Terms and Conditions
These Terms and Conditions will apply to the purchase of Hardware, Software, Third Party Branded Services, and Peritus Skuable Services (Collectively, "Product") sold by Peritus Cloud Security Limited a company registered in England and Wales under number 14131061 whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ.
These Terms and Conditions will be deemed to have been accepted by the customer when they accept them or the quotation or from the date of any delivery of products (which ever happens earlier) and will constitute the entire agreement between Peritus and the customer.
These Terms and Conditions and the quotation (together, the contract) apply to the purchase and sale of any products between Peritus and the customer, to the exclusion of any other terms that the customer tries to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1. DEFINITIONS
“Customer” means the person(s), firm, business or company who purchases the Products from Peritus Cloud Security Ltd.
“Conditions” means these standard terms and conditions of sale and supply.
“Contract” means any contract between Peritus and the Customer for the sale and/or supply of Products to which these Conditions apply, comprising an Order Acknowledgement, these Conditions and any applicable Special Conditions.
“Order Acknowledgement” means Peritus’ written acceptance of an order, signed by an authorised representative of Peritus, in the form of an order acknowledgement, whether delivered to the Customer by email or otherwise.
“Products” means goods or services agreed in the Contract to be supplied to the Customer by Peritus.
“Special Conditions” means all specific conditions relating to the sale or supply of Products to the Customer (including, but not limited to, descriptions, prices and specified places and dates of supply) contained in or referred to in the Order Acknowledgement or on the quotation.
“Peritus” means Peritus Cloud Security Limited, a company incorporated in England and Wales (company number 14131061) whose registered office is situated at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ.
2. APPLICATION OF THESE CONDITIONS
2.1 These Conditions shall apply to and shall be deemed to be incorporated into any Order Acknowledgement as if set out therein except where and to the extent that Peritus and the Customer execute a separate written agreement with respect to such Order Acknowledgement or the Products referred to therein.
2.2 No other terms or conditions (including, without limitation, any terms or conditions delivered by the Customer to Peritus at any time, whether before or after these Conditions are provided to the Customer) shall apply to any Order Acknowledgement, or to any Products referred to therein, except as expressly provided for in these Conditions.
2.3 If there is a conflict between these Standard Terms and Conditions and the Special Conditions then these Standard Terms and Conditions shall prevail unless expressly and specifically amended by the Special Conditions.
2.4 Where Peritus provides or otherwise notifies the Customer of any third party or other Product-specific terms that are applicable to any Products, the Customer shall comply at all times with such terms; and indemnify Peritus and keep Peritus fully and effectively indemnified against all actions, claims and proceedings and all losses, costs, damages and expenses suffered, made or incurred by Peritus or any member of its group as a consequence of or in connection with the Customer’s failure to comply with such terms.
3. QUOTATIONS AND PRICES
3.1 Any quotation made by Peritus is subject to Peritus obtaining satisfactory credit and payment references in respect of the Customer. A quotation shall, unless otherwise stated therein, remain open for acceptance for 14 days only after which time it shall lapse and cease to be binding on Peritus. Every quotation is subject to revision by Peritus for errors and omissions and increase in price in accordance with Condition 3.2 below.
3.2 Prices are based on current costs and charges for the Products at the date of quotation or at such earlier date as may be specified by Peritus. Prices may be increased by Peritus to take into account any change in such costs or charges for Products. Confirmed purchase orders billed on a periodic basis shall be invoiced at the price in effect at the date of invoice, all other confirmed purchase orders shall be invoiced at the price in effect at the time of Peritus’ acceptance of the order.
3.3 Unless otherwise stated by Peritus in the quotation or Order Acknowledgement prices exclude any and all delivery charges (including, without limitation, transportation, packing and transit insurance costs), out-of-pocket costs and expenses, duties, levies and taxes (including, without limitation, VAT) and any credit card payment fees. All such sums shall be payable by the Customer in addition to the prices quoted.
