Party's personnel as have a need to know it; and
(d) protect such Confidential Information in the same manner as it protects its own confidential information and in any event in a reasonable manner.
10.4. The rights and obligations regarding disclosure and use of Confidential Information shall survive the expiry or earlier termination of the Agreement.
11. Force Majeure
11.2. In the event of either party being so delayed or prevented from performing its obligations such party shall:
11.3. give notice in writing of such delay or prevention to the other party as soon as reasonably possible stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
11.4. use all reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under this Agreement; and
11.5. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
11.6. If Supplier is prevented from performing its obligations by an event of force majeure for more than 3 months, the Customer may terminate this Agreement by notice to Supplier subject to payment of all amounts due under this Agreement up to the date when the event of force majeure occurred.
12. Taxes
12.1. Unless stated otherwise prices do not include any sales, use, excise, ad valorem, property or other taxes applicable to the sale, use, license, or delivery of the Products or Services supplied, all of which are the responsibility of Customer.
13. Termination and Consequences of Termination
13.1. In the event either Party defaults in the performance of any material obligation or covenant hereunder and fails to cure said default within thirty (30) days of written notice specifying the breach and requesting it to be remedied, then the non-defaulting Party may terminate this Agreement. Without prejudice to the aforementioned, in the event that Supplier defaults in the performance of any material obligation or covenant hereunder and fails to cure said default within thirty (30) days of written notice specifying the breach and requesting it to be remedied, the Customer shall be entitled to terminate any individual Order raised pursuant to this Agreement or part of this Agreement only. Termination for default shall in no way prejudice the rights or remedies available to the non-defaulting Party as a result of the default.
13.2. The Customer shall be entitled to terminate this Agreement and all Orders made pursuant to it at any time on 3 months' written notice to Supplier provided that it will pay all amounts properly due and outstanding.
13.3. Termination of this Agreement in whole or in part for any reason other than for breach of this Agreement by the Customer shall not act to terminate the provision of Products or Services or any associated Software License Agreement set out in existing Customer Orders by Supplier unless and until the relevant Customer Order also terminates or expires and Supplier agrees to continue to provide the Products or Services in accordance with the terms set out in the Customer Orders and this Agreement provided that the Customer continues to pay the price for such Products or Services set out in any Quotation or online at podia.work.
14. Payment
14.1. Orders placed on-line at podia.work will be subject to additional terms and conditions when any Products and Services are purchased by Customer using any third-party payment and/or finance agreement.
14.2. Unless ordered on-line at podia.work and when ordering using a credit facility from Supplier all invoicing terms for Products or Services shall be completed 100% on delivery date of Products unless stated otherwise in a Quotation and/or Order. All invoices shall be paid within thirty (30) calendar days. Timely payment by Customer to Supplier of all sums due hereunder is a material element hereof. Except in the case of payments subject to a bona fide dispute Supplier may charge the Customer interest at the rate of 2.5% above the base lending rate of HSBC UK Bank from time to time. Customer shall reimburse Supplier for all reasonable costs and expenses of collection of overdue amounts properly payable including reasonable attorney's fees provided that such costs and expenses shall not include Supplier's own internal administrative costs.
15. Limitation of Liability
15.1. Nothing in this Agreement shall limit a party’s liability in respect of any claims:
(a) for death or personal injury caused by the negligence of such party;
(b) resulting from any fraud including fraudulent misrepresentation made by such party or its employees;
(c) for which liability may not otherwise lawfully be limited or excluded.
16. Validity
16.1. Should any provision of this Agreement be found illegal or unenforceable in any respect, such illegality or unenforceability shall not affect any other provision of this Agreement, all of which shall remain enforceable in accordance with their terms, so long as the overall intent of this Agreement is met.
17. Entire Agreement
17.1. This Agreement incorporates all oral and written representations between the Parties and constitutes the entire Agreement and understandings of the Parties with respect to the subject matter hereof and supersedes any and all other agreements either oral or written between the Parties with respect to such subject matter. No amendment or modification may be made to this document unless in writing and duly executed by an authorized representative of each of the Parties.
18. Conflict of Terms
18.1. In the event of a conflict between the terms of this Agreement and any attachments, Addenda or other documents, the conflict shall be resolved in the following order of precedence: (a) the terms and conditions in any third party payment and/or finance agreement and relating to Orders of Products and Services from Supplier, (b) the terms of any Addendum, Exhibit or Scope of Works; (b) the terms of this Agreement
19. Applicable Law and Jurisdiction
19.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The Parties agree to submit to the exclusive jurisdiction of the English courts.
19.2. Any dispute arising in respect of this Agreement that cannot be rectified between the Parties shall be referred to arbitration conducted in London, England. The award rendered in such arbitration will be final and binding and may be enforced in any court of competent jurisdiction. Each Party shall bear its own costs incurred in the arbitration action. Notwithstanding the provisions of this section, any Party may seek injunctive relief in any court of competent jurisdiction in order to protect its proprietary and Confidential Information and to enforce or obtain compliance with the provisions relating to data protection and the scope of rights and licenses granted under this Agreement without first submitting such claim to arbitration.
20. Notices
20.1. All notices, requests, demands, and other communications provided for under or in relation to this Agreement shall be in writing and in English and shall be delivered or sent to the recipient at its address as set out at the head of this Agreement or such other address as may be notified from time to time by either Party to the other in writing.
01 July 2021