Terms & Conditions of Business
SWM DOCUMENT MANAGEMENT SYSTEMS LTD
These Terms govern all business conducted between us ("SWM") and you (the "Customer"). Please read them carefully and raise any queries you may have before we carry out any work for you. As soon you accept a Collection Note you will be deemed to have accepted these Terms in full.
1 DEFINITIONS
"Advice Note" an advice note accompanying the Media upon delivery to the Customer.
"Authority to Destroy Documents" a written authority given by the Customer permitting SWM or its agents to permanently destroy stored Materials.
"Certificate of Destruction" an advice note to the Customer confirming the destruction of the Materials by means of a confidential process including incineration, shredding or pulping.
"Collection Note" a confirmation issued by SWM's driver to the Customer upon collection of the Materials.
"Customer" any person, firm or company to whom SWM has agreed to supply Products and/or Services.
"Materials" all original source documents, master films and other data required by the Customer to be transferred to Media.
"Media" any microfilm, compact disc, DVDs or other form of optical WORM (Write Once Read Many) media containing information derived from the Materials.
"Preparation Charge" the fee invoiced by SWM relating to the time involved in preparing a schedule of Materials received charged at the labour rate stated in the Price List or Quotation.
"Price List" the fees set out for the supply of Products or Services as set out in SWM's current price list.
"Products" the microfilm roll and fiche, CD-ROMs, DVDs, hardware (scanners, etc), software (document management applications) supplied by SWM to the Customer to which these Terms apply.
"Quotation" any offer for sale of Product and/or supply of Services made to the Customer by SWM in the form of a written quotation.
"Services" any or all of the electronic digital document scanning, imaging, microfilming, master storage and retrieval services relating to the transfer of source documents and other data to optical or digital media or installation, training and support services supplied by SWM to the Customer to which these Terms apply.
"SWM" SWM Document Management Systems Limited (company number 4212541) whose registered office is at Unit 4, Stowford Business Park, Ivybridge, Devon.
"Terms" these terms and conditions of business.
"Working Days" Monday to Friday inclusive between 8.00am and 5.00pm excluding Bank Holidays and public holidays.
2 ORDERS
2.1 All Products and/or Services are supplied under these Terms alone. Any conflicting or additional conditions imposed by the Customer shall only be included in any contract to supply when evidenced in writing and signed by a director of SWM.
3 SERVICES
3.1 SWM shall use all reasonable endeavours in performing the Services and in supplying the Products.
3.2 SWM undertakes and agrees:
3.2.1 upon reasonable notice from the Customer, to collect the Materials from the Customer's premises (collection of which is acknowledged by SWM's representative signing the Collection Note), and to transfer the Materials to SWM's premises;
3.2.2 within an agreed period of time of each collection of Material from the Customer, to make as true, accurate and complete copy of the Materials as reasonably possible onto the Media as required and deliver the Media to the Customer's premises;
3.2.3 at all times to maintain records of all Materials in its possession or under its control; and
3.2.4 to return all Materials to the Customer or, upon receipt of an Authority to Destroy Documents, to destroy the Materials and to issue a Certificate of Destruction.
4 PRICES AND QUOTATIONS
4.1 All prices charged shall be those set out in the current Quotation on the date of collection of the Materials and issue of the Collection Note, with the exception of quoted prices that are valid for specified periods only.
4.2 In respect of any batched Products or Services the same quotation shall apply unless any change in prices has been notified in writing.
4.3 SWM reserves the right at its discretion to make a minimum charge per invoice of £25.00.
4.4 Prices are exclusive of VAT which is chargeable at the rate(s) ruling on the date of invoice.
4.5 Unless specified otherwise by SWM, all Quotations include standard charges for standard packaging, collection and delivery, and standard packing shall not be returnable. The cost of special packing and/or delivery will be charged over and above the quoted prices.
4.6 SWM reserves the right to revise its prices annually or at anytime upon giving one month's written notice to the Customer.
