Terms and Conditions for the provision of Additive Manufacturing and related services
1. DEFINITIONS
In this Agreement, capitalised terms will have meanings set out in Schedule 1
2. SCOPE OF AGREEMENT
2.1 This Agreement will come into effect and be contractually binding upon both parties from the Effective Date and will remain in force until all of the Services set out in the Order Acceptance have been provided by Ricoh andpaid for by the Customer.
2.2 This Agreement sets out the terms and conditions upon which Ricoh will
3. ORDERS AND FORMATION OF CONTRACT
3.1 From time to time, the Customer may make enquiries in relation to the purchase of services including (but not limited to) consultancy, design, additivemanufacturing and/or post process finishing services from Ricoh.
3.2 Following receipt of an enquiry in accordance with clause 3.1, Ricoh may wish to process electronic Materials that forms part of the Design through specialist software in order to consider its suitability for provision of the proposed services. The Customer agrees to provide all necessary co-operation in respect of the above. Any revisions to the Materials will be sent to theCustomer for approval.
3.3 Ricoh may issue a quotation setting out the details of the Services Ricoh proposes to provide. Such quotation will be considered an invitation to treatand not an offer.
3.4 If the Customer agrees to be bound by the terms of the quotation issued by Ricoh in accordance with clause 3.3, it will issue an Order. The Customer will ensure that the Order is accurate and complete. By issuing an Order, the Customer is agreeing, confirming, warranting and representing that: (i) it wishes to contract with Ricoh on the basis of the information set out in the quotation; (ii) it accepts this Agreement will apply to the quotation and the Services; (iii) all information provided to Ricoh during the order process is in final form and is accurate and complete; (iv) it approves the revisions to the Materials (if and to the extent such revisions have been provided to it by Ricoh as envisaged by clause 3.2); and (v) it accepts that any Printing agreed to be provided by Ricoh will be undertaken by Ricoh to within the tolerances asspecified by Ricoh in the Order Acceptance.
3.5 The Order will constitute an offer by the Customer to purchase services from Ricoh on the terms and conditions of this Agreement.
3.6 The Customer will ensure that the Order will include the following information: description of requested Services to be provided, requested quantity of Items, requested collection/delivery date, collection/delivery address, contact details, invoice address, Customer account number, and signature by an authorised signatory, together with any additional information required by Ricoh in writing. The Customer acknowledges that Ricoh’s output is dependent on the information provided and agrees that Ricoh will not be responsible for any loss or damage arising from the failure of the Customer to provide full and accurate information addressing the foregoing.
3.7 Ricoh will have absolute discretion as to whether it accepts any Order.
3.8 A contract for the supply of the Services by Ricoh to the Customer on the terms and conditions of this Agreement will be formed when Ricoh accepts the Order by issuing an Order Acceptance to the Customer and the date of suchOrder Acceptance will become the “Effective Date” of the Agreement.
3.9 Any collection/delivery date(s) set out in the Order Acceptance is an estimate only and time shall not be of the essence in relation to such date(s).
3.10 Each Order Acceptance will specify the location at which, and terms on which, any Item is to be collected or delivered together with any associated delivery terms. If the Order Acceptance is silent in relation to delivery, anyItems will be delivered ex works (Incoterms 2010).
3.11 Subject to clause 3.13, the terms and conditions of this Agreement are the only terms and conditions upon which Ricoh will supply the Services to the Customer and will apply to the exclusion of all other terms and conditions including but not limited to any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order and/or similar or other document (whether or not such document is referred to in this Agreement) and any terms and conditions which may otherwise be implied bytrade, custom, practice or course of dealing.
3.12 Save as provided in clause 14.3, the Customer will not be entitled to cancel the Order once Ricoh has issued an Order Acceptance.
3.13 For the avoidance of doubt, where a request for Services would require utilisation of raw materials to be provided by the Customer, such Services will be subject to a separate supplementary agreement for technical consultancy regarding such raw materials to be agreed with Ricoh in writing.
4. PAYMENT
4.1 Unless agreed otherwise in writing, the Charges for the Services are payable in advance. Ricoh will be entitled to invoice the Customer for theCharges at the time of or after issuing the Order Acceptance.
