Terms and conditions
1. Definitions
In these terms and conditions, unless the context otherwise requires, the following words shall have the meanings respectively ascribed to them:- "Customer" shall mean any party to whom Learning and Teaching Scotland (LTS) agrees to sell goods or supply services; "Location" shall mean the location at which LTS may agree to provide services to the Customer from time to time; "Goods" shall mean any goods to be supplied by LTS to the Customer from time to time together with any Value Added Tax due thereon; "Purchase Price" shall mean the price payable by the Customer to LTS for any Goods to be supplied by Learning and Teaching Scotland; "Services" shall mean any services to be provided by LTS to the Customer in terms hereof; "Service Fee" shall mean LTS's fee for providing services to the Customer as shall be intimated to the Customer from time to time together with any Value Added Tax due thereon;
2. Applicability of conditions
These Conditions shall be deemed to be incorporated in and shall govern all contracts between LTS or any of its subsidiaries and the Customer. These Conditions shall prevail over and have effect to the exclusion of, any terms, conditions and/or provisions which may conflict with these Conditions and which the Customer may seek to establish as forming part of or as applicable to the contract whether by having brought the same to the notice of LTS, by being implied by any trade, custom or practice, course of dealing or otherwise. No waiver, alteration or modification of or addition to any of the provisions of these Conditions shall have any effect or be binding upon LTS unless the same shall be in writing and signed by a Director of LTS. LTS may amend these terms and conditions at any time by posting amended terms and conditions on LTS's web site.
3. Payment
i. If LTSc (in its sole discretion) agrees to invoice the Customer in respect of the Purchase Price and/or the Service Fee (as applicable), payment of the of all sums due to LTS shall be made by the Customer, without any deduction or set-off, within 30 days of the date of LTS's Invoice (unless otherwise agreed in writing by LTS) in immediately available funds. Failing such agreement by Learning and Teaching Scotland, the Customer shall pay to LTS the Purchase Price and/or the Service Fee (as applicable) in advance. Time shall be of the essence for such payment.
ii. In the case of Goods delivered, and Services rendered, in instalments or stages, payment in respect of each instalment or stage shall be made prior to commencement of any work by LTS in respect of the next stage or instalment.
iii. In the case of a Buyer resident outside the United Kingdom payment will, if so required by LTS, be made by confirmed irrecoverable letter of credit issued by a bank acceptable to LTS and lodged at a bank nominated by LTS not later than the date on which the contract is entered into. LTS shall be entitled to payment under any such letter of credit on presentation to the bank of such letter of credit.
iv. In all cases the Customer will, without prejudice to LTS's whole other rights and remedies, pay interest to LTS at the rate of 2% per annum above the base rate from time to time of The Royal Bank of Scotland plc on the whole amount of any late payment, calculated on a day to day basis until payment in full, whether or not after judgement.
4. Goods
i. LTS shall supply to the Customer such Goods as may be agreed between the parties. The Customer acknowledges that, unless LTS agrees in writing, the Customer will be responsible for selecting the Goods and ensuring that the Goods are suitable for the Customer's purposes and of satisfactory quality.
ii. No quotation by Learning and Teaching Scotland shall constitute an offer and may be withdrawn or amended at any time by LTS prior to LTS's acceptance of the Customer's order for the Goods. The Purchase Price may be varied by LTS at any time prior to delivery to take into account any increases in costs incurred by LTS.
iii. The Purchase Price quoted excludes delivery, packing, insurance and VAT (each of which shall be payable in addition to the Purchase Price) unless LTS expressly agrees otherwise in writing.
