Definitions

1.1                 In these Terms:

"Keimos" means Keimos, IT Training services;

"Customer" means the person, firm or company seeking to purchase any Products and/or license any Licensed Products and/or take any Services from Keimos;

"the Products" means any products or articles offered for sale by Keimos and purchased or to be purchased by Customer as specified in the Agreement;

"the Licensed Products" means any products or articles offered to be licensed by the Keimos and licensed or to be licensed to Customer as specified in the Agreement;

"the Services" means any services offered for supply and to be supplied by Keimos to Customer as specified in the Agreement;  and

"the Agreement" means any agreement for sale and purchase of the Products and/or license of the Licensed Products and/or provision of the Services made between Keimos and Customer following submission of an order by Customer and acceptance of the order by Keimos in all cases on these Terms.

1.2               Every order submitted by Customer (in whatever form) and accepted by Keimos shall constitute a separate agreement.

2                     Keimos's Terms and Conditions to Apply

2.1               These Terms shall apply to and govern any Agreement or transaction between Keimos and Customer and shall supersede and take precedence over any other terms and conditions, whether written or oral (including without prejudice to the foregoing generality, any contained in any order form used by Customer) and notwithstanding anything to the contrary in such other terms and conditions.  These Terms shall apply not only to the present Agreement but to all future business between Keimos and Customer except as agreed by Keimos in writing.

2.2               No amendment, variation of, or addition to any part of these Terms may be made except in writing signed by a duly authorised representative of Keimos and Customer.

3                     Sale, License, Purchase and Supply of the Products, the Licensed Products and the Services

3.1               Keimos shall sell the Products and/or license the Licensed Products and/or provide the Services (as appropriate) to Customer and Customer shall purchase and accept them in accordance with these Terms.

3.2               The Products are offered for sale and the Licensed Products are offered to be licensed subject to availability at the time of receipt of any purchase order or instruction and Keimos shall have no liability whatsoever to Customer if the Products or the Licensed Products or any of them, are unavailable for sale and/or license for any reason.

3.3               Keimos's price list is for guidance only and may be varied at any time by Keimos without notice.  The price shall be that specified in the Agreement.

3.4               Any price quoted by Keimos in respect of the sale and supply of Products and/or the license of Licensed Products and/or the supply of Services shall, unless otherwise indicated in the Agreement, be exclusive of the costs of delivery (to the destination agreed between Keimos and Customer), including carriage and insurance in transit.  Any estimate submitted by Keimos and accepted by Customer is based on Keimos's costs at the date of issue and is subject to amendment if Keimos's labour and/or license costs and/or other costs increase before or whilst the Products or the Licensed Products or the Services are actually being provided by Keimos.  Keimos may charge additional costs calculated at its usual commercial rates then applicable for any delays or increases in the scope of the Services arising out of Customer's failure to comply with any of its responsibilities specified in these Terms or out of Customer's failure to give proper instructions to Keimos or to give Keimos adequate information in respect of the nature, scope and extent of the Services or arising out of any other cause except for the fault or negligence of Keimos.

3.5               Keimos reserves to itself absolute discretion in respect of the means and procedures to be followed in providing the Services and shall be entitled, where Keimos considers it necessary, to vary or deviate from or interrupt the agreed or usual method of providing the Services (without prejudice to Customer's responsibilities hereunder).  The Services shall be provided by Keimos at a location agreed between the parties.

3.6               Keimos may sub contract all or any part of the supply of the Services without the consent of or prior intimation to Customer.

3.7               The prices shown in the Agreement are inclusive of Value Added Tax for the Products, the Licensed Products and the Services at the rate applicable on the invoice date.  Keimos reserves the right to increase or otherwise vary the price or rate for the Products and/or the Licensed Products and/or the Services where, after an order has been placed by Customer but prior to delivery or provision, new, additional, or increased taxes, levies, tariffs, or duties are levied in respect of the Products or the Licensed Products or the Services by H M Government (including the Inland Revenue and H M Customs and Excise) or any other taxing authorities.

