TENEO, INC. SERVICES TERMS AND CONDITIONS
Thank you for selecting Teneo, Inc., a Delaware company with principle address PO Box 349, Middleburg, VA 20118-0349 (‘us’ ‘we’ ‘the Supplier’ etc.) to provide you with IT services and / or equipment.
These are our terms and conditions for the equipment and services we provide (Conditions) and apply to our relationship with you (referred to as ‘the Customer’ below). The specific equipment and services you purchase from us are as set out in the relevant Order.
1. Definitions and Interpretation
1.1 Definitions:
For the purposes of the Conditions:
“Associated Company” means any holding company for the time being of the Customer and any subsidiary for the time being of the Customer or of any such holding company.
“Confidential Information” shall include all written, electronic or oral information relating to trade secrets, operations, processes, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or the business or assets.
“Contract” shall have the meaning given in Condition 3.1.
“Data Protection Law” shall mean any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation or other binding restriction which relates to the protection of individuals with regards to the Processing of Personal Data (defined in Condition 15.1) to which Customer and Supplier are subject.
“Equipment” shall mean the Hardware and / or Software ordered by the Customer to be purchased, from and delivered by, the Supplier.
“Hardware” shall mean computer hardware products as ordered by the Customer from the Supplier from time to time.
“Intellectual Property Rights” (IPR) shall mean patents, rights to invention, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue in passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals, or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Maintenance” includes Software updates and fixes provided from time to time by a vendor. Maintenance may also include advanced replacement of faulty Hardware. The exact level of service will depend on what has been purchased by the Customer as set out in an Order.
“Service Description” shall mean the detailed service description relating to the Services.
“Services” shall mean the services to be provided by the Supplier or its nominated third party subject to any supplemental terms included in any Service Description or Order. Where agreed in an Order, Services shall include the provision of Support and/or Maintenance.
“Software” shall mean the software ordered by the Customer to be delivered by the Supplier and any other operating system software and applications ordered from the Supplier by the Customer from time to time.
“Support” shall mean technical assistance for the Equipment. Support may include telephone assistance during set hours and with set service level agreements as set out in an Order.
“Order” shall mean the Customer’s order or statement of work for the supply of Services and/or Equipment.
“Vendor” shall mean the third party manufacturer of Equipment or of the particular Service offering as set out in an Order.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes fax and email.
1.2.6 Any headings are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the Conditions.
2. Application of Conditions and Order Process
2.1 These Conditions shall apply to each and every Order placed with the Supplier by the Customer to the exclusion of all other terms. Acceptance by the Supplier of any Order is conditional upon acceptance by the Customer of these Conditions which, unless expressly varied in accordance with the below, shall override all other terms and conditions inconsistent herewith, whether express, implied or otherwise, including but not limited to any schedules, terms, conditions or stipulations contained in the Customer’s purchase order or otherwise stipulated by the Customer and which are at variance with or additional to these Conditions. No variation or amendment of these Conditions is binding unless signed by a director of the Supplier and expressly varied in the relevant quote or draft Order by reference to the clause(s) in these Conditions that require variation or amendment.
2.2 All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature and price list are approximate only and shall not form part of the Contract unless expressly referred to in a relevant Order. In addition, drawings or technical documents issued either before or after the conclusion of the Contract for the use or information of the Customer and such other information as may be supplied to the Customer including specifications shall not be copied, reproduced or communicated to any third party without the Supplier’s prior written consent.
3. Order Process
3.1 All quotes provided by the Supplier to the Customer shall not constitute an offer and shall be regarded as an invitation to treat.
3.2 Each Order submitted by the Customer to the Supplier shall be an offer by the Customer to purchase the Equipment and/or Services as detailed in that Order. The Order shall be deemed accepted by the Supplier:
3.2.1 when the Supplier issues written acceptance of the Order; or
3.2.2 by the Supplier undertaking any act consistent with fulfilling the Order, at which point a contract will come into effect (Contract). Each Contract shall comprise these Conditions and the Order.
3.3 The Contract shall supersede any arrangements made or existing between the parties prior to conclusion of the Contract in relation to its subject matter and shall constitute the entire understanding between the parties in relation to its subject matter.