4.7 Any Quotation is available for acceptance in whole or in part within 60 days of the date of the Quotation, unless specifically stated otherwise in writing.
5 WARRANTIES BY SWM
5.1 SWM hereby warrants and undertakes that it will take reasonable steps:
5.1.1 to ensure that its premises are and shall remain secure and protected by appropriate security and fire systems appropriate to the nature of Materials held;
5.1.2 to audit the background of its staff and, where required, obtain security clearance to Ministry of Defence standards;
5.1.3 to ensure that scanning equipment is maintained to reasonable standards under third party maintenance contracts, and that where required at the time of scanning the equipment is reproducing to comply with PD 5000:2002;
5.1.4 to ensure that its processes comply with the minimum standards set out in BS EN 9001:2000 (Scope of supply of document management services, archiving and media preparation);
5.1.5 to meet its duty of care under the Data Protection Act 1998; and
5.1.6 to maintain suitable insurance and make a certificate available to the Customer upon request.
6 DISCLAIMERS BY SWM
6.1 SWM shall not be responsible for any project management or similar facilities associated with the installation and running of the Products or the Media, unless SWM has specifically stated otherwise in writing.
6.2 While all reasonable precautions are taken by SWM in preparing the Media, SWM shall not be responsible for any viruses or similar bugs contained in the Media.
6.3 Any information provided by SWM to the Customer in relation to the particular regulatory compliance requirements of the Customer is provided as information only and not as formal advice. The Customer is advised to seek professional advice in all circumstances where the scanned Materials may require to be legally admissible.
7 CANCELLATION
7.1 The cancellation of orders by the Customer shall be accepted at SWM's discretion. SWM reserves the right to issue an invoice of part only.
7.2 SWM shall in any event not be liable for loss or damage and shall be entitled to cancel or rescind this contract if the performance of its obligations under this contract is in any way adversely affected by any cause whatsoever beyond SWM's control including but not limited to delays or defaults of sub-contractors or suppliers, war, strikes, walk-out trade disputes, flood, fire accident to plant or machinery, shortage of materials or labour.
8 LIMITATION OF LIABILITY
8.1 In the absence of negligence SWM shall not be liable for any losses and/or consequential losses of the Customer arising from the failure to supply, delays in supply or defective materials.
8.2 SWM shall not be liable for accidents to persons or damage to property in connection with the delivery of goods to the Customer or through their subsequent use by the Customer, unless due to the negligence of SWM, its servants or agents.
8.3 Any claim in respect of damage to or loss of documents made by the Customer against SWM whether or not such damage or loss be caused by negligence of SWM its servants or agents shall be limited to £15,000.00 for any one batch of documents collected and covered by a single Collection Note.
9 INDEMNITY BY CUSTOMER 9.1 The Customer shall indemnify SWM in full in respect of any costs involved as a result of:
9.1.1 any breach of copyright or patent or any libellous or illegal documentation microfilmed and/or scanned for the Customer; and
9.1.2 any breach of the Data Protection Act 1998 or similar legislation or privacy laws;
9.1.3 any claim relating to the destruction of Materials following the issue of an Authority to Destroy Documents.
9.2 The Customer confirms that it has had sufficient time and opportunity to verify and check the integrity and completeness of the Media or any part of it prior to issuing an Authority to Destroy. Where Materials are returned to the Customer rather than destroyed, the Customer shall notify SWM of any fault or missing information on the Media within 30 Working Days of delivery of the Media; upon expiry of such period the Customer is deemed to confirm the integrity and completeness of the Media.
10 DELIVERY
10.1 The Customer shall be required to sign and date an Advice Note acknowledging receipt of any Media and/or returned Materials.
10.2 Except in the case of goods specified as requiring unpacking in the presence of our representative, the Customer shall notify and furnish SWM with a written statement of claim of any discrepancy or damage within thirty days of the date of the Advice Note.
10.3 The Customer shall in respect of alleged visible damage to the Products or Media at the time of delivery make a note of the alleged damage on the Advice Note and shall additionally furnish SWM with a written statement of claim within ten Working Days of the date of the Advice Note.
