TERMS
&
CONDITIONS
SAMCON SOFTWARE TERMS AND CONDITIONS OF SALE
PREAMBLE.
This Sales Agreement establishes a legally binding contract between the Buyer and Samcon Software. By placing an order with Samcon Software and/or accepting any Products and OEM Services from Samcon Software, the Buyer agrees to be bound by and accepts this entire Sales Agreement as in effect at the time of the order placement.
This Sales Agreement represents the entire understanding and agreement between Samcon Software and the Buyer concerning the sale of Products and OEM Services, superseding all prior or contemporaneous agreements, understandings, communications or arrangements (whether oral or written or otherwise) related to the specified subject matter. The Buyer hereby consents to the receipt of electronic records, delivered via email application which is connected to the Internet or Web browser (as applicable). The Buyer and/or individual consumers retain the right to withdraw consent to electronic records in a non-electronic format by contacting Samcon Software in Writing.
The Buyer may issue a purchase order for administrative purposes only. It is clarified that any additional or different terms and conditions that may be contained in a purchase order shall be deemed null and void. The Buyer expressly agrees to the terms and conditions of this Sales Agreement presented herein and in Samcon Software’s invoice or other documentation under its control. The meaning of this Sales Agreement, purchase order or invoice will not be determined by any course of prior dealing between the parties or any usage of trade.
1. DEFINITIONS
a. “Buyer” means the entity that purchases the Products and/or OEM Services from Samcon Software.
b. “Claim” means any demand, action, suit, proceeding, arbitration, investigation or assertion of a right or cause of action of any nature, whether in law or equity, whether known or unknown, whether asserted or unasserted, and whether or not arising under this Sales Agreement, including but not limited to claims for breach of contract, breach of warranty, tortious conduct, negligence, strict liability, intellectual property infringement, violation of law or any other legal theory or basis for recovery.
c. “Samcon Software” means the entity that resells the Products and/or OEM Services to the Buyer under this Sales Agreement, which includes its subsidiaries and affiliates.
d. “Samcon Software Services” means any services which are rendered by Samcon Software
e. “Sales Agreement” means these terms and conditions of sale.
f. “Intellectual Property Rights” or “IPR” means all intellectual property rights and protections, whether registered or unregistered, including but not limited to patents, copyrights, trademarks, trade secrets, know-how, and any other proprietary rights arising under the laws of any jurisdiction, as well as all applications, registrations, renewals, extensions, continuations, divisions, and reissues thereof.
g. “Writing” means any representation of words, letters, symbols, or figures, whether in physical or electronic form, that is capable of being read, reproduced, and preserved, including but not limited to documents, letters, emails, facsimiles, electronic messages, and any other tangible or electronic medium used for recording information.
h. “Products” means information technology products encompassing software, firmware, and hardware.
i. “OEM Services” means specific OEM services, such as maintenance, support and advanced services.
j.“EULA” means that the end user must accept the terms and conditions outlined in all End User License Agreements, Terms of Sales, Terms of Services, Support Terms, Maintenance Terms and similar legal instruments.
2. PRICE
The quoted prices remain valid only for the duration specified in Samcon Software’s quote, if provided, and are subject to adjustment based on currency fluctuations if quoted in a currency other than US Dollars ($USD). Unless explicitly stated in the quote or invoice, prices do not encompass any taxes, handling, shipping, transportation, duties or additional charges or fees associated with the sale and delivery of Products. Samcon Software retains the complete authority to establish pricing and holds the right to modify the prices at its discretion.
3. ORDERS
Samcon Software does not become bound by orders until they have been duly accepted by Samcon Software.