4. DELIVERY
4.1 Peritus shall supply Products to the Customer in accordance with the relevant Contract.
4.2 Delivery of any goods comprised in the Products shall be deemed to take place when the goods are delivered by or on behalf of Peritus or the Customer or a person contracted by the Customer to transport the goods otherwise takes physical possession of the goods. Risk of loss or damage to such goods shall pass to the Customer at the time of delivery. Notwithstanding the foregoing, risk of loss or damage to goods which are returned to Peritus for the purposes of providing the Products shall remain with the Customer at all times.
4.3 Any delivery date for any Product given by Peritus is given as an estimate only and Peritus shall in no event be liable for delays in delivery. Time shall not be of the essence for delivery of any order between Peritus and the Customer. Peritus shall not be responsible for any delay or failure to deliver due to any act or circumstances beyond Peritus’ reasonable control.
4.4 Peritus shall be entitled to use any method or means of transportation to deliver Products and may despatch the Products in multiple shipments.
5.STORAGE
5.1 If Peritus does not receive from the Customer sufficient instructions to enable it to despatch any Products within 7 days after notifying the Customer that the Products are ready for despatch, Peritus shall be entitled to arrange storage of the Products, either at its own premises or elsewhere, on the Customer’s behalf and all charges for storage, insurance, transport and demurrage (including Peritus’ charges for storage and incidental expenses) shall be payable by the Customer. The Products shall be deemed to have been despatched and the risk therein shall be deemed to have passed to the Customer on the date of despatch.
6. TRANSPORTATION
6.1 In the event of any cancellation by the Customer of all or part of an order less than 72 hours before the relevant estimated delivery date the Customer shall, if so, required by Peritus, pay to Peritus a cancellation charge equal to 25% of the order value, with a minimum charge of £25.
6.2 Orders for Products specifically made for the Customer are not able to be cancelled.
7. RETURNS
7.1 Customer may only return non-defective goods if: (a) prior written approval has been obtained from Peritus; (b) the request for the return is made within 14 days of the receipt of the relevant Products; (c) the relevant Products are properly packed to preserve their condition whilst in transit and; (d) the relevant Products are in the manufacturer’s original packing, are in a saleable condition and any software packages or seals have not been opened. If the Customer returns any non-defective Products the Customer shall, at the discretion of Peritus, pay a re-stocking charge equal to 25% of the order value with a minimum charge of £25.
8. PAYMENT
8.1 The Customer shall pay to Peritus all fees, charges, costs and expenses set out in the relevant Contract.
8.2 Unless specifically agreed otherwise in writing, all amounts owed by the Customer to Peritus shall be paid in UK pounds sterling within 30 days of the date of the invoice by such means as Peritus may specify from time to time.
8.3 Any payment to be made under the Contract shall be made in full, free and clear of any set-off, restriction, condition or counterclaim and without any deduction or withholding for or on account of tax, save as required by law. If any such deduction or withholding is required by law to be made the Customer shall pay to Peritus such additional amount as will ensure that Peritus receives the same total amount that it would have received if no such withholding or deduction had been required.
8.4 Peritus may invoice the Customer at any time after the Products have been despatched or provided and Peritus reserves the right to invoice the Customer for Products delivered in instalments after each such instalment has been despatched or provided.
8.5 Time for payment shall be of the essence and failure by the Customer to make full payment by the due date shall entitle Peritus, without prejudice to any other right or remedy available to it, to suspend or cancel any further deliveries to the Customer and to suspend or cancel any order then existing between Peritus and the Customer.
8.6 Peritus shall be entitled to charge interest on any invoiced amount which is not paid by the Customer on the due date on a daily basis from the date the amount fell due to the actual date of payment (inclusive) at a rate of 4% per annum over the base lending rate of the Bank of England from time to time.
8.7 The Customer must notify Peritus in writing of any errors within the invoice within 7 days of the date of the invoice.
8.8 The Customer’s credit limit may be amended or withdrawn without prior notice.
8.9 Title to any goods supplied to the Customer shall pass only upon payment in full for such goods in cleared funds. Whilst ownership of any Products remain with Peritus, the Customer shall:
(A) hold such Products on a fiduciary basis as Peritus’ bailee;
(B) store such Products (at no cost to Peritus) so that they are readily identifiable as the property of Peritus;
(C) not destroy, mark or obscure any identifying label or packaging on or relating to such Products;
(D) maintain such Products in satisfactory condition insured on Peritus’ behalf for their full price against all risks to the reasonable satisfaction of Peritus. On request the Customer shall produce the policy of insurance to Peritus; and
(E) hold the proceeds of the insurance referred to in Condition 8.9(D) on trust for Peritus and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
9. WARRANTIES
9.1 Peritus shall deliver any services to be delivered by Peritus and comprised within the Products with reasonable skill and care.
