Your attention is drawn in particular
to the provisions of Clause A.7 which sets out the limits on Desktop Engineering’s liability under these Terms and Clause A.12 which sets out the limitations on when you may terminate the Contract between us and the consequences of such termination.
Part A: General Terms and Conditions
The Terms below apply to any Contract between the Customer and Desktop Engineering, irrespective of whether such Contract is for the sale or licensing of Products or the performance of Services. The subsequent Parts B and C set out the specific terms applicable to the sale and/or licensing of Products and the performance of Services respectively.
A.1.1 In these Terms:
(a) “Acceptance Criteria”
means the document headed “Acceptance Criteria ”
attached to, or referred to in, the Order.
(b) “Business Days”
means any day which is not a Saturday, Sunday or any bank holiday in the UK.
(c) “Commencement Date”
means the date as specified in Clause A.3.3 and/or A.3.4 as applicable.
(d) “Confidential Information”
means any information disclosed by one party to another under or in anticipation of any Contract which is confidential commercial, financial, marketing, technical information, know-how, trade secrets and/or other information in any form or medium whether disclosed orally or in writing before or after the parties enter into a Contract, together with any reproductions of such information in any form or medium or any part(s) of this information (and "confidential" means that the information, either in its entirety or in the precise configuration or assembly of its components, is not publicly available).
means any agreement between the parties for the supply of Product(s) or the performance of the Services on the basis of an Order (and as may be confirmed in an Order Confirmation), which shall incorporate the Terms.
means the person confirmed as being the “Customer”
in the Order.
(g) “Data Protection Legislation”
means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulations, Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing or replacing the Data Protection Directive 95/46/EC of 24 October 1995 or the Privacy and Electronic Communications Directive 2002/58/EC of 12 July 2002 (as such legislation is amended, extended, re-enacted or consolidated or to such legislation as supersedes that legislation from time to time) and any other European Union legislation relating to Personal Data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.
means any item which is delivered as part of or following the performance of the Professional Services listed in the Order.
(i) “Desktop Engineering”
means – Desktop Engineering Limited, registered number 01985641, and registered office Building 500, Abbey Park, Stareton, Kenilworth, Warwickshire, CV8 2LY and those companies which in relation to Desktop Engineering Limited are subsidiaries, or associated companies, their parent companies and any companies they or their parent companies totally or partly own at any time.
means the hardware (including 3D printers and components), software media, spare parts, consumables and/or materials listed in the Order.
means in relation to any company that company and every other company which is for the time being a subsidiary or holding company or a subsidiary of any such holding company (and the terms “subsidiary”
and “holding company”
shall have the meanings given to them by Sections 736 and 736A of the Companies Act 1985).
(l) “Initial Period”
means the initial term of the Contract, being the period commencing on the date the parties enter into a Contract in accordance with Clause A.3.2 and ending on the expiry of the fixed period (stated in the Order Confirmation) commencing on the Commencement Date or, in the absence of such term being specified, twelve (12) months from the Commencement Date.
(m) “Installation Services”
means the installation services listed in the Order.
means patents, registered designs, trademarks and service marks (whether registered or not), domain names, copyright, database rights, moral rights, design right, and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, performances, computer programs, semiconductor topographies, confidential information, business names, goodwill and the style of presentation of goods or services and in applications for protection of any of the above rights.
means an order for the sale or licensing of Products and/or the performance of Services submitted by the Customer to Desktop Engineering in hard copy form ("Purchase Order"
) or in electronic form (“Electronic Order”
(p) “Order Confirmation”
means a written or electronic acknowledgement which may be issued by Desktop Engineering in response to an Order.
(q) “Personal Data”
as defined under the Data Protection Legislation.
means collectively the Product Charge, System Support Services Charge and Professional Services Charge.
(s) “Product Charge”
means the price payable by the Customer to Desktop Engineering, for the sale or licensing of the Products and (if applicable) the Installation Services, as specified in the Order.
means the Equipment and/or the Software and/or Deliverables.
(u) “Professional Services”
means the professional services which are listed in the Order and which may include any or all of the following: (a) software coding and/or development services; (b) Training; and (c) consultancy services.
(v) “Professional Services Charge”
means the price payable by the Customer to Desktop Engineering, for the performance of the Professional Services and/or sale or licensing of the Deliverables, as specified in the Order.
(w) “Renewal Period”
has the meaning set out in Clause B.2.3 and Clause C.1 (as applicable) of these Terms.
means the Installation Services, the System Support Services and/or the Professional Services.
means (a) the software listed in the Order, (b) any Updates, and (c) any related user manuals or other documentation.
(z) “Standard Business Hours”
for Professional Services will be between 08:30 - 17:30 Monday to Friday excluding public holidays.
the training provided by Desktop Engineering as agreed between the Customer and Desktop Engineering in accordance with these Terms.
(bb) “Sign-Off Form”
means the Sign-Off Form attached to, or referenced in, the Order.