4. PAYMENT
a. Payment terms are established upon full establishment of the Buyer's account by Samcon Software and may be subject to periodic changes. Samcon Software reserves the right to adjust, increase, decrease or terminate the credit privileges and terms of the Buyer at its discretion, without any prior notice. Invoices and/or quotes are due and payable within the stipulated timeframe and currency which is calculated from the invoice date (as specified in the invoice and/or quote). Unless otherwise mutually agreed in Writing, invoices must be settled within thirty (30) days from the date of the invoice. Samcon Software, at its sole discretion, may choose to invoice parts of an order separately. The Buyer undertakes to remit the invoiced amounts without any set-off and/or deduction.
b. Renewal fees are expected on or before the annual renewal date. In the event of a delayed payment, the Buyer acknowledges that Samcon Software may impose interest at a daily rate of four percent (4%) above the base rate of the Bank of England or the maximum rate permitted by law. This interest accrues on the outstanding balance daily until fully paid. The Buyer agrees to reimburse Samcon Software for all reasonable costs, including legal fees, associated with the collection of overdue payments and interest. Failure to make timely payments may result in Samcon Software notifying the relevant Original Equipment Manufacturer ("OEM") directly so that the OEM can commence appropriate commercial action against the Buyer. All payments made by the Buyer are non-refundable unless expressly stated otherwise in this Sales Agreement.
c. In the case of disputes regarding any fees, taxes, or other charges on an invoice, the Buyer must notify Samcon Software in Writing, providing details of the disputed amount and relevant information within five (5) business days of receiving the invoice. Failure to do so within this stipulated timeframe deems the amount undisputed and due. All parties commit to collaborative efforts for the resolution of any such disputed amounts.
5. OEM DELIVERY
Samcon Software will use commercially reasonable efforts to promptly deliver the Products to the Buyer upon receipt of payment in full. Nevertheless, the Buyer recognises that delivery times may fluctuate depending on the availability and processing times established by the OEM. Samcon Software holds no liability for any and all delays and/or disruptions in Product delivery which are attributable to factors beyond its reasonable control, including, but not limited to, delays or technical issues arising from the OEM.
6. INTELLECTUAL PROPERTY RIGHTS
The Buyer acknowledges and agrees that all IPR, encompassing copyrights, trademarks, trade secrets, and any other intellectual property rights pertaining to the Products, belong to the respective OEM. The Buyer is obligated to honor and refrain from infringing upon the intellectual property rights of the OEM, and this obligation extends to any intellectual property rights owned by Samcon Software whether registered or not.
7. LIMITATION OF LIABILITY
a. Samcon Software and its employees, contractors (including subcontractors), representatives and affiliates shall not be held liable for any loss of business, loss of profits or other forms of direct, indirect, incidental, consequential, special or punitive damages, irrespective of whether such damages were advised or foreseeable, or for any claims brought by a third party. Additionally, Samcon Software and its employees, contractors (including subcontractors), representatives and affiliates disclaim all liability for Products being unavailable for use, lost and/or corrupted data or software or any aspects of the OEM Services.
b. In no event shall Samcon Software's liability concerning the purchase and sale of Products, Samcon Software Services, OEM Services or any other matters under this Sales Agreement exceed twenty percent (20%) of the total dollar amount received by Samcon Software for the specific Product(s), Samcon Software service(s) or OEM service(s) giving rise to the Claim. Samcon Software’s liability under this provision shall only be valid for one (1) year on or after the date the order is processed and the Buyer receives the Products.
c. The total liability shall not exceed an amount equal to twenty percent (20%) of the total dollar amount received by Samcon Software for the specific Product(s), Samcon Software service(s) or OEM service(s) giving rise to the Claim.
d. Samcon Software shall not be liable for a Claim unless:
(i) Samcon Software’s liability in respect of that Claim (together with any connected Claims) exceeds $20,000.00 USD; and
(ii) The amount of Samcon Software’s liability in respect of that Claim, either individually or when aggregated with their liability for all other Claims exceeds $60,000.00 USD, in which case Samcon Software shall be liable for the whole amount of the Claim as long as it does not exceed an amount equal to twenty percent (20%) of the total dollar amount received by Samcon Software for the specific Product(s), Samcon Software service(s) or OEM service(s) giving rise to the Claim.
e. The Buyer shall not be entitled to make a Claim where (and to the extent that) the facts, matters and circumstances giving rise to a Claim are not within Samcon Software’s reasonable control which includes (but is not limited to) Products being unavailable for use, lost and/or corrupted data or software or any aspects of the OEM Services.