10.4 If the Customer shall fail to give notice as required in 10.2 and 10.3 above (as applicable) then the Products, Media or Services shall be deemed in all respects to be in accordance with the contract and the Customer shall be deemed to have irrevocably and unconditionally accepted the Products, Media or Services as being completely satisfactory.
11 PAYMENT
11.1 Unless otherwise agreed in writing by SWM the Customer shall make payment in full without any deduction or withholding whatsoever on any account within thirty days from the date of the invoice, unless stated otherwise by SWM in writing, and this shall be the essence of the contract. Failure to pay or failure to pay by the due date may be treated at the discretion of SWM as a repudiation of the contract. SWM reserves the right to charge interest on unpaid invoices at Nat West Bank base rate plus 4% calculated from the date of the invoice.
11.2 In default of payment by the due date SWM reserves the right to invoice the Customer any settlement, collection, administration, legal and similar costs incurred by SWM in the recovery of any outstanding monies.
12 MICROFILMING, SCANNING, DOCUMENT RETRIEVAL
12.1 SWM accepts no responsibility for the accuracy of estimates of numbers of documents. SWM will invoice for the actual number of documents microfilmed and/or scanned at the stated unit price regardless of whether or not total invoicing of the contract should exceed any totals stated in the Quotation, unless the Customer notifies SWM in writing of a maximum expenditure limit prior to collection by SWM or delivery by the Customer of the documents to SWM. Where such notice is received, SWM accepts no liability for non-completion of all documents relating to the Quotation.
12.2 A schedule of the Materials must be completed by the Customer and attached to Materials prior to despatch to or collection by SWM, in the absence of which SWM will prepare the schedule and invoice the Customer a Preparation Charge.
12.3 Should a Customer request copies of or access to any documents forming part of the Materials while they are in the possession of SWM, SWM shall make all reasonable efforts to facilitate such as soon as is reasonably practicable but no later than within 2 Working Days upon reasonable notice.
13 PRESERVATION OF RECORDS, CONFIDENTIALITY AND DESTRUCTION POLICY
13.1 SWM hereby undertakes and agrees that it will at all time ensure, as far as is reasonably possible, that all Materials and Media in its possession or under its control are kept safely (including protection from accidental loss or damage due to fire or flooding or otherwise) in a secure place to which people other than SWM's employees are restricted from entering and that unless destroyed or delivered to the Customer in accordance with these Terms it shall not permit the resultant Media to go out of its control.
13.2 SWM agrees to keep all Materials and Media and all information contained in them strictly confidential and not to disclose any such information to any person or use for advantage.
13.3 SWM shall maintain in force at all times reasonably adequate insurance cover against theft, loss, damage, fire, flood or other insurable risks (including loss or damage which may be suffered for loss of original documents).
13.4 SWM will destroy original documents in accordance with its sign off procedure and receipt of a Certificate to Destroy Documents. SWM shall destroy the original documents by shredding, pulping or incineration. SWM shall maintain records of all original records destroyed and shall issue a Certificate of Destruction.
14 PROPERTY IN THE GOODS
14.1 Property in the Materials shall remain with the Customer. SWM shall bear the risk of loss or damage to the original Materials and Media whilst they are in its possession or under its control.
14.2 Property in any Products or Media (including copyright in any scan) supplied to the Customer by SWM shall remain vested in SWM until paid for in full following which it shall pass to the Customer.
14.3 Pending the property in any goods passing to the Customer the Customer shall have no right to pledge or in any way charge as security any goods in which ownership remains with SWM. If the Customer shall be in breach of this provision all monies owing to SWM shall immediately become due for payment.
14.4 The Customer shall be entitled to resell the Products or use the Media in the normal course of its business and to pass title therein provided that the proceeds of sale of goods so resold and/or the benefit of any claim that the Customer shall have against its own purchaser shall be received and held by the Customer as trustee for SWM pending payment in full to SWM and SWM shall be entitled to trace all such proceeds of resale received by the Customer through any bank or other account maintained by the Customer.