5. Delivery
i. LTS will use its reasonable endeavours to provide the Goods on the date or dates or in accordance with the timetable (if any) agreed with the Customer. LTS shall incur no liability whatsoever in respect of any loss or damage arising as a consequence of any deviation from the timetable (if any) agreed between the Customer and LTS.
ii.Delivery shall be at the Customer's premises unless otherwise stipulated or agreed by LTS. In the event that the Customer does not accept delivery on the due date LTS shall be entitled to charge the Customer for storage of the Goods until such time as the Customer accepts such delivery and for additional or increased transportation charges together with interest at 4% per annum on the invoice value of the Goods.
iii. If LTS agrees that any Goods should be delivered to the Customer they may be delivered by such method of transport as LTSd deems fit, the costs thereof being borne by the Customer.
iv. The Customer must:-
a. examine any Goods upon delivery;
b. notify LTS in writing within 7 days of any shortage or damage to the Goods and, in the event of non- delivery, within 14 days of the agreed delivery date; and
c. afford LTS or its agents reasonable opportunity to verify any shortage and/or inspect any damaged Goods as delivered.
If the Customer fails to comply with all or any of sub-clauses (a)-(c) above inclusive, LTS shall not be liable for any such non-delivery or shortage and the Customer may not reject Goods for short or damaged delivery.
v. LTS may deliver Goods in instalments and each such instalment shall be deemed to be the subject of a separate contract and no damage, non-delivery or shortage in relation to any such instalment shall entitle the Customer to any remedies in relation to any other instalment or contract.
6. Passing of risk
i. Risk in the Goods passes on delivery to the Customer which shall take place on the earlier of delivery to (a) the Customer at the Customer's premises or such other place as may be agreed between the Customer and LTS or (b) the Customer's carrier or agent.
ii. If LTS agrees in writing that Goods are sent carriage paid or carriage forward by LTS risk therein will pass to the Customer upon consignment of the Goods to LTS's carrier or agent. For the avoidance of doubt LTS shall be under no duty to insure the Goods but if it elects to the cost thereof shall be borne by the Customer.
iii. The Customer shall insure the Goods for the period from which risk in the Goods passes, as detailed above, until the passing of title in the Goods to the Customer, in their full replacement value against all risks against which a prudent purchaser would insure such Goods, and must on demand produce evidence of such insurance to LTS. The Customer shall, until the Purchase Price has been paid in full, hold the insurance policy and any proceeds thereunder in trust for LTS to the extent of the unpaid Purchase Price.
7. Passing of title
i. Title to any Goods supplied by LTS will not pass to the Customer until payment in full of the Purchase Price therefor including default interest and all other moneys owed on any account whatsoever by the Customer to LTS has been received by LTS in cleared funds. Until such payment the Customer will have possession of the Goods as custodier for LTS and will ensure that the Goods remain clearly identifiable as the property of Learning and Teaching Scotland and in the Customer's possession or control.
ii. Learning and Teaching Scotland reserves the right to repossess any Goods in respect of which payment is overdue and thereafter to resell the same. For this purpose the Customer grants an irrevocable licence to LTS, its servants and agents to enter upon all or any of the premises with or without vehicles during normal business hours. This right will continue to subsist notwithstanding termination of the contract for any reason and is without prejudice to any other rights of LTS.
iii. If the Customer is situated outwith Scotland, the proceeds of any sale by the Customer to a third party shall be held by the Customer in trust for LTS and LTS shall be entitled to trace such proceeds in the hands of the Customer or any Trustee, Receiver or Liquidator of the Customer.
8. Warranties
i. In respect of any Services supplied to the Customer, LTS warrants to the Customer that the Services shall be supplied with all appropriate skill, care and diligence by appropriately experienced, qualified and trained personnel and in accordance with good industry practice.
ii. In respect of any Goods supplied, the Customer acknowledges that LTS does not manufacture the Goods itself but sources them from third-party suppliers. The use of the Goods may be subject to end user licence agreements or other accompanying documentation supplied by or on behalf of the third party supplier (together "Documentation"). The Documentation may contain limited warranties and limitations of liability in respect of the Goods. The Customer accepts that computer software products are complex and, by their nature, rarely error free. The limitation of liability contained in these terms and conditions and any Documentation are therefore reasonable and appropriate.
iii. All other warranties are excluded to the maximum extent permitted by law.