3.4 Where the Supplier provides the Customer with Equipment and/or Services supplied by a Vendor, the Supplier may be obliged to pass down additional terms and conditions (“Terms of Use”) in relation to such Equipment and / or Services. In this situation, the Terms of Use will also apply in addition to these Conditions and the Supplier shall provide the Customer with a copy of the Terms of Use upon acceptance of the relevant Order.
3.5 In the event of a conflict between the Terms and Conditions of this Agreement, the Order and the Terms of Use (where relevant), the following order of precedence shall apply (to resolve the conflict in order of priority:
3.5.1 Conditions;
3.5.2 the relevant Order;
3.5.3 Terms of Use.
3.6 The Customer can only cancel an Order (or any part of an order) which the Supplier has already accepted, with the Supplier’s prior agreement in writing and provided that the Customer indemnifies the Supplier in full for Services performed or Equipment provided or that the Supplier is committed to paying for. The Supplier is not bound to agree to any such cancellation and may complete the particular Order or perform the Services contained in the particular Order even if the Customer purports to cancel it and the Customer shall be liable for all sums owing and due under the Order had the relevant Contract been fulfilled.
4. Supplier Obligations
4.1 The Supplier shall:
4.1.1 supply the Equipment and/or Services to the Customer set out in the applicable Order; and
4.1.2 use reasonable commercial efforts to meet delivery and performance dates and times. All dates and times provided are approximate only and time for delivery is not of the essence of the Contract.
5. Delivery and Installation
5.1 The delivery address shall be the address stated in the relevant Order.
5.2 If the Customer shall fail to give to the Supplier instructions for delivery within twenty-one (21) days of the date of the relevant Order, the Supplier may without further reference to the Customer arrange for storage of the Equipment. Charges for storage shall be paid by the Customer and the Equipment shall be subject to a general and particular lien until such payment is made.
5.3 Delivery shall be made during normal working hours (being 9 am to 5 pm and excluding local and national holidays). If the Customer requires delivery to be made outside such times, an additional charge shall be payable.
5.4 The Supplier reserves the right to amend the Equipment prior to delivery if:
5.4.1 The Supplier is required by an applicable statutory or regulatory requirement; or
5.4.2 The Supplier is unable to source the Equipment from Vendors due to circumstances outside of the Supplier’s control provided that any amendment does not materially change the Supplier’s performance under the Contract.
5.5 Delivery of an Order shall be complete on:
5.5.1 for Hardware, on completion of unloading of the Hardware at the delivery address;
5.5.2 for Software, upon the provision of online keys or access to Software; and
5.5.3 for Services, upon completion of the Services.
5.6 The Customer shall prepare the area of delivery and installation for the Hardware and provide free access to the location and to any services or facilities that may be required to deliver and install the Equipment. Where the same has not been prepared or provided or the Supplier is prevented from carrying out delivery or installation at the pre-arranged day and time through no fault of the Supplier, the Supplier shall be entitled to charge for same.
6. Title and Risk to the Hardware
6.1 The risk in the Equipment shall pass to the Customer on completion of delivery in accordance with Condition 5.
6.2 Title to the Hardware shall not pass to the Customer until the Supplier has received payment in full in cleared funds for that Hardware.
6.3 Until title has passed to the Customer, the Customer shall:
6.3.1 store the Hardware separately from all other similar goods and equipment so that they remain identifiable as the Supplier’s property;
6.3.2 not remove, deface, or obscure any identifying marks or packaging on or relating to the Equipment;
6.3.3 maintain the Hardware in satisfactory condition and keep the Equipment insured against all risks for their full price on the Supplier’s behalf from the date of delivery; and
6.3.4 notify the Supplier immediately if the Customer becomes subject to any of the insolvency events listed in Condition 2.2 or Condition 17.2.3.
6.4 Until title has passed to the Customer, the Supplier shall be entitled to repossess on reasonable notice, any of the Hardware in which title remains vested in the Supplier. The Supplier or any of his agents or authorized representatives shall be entitled at any time on reasonable notice and within normal office hours to enter upon any premises in which the Hardware or any part thereof is installed, stored or kept, or is reasonably believed so to be.