14.5 In the event that the Customer shall not pay for any goods on the due date or dates for payment or if any of the events as specified in Clause 15.2 shall occur or if the Customer shall be in breach of the provisions of Clause 14.3 then in any such case the Customer shall permit SWM, or its duly authorised agents or representatives at any time during a Working Day to enter the Customer's premises where the Products or any part thereof are stored or Media are held or used to enable SWM to remove all or any of SWM's Products or erase or otherwise the contents of all Media stored on the Customer's computer systems.
14.6 Notwithstanding that the property in all Products and/or Media to be delivered to the Customer by SWM shall remain vested in SWM until SWM has received payment in full the risk of damage to or loss of all or any such Products and/or Media shall pass to the Customer immediately upon delivery to the Customer and as from such date of delivery or deemed delivery the Customer shall be liable to pay SWM the contract price for such goods whether or not the same are damaged or lost prior to the date that the property rights shall pass to the Customer.
14.7 If Products and/or Media are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for SWM.
15 TERMINATION OR SUSPENSION
15.1 Either party shall have the right at any time by giving notice in writing to the other to terminate its relationship immediately if the other party:
15.1.1 commits a material breach of any of the Terms and, in the case of a breach which is capable of remedy, fails to remedy the same within 30 days of being required to do so;
15.1.2 if the party is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding up the party enters into liquidation, whether compulsorily or voluntarily, or compounds with is creditors generally or has a receiver or administrator appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt.
15.2 Without prejudice to any other rights that SWM may have to terminate the relationship with the Customer under clause 15.1 or that SWM may have for damages for breach of contract or otherwise against the Customer, SWM shall be entitled to suspend all further deliveries under any contract if the Customer shall have become insolvent or bankrupt or have made any arrangement with its creditors or shall have suffered a receiver to have been appointed over any of its assets or undertaking or shall have suffered an execution or distraint to be levied upon any of its assets or shall have failed to satisfy any judgement within seven days of the same becoming payable.
15.3 These Terms shall be binding upon and enforceable against the Customer and any liquidator or receiver of the Customer or all or any part of its business assets or undertaking or in the event that the Customer being an individual becomes bankrupt these Terms shall be binding upon and enforceable against any trustee in bankruptcy of the Customer.
15.4 On termination of the relationship for any reason and provided all sums owing by the Customer have been received in full, SWM shall at the request of the Customer promptly return to the Customer all Materials and Media belonging to the Customer which SWM may have in its possession or under its control.
15.5 The termination of the relationship (for whatever reason) shall not affect the respective rights and liabilities of each of the parties accrued prior to such termination, including the continuing obligations of confidentiality.
16 OTHER GENERAL PROVISIONS
16.1 ASSIGNMENT: Failure by either party to insist upon a strict performance of any provision of these Terms shall not be deemed to be a waiver of its rights or remedies of any subsequent default by the other party in the performance or compliance with any of these Terms. SWM agrees not to assign or transfer or delegate its powers or duties under this agreement other than in the ordinary course of business without first notifying the Customer. Unless otherwise agreed in writing the Customer may not assign without the prior written consent of SWM.
16.2 SEVERABILITY: The invalidity of any individual provision of these conditions shall not affect the validity of the remaining provisions.
16.3 ENTIRE AGREEMENT: These Terms replace all previous agreements and understandings between SWM and the Customer.
16.4 VARIATION: These Terms may be varied by SWM serving written notice to the other and there being mutual agreement to the change. If no express consent to the revised Terms is received within one month of receipt of notice the Customer shall be deemed to have accepted the variations as such times as it makes further Materials available for collection.
16.5 CONSTRUCTION: The headings of paragraphs in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
16.6 NOTICES: Any notice to be served shall be deemed to be duly served on the day after being posted if sent by first class prepaid post to, or on the date received if left at, the last known trading address of the party to be served.
