Copyright 16th March 1999 - 2009 Maclynn Limited
 
 
 
  The following agreement (?this Agreement?) are the terms and conditions on which Maclynn sells and supplies equipment, software and/or services ("the Product").  The description and quantity of the goods to be sold (?the Goods?) and/or the services to be provided (?the Services?) shall be as set out in the Proposal (?the Proposal?) provided by Maclynn to you, the Customer (?the Customer?).   
     
 

1. WARRANTY

  
  Maclynn are authorised dealers for Product manufacturers.  Where a defect exists in the Product(s) between the time of sale and delivery, which would have been readily observable by Maclynn upon such examination as it was reasonable for Maclynn to make of the Product before supplying it to the Customer, then Maclynn will make good such defects through repair or replacement at Maclynn?s absolute discretion.  In all other respects the Customer will rely upon the Warranty (express and/or implied) given by the manufacturer.  
 

2. SPECIFICATION

  
  The Customer shall be responsible for providing all relevant information to Maclynn in connection with its proposed use of the goods.  Maclynn shall use its best endeavours to advise the Customer as to the appropriate Product but (providing Maclynn shall have acted in good faith) Maclynn shall have no liability for the failure of any Product to carry out any purpose or requirement of a Customer other than those specifically advised including but not limited to any specialised requirements.  
 

3. DELIVERY

  
  Any delivery time stated by the Company shall be a reasonable estimate and save where otherwise agreed in writing, time shall not be of the essence for delivery and no liability shall attach for the delay of any delivery for whatever reason.  
 

4. PRICES

  
  4.1 All prices given are in pounds sterling and exclusive of VAT and any other applicable taxes save as where specifically stated otherwise.  Payment is to be made in pounds sterling, save as where expressly agreed in writing otherwise.  
  4.2 All prices are exclusive of packing, carriage and delivery unless otherwise stated in writing.  
 

4.3 Any quote for consultancy services is expressly exclusive of any expenses incurred in connection with the contract, and which will in the absence of agreement to the contrary, be charged separately

  
 

4.4 An additional configuration charge may be made for processing equipment where any such equipment is provided by a third party.

  
 

4.5 All payments are to be net of any bank transfer and/or currency conversion fees where applicable.

  
 

5. CANCELLATION

  
  Once the contract has been agreed, the Customer shall be liable to pay the full cost of the Order, save for any equipment which has not been purchased, in respect of which the Customer shall only be liable to pay a 10% administration surcharge.  
 

6. AMENDMENTS

  
  Maclynn reserves the right to amend this Agreement from time to time upon the provision of reasonable notice to the Customer.  No variation or amendment of this Agreement or oral promise or commitment related to it shall be valid unless agreed in writing by Maclynn.  
 

7. TITLE AND RISK

  
  7.1 The Goods shall be at the risk of the Customer following delivery.  
 

7.2 Notwithstanding delivery title in the Goods shall not pass to the Customer until the Customer has made payment of all sums owing to Maclynn.

  
 

7.3 Until such time as title in the Goods passes to the Customer Maclynn shall have the right to repossess or otherwise recover the Goods, and for the purpose of recovery of its Goods the Customer hereby authorises Maclynn to enter upon any premises where they are stored or where they are reasonably thought to be stored and to repossess the same, to obtain access, physically and/or electronically any computer equipment on which it is stored.  The Customer acknowledges that no liability shall attach to Maclynn for any damage, howsoever caused, and whether direct or indirect, by the removal or deletion of same in accordance with this term.

  
 

7.4 If the Customer sells or otherwise disposes of the Goods or makes any insurance claim in respect of the Goods prior to making payment in full, he shall do so as agent for Maclynn and the entire proceeds of such sale, disposal or claim shall belong to Maclynn.

  
 

7.5 Until such time as the intending purchaser becomes the owner of the Goods, the Customer warrants that they will be stored on his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of Maclynn.

  
 

7.6 Title to any trade mark trade name or registered design or other device for the protection of intellectual property shall remain with its registered owner.

  
 

7.7 The Customer warrants and agrees that he shall utilise any applicable software in accordance with any applicable Licensing and/or other agreements.

  
 

8. CONFIDENTIALITY

  
 

All technical specifications designs proposals documents advice working and manufacturing practices manuals and software and information provided to the Customer under this Contract shall remain at all times in the ownership of Maclynn and/or the originator thereof and may only be used by the Customer in connection with this Agreement, the Order or the Product.  Save with the express written consent and authority of Maclynn this contract shall not imply any rights for the Customer to otherwise use publish or disseminate the same itself or disclose to any third party.

  
 

9. LIMITATION OF LIABILITY

  
 

9.1 Save in respect of personal injury or death due to the negligence of Maclynn Maclynn shall not be liable to the Customer in respect of any loss suffered by the Customer due to any defect in the Goods.

