These terms and conditions apply to the sale of hardware, the licence of software
and/or the provision of any consultancy and/or support services to you, the Customer,
by us, RedRat Limited, with registered address Abbey House, 51 High Street, Saffron
Walden, CB10 1AF, United Kingdom (“RedRat”).
In these Terms and Conditions, the following words shall have the following meanings:
“Confidential Information” means the Software and any information which is
designated by the party disclosing it to be confidential;
“Consultancy Rate” means RedRat’s standard hourly consultancy rates from
time to time;
“Customer” means the person, firm or company to whom RedRat sells Hardware
and/or licences Software and/or provides Support Services;
“Documentation” means any instruction manuals and other information associated
with the Hardware or Software which may be supplied by RedRat to the Customer;
“Effective Date” means the date of RedRat’s order confirmation to the Customer;
“Equipment” means the Hardware and/or Software and/or Documentation specified
in the Quotation;
“Hardware” means the hardware forming part of the Equipment when initially
delivered to the Customer and excludes the Software;
“Licence” means the licence to use the Software granted by clause 5; “Price”
means the total price payable for the Equipment as set out in the Quotation;
“Quotation” means the details of the relevant Equipment and Price and any
Support Services provided by RedRat to the Customer;
“Software” means the software forming part of or supplied with the Equipment
or the software available for download from RedRat’s website as applicable;
“Support Services” means the services described in clause 6;
“Warranty Period” has the meaning set out in clause 10; and
“Working Hours” means 9am to 5pm UK time Monday to Friday excluding bank
and public holidays.
Basis of contract
2.1 - A binding contract subject to these Terms and Conditions shall come into existence
between RedRat and the Customer by whichever is the earlier of: i) issuance of a
written order confirmation by RedRat to the Customer, ii) delivery of the goods
or iii) the issuance of an invoice by RedRat to the Customer.
Delivery of Equipment
3.1 - RedRat shall use its reasonable endeavours to deliver the Equipment on the
date or dates specified in its Quotation, but any such date is approximate only.
If no dates are so specified, delivery shall be within a reasonable time of the
Quotation. Time is not of essence as to the delivery of the Equipment and RedRat
is not liable for any delay in delivery, however caused.
3.2 - The Customer shall be deemed to have accepted the Equipment when the Customer
has had 14 days to inspect it after delivery and has not notified RedRat of any
defects in accordance with clause 10.2.
3.3 - RedRat shall be responsible for any damage or loss in transit, provided that
shipping costs are to be charged to RedRat and the Customer notifies it to RedRat
(or its carrier, if applicable) within three days of receipt by the Customer of
the Equipment and that the Equipment has been handled in accordance with RedRat's
stipulations. Any remedy under this clause 3.3 shall be limited, at the option of
RedRat, to the replacement or repair of any Equipment which is proven to RedRat's
satisfaction to have been lost or damaged in transit.
3.4 - Where the equipment is supplied for export from the United Kingdom, the Customer
shall be responsible for complying with any legislation governing:
3.4.1 - the importation of the Equipment into the country of destination;
3.4.2 - the export and/or re-export of the Equipment and shall be responsible for
paying any duties on it.
Title and Risk
4.1 - The Equipment shall be at the risk of RedRat until delivery to the Customer
at the place of delivery specified in RedRat’s Quotation.
4.2 - Ownership of the Equipment shall pass to the Customer on the later of completion
of delivery, or when RedRat has received in full in cleared funds all sums due to
it in respect of the Equipment and all other sums which are due to RedRat from the
5.1 - If RedRat refers to a software licence in the Quotation, the Price shall include
the licence fee for the Customer’s right to use the Software in accordance with
these Terms and Conditions.
5.2 - Where Software is provided to the Customer, RedRat grants to the Customer
a non-exclusive licence to use the Software solely on or in connection with the
use of the Equipment and to possess and refer to the Documentation in accordance
with this Licence.