3.8               Unless otherwise agreed payment is made by Customer via an online secure credit transaction system provided by NetBanx Limited. Customer shall enter his/her credit or debit card details in a totally secure environment which details are encrypted before being transmitted. Credit or debt card details must be provided by the Customer with the submission of any online order for Products and/or Licensed Products. Time is of the essence in respect of payment.

3.9               If an order by Customer is not submitted online but is sent directly to Keimos the order must be submitted with a cheque for the full cost of the Products and/or the Licensed Products ordered made payable to "Keimos, IT Training services".

3.10           Customer shall have no right to set off any sums due or to become due by it to Keimos against any sums due or to become due by Keimos to Customer, and Customer shall make payment of any sums invoiced by Keimos under the Agreement in respect of the Products and/or the Licensed Products and/or the Services and any interest due without any set off, compensation or deduction of any kind.

3.11           No Products and/or Licensed Products will be despatched until cleared funds have been received by Keimos.

3.12           All payments shall be made by Customer to Keimos in £ Sterling unless expressly agreed to the contrary.

4                     Licence

4.1               In terms of the Agreement Keimos grants the Customer a non-exclusive non-assignable licence to use the Licensed Product for the sole purpose of training.

4.2               The Licensed Product may be installed and used on the hard drive of a single computer for use by Customer only. Any third party wishing to use the Licensed Product must licence the Licensed Product from Keimos. The Licensed Product cannot be used on more than one computer. An individual licence for the Licensed Product must be obtained for any other computer.

5                     Delivery

5.1               Unless otherwise agreed delivery of Products and/or the Licensed Products shall be made to the destination agreed between Keimos and Customer in the Agreement and Customer shall be solely responsible for the costs of delivery, including carriage and insurance in transit.  [Customer shall be solely responsible for all documentation and formalities (and any duties or levies) in respect of importation of the Products and/or the Licensed Products into any territory out with the United Kingdom.]

5.2               Keimos shall use reasonable endeavours to deliver the Products and/or the Licensed Products within a reasonable period but, unless otherwise expressly agreed in writing, delivery dates specified by Keimos are approximate and given for guidance only.  Time shall not be of the essence to the Agreement with regard to delivery. Keimos shall not be under any liability to Customer for any delay in delivery or for non-delivery of the Products and/or the Licensed Products nor may Customer cancel the Agreement or treat it as repudiated. 

5.3               Customer must notify Keimos in writing within 14 days of the date of delivery of the Products and/or the Licensed Products of any damage to or failure to meet agreed specification in all or any part of the Products and/or the Licensed Products, or if the quantity delivered is not as stated in the Agreement or as agreed between Keimos and Customer.  Keimos shall use its best endeavours to procure that Products and/or the Licensed Products are suitably packaged prior to despatch but without liability to Customer for damage for want of suitable packing.  Keimos shall have no liability whatsoever to Customer in respect of damage, failure to meet agreed specification or late or short delivery and Customer shall be deemed to have irrevocably waived all its rights and remedies which it might otherwise have had in relation to such damage, failure to meet agreed specification or short delivery unless proper notification has been made in accordance with this clause 5.3 and clause 10.3 of these Terms.

6                     Title

6.1               Property and title to the Products to be sold by Keimos and licences to any Licensed Products to be licensed by Keimos will not pass until such time as payment is made in full to Keimos of all sums and debts due in respect of the Products supplied or and/or the Licensed Products licensed not only under the Agreement but also under any other agreement for the supply of goods and services and all other sums for the time being howsoever due or to become due by Customer to Keimos.  Title to the Licensed Products does not pass to Customer under any circumstances.