4.2 Each invoice will be payable by the Customer within 30 days following the date on which the invoice is issued. All payments will be made in the currency stipulated in the Order Acceptance in cleared funds by BACS unless otherwise agreed in writing between the parties. Ricoh will not be obliged to commenceperformance of the Services until it has received the Charges in cleared funds.
4.3 Notwithstanding any purported contrary appropriation by the Customer, Ricoh will be entitled, by giving written notice to the Customer, to appropriateany payment by the Customer to any invoice issued by Ricoh.
4.4 All payments will be made by the Customer in full on the due dates for payment without any deduction, set-off or counterclaim for damages or for anyother reason.
4.5 Ricoh reserves the right to vary the Charges at any time on not less than 14 days’ notice to the Customer to reflect any variation in the cost of the RawMaterials, of providing the Services and/or of any associated Ancillary Costs.
4.6 If the Customer wishes to dispute the Services, Item or Charges for legitimate reasons related to the Services, written notice must be received by Ricoh within 20 days of the date of the relevant Item being despatched byRicoh and/or Services being provided, whichever is the later.
4.7 The Customer agrees to provide financial information to Ricoh sufficient to allow Ricoh to assess the Customer’s creditworthiness upon request from time to time. Ricoh will determine whether an adequate credit line is available on the Customer’s account and the parties will discuss whether and what other credit arrangements are required by Ricoh (if any).
5. REMEDIES
5.1 Without prejudice to any other rights or remedies Ricoh may have, Ricoh: (i) reserves the right to charge interest on all overdue payments by no more than the amount permitted under late payment legislation, such interest to accrue from the due date of payment until payment in full is received (both before and after any judgment) and/or (ii) to suspend the provision of the Services and/or the Items until payment of the Charges, and any accruedinterest, is received.
5.2 The Customer will pay Ricoh’s legal costs on a full indemnity basis if the Customer is in breach of this Agreement and Ricoh has to enforce the terms ofthis Agreement and/or has to recover payment of any sums due hereunder.
5.3 In order to cover its administration costs, Ricoh reserves the right to charge an administration fee of no more than £25 per change in the event the Customer requires an administrative change to its account details (including but not limited to billing address and/or in the event the Customer requires an invoice to be re-issued).
6. MATERIALS SUPPLIED BY THE CUSTOMER
6.1 The Customer will, within the time period specified in the Order Acceptance (or, if no time is specified, within a reasonable period being no more than 10 days), provide Ricoh with the Materials necessary for Ricoh to provide the Services.
6.2 Unless otherwise specified in the Order Acceptance or below, title to the Materials and Original Design will remain vested in the Customer and title in any Item will vest in the Customer upon Printing or upon full payment being received by Ricoh (whichever is the later). Any Materials provided to Ricoh will remain at the Customer’s risk and, subject to clause 9.1, Ricoh accepts no Liability for any loss of or damage to any Materials whilst in Ricoh’spossession. Ricoh may retain the Materials, including the Original Design, aftercompletion of the Services at no cost to Ricoh.
6.3 The Customer warrants to Ricoh and will ensure that all Materials will at all times be fit for its intended purpose and of satisfactory quality. Without prejudice to the generality of the foregoing, to the extent that the Customer is requesting Ricoh to provide any Printing as part of the provision of the Services, the Customer will ensure that any Item created in accordance with the Original Design is inherently safe and fit for purpose and will comply with all applicable laws, standards, regulations and certifications (including but not limited to, where applicable, CE marking) which may apply. The Customer agrees that it shall be regarded as the ‘Producer’ for the purposes of allapplicable laws and regulations, wherever in the world.
6.4 Subject to clauses 6.2 and 6.7, unless otherwise specified in the Order Acceptance, Ricoh will: (i) only use the Materials for the purpose of supplying the Services and/or Items to the Customer under this Agreement; and (ii) not make any change or alteration to the Materials save for in the provision of theServices or otherwise with the Customer’s written consent.
6.5 Subject to clause 9.1, Ricoh will not have any Liability to the Customer or any third party for any loss, damage or defect caused by the Customer Property.
