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Ultima Terms and Conditions (July 2017, v1042)

If you require a copy of the Ultima Terms and Conditions of Business please contact us.

1. Interpretation

1.1 Definitions

In these Conditions:-

“Business Day” means a day other than Saturday, Sunday or public holiday in England when banks in London are open for business;

“Change Request Form” means the form of Ultima on which a written request can be made to change, vary or request additional Services, Products or the Specification and/or the SLA;

“Change Control Procedure” means the mechanism for agreeing any and all changes under or in connection with any Contract;

“Charges” means the charges payable in respect of the Services and/or Products, as specified in the Contract Details;

“Conditions” means these terms and conditions as amended from time to time in accordance with clause 10;

“Contract” means the contract between Ultima and the Customer for the supply of the Products and/or Services in accordance with the Contract Details and these Conditions;

“Contract Details” means the details of the Contract as contained on the cover sheet at the beginning of this document;

“Customer” means the person or firm who purchases the Products and/or Services from Ultima, as specified in the Contract Details;

“Customer Contact” means those persons identified in the Contract Details as the Customer contact for each Contract and with whom the Change Control Procedures will be dealt;

“Force Majeure Event” means an event beyond the reasonable control of Ultima including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Ultima or any other party), failure of a utility service, internet service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;

“Hardware” where appropriate means the Customer’s computer hardware in respect of which Managed Services are to be provided;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Location” means that location at the Customer’s premises where Services or Products are to be supplied, as specified in the Contract Details;

“Managed Service” means Ultima’s management of the Customer systems as more specifically detailed in the SLA relating thereto;

“Maintenance Agreement” means a maintenance and support agreement for the Services provided by Ultima as agreed with the Customer;

“Order” means the Customer’s order for the supply of Products and/or   Services;

"Product" means the products which Ultima has agreed to supply under the Contract, as set out in the Contract Details;

“Quote” means any quote or proposal made by Ultima for the provision of Services or supply of Products;

“Services” means those services to be performed by Ultima under any Contract entered into between Ultima and the Customer, as specified in the Contract Details;

“Services Start Date” means the date on which Ultima shall start providing the Services to the Customer, as specified in the Contract Details;

“SLA” means the Service Level Agreements which are supplied by Ultima to the Customer setting out the performance levels applying to specific Services;

“Solutions” means any software supplied or provided by Ultima for the provision of a Managed Service;

“Specification” means the agreed details in respect of Ultima’s Products (if any), as specified in the Contract Details;

“Term” means the duration of the Contract, as specified in the Contract Details;

“Ultima” means Ultima Business Solutions Ltd, registered in England and Wales with company number 02521249, whose registered office is at Gainsborough House, Manor Park, Basingstoke Road, Reading, RG2 0NA;

“Ultima Contact” means those persons identified in the Contract Details as the contact at Ultima for each Contract and with whom the Change Control Procedures will be dealt.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.3 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.

1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.5 A reference to a party includes its personal representatives, successors or permitted assigns;

1.6 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.7 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.8 A reference to writing or written includes faxes and e-mails.

2. Basis of Contract

2.1 The Order constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when Ultima issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

2.3 Every Contract shall be subject to these Conditions which shall govern the performance of the Services and supply of the Products to the exclusion of any other terms and conditions. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.4 No variation to the Contract shall be binding unless executed through the Change Control Procedure set out in clause 10.

2.5 Ultima’s employees or agents are not authorised to make any representations concerning the Services or the Products unless confirmed by Ultima in writing. 

2.6 The Contract constitutes the entire agreement between the parties. In entering into the Contract the Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Ultima which is not set out in the Contract.

2.7 Any advice or recommendation given by Ultima to the Customer or its employees or agents as to the Services to be performed, storage, application or use of the Products which is not confirmed in writing by Ultima is followed or acted on entirely at the Customer’s own risk and accordingly Ultima shall not be liable for any such advice or recommendation which is not so confirmed.

2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price lists, acceptance of Contract Details, invoice or other documentation or information issued by Ultima shall be subject to correction without notice or liability on the part of Ultima.

2.9 Whilst every effort is made to ensure that the description and illustrations contained in the catalogues, price lists and other advertisements of Ultima are accurate and current, they are issued or published for illustrative purposes only and shall not form part of the Contract and Ultima shall not be liable in respect thereof.

