Terms and Conditions of Kenda Matric Ltd (‘KML’)

1. Nature of these terms

1.1. These terms shall apply to all orders for Goods and Services accepted by KML, and supersede any previous terms.

1.2. Acceptance by KML of any order for Goods or Services is conditional upon acceptance by the Client of these terms, which shall override all other terms, whether express, implied or otherwise, and including (but not limited to) terms, conditions or stipulations contained in any purchase order or other writing from the Client or otherwise stipulated by the Client, and which are at variance with or additional to these terms.

1.3. No other terms and no subsequent variation shall be binding unless specifically accepted in writing.

1.4. KML shall not be bound by the placing of an order until and unless KML has issued an Order Acceptance, or until delivery of any hardware or software, or until performance of any services has commenced (whichever happens first).

1.5. KML and the Client mutually acknowledge that, in entering into any contract under these Terms, they do not do so on the basis of or relying on any representation, warranty or other provision except as expressly provided in these Terms or in any Order Acceptance, and accordingly all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law, including representations and warranties as to the quality or fitness of Goods for any particular purpose. Any liability or remedy for innocent or negligent misrepresentation is expressly excluded.

2. Services (including software developed or modified in the course of Services)

2.1. KML will provide such services as may be agreed (‘the Services’), so far as is reasonably practicable within any agreed timescale, and with all proper skill and care and in accordance with any relevant accepted standards, methodologies, and guidelines. KML's method of work (including devising appropriate working strategies) will be KML's own.

2.2. KML and its Consultants are professionals who will use their own initiative as to the manner in which the Services are delivered. KML will at all times take due consideration of the Client's objectives, requirements and constraints and endeavour, where reasonably possible, and using all of its skill and judgement, to undertake the Services in such a way as to not detrimentally affect those objectives, requirements, constraints and endeavours. KML will determine the time and place at which it will carry out the Services, and neither it nor any Consultant engaged in performing the Services will be subject to control by the Client as to the nature, place, time or manner in which its services are to be provided. KML reserves the right to decide which personnel to deploy in providing the Services, and to make changes from time to time; KML does not make a commitment that the Services will be performed by any particular individual(s).

2.3. Where any Services are to be performed on the Client’s premises, the Client will afford to KML such access to the Client’s premises, facilities, documents, and systems, and such cooperation of the Client’s staff as may in KML's opinion be reasonably necessary, and will ensure KML's personnel have immediate access to any relevant Health and Safety policies, with which KML will make every reasonable effort to comply.

2.4. Where any Services are to be performed on KML’s premises, KML will provide for the use of its own staff engaged in performing Services such equipment as may reasonably be required for performing the Services, including (where necessary) adequate computer and voice- and data-communications equipment (save that the Client shall provide any necessary specialist equipment); the Client will provide all necessary access to the Client’s computer network at the appropriate level, including facilities for remote access where necessary.

2.5. The Client will nominate a representative having adequate knowledge of the project as the prime point of day to day contact for KML with the Client, and whom KML may accept as having authority to bind the Client on minor matters relating to any contract made under these terms; the Client may change its nominated representative at any time by written notice to KML.

2.6. Where any estimate of charges is given (whether for Services to be provided on a Fixed Price, or a Time and Materials basis), such estimate is provided by KML in good faith based on information provided by the Client. KML reserves the right to adjust the estimate if the Client has failed to disclose or has misstated any information on which KML has relied in estimating its charges in any material particular.

2.7. Where it is agreed that the Services will be provided on a ‘Time and Materials’ basis, KML will keep accurate records of times spent and reimbursable expenses incurred; will produce them to the Client for inspection on request; and will ensure that all invoices are accompanied by a summary of all such times and expenses.

2.8. Where it is agreed that the Services will be provided on a ‘Time and Materials’ basis up to a maximum figure, KML does not (save as expressly stated) warrant that such maximum figure will be sufficient to complete the task(s) specified.

2.9. KML reserves the right to decline to provide any advice and assistance outside the scope of Services specifically agreed between the parties, even if KML may previously have provided such additional advice and assistance.