6.2               Until property in and title to the Products and/or license to the Licensed Products passes to Customer, Customer shall store the Products and/or the Licensed Products separately from any other property in its possession so that the Products and/or the Licensed Products are readily identifiable and separable from any other goods stored on Customer's premises or otherwise in its possession.  Until such time as property and title to the Products and/or license to the Licensed Products has passed to Customer, Keimos shall be entitled to enter upon Customer's premises at any time (without giving prior notice) and repossess the Products and/or the Licensed Products.  Alternatively, Keimos may require Customer at any time forthwith and at Customer's full expense to deliver the Products and/or the Licensed Products to Keimos.  If Keimos delivers the Products to Customer prior to payment for the Products and/or if any other sum is due by Customer to Keimos and Customer sells the Products to a third party, Customer shall make such sale only as trustee for Keimos and the proceeds of that sale shall be identified and kept separate from Customer's general bank accounts as monies to be held upon trust and payable on demand to Keimos.

7                     Customer's Responsibilities

7.1               Customer shall be solely responsible for the use and application to which any Products supplied and/or the Licensed Products licensed by Keimos to Customer are to be put and confirms that Keimos has no responsibility in relation thereto. Customer shall indemnify Keimos and keep Keimos indemnified from and against all costs, claims, liabilities, damages and expenses arising in any way out of the subsequent supply or use or application of the Products and/or the Licensed Products or their incorporation with other products by Customer or any third party to whom Customer supplies the Products and/or the Licensed Products.

7.2               Customer shall secure any and all permissions and clearances from any relevant party for Keimos to provide the Services and/or supply the Products and/or license the Licensed Products to Customer.

7.3               Customer shall ensure its premises or such other premises at which the parties agree the Services are to be provided are safe and adequate for the performance of the Services therein.  Customer shall also ensure that the Services can be provided without interruption therefrom.

8                     Risk

Risk of loss or damage to the Products and/or the Licensed Products shall pass to Customer upon uplift for delivery notwithstanding that title has not passed to Customer.

9                     Lien

Keimos shall have a first and general right of lien over all or any goods or other items of Customer from time to time lawfully in its possession (or that of its employees or agents) and that in respect of all monies outstanding at any time due by Customer to Keimos.

10                 Warranties and Implied Terms

10.1           Unless otherwise stated, the Products are not sold and the Licensed Products are not licensed as fit for any particular purpose or as conforming to any general or particular standards.

10.2           Unless otherwise stated, and except as provided in this Clause 9 or in respect of any warranty or term implied by law and which law cannot be excluded, Keimos gives no warranty or representation or undertaking, whether express or implied, regarding the purity, condition or quality of the Products and all such terms, warranties, representations and/or undertakings implied by law are to the maximum extent permitted hereby excluded, including without prejudice to the foregoing generality, those implied by Sections 13, 14 and 15 of the Sale of Goods Act 1979 (as amended).

10.3           If the Products and/or the Licensed Products or any of them supplied or licensed to Customer do not meet any mutually agreed specification Keimos shall, at no further expense to Customer, replace or fix such Products and/or Licensed Products. Customer shall have no other remedy in respect of such Products and/or Licensed Products and in particular but without prejudice to the foregoing generality, shall have no remedy in damages.  Customer shall notify any failure to meet agreed specification to Keimos in accordance with clause 5.3 and in the event that Customer fails to notify any such failure accordingly it shall be deemed to have irrevocably waived all its rights and remedies which it might otherwise have had with regard to such failure in respect of the Products and/or the Licensed Products.

10.4           Except to the extent implied by law and which by law cannot hereby be excluded, Keimos shall not under any circumstances be liable to Customer for any indirect or consequential loss including without prejudice to the foregoing generality, financial loss, loss of profits, production, anticipated savings or income.  Where any person, firm or company by whom Keimos is or has been supplied validly excludes limits or restricts his or its liability to Keimos in respect of the Products or the Licensed Products or any of them for any loss or damage arising in connection therewith, then the liability of Keimos shall be correspondingly excluded, limited or restricted.