9. Limitation of liability
LTS excludes all liability for loss of profits, loss of data, loss of anticipated savings and all other indirect and consequential losses. LTS's liability to the Customer arising in any way from this Agreement or any act, omission, default or negligence of LTS (other than liability for death or personnel injury) shall be limited to the total sums paid by the Customer to LTS for the Goods and/or Services in question over the preceding twelve months. A greater limit may be agreed between LTS and the Customer in writing subject to the Customer paying in full an extra premium due as a result.
10. Assignation
The Customer may not assign or sub-licence its rights or obligations hereunder without the prior written consent of LTS, which consent shall not be unreasonably withheld.
11. Force Majeure
LTS shall have the right to cancel or delay deliveries or to reduce the quantity of goods delivered and shall under no circumstances be responsible for failure or delay in performing or fulfilling the contract or otherwise failing to implement its obligations to the Customer if such failure or delay shall be due to any cause or circumstance beyond the control of LTS. Such cause or circumstance shall include, but shall not be limited to, fire, flood, riot, terrorism, strike, freight embargoes or transportation delays, shortage of labour, inability to procure or secure fuel, material, supplies or power at current prices or on account of shortages thereof, acts of God or of a public enemy, or any existing or future laws or acts of HM Government or the government of any other State or territory (including specifically but not exclusively any orders, rules or regulations issued by any official or agency of HM Government or of any other such government) affecting the conduct of LTS's business with which LTS, in its judgement and discretion, deems it advisable to comply as a legal duty. Subject to the foregoing the occurrence of such circumstances or events will not operate so as to affect or suspend any other rights or obligations of either party hereunder.
12. Termination
LTS may, without prejudice to any of its other rights, stop any Goods in transit and/or suspend further deliveries and further provision of Services and/or by notice in writing to the Customer, determine the contract:-
a. if the Customer enters into a Trust Deed for behoof of its or his creditors or a Deed of Arrangement or commits an act of bankruptcy or becomes insolvent or compounds with its creditors; or
b. if (being a company) an order is made or a resolution is passed for the winding up of the Customer; or
c. if a Receiver is appointed over any of the Customer's assets or undertaking; or
d. if the Customer takes or suffers analogous action or proceedings under foreign law in consequence of debt or commits any breach of this or any other contract between LTS and the Customer; or
e. the Customer fails to pay any sum due on the due date or in any other manner whatsoever breaches any condition of a contract with LTS; or
f. if at any time LTS ceases to be an authorised reseller of the relevant software.
13. Consumer Protection Act, 1987
Nothing in these Conditions of contract shall exclude or restrict any liability LTS may have by virtue of the Consumer Protection Act, 1987. In the event that any claim under the Act is made against LTS in respect of goods supplied, the Customer shall:-
a. fully indemnify LTS against all costs, loss, damages and expense suffered or incurred by LTS in respect of any claims by third parties (including the Customer's employees); and
b. provide LTS with all records and documentation required by LTS in order to identify the destination of the goods supplied.
14. General
i. Failure by LTS to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time thereafter.
ii. If any order for service or goods is commissioned by two or more Buyers jointly the obligations of those Buyers hereunder shall be joint and several.
15. Law
The contract, including without prejudice thereto, these Conditions shall in all respects be governed and receive effect in accordance with the Law of Scotland and, in so far as not already subject thereto, the Customer submits to the non-exclusive jurisdiction of the Scottish Courts.
16. Complaints
The Scottish Public Services Ombudsman Act 2002 applies to Learning and Teaching Scotland. Under this Act if you have a complaint about the service you receive from a public authority you should first take it up with the body concerned. If, after that, you are not satisfied you can then contact the Scottish Public Services Ombudsman.
A time limit applies - under normal circumstances you have to send your complaint to the Scottish Public Services Ombudsman within a year from when it happened or from when you found out about the matter.
Contact details for the Scottish Public Services Ombudsman are as follows:
Scottish Public Services Ombudsman
4 Melville Street
Edinburgh, EH3 7NS
Tel 0870 011 5378
Fax: 0870 011 5379
Email: enquiries@scottishombudsman.org.uk
Website: www.scottishombudsman.org.uk