TECH BACKBONE™ SERVICES TERMS AND CONDITIONS
Last Updated: January 1, 2024
In these Conditions the following terms have the following meaning: “Company” means Tech Backbone, Inc. “Buyer” means the firm, company or person ordering or buying Goods from the Company. “Third-Party Terms” means any terms and conditions from the manufacturer for software licensing and/or maintenance or other service applicable to specific Goods where appropriate. “Goods” means the goods and services specified in any quotation or any relevant accepted offer that form the subject matter of the relevant Contract.
The parties hereby agree as follows:
1.1. Any quotation accompanying these Conditions is an invitation from the Company to do business with the Buyer. An order from the Buyer for Goods will be deemed to be an offer to purchase the Goods in accordance with these Conditions and the relevant quotation. A contract will come into effect on the earlier of written acceptance of an offer by the Company or delivery of the Goods.
1.2. The contract between the Buyer and the Company will consist of the quotation, these Conditions and any relevant Third-Party Terms identified in the quotation. These Conditions will prevail over any attempted amendment or adjustment or variation in any communication from the Buyer, unless explicitly agreed to in writing signed by an authorized representative of the Company.
1.3. No terms stipulated in any other communication or document shall vary or annul any of these Conditions except insofar as the same are expressly consented to in writing by the Company.
2. DESCRIPTION OF GOODS
2.1. The quantity and description of the Goods shall be as set out in the later of the Company’s quotation or acknowledgement of order. Any samples or specifications are illustrative only, and the Company reserves the right to correct any error or omission in sales materials. The Company shall use reasonable efforts to transfer to the Buyer the benefit of any warranty or guarantee given by the manufacturer of the Goods to the Company. No employee, contractor or agent of the Company are authorized to make any representations or contractually binding statements concerning the Goods not set out in these Conditions.
3.1. Quoted prices include the cost of normal packaging but exclude delivery, transit insurance (which are charged extra) and all applicable taxes. Installation, maintenance and service charges (where applicable), including any preliminary or demonstration works, will be subject to separate charge where indicated in the quotation.
3.2. The prices for the Goods shall be those ruling at the date of dispatch and the Company reserves the right to amend its quoted prices at any time prior to the date of dispatch.
3.3. Should expedited delivery be agreed an extra cost may be charged to cover any overtime or any other additional costs involved, or any fluctuation in currency or import/export duties.
4.1. Unless otherwise agreed in writing by both parties the Goods will be invoiced on acceptance of the offer, and payment will be due in the following instalments:
4.1.1. 50% at the time of the Buyer’s order due immediately (net 0) before Company can begin working on the project;
4.1.2. 25% on initial delivery and
4.1.3. 25% on the date of installation
4.2. Time for payment will be of the essence. Save as set out above, invoices will be due for payment by the Buyer within 30 days of invoice date.
4.3. If the Buyer fails to make payment on the due date, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
4.3.1. terminate the Contract or suspend any further delivery or installation, or other service (including any maintenance services) (whether ordered under the Contract or not) to the Buyer until payment has been made in full;
4.3.2. charge interest at the rate of 2.5% per month on the amount outstanding from the due date to the date of receipt in full, (whether or not after judgment) such interest to be payable on demand;
4.3.3. make a storage charge for any undelivered Goods at its current rates from time to time;
4.3.4. stop any Goods in transit; and;
4.3.5. exercise any rights under Condition 5.2 below.
5. RISK AND TITLE
5.1. Risk in the Goods will pass to the Buyer on delivery, notwithstanding that title in any equipment comprising the Goods will only transfer to the Buyer on receipt by the Company of payment in full for any specific Goods.
5.2. The Company and the Buyer expressly agree that until the Company has been paid in full for the Goods comprised in any Contract and any outstanding amounts due to the Company from the Buyer or any associated or subsidiary or holding company of the Buyer or from any director or shareholder of the Buyer or any other such company then:
5.2.1. the Goods shall remain the property of the Company, notwithstanding that risk in the Goods will transfer on delivery.
5.2.2. the Buyer as bailee for the Company, will store the Goods for the Company in as proper manner, without charge and in such a way that the Goods are clearly identified as being the property of the Company.