16.7 GOVERNING LAW: These Terms shall in all respects be governed by and construed in accordance with English Law.
Version: 2007
© 2007 - SWM Document Management Systems Ltd
1 DEFINITIONS
"Advice Note" an advice note accompanying the Media upon delivery to the Customer.
"Authority to Destroy Documents" a written authority given by the Customer permitting SWM or its agents to permanently destroy stored Materials.
"Certificate of Destruction" an advice note to the Customer confirming the destruction of the Materials by means of a confidential process including incineration, shredding or pulping.
"Collection Note" a confirmation issued by SWM's driver to the Customer upon collection of the Materials.
"Customer" any person, firm or company to whom SWM has agreed to supply Products and/or Services.
"Materials" all original source documents, master films and other data required by the Customer to be transferred to Media.
"Media" any microfilm, compact disc, DVDs or other form of optical WORM (Write Once Read Many) media containing information derived from the Materials.
"Preparation Charge" the fee invoiced by SWM relating to the time involved in preparing a schedule of Materials received charged at the labour rate stated in the Price List or Quotation.
"Price List" the fees set out for the supply of Products or Services as set out in SWM's current price list.
"Products" the microfilm roll and fiche, CD-ROMs, DVDs, hardware (scanners, etc), software (document management applications) supplied by SWM to the Customer to which these Terms apply.
"Quotation" any offer for sale of Product and/or supply of Services made to the Customer by SWM in the form of a written quotation.
"Services" any or all of the electronic digital document scanning, imaging, microfilming, master storage and retrieval services relating to the transfer of source documents and other data to optical or digital media or installation, training and support services supplied by SWM to the Customer to which these Terms apply.
"SWM" SWM Document Management Systems Limited (company number 4212541) whose registered office is at Unit 4, Stowford Business Park, Ivybridge, Devon.
"Terms" these terms and conditions of business.
"Working Days" Monday to Friday inclusive between 8.00am and 5.00pm excluding Bank Holidays and public holidays.
2 ORDERS
2.1 All Products and/or Services are supplied under these Terms alone. Any conflicting or additional conditions imposed by the Customer shall only be included in any contract to supply when evidenced in writing and signed by a director of SWM.
3 SERVICES
3.1 SWM shall use all reasonable endeavours in performing the Services and in supplying the Products.
3.2 SWM undertakes and agrees:
3.2.1 upon reasonable notice from the Customer, to collect the Materials from the Customer's premises (collection of which is acknowledged by SWM's representative signing the Collection Note), and to transfer the Materials to SWM's premises;
3.2.2 within an agreed period of time of each collection of Material from the Customer, to make as true, accurate and complete copy of the Materials as reasonably possible onto the Media as required and deliver the Media to the Customer's premises;
3.2.3 at all times to maintain records of all Materials in its possession or under its control; and
3.2.4 to return all Materials to the Customer or, upon receipt of an Authority to Destroy Documents, to destroy the Materials and to issue a Certificate of Destruction.
4 PRICES AND QUOTATIONS
4.1 All prices charged shall be those set out in the current Quotation on the date of collection of the Materials and issue of the Collection Note, with the exception of quoted prices that are valid for specified periods only.
4.2 In respect of any batched Products or Services the same quotation shall apply unless any change in prices has been notified in writing.
4.3 SWM reserves the right at its discretion to make a minimum charge per invoice of £25.00.
4.4 Prices are exclusive of VAT which is chargeable at the rate(s) ruling on the date of invoice.
4.5 Unless specified otherwise by SWM, all Quotations include standard charges for standard packaging, collection and delivery, and standard packing shall not be returnable. The cost of special packing and/or delivery will be charged over and above the quoted prices.
4.6 SWM reserves the right to revise its prices annually or at anytime upon giving one month's written notice to the Customer.
4.7 Any Quotation is available for acceptance in whole or in part within 60 days of the date of the Quotation, unless specifically stated otherwise in writing.