6.6 Without prejudice to clause 10.4, the Customer will to the fullest extent permissible under English law indemnify, keep indemnified and hold Ricoh harmless from and against all Losses in each case arising out of or inconnection with Ricoh’s use, printing of and/or possession of the Customer Property and/or performance of the Services in accordance with the terms of this Agreement including but not limited to: (i) any actual or threatened product liability claims arising from any Item; (ii) any regulatory investigation or enforcement action arising from any Item; and/or (iii) any actual or threatened claims arising from the Customer’s instructions in relation to the OriginalDesign and/or Modified Design.
6.7 Ricoh will have a general lien over Items for payment by the Customer of all amounts owed by the Customer to Ricoh under this Agreement. If the Customer fails to make any payment due to Ricoh under this Agreement within a period of 30 days from Ricoh giving written notice to the Customer specifying that such payment is overdue, Ricoh will be entitled, as agent for the Customer, to sell any or all Items on such terms and at such price as Ricoh at its sole discretion sees fit. Ricoh will apply the proceeds of any sale first to reimbursing the costs incurred by it in making that sale and secondly to paying all sums due to it under this Agreement by the Customer and will then account to the Customer for the balance (if any).
7. RICOH’S WARRANTY
7.1 The assessment and selection of the Services (and their appropriateness and suitability for the Customer) remains the Customer’s sole responsibility.
7.2 Ricoh will perform the Services with reasonable care and skill.
7.3 The Customer acknowledges and agrees that the output from the Services is entirely dependent upon the Materials and upon the Customer’s specification of and for: (i) the Raw Materials (if relevant); and (ii) the Item (including all details in the Design) and, save as set out in clauses 7.2 and 9.1, Ricoh accepts no responsibility for and gives no warranties in respect of the output of the Services. Without prejudice to the generality of the foregoing and subject to clause 7.2, any Item will be provided “as is” and, subject to clause 9.1, Ricoh gives no warranty that any Item or any Raw Materials will be safe, fit for a particular purpose, meet any conformance standards or be of satisfactory quality.
7.4 Subject to clauses 9.1, 9.3 and 9.4, Ricoh’s only liability for breach of clause will be, at Ricoh’s option, to re-perform the Services and/or to repair or replace any Item which was materially adversely affected by Ricoh’s failure to perform the Services in accordance with clause 7.2 or to reduce the Charges for the relevant Services by a sum which is equitable in the circumstances.
7.5 EXCEPT AS SET OUT EXPRESSLY IN THIS AGREEMENT, RICOH EXCLUDES, TO THE FULLEST EXTENT PERMISSIBLE IN LAW, ALL TERMS, CONDITIONS AND WARRANTIES (EXPRESS OR IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE).
8. CUSTOMER’S WARRANTIES AND UNDERTAKINGS
8.1 The Customer warrants, represents and undertakes to Ricoh that: (i) it is a business and will not be considered to be a consumer; (ii) it has the capacity to enter into this Agreement, authorise Ricoh to provide the Services and to grant the rights and licences it purports to grant under this Agreement; (iii) Orders will be submitted to Ricoh by authorised signatories of the Customer who are permitted to bind the Customer; (iv) it will notify Ricoh in writing of any changes in its circumstances which affect its ability to receive and/or pay for the Services in accordance with this Agreement; (v) for the purposes of any Item, the Customer will be considered the manufacturer of such Item as a result of its provision of the Materials; (vii) it is fully responsible and will at all times retain responsibility for all statutory obligations in law that fall upon a‘manufacturer’ and all such obligations that fall upon a ‘producer’ in relation to any product(s) which may be or are the output of the Services including without limit the Items; (viii) it is fully responsible for ensuring that any Item that requires a ‘CE Mark’ or any other marking required in any jurisdiction into which the Item is or is to be supplied has been properly certified and tested and that the correct supporting documentation, including but not limited to the Declaration of Conformity or an equivalent, has been completed and will be held securely for the greater of 10 years or the minimum period required under law in the jurisdiction(s) into which the item is or is to be supplied; (ix) if required by Ricoh, it will fully cooperate with Ricoh and/or any regulatory authority in the event of any regulatory enquiry or investigation relating to the Items including without limit the disclosure within 5 days of any documentation or information a regulatory authority may request of Ricoh; and (xi) the Materials and any Item meet any and all relevant laws, technical standards orproduct safety codes in all countries in which the Item will be sold or supplied.