f. If the Buyer is at any time entitled to recover or otherwise claim reimbursement from a third party (i.e., the OEM) in respect of any matter, event or circumstance giving rise to a Claim the following provisions shall apply:
(i) The Buyer shall take all necessary steps to enforce such recovery or seek such reimbursement from the relevant third party (i.e., the OEM) and shall do so before making a Claim against Samcon Software;
(ii) The liability of Samcon Software in respect of the related Claim shall be reduced by the amount (if any) actually recovered from the relevant third party (i.e., the OEM) (less all reasonable costs, charges and expenses incurred by the Buyer) or extinguished if the amount recorded exceeds the amount of the relevant Claim; and
(iii) If Samcon Software make a payment to the Buyer in respect of a Claim and the Buyer subsequently recovers from a third party (i.e., the OEM) a sum which is referable to that Claim, the Buyer shall promptly repay to Samcon Software the lower of:
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The amount recovered from such third party (i.e., the OEM) (less all reasonable costs, charges and expenses incurred by the Buyer);
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The amount paid to the Buyer by Samcon Software in respect of the relevant Claim.
8. WARRANTIES & DISCLAIMER
a. Products. Samcon Software operates as a reseller of information technology Products. The Buyer explicitly acknowledges that Samcon Software is not the manufacturer of the Products acquired under this Sales Agreement and any warranties offered are solely those of the manufacturer/OEM, not Samcon Software. The Buyer affirms that the purchase of Products relies exclusively on the specifications and service descriptions provided by the manufacturer/OEM and not on any statements, specifications in brochures, photographs or other illustrations presented by Samcon Software.
b. Services. Samcon Software assures and affirms that the Samcon Software Services will be executed in a professional and workmanlike manner, adhering to industry standards. The Buyer acknowledges and accepts that Samcon Software may serve as a reseller of OEM Services. Samcon Software is not the provider of the OEM Services, and the procurement of OEM Services follows the terms and conditions set forth by the service provider. Upon the Buyer's reasonable request, Samcon Software will obtain a copy of these terms and conditions from the provider. The Buyer acknowledges that the providers of OEM Services are not agents of Samcon Software and the third-party service provider assumes sole responsibility for delivering OEM Services to the Buyer. The Buyer agrees to address any loss, claims and/or damages arising from or related to the purchase or provision of OEM Services exclusively with the third-party service provider. The Buyer releases Samcon Software and its affiliates from any and all claims associated with the purchase or provision of OEM Services. The Buyer acknowledges and accepts that services may be subject to tax.
c. DISCLAIMER. SAMCON SOFTWARE CLEARLY AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND INDEMNITIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY PRODUCT(S) OR SERVICE(S), INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL INFORMATION IS SUPPLIED TO THE BUYER "AS IS."
9. INDEMNIFICATION
The Buyer acknowledges and agrees that Samcon Software and its affiliates bear no responsibility whatsoever for, and are under no obligation to protect, indemnify and/or hold harmless the Buyer, its affiliates, or any other party against claims arising from breach of security, loss of data or infringement of intellectual property rights in connection with the manufacture, sale or use of the Products or OEM Services by Samcon Software or its vendors. The Buyer shall indemnify, defend and/or hold harmless Samcon Software and its vendors from any claims, demands, liabilities, costs or expenses arising from: (a) the Buyer's utilisation, marketing, distribution or sale of products in a manner which is inconsistent with the specified product/service descriptions and/or specifications; (b) compliance by Samcon Software or its vendors with designs, specifications or instructions provided by the Buyer; or (c) the Buyer's violation of this Sales Agreement.
10. SOFTWARE & LICENSING
a. Software Products and OEM Services which are resold under this Sales Agreement, along with associated maintenance or support services, shall be subject to the terms of the license agreement between the Buyer and the OEM. In the absence of such an agreement, the governing terms will be the OEM’s standard license and support agreements. Samcon Software will forward these agreements to the Buyer upon the delivery of the Product(s) and/or OEM Services, as provided to Samcon Software by the OEM. It is acknowledged that the distinct terms and conditions, rights and responsibilities between the OEM and the Buyer will extend to any order placed by the Buyer hereunder. However, the Buyer recognizes that Samcon Software is not a party to any such terms and conditions between the Buyer and the OEM. The Buyer agrees to seek satisfaction for any license support claims and/or obligations related to the OEM’s Products and/or OEM Services solely from the OEM. If needed, the Buyer may request assistance from Samcon Software with their claim and Samcon Software will make commercially reasonable efforts to provide such assistance.
