Infoterra License Agreement

Transcription

1 1. Definitions and interpretation In these Conditions, unless the context otherwise requires, the following words have the following meanings: ʺBuyer ʺthe person whose order for the Products is accepted by UKP; ʺConditions the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms and conditions agreed in writing between the Buyer and UKP in accordance with Condition 2.3; ʺContract ʺthe contract for the sale and purchase of the Products; ʺDesigns ʺAs defined in Condition 11.1; and ʺProductsʺ the vertical aerial photography (hard copy or digital format) or, where applicable DTM (Digital Terrain Model), or viewing software, which UKP is to supply in accordance with the Conditions; LandLine the vector line mapping product produced by the Ordnance Survey ʺUKPʺ The joint venture between Simmons Aerofilms Limited and Infoterra Limited for the marketing and supply of imagery. For the purposes of this agreement they are collectively known as UKP but nothing in this agreement shall constitute a partnership between them. Simmons Aerofilms Limited incorporated in England and Wales under registered number whose registered office is 5 West Street, Axbridge, Somerset BS26 1AA. Infoterra Limited incorporated in England and Wales under registered number whose registered office is at Delta House, Farnborough, Hants, GU14 ONL. 2. Basis of the sale 2.1 UKP shall sell and the Buyer shall purchase the Products in accordance with any written order of the Buyer which is accepted by UKP subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer. 2.2 Quotations issued to the Buyer by UKP will be held fixed and firm for 30 days. No binding contract shall in any event arise until the Buyerʹs written order has been accepted by UKP and confirmed in writing by UKPʹs authorised representative. 2.3 No variation of these Conditions shall be binding unless agreed in writing between the authorised representative of UKP and the Buyer. 2.4 UKPʹs employees or agents are not authorised to make any representations concerning the Products unless confirmed by UKP in writing. 2.5 Any advice or recommendation given by UKP or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by UKP is followed or acted upon entirely at the Buyerʹs own risk, and accordingly UKP shall not be liable for any such advice or recommendation which is not so confirmed.

2 2.6 Any samples, illustrations or descriptive material and other information contained in UKPʹ brochures, advertising material or elsewhere shall not form part of the Contract and shall be treated as approximate and for guidance only unless specifically stated otherwise. 3. Orders and specifications 3.1 The Buyer shall be responsible to UKP for ensuring the accuracy of the terms of any order (including any applicable specification guides/ cropping instructions/operating systems) submitted by the Buyer and for giving UKP any necessary information relating to the Products within a sufficient time to enable UKP to perform the Contract in accordance with its terms. 3.2 Subject to clause 9.2, the quantity, specification and description of the Products shall be those set out in UKP s quotation. 3.3 No order which has been accepted by UKP may be cancelled by the Buyer except with the agreement in writing of UKP and on terms that the Buyer shall indemnify UKP in full against all loss (including loss of profit) costs (including the costs of all labour and materials used) damages, charges and expenses incurred by UKP as a result of cancellation. 4. Price of the Products 4.1 The total price of the Products shall be UKPʹs written quoted price which will be pro-ratable if the actual quantity delivered exceeds the estimated quantities provided by the Buyer or UKP at the quotation stage. 4.2 The price of the product may be varied by prior written agreement between both parties where there is a change in delivery dates or specifications for products which the Buyer requests in addition to the original order or where delay is caused by instructions of the Buyer or failure of the Buyer to give UKP accurate information or instructions. 4.3 The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to UKP. 4.4 The Price will include the carriage of the Products to one address only. If required by the Buyer, UKP will arrange for carriage of the Materials to additional addresses at the Buyers cost. 5. Payment terms 5.1 Subject to any special terms agreed in writing between the Buyer and UKP, UKP shall be entitled to invoice the Buyer with the price of the Products on or at any time after despatch of the Products or on despatch of any part of the Products. 5.2 (a)the Buyer shall pay the price of the Products not later than the end of the calendar month next following the date of the invoice relating to the Products. (b)where the Order is for less than 250 (excluding VAT) or the Buyer is not an account holder recognised by UKP the Buyer shall pay the price of the Products forthwith on receipt of a proforma invoice. 5.3 The time of payment shall be of the essence of the Contract. All payments shall be made in full without deduction in respect of any set-off or counterclaim. 5.4 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to UKP, UKP shall be entitled to: (a) (b) cancel the Contract or suspend any deliveries to the Buyer; appropriate any payment made by the Buyer to such of the Products (or the Products

3 (c) supplied under any other contract between the Buyer and UKP) as UKP may think fit (notwithstanding any purported appropriation by the Buyer); and charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum over the base rate for the time being of Royal Bank of Scotland PLC (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) until payment is made. 6. Delivery 6.1 Delivery of the Products shall be by UKP despatching to the Buyer by special delivery post. 6.2 UKP shall endeavour to deliver the Products by the date quoted for delivery but such date is not guaranteed nor shall the time for delivery be of the essence nor cause for cancellation. 6.3 The Products may be delivered by UKP in advance of the quoted delivery date where agreed subject to an agreed additional ʺrushʺ charge as set out on the invoice. 7. Risk and property 7.1 Risk in goods to remain with UKP and shall only pass to the Buyer when Goods are fully delivered at the point specified in the order. (a) (b) in the case of Products to be delivered at UKPʹs premises, at the time when UKP notifies the Buyer the Products are available for collection; or in the case of Products to be delivered otherwise than at UKPʹs premises, at the time of despatch or, if the Buyer wrongfully fails to take delivery of the Products, the time when UKP has tendered delivery of the Products. 7.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Conditions, the licence in the Products shall not pass to the Buyer until UKP has received in cash or cleared funds payment in full of the price of the Products and all other Products agreed to be sold or licensed by UKP to the Buyer for which payment is then due. 8. Notification of Claims 8.1 Any claim for non-delivering of any Products shall be notified in writing by the Buyer to UKP within 28 days of the date of UKPʹs invoice. 8.2 Any claim which is based on any defect in the quality or condition of the Products or their failure to correspond with UKP s specification shall (whether or not delivery is refused by the Buyer) be notified to UKP within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 30 days from the date of delivery. 8.3 If the Buyer does not notify UKP of any claim in accordance with the provisions of this Condition, the Buyer shall not be entitled to reject the Products and UKP shall have no liability for such defects or failure, and the Buyer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract. 8.4 The Buyer shall have no right to reject any Products on the grounds of variation of quality from the Buyerʹs order where defects do not result from the negligence of UKP or where defects arise from the production of a national digital data set including but not limited to the following: a) Colour variances between hardcopy contact prints and corresponding digital data; b) Loss of image detail through compression of original Tiffs