8.2 The Customer undertakes to: (i) promptly supply all assistance, co- operation, documentation and other information and/or Materials necessary and/or reasonably required by Ricoh in order for Ricoh to perform the Services; and (ii) maintain current back-ups of all data and files (including of any Original Design), and maintain adequate virus protection systems for its business, systems and networks.
8.3 The Customer warrants, represents and undertakes to Ricoh that the Materials and any Item will not: (i) contravene any applicable laws, regulations, standards and/or other legal or customary requirements including but not limited to those applicable in England and Wales and/or in the jurisdiction(s) in which the Customer is located and any jurisdiction(s) in which any end user of the Item is located; (ii) fall within the list of prohibited items available at the Ricoh Website; (iii) be considered to be defamatory, obscene, offensive, indecent, malicious, hateful or inflammatory; (iv) be pornographic or sexually explicit; (v) be used or capable of use to promote violence, war or terrorism; (vi) be used or capable of use to create a risk to a person’s health or safety or public health or safety; promote, constitute or be used as part of any illegal or unlawful activity; (vii) use any Ricoh name or trademark in connection with the Item including on any packaging, instruction manual or other accompanying documentation or Materials; or (viii) give the impression it results from the provision of the Services by Ricoh. Ricoh will be entitled to refuse to perform any Services which it believes (in its absolute discretion) may result in the Customer being in breach of this clause 8.3 and the Customer indemnifies, keeps indemnified and will hold Ricoh harmless from and to the extent permitted by law in respect of any Losses arising from a breach of this clause 8.3.
8.4 The Customer warrants, represents, undertakes and will ensure that it is the owner of the Materials and/or a properly authorised licensee of the Materials and that the Materials and any Item will not violate any Intellectual Property Rights of third parties including without limit as a result of Ricoh performing the Services and/or providing the Items. The Customer will indemnify, keep indemnified and hold Ricoh harmless from and against any and all Losses arising from the use of and/or reproduction of the Materials and/or any Item, and/or from any defamatory, libellous or illegal statementscontained within the Materials or any Item.
8.5 Where the Item is an article for use at work, the Customer warrants, undertakes and will ensure that it has taken and will continue to take sufficient steps to ensure that the Item in its design and construction will be safe and without risks to health at all times when the Item is being set, used, cleaned or maintained by a person at work as understood by Section 6(8) of the Health and Safety at Work etc Act 1974 or any analogous law in a relevant jurisdiction.
8.6 The Customer shall comply with all applicable export laws and regulations if it exports any Equipment (or any items, including software, incorporated within such Equipment) or Software. Customer shall not use any Equipment (or any items, including software, incorporated within such Equipment), Software or any related information and/or documentation for military purposes (including the development or manufacture of weapons of mass destruction, conventional weapons, or associated delivery systems), nor shall Customer provide the same to any third party who may use the same for such military purposes”
9. RICOH’S LIABILITY
9.1 Ricoh does not exclude or limit its Liability (if any) for: (i) fraud or fraudulent misrepresentation to the extent it may not be excluded in law; (ii) death orpersonal injury resulting from Ricoh’s negligence or the negligence of its employees, subcontractors or agents; or (iii) any matter which cannot beexcluded by or limited in law.
9.2 Except as set out in clause 9.1 above, Ricoh’s aggregate Liability to the Customer in respect of any loss or damage that is not excluded in clause 9.3, will be limited to: (i) the Charges paid and/or invoiced and payable in the three (3) months prior to the breach; or (ii) ten thousand pounds (£10,000),whichever is the higher.
9.3 Except as set out in clause 9.1 above, Ricoh will not be liable to the Customer, whether in contract, tort (including but not limited to negligence) or otherwise for any of the following types of losses: (i) loss of profits; (ii) loss of revenue; (iii) loss of or depletion to goodwill; (iv) loss of use of or damage to data or software; (v) infection of or damage or interference caused to any computer operating systems or programmes (or part thereof); (vi) loss or damage suffered by the Customer as a result of an action brought against the Customer by a third party; and/or (viii) any special, indirect or consequential loss, regardless of whether or not any such losses were foreseeable and/or Ricoh had been advised of the possibility of the Customer incurring such losses.
