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In these conditions the following expressions shall bear the following meanings:
“Contract” – The contract incorporating these conditions.
“Goods” – The goods agreed to be supplied to the customer.
“ProcessFlows” – ProcessFlows.
“Rights” – The rights to be granted to the Customer without which (because of the copyright or other similar rights of ProcessFlows or others) the customer would be unable to use or otherwise deal with the Goods for the purposes contemplated by the contract.
“Services” – The services agreed to be supplied to the customer.
2. OVERRIDING PROVISIONS
All quotations are made and all orders are accepted subject to these conditions (save insofar as the same are varied by or inconsistent with terms and conditions expressly agreed by ProcessFlows in writing). In the event of conflict between these conditions and the terms and conditions of the customer’s enquiry, order or acceptance (including printed terms and conditions) these conditions shall prevail unless otherwise expressly agreed by ProcessFlows in writing.
Unless the contrary is expressly agreed:
(a) Prices are ProcessFlows’ current prices. The price payable shall be ProcessFlows’ price ruling at date of supply.
(b) Prices are exclusive of VAT.
(c) Prices are based on information provided by the customer and upon the assumption that the Goods and Services can be provided without amendment interruption or delay caused by the customer any of which may cause the price to be varied.
(d) Prices exclude delivery charges.
(a) Payment terms are normally 30 days from date of invoice although ProcessFlows reserve the right to change these terms. The Customer should be aware that non-payment may result in software non-operability.
(b) Without prejudice to any other right or remedy ProcessFlows reserves the right to suspend delivery or to determine the Contract if there is any outstanding liability owing to it by the customer, or if in its opinion the customer will not be able to meet any future or existing commitment to it.
(c) ProcessFlows reserves the right to charge interest on overdue sums at two per cent per month both before and after any judgement.
Any date agreed between the parties for delivery of the Goods or performance of the Services shall be an estimated date only and ProcessFlows shall not be liable for any loss or damage occurring through any failure or inability to meet any such date. The customer shall be entitled when goods are not delivered or services not performed within three months of any estimated date for the same to terminate the Contract by written notice subject in the case of partial completion, to payment for any Goods already delivered or for the Services already provided.
6. RIGHT TO USE
(a) The Goods will generally comprise media containing computer software protected by copyright and the customer will require a licence to permit its use.
(b) The Customer will be required to enter into or accept the terms of such a licence in the standard form of ProcessFlows or the appropriate other right holder and it is a term of the contract that the customer will do so.
(c) Unless expressly agreed to the contrary such licence will (and may only) permit the use in one machine of one copy of the relevant software and will last for the full duration of the copyright.
(d) The coding of the software is confidential and no right to decompile or reverse engineer is or will be granted otherwise than in response to a specific request.
7. TITLE AND RISK
(a) Risk in the Goods will pass to the customer on delivery to the customer or the customer’s carrier or nominee.
(b) Title in the Goods will not pass until they have been fully paid for.
(c) Goods shall be stored separately and be clearly identifiable as being ProcessFlows’ property until fully paid for.
(d) ProcessFlows’ shall be entitled to recover possession of its goods not fully paid for by the customer (and enter into the premises of the customer for that purpose) if they are not paid for by the due date or the date on which the contract is determined otherwise than on account of ProcessFlows’ breach.
8. WARRANTY AND GUARANTEE
In the unlikely event that any Goods do not perform in accordance with published specification the customer may return those Goods within 30 days from receipt together with original packaging and documentation to obtain a full refund of payments made to ProcessFlows in respect of those Goods.
9. LIMITATIONS AND EXCLUSIONS
(a) No ProcessFlows employee has authority to give any verbal warranty or representation as to the fitness for any particular purpose of any of the Goods or Services.
(b) ProcessFlows’ liability for death or personal injury shall be unlimited.
(c) Subject as above ProcessFlows’ liability for damage caused to tangible property and arising from defects in the Goods supplied or in the course of providing the Services shall be limited to £5,000,000 in total and the customer shall indemnify ProcessFlows accordingly.
(d) Subject as above ProcessFlows’ liability for its failure to provide the Services or any of them or to perform them properly or allow exercise of the Rights shall be limited to sums received from the customer in respect of the supply of the Services and the grant of the Rights.
(e) Subject as above ProcessFlows’ liability in respect of the Goods (and whether arising under any terms, conditions or warranty expressed herein or implied by virtue of common law or statute or in tort) shall be limited to the cost of repairing (or at ProcessFlows’ option) replacing the Goods and ProcessFlows shall not be liable for any consequential loss or loss of profit or business.
(f) ProcessFlows’ liability under clause (e) above shall not extend to the repair or amendment of the software contained within the Goods (save to the extent that it has been inadequately loaded onto or stored within the Goods) and the customer’s attention is directed to Clause 11 below.
Goods supplied are subject to variation from specification and/or sample. Immaterial variation shall not permit the customer to reject Goods.
11. SUPPORT AND MAINTENANCE
(a) ProcessFlows offers support and maintenance services for its software products which (subject to the terms of its agreements for such services) cover the adjustment and enhancement of faulty or inadequate software.
(b) Where the Services include support and maintenance they will be provided on the terms of ProcessFlows’ standard support agreements or offered on the standard support terms of any third party owner of the relevant software.
12. GOODS FOR EXPORT
The Customer shall obtain all necessary permits to ensure that Goods destined overseas may lawfully be delivered to their destination and paid for.
13. FORCE MAJEURE
ProcessFlows will not be liable for any failure to perform or difference in performance attributable to accidents or circumstances beyond its reasonable control and in particular (but not exclusively) industrial action, war, shortage of materials, fire, natural physical disaster, epidemic, act or restraint of government. In any such event, ProcessFlows shall be at liberty on notice to the customer, to make partial delivery or performance only or to determine the Contract, and in either case without prejudice to its rights accrued thereunder.
The law applicable to the Contract shall be English Law and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.