3. Quotation/Order

3.1 Any quotation given by Ultima shall not constitute an offer. Quotes will remain open for acceptance for a period of 14 days for Products and Services procured in UK pounds sterling from the date of the Quote after which they shall lapse automatically. Where it is necessary for Ultima to purchase Products and/or Services in a foreign currency to fulfil the Quote then that Quote will remain open for a period of 2 days. In this event, Ultima will advise the Customer as such in writing that the Quote is valid for 2 days only.

3.2 The Customer shall be responsible to Ultima for ensuring the accuracy of the terms of any Order, SLA or Specification submitted or accepted by the Customer and for giving Ultima any necessary information relating to the Services and/or Products within a reasonable time to enable Ultima to supply Services and Products in accordance with the terms of the Contract.

3.3 Ultima reserves the right to make any changes (without prior notice) to the Specification, the SLA, the Products and/or the Services which are required to conform with any applicable safety, regulatory or other statutory requirement which do not materially affect the quality or performance of the Services and/or Products.

4. Price and Charges

4.1 The charges payable by the Customer to Ultima in respect of the Products and/or Services shall be the charges as set out in the Contract Details, or where no charge has been quoted (or a quoted price is no longer valid) the charges listed in Ultima's published price list current at the date of acceptance of the Order.

4.2 Unless otherwise agreed in writing between the Customer and Ultima, all charges in respect of the Products are given by Ultima on an ex works basis and where Ultima agrees to deliver the Products otherwise than at Ultima's premises the Customer shall be liable to pay Ultima's charges for transport, packaging and insurance.

4.3 Where at the Customer’s request the Products are to be delivered by instalments, the Customer shall be liable to pay for all warehousing and insurance costs incurred by Ultima in respect of the instalments of Products not yet delivered.

4.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Ultima to the Customer, the Customer shall, on receipt of a valid VAT invoice from Ultima, pay to Ultima such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Products at the same time as payment is due for the supply of the Services and/or Products.

Price Changes

4.5 Ultima reserves the right by giving written notice to the Customer to amend the pricing of Products and/or Services to reflect any increase in price that is due to:

4.5.1 any delay caused by the failure of the Customer to give Ultima adequate information or instructions;
4.5.2 any factor beyond the control of Ultima (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
4.5.3 any request by the Customer to change the delivery or collection date(s), quantities or types of Products and/or Services ordered or the Specification.

4.6 The Customer accepts that any changes to taxation (for example VAT) will be applied and imposed as legally required.

Additional Services and/or Products

4.7 Where the Customer during the term of the Contract requests additional Services and/or Products which are not included in the Contract Details (and in the case of Products this is not a General Supply Contract):-

4.7.1 the Customer shall request such additions using a Change Request Form in accordance with clause 10 below; and
4.7.2 if Ultima agrees to carry out such additions, unless the Change Request Form states otherwise, these shall be supplied at Ultima’s standard price rates from time to time applying or as otherwise agreed between the parties in writing. All such additional supplies of Products and/or Services shall be subject to these Conditions.

5. Payment

5.1 In respect of the Services, unless otherwise agreed in writing, Ultima shall be entitled to invoice the Customer for the performance of the Services in accordance with the Order or, where no payment terms are specified, within 30 days of the Services Start Date.

5.2 In respect of Products, unless otherwise agreed in writing, Ultima shall be entitled to invoice the Customer for the price of the Products including any transport, packaging, warehousing and insurance costs (where applicable) prior to delivery or collection of the Products.

5.3 Unless otherwise provided in the Contract Details, the Customer shall pay the price in respect of the Services and/or Products as invoiced in full within 30 days from the date of Ultima’s invoice. the Customer shall not be entitled to make any deduction from such payment or exercise any right of set off or contribution howsoever arising (unless confirmed by Ultima in writing). The time of payment of the invoiced amounts shall be of the essence of a Contract.  Receipts for payment will be issued only on request.

5.4 If the Customer fails to make any payment on the due date for payment then without prejudice to any other right or remedy available to Ultima, Ultima shall be entitled to:

5.4.1 cancel the Contract or suspend any further deliveries to the Customer of the Products or further performance of the Services;
5.4.2 appropriate any payment made by the Customer to such of the Products and/or Services (or any Products or Services supplied under any other Contract between the Customer and Ultima) as Ultima may think fit (notwithstanding any purported appropriation by the Customer); or
5.4.3 charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 4% per annum above National Westminster Bank Plc base rate from time to time until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest). The Customer shall pay the interest together with the overdue amount.

6. Performance of the Services

6.1 Ultima will perform the Services in accordance with the Conditions hereof and the applicable SLAs. In the event that the provision of the Services may require staff to transfer employer, then the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) shall apply and will be dealt with in the SLA or additional contract terms.

6.2 Ultima will supply to the Customer in reasonable time before performance of the Services such information and assistance as may be necessary to enable the Customer to prepare the Location for the performance of Services and to provide proper environmental and operational conditions for the efficient working and maintenance of the Services.  The Customer shall at its sole expense prepare the Location and provide such environmental and operational conditions prior to performance of the Services.

6.3 Ultima shall ensure that Services are carried out by suitably qualified personnel but it cannot guarantee that specific personnel will carry out the Services for the Customer and Ultima reserves the right in its absolute discretion to change the personnel engaged in providing the Services for the Customer without prior notification to the Customer.

6.4 Where the Services include maintenance of the Customer’s equipment there shall be excluded from such services, or an additional fee will be levied by Ultima for the following:

6.4.1 the provision of consumables, media and accessories or any item defined by the product manufacturer as a consumable or accessory;
6.4.2 the supply and installation of patches, fixes, BIOS upgrades or other software related upgrades or modifications;
6.4.3 repairs necessitated as a result of any cause other than fair wear and tear resulting from proper use of equipment in accordance with Ultima’s or the manufacturer’s instructions or repairs necessitated by equipment not being in good working order when the Services are commenced;
6.4.4 any modification or alteration to equipment which is the subject of maintenance services except as required to rectify a fault diagnosed by Ultima or the manufacturer;
6.4.5 repair or replacement of any equipment the subject of such Services if such equipment is obsolete or beyond economic repair, meaning the cost of repair is not less than 60% of the then current market value of such equipment.

6.5 Maintenance Services as described in an Ultima ‘Maintenance Quotation’ may only be terminated after the minimum term of one (1) year by either party giving 90 days written notice.

7. Customer’s Obligations

7.1 The Customer shall:

7.1.1 when provided with a Solution, ensure that it is a bona fide licensed user of any software covered under the Contract and that it has paid all current maintenance fees;
7.1.2 ensure that the terms of the Order and Specification are complete and accurate at all times;
7.1.3 provide to Ultima details of its Customer Contact from whom all negotiations for the Change Control Procedures or other matters pertaining to the performance of the Contract will be channelled.  In the event of any change in the Customer Contact, the Customer will provide written details of a replacement as soon as reasonably practicable of a person with equivalent qualification and experience;
7.1.4 where appropriate, make available to Ultima’s directors, employees, agents consultants and sub-contractors such office and reasonable administrative support as may be necessary for the provision of the Services;
7.1.5 ensure its employees, agents, consultants and sub-contractors co-operate fully with Ultima in providing the Services;
7.1.6 promptly provide Ultima with such information and documents as Ultima may from time to time reasonably request;
7.1.7 ensure that the Hardware is installed and fully operational at all times;
7.1.8 ensure that full backups and security copies of data and programmes are made at all appropriate intervals;
7.1.9 provide Ultima and its personnel with reasonable access to the Customer’s location during all reasonable hours to enable Ultima to carry out any Services; and
7.1.10 make available at no expense to Ultima such suitably qualified and experienced personnel to provide information to Ultima for the purposes of providing the Services.

7.2 Except in the case where Ultima is providing a Managed Service or Maintenance Agreement, the Customer shall be responsible for ensuring that all its existing equipment used by Ultima’s employees or agents is safe and Ultima accepts no liability (other than for wilful damage) for loss of data, interruption of supply of electricity or telecommunications or interruption of business occasioned as a result of the supply of Services. It is the sole responsibility of the Customer to take all necessary precautions to protect its data and ensure a regular backup arrangement is implemented prior to, during and after Ultima’s provision of the Services.

7.3 If, in the reasonable opinion of Ultima, it is necessary to remove or otherwise disconnect any of the Customer’s existing equipment at the Location in order to carry out the Services then the Customer shall permit and obtain all necessary consents for such removal and/or disconnection and shall give Ultima all necessary assistance to enable such work to be carried out.

7.4 Ultima shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customers failure or delay to perform any of its obligations as set out in this clause 7.

7.5 The Customer shall indemnify Ultima on written demand in respect of any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Ultima in connection with or arising directly or indirectly from any breach by the Customer of any of its obligations under the Contract.

8. Delivery, Collection and Installation of Products

8.1 Where Ultima is to install Products, it will supply to the Customer in reasonable time before delivery of the Products such information and assistance as may be necessary to enable the Customer to prepare the Location for installation of the Products. Any cost incurred in such preparation shall be solely borne by the Customer.

8.2 Where the Customer has agreed to collect the Products, delivery shall be made when the Customer collects the Products from the premises as notified in writing by Ultima from time to time. Where Ultima has agreed to deliver the Products, delivery shall be made when Products are unloaded at the Location.

8.3 Where the Customer has agreed to collect the Products, Ultima shall have the Products ready for collection on the date specified in the Contract Details, or as otherwise notified in writing to the Customer. The Customer shall collect the Products from Ultima within three Business Days of Ultima notifying the Customer that they are ready.

8.4 Where Ultima has agreed to deliver the Products:

8.4.1 Ultima shall deliver the Products to the Location or such other location as the parties may agree in writing; and
8.4.2 delivery of the Products shall be completed on the Products’ arrival at the Location.

8.5 Any delivery or collection dates quoted to the Customer are approximate only and the time of delivery is not of the essence.

8.6 Ultima quotes dates for the delivery of Products based upon the availability information provided by the manufacturer or distributor of the equipment.  Delivery from the supplier to Ultima and from Ultima to the Customer is achieved by the use of various delivery agents. Ultima shall not be responsible for delays caused as a result of the supplier or delivery agent failing to meet their delivery date, but in the event of such delay will make every effort with the supplier and/or delivery agent to expedite delivery.

8.7 Ultima shall not be liable in the event that the Products do not match the quantity in the Order where the Customer fails to notify Ultima of the discrepancy within seven (7) Business Days of the delivery date. If Ultima is satisfied that the incorrect quantity of Products have been delivered, Ultima shall at its option:

8.7.1 make up any shortfall by dispatching to the Customer such Products as Ultima is satisfied were not delivered; or
8.7.2 allow the Customer credit in respect thereof.

8.8 Where Products are to be delivered in instalments, each delivery shall constitute a separate Contract, and any delay or error in delivery by Ultima of any one or more of the instalments in accordance with these Conditions shall not entitle the Customer to cancel any future instalments.

8.9 Without prejudice to clause 8.10, Ultima shall not be liable for any delay or failure to deliver the Products that is caused by:

8.9.1 a Force Majeure Event; or
8.9.2 the Customer’s failure to provide Ultima with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

8.10 If Ultima fails to deliver the Products (or any instalment) for any reason (other than arising out of the Customer's fault) Ultima's liability (if any) shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Products to replace those not delivered over the price of the Products.

8.11 If the Customer fails to collect the Products within the time specified in these Conditions or fails, to take delivery of the Products, or fails to give Ultima adequate delivery instructions at the time stated for delivery (otherwise than by reason of Ultima's fault) then without prejudice to any other right or remedy available to Ultima then Ultima may:

8.11.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including handling and insurance) of storage; or

8.11.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price payable by the Customer or charge the Customer for any shortfall below the price.

8.12 Where any Products are supplied for export outside the United Kingdom, the Customer shall be responsible for arranging testing and inspection of the Products at Ultima’s premises prior to shipment of the Products. Ultima shall not be liable for any claim in respect of any defect in the Products which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.

9. Returns of Products and Cancellation

9.1 Where Ultima has agreed to the return of Products (or any part thereof) Ultima will issue a returns and authorisation number and send to the Customer the appropriate returns form for completion. The Customer shall return such Products (or part thereof) at its own cost and expense, at its own risk and in the same condition as supplied by Ultima. Only Products pre-authorised by Ultima for return will be accepted for return.

9.2 In the event that the Customer is at fault for the return of the Products, an administration fee and any re-stocking fee incurred by Ultima will be charged to the Customer.

9.3 When Products are returned in accordance with this clause 9, Ultima may, at its sole discretion, refund the Customer by whichever method used by the Customer for making the payment. If, in Ultima’s sole opinion, the Products are damaged (in whole or in part) when returned, Ultima may reject the returned Products and in such circumstances, the Customer shall not be entitled to a refund.

9.4 No Contract may be cancelled by the Customer except with the agreement in writing of Ultima and on terms that the Customer shall indemnify Ultima in full against all reasonable losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Ultima as a result of such cancellation.

9.5 Special orders, Products that include a Specification or altered Products are not eligible for return, exchanges and/or cancellation and this shall at all times be at Ultima’s sole discretion. 

10. Change Control Procedure

10.1 The Customer shall by a Change Request Form delivered to Ultima have the right to request changes to a Contract. Ultima may also recommend any changes to the Contract by submitting a Change Request Form to the Customer.

10.2 No change requested by either party shall be effective nor binding on the other unless specifically agreed to in writing by the Customer Contact and the Ultima Contact within three weeks of the date of the Change Request Form, or such other period as agreed in writing between the parties.

10.3 Until such time as a change is made in accordance with the Change Control Procedure, the Customer and Ultima shall, unless otherwise agreed in writing, continue to perform the Contract in compliance with its terms and these Conditions prior to such change.

10.4 A Change Request Form signed by both Ultima and the Customer shall constitute an amendment to the Contract.

10.5 If a change requested by the Customer and agreed to by Ultima results in a delay in Ultima’s delivery of the Products or performance of the Services or an increase or decrease in the cost of the Services and/or Products provided to the Customer, Ultima shall notify the Customer and shall be entitled to adjust the delivery schedule and/or the price of such Services and Products or both accordingly.

10.6 The Customer will on requesting any changes use the Change Request Form supplied by Ultima and observe all Change Control Procedures set out in the relevant SLA (if any).

11. Risk and Title

11.1 The risk of loss and damage to the Products shall pass to the Customer immediately on delivery unless the Products are to be collected by the Customer when the risk of loss and damage to the Products shall pass to the Customer on collection.

11.2 Notwithstanding delivery and the passing of risk in the Products or any other provision of these conditions the title in the Products shall not pass to the Customer until Ultima has received in cash or cleared funds payment in full of the price of the Products and all other Products agreed to be sold by Ultima to the Customer for which payment is then due.

11.3 Until such time as the title in the Products passes to the Customer the Customer shall hold the Products as Ultima's trustee and bailee and shall keep the Products separate from those of the Customer and third parties and properly stored, protected, insured and identified as Ultima's property.

11.4 Until such time as the title in the Products passes to the Customer Ultima shall be entitled at any time to require the Customer to deliver up the Products to Ultima and if the Customer fails to do so forthwith to enter on any premises of the Customer or any third party where the Products are stored and repossess the Products.

11.5 The Customer shall not offer for resale or resell any Products supplied by Ultima, until the price has been paid in full under the Contract.

11.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Ultima, but if the Customer does so all monies owing by the Customer to Ultima shall (without prejudice to any other right or remedy of Ultima) forthwith become due and payable.

11.7 Ultima and the Customer intend that Ultima shall transfer to the Customer only such title as Ultima may have in the Products and Ultima shall have no liability to the Customer in the event of the Products infringing or being alleged to infringe the rights of any third party.

12. Warranties

Products

12.1 Subject to the Conditions set out below, Ultima warrants the Products will correspond in all material respects with the Specification at the time of delivery and will be free from material defects in design, material and workmanship for the same period as specified by any manufacturer’s warranty (commencing from the delivery date).

12.2 Any claim by the Customer which is based on any defect in the quality or condition of the Products or their failure to correspond with the Specification shall (whether or not delivery is refused by the Customer) be notified to Ultima in writing within a reasonable time of discovery and in any event within 7 Business Days from the date of delivery.

12.3 Ultima shall be under no liability in respect of any defect in the Products arising from any of the following:

12.3.1 any drawing, design or Specification supplied by the Customer;
12.3.2 fair wear and tear, wilful damage, negligence or abnormal usage by the Customer;
12.3.3 any further use of the Products by the Customer after the Customer has given notice under clause 12.2;
12.3.4 failure to follow Ultima's instructions, misuse or improper installation, including failure to follow any specific preventative maintenance schedule provided by Ultima;
12.3.5 any changes made to the products to ensure that they comply with applicable statutory and regulatory standards; or
12.3.6 alteration or repair of the Products without Ultima’s written consent.

12.4 Ultima shall be under no liability to the Customer under this clause 12 if the total price of the Contract has not been paid by the due date for payment.

12.5 The Customer shall only be entitled to the benefit of any such warranty or guarantee on Products as is given by the manufacturer to Ultima. Ultima will use reasonable endeavours to assign to the Customer on written request any such warranty.

12.6 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products, or their failure to meet the Specification is notified to Ultima in accordance with these Conditions, Ultima shall, at Ultima’s sole discretion, repair or replace the defective Products, or refund the price of the Products (or proportionate part of the price).

12.7 Except as provided in this clause 12, Ultima shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty in clause 12.1.

Services

12.8 Ultima warrants that the Services will be provided with reasonable skill and care provided that Ultima shall not accept any liability for damage sustained by the Customer for any failure to perform the Services by reason of:

12.8.1 the Customer’s failure to keep Ultima adequately informed of all matters relevant to the performance of the Services;
12.8.2 interference by the Customer, its employees, subcontractors or any third party with the proper performance of the Services; or
12.8.3 the Customer’s failure to meet its obligations provided in the Contract.

12.9 The Customer will give notice to Ultima as soon as it is reasonably able on becoming aware of a breach of clause 12.8.

12.10 Ultima shall use reasonable endeavours to meet any performance dates for the Services specified in the Contract but any such dates shall be estimates only and time shall not be of the essence of the performance of the Services.

12.11 Any and all changes, improvements, revision or updates to the products as a result of the Services provided under the Contract shall remain subject to the Product manufacturer’s licence agreement.

12.12 Except as otherwise expressly provided in these Conditions, any Services are provided “as is,” "where is," and “as available”. The Customer acknowledges that Ultima has not and does not warrant or guarantee the performance of the Services or any aspect or portion thereof including, but not limited to, warranties of merchantability, fitness for any particular purpose, title and non-infringement relating to anything provided or used under the Contract for the provision of Services, and that any equipment, material, goods or other tangible or intangible asset that is conveyed, sold, or otherwise provided to Customer in any manner, or as to any other matter, all of which warranties are hereby expressly excluded and disclaimed and Customer agrees that nothing in this Agreement shall be construed as any such warranty or guarantee. Without limiting the foregoing, Ultima makes no warranties, representations or endorsements, whether express, implied or statutory, regarding any merchandise, information, products or services provided through the internet or any other network. Furthermore, Ultima hereby disclaims that any equipment, Products or Services provided under a Contract will be uninterrupted or error free or that certain results may be obtained by anyone in connection with their use. Subject as expressly provided in these Conditions all conditions, warranties, terms and undertakings expressed or implied by statute or common law are excluded to the fullest extent permitted by law.

13. Limitation of Liability

13.1 Nothing in these Conditions shall limit or exclude Ultima's liability for:

13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
13.1.5 defective products under the Consumer Protection Act 1987.

13.2 Subject to clause 13.1 above Ultima shall not be liable to the Customer in respect of any of the following:

13.2.1 loss of profits;13.2.2 loss of goodwill; or
13.2.3 any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of any action brought by a third party), even if such loss was reasonably foreseeable or Ultima had been advised of the possibility of the Customer incurring the same.

13.3 Subject to the provisions of clause 13.1 and 13.2 above, Ultima’s entire liability in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to an amount equal to £1,000,000.

13.4 If a number of incidents give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under any Contract.

14.5 Nothing in this clause 13 shall confer any right or remedy on the Customer to which it would not otherwise be legally entitled.

14. Non-Solicitation

14.1 Each party agrees that throughout the term of the Contract and for a period of 3 months thereafter whether by itself, its officers, employees, agents or otherwise it shall not howsoever directly or indirectly actively:

14.1.1 entice or solicit away from the other party any person who was during that period an employee, sub-contractor or agent of the other party with whom it has had material dealings throughout the term of the contract; or
14.1.2 offer alternative employment or otherwise engage any employee, sub-contractor or agent of the other party with whom the first party has had material dealings throughout the term of the Contract.

14.2 If such an offer is made by the Customer to an employee, sub-contractor or agent of Ultima and an engagement results, then the Customer shall pay a one-off recruitment fee of 20% of the individual’s basic annual salary to Ultima, or in the case of a temporary engagement 25% of the contract fees payable to the individual. Such fee is intended to enable Ultima to recruit a replacement for this individual and as such Ultima reserves the right to amend the fees if appropriate and will provide documentary evidence to backup said fee amendment.

15. Intellectual Property Rights

15.1 Ultima is the owner of all Intellectual Property Rights arising out of or in connection with the Products or vested in any Solutions, information, drawings, specifications, documentation, proposals, designs, software listings, codes or other media generated by it during the course of the provision of Services or supply of Products or prior to the supply of such Services or Products.

15.2 To the extent that the Products are to be manufactured or any process is to be applied to the Products by Ultima in accordance with a Specification of the Customer or in accordance with instructions submitted by the Customer, the Customer shall indemnify Ultima against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Ultima in connection with any claim made against Ultima for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Ultima’s use of the Specification or carrying out of such instructions.

15.3 This clause 15 shall survive termination of the Contract.

16. Confidentiality

16.1 During the term of the Contract and for a period of 2 years following termination of the Contract, a party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. 

16.2 Without prejudice to clause 16.1, the receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

17. Force Majeure

17.1 If Ultima is delayed or prevented from performing its obligations under this Contract as a result of a Force Majeure Event, it shall promptly notify the Customer of the nature and extent of the event.

17.2 Notwithstanding any other provision in these Conditions, Ultima shall not be in breach of the Contract or liable to the Customer for any delay in performance or the non-performance of any of its obligations under this Agreement to the extent that the delay or non performance is due to any Force Majeure Event of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.

17.3 If the Force Majeure Event prevents Ultima from providing any of the Products and/or Services for more than eight (8) weeks, Ultima shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

18. Termination

18.1 Either party may terminate the Contract by giving the other party not less than ninety (90) days’ written notice.

18.2 Without limiting its other rights or remedies, Ultima may terminate the Contract with immediate effect by giving written notice to the Customer if:

18.2.1  the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing to do so;
18.2.2 the Customer fails to pay any amount due under this Contract on the due date for payment;
18.2.3 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
18.2.4 an encumbrancer takes possession of or a receiver is appointed in respect of any of the property or assets of the Customer; or
18.2.5 the Customer ceases or threatens to cease to carry on business; or
18.2.6 Ultima reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

18.3 If Ultima exercises its rights under clause 18.2 then without prejudice to any other right or remedy available to Ultima it shall be entitled to cancel the supply of Services and Products and suspend any further deliveries under the Contract without any liability to the Customer and if the Products have been delivered or Services supplied but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and Ultima shall be entitled to exercise its rights under clause 11.4 hereof.

18.4 On termination of a Contract for any reason:

18.4.1 the Customer shall immediately pay to Ultima all of Ultima's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Ultima shall submit an invoice, which shall be payable by the Customer immediately on receipt;
18.4.2 the Customer shall return all of Ultima’s Products which have not been fully paid for. If the Customer fails to do so, then Ultima may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

18.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of a Contract that existed at or before the date of termination.

18.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

19. General

19.1 Any notice hereunder shall be deemed to have been given if sent by prepaid first class registered post or facsimile to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to these Conditions to the party giving notice.  Notices sent by first class registered post shall be deemed to have been given 2 Business Days after dispatch and notices sent by facsimile shall be deemed to have been given on the Business Day after transmission.

19.2 A waiver of any right under the Contract or law is only effective if it is in writing. No waiver by either party of any breach of any Contract entered into hereunder shall be construed as a waiver of any subsequent breach of the same or any other provision.

19.3 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

19.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

19.5 Neither party will be entitled to assign, sub-let, or sub-let the benefit and or burden of this Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

19.6 A person who is not a party to the Contract shall not have any rights to enforce its terms.

19.7 Where the Products are supplied for export from the United Kingdom, the Customer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties or taxes thereon.

19.8 These Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of England.

19.9 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this contract or its subject matter or formation (including non-contractual disputes or claims).