6.5 If the Customer shall sell any goods delivered in such manner as to pass to a third party a valid title to those goods, the Customer shall hold the proceeds of such sale on trust for the Supplier, provided that nothing herein shall constitute the Customer the agent of the Supplier for the purposes of any such sub-sale.
6.6 The provisions in this Condition 6 relate to the Hardware and not to the Software which is subject to a licence, the terms of which are (where applicable) contained in the Vendor’s software licence
7. Maintenance, Support and Services
7.1 The Supplier will provide the Maintenance, Support and Services described in an Order.
7.2 The Supplier shall exercise reasonable skill, care and diligence in the provision of any Maintenance, Support and Services provided by the Supplier. Customer acknowledges and agrees that Support and/or Maintenance may also be provided by a Vendor.
7.3 Support shall be provided for the most current version of Software and previous versions as defined and updated from time to time by the Vendor.
7.4 Support and/or Maintenance will commence on the date specified in the Vendor Terms of Use and will run for the period identified in the Supplier’s pricing document. Services will be invoiced in full on receipt of Customer’s order, unless otherwise specified in Supplier’s pricing document. Payment is due in accordance with Condition 11.
8. Inspection and Testing
8.1 The Supplier may, at the Customer’s request undertake testing on the Equipment. Any such testing shall be agreed in an Order which shall include at a minimum, the Supplier’s charges, timescales and any acceptance criteria.
9. Customer Obligations
9.1 The Customer shall:
9.1.1 ensure that the content of the Order is complete and accurate;
9.1.2 provide all necessary co-operation and support to enable the Supplier to perform its obligations under the Contract;
9.1.3 accept delivery of the Equipment and/or Services and to provide access to the Customer’s premises, where required;
9.1.4 provide prompt access to the Customer’s IT infrastructure as reasonably required by the Supplier in delivery of the Equipment, Software or performance of the Services;
9.1.5 provide the prompt review, analysis and sign-off of work performed;
9.1.6 obtain any licences and consents that may be required for the Supplier to perform the Services;
9.1.7 keep any Supplier materials in safe custody and at the Customer’s risk;
9.1.8 comply with the Supplier’s reasonable instructions in respect of the provisions of the Equipment and/or Services; and
9.1.9 be bound by these Conditions and any Terms of Use.
10. Prices
10.1 The price of the Equipment includes (where applicable) the licence fee for the Customer’s right to use the Software and (where applicable) such other Software supplied.
10.2 The price of the Equipment is based on the supply of the Equipment to the Customer and is subject to adjustment in the event of delivery to a different address not already specified, or in the event of any modification being incorporated therein before or after delivery either at the request or with the consent or knowledge of the Customer.
10.3 Prices for Services, including where applicable Support and/or Maintenance are set out in the Order.
10.4 All prices are exclusive of all taxes including but not limited to, sales tax, value added tax and withholding tax. Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between the Supplier and the Customer shall be paid by the Customer in addition to the price quoted or invoiced. In the event the Supplier is required to pay any such tax, fee or charge, the Customer shall reimburse the Supplier thereof or, in lieu of such payment, the Customer shall provide the Supplier at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge. Prices for packing, delivery and installation will be specified in pricing documents where appropriate.
11. Payment and Invoicing
11.1 The Customer shall pay to the Supplier all fees in connection with the supply of Equipment and/or Services as set out in an Order.
11.2 All accounts are payable within thirty (30) days of the date on the Supplier’s invoice, or, if different, in accordance with the terms contained in such invoice. Where credit terms are agreed with the Customer at the outset, the Supplier reserves the right to review credit terms from time to time and amend or revoke them on reasonable notice, such notice not being less than twenty (20) Business Days.
11.3 Where payment of the price or any part thereof is not made, the Supplier, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest on the outstanding amount at a rate of five (5) per cent per annum from the due date until the outstanding invoiced price or outstanding part thereof is paid.
11.4 If the Customer fails to take delivery of any Equipment under the Contract within twenty-one (21) days of notification that it is ready for delivery, the Supplier shall have the right to present its invoice for payment at any time after the expiry of the said period and payment shall be due thereon as if delivery had been made notwithstanding the Customer’s liability for storage charges and the Supplier’s lien in accordance Condition 2.