5 WARRANTIES BY SWM
5.1 SWM hereby warrants and undertakes that it will take reasonable steps:
5.1.1 to ensure that its premises are and shall remain secure and protected by appropriate security and fire systems appropriate to the nature of Materials held;
5.1.2 to audit the background of its staff and, where required, obtain security clearance to Ministry of Defence standards;
5.1.3 to ensure that scanning equipment is maintained to reasonable standards under third party maintenance contracts, and that where required at the time of scanning the equipment is reproducing to comply with PD 5000:2002;
5.1.4 to ensure that its processes comply with the minimum standards set out in BS EN 9001:2000 (Scope of supply of document management services, archiving and media preparation);
5.1.5 to meet its duty of care under the Data Protection Act 1998; and
5.1.6 to maintain suitable insurance and make a certificate available to the Customer upon request.
6 DISCLAIMERS BY SWM
6.1 SWM shall not be responsible for any project management or similar facilities associated with the installation and running of the Products or the Media, unless SWM has specifically stated otherwise in writing.
6.2 While all reasonable precautions are taken by SWM in preparing the Media, SWM shall not be responsible for any viruses or similar bugs contained in the Media.
6.3 Any information provided by SWM to the Customer in relation to the particular regulatory compliance requirements of the Customer is provided as information only and not as formal advice. The Customer is advised to seek professional advice in all circumstances where the scanned Materials may require to be legally admissible.
7 CANCELLATION
7.1 The cancellation of orders by the Customer shall be accepted at SWM's discretion. SWM reserves the right to issue an invoice of part only.
7.2 SWM shall in any event not be liable for loss or damage and shall be entitled to cancel or rescind this contract if the performance of its obligations under this contract is in any way adversely affected by any cause whatsoever beyond SWM's control including but not limited to delays or defaults of sub-contractors or suppliers, war, strikes, walk-out trade disputes, flood, fire accident to plant or machinery, shortage of materials or labour.
8 LIMITATION OF LIABILITY
8.1 In the absence of negligence SWM shall not be liable for any losses and/or consequential losses of the Customer arising from the failure to supply, delays in supply or defective materials.
8.2 SWM shall not be liable for accidents to persons or damage to property in connection with the delivery of goods to the Customer or through their subsequent use by the Customer, unless due to the negligence of SWM, its servants or agents.
8.3 Any claim in respect of damage to or loss of documents made by the Customer against SWM whether or not such damage or loss be caused by negligence of SWM its servants or agents shall be limited to £15,000.00 for any one batch of documents collected and covered by a single Collection Note.
9 INDEMNITY BY CUSTOMER 9.1 The Customer shall indemnify SWM in full in respect of any costs involved as a result of:
9.1.1 any breach of copyright or patent or any libellous or illegal documentation microfilmed and/or scanned for the Customer; and
9.1.2 any breach of the Data Protection Act 1998 or similar legislation or privacy laws;
9.1.3 any claim relating to the destruction of Materials following the issue of an Authority to Destroy Documents.
9.2 The Customer confirms that it has had sufficient time and opportunity to verify and check the integrity and completeness of the Media or any part of it prior to issuing an Authority to Destroy. Where Materials are returned to the Customer rather than destroyed, the Customer shall notify SWM of any fault or missing information on the Media within 30 Working Days of delivery of the Media; upon expiry of such period the Customer is deemed to confirm the integrity and completeness of the Media.
10 DELIVERY
10.1 The Customer shall be required to sign and date an Advice Note acknowledging receipt of any Media and/or returned Materials.
10.2 Except in the case of goods specified as requiring unpacking in the presence of our representative, the Customer shall notify and furnish SWM with a written statement of claim of any discrepancy or damage within thirty days of the date of the Advice Note.
10.3 The Customer shall in respect of alleged visible damage to the Products or Media at the time of delivery make a note of the alleged damage on the Advice Note and shall additionally furnish SWM with a written statement of claim within ten Working Days of the date of the Advice Note.
