CUSTOMER TERMS AND CONDITIONS V3.1 (2021)
THE GENERAL CONDITIONS
These General Conditions apply to the provision of goods by CloudNC Ltd trading as CloudNC, a company incorporated in England and Wales with registered no. 09821257, and having its registered office at 1 Norton Folgate, London, E1 6DB (“Supplier”).
The Customer is the person purchasing goods specified in a quotation.
All quotations are made and all orders are accepted subject to these General Conditions unless Customer and Supplier have entered into a valid executed written agreement in which case such agreement shall take precedence. Customer agrees that it has had an opportunity to review these General Conditions prior to placing an order, and intends to and will be bound by them.
The Customer’s attention is particularly drawn to the provisions of clause 11 (Limitation of liability).
The following definitions and rules of interpretation apply in this Agreement.
“Business Day” – a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Commencement Date” – has the meaning given in clause 2.2.
“General Conditions” – these terms and conditions as amended from time to time in accordance with clause 16.8.
“Contract” – the contract between the Supplier and the Customer for the supply of Goods in accordance with these General Conditions.
“Force Majeure Event” – has the meaning given to it in clause 14.
“Goods” – the goods (or any part of them) set out in the Quotation.
“Goods Specification” – any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier as set out in the Quotation.
“Intellectual Property Rights” – patents, utility model, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.
“Order” – the Customer’s order for the supply of Goods, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Quotation as the case may be.
“Quotation” – the commercial quotation issued to the Customer by the Supplier.
“Supplier Materials” – has the meaning given in clause 7.1.7.
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 personal representatives, 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 email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods in accordance with these General Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or the Supplier delivers the Goods on which date the Contract shall come into existence (Commencement Date)
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 These General Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6 All of these General Conditions shall apply to the supply of Goods.
2.7 The Contract made up of the following:
2.7.1 The Quotation.
2.7.2 These General Conditions.
2.7.3 Any Schedules specified in the Quotation.
2.8 If there is any conflict or ambiguity between the terms of the documents listed in Clause 2.7, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
3.1 The Goods are described in the Quotation.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification or any other material supplied by the Customer, the Customer shall defend, indemnify and hold harmless the Supplier, its affiliates and each of their respective directors, employees, agents, consultants, sub-contractors and representatives (the “Indemnified Parties”) from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Indemnified Parties arising out of or in connection with any claim made against the Indemnified Parties for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Indemnified Parties’ use of the Goods Specification or any other material provided by the Customer. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1 Unless otherwise agreed between the parties in writing, the Supplier shall deliver the Goods in accordance with Incoterms 2020 “Ex Works”. The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any)
4.2 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions or information that are relevant to the supply of the Goods.
4.3 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instructions or information related to the supply of the Goods.
4.4 If the Customer fails to accept delivery of the Goods within seven Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.4.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the seventh Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.4.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and courier costs).
4.5 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, courier and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 If the Supplier delivers more than 100% or less than 95% of the quantity of Goods ordered, the Customer shall accept the delivery and a pro rata adjustment shall be made to the invoice for the Goods.
5. QUALITY OF GOODS
5.1 The Supplier shall use reasonable endeavours to ensure that on delivery the Goods shall:
5.1.1 conform in all material respects with their description in the Quotation;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.2 Subject to clause 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
5.2.1 the Customer gives notice in writing within three Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost. In the case of Goods which have been exported and which are alleged to be defective the Customer shall return them to the Supplier at the Customer’s expense provided that if the Goods are shown to the reasonable satisfaction of the Supplier to be defective the Supplier shall reimburse the cost of returning the defective Goods.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.3.6 the Goods differ from their description or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or,
5.3.7 the defect arises during transportation.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these General Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.6 The Goods will be submitted to the standard tests of the Supplier prior to despatch and a certificate of conformity with the Goods Specification will be made available to the Customer upon written request. If special tests or tests in the presence of the Customer or its representative are requested the Supplier will undertake them at its own premises and reserves the right to charge the Customer the cost thereof.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer upon delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in which case title to the Goods shall pass at the time of payment of all such sums; and,
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1.1 to clause 12.1.3; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell the Goods at full market value in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods; provided that, (i) if the Customer resells the Goods before that time, title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs at full market value and (ii) the Customer will account to the Supplier accordingly and hold out of the sale proceeds sums equivalent to the invoice value of the Goods supplied by the Supplier on trust for the benefit of the Supplier.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1.1 to clause 12.1.3, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time:
188.8.131.52 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
184.108.40.206 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
7.1.1 pay for the Goods in accordance with clause 8;
7.1.2 ensure that the terms of the Order and any information it provides in the Goods Specification are complete and accurate;
7.1.3 co-operate with the Supplier in all matters relating to the Goods;
7.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Goods, and ensure that such information is complete and accurate in all material respects;
7.1.5 prepare the Customer’s premises for the supply of the Goods;
7.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Goods before the date on which the Goods are delivered;
7.1.7 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
7.1.8 comply with any additional obligations as set out in the Quotation and Goods Specification; and
7.1.9 ensure that the Order references the relevant Quotation number.
7.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
7.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of its obligations until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
7.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
7.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8. PRICE AND PAYMENT
8.1 The price for Goods:
8.1.1 shall be the price set out in the Quotation or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery; and
8.1.2 shall be payable in pounds sterling and shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
8.2 The Supplier reserves the right to:
8.2.1 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
220.127.116.11 any factor beyond the control of the Supplier (including but not limited to foreign exchange fluctuations, increases in taxes, tariffs and duties, changes in law and increases in labour, materials and other manufacturing costs);
18.104.22.168 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
22.214.171.124 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
8.3 Unless otherwise specified in the Quotation, the Supplier shall invoice the Customer on or at any time after the delivery date.
8.4 The Customer shall pay each invoice submitted by the Supplier:
8.4.1 within 30 days of the date of the invoice; and
8.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
8.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
8.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in or arising out of or in connection with the Contract (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
9.2 The Customer shall not alter, deface, reproduce or use any of the Supplier’s trade marks
9.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the purpose of providing the Goods to the Customer.
