CONSILIUM UK LTD LIMITED TERMS & CONDITIONS FOR CUSTOMERS (08th July 2016)

The following terms and conditions (“Terms”) apply to all transactions with Consilium UK Ltd Limited which are not covered by the Consilium UK Ltd Master Services Agreement and shall apply to the exclusion of all other terms and conditions, irrespective of the date of any alternative terms and conditions which may be sent to Consilium UK Ltd. These Terms shall become binding on the Customer on the earlier of: (i) An Order is accepted by Consilium UK Ltd; (ii) The Customer signing or agreeing in writing to an Order; (iii) the Customer agreeing these Terms in writing (which may include email or acceptance through EchoSign; (iv) the Customer paying any amount towards any item specified in the Customer Schedule; (v) Consilium UK Ltd delivering or installing (where applicable) any Product or Service; or (vi) the Customer using or accessing any Product or Service.

  1. Interpretation
    1. In these Terms, the following expressions shall have the meanings prescribed:
      • “Confidential Information” – All information, technical data or know-how, (whether written, oral or by another means and whether directly or indirectly) relating to the disclosing party (“Disclosing Party”) whether created before or after the Date of this Agreement including, but not limited to, research, products, services, customers markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances, which is reasonably deemed to be confidential or proprietary. Confidential Information includes the information of a Third Party that is in the possession of one of the parties hereto and is disclosed to the other party hereto in confidence. Confidential Information does not include information, technical data or know -how which: (i) is in the possession of the receiving party at the time of disclosure, as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior to or after the time the disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (iii) is expressly approved in writing for release by the disclosing party or (iv) receiving party can establish, by documentary evidence, is independently developed by the receiving party without the use of any Confidential Information of the other party.
      • “Consequential Loss” Without limitation, pure economic loss, loss of profit, loss of revenue, loss of data, loss of business and/or depletion of goodwill or anticipated savings, legal costs and any other indirect, consequential, special or punitive loss.
      • “Consultancy Services” Specialist IT advisory and reporting work which Consilium UK Ltd may undertake for the Customer from time to time as set out in an Order.
      • “Customer” The person, company or other body purchasing the Hardware, Software and/or Services from Consilium UK Ltd pursuant to an Order.
      • “Customer Schedule” The document setting out the agreed charges and fees for Products and or Services and all other information relevant to the Order, which may take the form of Customer Schedule, Quotation, Order, or Services Proposal.
      • “Hardware” The IT and/or computer and communications hardware to be supplied to the Customer by Consilium UK Ltd, as set out in an Order.
      • “Intellectual Property Rights” Rights of any nature whatsoever, whether registered or unregistered including, without limitation, any patent, right in a design, copyright, trade mark, utility model, service mark, database right and other intellectual property right whether or not capable of registration as may exist anywhere in the world or in the future.
      • “Maintenance” The support and maintenance service(s) to be provided to the Customer by Consilium UK Ltd as set out in the Order.
      • “Order” A written or oral tender, offer, quotation, agreement, delivery relating to the supply of Products or the delivery of Services by or on behalf of Consilium UK Ltd.
      • “Products” Any Hardware or Software or other goods supplied by Consilium UK Ltd to the Customer as set out in the Order.
      • “Quotation” The written statement provided by Consilium UK Ltd to the Customer summarising the specific details of the Products, Services and/or Software to be supplied together with their price(s).
      • “Services” The services to be supplied by Consilium UK Ltd to the Customer pursuant to an Order, which may include without limitation delivery, installation, implementation, Maintenance and Consultancy Services.
      • “Services Proposal” The written statement provided by Consilium UK Ltd to the Customer summarising any specific terms of, or scope and price of Services to be provided.
      • “Consilium UK Ltd” Consilium UK Ltd Limited, (Company No. SC188830) of Suite 1010/1012 Mile End, Abbey Mill Business Centre, 12 Seedhill Road, Paisley, PA1 1JS.
      • “Software” The pre-packaged software or electronic licence supplied to the customer by Consilium UK Ltd pursuant to an Order.
      • “Third Party” Any person, company or other body not being Consilium UK Ltd or the Customer.
      • “Working Day” Monday to Friday excluding public holidays in Scotland, England and Wales.
