End User License Terms & Conditions Agreement

1 DEFINITIONS

1.1 In these terms the following words shall have the following meanings:

The “EULA” means End User License Agreement;

The “Contract” – the Contract made or to be made between the Company and the End User(s) for the sale and supply of Goods and/or Services in accordance with these terms;

The “Company” – means Mitrefinch Limited (Mitrefinch), a company incorporated in England and Wales and whose registered office is Mitrefinch House, Green Lane Trading Estate, Clifton, York, YO30 5YY. Company registration number 01326934.

The “End User(s)“ – the individual, partnership, company or organisation which enters into the contract with the Company;

The “Goods” – the articles and products offered for sale or provided by the Company including without limitation hardware, software and/or the media on which the same may be recorded;

The “Services” – services of software development, installation, consultancy and/or training offered or provided by the Company;

The “Licence” – a licence to use software supplied by the Company in the Company’s standard form from time to time applicable;

The “Support Agreement” – the agreement (if any) under which the Company agrees to provide support for the Goods and/or Services purchased by the End User(s);

The “Installation” – Goods will be deemed to have been installed at the time when they are first available for operational running by the customer which unless otherwise agreed in writing by the Company shall be at the date of delivery;

“Computer Virus” – Any programs or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software.

All references to currency or dollar amounts in the Agreement are to the lawful currency of Canada.

2 DELIVERY

3.1 Any time or date quoted by the Company for delivery of all or any of the Goods and/or performance of Services is an estimate only. The Company shall use reasonable efforts to deliver on the time and dates specified and shall promptly notify End (User(s) of any delays.

3.2 The Company shall as soon as reasonably practicable notify the End User(s) when the Goods will be ready and shall deliver the Goods, when ready, at its own risk to the End User(s)’ address as specified in the order.  The manner of delivery shall be such as the Company in acting reasonably shall deem appropriate.  (The Company reserves the right to impose extra charges for deliveries to be made outside of the Canada).

3.3 Carriage and packing will be charged at the time of despatch subject to location, value of order and/or weight of package.

3 LOSS OR DAMAGE IN TRANSIT

3.1. Subject to clause 4.2, risk in the Goods shall pass to the End User(s) on delivery.

3.2. The Company will replace or, at its option and expense, repair any Goods and/or part or parts thereof damaged in transit provided that the End User(s) gives the Company written notice of damage within 14 days after the delivery date notified by the Company;

4 PRICE AND DATE FOR PAYMENT

4.1. Any price agreed by the Company is based upon current costs or prices at the date of quotation or     Contract, and will be held for 60 days, otherwise, the quotation will be null and void.

4.2. Where the agreed price includes daily rates for Services including but not limited to consultancy, installation and training, the agreed daily rate shall apply to any day or part day on which the Company’s agents or employees are present at the End User(s)’ site or in any End User(s) premises as mutual agreed to in advance by the Company and the End User(s) for the purpose of delivering the said Services.

4.3. The Company reserves the right to charge interest at the rate of 12% per annum on any overdue balance outstanding.

4.4. All prices quoted by the Company and all sums payable under this Contract are in Canadian Dollars and are exclusive of applicable taxes.

4.5. The Company’s normal practice (unless otherwise agreed) is to invoice Goods and/or Services on despatch, for payment on expiry of 30 days from invoice.

4.6. The Company reserves the right to impose an additional charge for returnable containers delivered to the End User(s) if such items are not returned by the End User(s) or are returned damaged.

4.7. The Company may agree to vary the Contract if the End User(s) asks to change the specification of Goods and/or Services (including level of Support Agreement) to be supplied after the Contract has come into force.

4.8. If the End User(s) does not make payments due under the Contract on the date upon which they become due and the End User(S) has not disputed the amounts in good faith (while paying the amounts due not in dispute), then in addition to the right to charge interest under clause 4.3 the Company reserves the right to suspend provision of the Goods and/or Services under the Contract or to suspend provision of services under the Support Agreement until the outstanding payment is received in cleared funds or to terminate the Contract under the provisions of clause 6.1.