10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 Each party may disclose the other party’s confidential information:
10.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and/or
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11. LIMITATION OF LIABILITY:
11.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
11.1.1 death or personal injury caused by negligence;
11.1.2 fraud or fraudulent misrepresentation; and
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clauses 11.1 and 11.4, the Supplier’s total liability to the Customer shall not exceed the price paid by the Customer to the Supplier for the Goods supplied. The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
11.3 Subject to Clause 11.1, the Supplier shall not be liable to the Customer for the following types of wholly excluded losses:
11.3.1 Loss of profits.
11.3.2 Loss of sales or business.
11.3.3 Loss of agreements or contracts.
11.3.4 Loss of anticipated savings.
11.3.5 Loss of use or corruption of software, data or information.
11.3.6 Loss of or damage to goodwill.
11.3.7 Indirect or consequential loss.
11.4 The Supplier has given commitments as to compliance of the Goods with relevant specifications in clause 5. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
11.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.6 This clause 11 shall survive termination of the Contract.
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.1.1 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.1.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.3 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3 Without affecting any other right or remedy available to it, the Supplier may suspend further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1.1 to clause 12.1.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract:
13.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of (a) works in progress, (b) goods ordered from third party suppliers by the Supplier and (c) Goods supplied by the Supplier but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.1.2 the Customer shall return all of the Supplier Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
13.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
14. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control including for the avoidance of doubt any delay or failure caused by a carrier (a Force Majeure Event).
15.1 The Customer shall be solely responsible for obtaining any and all necessary import or export licences or permits necessary for the delivery to the Customer, and the Customer shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation, exportation and/or delivery of the Goods.
15.2 The Customer agrees to comply fully, at its own expense, with all applicable import and export laws, restrictions, national security controls and regulations of the United Kingdom and any other applicable local law or regulation.
15.3 The Customer agrees and undertakes that:
15.3.1 it shall comply with the terms of any export licence, licence exception, or general licence granted or approved by any competent governmental authority, and that it shall not re-export or transmit any Goods directly or indirectly to any person, entity or into any territory not covered by such export licence, licence exception, or general licence; and
15.3.2 (regardless of any prior export licence, licence exception or general licence), the Goods will not be supplied directly or indirectly to any person or entity or into any territory which is embargoed, prohibited, debarred or otherwise the subject of sanctions from the United Kingdom, the European Union, the United States of America or the territory where the Customer is located.
15.4 The Customer shall comply with all relevant anti-corruption legislation in connection with the Contract and the Supplier’s business and shall immediately notify the Supplier if it discovers or suspects that any of its officers, directors, employees or representatives are acting or have acted in a way which violates such legislation.
16.1 ASSIGNMENT AND OTHER DEALINGS
16.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, license, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
16.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
16.2.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
126.96.36.199 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
188.8.131.52 sent by email to the address specified in the Quotation.
16.2.2 Any notice or communication shall be deemed to have been received:
184.108.40.206 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
220.127.116.11 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
18.104.22.168 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 22.214.171.124, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 NO PARTNERSHIP OR AGENCY.
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 or enter into any commitments for or on behalf of the other party.
16.6 ENTIRE AGREEMENT.
16.6.1 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 written or oral, relating to its subject matter.
16.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether 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 or negligent misrepresentation based on any statement in the Contract.
16.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
16.7 Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.8 CANCELLATION AND AMENDMENT.
Notwithstanding any other provision of this Contract, cancellation or amendment of this Contract (including any change to the Goods Specification) requires the prior approval in writing of the Supplier and shall be conditional upon the Customer indemnifying the Supplier against all reasonable costs and expenses incurred by the Supplier as a result of such cancellation or amendment.
16.9 GOVERNING LAW.
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
TERMS AND CONDITIONS OF PURCHASE V3.1 (2019)
(a) “Goods” means all materials, goods and services to be supplied under this Purchase Order
(b) “Supplier” means the company or firm named on this Purchase Order.
(a) Delivery must be made on the date or dates stated in the Purchase Order to CloudNC Ltd’s premises at 10 CLOCK TOWER RETAIL PARK WESTWAY CHELMSFORD ESSEX CM1 3FJ or to such other location as may be specified in the Order failing which CloudNC Ltd may cancel the Order and obtain similar Goods elsewhere and without prejudice to any other rights CloudNC Ltd may have to charge to the Supplier any additional expenses which may be incurred.
(b) The Goods shall be delivered at the risk of the Supplier and at his expense unless otherwise agreed by CloudNC Ltd and the Supplier shall be responsible for ensuring the Goods are suitably packaged for delivery.
(c) All Goods should be delivered with the Supplier’s Delivery Note and Certificate of Conformity / Certificate of Analysis when required.
(d) Title to the Goods shall pass on the earlier of delivery or payment in part or in whole.
(e) The Supplier shall keep properly insured against the usual perils all Goods for which payment or part payment is made before delivery and shall be responsible for any loss or damage whatsoever caused to the Goods before delivery and risk of loss shall pass to CloudNC Ltd only on delivery.
3. DEFECTS AND WARRANTIES
(a) The Supplier warrants that the Goods are free from defect are of merchantable quality and, in so far as CloudNC Ltd has made known to the Supplier the purpose for which the goods are to be used are fit for such purpose or, if CloudNC Ltd has not so made know, are fit for the normal purpose for which the Goods are used. The Supplier further warrants that the design, construction and quality of the Goods comply in all respects with
(i) their specifications and description set out in the purchase order or otherwise given to the Supplier by CloudNC Ltd and
(ii) all relevant requirements of any statute, statutory instrument or order which may be in force at the time when the Goods are supplied to or used by CloudNC Ltd.
(b) The Supplier will inspect and test the Goods prior to delivery to ensure compliance with their Specification and description set out in the purchase order or otherwise given to the Supplier by CloudNC Ltd and, if requested, shall supply to CloudNC Ltd copies or records of such inspection.
4. COUNTERFEIT PARTS
(a) The Supplier agrees and shall ensure that suspected unapproved, unapproved and Counterfeit Goods are not contained in goods delivered to CloudNC Ltd through the implementation of policies that include prevention, detection and risk mitigation methods to protect against such risks.