3. Copyright and Intellectual Property Rights in relation to Services

3.1. Any and all of the copyright, trade marks, trade names, patents and other intellectual property rights created, developed, subsisting or used in or in connection with any software or other deliverable produced under these terms (‘the Deliverable’) are and shall remain the sole property of KML; the Client shall not at any time or in any way question or dispute the ownership by KML thereof.

3.2. The Client shall upon payment of KML's fees and expenses have licence to use the Deliverable on the following terms:

3.2.1. The licence is non-exclusive, non-transferrable, perpetual, worldwide, and royalty-free

3.2.2. The Client may use the Deliverable within the Client’s own business

3.2.3. Where the Deliverable is software, the licence includes the right to modify the software, provided that the Client acknowledges that if the software is modified other than by KML, KML cannot thereafter undertake to support the software

3.2.4. Any copyright statement and/or confidentiality notice on any Deliverable must be faithfully reproduced on all copies thereof.

3.2.5. The Client may not otherwise sublicense, transfer, or otherwise dispose of the right to use the Deliverable.

3.2.6. For the purposes of this clause, the term ‘Client’ includes any holding, subsidiary, or associated company of the Client.

3.3. KML warrants that it has full authority to grant such licence.

3.4. Any other rights in the nature of Intellectual Property Rights arising in the course of the Services shall become and remain the property of KML.

3.5. Neither KML nor the Client will cause or permit anything which may damage or endanger any rights in the nature of Intellectual Property Rights belonging to the other (or the other's title to such rights), and will not assist or allow others to do so;

3.6. The Client warrants that any specification design or instructions provided to KML for the purpose of any contract under these terms shall not cause KML to infringe rights in the nature of Intellectual Property Rights belonging to any third party, and the Client shall indemnify KML in full against all costs, charges, claims and expenses incurred directly or indirectly by KML as a result of any alleged such infringement (including the costs of defending such a claim on the indemnity basis).

4. Goods: This term applies to any Goods to be supplied by KML.

4.1. ‘Goods’ includes both hardware and (so far as the context permits) software (excluding software developed or modified in the course of Services provided under a contract under these terms), whether supplied by way of sale, hire, loan, or on licence.

4.2. Prices

4.2.1. The price of Goods is based on the cost prevailing at the date of KML's Order Acceptance; KML reserves the right to adjust the price by such amount as may be necessary to cover any increase affecting KML after that date attributable to market conditions prevailing at the date of delivery to the Client. ‘Market conditions’ include (but are not limited to) any direct or indirect increase in any foreign exchange rates relating to the Goods or in the cost of labour, materials, handling, manufacture, supply or transport, or such costs as may be incurred by KML in complying with obligations imposed by law.

4.2.2. Where a price for more than one item of Goods is quoted, the price may be based on the quantity specified, and KML reserves the right to adjust the price if orders are placed for a different quantity, or if the quantity actually delivered to the Client differs (for any reason) from that specified in any quotation.

4.2.3. The price of the Goods is based on delivery to the address specified, and on any relevant specifications; it is subject to adjustment in the event of delivery to a different address. or in the event of any modification (either at the request or with the consent or knowledge of the Client).

4.3. Drawings, etc.

4.3.1. All drawings, weights, dimensions and the descriptions and illustrations contained in any sales literature and price lists are approximate only, and shall not form part of any contract under these Terms. Drawings or technical documents are for the use or information of the Client alone, and shall not be copied, reproduced or communicated to any third party without KML's prior written consent.

4.4. Delivery and Installation

4.4.1. Delivery dates are estimates only, and unless KML expressly agrees in writing to be bound by a delivery date as being of the essence of any contract under these Terms, it shall not be liable for direct, indirect or consequential loss arising from part, late or non‑delivery.

4.4.2. Where KML expressly agrees in writing to be bound by a delivery date, KML's liability (subject to any other of these Terms) in respect of any loss or damage suffered by the Client which is directly attributable to such part, late or non‑delivery shall be limited to the value of any Goods not delivered.