5.2.3. at any time, the Company may recover from the Buyer the Goods remaining in the Buyer’s possession, and for the purposes thereof may enter upon any premises of or occupied by the Buyer or any third party (with the consent of that third party).
6. BUYER’S PROPERTY
6.1. The Buyer’s property and all property supplied to the Company by or on behalf of the Buyer shall, while it is in possession of the Company or in transit to or from the Buyer, be deemed to be at the Buyer’s risk and the Buyer shall insure accordingly.
6.2. The Company shall be entitled to make a reasonable charge for the storage of any of the Buyers properly left with the Company before receipt of the order or after notification to the Buyer of completion of the work.
7.1. The Company shall use its reasonable efforts to deliver on the date or dates specified in the Company’s acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Buyer’s order. The Company will not be liable for any reasonable delay in delivery however caused.
7.2. Delivery shall be made during normal business hours (excluding bank or public holidays). Subject to payment of additional charges, the Buyer may request delivery outside such hours.
7.3. The Buyer shall examine the Goods immediately once they are delivered. The Company reserves the right to reject claims in respect to shortages or damage in transit or non-delivery of the Goods, or in the case of non-delivery 7 days after the due date for delivery.
8. DEFECTIVE PRODUCTS
8.1. The Company’s liability (both in contract and in tort) with respect to defects in the Goods shall be limited to the replacement of faulty items or material, or the issue of credit notes, or the granting of a refund or such other compensatory measures as the Company at its discretion considers appropriate in the circumstances. Such measures shall relate only to the actual faulty items or their value.
8.2. The Company cannot be responsible for deficiencies that are not under their control such as connectivity, network, power or environmental issues that hamper the proper operation of the product.
8.3. The Company shall not in any circumstances be under any liability to the Buyer with respect to indirect, special or consequential loss or damage of any kind, including but not limited to loss of profits or business interruption, however sustained by the Buyer.
8.4. It is Buyer’s responsibility to ensure that any goods returned are appropriately packaged and properly insured. The Company will not be responsible for goods returned to it that are lost or damaged in transit.
9. FORCE MAJEURE
9.1. The Company reserves the right to cancel, vary or suspend performance of the Contract if it is prevented from carrying on its business by any act, event or accident caused by circumstances reasonably beyond Company’s control.
9.2. The Company’s liability to the Buyer in aggregate will not exceed the value of Goods placed under any individual Contract.
10. RETURNS PROCEDURE
10.1. Goods returned must be in the original packaging and in a clean re-saleable condition accompanied by a copy of the original invoice together with a return authorization number from our service department. Goods returned otherwise will, at our discretion, either be refused or a further additional restocking fee charged to cover the additional costs involved.
10.2. Goods returned for repair under warranty must be accompanied by a copy of the original invoice, or must quote the original invoice number and date of purchase.
11. CANCELLATION AND DELAYS
11.1. The Company reserves the right to charge the Buyer an additional fixed fee to cover any costs associated with any delays in delivery or installation arising in circumstances where the Company had not previously agreed in writing to such delay. Delays with less than 5 working days’ notice before scheduled start will incur up to – 25% of invoice value; delays with less than 48 hours’ notice before the schedule start will incur a charge of up to 100% of the invoice value.
11.2. The Buyer may cancel an order placed under these Conditions subject to payment of a fee calculated in accordance with the following: (i) Goods cancelled with more than 10 working days prior to delivery of any part of the Contract will be subject to a charge of 15% of the invoice value, and (i) Goods cancelled with 10 or less working days prior to delivery of any part of the Contract will be subject to a charge of 30% of the invoice value.
11.3. The Company may on serving written notice terminate the Contract or suspend delivery of any Goods, and the balance of any price for Goods delivered but not paid for will immediately fall due if:
11.3.1. the ability of the Buyer to accept the Goods is delayed more than 30 days;
11.3.2. the Buyer suspends or threatens to suspend payments of its debts or is unable to pay its debts as they fall due;
11.3.3. (the Buyer suspends, ceases or threatens to suspend or cease carrying on all or a substantial part of its business;
11.3.4. the Buyer is insolvent, bankrupt or a receiver or administrator is appointed, or any equivalent analogous action is taken; or the Buyer is in material breach of these Conditions and fails to rectify the breach within 10 days of notice to do so.