(b) Should the supplier become aware, or suspects that it has supplied Counterfeit Goods it shall immediately notify CloudNC Ltd. When requested the supplier shall provide downstream supplier documentation to prove the traceability of the parts to the applicable approved supplier.
5. REJECTION OF GOODS
(a) CloudNC Ltd shall be entitled to reject any goods which are in any way faulty or defective without being liable to the Supplier for any payment.
(b) Any money received from CloudNC Ltd in respect of rejected goods shall be repaid promptly.
(c) If the Supplier fails to meet any of the conditions in this Purchase Order CloudNC Ltd shall be entitled to cancel the Order by reasonable written notice to the Supplier or at its direction may treat the Goods as rejected in which case sub-clauses (a) and (b) of this clause shall take effect.
(d) The Supplier will notify CloudNC Ltd of any non-conforming product, even after delivery
6. PRODUCT SAFETY AND CONFORMITY
CloudNC’s suppliers are expected to develop, implement, and maintain effective policies and training programs to ensure that their employees are aware of their relevant contribution to the quality, safety and conformity of their products and/or services.
7. RIGHTS OF ACCESS
(a) CloudNC Ltd, our customers and nominated representatives reserve the right of access to the Supplier’s premises and those of its permitted sub-contractors and shall be afforded all necessary access and facilities at any reasonable time to check the progress, quality or records relating to the work being carried out, even after completion.
(a) The Supplier shall indemnify CloudNC Ltd against any claim by any person relating to death or personal Injury or any loss or damage to any property or any other loss or damage whatsoever caused by Defect in the Goods (whether or not apparent from examination) or caused by any breach of contract, negligence or other default of the Supplier, his servants or agents. This indemnity includes all costs, charges or expenses whatsoever incurred by CloudNC Ltd in connection with any claim or legal proceedings made or taken by any person and such costs, charges or expenses shall be recoverable from the Supplier on a full indemnity basis.
(a) The Supplier will effect and keep in force a policy of insurance with a Company authorised under the Insurance Company Act 1982 or any amendments or statutory replacements thereof in the sum of at least £1,000,000 against all claims arising out of death or personal injury or any loss of or damage to any property (including land) caused to any person by reason of a defect in goods supplied by the Supplier to CloudNC Ltd whether or not such defect arose as a result of a breach of contract, negligence or other default on the part of the Supplier.
(b) A copy of the insurance policy referred to in sub-clause (a) shall be made available by the Supplier to CloudNC Ltd on demand.
10. BUYER’S PROPERTY/DRAWINGS AND DATA
(a) Any intellectual and tangible property issued by the CloudNC to the Supplier specifically in the manufacturing of the Goods shall at all times be and remain the exclusive property of CloudNC but can be held by the Supplier in safe custody, at its own risk and maintained and kept in good condition until returned.
(b) The supplier shall not pass the above to any other party without the CloudNC’s prior written consent.
(c) The supplier shall keep adequate records of such property and shall be made available upon request by the Buyer.
(a) These conditions exclude any other terms and conditions inconsistent therewith which either party might seek to impose including any other terms and conditions contained in a later document which purport to exclude any conditions inconsistent with them.
(b) Acceptance by the Supplier of the purchase order shall be deemed to be acceptance of these conditions contained in quotations, letters, invoices or other communications issued by the Supplier shall annul or vary them unless expressly agreed in writing by CloudNC Ltd and the Supplier.
(c) Any reference to any statute, regulation or other matter includes reference to any amendments, re- enactments, extensions or replacement of the same.
(d) Should the price, material used, drawing number or revision differ from that of the purchase order written approval should be obtained from CloudNC Ltd before proceeding
(e) The supply of alternative product, manufacturing process or location, concession, scrapping, subcontracting of our issued product must have our prior agreement
(f) The supplier will supply the release certification (certificate of conformity) and any other paperwork or documentation requested in the purchase order
(g) The supplier is expected to develop, implement and maintain effective policies and training programs to ensure that their employees are aware of the importance of ethical behaviour.
11. RECORD RETENTION
(a) The supplier will retain records for material traceability, test and inspection for 5 Years as hard copies and then a further 10 years (minimum) as either hard or electronic files.
CloudNCLimited (“CloudNC”, “we”, “us” or “our”) respects your privacy and is committed to protecting your Personal Data. We want to be transparent with you about how we collect, use and share your Personal Data in making available the website (“Site”) and providing you with our proprietary cloud-based software-as-a-service platform (“Service”). “Personal Data” means any information which identifies you as an individual or which otherwise renders you identifiable.
WHO ARE WE AND HOW TO CONTACT US
You can contact us by email at email@example.com or by post to our address mentioned above.
WHAT PERSONAL DATA WE COLLECT
All the Personal Data we collect is outlined below:
HOW WE USE YOUR PERSONAL DATA AND WHY
We have set out below, in a table format, the legal bases we rely on in respect of the relevant purposes for which we use your Personal Data.
YOUR RIGHTS RELATING TO YOUR PERSONAL DATA
Under certain circumstances, by law, you have the right to:
HOW TO EXERCISE YOUR RIGHTS
If you want to exercise any of the rights described above, please contact us using the contact details shown above. To ensure we are able to process your request as efficiently as possible, please include‘Data Subject Request’ in the subject line of any email you send us to exercise any such rights.[CDP1] We may need to request specific information from you to help us confirm your identity and ensure your right to access your Personal Data (or to exercise any of your other rights). This is a security measure to ensure that Personal Data is not disclosed to any person who has no right to receive it. We try to respond to all legitimate requests within one month. Occasionally it may take us longer than a month if your request is particularly complex or you have made a number of requests. In this case, we will notify you and keep you updated.
WHO WE SHARE YOUR PERSONAL DATA WITH
Service providers. Third parties that provide services on our behalf or help us operate the Site, Service or our business (such as hosting, information technology, customer support, email delivery, marketing, consumer research and website analytics).
Business and Marketing partners. Third parties with whom we co-sponsor events or promotions, with whom we jointly offer products or services, or whose products or services may be of interest to you.
