TERMS AND CONDITIONS
In these conditions of sale the following terms shall have the meaning ascribed to them:
|‘Open Reality’||means Open Reality Limited|
|‘Customer’||means the person, firm or organization placing an order with Open Reality|
|‘Consultant’||means all employees, agents, consultants and contractors of Open Reality|
|‘Consultancy Services’||means all of the activities to be undertaken by or to be performed by Open Reality as described in the Scope of Work as may be amended from time to time|
|‘Consultancy Bank’||means days of consultancy work purchased in bulk which can be called off as and when the Customer needs them|
|‘Equipment’||means hardware, software or other services ordered by the Customer from Open Reality|
|‘Order’||means acceptance of quotation, instruction to proceed or other confirmation by the Customer|
|‘Working Day’||means any day other than a Saturday, Sunday or public holiday in England and Wales|
2.1 If a delivery date is specified or otherwise given by Open Reality, the same shall be taken as an estimate made by Open Reality in good faith and shall not be a term of the contract.
2.2 In no circumstances shall Open Reality be liable for any loss or damage sustained by the Customer in consequence of failure to deliver by such date.
2.3 Open Reality’s liability shall, in respect of the Equipment or any part thereof, cease on delivery to the Customer’s premises and all subsequent risk shall pass to the Customer.
3.1 Unless the quotation in writing given by Open Reality expressly provides that the price shall remain firm for a specified period the prices quoted shall be subject to increases reflecting any increase in Open Reality’s costs in respect of materials, labour, services or transport or changes in exchange rates between the date of order and the date of dispatch.
3.2 Unless stated otherwise, prices do not include tax, insurance, freight and delivery costs.
4.1 Unless otherwise agreed in writing, payment is due to Open Reality with order or on delivery of the Equipment against invoice except where the Customer establishes and maintains a satisfactory credit arrangement with Open Reality. Under the terms of credit payment the Customer shall pay all invoices not later than 30 days after date of invoice.
4.2 Open Reality reserve the right to impose a surcharge equating to 3% over National Westminster Bank plc base rate for lending on accounts which exceed these payment terms.
In respect of all Orders, excluding Consultancy Services (see clause 18), in the event that the Customer:
- Cancels the Order or portion thereof, or
- Fails to meet any obligation hereunder (including failure to operate a satisfactory credit relationship) causing cancellation of the Order or portion thereof,
the Customer shall agree to pay Open Reality cancellation charges by way of liquidated damages as a percentage of the list price of the cancelled Equipment as detailed below.
Cancellation charges payable:
- 61 – 90 days prior to scheduled delivery month – 5% or £100, whichever is the greater.
- 31 – 60 days prior to scheduled delivery month – 10% or £100, whichever is the greater.
- 30 days or less prior to scheduled delivery month – 15% or £100, whichever is the greater
- During the scheduled delivery month – 20% or £100, whichever is the greater.
The Customer may not cancel the Order or portion thereof after delivery.
Goods returned to stock in special circumstances only.
6.1 Such goods will only be accepted for return if (a) approved by Open Reality and covered by an official returns number issued by Open Reality and (b) the intention to return is notified within 7 days of delivery.
6.2 Goods not in their original packing or damaged will not be accepted.
6.3 A restocking charge of 20% of the value of the Equipment will be payable.
6.4 Open Reality’s obligation for the defective Equipment shall be limited to the repair or replacement (at its option) pursuant to provisions of Clause 7.
7.1 Unless otherwise agreed in writing the Equipment purchased hereunder is warranted on a return to depot basis against defects in workmanship and materials under normal and proper use and conditions in its unmodified condition for a period of 90 days from date of delivery or within the manufacturer’s warranty period.
7.2 As a condition of this warranty the Customer must:
- Ship the Equipment to Open Reality’s depot transportation prepaid and,
- Include the returned Equipment along with a written description of the claimed defects and,
- Notify Open Reality within 14 days of the claimed defects arising.
If Open Reality determines that the Equipment returned to it for warranty correction is not defective as herein defined, the Customer shall pay Open Reality all costs of handling, diagnosis and transportation.
7.3 Open Reality’s sole responsibility under the above warranty shall be at its option to either repair or replace the Equipment and/or components which fail during the Warranty period due to defects in workmanship and material provided the Customer has promptly reported the same to Open Reality in writing and Open Reality has upon inspection found such Equipment and/or components to be defective.