5 PASSING OF PROPERTY

5.1. Notwithstanding the provision of clause 4.1 until the Company has received payment in full of all monies payable to it under the Contract the property in and title to all Goods shall be and remain in the Company, and the End User(s) shall ensure that the Goods are kept intact (subject to normal use) and shall not remove or obscure marks or notices which identify such items as being the property of the Company.

6 TERMINATION

6.1. The Company shall have the right to terminate this Agreement immediately by written notice to the End User(s) if:

6.1.1 The End User(s) shall breach any of the terms of this Agreement, except that if such breach is capable of remedy and is not remedied within 14 days of notice specifying the breach and requiring remedy being given to the other, termination shall be effective at the end of that 14 day period or;

6.1.2 the End User(s) being a company or other corporate body has a petition presented or passes a resolution, (other than a voluntary resolution for the purpose of, and followed by amalgamation or reconstruction) for its winding-up or has a receiver and/or manager or administrator or administrative receiver appointed over all or any part of its assets or undertaking or convenes any meeting of creditors or compounds with or makes any arrangement with or for the benefit of creditors.

6.2. The End User(s) shall have the right to terminate this Agreement immediately by written notice to the Company if:

1. 6.2.1 The Company shall breach any of the terms of this Agreement, except that if such breach is capable of remedy and is not remedied within 14 days of notice specifying the breach and requiring remedy being given to the other, termination shall be effective at the end of that 14 day period or;
2. 6.2.2 if the Company has been given prior rectification notice under 6.2.1 and the Company commits the same type of non-compliance on a different occasion; or
3. 6.2.3 The Company being a company or other corporate body has a petition presented or passes a resolution, (other than a voluntary resolution for the purpose of, and followed by amalgamation or reconstruction) for its winding-up or has a receiver and/or manager or administrator or administrative receiver appointed over all or any part of its assets or undertaking or convenes any meeting of creditors or compounds with or makes any arrangement with or for the benefit of creditors.

7 WARRANTY

7.1 Subject to clause 7.2 the Company will, in respect of hardware forming part of the Goods supplied to the End User(s), at its option, as soon as reasonably practicable make good either by repair or by replacement any defect of design, materials or workmanship developing under normal operational running within 12 months after installation of that hardware.

7.2 The Company’s obligations under sub-clause 7.1 is subject to the following limitations and requirements;

1. 7.2.1 The warranty is offered on a return-to-base basis, whereby the faulty hardware will need to be returned to the Company’s registered office at the Company’s expense, by the End User(s), for repair or replacement. If the End User(s) requires the Company to provide an engineer to attend site to make a warranty repair or replacement a call-out fee will be payable by the End User(s) unless they have a valid Support Agreement in place.
2. 7.2.2 Any relevant defect or failure must be promptly notified in writing to the Company;
3. 7.2.3 The Company must be given all opportunities and facilities (including without limitation return to the Company’s premises at Company’s expense) it may reasonably require to inspect and test the hardware in question;
4. 7.2.4 The hardware in question and any attachments and associated equipment and/or software must have been maintained and used in accordance with the Company’s written recommendations and instructions, if any, provided to the End User(s) at or prior to the time of delivery;
5. 7.2.5 The Company has installed and maintained Computer Virus protection software of not less than industry standard and take all other reasonable steps to ensure that any software used in connection with the hardware will be free from any Computer Virus;
6. 7.2.6 Any unauthorised modification or alteration of the hardware;
7. 7.2.7 Use of the hardware with any software or other equipment with which it is incompatible;
8. 7.2.8 No liability shall be accepted by the Company in respect of hardware which is installed and/or opened for inspection by person(s) not trained by the Company in respect of such installation and/or inspection (unless the Company has given permission to do so in advance or is in breach of its warranty obligations under this provision).

7.3 In default of any claim under sub-clause 7.1 within the required time periods and complying with the limitations and requirements set out in sub-clause 7.2 all hardware and all part or parts thereof shall be deemed to have been supplied in full conformity with the Contract and to have been accepted.  The said 12 month period shall be extended by an additional thirty days with regard to any part of hardware repaired or replaced pursuant to clause 7.1.