5.3 - Save for the RedRat SDK and Software for which the licence fee is included
in the Hardware Price, and except to the extent permitted by statute or pursuant
to clause 5.4, the Customer shall not reproduce, modify, adapt, merge, translate,
disassemble, decompile, recompile or reverse engineer the Software or create derivative
works based on the whole of or any part of the Software or incorporate the Software
into any other software program not provided by RedRat. The information necessary
to achieve interoperability of the Software with other computer software programs
is available from RedRat on request.
5.4 - For the avoidance of doubt, the Customer has the right to make backup copies
of the Software to the extent such copies are reasonably necessary for the Customer’s
own operational security and use within the scope of this Licence.
5.5 - The Customer shall only use the Software and the Documentation for its internal
business purposes, and shall not make the Software and/or the Documentation available
for use by any third party except for a onetime permanent transfer of all license
rights to another party provided that they agree to the RedRat terms and conditions.
5.6 - The Customer shall not copy the whole or any part of the Documentation, and
shall not remove any trade mark, copyright or proprietary notices from the Documentation.
6.1 - In consideration of payment of the Price by the Customer, RedRat shall provide
Support Services for the Software and Hardware in accordance with these Terms and
Conditions for the period of 24 months from the Effective Date, or such alternative
period as is set out in the Quotation. Following expiry of such period, RedRat shall
provide any further Support Services requested by the Customer at the Consultancy
6.2 - RedRat shall provide the following Support Services during Working Hours:
6.2.1 - a helpdesk facility by telephone and/or e-mail, including advice and assistance
on issues relating to defects in the Equipment;
6.2.2 - provision of workarounds, patches or other maintenance releases not providing
any new functionality issued for the Software;
6.2.3 - repair or, at RedRat’s option, replacement of that part of the relevant
Equipment which is defective.
6.3 - Where either:
6.3.1 - performance of the Support Services is made more difficult or costly as
a result of the Customer’s failure to inform RedRat of a problem as soon as reasonably
6.3.2 - the Customer requests RedRat to perform the Support Services outside Working
6.3.3 - the Customer requests that RedRat provides the Support Services at the Customer’s
premises RedRat reserves the right to charge the Customer an additional sum for
the provision of the Support Services at the Consultancy Rate.
6.4 - RedRat shall use its reasonable endeavours to respond within 1 Working Day
to issues notified to RedRat by telephone or email (firstname.lastname@example.org).
6.5 - Any consultancy work which is carried out by RedRat for the Customer shall,
unless otherwise agreed between the parties, be at the Consultancy Rate.
7.1 - From time to time RedRat may make available upgrades, new versions or other
revisions or amendments to the Software, which provide additional features or change
the functionality of the Software.
7.2 - Major upgrades (being a change of the Software version number before the first
decimal point), shall be provided to the Customer on payment of a fee to be decided
by RedRat. Minor upgrades (being any upgrade other than a major upgrade) may, at
RedRat’s discretion, be provided to the Customer free of charge.
7.3 - Any upgrades provided to the Customer shall form part of the Software and
shall be subject to this Licence.
Price and payment
8.1 - All prices shall be as stated in RedRat’s written Quotation and save where
otherwise stated in writing, prices are exclusive of delivery, packaging, packing,
shipping, carriage, insurance, VAT and other charges and duties. The Customer shall
be responsible for paying any taxes which arise under these Terms and Conditions
save for taxes on RedRat’s income.
8.2 - The Price and any other sums due under this agreement shall be due and payable
within 30 days of the date of RedRat’s invoice for payment. Time for payment shall
be of the essence and unless otherwise agreed in writing, delivery of the Equipment
will not be made to the Customer until RedRat has received the relevant Price.
