1.1 “Customer” means the party identified as the Customer in this Agreement to whom Smoothwall may agree to supply products or services in accordance with these terms and conditions.
1.2 “Smoothwall” means Smoothwall Inc., a North Carolina Corporation (ID Number: 1053114) of:
8008 Corporate Center Drive, Ste 410
United States of America
1.3 “Products” means goods including but not limited to computer hardware and software items to be provided by Smoothwall to the Customer in accordance with these terms and conditions.
1.4 “Services” means services including but not limited to technical support, consultancy, installation, training and managed services to be provided by Smoothwall to the Customer in accordance with these terms and conditions.
1.5 “Open Source Software” means all software which comprises part of the Products that has been licensed by its authors or owners under an Open Source license such as the GNU General Public License Version 2 (GPL) (seewww.gnu.org/licenses/gpl2.html for license details), the GNU Lesser General Public License (LGPL) (see www.gnu.org/licenses/lgpl.html for license details) or other Open Source license.
1.6 “Third Party Software” means all proprietary software, excluding all Open Source Software, owned by or licensed to the Customer from a third party (whether or not supplied by Smoothwall) and which comprises part of the Products.
2.1 All orders placed with Smoothwall by the Customer for Products shall constitute an offer to Smoothwall under these terms and conditions, subject to availability of the Products and to acceptance of the order by Smoothwall’s authorized representative.
2.2 All orders are accepted and all Products and Services are supplied under these express terms and conditions only. Smoothwall objects to all different and additional terms in Customer’s purchase order and other Customer documents. No amendment of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by authorized representatives of both parties.
2.3 In the case of orders placed via an on-line store the order will only be deemed to have been accepted by Smoothwall upon receipt by the Customer of either an ‘order acceptance’ or an ‘order shipment’ email or similar communication. Any other email notification from Smoothwall, its agents or servants does not constitute order acceptance, and in any event only Smoothwall’s ordering documents and these terms and conditions (and not the Customer’s) apply to the sale.
2.4 It is agreed that these terms and conditions prevail over the Customers terms and conditions of purchase unless these latter terms and conditions are amended by Smoothwall in writing and signed by Smoothwall.
The relationship between Smoothwall and the Customer is that of independent contractor. Neither party is the agent of the other, and neither party has any authority to make any contract or make any obligation expressly or implied in the name of the other party without that party’s prior written consent for express purposes connected with the performance of this Agreement.
4.1 Any time quoted for shipment is to be treated as an estimate only, but shipment may be postponed because of conditions beyond Smoothwall’s reasonable control, and in no event shall Smoothwall be liable for any damages or penalty for delay in shipment or delivery.
4.2 Risk shall pass to the Customer at the time the Products are shipped by Smoothwall. Smoothwall accepts no liability for loss or damage caused by the carrier.
4.3 If Products have not been received, the Customer must notify Smoothwall within 7 days of the date of the invoice or within 14 days of the date of email shipment notification if ordered from an on-line store. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
4.4 In the case of Products supplied by Electronic Delivery where the Customer is to download a copy of the Products from a server operated by Smoothwall its servants or agents, the “Date of Shipment” will be the date and time when the Electronic Delivery was first made available for the Customer to download or when the Serial Number License Key was issued by Smoothwall or its authorized representative.
4.5 Failure of the Customer to download the Products before the Electronic Delivery download should “time-out” and be unavailable (typically 3 to 7 days) shall not constitute a breach of the Agreement. The Customer should contact Smoothwall by email using the appropriate email address as published on its website to notify Smoothwall and arrange for a new Electronic Download to be set-up.
Subject to Clause 8.2, any request by the Customer for cancellation of any order or rescheduling of deliveries will only be considered by Smoothwall if made at least 12 hours before shipment of the Products, and shall be subject to acceptance by Smoothwall at Smoothwall’s sole discretion, and subject to a reasonable administration charge therefore by Smoothwall. The Customer hereby agrees to indemnify Smoothwall against all loss, costs (including the cost of labor and materials used and overheads incurred), damages, charges and expenses (including attorney’s fees) arising out of the order and its cancellation or rescheduling.
6.1 Catalogues, price lists, prices stated on web sites and other advertising literature or material used by Smoothwall or its authorized representatives are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on Smoothwall.
6.2 All prices are given by Smoothwall at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to Smoothwall of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at Smoothwall’s discretion.
6.4 For ongoing products and services such as support, Upgrade Assurance or subscriptions, Smoothwall shall have the right to periodically change the prices in accordance with its then current pricelist, unless agreed otherwise in writing with the Customer.
6.5 All prices are exclusive of any present or future Sales and Usage Tax, any similar state and federal taxes, revenue or excise tax, import duty (including brokerage or customs clearance fees), or any other applicable taxes. All such taxes are payable by the Customer, but if paid by Smoothwall for any reason, Customer shall reimburse Smoothwall on demand.
