1.1 In these Conditions:
1.2 “NopAdvance” means the company which provides NopCommerce Solution Provider; “the Customer” means the person whose order is accepted by NopAdvance; “Contract” means the contract for the purchase and sale of software and/or support and/or services incorporating these Conditions.
1.3 Headings are for convenience and do not affect interpretation.
1.4 Where the Customer has purchased a software licence from a third party supplier and has engaged NopAdvance to implement and/or customise that software to the Customer’s requirements NopAdvance’s Software Development Agreement , a copy of which can be viewed at NopAdvance’s website www.NopAdvance.com/Terms&Conditions.html shall govern the provision of those services.
1.5 Where the Customer has engaged NopAdvance to provide support & maintenance services, the NopAdvance support helpdesk is open from 0900 to 1830 Monday to Friday excluding Indian Public holidays. NopAdvance’s Service Level Agreement a copy of which can be viewed at NopAdvance’s website www.NopAdvance.com/Terms&Conditions.html shall govern the provision of those services.
1.6 These are for the duration of a rolling twelve months and once invoiced can only be cancelled by notice in writing to NopAdvance to be received prior to three months before the relevant anniversary date.
2. Basis of Sale
2.1 NopAdvance will sell and the Customer will purchase the software in accordance with any written order of the Customer which is accepted by NopAdvance, subject in either case to these Conditions.
2.2 NopAdvance will provide the services to the Customer that are set out in the service level agreement, the order or quotation (as the case may be) between the Company and the Customer to which these terms are attached.
2.3 These Conditions govern the Contract to the exclusion of any other terms and conditions (if any) contained on or referred to in an order form or other communication from the Customer. No addition, variation or substitution of these Conditions will bind NopAdvance or form part of any order unless agreed in writing and signed by authorised representatives of both parties.
2.4 These Conditions and the terms of any order constitute the entire understanding of the parties and supersede all prior promises, representations and undertakings.
2.5 No NopAdvance employee or agent is authorised to make any representations concerning the subject matter of the Contract unless confirmed by NopAdvance in writing. The Customer acknowledges that it is not relying on any such representation not so confirmed.
3.1 Any order placed with NopAdvance will be accepted at NopAdvance’s sole discretion and, if accepted, will only be accepted on and subject to these Conditions.
3.2 Each order so accepted constitutes a separate legally binding Contract between NopAdvance and the Customer.
3.3 The Customer is responsible for ensuring the accuracy of any order submitted to NopAdvance.
3.4 NopAdvance reserves the right to modify any software ordered, which are required to conform to any applicable safety or statutory requirements, or which do not materially affect their quality or performance.
3.5 Once accepted by NopAdvance, no order may be cancelled by the Customer without NopAdvance’s express prior written agreement.
4.1 Orders are accepted at the price given at the date of order.
4.2 Unless otherwise stated, quotations are valid for acceptance for 30 days or earlier acceptance, after which they will lapse. Any quotation that has lapsed must be reconfirmed with NopAdvance prior to an order being accepted.
4.3 NopAdvance reserves the right, by giving the Customer written notice at any time before delivery, to increase the price of software and/or support and/or services to reflect any increase in the cost to NopAdvance which is due to any factor beyond NopAdvance’s control. Where possible, NopAdvance will provide 30 days’ notice of any price changes but the Customer acknowledges this may not always be possible where prices vary for reasons outside of NopAdvance’s control. NopAdvance therefore reserves the right to vary prices at short, or even no, notice. Any price changes will be notified to the Customer as soon as reasonably possible.
4.4 All prices are inclusive of VAT and any other sales taxes and delivery charges, unless otherwise stated. All delivery charges are charged as extra, irrespective of invoice value. Any overseas duties and taxes will be the responsibility of the Customer.
4.5 NopAdvance shall be able to increase the price for support and maintenance services by giving the Customer not less than 30 days’ notice prior to the commencement of the next 12 month period of support and maintenance.
5.1 Payment will be made by the Customer within 15 days of delivery or of receipt of invoice, if earlier, except that payment at the time of order will be required for new Customers, or Customers for whom NopAdvance deems immediate payment to be necessary.
5.2 Payments by Paypal or direct bank transfer can be made for software development services and support. Should the direct debit be returned or cancelled by the client, then full payment of the remainder of the contract will be required in full immediately and services will cease until this payment is received.
5.3 Where any discount is given, VAT will be calculated on the discounted price.
5.4 Interest on overdue invoices will be payable by the Customer, before as well as after judgment, on a daily basis at an annual rate of 12%.
5.5 The Customer is not entitled to withhold or delay any payment due by reason of any actual or alleged defect, whether or not such defect is the subject of any claim.
