The definitions and rules of interpretation in this clause apply in these terms and conditions.
(a) “Customer” means the party identified as the Customer in the Quotation.
(b) “Smoothwall” means Smoothwall Inc., a North Carolina corporation (SOSID Number 1053114) with a principal place of business at Woodfield Corporate Center, Suite 410, 8008 Corporate Center Drive, Charlotte, NC 28226-4489, United States of America or any subsidiary or associated company.
(c) “Additional Services” means such additional Products or Services including Support Services to be provided by Smoothwall as either agreed between the parties or requested by the Customer and provided by Smoothwall in accordance with clause 10.
(d) “Agreement” means the Quotation, the US Terms and Conditions, and any other terms incorporated into the Quotation by reference (such as the Software License, the Service Level Agreement, the Hardware Limited Warranty, the Third Party Software License and the Open Source Software License) that are applicable to the Products or Services set out in the Quotation.
(e) “Business Day(s)” means Monday to Friday except for public holidays in the United States of America.
(f) “Business Hour(s)” shall mean 8.30am to 5.00 pm inclusive on any Business Day.
(g) “Confidential Information” means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party including Customer Personal Data and Smoothwall Personal Data and in the case of Smoothwall any information recorded in writing and electronically relating to and forming part of the Products, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.
(h) “Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
(i) “Delivery Date” means such estimated date, if any, for shipping or making available for collection of the Products or commencement of the provision of the Services as set out in the Quotation or as agreed in writing between the parties after the Customer has accepted the Quotation.
(j) “Hardware” means Smoothwall Hardware and Third Party Hardware.
(k) “Initial Term” means the term of this Agreement in which Smoothwall supplies the Products and Services and the initial duration of the applicable Software License and Third Party Software License set out in the Quotation.
(l) “Open Source Software” means all software which comprises part of the Products or Services that has been licensed by its authors or owners under an Open Source License.
(m) “Open Source Software License” means such applicable public License terms and conditions by which the authors grant to the general public a right to use their software freely and allows such software to be changed and shared (in modified or unmodified form) by anyone such open sources software such as the GNU General Public License, the GNU Lesser General Public License (LGPL) or other open source Licenses.
(n) “Payment Terms” means the provision set out in the Quotation and clause 12 of the US Terms and Conditions.
(o) “Price” means the price payable for the Products and Services set out in the Quotation.
(p) “Products” means such Hardware, Software including any Open Source Software that is incorporated and forming part thereof and Third Party Software set out in the Quotation to be provided by Smoothwall to the Customer in accordance with this Agreement as may be amended by any Additional Services from time to time.
(q) “Proprietary Rights” means any registered or unregistered letters patent, patented articles, designs, trademarks, copyright in all specifications, drawings and technical descriptions, computer software and databases, database rights, moral rights, inventions whether or not capable of protection by patent or registration, rights in commercial information and technical information, including know-how, research and development data, manufacturing methods and data, specifications and drawings, formulae, algorithms, prototypes and research materials, and other intellectual property rights, whether registered or unregistered and including applications for the grant of any such assets or rights of the foregoing descriptions and all rights or forms of protection having equivalent or similar effect anywhere in the world.
(r) “Quotation” means the document issues by Smoothwall to the Customer that sets out the Products and/or Services, the length of the Initial Term, Price and Payment Terms upon which Smoothwall is willing to supply the Customer. A Quotation may be in the form of a Smoothwall quotation identified as such or may be in the form of a response by Smoothwall to a Customer’s invitation to tender or request for information or similar procurement documentation issued by the Customer.
(s) “Service Level Agreement” or “SLA” means the description of the Support Services provided to support and maintain some or all of the Products.
(t) “Services” means such services including consultancy, delivery, installation, training, managed services, cloud/hosted services or Support Services set out in the Quotation to be provided by Smoothwall to the Customer in accordance with this Agreement as may be amended by any Additional Services from time to time.