11.5 Should the Customer fail to make any payment within thirty (30) days of any due date for payment under any invoice the Supplier shall have the right by notice in writing forthwith to suspend all further manufacture, deliveries, installation or warranty service and suspend provisions of the Services until the default be made good.
11.6 Where the Services or any part of them are paid for by the Customer in advance of the provision of such Services, the Customer shall request provision of such Services within one (1) year from the date of the invoice. Supplier shall use reasonable endeavours to meet any dates and criteria for performance of the Services. If the Customer fails to request provision of the Services within one (1) year from the date of the invoice, the Supplier’s obligation to provide such Services shall be discharged without prejudice to the Supplier’s right to retain payment for sums due and owing.
12. Warranty
12.1 The Supplier warrants and undertakes that:
12.1.1 Services performed by the Supplier shall be performed with reasonable skill and care;
12.1.2 it owns, or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with and perform the Contract and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under the Contract including for the Customer’s use and receipt of the Equipment and/or Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached; and
12.1.3 all personnel and sub-contractors used by the Supplier in the performance the Contract are adequately skilled and experienced for the activities they are required to perform.
12.2 The Supplier shall grant the Customer the same warranties that the Supplier receives from the Vendor in respect of the Equipment, subject to the same conditions and limitations relating to those warranties contained in the contractual documents between the Vendor and the Supplier. Details of these warranties and the conditions and limitations applicable to them shall be made available to the Customer upon written request.
12.3 Each claim of the Customer under the warranty shall be sent in writing to the Supplier within ten (10) days after the discovery of such defect, specifying the type of Equipment and nature of the defect. Upon receipt of such written notice, the Supplier or its agent or representative shall have the option of testing or inspecting the Equipment at its location or of having the Equipment returned to the Supplier or such other address as may be notified to the Customer, freight pre-paid. Replacement parts, items or Equipment shall be sent by the Supplier to the Customer ordinary freight pre-paid, subject always to Condition 4 and 12.5 below.
12.4 In the event of any claim presented under warranty being found on investigation by the Supplier either to be outside the scope or duration of this warranty or the fault being unconfirmed, then the costs of such investigation and repair shall be borne by the Customer.
12.5 The Supplier shall not be liable at any time for damage or defects in the Equipment or parts caused by improper use, abuse, mismanagement or by using the Equipment outside the specifications detailed in the manuals and documentation relating to the Equipment or outside the specific application of the Equipment.
12.6 These warranties shall not be assigned without the prior written consent of the Supplier.
12.7 Except as otherwise provided in this Condition 12, the Supplier makes no other representations or warranties and expressly excludes the same whether implied, statutory or otherwise especially as to quality or fitness of the Equipment for any particular purpose or as to the Services.
13. Copyright, Patents, Trade Marks, Indemnity and Other Intellectual Property Rights
13.1 The Customer acknowledges that all IPR used or subsisting in or in connection with the Equipment and Services are and shall remain the sole property of the Supplier or manufacturer, Vendor or third party (where applicable). The Customer shall not during or at any time after the completion, expiry or termination of the Contract in any way question or dispute the ownership thereof.
13.2 The Supplier grants to the Customer (or shall procure if applicable), a limited, non-assignable, non-sub licensable licence for the term of the Contract to use IPR in order to use the Software or receive any Services in accordance with the Contract.
13.3 In the event that any IPR is created in performance or as a result of the Contract, the Customer acknowledges that the same shall belong to the Supplier unless otherwise agreed in writing by the Supplier.
13.4 The Customer shall indemnify the Supplier fully against all liabilities, costs and expenses which the Supplier may incur as a result of work done in accordance with the Customer’s specifications involving infringement of any copyright, patent or other proprietary right.
13.5 The Supplier shall indemnify the Customer and its officers, directors, agents and employees against claims by a third party arising from infringement of intellectual property rights in the Equipment of any nature, anywhere in the world, provided the Supplier is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defence and all negotiations for a settlement or compromise.
14. Confidentiality
14. 1 In the event that either party becomes a party to or has control over any Confidential Information under or in connection with the Contract, it will safeguard the Confidential Information in accordance with good industry practice and in at least as secure a manner as it safeguards its own valuable Confidential Information but in no event in a manner less than commercially reasonable.