4 c) Visible colour balance and edge detail between production blocks produced by variations in manufacturers scanning settings or automated mosaicing software, d) duplications and omissions of detail and/or mismatch of detail or loss of scale arising from mosaicing of image tiles, or e) A mismatch to Landline, where Landline is not within the accuracy tolerances of 2m RMSE 9. Warranties and liability 9.1 UKP warrants that the Products will correspond with their specification at the time of delivery. 9.2 The above warranty is given by UKP subject to the following conditions: 9.3 UKP shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Buyer. 9.4 UKP shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, failure to follow UKPʹs guidance (whether oral or in writing), misuse, alteration, or repair of the Products without UKPʹs approval; 9.5 UKP shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment; and 9.6 the above warranty does not extend to any defect resulting from the use of Products with any materials or equipment not supplied by UKP, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by such supplier to UKP. 9.7 Except in respect of injury to or death of any person UKP aggregate liability for breach of contract, negligence or other default shall not exceed the value of the contract. 9.8 Subject as expressly provided in these Conditions all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 9.9 Where the Products are sold under a consumer sale (as defined by the Consumer Transactions (Restriction on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified to UKP in accordance with these Conditions, UKP shall, at its sole discretion, replace the Products (or the part in question) free of charge or refund to the Buyer the price of the Products (or a proportionate part of the price) but UKP shall have no further liability to the Buyer Except in respect of death or personal injury caused by UKPʹs negligence, UKP shall not be liable to the Buyer by reason of any representation (other than fraudulent misrepresentation) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses, or other claim for consequential compensation whatsoever (and whether caused by the negligence of UKP, its employees or agents or otherwise) which arises out of or in connection with the supply of the Products or their resale by the Buyer, except as expressly provided in these Conditions. 10 Force Majeure 10.1 UKP shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of UKPʹs obligations in relation to the Products, if the delay or failure was due to any cause beyond UKPʹs reasonable control. Without

5 prejudice to the generality of the foregoing, the following shall be regarded as causes beyond UKPʹs reasonable control: (a) weather preventing the performance of any contract for the provision of services relating to aerial photography whether or not time is of the essence; (b) Act of God, explosion, flood, tempest, fire or accident; (c) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of UKP or third parties); (d) difficulties in obtaining raw materials, labour, fuel, parts or machinery; (e) power failure or breakdown in machinery. (f) overseas trade embargo. 11. Intellectual Property 11.1 UKP owns or is licensed the copyright, design right and all other intellectual property rights in the Products The Buyer agrees that the Products may not be reproduced in any way including without limitation any electronic or material reproduction except with the prior written consent of UKP or where applicable the Licensor. All such reproductions must be marked with UKPerspectives.com 2001 or any such notice required by the copyright owner UKP has not knowingly infringed any intellectual property rights of any third party but does not warrant or give any assurance to the Buyer that any Product does not infringe the intellectual property rights of any third party The Buyer is not permitted to use the information for the purpose of ortho-rectification of imagery data without prior permission from the Contractor 12. Indemnity 12.1 The Buyer shall indemnify and keep UKP indemnified against all costs, expenses, damages and demands incurred by UKP in respect of: (a) any alleged infringement of the patents, trade marks, copyright, design or other industrial property rights used by UKP at the request of the Buyer; (b) any alleged breach or infringement of any statute or regulation concerning the preparation, marketing and distribution of the Products. 13. Insolvency 13.1 This Condition applies if: (a) Either party makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of a solvent amalgamation or reconstruction); (b) an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of either party; (c ) either party ceases, or threatens to cease, to carry on business; or (d) If either party reasonably apprehends that any or the events mentioned above is about to occur in relation to the other party and notifies the other party accordingly.

6 13.2 If this Condition applies then, without prejudice to any other right or remedy available to either party, either party shall be entitled to cancel the Contract. UKP may suspend any further deliveries under the Contract without liability to the Buyer, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 14 General 14.1 Any notice to either party under these Conditions shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at or sent by prepaid first class post, prepaid recorded delivery, telex or facsimile to the address of the party as notified in writing from time to time. (a) Either party may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it under the Contract by the other party without in any way prejudicing or affecting its rights in respect of any other liability or right not so released, compounded, compromised, waived or postponed. (b) No single or partial exercise or failure or delay in exercising any right, power or remedy by either party shall constitute a waiver by that party of, or impair or preclude any further exercise of that or any right, power or remedy arising under the Contract or otherwise To the extent that any provision of these Conditions is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of these Conditions, it shall not affect the enforceability of the remainder of these Conditions nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time The headings in these Conditions are for convenience only and shall not affect their interpretation. 15. Governing law and jurisdiction 15.1 These Conditions shall be governed by and construed in accordance with English law Each of the parties irrevocably submits for all purposes in connection with these Conditions to the exclusive jurisdiction of the courts of England