9.2 Any warranty offered by any Product manufacturer will be passed onto the Customer to the extent permitted by the terms of such warranty. Peritus’ sole obligation under this Condition 9.2 shall be at its option to repair or replace (or procure the repair or replacement of) the Products or any part thereof to the extent provided for pursuant to the applicable manufacturer’s warranty.
9.3 Peritus does not warrant that any Product purchased by the Customer is compatible with the Customer’s own, or any third party, hardware or software. The Customer is advised to contact the manufacturers direct to ascertain compatibility of hardware and software.
9.4 Without prejudice to anything in this Condition 9, the Customer shall carefully inspect the Products on delivery and Peritus shall not be liable for the delivery of faulty Products unless written notice is given to Peritus within 7 days of the date upon which the Products were delivered or, in respect of latent defects not apparent on immediate inspection, within 7 days of the date upon which the defect was discovered.
9.5 Peritus reserves the right to require that all faulty Products be returned to Peritus. In that event Peritus shall pay the cost of carriage by normal means on returned Products and any repaired or replacement Products will be delivered free of charge by Peritus to (at Peritus’ discretion) the location from which they were despatched by the Customer or such other location as Peritus may reasonably determine, or the parties may agree.
9.6 Save as expressly set out in these Conditions, neither Party gives any representation or warranty (express or implied) in respect of the subject matter of any Contract. All warranties, conditions and other terms implied by statute or common law (save for conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall exclude or limit the liability of any party for (i) death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents; (ii) fraud and/or fraudulent misrepresentation by that party or its directors, officers, employees, contractors or agents; or (iii) any other losses to the extent they are not capable of being excluded or limited by applicable law.
10.2 Subject to Condition 10.1:
(A) Peritus’ maximum aggregate liability for all claims arising under or in connection with any Contract, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, shall be limited to a sum equal to the relevant Contract price; and
(B) Peritus shall not be liable to the Customer under any Contract, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, for (i) any indirect or consequential loss or damage; or (ii) any loss of profits, revenue, sales, business, agreements, contracts or anticipated savings, any loss of, or damage to, goodwill, or any loss or corruption of data (in each case whether direct or indirect).
11. TERMINATION
11.1 Without prejudice to any other rights to which it may be entitled under the Contract Peritus may give notice in writing to the Customer terminating the Contract with immediate effect if:
(A) the Customer is in material breach of any of the terms of the Contract and such material breach has not, if capable of remedy, been remedied by the Customer to the reasonable satisfaction of Peritus within 30 days of being notified of the breach by Peritus; or
(B) any step is taken with a view to the winding-up, dissolution or re-organisation of the Customer (other than for the purpose of a solvent liquidation or re-organisation); any step is taken with a view to the appointment of an administrator, liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver or manager in relation to the Customer or any of its assets; the holder of any security interest in relation to any of the assets of the other Customer takes any step to enforce that security; any of the assets of the Customer are subject to attachment, sequestration, distress execution or any similar process; the Customer is or is deemed to be unable to pay its debts as they fall due, admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; the value of the assets of the Customer is less than the amount of its liabilities, taking into account its contingent and prospective liabilities; any step is taken in relation to a composition, compromise, assignment or arrangement with any creditor of the Customer; any step is taken to obtain a moratorium in relation to the Customer or any of its indebtedness; or anything analogous to any of the foregoing occurs in any jurisdiction.
11.2 Termination or expiry of the Contract shall not affect any rights, liabilities or remedies arising under the Contract prior to such termination.