(cc)“System Support Services”
means the system support services listed in the Order whether delivered remotely or on Customer’s site.
(dd) “System Support Services Charge”
means the price payable by the Customer to Desktop Engineering, for the performance of the System Support Services, as specified in the Order.
means these General Terms and Conditions.
means all names, marks, logos, designs, trade dress and other brand designations whether registered or unregistered used in connection with the Products and/or Services.
means subsequent releases and error corrections for the Software which have been purchased from Desktop Engineering by the Customer and installed on the Software.
A.1.2 The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of the Conditions.
A.1.3 Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership.
A.1.4 The words "other"
and the phrase "in particular"
shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible and the word “including”
shall mean “including without limitation”
A.1.5 References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
A.2. APPLICABILITY, OFFERS, QUOTATIONS
A.2.1 Unless expressly stipulated otherwise, these Terms apply to all Contracts between the Customer and Desktop Engineering relating to the sale or licensing of the Products and/or the performance of the Services and supersede all prior or contemporaneous oral and/or written communications, proposals, warranties and representations with respect to the subject matter of the Contract as well as any terms or conditions which the Customer purports to impose or incorporate whether in manuscript or otherwise or which are implied by trade, custom, practice or course of dealing.
A2.2 These Terms may not be varied unless by express written agreement between the parties.
A.2.3 In the event of any inconsistency between any clause or schedule in a Contract, the following order of precedence will apply (in descending order):
(a) the appropriate specific Part B or C (as the case may be) of these Terms;
(b) the general Part A of these Terms;
(c) the Order Confirmation; and
(d) the Order.
A.2.4 Desktop Engineering’s quotations shall not bind Desktop Engineering and shall constitute an invitation to treat and shall, with respect to the prices specified, remain valid for thirty (30) days from date of issue. or the end of any applicable promotional period, if sooner. All Orders placed with Desktop Engineering by the Customer for Products or Services shall constitute an offer to Desktop Engineering which may be accepted by Desktop Engineering. Desktop Engineering' acceptance of an Order shall be in accordance with Clause A.3.2.
A.3.1 Customer may order Products or Services by:
(a) telephone or in person; or
(b) submitting an Electronic Order in the manner directed by Desktop Engineering; or
(c) submitting a Purchase Order to Desktop Engineering (and Customer acknowledges that orders placed under Clause A.3.1 (a) and/or Electronic Orders for certain Products or Services may, at Desktop Engineering discretion, need to be confirmed in a Purchase Order);
in each case specifying the Products or Services required and referencing Desktop Engineering’s quotation number(s) or, in the absence of a quotation number, the date and time of the relevant correspondence (whether by email or otherwise).
A.3.2 Desktop Engineering may accept the Order by:
(a) issuing an Order Confirmation to Customer; or
(b) delivering the Products and/or commencing performance of the Services,
whichever is earliest, at which point and on which date, a Contract shall come into existence between the parties and create a binding commitment for the provision of those Products and/or Services.
A.3.3 The Commencement Date for the provision of Products shall be as set out in the Order Confirmation or as may otherwise be agreed in writing between the parties. In the absence of any written agreement, the Commencement Date shall be the day Desktop Engineering delivers the Products or first makes the Products available to the Customer.
A.3.4 The Commencement Date for the provision of Services shall be as set out in the Order Confirmation or as may otherwise be agreed in writing between the parties. In the absence of any agreement:
(a) the Installation Services will commence as soon as commercially practicable after the date of delivery of the Product and shall conclude on the date of acceptance of the Products (as referred to in Clause B.1.6); and
(b) the Professional Services will commence on the date that Desktop Engineering first start performing the Professional Services (or such other date as may be agreed by the parties) and shall conclude on the date of acceptance of the Deliverable (or such other date as may be agreed by the parties); and
(c) the System Support Services will commence on the date Desktop Engineering first start performing the System Support Services.
A.3.5 The parties agree and acknowledge that, following Desktop Engineering accepting an Order in accordance with Clause A.3.2 above, a legally binding Contract exists between the parties and, following the Commencement Date, the Customer cannot cancel any Order.
A.3.6 For the purposes of placing Electronic Orders, Customer represents and warrants that all of Customer's employees who submit Orders are authorised by Customer to do so.
A.3.7 Desktop Engineering shall cease to provide all Professional Services ordered by the Customer 18 months after the date of the initial Order, unless otherwise agreed in writing with Desktop Engineering.
A.4. PRICES AND PAYMENT
A.4.1 All Prices for Products and/or Services are based on (i) delivery of the Products to, or performance of the Services at, the Customer's address for delivery or performance of the same as specified in the Order; (ii) delivery or performance in the United Kingdom unless otherwise specified in the Order; and (iii) are exclusive of V.A.T. and any other taxes and duties. Installation of Products is only included in the Price if and insofar as this is expressly stated in the Order.