b. The Buyer further acknowledges and agrees that Samcon Software acts as a distributor and Value Added Reseller of commercial items. The Buyer, as the end user, must accept the terms and conditions outlined in the EULA(s) before utilizing any Products and OEM Services provided by Samcon Software.
c. Samcon Software relies exclusively on the information provided by the Manufacturer, its Distributor(s), Licensor(s), and Service Provider(s) when fulfilling and adhering to certifications, representations, reporting requirements and regulatory compliance matters related to the deliverables.
d. It is emphasized that Samcon Software provides no certifications, whether express, implied or otherwise, regarding the accuracy or completeness of the information supplied by the Manufacturer/OEM.
11. COUNTERFEIT DISCLAIMER
Samcon Software sources exclusively from the Manufacturers, Distributor(s), OEM’s or Manufacturer Authorized Distribution channels.
12. EXPORT SALES
a. The Buyer expressly undertakes not to export, re-export (whether directly or indirectly), any commodities, technology/technical data or software of United States origin obtained from Samcon Software, or any direct product resulting from such technical data, under the following conditions: -
(i) In violation of the applicable export laws and regulations of the United States, including but not limited to, the Bureau of Industry and Security Export Administration Regulations and the regulations of the Treasury Department’s Office of Foreign Assets Control or any other pertinent national government authority;
(ii) To any country for which an export license or other governmental approval is required at the time of export, without obtaining all the necessary export licenses or other applicable approvals beforehand;
(iii) To any country or national or resident of a country subject to trade embargoes imposed by the United States;
(iv) To any person or entity listed on any government agencies' Restricted Party List, including, but not limited to, the U.S. Department of Commerce’s Table of Denial Orders or Entities List or the U.S. Treasury Department’s list of Specially Designated Nationals;
(v) For use in any sensitive nuclear, chemical, or biological weapons, or missile technology end-uses, unless authorized by the U.S. Government through regulation or specific license.
Additionally, it is noted that warranties provided by manufacturers for exported products may vary or become null and void for products exported outside the United States. Samcon Software does not make representations concerning warranty coverage, compatibility or serviceability for Products utilized outside the United States.
13. CONFIDENTIAL INFORMATION
a. Both parties and each party's representatives are obligated to maintain the confidentiality of information exchanged under this Sales Agreement and shall disclose such confidential information only to their respective employees on a need-to-know basis or as mandated by applicable law.
b. For the purposes of this Sales Agreement, "Confidential Information" encompasses any and all information disclosed by one party to the other, whether conveyed directly or indirectly, in written, oral or any other form or through the examination of tangible objects. This includes, but is not limited to, details related to research, product plans, products, services, customers, markets, software, inventions, processes, designs, drawings, engineering, hardware configuration information and documents pertaining to marketing or finances. Information falling under this category is expressly marked as "Confidential," "Proprietary," or with a similar designation or should reasonably be considered confidential or proprietary based on its nature or the context of its disclosure. This definition extends to information related to Samcon Software’s proprietary information, as well as associated training, documentation and other materials, irrespective of specific markings on such materials. Oral communications qualify as Confidential Information to the extent that (i) they are identified as such at the time of disclosure or (ii) their nature or content reasonably indicates their confidential nature to the receiving party.
c. Confidential Information that is publicly known, becomes public without the receiving party’s involvement, is pre-existing knowledge or is obtained from third parties without a breach and independently developed information are excluded from confidentiality. In the event the receiving party is required to disclose the disclosing party’s Confidential Information by (i) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; (ii) the rules of any listing authority or stock exchange on which its shares are listed; or (iii) the laws or regulations of any country to which its affairs are subject, the receiving party shall promptly notify the disclosing party in Writing before any disclosure, allowing the disclosing party to seek a protective order or other appropriate relief and disclose the minimum amount of Confidential Information necessary for compliance with such order or legal requirement.
d. Both parties hereby commit to taking commercially reasonable measures to protect Confidential Information, ensuring that those with access to such Confidential Information have signed a Non-Disclosure Agreement ("NDA"). If Products are purchased through Samcon Software, disclosure to Samcon Software is permitted under these confidentiality conditions.