11.3 If Peritus terminates the Contract, the Customer shall pay immediately to Peritus:
(A) all amounts due in respect of Products provided on or prior to the date of termination; and
(B) all costs and expenses incurred or payable by Peritus in connection with such termination that would not have been incurred by Peritus but for such termination (including, without limitation, costs and expenses incurred or payable by Peritus in favour of third parties by way of irrecoverable pre-paid fees or charges and any other investments made or costs incurred in relation to or for the purposes of the Contract, payments in respect of continuing third party arrangements relating to the Products that cannot be terminated on the termination of the Contract; and termination charges payable upon the termination of third party arrangements relating to the Products), provided that where such costs and expenses do not relate exclusively to the Products, the Customer shall pay an allocated proportion of such costs and expenses specified by Peritus (acting reasonably).
12. ASSIGNMENT AND SUB-CONTRACTING
12.1 The Customer may not assign, novate or otherwise transfer or dispose of, or create any trust in relation to, any or all of its rights and obligations under a Contract without the prior written consent of Peritus.
12.2 Peritus may without the consent of the Customer assign, novate or otherwise transfer or dispose of any or all of its rights under the Contract and may sub-contract or delegate the performance of any of its obligations under the Contract, provided that Peritus shall be liable to the Customer in respect of all acts or omissions of any Sub-Contractors for and to the extent to which, if such acts or omissions were of Peritus, Peritus would be liable to the Customer.
13. NOTICES
13.1 All notices which are required to be given under the Contract will be in writing and in the English language. Faxes and email (but not any other form of electronic communication) shall be permitted for the giving of a notice.
13.2 Any such notice sent to Peritus shall be sent to the following address or number:
Address: 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ
For the attention of: Company Secretary
Telephone no.: 0208 1543685
Email: info@perituscloudsecurity.com
13.3 Any such notice sent to Customer shall be sent to their principal place of business.
13.4 All such notices shall, in the absence of earlier receipt, be deemed to have been duly given as follows:
(A) if delivered personally, upon obtaining signature of receipt of delivery;
(B) if sent by first class post, 2 working days after the date of posting; and
(C) if sent by fax or email, at the expiration of 12 hours after the time it was sent.
14. WAIVER AND SEVERANCE
14.1 No delay or omission by Peritus in exercising any right, power or remedy provided by law or under the Contract shall affect that right, power or remedy, operate as a waiver of it or operate as an affirmation of the Contract.
14.2 The single or partial exercise of any right, power or remedy provided by law or under the Contract shall not unless otherwise expressly stated preclude any other or further exercise of it or the exercise of any other right, power or remedy.
14.3 The rights, powers and remedies provided in the Contract are cumulative and not exclusive of any rights, powers and remedies provided by law.
14.4 If any provision, or any part thereof, of the Contract is or shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other terms and provisions of the Contract shall remain in full force and effect.
15. NON-SOLICITATION
15.1 The Customer shall not (except with the prior written consent of Peritus) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment or engagement of Peritus, or any member of the Peritus group, any person employed or engaged by Peritus, or any member of the Peritus group, in connection with the receipt of the Products, other than by means of an advertising campaign not specifically targeted at any of the staff of any Peritus group member.
16. INTERPRETATION
16.1 Headings in these Conditions are for convenience only and do not affect the interpretation of these Conditions.
17. ENTIRE AGREEMENT AND VARIATION
17.1 The Contract constitutes the whole and only agreement between the parties relating to its subject matter and supersedes and excludes all prior agreements or arrangements in that regard made between them.
17.2 Except in the case of fraudulent misrepresentation, each party acknowledges that in entering into the Contract it is not relying upon any pre contractual statement which is not set out in the Contract and no party shall have any right of action against any other party to the Contract arising out of or in connection with any pre contractual statement except to the extent that it is repeated in the Contract.
17.3 Except as otherwise permitted by the Contract, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
18. GOVERNING LAW
18.1 Each Contract shall be governed by and shall be construed in accordance with the laws of England and Wales. Any matter, claim or dispute arising out of or in connection with the Contract, whether contractual or non-contractual, is to be governed by and determined in accordance with the laws of England and Wales.
18.2 Each party irrevocably submits and agrees to submit to the exclusive jurisdiction of the courts of England and Wales and agrees that any proceeding, suit or action arising out of or in connection with any Contract shall be brought in those courts.