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1. DEFINITIONS
1.1 “Affiliate” includes
any subsidiary or holding company of the Company and
each and any subsidiary of a holding company of the
Company, any business entity from time to time
controlling, controlled by, or under
common control with the
Company.
1.2 “Authorised Reseller
Programme” means the
programme or agreement under which the manufacturer or
Third Party Service Provider consents to the Customer
purchasing the Products, airtime and/or Services from
the Company.
1.3 “Company” means
TD SYNNEX Limited (registered number 01691472) of Redwood
2, Crockford Lane, Chineham Business Park, Basingstoke,
Hampshire RG24 8WQ and also where the context permits its assigns and any
sub-contractor of the said Company. The Company’s VAT number is GB
385 524 235.
1.4 “Contract” means these
Standard Terms and Conditions of Supply and, if applicable, the
Supplemental Framework Services Terms and any further supplemental terms (as
advised by the Company from time to time)
between the Company and the
Customer, under which the Products and Services (as applicable)
are supplied by the Company to the Customer as amended by the Company
from time to time.
1.5 “Customer” means the
party identified as the Customer in this Contract to whom the Company may agree
to supply Products, Airtime and/or Services (as applicable)
from time to time in accordance with the terms
and conditions of this
Contract.
1.6 “Drop Ship” means
deliveries to End User(s) by the Company (as requested by the Customer).
1.7 “End User” means the
Customer’s end customer.
1.8 “InTouch” means the
Company’s Customer web-shop.
1.10 “Services” means the
services as defined in the Supplemental Framework Services Terms.
1.11 “Products” means the
hardware or software goods including but not limited to computer
hardware and software items to be provided by the Company to the Customer in
accordance with this Contract.
1.12 “Projects” means
public sector projects and/or any manufacturer funded end user projects
(including but not limited to, SBP, OPG, SBA).
1.12 “Supervisor” means the
person who is employed and charged by the Customer to administer and
authorise Users of InTouch on behalf of the Customer.
1.13 “Supplemental
Framework Services Terms” means the supplemental terms and conditions in
respect of the Services.
1.14 “Third Party Service
Provider” means a third party who provides the Products, airtime and/or
Services to the Customer and the End Users.
1.15 “Third Party Software”
means all software owned by or licensed to the Customer from a third party
owner (whether or not supplied by the Company) and which
comprises part of the Products.
1.16 “User” means the
person who is employed by the Customer and who accesses InTouch on behalf
of the Customer.
1.17 “Website” means the
Company’s internet website, accessed through the address of:
uk.tdsynnex.com
www.maverick.co.uk
or any other Affiliate of the
Company’s website.
2. ORDER ACCEPTANCE
2.1 By placing an order
with the Company, the Customer warrants that they have obtained and will
comply with any consent required from a Third Party Service Provider
including, if appropriate, membership of any
Authorised Reseller
Programme. In the event that the consent or membership of the
Authorised Reseller Programme is terminated, the Customer will immediately
notify the Company in writing.
2.2 All orders placed with
the Company by the Customer for Products, airtime and Services (as
applicable) shall constitute an offer to the Company, under the terms
and conditions of this Contract, subject to availability of the
Products and Services (as applicable) and to
acceptance of the order by
the Company’s authorised representative.
2.3 All orders are accepted
and the Products and Services (as applicable) supplied subject to the
express terms and conditions of this Contract only. The Company may at
any time amend this Contract by posting the
amended Contract on the
Website. The amended Contract shall apply to any orders placed on the
Company or to the use of InTouch by the Customer.
2.4 It is agreed that the
terms and conditions of this Contract (or any amendments to them) shall
prevail over the Customer's terms and conditions of purchase.
2.5 On receipt of the
Customer’s order on InTouch the Company will send the Customer an order
acknowledgment email detailing the Products and Services (as applicable)
ordered. This email is not an order confirmation or acceptance of order by
the Company. For the avoidance of doubt, the Company shall be at liberty
to refuse to accept any order placed by the
Customer on InTouch for any
reason whatsoever.
2.6 No order placed on
InTouch shall become a purchase contract, and therefore binding upon the
Company, until the Products have been despatched to the Customer in accordance with clause 5 below and the
order marked as confirmed within the “Order Status” facility of InTouch.
3. INDEPENDENT CONTRACTOR
The relationship between the Company and the Customer is that of
independent contractor. Neither party is the agent of each other, and
neither party has any authority to make any contract or to impose any
obligation on the other party without their express prior permission.
4. INTOUCH
4.1 Obligations of the Customer
4.1.1 The Customer will appoint the Supervisor.
4.1.2 The Supervisor shall be the person responsible for the use of
InTouch on behalf of the Customer.
4.1.3 The Customer may change the person appointed to be the
Supervisor, either by using the on-line InTouch “Manage Users”
facility or by informing the Company in writing of the new identity
of the Supervisor.
4.1.4 The Customer shall ensure that they meet all technical
requirements of InTouch access and that the Company shall not
be liable for any losses which result due to technical
incompatibilities or system errors.