14. FORCE MAJEURE
Samcon Software shall not be held liable for any delays in delivery arising from circumstances beyond its control, including but not limited to product unavailability, carrier delays, flood, fire, acts of war, terrorism, earthquake, acts of God, power failure, including governmental acts, orders, restrictions and pandemics. It is expressly accepted by the Buyer that the Buyer’s inability to meet financial obligations is excluded from this provision.
15. RESTRICTIONS
The Buyer is prohibited from altering and/or modifying any of the Products in any manner or integrating the Products with any unauthorised product and/or material not approved by the relevant Manufacturer/OEM. All Products which are supplied to the Buyer may be subject to further restrictions on their distribution or utilisation. The Buyer bears sole responsibility for ensuring compliance with all such restrictions.
16. APPLICABLE LAWS
Each Party shall adhere to all pertinent legislation, statutes and regulations governing its obligations and performance under this Sales Agreement.
17. GOVERNING LAW AND JURISDICTION
This Sales Agreement shall be governed by and construed in accordance with the laws of England. Any disputes arising out of or in connection with this Sales Agreement shall be subject to the exclusive jurisdiction of the English courts located in London, United Kingdom. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Sales Agreement.
18. SEVERABILITY
In the event that any provision of this Sales Agreement is deemed invalid, unenforceable or void under applicable law, such provision shall be considered omitted, and the remaining provisions shall remain fully effective and enforceable.
19. NO WAIVER
The failure or delay in exercising any right or remedy provided under this Sales Agreement or by law shall not constitute a waiver of that or any other rights or remedy, nor shall it limit or restrict the further exercise of such rights or remedies. No single or partial exercise of any right shall limit or restrict the further exercise of that or any other right or remedy. No statement or representation, other than by a Party’s authorised representative in a written waiver, shall constitute a waiver of any rights or remedies.
20. ASSIGNMENT
The Buyer may not assign any of its rights and/or obligations under this Sales Agreement without the prior written consent of Samcon Software, except in cases where either Party may assign this Sales Agreement in its entirety to any entity that acquires all or substantially all of the assigning Party's assets as part of a corporate reorganisation, consolidation, merger or sale. Any change of control of the Buyer will be considered an assignment. Any attempted assignment without the consent of Samcon Software shall be null and void, without any force or effect. This Sales Agreement shall be binding upon and shall inure to the benefit of the Parties' permitted successors and assigns.
21. SUBCONTRACTORS
Where applicable, Samcon Software shall engage and instruct third party subcontractors to perform obligations under this Sales Agreement.
22. RELATIONSHIP
The Buyer and Samcon Software are considered independent contractors. Nothing within this Sales Agreement shall be interpreted as establishing an employer/employee, franchisor/franchisee, partnership, or principal/agent relationship between the Parties. Neither Party shall make any warranty, guarantee, or representation, whether oral, written, or otherwise, on behalf of the other Party.
23. THIRD PARTY RIGHTS
A person who is not a party to this Sales Agreement shall not have any rights and/or obligations under or in connection with it.
24. VARIATION AND AMENDMENT
Any modifications or amendments to this Sales Agreement, unless otherwise specified herein, shall only be valid when agreed upon in Writing and signed by the authorised representatives of both Parties.
25. LOGO USE
The Buyer agrees that Samcon Software may use the Buyer’s name and/or logo on Samcon Software’s website, marketing materials and customer-facing presentations.
26. CONTACT INFORMATION AND NOTICES
All communications, including notices, requests, and demands, must be in Writing and may be delivered by (i) personal delivery (ii) registered or certified mail with return receipt requested or via nationally recognised courier services to the Party at its official corporate address or (iii) by email to Samcon Software at sales@samconsoftware.com, followed by written confirmation (including via email). Notices to Samcon Software should be addressed to sales@samconsoftware.com. Samcon Software's contact details are also available on www.samconsoftware.com.
27. SURVIVAL
Termination of this Sales Agreement shall not affect any rights and/or obligations of either Party that (i) have vested as of the effective date of termination or (ii) are intended to survive completion of performance or termination, including but not limited to provisions regarding Limitation of Liability (Clause 7), Warranties & Disclaimer (Clause 8), Indemnification (Clause 9) and Confidentiality (Clause 13), all of which shall survive termination.
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