A.4.2 Unless otherwise agreed in writing, Customer shall adhere to the following payment terms relevant to the purchased product. (without deduction or set off)
(a) Standard – Strictly 30 days from date of invoice
(b) Service & Support Contract – Strictly 30 days from date of invoice
(c) Software – Payment in Advance
(d) Hardware – Payment on Delivery
(e) Annual Licence Charge/ Recurring Licence Charge / Rental Licences – Payment in Advance
(f) Training – Payment in advance of the course. See C.2.7 for detail on Training cancellation charges.
(g) Long Term On Site Service Contracts – 7 days from End of Month
A.4.3 Desktop Engineering reserves the right at its discretion to offer the Customer the option to make payment for any Products and/or Services and/or subscribe for the future provision of Services by direct debit to Solid Solution’s account at Santander UK PLC, Birmingham, Sort Code 09-02-22, Account Number 10896341 or such other account as Desktop Engineering may notify to the Customer from time to time.
A.4.4 Desktop Engineering shall have the right to charge the Customer for any and all reasonable legal costs incurred by Desktop Engineering arising out of or in connection with Desktop Engineering recovering its debts from, or otherwise enforcing its rights against, the Customer. Nothing in this Clause A.4.4 shall prejudice any statutory right that Desktop Engineering may have to charge interest on such debts owing.
A.5. IPR OWNERSHIP AND LICENSING
A.5.1 Each party shall retain its own pre-existing IPR. Nothing in any Contract or these Terms shall transfer or otherwise vest in the Customer any ownership in any Software or IPR of a third party.
A.5.2 Licence terms.
(a) Desktop Engineering shall at its option:
(i) procure the grant to the Customer of a licence to use; or
(ii) sublicense to the Customer the right to use
the Software in the terms set out in the specific Parts (B and/or C) of these Terms.
(b) Desktop Engineering and/or the licensor(s) of the Software (and/or any of their independent audit firms) may, upon reasonable notice, examine and audit the records and systems of Customer to ensure compliance with any licence granted or procured by Desktop Engineering.
(c) The Customer may not alter or obscure any proprietary rights notice appearing on any Desktop Engineering or third party supplied Software or materials, and must include such notices on any copies.
A.6. CUSTOMER OBLIGATIONS
A.6.1 The Customer shall fulfil all applicable Customer obligations under a Contract, and acknowledges that:
(a) performance of a Contract by Desktop Engineering is conditional upon the Customer's fulfilment of such obligations; and
(b) Desktop Engineering may charge Customer for any additional services which Desktop Engineering provides as a result of the Customer's failure to do so (the charges for such services being in accordance with Desktop Engineering’s current time and materials rates).
A.6.2 The Customer will co-operate with Desktop Engineering and will provide safe and timely access to its premises and computer equipment, including remote access, adequate working space, facilities and any other services, personnel, information or materials that Desktop Engineering personnel may reasonably require to perform Desktop Engineering’s obligations.
A.7.1 Nothing in this Agreement shall exclude or limit Desktop Engineering’s liability for death or personal injury caused by its negligence or for fraudulent misrepresentation or for any liability that cannot legally be excluded or limited.
A.7.2 Desktop Engineering shall not be liable for any economic loss of whatever nature (whether or not such loss or damage was foreseen, direct, foreseeable, known or otherwise), including loss of anticipated profits, loss of actual profits (direct or indirect), loss of anticipated savings, loss of business, loss of data or for any indirect, special or consequential loss or damage howsoever caused or any losses arising as a result of any third party bringing a claim in respect of any nature whatsoever.
A.7.3 Subject to Clause A.7.1 and A.7.2, Desktop Engineering’s liability in respect of any loss or damage flowing from any one event or series of connected events under any Contract whether for breach of contract or statutory duty, breach of warranty, misrepresentation or in tort (including negligence) will be limited as follows:
(a) in the case of the Products (except for Deliverables) and (if applicable) Installation Services, to the Product Charge;
(b) in the case of the System Support Services, to the System Support Services Charge; and
(c) in the case of the Professional Services (including Deliverables), to the Professional Services Charge,
but in no event shall Desktop Engineering’s aggregate liability under any Contract whether for breach of contract or statutory duty, breach of warranty, misrepresentation or in tort (including negligence) exceed the Price.
A.7.4 Desktop Engineering will not be liable for any delay or failure caused by:
(a) errors in programs, coding information, data or operating instructions supplied by Customer;
(b) the late arrival or non-arrival of material from Customer; or
(c) defects in any Customer hardware or Customer software (including any software licensed to Customer by third parties).
A.7.5 Desktop Engineering shall, if requested by Customer (provided such request is made within seven (7) days of the Commencement Date), provide a broker’s letter summarising any relevant policies of insurance maintained by Desktop Engineering.
A.7.6 Customer acknowledges the extent of Desktop Engineering’s exclusion or limitation of its liability under the Contract and shall insure against or bear itself any loss for which Desktop Engineering has excluded or limited its liability and agrees that Desktop Engineering shall have no further liability to the Customer.