(u) “Smoothwall Hardware” means all Smoothwall branded hardware provided as part of and for use in the provision of the Software, Third Party Software, Open Source Software and Services including information and communication technology, network components and other computing devices.
(v) “Software” means all proprietary software, excluding Third Party Software, owned by Smoothwall, licensed to the Customer pursuant to the Software License, save for any Open Source Software that is incorporated and forming part thereof, and which comprises part of the Products or Services.
(w) “Software License” means the software License granted to the Customer by Smoothwall governing the use that the Customer may make of the Software.
(x) “Support Services” means the maintenance and technical support services described in the Service Level Agreement.
(y) “Tax” means any tax, levy, import, duty, charge or fee wherever applicable.
(z) Third Party Hardware means hardware other than Smoothwall Hardware manufactured or supplied by a third party and provided as part of and for use in the provision of the Software, Third Party Software, Opens Source Software and Services including information and communication technology, network components and other computing devices.
(aa) “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) pursuant to the Third Party Software License and which comprises part of the Products or Services.
(bb) “Third Party Software License” means the software License granted to the Customer by a third party governing the use that the Customer may make of the Third Party Software, which is available to the Customer from Smoothwall on request.
(cc) “US Terms and Conditions” means the terms and conditions set out in this document governing this Agreement.
(a) Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
(b) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(c) A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(d) Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
(e) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
(f) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
(g) A reference to writing or written includes faxes and email.
(h) References to clauses are to the clauses of these US Terms and Conditions.
(i) General words (such as, for example, includes and including) shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words.
(j) A change in the legal status of the parties shall not affect the validity of this Agreement and this Agreement shall be binding on the parties and their respective permitted successors and assignees.
(k) In the event of a conflict between the various constituent parts of this Agreement, the following order of precedence shall apply:
(i) the Quotation;
(ii) the US Terms and Conditions;
(iii) the Software License;
(iv) the Service Level Agreement;
(v) the Hardware Limited Warranty;
(vi) the Third Party Software License; and then
(vii) the Open Source Software License.
2.2 The Hardware Limited Warranty applies to any Smoothwall Hardware supplied under the Agreement.
2.3 The Software License applies if Smoothwall is supplying Software under the Agreement.
2.4 The Open Source Software License applies if Smoothwall is supplying Open Source Software under the Agreement.
2.5 The Third Party Software License applies if Smoothwall is supplying Third Party Software under the Agreement.
2.6 The Service Level Agreement applies if Smoothwall is supplying Support Services under the Agreement.
2.7 The Quotation, the US Terms and Conditions and as applicable the Hardware Limited Warranty, the Software License, the Open Source Software License, the Third Party Software License, the Service Level Agreement, or any other terms incorporated into the Quotation by reference prevail over any inconsistent terms or conditions in or referred to in the Customer’s purchase order, invitation to tender, request for information or similar procurement document issued by the Customer to Smoothwall, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. 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 in accordance with clause 10 or clause 11.
3.2 All orders placed with Smoothwall by the Customer for Products or Services must reference the Quotation and shall constitute an acceptance of the Quotation to Smoothwall, subject to availability of the Products and provided always that this Agreement only comes into being and is valid and binding on both parties on the basis that any wording or terms and conditions or similar on or referenced in the Customer order or acceptance contrary to or inconsistent with the provisions of clause 2 does not form part of this Agreement and receipt thereof is acknowledged by Smoothwall in writing.
3.3 In the case of orders placed via the Smoothwall PartnerNet, the initial Customer application for Products will constitute a request for a Quotation and the confirmation by Smoothwall detailing the Products and Services together with Initial Term, the Price and Payment Terms shall constitute the Quotation. Such on-line Quotation will be deemed to have been accepted by the Customer, unless the Customer has given written notice within 7 days to Smoothwall that it is not accepting the Quotation and prior to such written notice has not done any other act demonstrating acceptance, as for example having downloaded any Software, Open Source Software or Third Party Software or requested supply or delivery or any of the Products or Services. 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.