  
 

9.2 Without prejudice to Clause 9.1 herein Maclynn shall not be liable to the Customer or any third party for any loss of profit, consequential or other economic loss suffered by the Customer arising in any way from this Agreement.

  
 

9.3 Save in all cases in respect of personal injury or death due to the negligence of Maclynn the liability of Maclynn under this Agreement shall not exceed the contract Price, and shall not in any event exceed the sum of ?250,000.

  
 

9.4 Maclynn shall not be liable for any default due to any circumstance beyond the reasonable control of Maclynn including, but not limited to, Acts of God, war, civil unrest, riot, strike, lock-out, acts of terrorism, acts of civil or military authorities, fire, flood, earthquake or shortage of supply or failure to deliver of the suppliers of the Supplier.

  
 

10. PAYMENT TERMS

  
 

In the absence of an express written agreement to the contrary, all payments must be made 30 days following the issue of an invoice (?the Settlement Date?).  Invoices will be issued:

  
 

10.1 Following the delivery of hardware software or services.

  
 

10.2 On completion of each month?s consultancy.

  
 

10.3 On completion of work.

  
 

10.4 30 days prior to the commencement, or renewal, of a support contract.  Where payment is not received prior to the commencement of the contract, any further obligations of Maclynn under contract shall be deemed to be suspended until payment is made, and no liability shall attach for any omissions or failure to act by Maclynn of whatsoever nature as a consequence of same.

  
 

10.5 On booking of a training course, (where this is less than 30 days prior to the commencement of the course), payment must be received at least 7 days before that commencement.

  
 

Payment will be deemed to have taken place on receipt of cleared funds.  If any invoice remains outstanding in full or in part after the Settlement date, then interest shall accrue both before and after judgment on any outstanding balance at the rate of 4 per cent above the base rate from time to time of Barclays Bank PLC or its successor in title.

  
 

11. SUBSEQUENT EMPLOYMENT

  
 

Where Consultancy Services are delivered by Maclynn personnel (?the personnel?), whether sub-contracted or directly employed, the Customer hereby agrees that it will pay a recruitment fee equivalent to three months? salary of the person recruited should the Customer make an offer of employment or contracted services and that offer should be accepted by the personnel during a period of twelve months following completion of the Consultancy Services.

  
 

12. ALTERATIONS AND ADDITIONAL WORK

  
 

If any additional work is required, a further invoice will be provided.

  
 

13. GENERAL

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13.1 If any term or provision of this Agreement is held invalid illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

  
 

13.2 Maclynn may without notice to or requiring the consent of the Customer assign or sub-licence its rights or obligations under any part of this Agreement.

  
 

13.3 The headings in this Agreement are for ease of reference only and shall not affect the interpretation of any of this Agreement.

  
 

14. ENTIRE AGREEMENT

  
 

14.1 This Agreement constitutes the entire understanding and agreement between the parties in relation to the subject matter of this Agreement. 

 
 

14.2 With the exception of statements made fraudulently, each party agrees that it shall have no remedy in respect of, without limitation, any statement, warranty or representation made to him upon which it relied in entering this Agreement and its only remedy may be for breach of contract.

  
 

14.3 This Agreement is in substitution for any and all previous contracts or agreements whether express or implied between Maclynn and the Customer which shall be terminated by mutual consent and agreement forthwith.

  
 

15. GOVERNING LAW AND JURISDICTION

  
 

This Agreement shall be governed by the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.

  
 

16. RIGHTS OF CONSUMER

  
 

Nothing in this Agreement shall affect the statutory rights of a consumer.

  
 

17. WAIVER AND VARIATION

  
 

17.1 Failure of either party to insist upon strict performance of any provision of this Agreement or the failure of either party to exercise any right or remedy to which it is entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this Agreement.

  
 

17.2 No waiver, variation or amendment of any of the provisions of this Agreement shall be effective unless it is confirmed in writing by Maclynn.

  
 

18. SEVERABILITY

  
 

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

  
 

19.SURVIVAL OF CAUSES OF ACTION

  
 

19.1 The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

  
 

19.2 In the event of re-engagement by the Customer, this Agreement shall remain in full force and effect.

  
 

20. NO PARTNERSHIP

  
 

This Agreement shall not be construed so as to create a partnership or joint venture between any of the parties.  Nothing in this Agreement shall be construed so as to constitute any of the parties the agent of another.

  
 

21. THIRD PARTIES

  
 

No rights are intended to be created in favour of or acquired by any third party.  This contract shall remain personal between the parties.  No assignment of any entitlements under this contract or any chose in action may be effected without the consent of Maclynn.