      • “Working Hours” The hours of 9.00 a.m. to 5.00 p.m. during a Working Day.
  2. Ordering Products and Services
    1. These Terms shall apply to but shall not become a binding contract until if and when the Order is accepted by Consilium UK Ltd.
    2. No Order which has been accepted by Consilium UK Ltd may be cancelled by the Customer unless written agreement is obtained from an authorised
    3. representative of Consilium UK Ltd, however the Customer shall remain liable for and shall indemnify Consilium UK Ltd in full for any costs, damages, losses, charges and expenses incurred by Consilium UK Ltd as a result of any cancellation of an Order.
    4. Consilium UK Ltd may make any changes to the specifications of Products to conform with any applicable health and safety or legal requirement, or which do not materially affect their quality or performance.
    5. Consilium UK Ltd’s policy is to supply Products and Services only to business customers (i.e. those who are not private consumers). In accepting these Terms, the Customer warrants that it is not purchasing the Products or Services as a private consumer.
    6. All descriptions, specifications, photographs, weights, dimensions, capacities, prices, performance ratings and other information quoted (whether online or in hard copy format) in Consilium UK Ltd portfolio or included in any sales literature, quotation, price list, acknowledgement of order, invoice or other document are to be deemed approximate only (except where stated in writing to be exact) and shall not form part of the contract or Order or Services Proposal other than as approximations).
  3. Delivery
    1. Consilium UK Ltd shall use its reasonable endeavours to deliver the Products to the premises stated in the Order and to supply the Services by any delivery date estimated by Consilium UK Ltd and for the avoidance of doubt the Customer acknowledges that such delivery date is not guaranteed or of the essence of the Contract and Consilium UK Ltd shall in no circumstances be liable to the Customer for any losses, damages or charge s (including but not limited to Consequential Losses) incurred by the Customer due to the late delivery of the Products or Services.
    2. The Customer agrees that it will inspect the Products immediately upon the earlier of delivery or collection and in all cases shall inform Consilium UK Ltd in writing within 24 hours of delivery of any damage, shortages, defects or non-delivery of the Products and any failure to do so shall be deemed to constitute acceptance by the Customer of the Products.
    3. If the Customer fails to take delivery of the Products or fails to give Consilium UK Ltd adequate delivery instructions at the time stated for delivery (save for circumstances beyond the Customer’s reasonable control or by reason of Consilium UK Ltd’s fault) then without prejudice to any other rights or remedies available to it Consilium UK Ltd may at its sole discretion:-
    4. store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
    5. sell the Products at the best price readily available and charge the Customer any shortfall below the price obtained under the Order.
  4. Risk and Title
    1. Risk of damage to, or loss of, Products shall pass to the Customer at the earlier of:-
      1. the time when the Customer collects the Products from Consilium UK Ltd’s premises; or
      2. the time at which Products are delivered to the Customer; or
      3. the time when Consilium UK Ltd has attempted to deliver the Products to the Customer and any inability to complete such delivery is due to an inaction or action of the Customer.
    2. Notwithstanding delivery of the Products, title in the Products shall not pass to the Customer until Consilium UK Ltd has received cleared and full payment for the price of the Products and all other Products and Services (if applicable) supplied to the Customer for which payment is then due.
    3. Until such time as title in the Products pass to the Customer the Customer shall keep the Products separate from the Customer’s other goods and those of any other third parties and properly stored, protected and insured and identified as the Company’s property.
    4. Until such time as title in the Products passes to the Customer, Consilium UK Ltd shall be entitled at any time to require the Customer to deliver up the Products to Consilium UK Ltd and if the Customer fails to do so immediately the Customer shall allow (or procure permission for) Consilium UK Ltd or its agents or representatives to enter upon the Customer’s premises or any premises of any Third Party where the Products are stored and repossess the goods.
  5. Services
    1. The following conditions shall apply to all Services provided by Consilium UK Ltd to Customers.
    2. Consilium UK Ltd warrants and undertakes to the Customer that:
      1. Consilium UK Ltd’s employees, agents and sub-contractors will have the necessary skill and expertise to provide the Services described in the Services Proposal in accordance with good industry practice;
      2. Consilium UK Ltd will provide independent and unbiased advice and will exercise reasonable skill and care in the provision of the Services.