11.4. The exercise of rights under this condition shall be without prejudice to the Company’s other rights.
12. CONFIDENTIALITY AND PROPRIETARY RIGHTS
12.1. The Buyer shall keep in strict confidence all technical or commercial know-how, pricing and any other confidential information concerning the business or products of the Company whether or not marked as confidential. The Buyer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Buyer’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Buyer.
12.2. Whether in the course of performing Services hereunder or otherwise, the Buyer may receive, learn or have access to confidential information of the Company, its Associated Companies, or a third party to whom it or they has or have an obligation of confidence, including, but not limited to, the Company’s or its Associated Companies’ products or business plans. The Buyer may also receive, learn or have access to additional confidential information that is generated during, or as a result of, performing Services hereunder. All such information will be deemed to be “Confidential Information.” The Buyer will keep all Confidential Information in confidence, and will not disclose the Confidential Information to anyone other than Buyer’s employees and independent contractors who have a need to know such Confidential Information in furtherance of the purposes of this Contract and are bound in writing to obligations of confidentiality and non-use no less stringent than those set forth herein. Buyer agrees to not make copies of any Confidential Information, aside from those copies required by Buyer to perform its obligations under this Agreement
12.3. The Buyer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods are and shall remain the sole property of the Company or the third-party rights owner and the Buyer shall not at any time make, permit or allow any unauthorized use of such Intellectual Property Rights. The Company shall retain all Intellectual Property Rights in all documents supplied to the Buyer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Company.
12.4. For the avoidance of doubt, any and all inventions, discoveries, improvements, copyrights or work product or other intellectual property which Company may make during the term of this Contract, and all know-how which Company may develop in connection therewith will be Company’s property (“Intellectual Property”).
13.1. All legal notices or demands provided for by this Contract will be in writing and will be deemed to have been given when delivered by overnight courier, or by electronic transmission with confirmed receipt of delivery, and three (3) days after mailing by certified or registered mail, postage prepaid, return receipt requested.
14. GENERAL TERMS
14.1. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.2. The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law
14.3. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable, of if modification is not possible, the relevant provision or part-provision shall be deemed deleted, without affecting the validity and enforceability of the rest of the Contract.
14.4. As used in this Contract, “Associated Company(ies)” shall mean any person, firm, trust, partnership, corporation, company or other entity or combination thereof, which directly or indirectly, owns or controls Company, is owned or controlled by Company or is under common ownership or control with Company. The terms “control” and “controlled” mean ownership of fifty percent (50%) or more, including ownership by one or more trusts with substantially the same beneficial interests, of the voting or equity rights of such person, firm, trust, partnership, corporation, company or other entity or combination thereof or the power by contract or otherwise to control or direct the management of such person, firm, trust, partnership, corporation, company or other entity or combination thereof.
14.5. Buyer will indemnify, defend and hold harmless Company, its Associated Companies and its and their respective officers, directors, employees, representatives and contractors (collectively, “Indemnified Parties”) from and against any claim, liability, damage, loss or expense (including reasonable attorney’s fees and expenses of litigation) incurred by or imposed upon any of the Indemnified Parties to the extent arising from (a) the willful misconduct or negligent act or omission, and (b) a breach of this Contract.
14.6. The Contract constitutes the entire agreement between the parties and supersedes all previous contracts, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.7. The Buyer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Company 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 the Contract.
14.8. Only a party to the Contract shall have any right to enforce these Conditions.
14.9. Company is an independent contractor and not an agent, employee, joint venture or partner of the Company for income tax purposes or otherwise
14.10. This Contract will in all respects be governed by, interpreted, construed and enforced in accordance with the laws of the State of Pennsylvania. The parties further specifically agree that any action or proceeding arising out of or in connection with this Agreement will be venued in a federal or state court of appropriate venue and subject matter jurisdiction located in the State of Pennsylvania. Each party hereto irrevocably consents to the personal jurisdiction of the courts in the State of Pennsylvania.