Professional advisors. Professional advisors, such as lawyers, auditors, bankers and insurers, where necessary in the course of the professional services that they render to us.
Authorities and others. Law enforcement, government authorities, and private parties, as we believe in good faith to be necessary or appropriate in the circumstances
Business transferees. We may disclose Personal Data in the context of actual or prospective business transactions (e.g., investments in CloudNC, financing of CloudNC, or the sale, transfer or merger of all or part of our business, assets or shares), for example, we may need to share certain PersonalData with prospective counterparties and their advisers. We may also disclose your Personal Data to an acquirer, successor, or assignee of CloudNC as part of any merger, acquisition, sale of assets, or similar transaction, and/or in the event of an insolvency, bankruptcy, or receivership in which Personal Data is transferred to one or more third parties as one of our business assets.
DATA TRANSFERS OUTSIDE THE UK
We may share your Personal Data with third parties who are based outside the UK. We endeavour to ensure that people to whom we provide your Personal Data hold it subject to appropriate safeguards and controls required by data protection laws. So, whenever we transfer your Personal Data out of UK, we try to ensure a similar degree of protection is afforded to it by making sure at least one of the following mechanisms in compliance with our obligations under data protection laws. You have the right to request additional information about the safeguard mechanisms we use. If you would like further details, please contact us at the contact details shown above.
HOW WE KEEP PERSONAL DATA SECURE
We have put in place appropriate security measures to prevent your Personal Data from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. We also limit access to your Personal Data to those employees and other staff who have a business need to have such access. All such people are subject to a contractual duty of confidentiality. We have put in place procedures to deal with any actual or suspected Personal Data breach. In the event of any such breach, we have systems in place to work with applicable regulators. In addition, in certain circumstances (e.g., where we are legally required to do so) we may notify you of breaches affecting your Personal Data.
HOW LONG WE STORE YOUR PERSONAL DATA
We re committed to only keeping your Personal Data for so long as we reasonably need to use it for the purposes set out above. This general rule applies unless a longer retention period is required by law (for example, for regulatory purposes).
OUR POLICY ON CHILDREN
Neither this Site nor our Service are intended for children below the age of 16, and we do not knowingly collect data relating to such children.
THIRD PARTY LINKS
If you feel that your complaint has not been adequately addressed, please note that data protection laws give you the right to contact the Information Commissioner’s Office. You can contact them by calling 0303 123 1113 or by visiting their website https://ico.org.uk/
WEBSITE TERMS AND CONDITIONS V2.0 (2019)
These terms and conditions apply between you, the User of this Website (including any sub-domains, unless expressly excluded by their own terms and conditions), and CloudNC Ltd, the owner and operator of this Website. Please read these terms and conditions carefully, as they affect your legal rights. Your agreement to comply with and be bound by these terms and conditions is deemed to occur upon your first use of the Website. If you do not agree to be bound by these terms and conditions, you should stop using the Website immediately.
In these terms and conditions, USER or USERS means any third party that accesses the Website and is not either (i) employed by CloudNC Ltd and acting in the course of their employment or (ii) engaged as a consultant or otherwise providing services to CloudNC Ltd and accessing the Website in connection with the provision of such services.
You must be at least 18 years of age to use this Website. By using the Website and agreeing to these terms and conditions, you represent and warrant that you are at least 18 years of age.
INTELLECTUAL PROPERTY AND ACCEPTABLE USE
All Content included on the Website, unless uploaded by Users, is the property of CloudNC Ltd, our affiliates or other relevant third parties. In these terms and conditions, Content means any text, graphics, images, audio, video, software, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on or forms part of this Website, including any such content uploaded by Users. By continuing to use the Website you acknowledge that such Content is protected by copyright, trademarks, database rights and other intellectual property rights. Nothing on this site shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the site without the owner’s prior written permission
You may, for your own personal, non-commercial use only, do the following:
retrieve, display and view the Content on a computer screen
download and store the Content in electronic form on a disk (but not on any server or other storage device connected to a network)
print one copy of the Content
You must not otherwise reproduce, modify, copy, distribute or use for commercial purposes any Content without the written permission of CloudNC Ltd.
You acknowledge that you are responsible for any Content you may submit via the Website, including the legality, reliability, appropriateness, originality and copyright of any such Content. You may not upload to, distribute or otherwise publish through the Website any Content that (i) is confidential, proprietary, false, fraudulent, libellous, defamatory, obscene, threatening, invasive of privacy or publicity rights, infringing on intellectual property rights, abusive, illegal or otherwise objectionable; (ii) may constitute or encourage a criminal offence, violate the rights of any party or otherwise give rise to liability or violate any law; or (iii) may contain software viruses, political campaigning, chain letters, mass mailings, or any form of “spam.” You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content. You may not upload commercial content onto the Website.
You represent and warrant that you own or otherwise control all the rights to the Content you post; that the Content is accurate; that use of the Content you supply does not violate any provision of these terms and conditions and will not cause injury to any person; and that you will indemnify CloudNC Ltd for all claims resulting from Content you supply.
You may not use the Website for any of the following purposes:
in any way which causes, or may cause, damage to the Website or interferes with any other person’s use or enjoyment of the Website;
in any way which is harmful, unlawful, illegal, abusive, harassing, threatening or otherwise objectionable or in breach of any applicable law, regulation, governmental order;
making, transmitting or storing electronic copies of Content protected by copyright without the permission of the owner.
LINKS TO OTHER WEBSITES
This Website may contain links to other sites. Unless expressly stated, these sites are not under the control of CloudNC Ltd or that of our affiliates.
We assume no responsibility for the content of such Websites and disclaim liability for any and all forms of loss or damage arising out of the use of them.
The inclusion of a link to another site on this Website does not imply any endorsement of the sites themselves or of those in control of them.
AVAILABILITY OF THE WEBSITE AND DISCLAIMERS
Any online facilities, tools, services or information that CloudNC Ltd makes available through the Website (the SERVICE) is provided “as is” and on an “as available” basis. We give no warranty that the Service will be free of defects and/or faults. To the maximum extent permitted by the law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality. CloudNC Ltd is under no obligation to update information on the Website.