      3. The Services will be provided in a timely and professional manner.
    3. Should the Customer become dissatisfied with the performance of any personnel assigned by Consilium UK Ltd to perform the Services, the Customer shall notify Consilium UK Ltd in writing with details of the unsatisfactory performance, and provided that Consilium UK Ltd is satisfied that the Customer’s dissatisfaction is reasonable, Consilium UK Ltd shall re-assign personnel as soon as reasonably practicable.
    4. Where Consilium UK Ltd agrees to provide Services, any estimate or indication by Consilium UK Ltd as to the number of man days or man hours required by Consilium UK Ltd to undertake a specific task shall be construed as being an estimate only.
    5. Consilium UK Ltd shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Consequential Loss) suffered or incurred by the Customer where such estimate or indication is incorrect.
    6. The charges agreed for the Services do not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which Consilium UK Ltd shall charge its then current rates.
    7. Consilium UK Ltd will normally carry out the Services during Working Hours but may, on reasonable notice, require the Customer to provide access to the Customer’s premises at other times.
    8. At the Customer’s request Consilium UK Ltd may agree to work outside Working Hours however this shall be subject to any reasonable additional charge that may be made by Consilium UK Ltd for complying with such request. Such charges shall be agreed in writing prior to commencement of any out of hours work.
    9. All personnel required for the Services will be provided by Consilium UK Ltd and will be facilitated wherever possible by use of the Customer’s own staff, however Consilium UK Ltd reserves the right to sub-contract the whole or any part of the Order to any person or company.
  6. Support and Maintenance Services
    1. Where Consilium UK Ltd agrees to provide support and/or maintenance services in respect of Products supplied to the Customer, this will generally comprise reasonable assistance in the resolution of queries via a telephone call originated by the Customer during Working Hours for the agreed period (limited to first line support only). Except as provided under clause 8.3, if the query is unable to be resolved during a telephone call the Customer may be required to contact the distributor or Manufacturer of the Software or Hardware directly.
    2. Where Consilium UK Ltd agrees to provide Maintenance in respect of the Software this shall be provided in accordance with Consilium UK Ltd’s applicable Customer Schedule as provided to the Customer by Consilium UK Ltd.
    3. Any additional Maintenance which Consilium UK Ltd agrees to supply to the Customer in relation to the Software or Hardware shall be provided on a time and materials basis at Consilium UK Ltd’s then current rates for same unless otherwise agreed.
  7. Installation & Delivery services
    1. Where Consilium UK Ltd agrees to assist a Customer with the installation of Hardware and/or Software or delivery of it, the Customer shall at its own expense and prior to the delivery of the Hardware or Software (as applicable) comply with Consilium UK Ltd’s reasonable requests in order to allow Consilium UK Ltd to provide the installation and/or delivery services.
    2. Personnel provided by Consilium UK Ltd will remain under the management and conditions of employment of Consilium UK Ltd or its nominated sub-contractor.
    3. The Customer must provide reasonable access and assistance to Consilium UK Ltd’s staff for the purpose of enabling Consilium UK Ltd’s staff or officers or agents or subcontractors to fulfil their duties.
  8. Consultancy Services & deliverables
    1. The terms of reference for the Consultancy Services to be performed by Consilium UK Ltd shall be as specified in the Services Proposal . The Customer may from time to time wish to vary the terms of reference. Under these circumstances, Consilium UK Ltd will use all reasonable endeavours to accommodate that variation. Any changes in the charges and/or timescales as a result of that variation shall be negotiated between the Customer and Consilium UK Ltd.
    2. In respect of Software Asset Management, consultancy work is performed on a best endeavours basis and Consilium UK Ltd cannot guarantee the accuracy of any effective license position, solution and/or compliancy report.
    3. Where progress reports are to be provided in accordance with the Services Proposal, Soft cat shall render such reports at the time and in the manner specified or as otherwise agreed between Consilium UK Ltd and the Customer.
  9. Pricing and Payment
    1. The price payable by the Customer for the supply of Product(s) or Services shall be that which is set out and agreed between the Customer and Consilium UK Ltd each time Consilium UK Ltd accepts an Order placed by the Customer and as specified in the Customer Schedule, Quotation or Services Proposal (unless varied by the Order and Consilium UK Ltd’s acceptance).