6.6 All sales are FOB at their point of origin and the Customer is responsible for the payment of any local duties or taxes levied by the destination country. Unless agreed otherwise all shipments will be made by the method most advantageous to Smoothwall.
6.7 If the Customer should arrange their own shipping then Smoothwall is not responsible for insurance of the goods.
6.8 To cover credit card processing costs, Smoothwall will apply a 4% surcharge to any invoice greater than $4,000 settled with a credit card, unless expressly prohibited by applicable law or merchant services agreement. In addition, Smoothwall reserves the right to apply this surcharge, as it deems necessary, on any smaller value transactions.
7.1 Invoices will be raised and dated by Smoothwall on the date of shipment of the Products, or if supplied electronically, the date of order. Unless otherwise specified by Smoothwall, invoices will be payable by the Customer 30 days from the date of the invoice. Time for payment is of the essence. Payments which are not received when payable will be considered overdue and Smoothwall reserves the right to charge interest at the rate of 8% per annum from the later of the date payable or 30 days from the invoice date. Such interest shall be payable on demand.
7.2 Title to hardware Products shall pass to the Customer only after all prices, taxes and charges due in respect of the Products and any products supplied previously to the Customer have been paid in full.
7.3 To secure the payment of any amounts due to Smoothwall from Customer, Customer hereby grants to Smoothwall (as a secured party) a purchase money security interest in all Products now or hereafter sold to Customer and all proceeds thereof. Customer hereby gives Smoothwall the authorization to sign and file one or more financing statements (UCC I Form) securing and perfecting the interest of Smoothwall in the Products and all proceeds thereof. Smoothwall shall have all of the rights and remedies available to a secured party under the Uniform Commercial Code and other applicable laws.
7.4 The Customer’s right to supply or use the Products shall immediately cease if an Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt, incurs a filing of a voluntary or an involuntary bankruptcy protection from its creditors, or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of federal or North Carolina bankruptcy laws.
7.5 If Smoothwall terminates for any reason this Agreement or if Customer violates any of these terms, Customer will not resell any unsold products and will hold them on Smoothwall’s behalf.
7.6 The Customer shall not do anything to impair or encumber Smoothwall’s rights in the Products, but if the Customer does so, all monies owing by the Customer to Smoothwall shall (without prejudice to any other right or remedy of the seller) immediately become due and payable.
7.7 Smoothwall reserves the right to stop supplying Products to the Customer at any time. Smoothwall reserves the right to withdraw at any time any credit terms that were previously granted.
8.1 Smoothwall will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in either Smoothwall or the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. Smoothwall will use commercially reasonable efforts to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer.
8.2 Unless otherwise agreed in writing by Smoothwall, the Products are supplied in accordance with the manufacturer’s standard specifications. As these standard specifications may be improved, substituted or modified, Smoothwall reserves the right to change its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products.
9.1 The Customer hereby acknowledges that any proprietary rights in any Product, including Third Party Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in Smoothwall or the Third Party Software owner.
9.2 The Customer hereby acknowledges that it is fully responsible for complying with any terms and conditions of license of Third Party Software supplied and delivered by Smoothwall (including if so required the execution and return of a Third Party Software license). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software license or having the same revoked by the proprietary owner. The Customer further agrees to indemnify, hold harmless, and defend Smoothwall against any and all claims, costs, and expenses (including without limitation attorney’s fees) relating to or arising out of any breach by Customer of the terms and conditions of any Third Party Software license.
9.3 The Customer shall indemnify and keep indemnified Smoothwall against any and all claims, costs and expenses (including without limitation attorney’s fees) relating to or arising out of any assertion by a third party that any data or information provided to Smoothwall its servants or agents by the Customer is libelous or defamatory.
9.4 The rights, ownership and copyright in any Smoothwall program code, data and documentation, including text, tabulations and graphical images created by Smoothwall or by a third-party under contract to Smoothwall or to the instruction of Smoothwall, shall remain with Smoothwall.
9.5 The Customer’s use of the Products must be in strict compliance with the applicable license terms for those Products provided by Smoothwall or a third party. If Smoothwall has not received full payment in respect of such Products within 45 days of the due date the Customer’s right to use the Products shall cease immediately.