Whilst CloudNC Ltd uses reasonable endeavours to ensure that the Website is secure and free of errors, viruses and other malware, we give no warranty or guaranty in that regard and all Users take responsibility for their own security, that of their personal details and their computers.
CloudNC Ltd accepts no liability for any disruption or non-availability of the Website.
CloudNC Ltd reserves the right to alter, suspend or discontinue any part (or the whole of) the Website including, but not limited to, any products and/or services available. These terms and conditions shall continue to apply to any modified version of the Website unless it is expressly stated otherwise.
LIMITATION OF LIABILITY
Nothing in these terms and conditions will: (a) limit or exclude our or your liability for death or personal injury resulting from our or your negligence, as applicable; (b) limit or exclude our or your liability for fraud or fraudulent misrepresentation; or (c) limit or exclude any of our or your liabilities in any way that is not permitted under applicable law.
We will not be liable to you in respect of any losses arising out of events beyond our reasonable control.
To the maximum extent permitted by law, CloudNC Ltd accepts no liability for any of the following:
any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities;
loss or corruption of any data, database or software;
any special, indirect or consequential loss or damage.
You may not transfer any of your rights under these terms and conditions to any other person. We may transfer our rights under these terms and conditions where we reasonably believe your rights will not be affected.
These terms and conditions may be varied by us from time to time. Such revised terms will apply to the Website from the date of publication. Users should check the terms and conditions regularly to ensure familiarity with the then current version.
The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions and no third party will have any right to enforce or rely on any provision of these terms and conditions.
If any court or competent authority finds that any provision of these terms and conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these terms and conditions will not be affected.
Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
CLOUDNC LTD DETAILS
CloudNC Ltd is a company incorporated in England and Wales with registered number 09821257 whose registered address is 1 Norton Folgate, London, E1 6DB and it operates the Website www.cloudnc.com . The registered VAT number is GB242 3419 31.
You can contact CloudNC Ltd by email on firstname.lastname@example.org.
Last Updated Date: [30/05/2023]
The Platform, the Applications and the Services are business products and/or services and are not directed at, nor intended for use or consumption by, persons acting in a personal capacity as consumers. Accordingly, CloudNC recommend that, if you are acting in a personal capacity as a consumer, you leave the Platform immediately, do not download or continue to download any Application and do not access or use the Service.
If Customer chooses a free limited trial option to access the Service that CloudNC may in CloudNC’s discretion make available to Customer (“Limited Trial Period”), then Customer’s access to the Service will automatically terminate at the end of the Limited Trial Period unless Customer subscribes to a paid-for subscription before the end of the Limited Trial Period.If Customer subscribes to the Service on a paid-for basis for a term (“Initial Term”), then Customer’s subscription will be automatically renewed for additional periods of the same duration as the Initial Term (each a “Renewal Term”, and collectively with the Initial Term and, if applicable, the Limited Trial Period, the “Term”) at CloudNC’s then-current fee for such features and functionality unless Customer declines to renew its subscription in accordance with Section 4.3 (automatic renewal) below.
1. USE OF THE SERVICE. The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws.
1.1 Licence. Subject to Customer’s compliance with this Agreement, CloudNC grants Customer a limited, non-exclusive, personal, non-transferable, non-sublicensable, revocable license to download, install and use one copy of the Application on a single Device (as defined in Section 1.4) that Customer owns or controls and to run such copy of the Application in the country indicated in the Registration Data (as defined in Section 2.3) (“Country”) solely to access the Platform for Customer’s own internal business purposes. Any copying or redistribution of the Platform, the Application or the Documentation is prohibited save that Customer may transfer the Application and its associated unique licence key between Devices that Customer owns or controls provided that only a single copy (and licence key) may be in use at any given time. The foregoing licence will terminate if this Agreement terminates for any reason, and will also terminate immediately without any further action by CloudNC if Customer breaches any of the terms of this Agreement. Any “open source” or “free software” components owned by third parties that are comprised in the Service are licensed under the terms of the end-user licence that accompanies such components.
1.2 Certain Restrictions. Except as expressly permitted in this Agreement, the rights granted to Customer in this Agreement and the Customer’s access to and use of the Service are subject to the conditions that the Customer shall:
(a) not use the Service (or any part thereof) in any manner or for any purpose that is inconsistent with this Agreement;
(b) not use the Service (or any part thereof) to create, market or distribute any product or service that is competitive with the Service or any part of the Service whether by way of model extraction, model inference attack, model inversion attack or otherwise;
(c) not introduce to the Service any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the Service or any device or system owned or controlled by CloudNC or any third party, or which otherwise may damage or destroy any data or file;
(d) not re-use, disseminate, copy, or otherwise use the Service (or any part thereof) in a way that infringes, misappropriates, or violates any intellectual property rights or other right of CloudNC or any third party; or
(e) not interfere with the proper working of the Service;
(f) not circumvent, disable, or interfere with security-related features of the Service or features that prevent or restrict use, access to, or copying the Service, or that enforce limitations on use of the Service;
(g) not impose (or act in a manner that may impose, in CloudNC’s sole discretion) an unreasonable or disproportionately large load on the Service, e.g. by seeking to upload to the Platform large volumes of parts in short periods of time;
(h) not cause the Service or any part in any way to be disassembled, decompiled, reverse-engineered, or otherwise attempt to derive the source code or algorithms in the Service, except to the extent permitted by applicable law (and in this case, provided that Customer must first request such information from CloudNC, and CloudNC may either provide such information or impose reasonable conditions, including a fee, on such use to ensure that CloudNC’s intellectual property rights are protected), or workaround any technical information in the Platform, nor shall any attempt to do any of the foregoing be undertaken or permitted;
(i) not make the Service or any part available for access or use by any person or entity other than Customer’s employees;
(j) not rent, lease, loan or sell access to the Service or any part to any third-party or provide it as a service bureau;
(k) comply with instructions and recommendations associated with the use of the Platform set out in the Documentation;
(l) not copy or otherwise reproduce, translate, port, modify or make derivative works of the Service or any part;
(m) not use the Service for any purpose that is prohibited by this Agreement or by applicable law;
(n) not remove or destroy any copyright notices or other proprietary markings contained on or in the Service;
(o) not use the Service or any part in connection with the manufacture of military or dual use goods or goods that otherwise require a licence in order for the goods to be exported from the Country; and
(p) not publish any performance or benchmark tests or analysis related to the Service or any part.