8.3 - RedRat shall invoice the Customer for the amount of the Price on or following
the Effective Date. Any other sums due under these Terms and Conditions shall be
invoiced monthly in arrears. If the Customer does not pay the Price and any other
sums due under these Terms and Conditions within 30 days of the date of the relevant
invoice, RedRat reserves the right to charge interest at a daily rate on all sums
outstanding until payment in full is received at a rate of 4% above the UK base
lending rate of Barclays Bank plc from time to time or to claim interest under the
Late Payment of Commercial Debts (Interest) Act 1998.
Intellectual property rights
9.1 - The Customer acknowledges that RedRat owns or is licensed to use, all copyright
and other intellectual property rights of whatever nature in and relating to the
Equipment together with any consultancy, development, customisation and/or configuration
work carried out by RedRat under the provisions of these Terms and Conditions. Nothing
contained in these Terms and Conditions shall be construed as an assignment or transfer
of any copyright or other intellectual property rights in the Equipment and/or the
9.2 - The Customer shall refrain from analysing the Equipment except to the extent
necessary to use the Equipment in accordance with these Terms and Conditions.
9.3 - RedRat warrants that the use and licence of the Equipment and Software in
accordance with these Terms and Conditions will not infringe the copyright belonging
to any third party.
9.4 - Subject to clause 9.5, in the event of any claim being brought against the
Customer that the normal use or possession of the Equipment or Software in accordance
with these Terms and Conditions infringes the copyright of a third party, RedRat
hereby indemnifies and will keep indemnified the Customer against any damages that
are awarded to be paid to any such third party in respect of a claim and any losses,
costs (including all legal fees) and expenses incurred by or on behalf of the Customer
provided that the Customer:
9.4.1 - shall as soon as reasonably practicable notify RedRat in writing of any
such claim of which it becomes aware;
9.4.2 - does not make any admission as to liability or compromise or agree any settlement
of any claim without the prior written consent of RedRat, which consent shall not
be unreasonably withheld or delayed, or otherwise prejudice RedRat or any other
third party’s defence of any claim;
9.4.3 - gives RedRat, or such person as RedRat shall direct, immediate and complete
control of the conduct or settlement of all negotiations and litigation arising
from any claim; and
9.4.4 - upon payment of its reasonable costs, gives RedRat and such other third
parties as RedRat shall direct all reasonable assistance with the conduct or settlement
of any such negotiations or litigation.
9.5 - In the event of a claim that the use by the Customer of the Equipment or Software
in accordance with the provisions of these Terms and Conditions infringes the copyright
of a third party, RedRat shall have the right in its absolute discretion and at
its own expense:
9.5.1 - to procure the right for the Customer to continue using the Equipment and/or
Software in accordance with these Terms and Conditions;
9.5.2 - to make such alterations, modifications or adjustments to the Equipment
and/or Software so that they become non infringing;
9.5.3 - to replace the Equipment and/or Software with non-infringing software and/or
documentation and/or hardware; or
9.5.4 - to refund the Price paid by the Customer depreciating over a 5 year period.
9.6 - In the event of any claim attributable to the use or possession by the Customer
of the Equipment other than in accordance with the provisions of these Terms and
Conditions, the provisions of clauses 9.3 to 9.5 shall not apply and the Customer
shall indemnify RedRat against all liabilities, costs and expenses which RedRat
may incur as a result of such claim.
9.7 - THE FOREGOING STATES REDRAT’S ENTIRE LIABILITY TO THE CUSTOMER IN RESPECT
OF THE INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY ARISING
OUT OF THE EQUIPMENT OR SOFTWARE.
10.1 - RedRat warrants that:
10.1.1 - the Software will perform in all material respects in accordance with the
Documentation for a period of 90 days from the Effective Date (to be known as the
“Warranty Period” in respect of Software);
10.1.2 - the Hardware will be free from defects in materials and workmanship for
a period of 2 years from the Effective Date, (to be known as the “Warranty Period”
in respect of Hardware); and
10.1.3 - any Support Services shall be provided with reasonable skill and care.
