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This Terms and Conditions document was last updated on 24 May 2020.
1. DEFINITIONS
1.1 “Company” means IdealSimulations Ltd, a company incorporated in England and Wales (registration number 12604231) of 71-75 Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ, United Kingdom.
1.2 “Customer”/”Client” means the person, firm, company or other organisation purchasing the Product as defined below.
1.3 “Contract” means the agreement between the Customer and the Company covering the Product provided.
1.4 “Product” means any product and/or service to be delivered under this Contract.
1.5 “Confidential Information” means all information confidential to the Customer whether relating to the Customer’s business, customers, clients, suppliers or otherwise but excluding information now or at any time hereafter becoming generally known or accessible to the general public (unless due to the default of the Company hereunder) and information obtained by the Company from a third party free of restrictions on use or disclosure.
1.6 “Intellectual Property Rights” means all and any of the following, namely patents, designs, registered designs (and applications for any of the same) copyright, design right, inventions, improvements, discoveries, techniques, know-how and any other intellectual property rights.
2. COMPANY’S OBLIGATIONS
2.1 The Company will provide the Product to the Customer in accordance with the Contract. For the avoidance of doubt, nothing in this Contract shall be construed as restricting or prohibiting the Contractor from at any time providing Products (whether or not similar to those provided under this contract) to any third party.
2.2 Without prejudice to any other obligation of confidentiality from time to time subsisting between the Customer and the Company, the Company hereby undertakes (subject to the Customer’s written consent) not at any time hereafter to disclose any Confidential Information to any third party nor to use any Confidential Information save (in either case) as may be reasonably necessary for the purposes of providing the Products hereunder or as may be required under a court order or lawful order of a government authority.
2.3 The Company will use all reasonable endeavours to provide the Products to the Customer within the estimated timings provided but all timings agreed to by the Contractor are business estimates only (but given in good faith) and the Company will not be liable for any loss, injury, damage or expenses arising directly or indirectly from any delay and time will not and cannot ever be of the essence in respect of the Contractor’s performance of its obligations hereunder.
3. INVOICING & PAYMENT
3.1 Payment is due in advance of any supply except in circumstances covered by Clause 3.2.
3.2 All invoices raised under a trade account must be settled by the Customer within 30 days of the date of the invoice. Any disputed item must be notified to the Contractor by the Customer within 14 days.
3.3 Without prejudice to any other contractual right, the Contractor reserves the right to charge interest on overdue invoices at a rate of 3% above Bank of England Base Rate, compounded monthly until settlement.
3.4 Prices quoted on Renewal Quotations are based on the Euro/£ exchange as at the date shown on the quotation. We reserve the right to amend the final invoice should the exchange rate changes by more than 2% up or down before payment received.
3.5 If payment for a licence renewal is not received by the due date stated on the renewal quotation, then we reserve the right to deem the licence expired and for any renewal to be invoiced a full list price.
4. FORCE MAJEURE
4.1 Neither party shall be liable to the other under this Agreement, nor deemed in breach of this Agreement, for failure to carry out its provisions to the extent that such failure is caused by any cause beyond the parties’ respective reasonable control, including without limitation fire, war, riot, sabotage, sickness or industrial action.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Each party acknowledges the existence of the other’s intellectual property at the commencement of this Contract and neither party obtains any right to the other’s intellectual property by entering into this contract.
5.2 The owner of the Product shall retain ownership of and all intellectual property rights in the Core Code and any additions or improvements to it.
5.3 Subject to the Customer first paying to the Company all sums payable to the Company hereunder, the Customer shall obtain a Run Time Licence for its use of the whole system, including Third Party Components, subject to all the terms and conditions attaching to these items.
5.4 The Company shall not infringe the Intellectual Property Rights of any third party and shall indemnify the Customer against all claims, costs and expenses that the Customer may suffer as a result of any such infringement.
6. WARRANTY
6.1 The Company warrants that it has good title to, or licence to, supply all Products to the Customer.
6.2 If any part of the 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 Product PROVIDED THAT no unauthorised modifications to the product have taken place. The Company is not responsible for the cost of labour or other expenses incurred in repairing or replace defective or non-conforming parts.
6.3 All software Products supplied hereunder are supplied “as is” and the sole obligation of The Company in connection with the supply of software Products is to use all reasonable endeavours 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 the Company of any such non – conformity within 90 days of the date of delivery of the applicable software product.
6.4 If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 7.2 or 7.3, The Company will only accept the return of such Products provided that it receives notification thereof giving detailed reasons for the rejection. The Company 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 the Company has passed a corresponding credit note.
6.5 The Company’s maximum aggregate liability for any and all losses, claims, demands, damages, costs and/or expenses of any kind whatsoever arising out of or in connection with any order confirmation and/or these Terms and Conditions (whether in contract, tort, by statute or otherwise) shall not, in total, exceed the amount actually paid by the Customer to the Company for the Products which are the subject of the order confirmation in question.
7. PROPRIETARY RIGHTS IN SOFTWARE
7.1 The Customer hereby acknowledges that any proprietary rights in any Product 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 rest and remain vested in the Product owner.
7.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Products supplied and delivered by the Company (including if so required the execution and return of a Product licence). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the Product owner. The Customer further agrees to indemnify the Company in respect of any costs, charges or expenses incurred by the Company at the suit of a Product owner as a result of any breach by the Customer of such conditions.