3.4 The Delivery Date will be set out in the Quotation or, if not, Smoothwall will agree with the Customer the Delivery Date after acceptance by the Customer of the Quotation and confirm the Delivery Date to the Customer in writing.
3.5 Smoothwall may deliver the Products and Services in separate installments. A separate installment does not constitute a separate contract and all installments together form part of this Agreement as a single indivisible contract.
4.2 Unless otherwise agreed in writing by Smoothwall, Products and Services 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 or Services of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products.
(a) deliver the Products in accordance with clause 7;
(b) provide the Services; and
(c) manage and complete the delivery of the Products and provision of the Services as set out in the Quotation.
5.2 Smoothwall shall ensure that its staff, while on the Customer’s premises, for the purpose of, or in connection with, this Agreement or the provision of the Products or Services, adhere to the Customer’s security procedures and health and safety regulations, as from time to time notified to Smoothwall or otherwise brought to the notice of Smoothwall or such persons. The Customer may remove or refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, Smoothwall shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with the terms of this clause 5.2.
5.3 Smoothwall shall be responsible for complying with all applicable laws and regulatory requirements in connection with the performance of its obligations hereunder.
(a) co-operate with Smoothwall in all matters relating to the supply and delivery of the Products and the provision of the Services;
(b) provide in a timely manner such information as Smoothwall may request, and ensure that such information is accurate in all material respects;
(c) install the Products unless otherwise stated in the description of the Services to be provided or the Quotation;
(d) prepare the intended site and premises for installation and use of the Products and test and verify the Products on receipt in accordance with clause 7;
(e) properly use the supplied Products or Services and shall provide Smoothwall its agents or servants with all reasonable facilities and information to enable Smoothwall to perform its duties;
(f) promptly reporting to Smoothwall any suspected defect or error in any Products or Services of which the Customer becomes aware and confirming the details in writing.
6.2 The Customer is responsible for arranging shipping and insurance and the costs of unpacking and disposing of all packaging materials unless otherwise stated in the description of the Services or the Quotation.
6.3 The Customer shall allow Smoothwall to check the use of the Products and Services, and in connection with that purpose the Customer grants Smoothwall access to any premises controlled by the Customer in order to check that the Products and Services are being used in accordance with this Agreement.
6.4 The Customer is responsible for setting up and maintaining adequate disaster recovery and backup procedures in respect of its hardware, software and data and carry out a full backup prior to the provision of any of the Services and installing and connecting the Products to its hardware, software and data.
6.5 The Customer shall be responsible for complying with all applicable laws and regulatory requirements.
7.2 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location and have available all information reasonably required by Smoothwall 2 Business Days prior to the installation and connection Services and delivery, installation and connection of the Products and shall be responsible for:
(a) the provision of all necessary access and facilities;
(b) the engagement of all necessary third parties;
(c) the implementation of all changes agreed by Smoothwall and Customer that must be effected prior to the installation,
as reasonably required for delivering and installing the Products and Services. If Smoothwall is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out and the Customer and Smoothwall have not agreed to reschedule in accordance with clause 7.4, then the Customer shall be liable to Smoothwall the full Price calculated for delivery, installation and connection on that specified day and for the Price calculated and payable for any rescheduled date for delivery, installation and connection.
7.3 Delivery and, if applicable, installation and connection Services shall be effected during Business Hours (excluding bank or public holidays). Smoothwall may levy additional charges for any such Services made outside such hours at the Customer’s request.
7.4 A request by the Customer to reschedule a delivery or installation will only be considered by Smoothwall if made at least 2 Business Days before shipment of the Products and the Customer will be responsible for the reasonable additional costs of any rescheduled delivery or installation.
7.5 Smoothwall reserves the right to stop supplying Products or Services to the Customer at any time.
7.6 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. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
7.7 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.
7.8 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.
8.2 Subject to clause 14, title to Hardware shall pass to the Customer only after Smoothwall has received in full in cleared funds the full Price together with all taxes and charges due in respect of the Products and any products supplied previously to the Customer have been paid in full.