A.8. CONFIDENTIAL INFORMATION
A.8.1 Each party may have access to Confidential Information of the other party under the Contract. A party's Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party's lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
A.8.2 Each party:
(a) shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of the Contract; and
(b) agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
A.9. INTELLECTUAL PROPERTY CLAIMS
A.9.1 Desktop Engineering will use its reasonable endeavours to assign to, or procure for the benefit of, the Customer any IPR indemnity generally made available to Desktop Engineering or at Desktop Engineering’s option made publicly available by any third party manufacturer or distributor of the Products. Customer acknowledges that:
(a) any such indemnity will be subject to such terms and conditions as may be imposed by such third party manufacturer or distributor; and
(b) Desktop Engineering shall not, and shall not be required to, grant any indemnity to Customer for any intellectual property infringement or otherwise.
A.9.2 This Clause states the entire liability of Desktop Engineering and exclusive remedies of Customer for any claim(s) that Products infringe a third party’s IPR.
A.9.3 The express terms and conditions of the Contract shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. In particular, Desktop Engineering does not warrant that Products are fit for a particular purpose unless specifically stated to the contrary in the Order.
A.10.1 Customer may refer to Products and Services by their associated names, provided that such reference is not misleading and complies with any policies and/or instructions made available by Desktop Engineering and, in the case of Trademarks of a third party with such third party’s applicable policies.
A.10.2 Customer may not remove or alter any Trademarks, nor may it include any trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations on any Products or Services. Customer agrees that any use of Trademarks by Customer will inure to the sole benefit of Desktop Engineering (or the owner of such Trademarks).
A.10.3 Customer agrees not to incorporate any Trademarks into Customer's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations.
A.11. DATA PROTECTION
A.11.1 Each Party shall, at its own expense, ensure that it complies with and assists the other Party to comply with the requirements of Data Protection Legislation.
A.11.2 In the event it is established at any time during this agreement that Personal Data is to be processed by the one party on behalf of the other, the parties shall:
(a) immediately enter into a data processing agreement on reasonable terms to be determined by Desktop Engineering to ensure full compliance with Data Protection Legislation; and
(b) indemnify and keep the other party indemnified in full for any and all consequences (including a Personal Data breach) arising as a result of that party’s failure to comply with any of its obligations under this Clause A.11.
A.12. CONTRACT TERMINATION
A.12.1 Either party may terminate a Contract (in whole or in part) immediately by written notice if:
(a) the other party commits a non-remediable material breach of that Contract;
(b) the other party fails to cure any remediable material breach within sixty (60) days of being notified in writing of such breach or in the case of non-payment, fails to cure such breach within seven (7) days of being notified in writing of such breach;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of sections 123 of the Insolvency Act 1986;
(d) an order is made or a resolution is passed for the winding up of the other party or the appointment of a liquidator;
(e) an administrator, administrative receiver or receiver is appointed, or there is an application for the appointment of any of the above or for an administration order, in respect of the whole or any part of the other party’s assets or business; or
(f) the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
A.12.2 Desktop Engineering may terminate a Contract for the provision of Software immediately on written notice to Customer if, for any reason, the third party which licenses such Software to Desktop Engineering cancels or terminates its contract with Desktop Engineering for the provision of such Software or otherwise ceases or suspends Desktop Engineering’s right to grant licences to use the Software.
A.12.3 Following termination of a Contract (for whatever reason):
(a) subject to Clause A.12.5, each party will deliver to the other any property (including any Confidential Information) of the other in its possession or control relating to that Contract, in good condition, reasonable wear and tear excepted;
(b) Desktop Engineering may at its option deliver to Customer any Deliverables (whether finished or unfinished) and Customer shall pay the Professional Services Charge for such Deliverable;
(c) rights and obligations under a Contract (including these Terms) which by their nature should survive, will remain in effect after performance, termination or expiration of the Contract.
A.12.4 Following termination of the Contract by the Customer pursuant to Clause A.12.1, the use of the Software by Customer will continue in accordance with and subject to the terms and conditions of the applicable licence and for the applicable term of the licence provided always that the Customer has paid Desktop Engineering the Price for such Software.
A.12.5 Following termination of the Contract by Desktop Engineering pursuant to Clause A.12.1 or A.12.2, the Customer will forthwith cease to use, and will either return to Desktop Engineering or (at Desktop Engineering option) destroy, all Software (including all copies thereof).
A.12.6 Notwithstanding any early termination of the Contract by either party in whole or in part affecting the Software, Desktop Engineering shall not be obliged to refund to the Customer any of the Price in respect of the Software.
A.12.7 Notwithstanding any termination of the Contract.
(or the licence) for the Software by the Customer prior to the expiry of the Software licence, Desktop Engineering shall not be obliged to refund to the Customer any or all of the Price paid by the Customer in respect thereof.