10.4 If the Customer shall fail to give notice as required in 10.2 and 10.3 above (as applicable) then the Products, Media or Services shall be deemed in all respects to be in accordance with the contract and the Customer shall be deemed to have irrevocably and unconditionally accepted the Products, Media or Services as being completely satisfactory.
11 PAYMENT
11.1 Unless otherwise agreed in writing by SWM the Customer shall make payment in full without any deduction or withholding whatsoever on any account within thirty days from the date of the invoice, unless stated otherwise by SWM in writing, and this shall be the essence of the contract. Failure to pay or failure to pay by the due date may be treated at the discretion of SWM as a repudiation of the contract. SWM reserves the right to charge interest on unpaid invoices at Nat West Bank base rate plus 4% calculated from the date of the invoice.
11.2 In default of payment by the due date SWM reserves the right to invoice the Customer any settlement, collection, administration, legal and similar costs incurred by SWM in the recovery of any outstanding monies.
12 MICROFILMING, SCANNING, DOCUMENT RETRIEVAL
12.1 SWM accepts no responsibility for the accuracy of estimates of numbers of documents. SWM will invoice for the actual number of documents microfilmed and/or scanned at the stated unit price regardless of whether or not total invoicing of the contract should exceed any totals stated in the Quotation, unless the Customer notifies SWM in writing of a maximum expenditure limit prior to collection by SWM or delivery by the Customer of the documents to SWM. Where such notice is received, SWM accepts no liability for non-completion of all documents relating to the Quotation.
12.2 A schedule of the Materials must be completed by the Customer and attached to Materials prior to despatch to or collection by SWM, in the absence of which SWM will prepare the schedule and invoice the Customer a Preparation Charge.
12.3 Should a Customer request copies of or access to any documents forming part of the Materials while they are in the possession of SWM, SWM shall make all reasonable efforts to facilitate such as soon as is reasonably practicable but no later than within 2 Working Days upon reasonable notice.
13 PRESERVATION OF RECORDS, CONFIDENTIALITY AND DESTRUCTION POLICY
13.1 SWM hereby undertakes and agrees that it will at all time ensure, as far as is reasonably possible, that all Materials and Media in its possession or under its control are kept safely (including protection from accidental loss or damage due to fire or flooding or otherwise) in a secure place to which people other than SWM's employees are restricted from entering and that unless destroyed or delivered to the Customer in accordance with these Terms it shall not permit the resultant Media to go out of its control.
13.2 SWM agrees to keep all Materials and Media and all information contained in them strictly confidential and not to disclose any such information to any person or use for advantage.
13.3 SWM shall maintain in force at all times reasonably adequate insurance cover against theft, loss, damage, fire, flood or other insurable risks (including loss or damage which may be suffered for loss of original documents).
13.4 SWM will destroy original documents in accordance with its sign off procedure and receipt of a Certificate to Destroy Documents. SWM shall destroy the original documents by shredding, pulping or incineration. SWM shall maintain records of all original records destroyed and shall issue a Certificate of Destruction.
14 PROPERTY IN THE GOODS
14.1 Property in the Materials shall remain with the Customer. SWM shall bear the risk of loss or damage to the original Materials and Media whilst they are in its possession or under its control.
14.2 Property in any Products or Media (including copyright in any scan) supplied to the Customer by SWM shall remain vested in SWM until paid for in full following which it shall pass to the Customer.
14.3 Pending the property in any goods passing to the Customer the Customer shall have no right to pledge or in any way charge as security any goods in which ownership remains with SWM. If the Customer shall be in breach of this provision all monies owing to SWM shall immediately become due for payment.
14.4 The Customer shall be entitled to resell the Products or use the Media in the normal course of its business and to pass title therein provided that the proceeds of sale of goods so resold and/or the benefit of any claim that the Customer shall have against its own purchaser shall be received and held by the Customer as trustee for SWM pending payment in full to SWM and SWM shall be entitled to trace all such proceeds of resale received by the Customer through any bank or other account maintained by the Customer.