1.4 Updates. Customer understands that the Service is evolving. As a result, CloudNC may require Customer to install updates to the Applications that Customer has installed on the physical devices through which Customer accesses or uses the Service (“Device”). Customer acknowledges and agrees that CloudNC may update the Service with or without notifying Customer. Customer may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Service shall be subject to this Agreement.
1.5 Parts and Tooling Data. In order for CloudNC to configure the Platform and to enable the generation of the Results, Customer shall provide to CloudNC such information as CloudNC may request relating to (i) the tools/tooling and equipment used and intended to be used ; and (ii) the types of parts manufactured by Customer (“Parts and Tooling Data”). Customer undertakes to ensure that all tools/tooling and other equipment used and intended to be used by Customer in connection with the use of the Results is and remains in good repair and properly maintained, and in all respects matches the specification and operating condition reported to CloudNC in the Parts and Tooling Data.
1.6 Customer Data. Customer may upload Customer Data to the Platform. Customer remains responsible for any Customer Data, and shall not upload any Customer Data which: (a) violates any applicable law; or (b) infringes the rights (including intellectual property rights) of any third-party. Customer hereby grants CloudNC a non-exclusive, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees), perpetual licence to use, copy, adapt, prepare derivative works from, and translate the Customer Data and the Results for the purpose of operating and improving the Platform and the Services for other users. Customer represents to CloudNC on an ongoing basis that it has the necessary rights, power, consents and authority to transmit Customer Data to CloudNC under this Agreement and to grant CloudNC such licence to use Customer Data. In this Agreement, “Customer Data” means any data, media, information or other content that is: (a) inputted by Customer into the Platform or the Services; or (b) otherwise provided by or on behalf of Customer to CloudNC under or in connection with this Agreement, including the Parts and Tooling Data, and Registration Data (as defined in Section 2.3).
1.7 Customer Dependencies. In order to permit CloudNC to provide Customer with access to the Service in accordance with the terms of this Agreement, Customer shall ensure that:
(a) it has installed, and accesses the Service via, a supported version of the internet browsers and operating systems that are listed in the Documentation as supported by CloudNC from time to time;
(b) it has an internet connection with adequate bandwidth to access and use the CloudNC Technology;
(c) it shall implement and maintain effective security policies and procedures to prevent unauthorised disclosure of licence key(s) and unauthorised access to the Service;
(d) it has deployed all software updates made available by CloudNC; andCloudNC shall be relieved from any failure to comply with its obligations to provide access to the Service, if and to the extent that such failure was caused by Customer’s failure to meet any obligation or dependency on Customer outlined above.
1.8 Storage of Customer Data. CloudNC has no obligation to store any Customer Data even if the Service provides the functionality allowing Customer to input such data. CloudNC has no responsibility or liability for the storage, retention, deletion, integrity or accuracy of any Customer Data.
1.9 Data Privacy. Each Party agrees that it shall comply with its respective obligations under applicable privacy and data protection legislation in its performance of this Agreement.
1.10 Confidentiality. Without prejudice to Section 1.3, each Party agrees that it shall not at any time disclose to any person any Confidential Information of the other Party. “Confidential Information” means any and all technical and non-technical information provided by one Party to the other, and includes without limitation, ideas, techniques, sketches, drawings, models, inventions, know-how, processes, algorithms, software programmes, and information related to the current, future, and proposed products and services of a Party; and also includes with respect to (a) CloudNC, the Platform, the Documentation and the Services; and (b) Customer, the Parts and Tooling Data. Neither Party will have obligations under this Agreement with respect to any Confidential Information which: (i) at the time of its disclosure was in the public domain; (ii) after disclosure came into the public domain for any reason except the failure of the receiving Party to comply with the terms of this Agreement; (iii) was lawfully in the receiving Party’s possession prior to such disclosure; (iv) was subsequently communicated to the receiving Party from a third party without obligations of confidentiality. A Party may disclose certain Confidential Information, without breaching the terms of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction.
2.1 Registering An Account. In order to access certain features of the Service, Customer may be required to register an account on the Service (“Account”), including having valid credentials with a third party computer-aided manufacturing (CAM) system or service that is recognised by CloudNC as compatible with the Platform, and through which Customer can connect to the Service, as permitted by the Service (each such third party credentials being, a “Third-Party Account”).
2.2 Third-Party Accounts. The Service will require Customer to provide information about its relevant Third-Party Account in order for CloudNC to validate Customer’s Third-Party Account. Customer represents that Customer is entitled to disclose Customer’s Third-Party Account login information to CloudNC and/or grant CloudNC access to Customer’s Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third-Party Account and without obligating CloudNC to pay any fees or making CloudNC subject to any usage limitations imposed by such third-party service providers. Customer has the ability to disable the connection between Customer’s Account and Customer’s Third-Party Accounts at any time by accessing the “Settings” section of the Service. Customer’s relationship with the third-party service providers associated with Customer’s Third-Party Accounts is governed solely by Customer’s agreement(s) with such third-party service providers.
2.3 Registration Data. In registering an Account on the Service, Customer shall (i) provide true, accurate, current, and complete information about Customer as prompted by the registration form (the “Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If Customer provides any information that is untrue, inaccurate, incomplete or not current, or CloudNC has reasonable grounds to suspect that any information Customer provides is untrue, inaccurate, incomplete or not current, CloudNC has the right to suspend or terminate Customer’s Account and refuse any and all current or future use of the Service (or any portion thereof). Customer may not share Customer’s Account or licence key with anyone, and Customer agrees to notify CloudNC immediately of any unauthorized use of Customer’s licence key or any other breach of security. Customer is responsible for all activities that occur under Customer’s Account.
3.1 The Service. Except with respect to Customer Data, Customer agrees that CloudNC and its suppliers or licensors own all rights, title and interest in the Service (including but not limited to, the Platform, the Application and the Documentation), and any content that appears on or in the Service. Customer shall not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in the Service.