    2. Any increase in price for the Services shall be applied no more often than once per year after the first anniversary of the Effective Date and shall not exceed the increase in the UK RPI or CPI (whichever is lower) calculated over the preceding 12 months. Consilium UK Ltd shall notify the Customer in writing at least 90 days in advance of any increase in the price for the Services.
    3. Unless otherwise agreed between the parties, invoices will be raised and dated by Consilium UK Ltd on the date of delivery of the Products or on commencement of the Services. Where both Products and Services are supplied against the same order, a separate invoice will be raised for each of those two elements.
    4. The Customer shall pay each invoice in full (subject to a bona fide dispute), together with any VAT at the appropriate rate and other expenses, to Consilium UK Ltd within 30 (thirty) days of the date of a valid invoice (“due date”). The time of payment shall be of essence.
    5. If the Customer fails to pay any sums due by the due date or does not comply with an obligation imposed upon the Customer then, without prejudice to any other right or remedy available to Consilium UK Ltd, Consilium UK Ltd shall be entitled to withhold the supply of any Products or Services to be provided to the Customer by or on behalf of Consilium UK Ltd until such payment is made.
    6. Consilium UK Ltd reserves the right to charge interest to the Customer on any sums, fees or other charges which are not paid on the due date and that interest may be charged from the date such payment falls due at the statutory rate of 8(eight) per cent per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis.
    7. Consilium UK Ltd or its agent shall deliver the Products to any premises (whether in the United Kingdom or in any country) notified to Consilium UK Ltd by the Customer and for the avoidance of doubt the Customer shall be liable for any costs incurred by Consilium UK Ltd in relation to carriage, postage and packing and any other applicable taxes and duties.
    8. The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any amounts owed by Consilium UK Ltd and shall pay all amounts due without making a deduction of any kind.
  10. Returns Policy
    1. Consilium UK Ltd normally allows Customers to return unopened Products, however all returns are at Consilium UK Ltd’s sole and absolute discretion.
    2. Under no circumstances will Consilium UK Ltd accept returns of opened Products unless those Products are faulty.
    3. In circumstances where return of Product(s) is permitted by Consilium UK Ltd, it will issue a credit note on a Customer’s account so that the invoice for the relevant Product is deemed cancelled. In the event a Customer has paid for goods in full, a refund will be granted.
    4. The refund or replacement of faulty or defective Products is subject strictly to individual manufacturer’s “Dead On Arrival” (“DOA”) policies.
    5. Individual manufacturer’s DOA policies may be obtained by the Customer by contacting Consilium UK Ltd’s customer service department.
    6. The Customer must notify Consilium UK Ltd of a defect in the Products within the time limit provided for in the applicable manufacturer’s DOA policy.
    7. The Customer may be required to contact the manufacturer’s technical department to troubleshoot and/or to obtain DOA authorisation which is to be retained by the Customer and presented to Consilium UK Ltd upon request.
    8. The Customer is also required to make a note of any call/case reference numbers issued by the manufacturer to assist Consilium UK Ltd with return of the DOA product.
    9. In the case where it is established that Products are faulty or defective Consilium UK Ltd’s customer service department will arrange with the Customer to have the Products collected. In some instances the manufacturer’s warranties require the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by Consilium UK Ltd’s customer service department.
    10. All parts and labour charges will be waived but the Customer is responsible for ensuring that the Products are returned to Consilium UK Ltd in their original packaging together with all disks, manuals and cables so as to ensure safe transit and ease of identification.
    11. The external packaging must not be damaged or defaced so it is recommended the goods are re-boxed for transport.
    12. The Products will be tested on receipt. If no fault is found the Products shall be returned to the Customer at the Customer’s cost.
    13. If a fault is found and an applicable manufacturer’s DOA period is exceeded, then the Products will be repaired and/or replaced under the terms of the manufacturer’s warranty.