8.3 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.
8.4 Until title of the Hardware has passed to the Customer under clause 8.2, the Customer shall:
(a) store the Products (at no cost to Smoothwall) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as Smoothwall’s property;
(b) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
(c) keep the Products insured on Smoothwall’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Smoothwall, ensure that Smoothwall’s interest in the Products is noted on the policy, and hold the proceeds of such insurance on trust for Smoothwall and not mix them with any other money, nor pay the proceeds into an overdrawn bank account,
but if the Customer fails to do so, all monies owing by the Customer to Smoothwall shall (without prejudice to any other right or remedy of Smoothwall) immediately become due and payable.
8.5 The Customer’s right to possession of the Products before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 12.5 or clause 18 arise or if the Customer encumbers or in any way charges the Products, or if the Customer fails to make any payment to the Smoothwall on the due date.
8.6 The Customer grants Smoothwall, its agents and employees an irrevocable License at any time to enter any premises where the Products is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by Smoothwall in repossessing the Products shall be borne by the Customer.
8.7 On termination of this Agreement for any reason, Smoothwall’s (but not the Customer’s) rights in this clause 8 shall remain in effect.
(a) test and inspect the Products and Services on delivery to ensure that they comply with the applicable specification for each of the Products; and
(b) if so requested by Smoothwall, give Smoothwall reasonable advance notice of such tests (which Smoothwall shall be entitled to attend).
9.2 The Customer shall notify Smoothwall within 30 days of delivery of any material non-compliance of any of the Products and Services with the applicable specification or within such other time scales and subject to such other obligations as the parties may have expressly agreed in writing in respect of user acceptance testing.
9.3 In the absence of any notification by the Customer to Smoothwall in accordance with clause 9.2 the Products shall be deemed accepted by the Customer.
10.2 Smoothwall shall use its commercially reasonable efforts to comply with the Customer’s request, but the Customer acknowledges that the ability of Smoothwall to supply such Additional Services shall depend on the availability of appropriate resources at the time in question.
10.3 Subject to clause 10.2, Smoothwall shall within a reasonable time provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to Price arising from the change;
(c) the likely effect of the change on the Products and Services; and
(d) any other impact of the change on the terms of this Agreement.
10.4 If the Customer wishes Smoothwall to proceed with the change, Smoothwall has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Price and any other relevant terms of this Agreement to take account of the change.
10.5 The Customer shall pay Smoothwall on a time and material basis for any action, work, resources and services expended or performed in response to any Customer request for Additional Services or any changes to the Products or Services to be provided pursuant to this Agreement.
11.2 The Price payable for the Products and Services is as set out in the Quotation subject to the provisions of this clause 11 and is based on Smoothwall’s standard scale of charges in force on the date of this Agreement.
11.3 The Prices and any additional charges payable under this Agreement for any Additional Services to the Customer shall be determined in accordance with Smoothwall’s standard scale of charges in force at the time and agreed in writing before performance or supply by Smoothwall, and shall be charged and invoiced to the Customer by Smoothwall (and paid by the Customer) following agreement by Smoothwall and the Customer of the Quotation for such Additional Service. Such Quotation and Additional Services shall be deemed to vary this Agreement accordingly.
11.4 Smoothwall shall be entitled at any time before the period of 14 days immediately preceding the Delivery Date to vary the Price and any additional charges payable under this Agreement to reflect any changes in Smoothwall’s standard scale of charges and to give written notice of such variation to the Customer. This Agreement shall be deemed to be varied accordingly by such notice of variation unless the Customer shall within 7 days of the receipt of such notice terminate this Agreement by giving notice in writing to Smoothwall in which event neither party shall have any liability to the other in respect of such termination.
11.5 Smoothwall reserves the right, by giving notice to the Customer at any time before delivery, to increase the Price and any additional charges of such of the Products or Services as have not been delivered to reflect any material increase in the cost to Smoothwall which is due to market conditions or any factor beyond the control of Smoothwall (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, change in third party costs, significant increase in the costs of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Smoothwall adequate information or instructions.