14.2 The Supplier will provide the Customer’s Confidential Information only to its employees, contractors, sub-processors and agents who have a need to know such Confidential Information for the purposes of performing such party’s obligations hereunder, and shall ensure that any such party provided with such Confidential Information shall comply with the terms of this Condition 14.
14.3 Confidential Information shall not include information which:
14.3.1 is or becomes publicly known other than through any act or omission of the receiving party;
14.3.2 was in the other party’s lawful possession before the disclosure;
14.3.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
14.3.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
14.3.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
14.4 Provided, however, that if either party is required to make a disclosure pursuant to Condition 3.5, it will, unless prevented by any applicable laws, promptly inform the other party of the requirements of such disclosure prior to making any such disclosure.
14.5 The receiving party will notify the disclosing party as soon as it becomes aware that any Confidential Information has been disclosed to or is in the possession of any unauthorised person or is being used otherwise than in accordance with this agreement.
14.6 Both parties will, promptly upon the demand of the other party or within thirty (30) days of termination of the Contract, return all copies of the Confidential Information in its possession, custody, power or control.
14.7 The parties agree that a breach of any provisions of this Condition 14 may cause immediate and irreparable injury and that, in the event of such breach, the disclosing party will be entitled to seek injunctive relief as well as all other remedies available at law or in equity.
14.8 This Condition 14 shall survive termination of this agreement, however arising.
15. Non-Solicitation
15.1 The Customer will not, either directly or indirectly (except through Supplier) solicit, hire, or contract with any Supplier employee during the term of this Agreement and for a one (1) year period following termination thereof (hereafter the “Non-solicitation Term”). In the event that Customer desires to directly hire any Supplier employee during the Non-solicitation Term, Customer must first seek Supplier’s consent to directly hire the employee and to speak with the Supplier employee about the employment opportunity. In the event that Supplier grants Customer the option to directly hire a Supplier employee, and the Supplier employee accepts an offer of employment from Customer, the parties shall discuss issues related to the employee’s transition to Customer. The employee’s start date will be mutually agreed upon by Customer and Supplier in writing. Provided the parties agree to the Supplier employee’s transition terms, Customer shall pay Supplier a placement fee of no less than 20% of offered salary prior to the Supplier employee commencing work as an employee of Customer. Unless the parties agree otherwise, Customer shall not directly hire more than two Supplier employees during the Non-solicitation Term. If Customer hires a Supplier employee without first obtaining the consent of Company, Customer shall pay Supplier a liquidated damage equal to 100% of the employee’s fair market salary, as determined by Supplier in its sole discretion.
16. Data Protection and Privacy
16.1 In this Condition, the terms Controller, Personal Data, Processor, Processing shall have the meanings given in Data Protection Law and shall be construed accordingly.
16.2 The Supplier acknowledges that as part of performing the Services or supplying Equipment, the Supplier may have access to Personal Data controlled by the Customer. Data Protection Law dictates that the Customer shall be Controller and the Supplier shall be Processor.
16.3 The Customer hereby warrants that it has appropriate notices and consents to enable the lawful transfer of any Personal Data to the Supplier under or in connection with the Services and/or Equipment.
Processor obligations
16.4 Where the Supplier processes any Personal Data on behalf of the Customer as part of the Services or supply of Equipment, the Supplier shall:
16.4.1 Process the Personal Data in accordance with its obligations under Data Protection Law;
16.4.2 implement appropriate technical and organisation measures to ensure an appropriate level of security for that Personal Data during Processing, to preserve the confidentiality and integrity of such Personal Data and prevent unauthorised access, modification or disclosure;
16.4.3 delete or amend any Personal Data it holds at the Customer’s request; and
16.4.4 Process Personal Data: (i) in accordance with the Customer’s documented instructions and in accordance with the Contract for the purpose of providing Services and / or Equipment to the Customer; or (ii) as required by law. The Supplier shall not Process Customer Personal Data for its own purpose.