  11. Customer’s Obligations
    1. The Customer shall:-
      1. comply with and use the Services in accordance with these Terms and all applicable laws and shall not breach any obligations regarding acceptable use of the Services;
      2. take all reasonable precautions to protect the health and safety of Consilium UK Ltd’s personnel whilst at any location of the Customer;
      3. allow Consilium UK Ltd to exercise a right of entry over premise where service is performed in the possession of or under the control of the Customer in order for Consilium UK Ltd to fulfil its obligations under these Terms;
      4. be responsible for ensuring that its premises are ready to receive the items concerned;
      5. promptly furnish Consilium UK Ltd with any information required by Consilium UK Ltd in order to provide the Products or the Services and ensure its employees or agents co-operate with Consilium UK Ltd;
      6. in the event that the Customer fails for any reason to complete any purchase of any Products or Services within the period notified to the Customer at any time by Consilium UK Ltd, the Customer shall indemnify Consilium UK Ltd against any loss, damage or other cost of whatsoever nature suffered or incurred by Consilium UK Ltd reasonably relating to that failure on the part of the Customer;
      7. if a Service is delayed other than through Consilium UK Ltd’s fault, pay any sums required by Consilium UK Ltd in respect of idle-time incurred for the delay, including delay as a result of the Customer’s agents or sub-contractors. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of the delay;
    2. The Customer acknowledges that it is relying solely upon its own skill and judgement and not that of Consilium UK Ltd in determining the suitability of any Products and their fitness for any general or specific purpose. (This clause does not apply however in circumstances where Consilium UK Ltd has provided Services to a Customer and Consilium UK Ltd has been recommended a specific Product to the Customer in writing.)
    3. The Customer warrants that any of its representatives, who enter into these Terms and any order with Consilium UK Ltd, have the Customer’s authority to do so and that the Customer will take responsibility for any employee, ex-employee or other person who holds themselves out to be the authorised representative of the Customer.
  12. Intellectual Property Rights and Software Licences
    1. The title to and the Intellectual Property Rights in the Software and in the media containing such Software does not pass to the Customer. The Customer is licensed to use such Software in accordance with these Terms and in accordance with the applicable software licence agreement’s terms, and by entering into the Terms and Conditions the Customer agrees to comply with such terms.
    2. The parties agree that all Intellectual Property Rights which existed prior to the date of the Order in relation to any items used in the performance of any Services shall remain the property of the existing owner of those Intellectual Property Rights.
    3. Except for Customer’s pre-existing Intellectual Property rights, Consilium UK Ltd shall own and be fully entitled to use in any way it deems fit any Intellectual Property or Intellectual Property skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing any Services and any improvements made or developed during the course of Services.
  13. Documentation
    1. Save where the Customer’s software licence with the manufacturer of the Software it has purchased permits such copying, the Customer shall not copy or reproduce in any way the whole or a part of the user manual or any other documentation relating to any Products or Services which is supplied to the Customer without Consilium UK Ltd’s prior written consent.
  14. Warranties
    1. To the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or general law into these Terms or relating to the Products or the Services are excluded. Notwithstanding this, any Products supplied under these Terms will conform substantively to any specifications given in relation to them and any Services provided under these Terms will be provided with reasonable skill and care.
    2. Consilium UK Ltd warrants it has the right to provide or procure the provision of the Products and Services.
    3. The only additional warranties which the Customer may receive are those which are given by the manufacturer or licensor (as the case may be) of such Hardware or Software to the Customer and are subject to any relevant limitations and exclusions imposed by such manufacturer or licensor (as the case may be). Consilium UK Ltd shall provide the Customer with details of such warranties upon request.
    4. Consilium will ensure that all of its employees, prior to providing any Services, have cleared all background checks performed by Consilium in the ordinary course of its business.
    5. Consilium will ensure that it has and will maintain in good standing, and will cause each of its employees who perform any part of the Services to have and maintain in good standing, all required licenses, consents, approvals and permits from any person necessary to perform Consilium’s obligations under this Agreement, and Consilium will and will cause each of its employees to comply with all applicable laws, rules, regulations and industry and governmental standards related to the performance of Consilium’s obligations under this Agreement.
    6. Consilium is and will continue to be an authorized reseller of the Products.
    7. For any Customer Order under which Consilium will sell or transfer to Customer, or procure on Customer’s behalf, any Hardware, Software, Documentation or Maintenance Services from third parties, Consilium will assign and deliver, and agrees to assign and deliver, to Customer all representations, warranties and indemnities received by Consilium from Consilium’s third party vendors in respect of such Hardware, Software, Documentation or Maintenance Services, to the extent they are assignable or sublicenseable and directly relate to the Products or Services.