10.2 - If RedRat receives written notice from the Customer of any breach of a warranty
in clause 10.1 then RedRat shall at its own expense and within a reasonable time
after receiving such notice, as appropriate: (i) repair or, at its option, replace
that part of the relevant Equipment which is defective or otherwise remedy such
defect; or (ii) re-perform the relevant Support Services PROVIDED THAT REDRAT SHALL
HAVE NO LIABILITY OR OBLIGATIONS UNDER THE SAID WARRANTY UNLESS IT SHALL HAVE RECEIVED
WRITTEN NOTICE OF THE DEFECT OR FAILURE IN QUESTION NO LATER THAN THE EXPIRY OF
THE RELEVANT WARRANTY PERIOD. The legal and beneficial ownership of any defective
Equipment shall revert to RedRat upon the replacement of such defective Equipment,
whereupon the legal and beneficial ownership of the replacement Equipment shall
vest in the Customer.
10.3 - REDRAT SHALL HAVE NO LIABILITY OR OBLIGATIONS UNDER THE WARRANTIES IN CLAUSE
10.1 OTHER THAN TO REMEDY BREACHES THEREOF BY THE PROVISION OF MATERIALS AND SERVICES
WITHIN A REASONABLE TIME AND WITHOUT CHARGE TO THE CUSTOMER.
10.4 - RedRat shall not be liable for any defect in the Equipment which results
10.4.1 - Use of the Equipment other than as specified in the Documentation;
10.4.2 - The modification of the Equipment by the Customer;
10.4.3 - The Equipment being subject to unusual physical or electrical stress; or
10.4.4 - Accident, hazard, misuse or failure or fluctuation of electrical power,
air conditioning, humidity control or other environmental conditions.
10.5 - EXCEPT AS EXPRESSLY SET OUT IN CLAUSES 9.3 AND 10.1, ALL CONDITIONS, WARRANTIES,
TERMS AND UNDERTAKINGS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, TRADE
PRACTICE, CUSTOM, COURSE OF DEALING OR OTHERWISE (INCLUDING WITHOUT LIMITATION AS
TO QUALITY, PERFORMANCE OR FITNESS OR SUITABILITY FOR PURPOSE) IN RESPECT OF THE
EQUIPMENT INCLUDING THE SOFTWARE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE
Limitation of Liability
11.1 - Nothing in these Terms and Conditions shall exclude or restrict the liability
of either party to the other for death or personal injury resulting from the negligent
act of one party or for liability for any fraudulent misrepresentation by a party
to these Terms and Conditions.
11.2 - SUBJECT TO THE PROVISIONS OF CLAUSES 11.1 AND 11.3 THE LIABILITY OF REDRAT
TO THE CUSTOMER FOR DIRECT LOSS IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF OR
IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE CUSTOMER’S USE OF THE EQUIPMENT
AND/OR THE SOFTWARE SHALL BE LIMITED FOR ANY ONE INCIDENT OR SERIES OF CONNECTED
INCIDENTS TO THE AMOUNT PAID OR PAYABLE UNDER THESE TERMS AND CONDITIONS TO REDRAT
BY THE CUSTOMER.
11.3 - SUBJECT TO THE PROVISIONS OF CLAUSE 11.1, IN NO CIRCUMSTANCES SHALL REDRAT
BE LIABLE TO THE CUSTOMER WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY
DUTY OR OTHERWISE IN RESPECT OF LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY,
LOSS OF OR COST OF RESTORATION OF DATA OR ANY OTHER INDIRECT, CONSEQUENTIAL, FINANCIAL
OR ECONOMIC LOSS OR DAMAGE COSTS OR EXPENSES WHATSOEVER OR HOWSOEVER ARISING OUT
OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE CUSTOMER’S USE OF THE
12.1 - The Licence shall commence on the date of delivery of the Equipment and shall
continue until this agreement is terminated in accordance with this clause 12.
12.2 - Either party may terminate the provision of Support Services following expiry
of the Warranty Period on not less than 90 days written notice to the other.