9.6 NO TITLE OR OWNERSHIP OF ANY SOFTWARE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY SMOOTHWALL SOFTWARE OR ANY THIRD PARTY SOFTWARE, IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
10.1 Smoothwall reserves the right to levy an administration charge in respect of returned Products. 10.2 Returns must be made subject to the following:-
(a) prior authority having been obtained from Smoothwall which will be given at Smoothwall’s sole discretion;
(b) within 30 days of the date of the invoice;
(c) the Products must be properly packed in the original packaging;
(d) the Products must be in a saleable condition;
11.1 Smoothwall warrants that it has good title to or license to supply all Products to the Customer.
11.2 If any part of any hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover and terms provided by the manufacturer of the Products PROVIDED THAT no unauthorized modifications to the Product or to the system of which the Product forms part have taken place. Smoothwall is not responsible for the cost of labour or other expenses incurred in repairing or replacing defective or non-conforming parts.
11.3 All software Products supplied hereunder are supplied ‘as is’ and the sole obligation of Smoothwall in connection with the supply of software Products is either to provide the Customer with an alternative product or to use commercially reasonable efforts to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Product should fail to conform to its product description PROVIDED ALWAYS THAT the Customer notifies Smoothwall of any such non-conformity within 30 days of the date of delivery of the applicable software Product.
11.4 If the products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to Clause 11.2 or 11.3, Smoothwall will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Smoothwall will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the Invoiced Products be deducted or set off by the Customer until Smoothwall has passed a corresponding credit note.
11.5 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, SMOOTHWALL DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.
12.1 IN NO EVENT SHALL SMOOTHWALL BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, CAUSED BY, ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, THE PRODUCTS, ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, OR OTHERWISE, REGARDLESS OF WHETHER SMOOTHWALL HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF THOSE DAMAGES.
12.2 Subject to Clause 11 and 12.1 above, Smoothwall disclaims and excludes all liability to the Customer.
12.3 In addition to the other limitations in these terms and conditions, Smoothwall’s entire liability and the Customer’s sole remedy shall in any event be limited to the contract price.
12.4 The Customer shall indemnify, hold harmless, and defend Smoothwall and its employees in respect of any claims, costs and expenses (including without limitation attorney’s fees) relating to or arising out of any Smoothwall performance or non-performance pursuant to the instructions of the Customer or its authorized representatives.
12.5 The Customer shall indemnify, hold harmless, and defend Smoothwall and its employees against any and all claims, costs and expenses (including without limitation attorney’s fees) relating to or arising out of any assertion of infringement of rights in respect of program code, data and documentation provided to Smoothwall, its agents or servants by the Customer in respect of work done by Smoothwall, its agents or servants in accordance with the instructions of the Customer.
12.6 The Customer shall indemnify, hold harmless, and defend Smoothwall and its employees against any and all claims, costs and expenses (including without limitation attorney’s fees) relating to or arising out of any assertion that any data or information provided to Smoothwall its servants or agents by the Customer is libelous or defamatory.
12.7 The Customer shall properly use the supplied Products and shall provide Smoothwall its agents or servants with all reasonable facilities and information to enable Smoothwall to perform its duties.
12.8 The Customer shall be responsible for complying with all applicable laws and regulatory requirements.
This Agreement may be terminated immediately by giving the other party written notice: 13.1 By Smoothwall if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in Clause 7.1.
13.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
13.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a Receiver or manager appointed over all or any part of its assets, incurs a filing of a voluntary or involuntary bankruptcy protection from its creditors, or generally becomes unable to pay its debts within the meaning of federal or North Carolina bankruptcy laws, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement immediately.
13.4 Subject to the terms of this Agreement, any termination of this Agreement pursuant to this Clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
Having regard to the current statutory or other United States, United Kingdom or European Union regulations in force from time to time and, in the case of Products manufactured in the United States of America or containing software or technology originating in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to Smoothwall of an ultimate destination for any Products, the Customer will not export or re-export directly any Products without first obtaining all such written consents or authorizations as may be required by any applicable government regulations.
Customer must respect the confidential nature of any business or technical information made available to it by Smoothwall. Unless any such information is already freely available in the public domain, or advised that in writing that it is not confidential, then such information is to be treated as strictly confidential by Customer. It is only to be made available to those employees who have a genuine reason for access to the information, unless ordered to be disclosed by a court of competent jurisdiction.
16.1 The headings in these Terms and Conditions of Supply are for ease of reference only and shall not affect its interpretation or construction.
16.2 No forbearance, delay or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
16.3 The Customer agrees not to assign or transfer any of its rights or obligations herein or under any proprietary software license without the prior written consent of Smoothwall.
16.4 In the event of any of these terms and conditions or any part of any of them being judged illegal or unenforceable for any reason, the continuation in full force of the remainder of them shall not be prejudiced.
16.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from Force Majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.
16.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
16.7 These terms and conditions shall be governed and construed in accordance with the laws of the State of North Carolina without regard to conflict of laws principles. Except for an application by Smoothwall for injunctive or other equitable relief, all parties agree to submit to the exclusive jurisdiction of North Carolina and further agree that any matter, claim or cause of action shall be exclusively brought and maintained in a court in North Carolina.
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