16.5 Supplier shall notify the Customer as soon as reasonably practicable if the Supplier becomes aware:
16.5.1 that an instruction the Customer has provided in relation to the Processing of Personal Data under these Conditions would, in the Supplier’s reasonable opinion, infringe Data Protection Law;
16.5.2 of any breach or suspected breach of the Supplier obligations in this Condition 16 and / or any data breach, howsoever caused. The Supplier shall give the Customer prompt and reasonable cooperation and assistance in relation to any such breach or suspected breach, including the provision of all relevant information in the Supplier’s possession.
16.6 The Supplier shall not make any public statements in relation to such breach or suspected breach.
16.7 The Supplier warrants that it has taken reasonable steps to ensure the reliability of any employees, agents, consultants and sub-contractors the Supplier controls who may have access to such Personal Data in performing the Services or supplying Equipment and to ensure those persons receive appropriate training in data protection, confidentiality and security. The Supplier shall restrict access to such Personal Data to only those employees, agents, consultants and sub-contractors who are required by the Supplier to perform the Services and/or delivering the Equipment.
16.8 The Customer acknowledges that the Supplier may make use of sub-processors based outside the US in performing the Services. To the extent that the Supplier transfers any Customer Personal Data outside the US, the Customer hereby agrees to such transfer provided that such transfer is made in compliance with applicable Data Protection Law, including, if required, EU Model Clauses, certification under the EU-US Privacy Shield, or such other international transfer mechanism approved under Data Protection Law.
16.9 The Supplier shall co-operate with any competent authority in responding to any request for information in order for such competent authority to assess the compliance of the Customer with Data Protection Law and this Condition 16.
CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION:
17. Supplier’s Liability
17.1 The Supplier does not exclude liability for:
17.1.1 death or personal injury to the extent that the same arises directly from the negligence of the Supplier or its employees;
17.1.2 fraud or fraudulent misrepresentation;
17.1.3 any other liability that cannot be excluded by law;
17.1.4 losses arising from claims by third parties that the Equipment infringes the intellectual property rights of a third party to the extent covered by the indemnification obligations in Condition 5
17.2 Subject to Condition 1:
17.2.1 The Supplier shall not be liable for any delay in the delivery of the Equipment or performance of the Services that is cause by a Force Majeure Event or the Customer’s failure to provide adequate delivery instructions or any other instructions or access to the Customer’s premises relevant to such supply;
17.2.2 The Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
17.2.2.1 any loss of profit;
17.2.2.2 loss of sales of business;
17.2.2.3 loss of agreements or contracts;
17.2.2.4 loss of anticipated savings;
17.2.2.5 loss of use or corruption of software, data or information;
17.2.2.6 loss of or damage to goodwill; and / or
17.2.2.7 any indirect or consequential loss; and
17.2.3 The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract shall in no circumstances exceed the total charges the Customer has paid to the Supplier under the Contract to which the loss relates.
17.3 To the fullest extent permitted by law, all implied terms and warranties are excluded from the Contract, unless specifically set out in these Conditions.
17.4 This Condition 17 shall survive the termination of the Contract.
18. Term and Termination
18.1 The Contract comes into effect in accordance with Condition 1 and shall continue until the later of:
18.1.1 delivery of the Equipment;
18.1.2 completion of the Services; and / or
18.1.3 termination of the Contract in accordance with Condition 2 or Condition 18.3
18.2 Without limiting any other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other if:
18.2.1 the other commits a breach of any term of the Contract or these Conditions and (if such a breach is remediable) fails to remedy that breach within ten (10) Business Days of being notified in writing to do so;
18.2.2 the other suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or ceases, or threatens to cease, to carry on all or a substantial part of its business; or
18.2.3 the other enters into or appears likely to enter into any formal insolvency or bankruptcy proceedings.
18.3 Without limiting its other rights or remedies the Supplier may terminate the Contract with immediate effect by giving the Customer written notice if the Customer fails to pay any amount due under the Contract when due and do not then pay it within five (5) Business Days after Supplier gives the Customer written notice to do so.
18.3.1 If the Supplier is entitled to terminate under this Condition 18, the Supplier may instead suspend any or all Services or delivery of Equipment for up to thirty (30) days to see if matters can be resolved but the Supplier shall not lose any right to terminate the Contract if it chooses to do so.