7.3 No title or ownership of software products or products of any software products or any third party software licensed under this agreement is transferred to the customer under any circumstance.
8. CONFIDENTIALITY AND DATA PROTECTION
8.1 Both the Company and the Client acknowledge that they may receive information and material constituting trade secrets concerning the business, finances, systems, products and documentation of the other (“Confidential Information”). Confidential Information shall be limited to information clearly identified as confidential. Both the Company and the Client agree to protect and preserve the confidentiality of the other’s Confidential Information using the same standard of care as it uses to protect its own Confidential Information of a similar nature, but in no event using a lesser standard than a reasonable standard of care. The parties agree to hold each other’s Confidential Information in confidence while the Services are being performed and for a period of three years thereafter.
8.2 Both the Company and the Client will only divulge Confidential Information to those employees, sub-contractors and agents who have entered into a binding written agreement to maintain confidentiality and for whom knowledge of the Confidential Information is necessary for the proper performance of their duties.
8.3 Each Party shall process personal data in accordance with the Data Protection Legislation (which includes applicable data protection legislation including the General Data Protection Regulation (EU 2016/679) (GDPR), the Data Protection Directive (95/46/EC), and any national implementing laws, regulations and secondary legislation) as amended from time to time. Data processing will be accomplished through electronic and non-electronic means, for the purpose of these terms and conditions. Terms used throughout this clause including “data controller”, “data processor”, “data subject”, “personal data” and “processing” are as defined in the Data Protection Legislation.
8.4 The Company is responsible for obtaining the consent of all Client related data subjects whose personal data is provided to or otherwise made available to the Company pursuant to these terms and conditions. Client authorises the Company to engage sub-processors to the extent required for the performance of the terms and conditions and/or order and/or SOW. The Company shall in respect of any personal data of the Client processed under these terms and conditions to maintain such personal data under appropriate, commercially reasonable and sufficient technical and organisational security measures to protect such personal data or information and both Parties warrant to have taken all appropriate registrations under relevant EU data protection legislation. Client authorises the Company to transfer and (sub)process any personal data outside of the European Economic Area (EEA) in order to perform these terms and conditions and/or the orders and/or SOW, other legal obligations and/or for the Company’s other legitimate interests, provided that such transfer is made in accordance with Data Protection Legislation. Transfer made within the Company group of companies will be made under a legal framework compliant with the Data Protection Legislation such as the Privacy Shield or the European Commission approved Model Contract Clauses. The Company’s privacy policy shall apply to orders placed and SOW. A copy of the policy can be found on the Company’s website. Notwithstanding any other provision of these terms and conditions, Client agrees that the Company shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and the Client holds the Company harmless) in respect of the processing of personal data pursuant to a product or Service (including cloud service) provided by a third party supplier of product or services transacted by the Company and where the Company is not processing such data. Such processing of personal data shall be subject to the arrangements and contract terms entered in to directly between Client and the third party provider.
9. ERRORS AND OMISSIONS
9.1 The Company makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of a manifest error or omission, the Company will be entitled to rescind the contract, notwithstanding that it has already accepted the Client’s order and/or received payment from the Client. the Company’s liability in that event will be limited to the return of any money the Client has paid in respect of the order. In the case of a manifest error in relation to price, the Client will be entitled to purchase the Product or Services by paying the difference between the quoted price and the correct price, as confirmed in writing by the Company after the manifest error has been discovered.
9.2 A ‘manifest error’, as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by the Company which is more than 10% less than the price that would have been quoted had the mistake not been made.
10. THE COMPANY’S LIABILITY
10.1 The Company shall under no circumstances be liable for any direct or indirect damage or loss, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages, however caused, including (but not restricted to) loss of business or profits in the ordinary course, loss of goodwill, damage to trading relationships loss of data and other financial loss. The Company’s liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
10.2 Nothing in this agreement shall limit the Company’s liability for death, personal injury fraud or fraudulent misrepresentation.
11. THIRD-PARTY RIGHTS
11.1 None of the OPENFOAM® related products and services advertised in Our Sites are approved or endorsed by OpenCFD Ltd., producer and distributor of OpenFOAM software via www.openfoam.com, and owner of the OPENFOAM® and OpenCFD® trade marks.
11.2 Stock images on our Website www.idealsimulations.com have been downloaded from Pixabay (https://pixabay.com/) Pexels (https://www.pexels.com) and Unsplash (https://unsplash.com/).
12. MISCELLANEOUS
12.1 Neither party shall be deemed by virtue of this Contract to be an agent or the partner of the other and each party will make clear in all dealings with third parties that it has no authority to make representations on behalf of the other or to bind the other contractually with any third party.
12.2 If any of the terms of this Contract are held to be void or unenforceable by any reason of law they shall be void or unenforceable to that extent only and no further and all other terms shall remain valid and fully enforceable.
12.3 The Customer shall not have any right of set off.
12.4 No indulgence granted by either party to the other in relation to any term hereof shall be deemed a waiver of such term or prejudice the later enforcement of that or any other term hereof.
12.5 The headings in this Contract are for convenience only and shall not affect its interpretation.
12.6 The contract shall be governed by and interpreted in accordance with English Law and shall be subject to the exclusive jurisdiction of the English courts.