A.13. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
A.13.1 Desktop Engineering shall be entitled to subcontract all or any part of its obligations under this Contract without the prior consent of the Customer.
A.13.2 Save as provided in Clause A.13.1, neither party shall be entitled to assign, charge or transfer the Contract (or any part or parts thereof) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
A.13.3 This Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
A.14.1 A party is not liable under any Contract for non-performance caused by events or conditions beyond that party’s reasonable control, if the party makes reasonable efforts to perform. This provision does not relieve either party of its obligation to make payments then owing. In the event any such event continues beyond a period of ninety (90) days either party may terminate the Contract.
A.14.2 All written notices required under any Contract or these Terms must be delivered in person or by means evidenced by a delivery receipt or acknowledgement and will be effective upon receipt. Notices communicated by electronic mail or facsimile will be deemed to be written, provided that within twenty-four (24) hours of sending such notice, a copy of the notice is sent by any of the other means permitted under this Clause A.14.2.
A.14.3 Any express waiver or failure to exercise promptly any right under these Terms or any Contract will not create a continuing waiver or any expectation of non-enforcement.
A.14.4 If any provision of these Terms is held invalid by any law or regulation or by any court or arbitrator, such invalidity will not affect the enforceability of other provisions.
A.14.5 To the extent applicable, each party shall comply with the provisions of the Data Protection Act 1988.
A.14.6 The parties each warrant that they have full capacity and authority and all necessary consents to enter into and to perform their respective obligations set out in a Contract.
A.14.7 This Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and the courts of England shall have exclusive jurisdiction to settle any such disputes or claims.
Part B: Specific Terms of Sale and Delivery.
The specific terms in this Part B apply to Contracts made between Customer and Desktop Engineering for the procurement of Products. The Terms in Part A apply to, and form an integral part of, these specific terms.
B.1. PRODUCT DELIVERY
B.1.1 Desktop Engineering will use its reasonable endeavours to meet any delivery date(s) identified or stated in the Order.
B.1.2 If not stated in the Order the delivery schedule for products and services is as follows:
(a) For software license delivery, software media by download and license keys are typically available three (3) days following submission by customer of a Purchase Order and Payment and any associated signed License Order forms and Target IDs.
(b) Desktop Engineering’s earliest Anticipated Commencement Date for Professional Services projects, is typically four (4) to six (6) weeks after receipt of Purchase Order.
(c) System Support Services become available for use immediately upon receipt of Purchase Order & Payment.
B.1.3 The Products shall be delivered by Desktop Engineering to the delivery address indicated by Customer in the Order (provided such address is in the United Kingdom) (the “Delivery Address
”). Without prejudice to Clause B.1.4, the risk of loss and/or damage to the Products passes to Customer at the time of delivery by or on behalf of Desktop Engineering to the Delivery Address.
B.1.4 Title to the Equipment shall be retained by Desktop Engineering until payment in full and in cleared funds is made by the Customer for the relevant Equipment, including any relevant amounts as referred to in Clause A.4. Equipment delivered to the Customer with retention of title may not be resold, pledged or proposed as security for a claim of a third party.
B.1.5 Desktop Engineering may make Product substitutions and modifications that do not cause a material adverse effect in overall Product performance. Unless otherwise stated in the Order, Desktop Engineering may deliver the Products in instalments and invoice for each instalment accordingly.
B.1.6 Customer will have three (3) Business Days after delivery of Products at the Delivery Address to inspect and test Products. In the absence of any written notice to Desktop Engineering reporting any defects, Products will be deemed accepted by Customer three (3) Business Days after receipt at the Delivery Address. In the event that Desktop Engineering installs Products for Customer, acceptance will be deemed to occur upon successful completion of the manufacturer’s standard diagnostic testing by Desktop Engineering of the installed Products. If a defect is reported to Desktop Engineering within the period specified above, the provisions of Clause B.3.2 will apply.
B.2. LICENCE TERMS FOR SOFTWARE PRODUCTS
B.2.1 Where Desktop Engineering is providing Software to Customer, Desktop Engineering shall procure the grant to Customer of (or, at its option, sub-license to the Customer) a non-exclusive and non-transferable licence to use such Software provided to Customer hereunder for its internal use only, subject to:
(a) any restrictions set out in a Contract as to the permitted number of users and CPUs; and
(b) any supplemental licence terms accompanying the Software (Desktop Engineering shall provide Customer with a copy of such supplemental licence terms upon Customer's request).
B.2.2 Desktop Engineering shall provide Customer with a licence to use the Software in accordance with Clause B.2.1 for the Initial Period.
B.2.3 Desktop Engineering shall notify Customer by email at least sixty (60) days before the expiry of the Initial Period and each subsequent Renewal Period that, subject to Clause B.2.4, Customer’s licence to use the Software will automatically renew for a period equal to the Initial Period (“Renewal Period”)
commencing on the day after the expiry of the Initial Period or such Renewal Period (as applicable) and Customer’s account shall be debited in the amount of the Product Charge for the Renewal Period as detailed in the notice.