4.4.3. KML shall inform the Client when any part or all of the Goods is ready for delivery, and the Client shall inform KML of the location for delivery if the same does not appear on or differs from the address stated in any Order Acceptance. If the Client fails to give to KML instructions for delivery within twenty‑one (21) days of such notification by KML, KML may without further reference to the Client arrange for storage of the Goods. Charges for storage shall be paid by the Client and the Goods shall be subject to a lien for such storage charges. KML may also invoice for the Goods, and payment shall be due as if delivery had been made.

4.4.4. Delivery shall be made during normal working hours (excluding local and national holidays). If the Client requires delivery to be made outside such times, an additional charge shall be payable. KML reserves the right to deliver in more than one delivery.

4.4.5. Where necessary. the Client shall prepare the area of delivery and installation for the Goods and provide free access to the location and to any services or facilities that may be required to deliver and install the Goods. Where these have not been prepared or provided and as a result KML is prevented from carrying out delivery or installation at the pre‑arranged day and time, KML shall be entitled to charge.

4.5. Damage, Shortage or Loss in Transit

4.5.1. KML accepts responsibility for damage, shortage or loss in transit if:

4.5.1.1. notified to KML and the carrier (if not delivered by KML) within three days of receipt or proposed date of receipt of the Goods by the Client; and (where applicable)

4.5.1.2. the Goods have been handled by the Client in accordance with KML's or the carrier's conditions of carriage or handling stipulations.

4.5.2. Where KML accepts responsibility under this Clause, it shall, at its sole option, replace or repair (as the case may be) any such Goods proved to KML's satisfaction to have been lost or damaged in transit.

4.6. Title to the Goods and the Passing of Risk

4.6.1. Risk in Goods shall pass to the Client upon delivery by KML or its carriers to the Client or his agent and KML shall not be liable for any loss or damage to the Goods from the time that the Goods are so delivered.

4.6.2. Notwithstanding delivery, installation, acceptance and passing of risk, title to any Goods to be sold to the Client shall not pass to the Client and shall be retained by KML until full payment of all monies due on any account has been received by KML from the Client.

4.6.3. Until such time as title in Goods has passed to the Client:

4.6.4. the Client shall, subject to KML's rights hereunder

4.6.4.1. hold the Goods as KML's fiduciary agent and be entitled to use the same in the ordinary course of the Client's business; but shall not sell or part with possession thereof;

4.6.4.2. store the Goods separately from any goods belonging to the buyer or any third party, and keep the Goods clearly marked and identifiable as being the property of KML;

4.6.4.3. cause to be added to its audited accounts for each year a note that Goods supplied by KML are subject to retention of title and shall be the property of KML until full payment of has been made ; and

4.6.4.4. insure such Goods to their replacement value naming KML as the loss payee until all payments to KML have been made; the Client shall forthwith upon request provide KML with a certificate of such insurance.

4.6.5. KML:

4.6.5.1. shall be entitled to enter the Client’s premises upon reasonable notice to verify the Client’s compliance with the preceding clause;

4.6.5.2. shall be entitled to repossess at any time any Goods in which title remains vested in KML and for this purpose at any time and without notice KML may enter upon any premises in which the Goods or any part thereof are installed, stored or kept, or are reasonably believed so to be;

4.6.5.3. shall be entitled to seek a court injunction or equivalent judicial order under the applicable law of this Agreement to prevent the Client from selling, transferring or otherwise disposing of the Goods.

4.6.6. Warranty

4.6.6.1. KML warrants to the Client that the Goods sold by KML are believed to be free from defects of workmanship and materials and KML undertakes, subject to the following terms, to replace or, at its option, to repair any Goods purchased hereunder (other than rubber parts and/or printing heads and/or consumable items) found to be defective within 90 days (or such other period as may be specified) of the date of original delivery and installation, where such defects are a result of faulty materials or workmanship.

4.6.6.2. Each claim of the Client under this warranty shall be sent in writing to KML specifying the type of Goods and nature of the defect. Upon receipt of such written notice, KML or its agent or representative shall have the option of testing or inspecting the Goods at their location or of having the Goods returned to KML or such other address as may be notified to the Client, freight pre‑paid by the Client. Replacement parts, items or Goods shall be sent by KML to the Client ordinary freight pre‑paid.