    8. No portion of the Services or any Product contains or will contain any disabling mechanism, harmful code or protection feature designed to prevent its use that may be used to access, modify, replicate, distort, delete, damage or disable such software, Customer’s software, Customer’s computer systems or other software or hardware except as specifically designed into the Product or Services and of which Customer has prior actual notice.
  15. General Exclusions and Limitations of Liability
    1. Nothing in these Terms shall limit Consilium UK Ltd’s liability to the Customer for liabilities which cannot be limited or excluded as a matter of law including:
      1. death or personal injury resulting from the negligence of Consilium UK Ltd, its employees, agents or sub-contractors; and
      2. fraud or fraudulent misrepresentation.
      3. liability of either party for breach of Confidentiality
      4. Consilium’s liability under 15.6 and 15.7
      5. Losses suffered or incurred by Customer as a result of any deliberate and sustained cessation of a material portion of the services without a bona fide attempt to resume such portion of the services or to remedy the cause of such cessation.
    2. The liability of Consilium or Customer or to the other for any breach of this Agreement or otherwise from any acts or omissions of its respective employees will in all circumstances be limited to the direct damages and in no event will Consilium or Customer have any liability to the other, whatsoever, for any special, consequential, indirect, incidental, exemplary or punitive damages, whether in contract, tort, or otherwise in relation to this Agreement..
    3. The total liability which Consilium UK Ltd shall owe to the Customer in respect of all claims under all Orders shall not exceed the purchase price paid by the Customer in respect of the Products to which the claim(s) relates or, in respect of any Services, the sum of £50,000.
    4. No actions regardless of form arising out of these Terms may be brought by the Customer more than two years after the Customer becomes aware or should reasonably have become aware of the facts constituting the cause of action.
    5. The Customer shall indemnify and keep Consilium UK Ltd indemnified in respect of any losses, costs, damages, claims and/or expenses incurred by Consilium UK Ltd due to any claims by any Third Party arising out of any use, access to or modification of the Customer’s computer systems by Consilium UK Ltd on the Customer’s instructions and/or use of any materials supplied to Consilium UK Ltd by the Customer. This indemnity shall survive termination or expiry of an Order to which it relates.
    6. Notwithstanding any other provision hereof, Consilium agrees to indemnify, defend and hold Customer and its Affiliates and their respective directors, officers and Personnel harmless from and against all losses, costs, damages, expenses and liabilities whatsoever (including reasonable legal fees) which may be suffered or incurred by Customer or its Affiliates arising out of or as a result of or relating in any manner whatsoever to a claim relating to:
      • (i) any breach of a representation, warranty or covenant made by Consilium(ii) any injury to persons (including injuries resulting in death) or loss of or damage to property of others which may be or be alleged to be caused by or suffered as a result of or in connection with the performance by Consilium or any of its employees of all or any part of Consilium’s obligations under this Agreement;
      • (iv) any failure by Consilium to pay a Third Party who has supplied Products or Services for resale or resupply by Consilium, in accordance with the terms agreed between Consilium and Third Party for the supply of such Products and Services;
      • (v) any Third Party claim that Customer did not acquire a Product or does not otherwise have the rights to use the Services or a Product for which Customer paid Consilium
    7. Notwithstanding any other provision hereof, Consilium agrees to indemnify, defend and hold Customer and its Affiliates and their respective directors, officers and Personnel harmless from and against all losses, costs, damages, expenses and liabilities whatsoever (including reasonable legal fees and disbursements) which may be suffered or incurred by Customer or its Affiliates arising out of or as a result of or relating in any manner whatsoever to any claim of infringement or misappropriation of any third party Intellectual Property Rights relating to the Services or any Service Deliverables.
  16. Force Majeure
    1. Neither party shall be liable to the other party in any manner whatsoever for any failure or any delay or for the consequences of any delay in performing its obligations under these Terms (save in respect of any obligation to pay money) due to any cause beyond the reasonable control of the party in question which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, of the party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God.