12.3 - This agreement may be terminated immediately by either party if:
12.3.1 - the other commits a material or persistent breach of any term of the Terms
and Conditions and which (in the case of a breach capable of being remedied) shall
not have been remedied within 30 days of a written request to remedy the same; or
12.3.2 - the other party cease or threatens to cease to carry on business: or
12.3.3 - an interim order is made, or a voluntary arrangement approved, or if a
petition for bankruptcy order is presented or a bankruptcy order is made against
the other party or if a receiver or trustee is appointed of the other party’s estate
or a voluntary arrangement is approved or a notice is served of intention to appoint
an administrator or an administrator is appointed by Court order or by any other
means, or a receiver or administrative receiver is appointed over any of the other
party’s assets or undertaking or a resolution or petition to wind up the other party
is passed or presented (otherwise than for the purposes of reconstruction or amalgamation),
or if any circumstances arise which entitle the Court or a creditor to appoint a
receiver, administrative receiver or administrator or to present a winding up petition
or make a winding up order.
12.4 - Any termination of this agreement shall be without prejudice to any other
rights or remedies either party may be entitled to under these Terms and Conditions
or at law.
12.5 - Within seven days of the termination of this agreement (by either party for
whatever reason) the Customer shall, at RedRat’s option, either return to RedRat
or destroy all copies of the Software and Documentation in its possession and a
duly authorised officer of the Customer shall certify in writing to RedRat that
the Customer has complied with such obligation.
13.1 - The failure or delay of a party to exercise or enforce any right under these
Terms and Conditions shall not operate as a waiver of that right or preclude the
exercise or enforcement of it at any time or times thereafter.
13.2 - These Terms and Conditions (together with the relevant Quotation and order
confirmation) constitute the entire understanding between the parties with respect
to the subject matter of these Terms and Conditions (save where the parties have
agreed in writing to alternative RedRat licence terms), and supersedes and replaces
all prior agreements, negotiations and discussions between the parties relating
to the subject matter of these Terms and Conditions including without limitation
any terms which are attached to or purported to be incorporated in the Customer’s
order. The Customer confirms and acknowledges that it has not been induced to enter
into these Terms and Conditions by any representation, warranty, or undertaking
not expressly incorporated into it. However, nothing in these Terms and Conditions
purports to exclude liability for any fraudulent statement or act.
13.3 - No variation of these Terms and Conditions shall be valid unless it is in
writing and signed by or on behalf of each of the parties.
13.4 - Neither party shall be liable for any delay in or for failure to perform
its obligations under these Terms and Conditions, other than an obligation to make
any payment due to the other party, if that delay or failure is caused by circumstances
beyond the control of that party including, without limitation, fires, strikes,
insurrection, riots, embargoes, failure of a telecommunications or internet service
provider, lack of availability of parts, or regulations of any civil or military
13.5 - No person who is not a party to these Terms and Conditions shall have any
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term
of these Terms and Conditions.
13.6 - If any provision of these Terms and Conditions shall be held to be unlawful,
invalid or unenforceable, in whole or in part, under any enactment or rule of law,
such provision or part shall to that extent be severed from these Terms and Conditions
and rendered ineffective as far as possible without modifying or affecting the legality,
validity or enforceability of the remaining provisions of these Terms and Conditions
which will remain in full force and effect.
13.7 - Any notice to be given under these Terms and Conditions shall be in writing
and shall be delivered by hand, sent by first class post or sent by facsimile (such
notice to be confirmed by letter posted within 12 hours) to the address of the other
party. Any such notice or other document shall be deemed to have been served: if
delivered by hand – at the time of delivery; if sent by post – upon the expiration
of 48 hours after posting; and if sent by facsimile – at 9.00 am on the next business
day after the facsimile was dispatched.
13.8 - These Terms and Conditions shall be governed by and construed and interpreted
in accordance with English law and the parties hereby submit to the nonexclusive
jurisdiction of the English Courts