10.5           Unless otherwise stated the Services are not provided as conforming to any general or particular standards.

10.6           Unless otherwise stated, and except as provided in this clause 9 or in respect of any warranty or term implied by law and which by law cannot be excluded, Supplier gives no warranty or representation or undertaking, whether express or implied, regarding the quality of the Services and all such terms, warranties, representations and/or undertakings implied by law are to the maximum extent permitted hereby excluded, including without prejudice to the foregoing generality, those implied by Sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 (as amended).

10.7           Keimos warrants to Customer that the Services will be provided in a reasonably competent manner within a reasonable timescale and that Supplier will exhibit reasonable skill and care in the provision of the Services.

10.8           Without prejudice to the other provisions hereof Keimos's total contractual liability (whether arising under these Terms or for negligence or otherwise) in respect of the supply of the Products or the licensing of the Licensed Products or the provision of the Services shall not under any circumstances exceed the selling price of the Products and/or the cost of licensing the Licensed Products and/or the cost of providing the Services in question.

11                 Termination

11.1           Keimos shall be entitled to terminate the Agreement or any other agreement for the supply and/or licensing of goods or provision of services between Customer and Keimos in the event that Customer is in material breach of any terms thereof. 

11.2           In the event that Customer, being a limited company, becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or has a Receiver, Liquidator (including a Provisional Liquidator) or Administrator appointed to it, or being an individual, firm or partnership becomes apparently insolvent or has a Trustee in Sequestration appointed to his or its estate or the equivalent thereof in any foreign jurisdiction, Keimos will be entitled to terminate the Agreement or any other agreement for the supply of goods or services between Customer and Keimos .

11.3           Upon termination Keimos shall be entitled to repossess the Products and/or the Licensed Products and/or any other goods supplied under the Agreement or such other agreement where any sum remains outstanding in respect of the Products and/or the Licensed Products or any other such goods.  Furthermore, all sums due by Customer to Keimos at the date of termination of the Agreement or any other such agreement shall become immediately due and payable by Customer to Keimos without prejudice to Keimos's whole other rights and remedies.

12                 Intellectual Property Rights

12.1           Customer is not entitled to and shall not sub-licence any of the Licensed Products licensed to Customer by Keimos.

12.2           Nothing in these Terms shall be construed as a grant of any intellectual property rights by Keimos in the Products or the Licensed Products nor as placing Keimos under any obligation to grant Customer future rights in the Products or the Licensed Products.  Customer shall have no claims to any intellectual property rights which arise, from or in connection with the Products or the Licensed Products or Keimos's evaluation of them.  Ownership of any intellectual property rights existing in the Products and the Licensed Products which are vested in Keimos will at all times remain with Keimos.

13                 Miscellaneous

13.1           To the extent that any part of these Terms is or becomes invalid or unenforceable for any reason, the remainder of these Terms shall remain in full force and effect.

13.2           Customer shall not assign or transfer this Agreement without the prior written approval of Keimos.

13.3           Keimos shall be entitled to cancel or suspend the Agreement and/or the sale and/or licensing and/or supply of the Products or the Licensed Products or the Services without liability for loss or damage or failure to implement its obligations if performance of its obligations is prevented or in any way adversely affected by reason of any act or occurrence beyond its reasonable control including, without prejudice to the foregoing generality, fire, accident, failure of suppliers, carriers or sub-contractors, strike, riot or civil disturbance, statutory enactment or Act of God.

13.4           The Agreement and these Terms shall be governed by the law of Scotland and Keimos and Customer submit to the exclusive jurisdiction of the Scottish Courts.

13.5           Failure by Keimos to exercise or enforce any rights shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time thereafter.

13.6           Any provision of these Terms is held to be legal and valid and unenforceable in whole or in part the illegality, validity and forceability of the remaining Terms shall not in any way be effected.

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