9.4 Except as set out in clause 9.1 above, Ricoh will not be responsible for any failure or delay in performing its obligations to the extent that such failures or delays are caused by any: (i) inaccuracies or omissions in or problems with: (a) the Customer Property (including but not limited to any specifications); and/or (b) information supplied or not supplied by the Customer; or (ii) acts oromissions of the Customer or a third party (other than Ricoh’s subcontractors).
9.5 The Customer acknowledges that Ricoh is not the manufacturer, producer, importer or designer of the Items or of items or products as part of the Services. To the fullest extent permitted by law, Ricoh assumes no liability for the safety of any output of the Services or product or item in either design or manufacture.
9.6 Ricoh has calculated the Charges on the basis of the exclusions from and limitations of liability contained in this Agreement. The Customer expressly agrees these exclusions and limitations of liability are reasonable and are reflected in the charges which would be higher without these provisions.
10. INTELLECTUAL PROPERTY RIGHTS AND EXPLOITATION
10.1 Ricoh shall own all Rights in the Background Intellectual Property. In providing the Services, Ricoh and the Customer may cooperate in relation to developing or improving the Original Design and/or Ricoh may itself improve the Original Design. To the extent that, as a result of such cooperation and/oras a result of Ricoh’s improvements, any Intellectual Property Rights arises in respect of the Technology and/or relating to the Technology then such Intellectual Property Rights will form part of the Background Intellectual Property Rights and will be owned by Ricoh. The Customer hereby assignswith full title guarantee to Ricoh all such Intellectual Property Rights.
10.2 Subject to clause 10.3, any and all Rights subsisting in documentation, data, software and/or information created by or on behalf of Ricoh shall beowned and will remain owned by Ricoh or its licensors.
10.3 Subject to clauses 6.2, 10.1 and 10.6 and/or unless otherwise specified in an Order Acceptance, any Intellectual Property created or generated in respect of the Original Design, the Modified Design and/or an Item will be owned by the Customer.
10.4 Ricoh grants to the Customer a revocable (but only if the Customer is in breach of this Agreement), non-exclusive, worldwide, royalty-free licence to use such of the Background Intellectual Property as is required solely for the purpose of permitting and enabling the Customer to receive and use the Item. For the avoidance of doubt, the Customer may not use the Technology itself inany circumstance.
10.5 The Customer grants to Ricoh a non-exclusive, worldwide, royalty free licence (with a right to sub-licence) to use, copy, translate and amend the Intellectual Property Rights subsisting in:
(i) the Original Design, the Modified Design and each Item; and
(ii) improvements and/or amendments to the Original Design or any Modified Design (whether generated by any cooperation between Ricoh and theCustomer pursuant to clause 10.1.1 or otherwise),
as is required for the provision of the Services and the performance of this Agreement.
10.6 If specified in the Order Acceptance that Ricoh will own, or have transferred to Ricoh, any Intellectual Property Rights in the Original Design, Modified Design, in any Item and/or otherwise in any Services or other Intellectual Property Rights (whether as a result of the operation of clause 10.1.2 or otherwise) (“Assigned IP”) the Customer hereby assigns, with full title guarantee, from the date of creation, to Ricoh all such Intellectual PropertyRights in the Assigned IP.
10.7 The Customer will at its own cost, execute all such documents and do all such acts and things as Ricoh may reasonably request from time to time in order to secure the full right, title and interest of Ricoh in any Rights and anydocumentation relating to them and which is the subject of this clause 10.
10.8 The parties agree that Ricoh bears no responsibility for and shall not be liable in respect of any infringement, inadvertent or otherwise, of any Rights owned by any third party resulting from provision by Ricoh, or the receipt by the Customer, of the Services and/or from the Printing by Ricoh on theCustomer’s behalf in accordance with the Customer’s instructions or the use ofany Item or Design by the Customer.
10.9 The Customer will indemnify, keep indemnified and hold harmless Ricoh from and against any Losses arising out of or in connection with any claim or proceedings made, brought or threatened against Ricoh by any person foractual or alleged infringement of a third party’s Rights and which arises out of or in connection with the provision by Ricoh, or the receipt by the Customer, of the Services and/or from the Printing by Ricoh on the Customer’s behalf in accordance with the Customer’s instructions or the use of any Materials, Item and /or Design by Ricoh or the Customer.