11.6 Smoothwall reserves the right to increase the Price and any additional charges at any time during this Agreement to the extent that the Prices are including estimates of likely use, scope, bandwidth, storage or other user accessible resources provided by Smoothwall, that are fully or partially based on the information provided by the Customer, which materially differ from the actual use, scope, bandwidth, storage or use of resources.
11.7 For ongoing Products and Services such as cloud/hosted services, maintenance, support, managed services, annual renewal, Licenses or subscriptions, Smoothwall reserves the right to change the Prices and any additional charges payable under this Agreement as from each quarter passing from the date of this Agreement in accordance with its then current standard charges. Any increase shall be notified in writing to the Customer at least 14 days in advance.
11.8 If Smoothwall is to charge for any Services to be provided under this Agreement on a time and materials basis, then Smoothwall will charge for the actual time spent in providing the Services to the Customer at the rates specified (as updated from time to time in accordance with this Agreement) or, if the rates are not specified at Smoothwall’s then current standard rates. The Price calculated on this basis will be due at the end of every month for everything done by Smoothwall during that month.
11.9 The Customer shall pay all costs (at Smoothwall’s then prevailing rates) and reasonable expenses incurred by Smoothwall for work carried out by Smoothwall in connection with any fault which is not covered by this Agreement.
11.10 The Customer shall reimburse any reasonable travel or subsistence expenses incurred by Smoothwall where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Products or Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts
11.11 All Prices and any additional charges payable under this Agreement are exclusive of delivery, packaging, shipping, insurance, and any present or future Taxes, including any sales and usage taxes, Value Added Tax (VAT), revenue or excise tax, and import duty (including brokerage or customs clearance fees). All such Taxes are payable by the Customer, but if paid by Smoothwall for any reason, Customer shall reimburse Smoothwall on demand.
11.12 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.
(a) the Products are to be collected by the Customer, whether by physical collection from premises or by downloading of the Software, Open Source Software and Third Party Software; or
(b) the Customer wrongfully fails to take delivery of the Products,
and in either case Smoothwall shall be entitled to invoice the Customer for the full Price at any time after Smoothwall has notified the Customer that the Products are ready for collection.
12.2 The terms of payment shall be within 30 days of the date of the invoice unless otherwise expressly stated on the Quotation, whether or not delivery has taken place or title in the Hardware has passed to the Customer.
12.3 The Customer shall make all payments under this Agreement in full without any set-off, counterclaim, deduction or withholding and without withholding or deduction of, or in respect of, any Tax unless required by law. If such Tax withholding or deductions is required, the Customer shall pay to Smoothwall such additional amount as will ensure that Smoothwall receives the same total amount that it would have received if no such withholding or deduction had been required.
12.4 Time for payment of the Price shall be of the essence of this Agreement.
12.5 If the Customer fails to make payment in full of any invoice on the due date, the whole of the balance of the full Price of the Product and Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Smoothwall, Smoothwall shall be entitled to:
(a) terminate this Agreement or suspend any further deliveries of Products or Services (whether ordered under the same contract or not) to the Customer until payment has been made in full;
(b) appropriate any payment made by the Customer to such of the Products or Services (or the Products or Services supplied under any other contract between the Customer and Smoothwall) as it thinks fit (despite any purported appropriation by the Customer);
(c) charge interest on the amount outstanding from the due date to the date of receipt by Smoothwall (whether or not after judgment), at the annual rate of 8 % per annum from the date payable, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
(d) make a storage charge for any undelivered Hardware at its current rates from time to time;
(e) stop any Products in transit and bar any downloading of any Software, Open Source Software, Third Party Software, configuration, categorization or malware definition files; and
(f) disable and disrupt use of any Products including all Software or Third Party Software already delivered to the Customer.
12.6 Smoothwall reserves the right to withdraw at any time any credit terms previously granted, with the whole of the Customer’s account immediately becoming due for payment.
12.7 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.