14.5 In the event that the Customer shall not pay for any goods on the due date or dates for payment or if any of the events as specified in Clause 15.2 shall occur or if the Customer shall be in breach of the provisions of Clause 14.3 then in any such case the Customer shall permit SWM, or its duly authorised agents or representatives at any time during a Working Day to enter the Customer's premises where the Products or any part thereof are stored or Media are held or used to enable SWM to remove all or any of SWM's Products or erase or otherwise the contents of all Media stored on the Customer's computer systems.
14.6 Notwithstanding that the property in all Products and/or Media to be delivered to the Customer by SWM shall remain vested in SWM until SWM has received payment in full the risk of damage to or loss of all or any such Products and/or Media shall pass to the Customer immediately upon delivery to the Customer and as from such date of delivery or deemed delivery the Customer shall be liable to pay SWM the contract price for such goods whether or not the same are damaged or lost prior to the date that the property rights shall pass to the Customer.
14.7 If Products and/or Media are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for SWM.
15 TERMINATION OR SUSPENSION
15.1 Either party shall have the right at any time by giving notice in writing to the other to terminate its relationship immediately if the other party:
15.1.1 commits a material breach of any of the Terms and, in the case of a breach which is capable of remedy, fails to remedy the same within 30 days of being required to do so;
15.1.2 if the party is unable to pay its debts as they fall due or a petition is presented or meeting convened for the purpose of winding up the party enters into liquidation, whether compulsorily or voluntarily, or compounds with is creditors generally or has a receiver or administrator appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt.
15.2 Without prejudice to any other rights that SWM may have to terminate the relationship with the Customer under clause 15.1 or that SWM may have for damages for breach of contract or otherwise against the Customer, SWM shall be entitled to suspend all further deliveries under any contract if the Customer shall have become insolvent or bankrupt or have made any arrangement with its creditors or shall have suffered a receiver to have been appointed over any of its assets or undertaking or shall have suffered an execution or distraint to be levied upon any of its assets or shall have failed to satisfy any judgement within seven days of the same becoming payable.
15.3 These Terms shall be binding upon and enforceable against the Customer and any liquidator or receiver of the Customer or all or any part of its business assets or undertaking or in the event that the Customer being an individual becomes bankrupt these Terms shall be binding upon and enforceable against any trustee in bankruptcy of the Customer.
15.4 On termination of the relationship for any reason and provided all sums owing by the Customer have been received in full, SWM shall at the request of the Customer promptly return to the Customer all Materials and Media belonging to the Customer which SWM may have in its possession or under its control.
15.5 The termination of the relationship (for whatever reason) shall not affect the respective rights and liabilities of each of the parties accrued prior to such termination, including the continuing obligations of confidentiality.
16 OTHER GENERAL PROVISIONS
16.1 ASSIGNMENT: Failure by either party to insist upon a strict performance of any provision of these Terms shall not be deemed to be a waiver of its rights or remedies of any subsequent default by the other party in the performance or compliance with any of these Terms. SWM agrees not to assign or transfer or delegate its powers or duties under this agreement other than in the ordinary course of business without first notifying the Customer. Unless otherwise agreed in writing the Customer may not assign without the prior written consent of SWM.
16.2 SEVERABILITY: The invalidity of any individual provision of these conditions shall not affect the validity of the remaining provisions.
16.3 ENTIRE AGREEMENT: These Terms replace all previous agreements and understandings between SWM and the Customer.
16.4 VARIATION: These Terms may be varied by SWM serving written notice to the other and there being mutual agreement to the change. If no express consent to the revised Terms is received within one month of receipt of notice the Customer shall be deemed to have accepted the variations as such times as it makes further Materials available for collection.
16.5 CONSTRUCTION: The headings of paragraphs in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
16.6 NOTICES: Any notice to be served shall be deemed to be duly served on the day after being posted if sent by first class prepaid post to, or on the date received if left at, the last known trading address of the party to be served.
16.7 GOVERNING LAW: These Terms shall in all respects be governed by and construed in accordance with English Law.
Version: 2007
© 2007 - SWM Document Management Systems Ltd