4.6.6.3. In the event of any claim presented under warranty being found on investigation by KML either to be outside the scope or duration of this warranty or the fault being unconfirmed, then the costs of such investigation and repair shall be borne by the Client.

4.6.6.4. KML shall not be liable at any time for damage or defects in the Goods or parts caused by improper use, abuse, mismanagement or by using the Goods outside any specifications detailed in the manuals and documentation relating to the Goods or outside the specific application of the Goods.

4.6.6.5. This warranty shall not be assigned without the prior written consent of KML.

4.6.7. Copyright, Patents, & Trade Marks in the Goods

4.6.7.1. The Client acknowledges that any and all of the trade marks, copyright, patents and other intellectual property rights used or subsisting in or in connection with the Goods including software, hardware and other parts thereof in which KML or the respective manufacturer, developer or third party has an interest are and shall remain the sole property of KML or such manufacturer, developer or third party. The Client shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership thereof.

5. Payment

5.1. All sums due under any contract under these terms shall be invoiced and paid in UK pounds sterling.

5.2. Where payment for Services is to be made on a time and materials basis:

5.2.1. KML may invoice on completion or (if longer than one month) monthly (unless otherwise specified)

5.3. The Client will reimburse KML for all materials purchased by KML and used, and for all third party services used, in the course of the Services, subject to authorisation.

5.4. The Client will pay KML's charges plus VAT (where applicable) within 14 days of invoice (unless otherwise agreed).

5.5. The Client shall not be entitled to make deductions or deferments in respect of any disputes or claims whatsoever with or against KML (other than, where payment is to be made on a time and materials basis, as to the periods for which Services have actually been provided, the expenses actually incurred, or the reasonableness of those expenses), until and unless the same have been agreed.

5.6. If any of KML's invoices becomes overdue:

5.6.1. the Client will pay interest on all sums overdue from date of invoice until date of payment at 2% per month or part month compounded with monthly rests, as well before as after any judgment ,in addition to such fixed sums as would become payable if s1(1) of the Late Payment of Commercial Debts (Interest) Act 1998 were to apply; and

5.6.2. KML's obligations under any contract under these terms shall be suspended until all overdue sums (and any interest thereon) are paid, and any agreed timescale may at KML's option be extended accordingly.

5.6.3. Whilst any payment due to KML is more than 7 days overdue, KML may terminate any contract under these terms forthwith by notice to the Client.

6. KML’s Liability

6.1. The Client acknowledges that:

6.1.1. the accuracy and value of any advice KML may give depends fundamentally on the accuracy and comprehensiveness of the information which the Client provides to KML and on which that advice is based

6.1.2. whether the results the Client desires are obtained will depend fundamentally on the extent to which that advice is implemented

6.1.3. that neither the desired results, nor any particular results, can be guaranteed.

6.2. NEITHER GOODS NOR SERVICES PROVIDED BY KML ARE INTENDED FOR USE OR APPLICATION IN CONNECTION IN ANY WAY WITH HIGH RISK SYSTEMS, AND KML SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH HIGH RISK SYSTEMS. The Client warrants that none of the systems in connection with which the use of Goods or Services will be requested will be High Risk Systems. ‘High Risk Systems’ means systems in environments requiring fail-safe performance (such as nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems), in which failure could lead directly to death, personal injury, or severe physical or environmental damage.

6.3. KML shall not be liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with any contract under these terms in excess of £1,000,000, except to the extent that such liability may not be lawfully excluded or limited.

6.4. KML shall not be liable to the Client for any loss or damage whatsoever or howsoever caused arising from any misrepresentation, whether innocent or negligent, except to the extent that such liability may not be lawfully excluded or limited.

6.5. Notwithstanding the generality of the above, KML expressly excludes liability for consequential loss or damage which may arise or for loss of profit, business, revenue, goodwill or anticipated savings.