11. FORCE MAJEURE
Ricoh may, without liability, delay performance and/or cancel this Agreement on account of force majeure or other circumstances beyond its reasonable control including, but not limited to, acts of God, war, riot, fire, earthquake, explosion, flood, strike, lockout, injunction or telecommunications, electrical or source of supply failure, delays caused by or linked to customs and/or export and/or import laws and regulations (whether relating to importation, exportation, movement and/or storage of Items, Materials or otherwise) and/or the unavailability of services, personnel, products and/or Materials.
12. CONFIDENTIALITY
Except as in relation to any assignee and/or subcontractor referred to in clause 13.2 below and/or any employee and/or director within the parties’ Affiliates (provided that each has advised such employees or directors to whom Confidential Information of the other is disclosed of this Agreement, pursuant to which such employees will be required to maintain the confidentiality of all Confidential Information), neither party will, without the previous written consent of the other, use, publish or disclose to any person, nor cause nor permit any of its servants, agents or sub-contractors to use, publish or disclose any Confidential Information which it has received from the other, otherwise than for the performance of its duties under this Agreement, other than Confidential Information: (i) which becomes generally available in the public domain other than by its unauthorised disclosure by the receiving party; or (ii) which has or may come into the possession of one party otherwise than in breach of a duty of confidence to the other party; or (iii) which is already in the possession of a party with the right to disclose; or (iv) which is required to be disclosed by law.
13. ASSIGNMENT AND SUBCONTRACTING
13.1 The Customer will not, without Ricoh’s prior written consent, assign this Agreement to any other person in whole or in part.
13.2 Ricoh may assign this Agreement to any other person in whole or in part and/or subcontract the performance of any of its obligations under this Agreement. The subcontracting by Ricoh of any of its obligations under this Agreement in whole or in part will not relieve Ricoh of its responsibility for the performance of its obligations to the Customer.
14. TERMINATION
14.1 Ricoh may terminate this Agreement or any other agreement between Ricoh and the Customer with immediate effect on written notice: (i) (a) in accordance with clause 14.3; and/or (b) if the Customer fails to make prompt payment of any Charges; (ii) (a) the Customer is unable to pay its debts as they fall due, or becomes bankrupt, or begins negotiations with its creditors, or goes into liquidation or administration, or has a receiver or administrative receiver appointed over all or any of its assets, or is dissolved; or (b) a bailiff or other officer attaches, cedes, or impounds any of the Customer’s goods pursuant to a Court Order or in, where relevant, an attachment is levied or attempted against any of its assets or, in either case of (ii) (a) or (b) an analogous event occurs; or (iii) Ricoh becomes aware that any information or data supplied by the Customer before entering into and/or during the performance of this Agreement was false in a material respect.
14.2 In the event of termination under clause 14.1, the Customer will immediately pay to Ricoh: (i) all arrears of Charges and other sums due; plus (ii) a sum equal to any and all labour, administrative, incidental, stranded and/or wind down costs incurred and/or to be incurred by Ricoh in ceasing the Services and/or this Agreement. The Customer acknowledges and agrees that this sum represents a genuine pre-estimate of Ricoh’s losses arising from suchtermination of this Agreement.
14.3 Either party may terminate the provision of Services under this Agreement with immediate effect on written notice if the other is in material breach of any term of this Agreement and, where such breach is capable of remedy, provided that it has notified the other party in writing of the breach and given the otherparty not less than 30 days in which to remedy the breach.
14.4 Upon termination of this Agreement, howsoever arising, clauses 4, 5, 6, 7, 8, 9, 10, 12, 14.2 and 15, together with any other clauses which are intended to survive termination, will remain in effect.
15. GENERAL PROVISIONS
15.1 This Agreement sets forth the entire understanding between the parties and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the supply of Services. The Customer acknowledges that it has not relied upon any statement, promise or representation made on behalf of Ricoh which is not set out in this Agreement. Any purchase order issued by the Customer will be for its administrative purposes only and none of its terms and conditions shall be of any force or effect against Ricoh. No other agreements, representations or warranties, whether oral or written, will be deemed to bind the parties with respect to this Agreement. Nothing in this clause 15.1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulentmisrepresentation.
15.2 This Agreement may not be modified or amended except by mutual written agreement signed by authorised signatories of both parties.