B.2.4 No later than forty-five (45) days before the expiry of the Initial Period or Renewal Period (as applicable), the Customer must give written notice (in accordance with the provisions of Clause A.14.2) to Desktop Engineering to terminate its licence for the Software, such termination to be effective upon the expiry of the Initial Period or current Renewal Period (as applicable).
B.2.5 Subject to Clause B.2.4, the Customer’s licence to use the Software shall continue to be automatically renewed for subsequent Renewal Periods in accordance with the procedure specified in Clauses B.2.3 and B.2.4.
B.2.6 All IPR in and all other rights not expressly granted to Customer are reserved to the owner of such Software and the owner thereof retains title to and all IPR in all copies.
B.2.7 Except as prohibited by applicable law, Customer may not make copies of Software, other than for archival purposes, or modify, decompile, or reverse-engineer Software.
B.2.8 Customer may not transfer any operating system Software licence with its related Equipment without the prior written consent of Desktop Engineering.
B.3. PRODUCT WARRANTY
B.3.1 Desktop Engineering will use its reasonable endeavours to assign to, or procure for the benefit of, the Customer any warranties generally made available by any third party manufacturer or distributor of the Products. Save as expressly provided in the Order:
(a) Desktop Engineering does not provide any warranty relating to the Products; and
(b) all Products are provided without any obligation for Desktop Engineering to maintain or support such Products.
B.3.2 Customer's sole and exclusive remedy and Desktop Engineering’s entire liability for breach of any warranties, conditions, terms, representations, statements, undertakings and/or obligations in relation to the Products will be (at Desktop Engineering option): (a) the repair of defective Product; (b) the replacement of defective Product or (c) the issuance of a credit note to the Customer in respect of such Product. Title in all defective Equipment (or parts thereof) which are removed shall transfer back to Desktop Engineering.
B.3.3 No warranty will apply to any Product which has been:
(a) modified, altered or adapted without Desktop Engineering' written consent;
(b) abused or used in a manner other than in accordance with the relevant manual;
(c) repaired by any third party (other than by Desktop Engineering or any third party contracted by Desktop Engineering to perform any of Desktop Engineering obligations under any Contract);
(d) improperly installed by any party other than Desktop Engineering (or any third party contracted by Desktop Engineering to perform any of Desktop Engineering obligations under any Contract); or
(e) used with equipment or software not covered by the warranty, to the extent that the problems are attributable to such use.
Part C: Specific Terms of Services.
The specific terms in this Part C apply to any Contracts made between Customer and Desktop Engineering for the performance of Services (and delivery of any Deliverables) confirmed in the Order. The Terms in Part A apply to, and form an integral part of these specific terms.
C.1. SYSTEM SUPPORT SERVICES
C.1.1 The Customer shall subscribe for the provision of the System Support Services for the Initial Period.
C.1.2 Desktop Engineering shall notify the Customer by email at least sixty (60) days before the expiry of the Initial Period and each subsequent Renewal Period that, subject to Clause C.1.3, Customer’s subscription will automatically renew for a period equal to the Initial Period (“Renewal Period”) commencing on the day after the expiry of the Initial Period or such Renewal Period (as applicable) and the Customer’s account shall be debited in the amount of the System Support Services Charge for the Renewal Period as detailed in the notice.
C.1.3 No later than forty-five (45) days before the expiry of the Initial Period or Renewal Period (as applicable), Customer must give written notice (in accordance with the provisions of Clause A.14.2) to Desktop Engineering to terminate its subscription for the System Support Services, such termination to be effective upon the expiry of the Initial Period or current Renewal Period (as applicable).
C.1.4 Subject to Clause C.1.3, the Customer’s subscription for the System Support Services shall continue to be automatically renewed for subsequent Renewal Periods in accordance with the procedure specified in Clauses C.1.2 and C.1.3.
C.1.5 Desktop Engineering will acknowledge receipt of the Customer’s notice given under Clause C.1.3 and shall confirm the effective date of termination.
C.1.6 In respect of System Support Services delivered remotely, the Customer:
(a) agrees that Desktop Engineering may access Products remotely at the Customer's site, and may process and store Product data in order to remotely monitor, manage and service Products (all such data will be treated by Desktop Engineering as Customer Confidential Information, except that the Customer permits disclosure for the purposes of fulfilling the Contract);
(b) commits to procure and maintain a Desktop Engineering-specified bridge or gateway appropriate to the systems or networks involved, at Customer's expense; and
(c) assumes responsibility for all telecommunications and internet access charges related to the remote Services.
C.1.7 If the Customer fails to permit or facilitate the remote provision of System Support Services, Desktop Engineering may decline to deliver the same and charge such additional charges or impose such other conditions for the delivery of Services which would otherwise be provided remotely, or revoke any applicable warranties or commitments.