3.2 CloudNC Trademarks. CloudNC’s name and other related graphics, logos, service marks and trade names used on or in connection with the CloudNC Properties are the trademarks of CloudNC and may not be used without permission in connection with any third-party product or services. Other trademarks, service marks and trade names that may appear on or in the CloudNC Properties are the property of their respective owners.
3.3 Customer Data; Results. CloudNC agrees that Customer owns all rights, title and interest in and to Customer Data and the Results. CloudNC hereby assigns to Customer all of its rights, title and interest in and to the Customer Data and Results.
3.4 Feedback. If Customer provides to CloudNC information regarding the Services’ performance, function and use including with respect to any errors, problems, defects or suggestions for changes and improvements to the Services (collectively, “Feedback”), then Customer hereby assigns to CloudNC all of its rights, title and interest in and to the Feedback, and agrees that CloudNC shall have the right (but not the obligation) to use such Feedback and related information in any manner it deems appropriate.
4. FEES AND PURCHASE TERMS.
4.1 Third-Party Service Provider. The CloudNC uses Stripe, Inc. and its affiliates (or such other entity as CloudNC may notify from time to time) as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If Customer makes a purchase on the Service, Customer will be required to provide its payment details and any additional information required to complete Customer’s order directly to CloudNC’s Third-Party Service Provider. Please note that online payment transactions may be subject to validation checks by CloudNC’s Third-Party Service Provider and Customer’s card issuer, and CloudNC is not responsible if Customer’s card issuer declines to authorize payment for any reason. For Customer’s protection, CloudNC’s Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and Customer authorizes it to verify and authenticate Customer’s payment information. Customer’s card issuer may charge Customer an online handling fee or processing fee. CloudNC is not responsible for this. In some jurisdictions, CloudNC’s Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
4.2 Payment. Customer shall pay all fees or charges (“Fees”) to Customer’s Account in accordance with the Fees, charges and billing terms in effect at the time a Fee is due and payable. By providing CloudNC and/or CloudNC’s Third-Party Service Provider with Customer’s payment information, Customer agrees that CloudNC and/or CloudNC’s Third-Party Service Provider is authorized to immediately (and again at the beginning of any subsequent Subscription period) invoice Customer’s Account for all Fees due and payable to CloudNC hereunder and that no additional notice or consent is required. Customer shall immediately notify CloudNC of any change in Customer’s payment information to maintain its completeness and accuracy. Customer’s failure to provide accurate payment information to CloudNC and/or CloudNC’s Third-Party Service Provider or CloudNC’s inability to collect payment constitutes Customer’s material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
4.3 Subscriptions. If Customer purchases access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals in accordance with Customer’s elections at the time of purchase. CloudNC reserves the right to change the Subscription pricing at any time in accordance with Section 9.4 (Agreement Updates) with any such change to take effect for Customer upon the next renewal of Customer’s Subscription. If changes to the Subscription price occur that impact Customer’s Subscription, CloudNC will use commercially reasonable efforts to notify Customer, such as by sending an email to the email address associated with Customer’s Account. If Customer does not agree with such changes, Customer may elect not to renew its Subscription as set forth in Section 4.3(a)(i).
(a) Automatic Renewal. If Customer elects to purchase a Subscription, Customer’s Subscription will continue and automatically renew at CloudNC’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which Customer’s Subscription renews (i.e., weekly, monthly, annually, etc.) will be designated at the time Customer signs up for the Subscription and may be modified by Customer via Customer’s Account settings. Upon renewal of Customer’s Subscription, if CloudNC does not receive payment, (i) Customer shall pay all amounts due on Customer’s Account upon demand and/or (ii) Customer agrees that CloudNC may either terminate or suspend Customer’s Subscription and continue to attempt to charge Customer’s designated payment method until payment is received (upon receipt of payment, Customer’s Account will be activated and for purposes of automatic renewal, Customer’s new Subscription commitment period will begin as of the day payment was received).
(i) Cancelling Subscriptions. If Customer does not wish its Account to renew automatically, or if Customer wants to change or terminate its Subscription, Customer must contact CloudNC via designated support links in the Service or at email@example.com.
(ii) Effect of Cancellation. If Customer cancels its Subscription, Customer may use its Subscription until the end of its then-current Subscription term; Customer’s Subscription will not be renewed after its then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
(b) Upgrades and Downgrades. If Customer chooses to upgrade its Subscription in the middle of a Subscription period, such upgrade will take effect immediately and any incremental Fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the Fees will reflect any such upgrades. If Customer chooses to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of the Services as available, and CloudNC does not accept any liability for such loss.
4.4 Taxes. If CloudNC determines it has a legal obligation to collect Sales Tax (as defined below) from Customer in connection with this Agreement, CloudNC shall collect such Sales Tax in addition to the Fees. If any payments for the Service or part thereof are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to CloudNC, Customer shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer shall indemnify CloudNC for any liability or expense CloudNC may incur in connection with such Sales Taxes. Upon CloudNC’s request, Customer will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes. For purposes of this section, “Sales Tax” means any “value added”, sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4.5 Withholding Taxes. Customer shall make all payments of Fees to CloudNC free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to CloudNC shall be Customer’s sole responsibility, and Customer shall provide CloudNC with official receipts issued by the appropriate taxing authority, or such other evidence as CloudNC may reasonably request, to establish that such taxes have been paid.
Customer shall indemnify and hold CloudNC, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “CloudNC Party” and collectively, the “CloudNC Parties”) harmless from any losses, costs, damages, liabilities actions, proceedings and expenses (including reasonable legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) arising from or in connection with (i) any use of the Service or any part thereof not in accordance with this Agreement; (ii) any use of the Results by Customer or any third party; and (iii) any failure by Customer or its employees, consultants or agents to comply with the restrictions set out in Section 1.2. CloudNC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with CloudNC in asserting any available defenses.