5.6 The Customer is responsible for any bank or other charges (including, but not exclusively, transfer charges, costs of cheques not being honoured etc.).
5.7 If and for so long as there are any overdue invoices (whether under this Contract or otherwise), the Company shall be entitled to suspend provision of any goods or services to the Customer.
5.8.1 any sum owed by the Customer to NopAdvance or any other associated company, under this or any other contract is overdue; or
5.8.2 at any time the credit standing of the Customer has in NopAdvance’s reasonable opinion been impaired for any reason; or
5.8.3 the Customer fails to make any payment when it becomes due; or
5.8.4 the Customer makes any voluntary composition or arrangement with its creditors;
5.8.5 or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or if a resolution for the winding up of the Customer is passed or a court makes an order to that effect; or if there is any breach by the Customer of these Conditions; or the Customer ceases, or threatens to cease, to carry on business; or there is a change of control of the Customer or any purported arrangement of the legal or beneficial interest in this contract; or NopAdvance reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then NopAdvance may, without prejudice to its other rights and remedies and at its option, be entitled to cancel the Contract or withhold any further deliveries and/or suspend the provision of further services without liability to the Customer until arrangements as to payment or credit have been established to NopAdvance’s reasonable satisfaction.
5.9 NopAdvance shall be entitled but not obliged at any time or times without notice to the Customer to set off any liability of the Customer (or any group company of the Customer) to NopAdvance against any liability of NopAdvance to the Customer (or any group company of the Customer) (in either case howsoever arising and whether any such liability is present or future liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by NopAdvance of its rights under this clause shall be without prejudice to any other rights or remedies available to NopAdvance under this Contract or otherwise.
6.1 Delivery is the responsibility of the Customer and NopAdvance arranges delivery solely as the Customer’s agent. NopAdvance accepts no responsibility for any loss or damage in transit.
6.2 Dates are given in good faith but are business estimates only and are not guaranteed. NopAdvance is not liable for any loss or damage suffered by the Customer as a result of NopAdvance’s failure to comply with such delivery times.
6.3 The Customer’s refusal to accept delivery (either part or whole) shall permit NopAdvance to treat the Contract as repudiated by the Customer and to decline to make any further deliveries, without prejudice to NopAdvance’s right to recover damages for breach of contract.
6.4 NopAdvance reserves the right to make deliveries in instalments. If the Customer refuses or fails to accept any delivery, NopAdvance reserves the right to invoice the Customer in respect of the balance remaining undelivered, with payment becoming due immediately, and NopAdvance shall be entitled to charge reasonable costs to the Customer, the software being held at the Customer’s risk.
6.5 NopAdvance may agree, for a separate charge, to provide certain advice and/or consultancy services and/or training at the premises of the Customer or elsewhere. Such services shall be subject to obtaining full information from the Customer as to its specific requirements. If it does, then the Customer shall indemnify NopAdvance against any loss, damage or injury caused to NopAdvance’s employees, agents or contractors during or as a result of or in connection with the provision of such services.
7. Overseas Customers
7.1 Unless otherwise agreed by the Company in writing the Customer shall be responsible for all duties, levies, imposts, taxes or other liabilities arising on the exportation of the Goods from the India and importation of the Goods overseas.
8. Title and Risk
8.1 Property in the software shall only pass to the Customer on receipt by NopAdvance in cash or cleared funds payment in full of the price of that software.
8.2 Property in any software shall, at all times, remain vested as per the software licence agreement of its licensor, and the Customer’s rights shall be governed by the terms of any licence relating to such software. All third party licensing agreements must be compiled with by the Customer in all respects. The Customer shall indemnify NopAdvance against the consequences of any breach or infringement of that licence.
8.3 In the absence of express agreement to the contrary any software written, created, adapted or developed by NopAdvance shall remain the exclusive property of NopAdvance. The Customer shall not reverse compile, copy adapt or reverse, assign, transfer, sell, lease, rent, charge, or otherwise deal in or encumber NopAdvance’s intellectual property and shall keep the same confidential, shall maintain a record of the whereabouts and number of licensed copies and shall take all necessary step to prevent unauthorised use.
9.1 Each of the parties to this agreement undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this agreement save that which is:
9.1.1 Trivial or obvious;
9.1.2 Already in its possessions other than as a result of a breach of this clause; or
9.1.3 In the public domain other than as a result of a breach of this clause.
9.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 8.1 above by its employee’s agents and subcontractors.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3 No waiver by NopAdvance of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.5 This Contract is governed by and construed in accordance with the laws of India, and the parties submit the resolution of any dispute to the exclusive jurisdiction of the courts of Gujarat, India.