(a) the Products (excluding the Third Party Hardware, Opens Source Software and Third Party Software) will conform in all material respects with the standard specification for a period of 90 days from the date the Products are delivered or made available for collection;
(b) the Customer shall have the right to possess, and use, the Products (except Third Party Hardware, Open Source Software and Third Party Software) in accordance with the terms of this Agreement and that possession and use shall not be disturbed by a third party except to the extent set out in this Agreement;
(c) it shall use commercially reasonable efforts to ensure that all Products (except Third Party Hardware, Open Source Software and Third Party Software) supplied by it are, at the date of delivery, virus free;
(d) Services will be supplied by Smoothwall:
(i) with reasonable skill and care; and
(ii) by means of appropriately qualified and skilled personnel; and
(e) Smoothwall Hardware supplied by it will be free from material defects.
13.2 In relation to Third Party Hardware, Smoothwall shall use commercially reasonable efforts to pass on to the Customer the warranty terms provided to it by the supplier of the Third Party Hardware.
13.3 Warranties in respect of:
(a) Open Source Software are contained in the Open Source Software License applicable to that Open Source Software and not in this clause 13; and
(b) Third Party Software are contained in the Third Party Software License applicable to that Third Party Software and not in this clause 13.
13.4 If any Smoothwall Hardware is materially non-compliant with its applicable standard specification (including any defects in materials and workmanship) during the Warranty Period, such Smoothwall Hardware will be repaired or replaced only in accordance with and subject to the limitations of the Hardware Limited Warranty.
13.5 If any Software is materially non-compliant with its applicable standard specification during the Warranty Period, Smoothwall will take such commercially reasonable remedial action in relation to such Software in accordance with and subject to the limitations of the Software License.
13.6 Nothing in this clause 13 will be construed as a warranty or condition that the operation of any Products or Services will be uninterrupted or error free. Customer understands and accepts that any software (and information technology and communications products generally) may have errors and may encounter unexpected problems, and accordingly Customer may experience downtime and errors in the use of the Products or Services. Customer will put in place reasonable internal procedures and processes to enable it to minimise any inconvenience and any adverse impact of any such downtime or error.
13.7 Each party acknowledges and agrees that no other party (nor any person acting on a party’s behalf) has made any representation or other inducement to it to enter into this Agreement, except for representations or inducements expressly set out in this Agreement. Without limiting the generality of this clause 13.7, Customer acknowledges that:
(a) no promise, representation, warranty or undertaking has been made or given by Smoothwall, or any person on its behalf, in relation to the capacity, uses or benefits to be derived from, or any other consequences of or benefits to be obtained from the Products or Services, or any other goods or services provided under this Agreement, except as expressly set out in this Agreement;
(b) Customer has relied on its own skill and judgement in deciding to acquire and use the Products and Services and to enter into this Agreement;
(c) the Products and Services have not been developed to meet the Customer requirements and they may not be capable to achieve any specific results intended by the Customer whether or not they have been communicated to Smoothwall by the Customer; and
(d) it will have no remedy in respect of any untrue statement or representation (unless such statement or representation was fraudulent) made to it upon which Customer relied in entering into this Agreement and that its only remedy (if any) in respect of such a statement or representation can be for breach of contract, and/or in respect of any fraudulent misrepresentation made by Smoothwall.
13.8 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 13, SMOOTHWALL DISCLAIMS AND EXCLUDES ALL OTHER CONDITIONS, WARRANTIES, OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE IN RELATION TO THE PRODUCTS AND SERVICES. WITHOUT LIMITING THE FOREGOING, SMOOTHWALL MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
(a) any Proprietary Rights in any Product or Service, supplied hereunder shall at all times and for all purposes vest and remain vested in Smoothwall or the third party supplier to Smoothwall including the licensors of the Open Source Software and the Third Party Software; and
(b) it shall not acquire any title to any Software, Open Source Software or Third Party Software.