19. Consequences of Termination
19.1 On expiry or termination for any reason of the Contract:
19.1.1. The Customer shall immediately pay the Supplier all outstanding unpaid invoices and interest and, in respect of any Services and / or Equipment provided by the Supplier but for which no invoice has been submitted, the Supplier shall submit an invoice which the Customer shall pay immediately on receipt;
19.1.2 The Customer shall return all Supplier materials and if the Customer fails to do so within a reasonable period the Supplier shall enter the Customer’s premises and take possession of those materials. Until such materials are returned, the Customer is solely responsible for the safe keeping of all Supplier materials and will not use them for any purpose not connected with the Contract;
19.1.3 The Customer shall return to the Supplier (or delete at the Supplier’s option) any of the Supplier’s Confidential Information that is in the Customer’s possession, including and such Confidential Information in electronic form;
19.1.4 any accrued rights, remedies, obligations and liabilities as at the expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed on or before the date of termination of expiry; and
19.1.5 conditions which expressly or by implication survive termination shall continue in full force and effect.
19.2 This Condition 19 shall survive the termination of the Contract.
20. Notices
20.1 All notices to or by the respective parties hereto shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by pre-paid first class or recorded delivery post or sent by facsimile or email to the party to which such notice is required to be given under this agreement addressed as follows:
20.2 The Supplier: Teneo, Inc. PO Box 349, Middleburg, VA 20118-0349 info@teneo.net
20. 3 The Customer: the address set out in the Order;
20.3.1 or, in each case, to such other address, facsimile number or email address as such party may from time to time have communicated to the other in accordance with the provisions of this Condition 20.
20.4 Notices delivered by hand or sent by facsimile or email shall be deemed received the first working day following such delivery or sending. Notices which have been posted as above shall be deemed received on the second working day following posting.
21. Waste Electronic and Electrical Equipment (WEEE) Regulations
21.1 The Supplier and the Customer agree that the Customer shall, finance the costs of the collection, treatment, recovery and environmentally sound disposal of such hardware and any other costs imposed upon the Supplier in relation to such hardware by any legal requirement relating to waste electronic and electrical equipment. The Customer indemnifies the Supplier against any such costs which the Supplier is required to pay in respect of such hardware.
22. Force Majeure
22.1 Neither the Supplier or the Customer shall be under any liability to the other party in respect of anything which, apart from this provision, may constitute breach of the Contract arising by reason of force majeure, namely circumstances beyond the control of the Supplier or the Customer (Force Majeure Event) which shall include (but shall not be limited to) labour disputes of whatever nature and for whatever cause arising, including but without prejudice to the generality of the foregoing, work to rule, overtime bans, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and / or any other employer and any or all of its employees and / or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
22.2 If the Force Majeure Event prevents the Supplier from providing or delivering any Equipment and / or Services for more than four (4) weeks, Customer or Supplier shall, without limiting either party’s respective rights or remedies, have the right to terminate the Contract immediately by giving the other party written notice.
23. Re-export
23.1 In the event that the Customer wishes to export from the country in which the delivery address is located the Equipment bought from or supplied by the Supplier, the Customer undertakes to comply with any export control regulations, including in particular the requirements of the regulatory authorities of the United States of America.
24. Waiver
24.1 Failure or neglect by the Supplier to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Supplier’s rights hereunder nor in any way affect the validity of the whole or any part of the Contract nor prejudice the Supplier’s rights to take subsequent action.
25. Severability
25.1 In the event that any or any part of the Contract shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
26. Assignment
26.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any matter any of all of its obligations under the Contract to any third party or agent.
26.2 The Customer shall be entitled to assign the Contract to any entity that is an Associated Company.
26.3 Subject to clause 2, the Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its right or obligations under the Contract.
27. No partnership or agency
27.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make any commitments for or on behalf of the other party.
28. Entire Agreement
28.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether oral or written, relating to its subject matter.
28.2 Each party acknowledges that it is entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, misrepresentation, assurance or warranty (made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
28.3 Nothing in this Condition shall limit or exclude liability for fraud.
29. Law
29.1 This Agreement is made under and will be construed in accordance with the law of Virginia without giving effect to that state’s choice of law rules. The forum for any dispute or litigation arising out of this Agreement shall be in the Courts of Common Pleas of Company’s Home County Court or in the Federal District Court for Company’s Federal District Jurisdiction.