6. WARRANTY AND DISCLAIMER.
6.1 Warranty. CloudNC warrants that the Service will conform in all material respects to the Documentation.
6.2 Disclaimer. Save as stated in Section 6.1, CloudNC makes and offers no representations, warranties, terms or conditions of any kind, whether oral, statutory, express, implied, by course of communication or dealing or otherwise. CloudNC specifically disclaims any warranty, term or condition with regard to satisfactory quality, fitness for a particular purpose, non-infringement of third-party rights, completeness, truthfulness, accuracy, reliability, performance, or any other qualities or attributes. Without limiting the generality of the foregoing, CloudNC does not warrant that the Platform or the Results will be error-free or will operate without interruption, and CloudNC grants no warranty regarding its use or the Results generated therefrom. CloudNC shall not be responsible for reviewing or attempting to verify the accuracy or currency of any Results generated in Customer’s use of the Platform, and Customer uses the CloudNC Service and the Results at its own risk. Results are generated on the assumption that all tools/tooling and other equipment used and intended to be used by Customer in connection with the use of the Results (i) is and remains in good repair and properly maintained, and (ii) in all respects matches the specification and operating condition reported to CloudNC in the Parts and Tooling Data.
7. LIMITATION OF LIABILITY.
7.1 Obligation to Pay Sums Due. Nothing in this Agreement limits or excludes liability of Customer to pay CloudNC any sums due under this Agreement.
7.2 This Section 7 sets out CloudNC’s entire financial liability to the Customer:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Customer of the Service or any part of it; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.3 Nothing in this Agreement limits or excludes the liability of either party for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation;
(c) the indemnity under Section 5; or
(d) any other act, omission, or liability which may not be limited or excluded by applicable law.
7.4 Subject to Section 7.3, CloudNC shall not in any circumstances be liable to Customer whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any consequential or indirect loss;
(b) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
(c) any loss or corruption of data or information (whether direct or indirect);
(d) any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); (e) the Customer’s failure to comply with any applicable law, regulation or code of best practice as a result of, or in relation to, its use of the Service;
(f) any loss or liability (whether direct or indirect) arising as a result of Customer’s, or any third party’s use of, or reliance upon, the Results.
7.5 Subject to the remainder of this Section 7, CloudNC’s total aggregate liability (whether in contract (including indemnity), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising under or in connection with the performance or contemplated performance of this Agreement, shall under no circumstances exceed one hundred per cent (100%) of all Fees paid by Customer pursuant to and in accordance with this Agreement.
8. TERM AND TERMINATION.
8.1 Term. This Agreement commences on the date when Customer accepts this Agreement (as described in the preamble above), and continues in full force and effect while Customer uses the Service until the end of the Term, unless terminated earlier in accordance with this Agreement.
8.2 Termination by CloudNC or Customer. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or
(b) becomes insolvent or unable to pay its debts (as defined in section 123 of the Insolvency Act 1986), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order shall or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business or claims the benefit of any statutory moratorium, or undergoes any similar or equivalent process in any jurisdiction.
8.3 The Parties acknowledge and agree that failure by Customer either (a) to pay any sums when due or (b) of Section 1.2, shall constitute a “material breach” for the purposes of Section 8.2.
8.4 Effect of Termination. Upon expiry or termination of this Agreement: (a) any and all licences, permissions and authorisations granted to Customer by CloudNC under this Agreement will terminate automatically; (b) Customer will return to CloudNC or delete (at CloudNC’s discretion) any copies of the Platform, the Application and the Documentation or parts thereof in its possession or control within 10 business days of termination of expiry; (c) each Party will promptly return all Confidential Information received from the other Party, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed; and (d) any provision of this Agreement that either expressly or by implication is intended to come into or continue in force on or after expiry or termination of this Agreement shall remain in full force and effect. Any obligation to return, destroy or permanently erase Confidential Information outlined in this Section 9.5 shall not apply: (y) in respect of one (1) copy of the Customer Data, that CloudNC may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; and (z) to any Confidential Information or Customer Data that is retained by CloudNC on electronic back-up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the applicable provisions of this Agreement relating to Confidential Information shall continue to apply to any such Confidential Information and/or Customer Data.
9. GENERAL PROVISIONS.
9.1 Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the parties in relation to such matters. The parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any party from liability for fraud or fraudulent misrepresentation.
9.2 Assignment. The Agreement, and Customer’s rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Customer without CloudNC’s prior written consent. CloudNC may, without Customer’s consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
9.3 Force Majeure. CloudNC shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials (“Force Majeure Event”). If a Force Majeure Event occurs that affects CloudNC’s performance of its obligations under this Agreement: (i) CloudNC will contact Customer as soon as reasonably possible to notify Customer; and (ii) CloudNC’s obligations under this Agreement will be suspended and the time for CloudNC’s performance of its obligations will be extended for the duration of the Force Majeure Event. Customer may cancel the Service affected by a Force Majeure Event which has continued for more than 30 days.
9.5 Governing Law and Jurisdiction. The Agreement and all matters arising from it (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with the laws of England and Wales. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (including, without limitation, any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation), each party irrevocably submits to the exclusive jurisdiction of the courts of England.
9.6 Notice. Where CloudNC requires that Customer provide an email address, Customer is responsible for providing CloudNC with a valid and current email address. In the event that the email address Customer provides to CloudNC is not valid, or for any reason is not capable of delivering to Customer any notices required by this Agreement, CloudNC’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to CloudNC at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by CloudNC by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
9.7 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.8 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.9 Relationship and Publicity. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, or authorise any party to make or enter into any commitments for or on behalf of the other party. Customer acknowledges and agrees that CloudNC may include Customer’s name and a description of the technology and services provided to Customer under this Agreement, in case study marketing content, lists of or references to any of CloudNC’s clients on its website and/or in proposals, and in other marketing materials.
9.10 Export Control. Customer may not use, export, import, or transfer the Service except as authorized by UK or U.S. law, the laws of the jurisdiction in which Customer obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (i) into any United Kingdom or United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, Customer represents and warrants that (A) Customer is not located in a country that is subject to a UK or U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (B) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use the Service for any purpose prohibited by UK or U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Customer acknowledges and agrees that products, services or technology provided by CloudNC are subject to the export control laws and regulations of the United States and the United Kingdom.
9.11 Third-Party Rights. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement.