1. Application of conditions and Contract Formation
1.1 These terms and conditions (‘Terms’) apply to and prevail over any inconsistent terms or conditions contained or referred to in any quotation, statement of work, purchase order (accepted or otherwise) or other agreement for the supply of Equipment and Services by VoCoVo and all terms and conditions implied by law, trade custom, practice or course of dealing and the Customer’s terms and conditions which are hereby excluded.
1.2 No addition to, variation of, or exclusion of these Terms shall be binding on VoCoVo unless in writing and signed by its authorised representative.
1.3 Any Quotation, Proposal or response to an RFP by VoCoVo is non-binding and may be withdrawn at any time by written notice to that effect.
1.4 Any Customer acceptance of a VoCoVo Quotation, Proposal, response to an RFP, Statement of Work, Proof of Concept or Project Plan or the Customer’s issue of a purchase order referencing any of the same constitutes an offer to purchase and a Contract shall come into force upon VoCoVo’s formal acceptance of such offer, its acknowledgement of the purchase order or its commencement of work pursuant to the purchase order.
2. Delivery
2.1 Equipment shall be delivered FOT or FOB (as applicable) agreed destination using industry standard packaging and transportation methods.
2.2 VoCoVo shall use reasonable efforts to meet agreed performance dates but such dates shall be non-binding and time shall not be of the essence.
2.3 VoCoVo shall not be liable for non or defective delivery of Equipment unless Customer gives written notice with documentary evidence of the non or defective delivery within five (5) days of the anticipated delivery date on receipt of which the extent of VoCoVo’s liability and the Customer’s exclusive remedy shall be replacement of the defective or non-delivered Equipment or adjustment of the invoiced sum accordingly.
3. Payment, Title and Risk.
3.1 Payment shall be made within 60 days of the date of invoice. Interest will accrue daily on overdue sums at Libor + 4%. Title in Equipment shall pass on payment in full therefor and risk of loss shall pass to Customer upon delivery.
4. Project Management and Change Control.
4.1 Each party shall appoint a Project Manager relating to a Contract who shall co-operate on all matters relating to a Contract.
4.2 Customer shall prepare the relevant premises for the Equipment and Services, provide such information, materials and facilities as required by VoCoVo to perform its obligations, obtain all necessary licenses and consents required and comply with all applicable laws in relation thereto.
4.3 If the Customer wishes to change the scope of a Contract it shall submit details of the requested change in writing. VoCoVo shall, within a reasonable time, provide a written estimate of the time required to implement the change, the likely effect of the change, any variation in Prices and Charges and any other changes to the Contract required.
4.4 No change to a Contract shall be effective until the parties have agreed in writing on any necessary variations to the Prices, Charges any other relevant Contract terms.
5. Prices, Charges and Payment
5.1 Customer shall purchase the Equipment and the Services from VoCoVo at the Price and Charges contained or referred to in the Contract or if not contained or referred to therein as set forth in VoCoVo’s price lists in force on the date of the Contract.
5.2 All Prices and Service Charges are exclusive of value added, sales, use, and excise taxes, and any other similar duties of any kind imposed by a Governmental Authority.
5.3 If the Customer is required to make any deduction or withholding on account of tax from any payment due to VoCoVo the amount due shall be increased so that VoCoVo receives an amount equal to the amount it would have received but for the withholding.
6. Limited Warranty.
6.1 VoCoVo warrants that for 12 months from the date of delivery (”Warranty Period”), the Equipment will conform to the VoCoVo issued product specifications contained or referred to in the Contract or if none is so contained or referred to therein, to the relevant VoCoVo issued product specifications in effect on the delivery date and will be free from defects in material and workmanship.
6.2 EXCEPT FOR THE PRODUCT WARRANTIES SET FORTH IN, SECTION 6.1 VOCOVO MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (aa) WARRANTY OF MERCHANTABILITY; or (bb) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
6.3 VoCoVo warrants to Customer that it shall perform the Services using personnel of the required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
6.4 EXCEPT FOR THE SERVICES WARRANTIES SET FORTH IN SECTION 6.3 VOCOVO MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6.5 VoCoVo shall, in its sole discretion, either: (i) repair or replace the Equipment which is in breach of section 6.1 or (ii) refund the price of such Equipment.
6.6 VoCoVo shall, in its sole discretion, (i) repair or re-perform the Services performed in breach of section 6.3 or (ii) or refund the price of such Services.
6.7 THE REMEDIES SET FORTH IN SECTION 6.5 AND SECTION 6.6 ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VOCOVO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6.
7. Confidential Information and Intellectual Property Rights
7.1 A party to a Contract shall and shall procure that its affiliates and their respective employees shall keep all confidential and proprietary information belonging or related to the counter party and its affiliates confidential and shall only use it to the extent required to enjoy the rights conferred and discharge the obligations imposed upon it under a Contract.
7.2 All Intellectual Property Rights and all other rights in Equipment, related materials and Services are and shall remain the property of VoCoVo and no licence or other right is granted in respect thereof except as expressly stated in this section 7.
7.3 VoCoVo licenses the Intellectual Property Rights in the Equipment and related materials to the Customer free of charge on a non-exclusive, non-transferable worldwide basis to the extent strictly necessary to enable the Customer to make reasonable use of the Equipment as envisaged by the parties.
8.1 Limitation of Liability.
8.1 IN NO EVENT SHALL VOCOVO BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT VOCOVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 IN NO EVENT SHALL VOCOVO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO AN AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO VOCOVO FOR THE EQUIPMENT AND SERVICES SOLD HEREUNDER OR THE LOCAL CURRENCY EQUIVALENT OF ONE MILLION POUNDS STERLING (GBP1,000,000) WHICHEVER IS THE LESSER AMOUNT.
8.3 The limitations on liability set forth in section 8.1 and 8.2 shall not apply to (i) liability resulting from VoCoVo’s fraud, fraudulent misrepresentation, gross negligence or wilful misconduct and (ii) death or bodily injury resulting from VoCoVo’s acts or omissions.
9. Insurance.
VoCoVo and the Customer shall each, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including public and product liability) in a sum of no less than Two Million Pounds Sterling (GBP2,000,000) per claim.
10. Termination
In addition to any remedies that may be provided under these Terms:
10.1 Either party may terminate an Agreement with immediate effect upon written notice if the other (i) commits a material breach of these Terms or (ii) breaches the Contract and such remains unremedied for thirty (30) days after receipt of written notice of the breach; or (iii) becomes insolvent, the subject of proceedings relating to bankruptcy, receivership, reorganization or an assignment for the benefit of creditors.
10.2 Any provision of these Terms that expressly or by implication is intended to come into or remain in force on or after termination or expiry of a Contract shall remain in full force and effect.
10.3 Termination of a Contract shall not affect any rights, remedies, obligations or liabilities of the parties accrued up to the date of termination.
11. Compliance with Law.
Each of VoCoVo and the Customer shall comply with all applicable laws and regulations in the performance of a Contract including all anti-bribery, anti-slavery, forced and child labor and export and import laws.
12. Information Security and Privacy Policy
VoCoVo shall endeavour to comply in all material respects with the Customer’s Information Security and Privacy Policies but shall not be responsible for any security breaches, viral infections or the like in the Customer’s IT system.
13. Data Protection
13.1 Each party agrees that it shall comply with the provisions, of the UK Data Protection Act 2018 and/or the EU GDPR2016 (“Data Protection Legislation”) in the performance of its obligations under a Contract to the extent the Data Protection Legislation applies to each of them.
13.2 The Parties agree that save for business contact data processed by VoCoVo to manage the Customer’s account which shall be processed in accordance with its privacy policy, personal data is not required for processing pursuant to a Contract
14. Assignment.
Neither party shall be entitled to assign any of its rights or delegate any of its obligations under a Contract without the prior written consent of the other party not to be unreasonably withheld or delayed. Except that VoCoVo may sub-contract all or any of its obligations under a Contract without the consent of the Customer.
15. No Partnership
Nothing in these Terms or a Contract is intended to or shall be deemed to establish a partnership, joint enterprise, employment or fiduciary relationship.
16. Language, Governing Law and Jurisdiction
For Contracts performed in the United Kingdom, the EEA and elsewhere except the United States, Canada and Mexico these Terms and such Contracts shall be governed by and construed in accordance with the laws of England and any dispute, claim (including non-contractual disputes or claims) legal action arising in connection with it or its subject matter or formation shall be resolved in the English courts. For Contracts to be performed in the United States, Mexico and Canada these Terms and such Contracts shall be governed by and construed in accordance with the laws of the State of Illinois and any dispute, claim (including non-contractual disputes or claims) legal action arising in connection with it or its subject matter or formation shall be resolved in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago, Cook County.