14.2 Smoothwall grants to the Customer the license set forth in the Software License. Smoothwall agrees to use commercially reasonable efforts to procure for the Customer the Open Source Software License in respect of the Open Source Software and the Third Party Software License in respect of the Third Party Software.
14.3 The Customer hereby undertakes to fully comply with the Software License, Open Source Software Licenses and the Third Party Software Licenses supplied and delivered by Smoothwall (including if so required the execution and return of a Third Party Software License).
14.4 The Customer is hereby notified that failure to comply with the Software License, Open Source Software Licenses and the Third Party Software Licenses or to execute and return a Software License could result in either the Software License, Open Source Software Licenses or the Third Party Software Licenses being revoked or in the case of the Third Party Software License not being executed and returned being refused to be granted by the proprietary owner of the Third Party Software.
14.5 Smoothwall hereby acknowledges that Proprietary Rights in any program code, data and documentation provided to Smoothwall, its agents or servants by the Customer in respect of work to be done by Smoothwall, its agents or servants shall at all times and for all purposes vest and remain vested in the Customer or a third party supplier to the Customer. The Customer undertakes to grant or procure the grant from its third party suppliers a License for Smoothwall to use all such program code, data and documentation for the purpose of providing the Products and perform the Services.
15.2 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Products or Services becomes aware of any unauthorized disclosure of any Confidential Information.
15.3 The terms of this Agreement may not be disclosed by the Customer (other than to its legal advisors) without the prior written consent of Smoothwall.
15.4 The obligations of confidentiality under this clause 15 shall not apply to any information or material which the recipient party can prove:
(a) was already known to it prior to its receipt thereof from the disclosing party;
(b) was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the disclosing party; or
(c) was in the public domain at the time of receipt by the recipient party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause 15 or any obligation of confidence owed by the recipient party.
15.5 Smoothwall may refer to the Customer as being a client of Smoothwall in customer reference lists, sales presentations and in legally required communication with a public authority or any other legally required disclosure, but shall not refer to the Customer in any advertising or press release without the prior written consent of the Customer.
15.6 The provisions of this clause 15 shall remain in full force and effect notwithstanding any termination of this Agreement.
16.2 IN NO EVENT WILL SMOOTHWALL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO SMOOTHWALL UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16.3 The Customer agrees to indemnify, hold harmless, and defend Smoothwall, its affiliates, and their respective officers, directors, employees, agents, successors, and assigns, from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder, relating to or arising out of:
(a) any acts or omissions of Customer, except to the extent the liability was caused by the gross negligence or willful misconduct of Smoothwall.
(b) any breach by Customer of the terms and conditions of this Agreement;
(c) any assertion of infringement of rights, including patent, trademark, trade secret, copyright, or other intellectual property rights, in respect of program code, data documentation, and other material provided to Smoothwall or its agents by the Customer or used by Smoothwall or its agents pursuant to the instructions of the Customer;
(d) any assertion by a third party that any data or information provided to Smoothwall or its agents by the Customer is libelous or defamatory.
16.4 The exclusions in this clause 16 shall apply to the fullest extent permissible at law but Smoothwall does not exclude liability for any liability which cannot be excluded by the applicable law
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure is occasioned by any act of God, fire, flood, storm or other inclement weather, earthquake, act or omission of government or state, war or other hostilities, acts of terrorism, explosion, civil commotion, insurrection, embargo or prevention from or hindrance in obtaining any energy or other similar supplies, industrial dispute affecting a third party for which a substitute third party is not readily available, or any other circumstance which is beyond the reasonable control of the affected party. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 10 weeks, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party.