7.4 All replaced Equipment shall become Open Reality’s property.
7.5 This warranty does not apply to Equipment or components which have been altered, treated, processed or worked upon while in the Customer’s hands other than in the ordinary course of installation in accordance with Open Reality’s installation manual or operated in accordance with the recommendations of Open Reality or manufacturer.
7.6 Save as aforesaid all express or implied conditions or Warranties statutory or otherwise as to the state, quality, fitness, suitability or performance of the Equipment and components are expressly excluded.
8.1 The Customer agrees to notify Open Reality promptly in writing of any action (and all prior claims related) brought against the Customer claiming that the Customer use or resale of Open Reality’s products infringes a patent or copyright.
8.2 In the event that an injunction shall be obtained against the Customer’s use of the product by reason of such infringement Open Reality will at its option and at its expense either procure replace or modify the same so that it becomes non-infringing or if the above is not reasonably feasible grant the Customer a credit for the normal depreciated value of the product.
8.3 Open Reality will not be liable if the alleged infringement is based upon:
- The use of the Equipment in combination with equipment not sold by Open Reality and,
- The furnishing to the Customer of any information, data, service or application assistance.
8.4 The foregoing states the entire liability of Open Reality for infringement by the Equipment purchased.
8.5 Open Reality retains all rights of Patent Design Copyright or otherwise in connection with Equipment supplied under the contract.
9. Product Specification Changes
Open Reality reserves the right without prior approval from, or notice to, the Customer to make changes to the Equipment:
- Which do not affect the physical function or inter-changeability or performance assembly or,
- Which are required for purposes of safety or,
- Which meet Open Reality’s Equipment specification.
10.1 All Equipment delivered by Open Reality to the Customer shall remain the property of Open Reality (and legal ownership shall remain vested in it) until the Customer has met all outstanding debts and other contractual obligations in relation to the Equipment.
10.2 Until such time as the Customer has paid in full all monies owing for any Equipment supplied by Open Reality the Customer shall keep in a fiduciary capacity for Open Reality and shall take all steps necessary to ensure that the same are kept in a safe place and are properly insured to their full value while in the Customers custody.
10.3 Should the Customer fail to complete the payment within the time stipulated or be in default of payment for any other reason than Open Reality shall be entitled to stop all delivery of Equipment whether such deliveries relate to the contract under which the debt is still owed or not.
10.4 Open Reality will in addition be entitled to terminate all outstanding orders and to repossess immediately all Equipment which is its property under sub-clause (1) and (2) of this Clause and the Customer expressly grants Open Reality the right of entry on its premises to exercise such right of repossession.
11. Loss Or Damage In Transit
11.1 Open Reality will entertain no claim for loss or damage to the Equipment delivered unless notification of the nature and extent of such a claim is received by Open Reality within ten days.
11.2 The liability of Open Reality shall in no circumstances exceed the invoiced value of the goods lost or damaged.
12. Customers Default
If the Customer shall make default in or commit any breach of any of his obligations to Open Reality or if any distress or execution shall be levied upon the Customer his property or assets or if he (the Customer) shall compound with his creditors or commit any act of bankruptcy presented or made against him, or if the Customer shall be a limited company and any resolution or petition to wind up such company’s business shall be made, passed or presented otherwise than for reconstruction or amalgamation or if a receiver of such company’s undertaking property or assets or any part thereof shall be appointed Open Reality shall have the right forthwith:
- To determine any order then subsisting and upon written notice of such determination being posted to the Customer’s last known address any subsisting order shall be deemed to have been determined without prejudice to any claim or right Open Reality might otherwise make or exercise.
- To recover at the Customer’s expense and without demand, all Equipment which remains Open Reality property pursuant to Clause 10 above.
13.1 The Customer and Open Reality undertake that they will keep confidential and not disclose to any third party without the other’s prior consent in writing any drawings or information (whether of a commercial or technical nature) required in connection with the Equipment.
13.2 Open Reality and the Customer shall only divulge confidential information to those employees who are directly involved in the contract and will ensure that those employees are bound by the requirements of the Clause.
14.1 Open Reality shall indemnify the Customer against any claims arising out of the death or physical injury of persons caused by the defects in any of the Equipment supplied by Open Reality.
14.2 Open Reality shall indemnify the Customer against any claims arising from direct damage to property caused by any defect in the Equipment or by negligence of Open Reality’s employees in connections with the performance of their duties. Open Reality’s total liability under this Clause shall be limited to the value of the Equipment for any one event or connection of events.