C.1.8 System Support Services delivered to the Customer's sites in the United Kingdom will be for the systems indicated on the relevant Order (respectively, "Customer Sites" and "Covered Systems"). Customer will give Desktop Engineering at least thirty (30) days’ written notice prior to relocating Covered Systems, which notice must specify the new site. Support of relocated systems is subject to inspection and re-certification of the relocated systems at Desktop Engineering’s applicable time and materials rates
C.1.9 The Customer will perform routine system preventative maintenance and cleaning. Prior to requesting support from Desktop Engineering, the Customer will comply with all applicable supplier’s operating and troubleshooting procedures or such other procedures as may otherwise be provided by Desktop Engineering. If such efforts are unsuccessful in eliminating the malfunction, Customer will promptly notify Desktop Engineering. Customer will establish and maintain a procedure external to Covered Systems so that Customer can reconstruct lost or altered files, data or programs.
C.1.10 Requests for System Support Services may be made only by the Customer personnel who possess the necessary expertise and training (as from time to time defined by Desktop Engineering) to diagnose and resolve system and software malfunctions with direction by Desktop Engineering.
C.1.11 System Support Services do not include services required due to:
(a) improper use, abuse, accident, or neglect;
(b) alterations, modifications, or attempts to repair Covered Systems that Desktop Engineering has not authorised;
(c) causes external to a Covered System, such as failure to maintain environmental conditions within the operating range specified by the manufacturer;
(d) attachment of a Covered System to equipment, software, or other items not provided by Desktop Engineering;
(e) re-locations or attempts to relocate Covered Systems; or
(f) failure to maintain software and Covered Systems at Desktop Engineering-specified minimum release levels or configurations necessary to keep a Covered System within the terms of Desktop Engineering’s applicable end of life support policy, or to properly install remedial replacement parts, patches, software updates or subsequent releases as directed by Desktop Engineering,
and any System Support Services Desktop Engineering delivers as a result of any such event will be invoiced separately at Desktop Engineering’s applicable time and materials rates and are subject to the applicable contract.
C.2. PROFESSIONAL SERVICES
C.2.1 Desktop Engineering grants Customer a non-exclusive, non-transferable licence to use the Deliverables solely for its own business purposes and such other purposes (if any) as may be specified in the Order.
C.2.2 Deliverables shall be subject to the terms for acceptance as set out in the Acceptance Criteria. Acceptance shall be deemed to occur upon the earlier of the following:
(a) successful completion of the acceptance tests relating to such Deliverable(s);
(b) use by the Customer or any third party on behalf of the Customer (other than, for this purpose, Desktop Engineering) of the Deliverable(s) other than for acceptance testing purposes;
(c) failure by the Customer to carry out (either at all or within seven (7) days of any request to do so by Desktop Engineering) any acceptance tests required to be undertaken by Customer; or
(d) signature by Customer of the Sign-Off Form.
C.2.3 If the Customer wishes to cancel any or all of the Training it shall give Desktop Engineering notice in writing as soon as possible upon making such decision.
C.2.4 Subject to C.2.5 if the Customer has paid in advance for such Training, the Customer shall be entitled to apply for a refund of the amount paid in respect of Training fees less the applicable cancellation fee as set out in C.2.7 below.
C.2.5 If any amount paid by the Customer in advance for such Training was either:
a) invoiced at a discounted price; or
b) incapable of being quantified due to the Training being part of a bundle of Professional Services,
Desktop Engineering reserves the right to determine in its sole discretion (acting reasonably and in good faith,) the value of such Training and any applicable refund.
C.2.6 If the Customer has not paid in advance for such Training, or if the amount paid for such Training has been discounted or offered free of charge by Desktop Engineering, Desktop Engineering reserves the right, upon notice of any such cancellation, to invoice the Customer for the applicable cancellation fee (as set out in C.2.7 below) based upon the list price of the Training fees.
C.2.7 The cancellation fees shall be as follows:
Period when notice is given Cancellation Fee
15 (fifteen) or more days prior to the date of Training 0%
14 (fourteen) days or less prior to the date of Training or in the event of non-attendance £150 per day
C.2.8 The Customer shall pay the invoice for any cancellation fee in full and in cleared funds within 20 days of the date of invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
C.2.-9 With the exception of Training courses provided by Desktop Engineering under a Solidworks or SolidCAM Training Passport, a substitute delegate may be named at any time before the commencement of the Training course. Desktop Engineering will not charge for making a substitution.
C.2.10 It may be necessary for Desktop Engineering to cancel, postpone, amend or alter the Training. In such cases the Customer shall be contacted as soon as possible and given the option of re-scheduling. The Customer shall not be entitled to a refund of any sums already incurred in respect of the ordering of Training.
C.2.11 All Training ordered by the Customer will expire 18 months from the date of the initial order, unless otherwise agreed in writing with Desktop Engineering.