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment notwithstanding the provisions for late payment in clause 12;
(b) the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party
(i) is dissolved or liquidated or takes any corporate action for such purpose;
(ii) becomes insolvent or is generally unable to pay its debts as they become due;
(iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law;
(iv) makes or seeks to make a general assignment for the benefit of its creditors; or
(v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property;
(e) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
18.2 For the purposes of clause 18.1
(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
(a) a substantial portion of this Agreement; or
(b) any of the obligations set out in clause 8.4, clause 14.3, clause 15 or clause 20,
over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
18.3 Either party may terminate this Agreement in accordance with clause 17.
18.4 Smoothwall may, without prejudice to its other rights or remedies, terminate this Agreement immediately by notice to the Customer, if the Customer:
(a) undergoes a change of Control which does not result in Control passing to a company that, immediately before the change in question, was an Affiliate of the Customer;
(b) sells all of its assets or is merged or re-organized in circumstances where it is not the surviving entity; or
(c) disputes the ownership or validity of Smoothwall’s Proprietary Rights.
18.5 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.
19.2 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including clause 1, clause 8, clause 14.1, clause 15, clause 16 and clause 20, shall remain in full force and effect.
19.3 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
19.4 Notwithstanding its obligations in this clause 19, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
19.5 On termination of this Agreement for any reason, the Customer’s right to receive the Products or Services (including all rights granted under the Software License, Open Source Software License and Third Party Software License) shall cease automatically and Smoothwall shall be entitled to disable or disrupt use thereof and each party shall as soon as reasonably practicable:
(a) return, destroy or permanently erase (if and as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party and the Customer shall destroy and permanently erase (if and as directed by Smoothwall) the Software, Open Source Software and Third Party Software. If required by the other party, it shall provide written evidence (in the form of a letter signed by a director or executive officer of the Customer no later than 30 days after termination of this Agreement that these have been destroyed and that it has not retained any copies of them (except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in clause 15);
(b) return all of the other party’s equipment and materials, failing which, the other party may enter the relevant premises and take possession of them. Until these are returned or repossessed, the party in possession shall be solely responsible for their safe-keeping.
19.6 All sums payable to Smoothwall under this Agreement shall become due immediately on its termination, despite any other provision of this Agreement. This clause 19.6 is without prejudice to any right to claim for interest under the law, or any right under this Agreement.
20.2 The Customer shall be responsible for complying with any legislation governing:
(a) the importation of the Products into the country of destination; and
(b) the export and re-export of the Products,
and shall be responsible for the payment of any duties on it.
20.3 Unless otherwise agreed in writing between the Customer and Smoothwall, the Products shall be delivered free on board the air or sea port of shipment.
20.4 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.
(a) Any documents or notices given hereunder by either party to the other must be in writing. (For the purposes of this clause a notice shall be deemed to be in writing if it is in the form of a printed or hand-written letter or other document, or in the form of an email message). Any such notice shall be deemed to have been duly given:
(i) if by letter may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 5 working days after the date of posting (and in proving such service, it shall be sufficient to prove that such communication was properly addressed, stamped and put in the post); or
(ii) if sent by email on a Business Day and during the business hours of 9:30 am to 4:00pm at the time it is transmitted.
(b) Any notice sent pursuant to clause 21.1(a)
(ii) which would have been deemed to be duly delivered under the requirements of the relevant paragraph except that it was not sent at a time which was during business hours on a Business Day shall be deemed to have been duly delivered on the commencement of business hours on the Business Day immediately following the day on which it was sent.
(c) Documents or notices shall be delivered or sent to the addresses or email address of the parties set out in the Quotation or to any other address or email 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.
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.
If any term or clause or any part of any term or clause of this Agreement is prohibited, void, invalid or otherwise unenforceable, the term or clause, or the relevant part of the term or clause, will be deemed to be severed to the extent that it is prohibited, void, invalid or unenforceable but the remainder of that term or clause (and the whole of this Agreement) will remain in full force and effect. In the event of any deemed severance pursuant to this clause 21.3, the parties shall use all reasonable efforts to agree within a reasonable time upon any lawful and enforceable variations to this Agreement that may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the clause, or the part of the clause, in question.
(a) The Customer shall not, without the prior written consent of Smoothwall, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) Smoothwall may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
21.5 Third Party Rights
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
21.6 No Partnership or Agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21.7 Entire Agreement
(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
(c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21.8 Governing Law
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) 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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