  17. Termination
    1. Consilium UK Ltd shall be entitled to terminate any Order and suspend all or any work on current or future deliveries and instalments of Products or the provision of any Services and on written notice to the Customer shall be entitled to cancel the undelivered or unperformed portion of the Order between Consilium UK Ltd and the Customer and deem that the whole of the price payable under the Order or any other agreement shall be payable immediately in the event of:
      1. any distress, execution or other legal process being levied upon any of the Customer’s assets;
      2. the Customer entering into any arrangement or composition with its creditors, committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up, except for the purposes of amalgamation or reconstruction as a solvent company, or a receiver, manager receiver, administrative receiver or administrator being appointed in respect of the whole or any part of its undertaking or assets;
      3. the Customer ceasing or threatening to cease to carry on business;
      4. any breach of these Terms by the Customer which it fails to remedy as required by Consilium UK Ltd;
      5. non payment by the Customer of any amount due from it to Consilium UK Ltd, or other material breach of these Terms; or
      6. Consilium UK Ltd reasonably apprehending that any of the events mentioned above is about to occur,
    2. In the event of such termination, should the Customer have failed to make payment in full for the Software, then the Customer shall immediately cease use of all Software (and any updates of same) and at its own expense, remove from all computers under its control all copies of the Software (and updates) and return or destroy them (certifying in writing to Consilium UK Ltd that such destruction has taken place).
    3. The exercise of the rights conferred by this Clause 18 shall be without prejudice to any other right enjoyed by Consilium UK Ltd pursuant to these Terms or by law.
  18. Severability
    1. If a provision in these Terms is held by any competent authority to be invalid or wholly or partly unenforceable such invalidity or unenforceability shall not in any way affect the remainder of these Terms.
  19. Assignment
    1. The Customer will not be entitled to assign the benefit or delegate the burden of the Order without the prior written consent of Consilium UK Ltd which it may in its absolute discretion refuse.
    2. Consilium UK Ltd will be entitled to assign the benefit or delegate the burden of the Order.
  20. Sub-Contracting
    1. Consilium UK Ltd shall be free to sub-contract any or all of its rights and obligations under these Terms as it sees fit. The Customer will not be entitled to sub-contract all or any part of its obligations under these Terms without the prior written consent of Consilium UK Ltd. Consilium UK Ltd will not withhold such consent unreasonably.
  21. Confidentiality
    1. Each party agrees with the other in respect of all information of a confidential nature disclosed in the course of the supply of Products or information as to the operation of the business of Consilium UK Ltd and information relating to the Products and for Consilium UK Ltd, any information about the Customer’s business (“Confidential Information”):
      1. to keep the Confidential Information in strict confidence and secrecy;
      2. not to use the Confidential Information save for complying with its obligations under these Terms;
      3. not to disclose the Confidential Information to a Third Party; and
      4. to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who of necessity need it in the performance of their duties as envisaged by the Order and in those circumstances to ensure that those employees and others are aware of the confidential nature of the Confidential Information; provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under these Terms) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
    2. This obligation of confidentiality shall survive the termination of any Order.
  22. Non-Solicitation
    1. The Customer will not solicit, induce to terminate employment, or otherwise entice away whether directly or indirectly through another firm or company, any employee of Consilium UK Ltd professionally or otherwise directly associated with Consilium UK Ltd during the term of the Order or for 12 months thereafter.
    2. For the avoidance of doubt, there is no restriction on the Customer employing any person who is employed or acting for Consilium UK Ltd where that person responds to a bone fide public advertisement for employees.
  23. Amendment and Waiver
    1. No amendment of these Terms shall be binding unless executed in writing and signed by an authorised representative of Consilium UK Ltd and by an authorised representative of the Customer.
    2. The failure of Consilium UK Ltd at any time to enforce a provision of these Terms shall not be deemed a waiver of such provision or of any other provision of these Terms or of Consilium UK Ltd’s right thereafter to enforce any such provision(s).
  24. Notices
    1. Any demand, notice or other communication shall be in writing and may be served by hand, prepaid first class post or facsimile.
  25. Third Parties
    1. No Third Party may enforce any provision of these Terms by virtue of the Contracts (Rights of Third Parties) Act 1999.
  26. Entire Agreement
    1. These Terms (and any licence proffered by or on behalf of the owner of the Products and/or Software supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of these Terms.
  27. Law and Jurisdiction
    1. The formation, construction, performance, validity and all aspects whatsoever of these Terms shall be governed by Scots Law and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.

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