C.2.12 Any day-rate quoted is based upon an eight (8) hour day.
C.2.13 For an onsite visit, there will be a minimum charge of eight (8) hours unless otherwise agreed by Desktop Engineering Limited in writing or by email at time of booking visit.
C.2.14 Professional Services will only be performed during the Standard Business Hours unless otherwise agreed with Desktop Engineering. Desktop Engineering reserves the right to charge an additional hourly fee for services rendered outside of Standard Business Hours. Refer to C.7.4 for detail on the out of hour charges.
C.3 ON-SITE MATERIALS
C.3.1 The Customer will segregate, safeguard and designate as the property of Desktop Engineering all tools, parts, spares, equipment and materials placed on a Customer site and for which title is not transferred to Customer ("On-Site Materials")
C.3.2 On-Site Materials may only be used by authorised persons of the Customer. The Customer will have no right or interest in the On-Site Materials, and will not grant any liens or security interests therein. The Customer assumes all risk of loss or damage to On-Site Materials that may occur prior to their return and receipt by Desktop Engineering.
C.3.3 Within ten (10) days after termination or expiration of any Contract, Customer will deliver to Desktop Engineering any On-Site Materials related to such Contract, with a bill of lading, freight charges prepaid and fully insured.
C.4.1 The Customer will not, without the prior written consent of Desktop Engineering, recruit any personnel (including any personnel of Desktop Engineering) assigned by Desktop Engineering to perform any Services until one (1) year after completion of the applicable Services.
C.4.2 If the Customer hires personnel in violation of this Clause C.4, the Customer will immediately pay Desktop Engineering liquidated damages in an amount equal to the hired employee’s total compensation for the six (6) months preceding the date of hiring.
C.5. SERVICE WARRANTIES
C.5.1 Desktop Engineering warrants that it will (i) perform the Services in a good and workmanlike manner and (ii) use its reasonable endeavours to ensure the Services are performed with due skill, care and diligence.
C.5.2 The Customer's sole and exclusive remedy and Desktop Engineering entire liability for breach of the above warranty will be re-performance of Services within a reasonable time following notification in writing by Customer to Desktop Engineering of such breach.
C.5.3 Any claim for breach of the above warranty must be made in writing and notified to Desktop Engineering within sixty (60) days of performance of the Services at issue.
C.6. IPR OWNERSHIP AND LICENCE TERMS FOR SERVICE DELIVERABLES
C.6.1 Desktop Engineering shall own all IPR in the Deliverables. Rights not expressly granted under any Contract are reserved to Desktop Engineering. The Customer's rights to use Deliverables are set out in Clause C.6.2 below.
C.6.2 Licence terms.
(a) Desktop Engineering grants to Customer a non-exclusive and non-transferable licence to use Deliverables for its internal use only, subject to:
(i) any restrictions set out in the Order as to the permitted number of users and CPUs; and
(ii) any supplemental licence terms accompanying the Deliverable or as specified in the appropriate Order (if any).
(b) Any tools provided by Desktop Engineering to Customers may be accessed only by authorised Customer contacts for the sole purpose of diagnosing and resolving problems on Covered Systems. The provision of an Update will not alter any warranty on the Software previously licensed, and such Updates may be used or accessed only in connection with the use of Covered Systems.
(c) Except as prohibited by applicable law, Customer may not:
(i) make copies of Deliverables, other than for archival purposes; or
(ii) modify, de-compile, or reverse-engineer Deliverables.
C.7. PRICES AND PAYMENT
C.7.1 The charges for Services are included in the Price. Subject to Clause C.7.2, charges for Services shall be payable in advance and payable, monthly, quarterly or annually as stated in the Order (or as otherwise agreed in writing between the parties).
C.7.2 Invoices for Professional Service Charges shall be rendered upon completion of Professional Services or monthly in the event the duration of Professional Services exceeds one (1) month or as otherwise agreed in writing between the parties.
C.7.3 The stated Professional Service Charges and System Support Charges are, unless otherwise expressly stated in the Order, exclusive of the following items (for which the Customer is responsible):(a) reasonable travel expenses associated with any consulting services in the amount actually incurred by Desktop Engineering(b) reasonable and necessary out-of-pocket expenses associated with consulting services; (c) costs incurred by Customer or its employees in connection with their participation in educational services; (d) transportation and insurance charges related to On-Site Materials; and (e) the costs of operating supplies and accessories.
C.7.4 Desktop Engineering reserve the right to charge 1.5 times the day-rate specified in a quote for any Professional Services when those services are rendered outside Standard Business Hours. The rate will be 2.0 times the day-rate specified during any pre-agreed Saturday or Sunday or bank-holiday event.
C.8.1 The Customer acknowledges that Services are solely for Customer's internal use, and Customer may not provide, lease, or resell Services, directly or indirectly, to any third party, unless, and only to the extent that, the Customer is authorised by Desktop Engineering in writing to do so.