15.3 Except as in relation to any assignee or subcontractor referred to in clause 13.2 and/or as set out in (i) and (ii) below, the parties hereby agree that a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or any analogous act in a relevantjurisdiction and:(i) Ricoh UK Products Limited is entering into this Agreement for itself and for the benefit of its Affiliates, each of which will have the benefit of and will beentitled to enforce the terms of this Agreement.
(ii) notwithstanding clause 15.3(i), (i) Ricoh UK Products Limited may terminate and/or vary this Agreement and/or waive time without the consent of any Affiliate;
(ii) any consents, approvals or notices to be issued under this Agreement are only required to be issued by Ricoh UK Products Limited and not by any Affiliate; and
(iii) the Customer will only be entitled to enforce the terms of this Agreement against Ricoh UK Products Limited and/or make any claim in relation to this Agreementagainst Ricoh UK Products Limited (and not against any Affiliate).
15.4 Where relevant, capitalised terms used in this clause 15.4 shall have the meaning as defined in or interpreted in accordance with applicable data protection laws, including Regulation (EU) 2016/679 of 27 April 2016 and theUK Data Protection Act 2018. The Customer authorises Ricoh and Ricoh’s subcontractors to collect and Process the Customer’s and Customer’s Affiliates’ employees’ Personal Data: (i) as is necessary for Ricoh to perform its obligations under or in connection with this Agreement; (ii) to allow Ricoh to market similar services and/or goods to the Customer and its Affiliates provided such marketing is in compliance with applicable laws; and/or (iii) in order to improve Ricoh’s technology and services. Without prejudice to theforegoing, the Customer agrees that Ricoh may Process the Customer’s employees and the Customer’s Affiliates’ employees’ Personal Data inside and outside of the EEA. Ricoh shall take reasonable precautions to protect such Personal Data.
15.5 If any clause or part of a clause of this Agreement is found to be unenforceable then that clause or part will, to the extent required, be severed and will not affect any other provisions of this Agreement which will remain infull force and effect.
15.6 The waiver of a breach or default by either party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as awaiver of any breach or default by the other party.
15.7 All sums payable by the Customer under or pursuant to the terms of this Agreement are stated exclusive of VAT. Where, for any VAT purposes, a supply is made (or treated as made) by Ricoh under the terms of this Agreement to the Customer which is subject to VAT, the Customer is to pay an amount equal to such VAT (in addition to any other consideration for the supply) to Ricoh, and (where required by any laws) Ricoh will provide theCustomer with a VAT invoice.
15.8 If a Tax Authority notifies Ricoh that VAT is chargeable for any supply under this Agreement: (i) Ricoh will send the Customer a copy of the notification (if received) and a valid VAT invoice; and (ii) the Customer will pay Ricoh an amount equal to the VAT due, for which Ricoh is liable to account tothe Tax Authority, within 5 working days of receipt of the invoice.
15.9 Any notice to be served will be in writing and served upon the recipient at its address set out in the Order Acceptance by registered post.
15.10 Headings to clauses are for the purpose of information and identification only.
15.11 Subject to clause 15.12, this Agreement and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with English law and the parties submit to theexclusive jurisdiction of the courts of England.
15.12 Any party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.
SCHEDULE 1: DEFINITIONS
Unless the context otherwise requires:
“Affiliates”: means, in respect of a person, its Parent Undertakings, its Subsidiary Undertakings and the Subsidiary Undertakings of any of its Parent Undertakings from time to time, with “Parent Undertaking” and “Subsidiary Undertaking” having the meanings set out in section 1162 Companies Act 2006.
“Agreement”: means the contract between Ricoh UK Products Limited and the Customer for the supply of Services, incorporating these terms and conditions and formed in accordance with clause 3.8 above.
“Ancillary Costs” means packaging, insurance, carriage, shipping, and/or delivery costs.
“Background Intellectual Property”: means: (i) any and all Intellectual Property Rights in the Technology; and (ii) any Intellectual Property Rights owned, developed and/or licensed by Ricoh from third parties prior to or after the date of this Agreement.
“Charges”: means the payment(s) due to Ricoh UK Products Limited in respect of the supply of the Services as specified in the Order Acceptance, together with any Ancillary Costs payable by the Customer in addition.