6.6. In the event that any exclusion or other provision contained in these terms be held to be invalid for any reason and KML becomes liable for loss or damage that could otherwise have been limited, such liability shall be limited to £1,000,000.

6.7. KML shall not in any event be liable for any claims unless they are notified to KML in writing within twelve months of the cause of action accruing.

6.8. KML does not exclude or limit liability for death or personal injury to the extent only that the same arises as a result of its negligence or that of its employees, agents or authorized representatives.

6.9. The Client acknowledges that KML’s fees and all other material terms have been negotiated between the parties having regard to their existing insurance arrangements and on the basis that liability shall rest as provided by this clause; each party expressly acknowledges that in their respective opinions the provisions of this clause satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977.

6.10. The provisions of this clause shall operate for the benefit both of KML and of any personnel engaged by KML to perform the Services.

7. Termination and Consequences

7.1. Either party may terminate any contract for Services under these terms on 30 days written notice, unless that contract provides that it cannot be terminated by notice.

7.2. In addition to any other provisions for termination, the innocent party may, by notice in writing to the other, terminate any contract under these terms forthwith if any of the following events shall occur, namely:

7.2.1. A material or non-remediable breach of the Agreement by the other party (including failure to pay any sum due within 7 days of the due date); or

7.2.2. A breach of this Agreement (other than a material or non-remediable breach) which is not remedied within 7 days of notice by the party requiring it to be remedied; or

7.2.3. Any resolution being passed or petition being granted to wind up the other party's business (other than for reconstruction or amalgamation), or if the other party shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by virtue of any relevant statutory provisions under the applicable law to be unable to pay its debts.

7.3 Upon lawful termination of a contract for Services for whatever reason, the Client shall pay to KML for all work done under this Agreement (assessed in the case of an agreement to perform Services for a fixed price on a pro rata basis as a proportion of KML's Fee by comparing the time spent on the Services by KML up to termination against the total anticipated time required of KML for completion of the Services) together with all expenses incurred up to the date of termination; provided that if termination is other than for breach on the part of KML, KML shall nevertheless be entitled to receive

7.3.1 if the Services are to be paid on a fixed price basis, the full estimated contract fee, or

7.3.2 if the Services are to be paid on a time and materials basis, the Consultant's Fee calculated on the Charging Basis for each day on which Services would (in the absence of such termination) have normally been provided, up to the earliest time at which the Client could lawfuly have terminated the Schedule.

7.4 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies either party may have under this Agreement or in Law, and any rights or obligations of a continuing nature shall survive.

8 Confidentiality

8.1 Each party (‘Receiver’) recognises that information disclosed to it by the other (‘Discloser’) in the course of the negotiation of and the performance of any contract under these terms will contain and incorporate confidential information in which the Discloser has an interest. Each party will maintain as confidential and will not use any part or the whole of such information directly or indirectly disclosed by the other (or information which the Receiver has gained from such disclosure) until or unless such information becomes public knowledge through no fault of the Receiver.

8.2 The protection to be accorded to the such information does not and shall not extend to any information which it can be proved by documentary evidence produced by the Receiver:

8.2.1 is already known to the Receiver or in its possession before the disclosure hereunder free from any obligation to keep it confidential; or

8.2.2 is or becomes publicly known through no wrongful act or default of the Receiver; or

8.2.3 is received by a third party without similar obligations of confidence and without breach of these terms; or

8.2.4 is already possessed or independently developed by the Receiver; or

8.2.5 is disclosed to a third party by the Discloser without similar restrictions on that third party's rights of disclosure; or

8.2.6 is approved for release by written authorisation of the Discloser, or

8.2.7 is required to be disclosed by law (whether by a court having competent jurisdiction, or by any governmental or regulatory body), provided that (where practicable) the party required to make such disclosure shall give the other party 7 days notice before making such disclosure so as to afford the other fair opportunity to make representations to the appropriate authority.

9 Force Majeure

9.1 If either party is prevented or delayed in the performance of any of its obligations by force majeure, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue.