14.3 In no event shall Open Reality be liable to the Customer for loss of use, profits or contracts or any other indirect or consequential damages or losses however arising.
15.1 With regard to any Software developed or provided by Open Reality or licensed by it specifically for the Order the title thereto shall remain in Open Reality or the licensor (as the case may be) but Open Reality shall grant to the Customer the free and unfettered rights to use and modify such Software for his own use. Open Reality shall not be responsible for any defect in such Software should the Customer modify the same.
15.2 With regard to any Software supplied under the order over which Open Reality and/or third parties hold title of other rights. Open Reality shall permit or procure for the Customer (as the case may require) the right to use and apply that Software in the operation of the Equipment.
15.3 With regard to any Software, which is referred to in sub-clause 2 above the Customer undertakes not to disclose or make available any part or parts thereof to any third party without the prior, written consent on Open Reality.
15.4 Software is supplied on the terms of the License Agreement provided with the Equipment which is to be read in conjunction with these General Conditions of Sale.
16.1 The waiver by Open Reality of any breach of any term of this Agreement shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
16.2 The Customer is an independent party and shall not have the authority to act for and /or bond Open Reality in any way or to represent that Open Reality is in any way responsible for acts of the Customer.
16.3 Either party hereunder may assign neither this Agreement nor any rights without the prior written consent of the other.
16.4 English Law shall govern this Agreement.
16.5 Neither party shall be responsible for any failure to perform or delay in performance of the contract due to Act of God, Embargo or Government, War or Strikes.
16.6 Open Reality shall not be liable for any breach of the Conditions arising as a result of war, riot, explosion, fire, flood, strike or shortage of materials or labour.
16.7 In any of these Conditions or part thereof are held to be illegal then such Conditions or part thereof shall be severable and in no way invalidate the remainder.
Provision Of Consultancy Services
The Customer accepts that Open Reality may charge all reasonable expenses for travel and accommodation unless otherwise agreed in writing.
18. Cancellation Of Consultancy Services
The Customer may cancel or change Consultancy Services only by giving written notice. The following will apply in each situation:
- Notice given with 10 Working Days or more before planned work – No cost to the Customer.
- Notice given between 5 and 10 Working Days before planned work – 50% of the work package price will be payable.
- Notice given with less than 5 Working Days before planned work – 100% of the work package price will be payable.
Open Reality may waive the right to charge for a specific cancellation if we are able to deploy the Consultant’s time with an alternative Customer (this is not always possible when consultancy days are cancelled close to the planned work). Open Reality also reserves the right to charge for any non-refundable expenses incurred in respect of travel and accommodation arrangements made in line with this agreement for any consultancy days that are cancelled, irrespective of the notice period.
19. Delay Or Suspension Of Consultancy Services
If work is delayed or over-runs due to events within the scope of our control, work may be extended with no further charge to the Customer.
If the provision of Consultancy Services is delayed through the fault of the Customer and caused by matters beyond the control of Open Reality, the Customer shall pay the charges at Open Reality’s prevailing hourly or daily rates in respect of idle-time incurred for the delay. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of delay.
20. Additional Work / Changes During Scheduled Consultancy Services
During the Consultancy Services, Open Reality Consultant will work towards the completion of the project deliverables defined in the Scope of Work (Service Engagement Document).
Should the Customer request additional assistance from Open Reality Consultants with questions and requests for advice that are not directly included in the scope of the specified work then Open Reality consultants will endeavour to assist with such matters to the extent that they do not result in a significant deviation from the project plan and timescales.
In the event that the provision of additional assistance or Consultancy Services to the Customer is likely to require increased time commitment from Open Reality Consultants, then Open Reality will endeavour to discuss any schedule impact and additional costs with the appropriate Customer representatives prior to proceeding with such assistance and Consultancy Services. Where discussion is not possible and the work is considered urgent by the Customer then Open Reality reserves the right to charge for such work at the appropriate rate.
21. Expiry Of Consultancy Bank Days
All Consultancy Bank days purchased in advance of service delivery shall expire exactly 12 months after the Order date unless they are otherwise terminated in accordance with these Conditions, or otherwise lawfully terminated.
22. Consultancy Services Documentation
No work will be documented or reports produced without a specific request and time allocated.
The Customer and Open Reality hereby undertake to each other that for the period of 12 months following completion of the Consultancy Services, neither of them will either directly or by an agent or otherwise and whether for himself or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his or her employment or an associate or contractor of any sort to breach the terms of his or her contract with the Customer or Open Reality as the case may be.