“Confidential Information”: means any and all information which is: (i) identified in writing as being confidential, which is obtained from the Customer by Ricoh, or from Ricoh by the Customer; (ii) disclosed, directly or indirectly, to the Customer by Ricoh prior to or following the Effective Date including without limitation discussion of future products or services of Ricoh; or (iii) generated by either party under or in connection with this Agreement and which, by its nature, should reasonably be assumed to be confidential, including but not limited to Ricoh’s Intellectual Property Rights, methodology, technical knowledge and information (including but not limited to any technical knowledge or information about the Technology gained or acquired by the Customer as a result of receiving the Services or as a result of the cooperation provided for in clause 10.1.1) and/or pricing.
“Customer”: means the legal entity of the customer, being confirmed as the Customer in the Order Acceptance.
“Customer Property”: means (i) Materials and/or (ii) any Item(s) which have been fully paid for in accordance with this Agreement.
“Design”: means the document or electronic file used by Ricoh to perform anyPrinting as requested by the Customer, being: (i) the Original Design; and/or (ii) ) the Modified Design.
“Effective Date”: will be given the meaning set out in clause 3.8.
“Intellectual Property Rights”: means all intellectual and/or industrial property of any kind including but not limited to patents, supplementary protection certificates, rights in know-how, registered trade marks, registered designs, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs, software or otherwise), database rights, topography rights, any rights in any invention, discovery and/or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions.
“Item”: means a three dimensional object created from the Design.
“Liability”: means liability arising out of or in connection with this Agreement, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including but not limited to any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Agreement in each case howsoever caused including but not limited to if caused by negligence.
“Losses”: all direct losses; Liability; costs; damages and/or expenses that a party (and/or their Affiliates) does or will incur or suffer; all claims or proceedings, investigations and/or regulatory action made, brought or threatened against such party (and/or their Affiliates) by any person and/or regulatory body; and all direct losses, Liability, costs, damages and/or expenses that that party (and/or their Affiliates) does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding.
“Materials”: means the documents or other materials (if any) supplied by the Customer to Ricoh in a physical or electronic format for the purposes of Ricoh providing the Services which may include (but will not be limited to) the Original Design but which will not include the Raw Materials.
“Modified Design”: means the Original Design as modified by Ricoh as a result of its performance of the Services.
“Order”: means an order by the Customer for the supply of Services by Ricoh to the Customer placed in writing using the on-line ordering facility accessed via the Ricoh website or by other means of communication acceptable to Ricoh.
“Order Acceptance”: means Ricoh’s written acceptance of an Order.
“Original Design”: means any design, product, Materials, item or object created by or licensed to the Customer and provided by the Customer to Ricoh to beused by Ricoh, as part of Ricoh’s performance of the Services, as specified bythe Customer in writing and/or otherwise provided to Ricoh by Customer.
“Printing”: means the Services to produce an Item from a Design using additive manufacturing technology.
“Raw Materials” means any raw materials provided by Ricoh and used to generate the Item.
“Ricoh”: means Ricoh UK Products Limited and/or its’ Affiliates (as the context permits).
“Ricoh UK Products Limited”: means Ricoh UK Products Limited (registered number 01763860), whose registered office is at Priorslee, Telford, Shropshire TF2 9NS.
“Ricoh Website”: means Ricoh’s website at https://rapidfab.ricoh-europe.com/
“Rights” means rights, title and interest (including, but not limited to Intellectual Property Rights).
“Services”: means the services provided or to be provided to the Customer by Ricoh as specified in an Order Acceptance, whether Printing, consultancy, design, post process finishing services and/or such other services as may be specified in the Order Acceptance.
“Tax Authority”: means any authority, whether of the United Kingdom or elsewhere, competent to impose, assess or collect taxation, including but not limited to HMRC.
“Technology”: means the technology, software, equipment, operation and/or other aspects comprising and/or used by Ricoh in the performance of the Services and/or in performing other additive manufacturing services for other customers as well as any improvements arising in respect of and/or relating to such Technology (including without limit as envisaged by clause 10.1.1) but, for the avoidance of doubt, not including the Design.
“VAT”: means United Kingdom value added tax or any similar sales tax imposed in any other jurisdiction.
Version 2.0: July 2019