9.2 'Force majeure' shall be deemed to be any cause affecting performance arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including the following:

9.2.1 strikes, lockouts or other industrial action

9.2.2 civil commotion, riot, invasion, war threat or preparation for war

9.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic, bad weather or other natural physical disaster

9.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport

9.2.5 political interference with the normal operations of any party

9.2.6 illness of or accidental injury to any of KML's personnel (whether or not caused or contributed to by such person’s own negligence)

9.2.7 mechanical breakdown

9.3 KML's obligation to perform any contract under these Terms shall be suspended where the presence of such hazards as defective structure, defective or dangerous means of access, noxious, toxic, combustible, explosive or radioactive substances or any other cause renders any premises where the contract is to be performed dangerous (in KML's opinion) to any of KML's staff.

10 Non-poaching of staff

The parties recognise that the loss of experienced personnel may have a serious effect on a party’s business.

10.1 The parties therefore mutually agree that neither party shall without the other’s prior written consent either during or within six months after the termination or expiry of the most recent contract under these terms, engage, employ or otherwise solicit for employment any person who during the relevant period was an employee or sub‑contractor of the other and with whom such party had material contact in connection with any contract under these terms.

10.2 In the event of breach of this term, the party in breach will pay the other party by way of liquidated damages the greater of (1) three times the person's annual salary inclusive of all benefits at time of their resignation or departure, or (2) three times the new annual salary or fee inclusive of all benefits.

10.3 This provision shall not apply in respect of any individual who ceased to work for the innocent party at least six months prior to the engagement, nor to any individual who can be proved to have responded to a bona fide published recruitment advertisement where the individual has not been recruited to work for or with individuals or a department with whom such individual had material contact in connection with any contract under these terms.

11 Miscellaneous

11.1 Assignment
No agreement under these terms shall be assigned by either party without the prior written consent of the other.

11.2 Publicity
KML may include reference to the fact that it is providing Services to the Client in its publicity material, in terms to be approved by the Client (such approval not to be unreasonably withheld). Subject thereto, except with the written consent of the other party, neither party shall make any press announcements or publicise this Agreement in any way.

11.3 Nature of a contract under these terms
A contract under these terms is a contract between independent businesses; neither KML nor its Consultant (whether or not named in this Agreement) have the power to enter binding contracts on behalf of the Client; no Consultant deployed by KML in providing services under this Agreement is or will during such contract be or become an employee of the Client.

11.4 Taxation and employee benefits
KML shall be solely responsible for making all appropriate payments to or in respect of all its Consultants, including salary, sickness SSP and holiday pay, pensions, and other employee benefits, and any required PAYE deductions for tax and National Insurance contributions; KML agrees to indemnify the Client in respect of any claims relating to any such items. KML's personnel shall not be entitled to any rights under employment law against the Client nor any End-Client under any circumstances.

11.5 Severability
If any of these terms is held by any Court or other competent authority to be wholly or partially void, invalid, or unenforceable such term shall be severed from the body of these terms (which shall continue to be valid and enforceable to the fullest extent permitted by Law).

11.6 Waiver
Failure or neglect by either party to enforce at any time any of the provisions hereof shall:

11.6.1 not be construed nor shall be deemed to be a waiver of its rights hereunder

11.6.2 not in any way affect the validity of the whole or any part of any contract under these terms

11.6.3 not prejudice its rights to take subsequent action.

11.7 Headings
The headings of these terms are inserted for convenience of reference only and are not intended to be part of or to affect their meaning or interpretation.

11.8 Notices
Any notice to be given by either party to the other shall be in writing and may be sent by recorded delivery to the address of the other and shall be deemed to be served 2 days following the date of posting.

11.9 Third party rights
Save as expressly provided by these terms, no person who is not a party to any contract under these terms has any rights under the Contracts (Rights of Third Parties) Act 1999 in relation to such contract, without prejudice to any right or remedy which exists or is available apart from under that Act.

11.10 Time
Time shall not be of the essence unless expressly made so by notice in writing.

11.11 Law
These terms and any contract made under them shall be construed in accordance with English Law, and subject to the provision for arbitration the English courts shall have sole jurisdiction in relation to all matters arising out of these terms.