7.4 The Company shall offer the End User(s) a Support Agreement in relation to all Goods supplied on its standard terms which shall apply to all Goods supplied from the date of completion of one day’s training on those Goods, or thirty days after the installation of those Goods if earlier.

7.5 A complaint of defect or failure to which clause 7.1 relates shall not constitute grounds for non-payment of any invoice.

7.6 The warranty set out in this clause 7 is made in lieu of any other warranties, representations or guarantees of any kind, either express or implied, including, but not limited to, any implied warranties of quality, fitness for a particular purpose or ability to achieve a particular result.  The Company does not warrant that the Goods will meet your requirements or that their operation will be uninterrupted or error free.

8 LIABILITY

8.1 Except where otherwise contained in these terms, the Company and the End User(s) have no obligation duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise for indirect damages including loss of business revenue, profits or anticipated savings or wasted expenditure, corruption or destruction of data, or for any indirect or consequential loss whatever.

8.2 Neither the Company or the End User(s) excludes or restricts liability for death or personal injury resulting from its own negligence or liability or for liability resulting from fraudulent misrepresentation.

8.3 Subject to clause 8.2 the Company’s and the End User(s)’ liability for any breach of the terms of the Contract or otherwise will be limited to one and a half times the price paid by the End User(s) under the Contract for the Goods and/or Services.

9 WORK ON END USER(S)’ PREMISES

Where work is to be done on any Goods by the Company and/or any other Services are to be performed on the End User(s)’ premises, then, in relation to such Goods and/or Services, the End User(s) shall be responsible for carrying out all site preparation and other preparatory work necessary to enable the work to be done and/or the Services to be performed at any site or in any premises.  The End User(s) shall at its own expense provide all such services and facilities as may be necessary to enable the work to be done expeditiously and/or the Services to be performed.

10 INTELLECTUAL PROPERTY RIGHTS

All and any intellectual property rights (including without limitation copyright) in and to the software forming part of the Goods and/or Services and all relevant source codes, the media on which the software are recorded, and all other goods and any literature (including without limitation sales literature) supplied by the Company in relation to any of the foregoing, shall remain at all times, both before and after termination of the Contract, vested exclusively in the Company (subject only to the Licence) and the End User(s) shall use all reasonable endeavours to protect the right of the Company in and to the same.

11 GENERAL

11.1.1 The End User(s) shall not be entitled to withhold or delay payment or exercise any right of set-off whatsoever and howsoever arising or arisen which might otherwise be available to it;

11.1.2 The Company and the End User(s) will comply in all material respects with all applicable laws, ordinances, rules, regulations, decisions, orders and requirements of governmental authorities and courts applicable to them and their obligations under this Agreement except where compliance therewith is contested in good faith by appropriate proceedings.

11.1.3 The Company and the End User(s) shall have no liability whatsoever for any failure to perform, or for any delay in the performance of, and of its obligation under the Contract arising wholly or in part by reason of any factor beyond its direct control, including without limitation shortage of raw materials, components or services, act of God, war, national emergency, industrial dispute, civil commotion, fire tempest and/or flood.

11.1.4 No failure or delay on the part of the Company or the End User(s) to exercise any of its rights under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof.  Any waiver by a party of any breach by the other party of any of its obligations under the Contract shall not affect the rights of the non-breaching party in the event of any further or additional breach or breaches.

11.1.5 The Contract is personal to the parties, who shall not assign or in any way part with the benefit thereof without the other party’s prior written consent.

11.1.6 Each and every obligation contained in these terms shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation.

11.1.7 The clause headings in these terms are for convenience only and shall not in any way affect the interpretation of the Contract.

11.1.8 These terms and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between the Company on the one hand and the End User(s) or any third party on the other.

11.1.9 No variations to these terms or the Contract shall apply unless they are expressly accepted in writing by the parties.

11.1.10 For the avoidance of doubt nothing in this Agreement shall confer on any third party any benefit or the right to enforce any term of the Agreement.

11.1.11 This agreement shall be governed and construed in all respects in accordance with the laws of the Province of Ontario and the parties agree to submit to the exclusive jurisdiction of the Ontario courts.