4.1.5 The Customer shall take all reasonable steps to ensure that its
authorised Supervisors and Users shall not pass any login user
details to third parties under any circumstances.
4.2 Obligations of Supervisor
4.2.1 The Supervisor is obliged to carry out the following duties:
4.2.1.1 Authorisation, approval and access level setting of new
and existing Users
4.2.1.2 Removal, deletion and amendments of Users who leave
the Customers employment or are deemed not to be fit to
use InTouch on behalf of the Customer for any reason.
4.2.1.3 Ensuring that all Customer details held on InTouch,
including, but not limited to, postal and delivery
addresses are correct.
4.2.2 The Customer acknowledges that it is solely responsible for the
actions of the Supervisor in the modification of any of the data set
out in clause 4.2.1 and that the Company shall not have any liability
to the Customer for any modifications made by the Supervisor.
4.3 Obligations of the User
4.3.1 The User must at all times be acting on behalf of the Customer in
any actions performed using InTouch.
4.3.2 The User shall not pass any security details including, but not
limited to, usernames and passwords, to third parties under any
circumstances.
4.3.3 On ceasing to represent or be employed by the Customer, the
User shall not use any supplied login information relating to the
Customer for accessing InTouch.
4.4 Security and Login
4.4.1 InTouch login credentials comprise three elements:
4.4.1.1 The Customer’s Account Number (6 numerical digits);
4.4.1.2 The User’s (unique within the Customer) username (any
alphanumeric combination); and
4.4.1.3 The User’s password (any alphanumeric combination).
4.4.2 The use of the login information indicates proof that the
Customer consents to orders and information placed by it or in its
name.
4.4.3 The Customer, the Supervisor and the User will use all
reasonable endeavours to ensure that the login credentials
remains confidential.
4.5 InTouch Availability
4.5.1 The Company will not be liable for any losses or damages
resulting from InTouch being unavailable. Whilst the Company
endeavours to provide 24 hours a day access to InTouch, the
Company reserves the right to suspend InTouch operation,
temporarily or permanently and without prior notice.
4.5.2 Whilst InTouch is intended to provide 24 hours a day service, all
orders must be placed on InTouch before 17:15 to qualify for a
next working day delivery of the Products.
4.6 Software Renewals
4.6.1 Where the Customer uses the software renewals database
available via the Website, the Customer consents to receiving
electronic communications from the Company in relation to the
renewals database, including but not limited to pending renewal
opportunities and notifications of new manufacturers, Products
and/or services becoming available.
4.6.2 The Customer acknowledges and agrees that the Company may
take steps to validate users added to the software renewals
database at least once in any 12 month period.
4.6.3 The Company reserves the right to monitor the usage of the
software renewals database to ensure compliance with the terms
and conditions of this Contract. 4.6.4 Should the Company decide, at its sole discretion, that the
Customer is in breach of such terms, or, in the Company’s sole
discretion, is misusing the software renewals database, the
Company may withdraw and/or amend access immediately and
without prior notice.
5. DESPATCH
5.1 Any date or time quoted for despatch of the Products is to be treated as
an estimate only. Despatch may be postponed because of conditions
beyond the Company's reasonable control, and in no event shall the
Company be liable for any damages or penalty for delay in despatch or
delivery of the Products.
5.2 Risk shall pass to the Customer at the time the Products are delivered
according to the Incoterms effective for the transaction.
5.3 At the time of delivery the Customer must check that the quantity of
Products matches the quantity set out on the proof of delivery (“POD”)
and that the exterior of the Products are in good condition. The Customer
must then indicate this on the POD and sign the POD accordingly. If an
over shipment of the Products has occurred the Customer must also
notify the Company as soon as possible and in any event within 5
working days of the delivery. The Customer must not sign the POD
“unchecked” or “unexamined” or any such similar wording.
5.4 A signed POD by or on behalf of the Customer shall be conclusive
evidence of delivery and (except to the extent that any damage or
discrepancy is noted on the POD) that it was received in good order and
condition and accordingly no claims shall be bought in respect of the
delivery claiming the contrary.
5.5 The Customer must inspect the Products immediately after delivery is
complete. If any Products are damaged, incorrect or not delivered, the
Customer must notify the Company within 5 working days of the delivery
or expected delivery. For the avoidance of doubt, the Customer is still
required to notify the Company as set out in this clause 5.5
notwithstanding anything noted by the Customer on the POD. If a POD
is required, this must be requested within 14 days of the date of the
invoice.
5.6 In the event of any Drop Ship delivery, the Customer shall ensure that
the End User complies with the Customer’s obligations set out above in
clauses 5.3, 5.4 and 5.5.
5.7 The Company may deliver the Products in instalments. Each instalment
is treated as a separate delivery.
5.8 Products will be supplied under DDP Incoterms 2010 where the country
of destination is inside the EU and will be supplied CIP port/airport
country of destination Incoterms 2010 to all other countries of destination.
6. CANCELLATION AND RESCHEDULING
Unless otherwise agreed in writing, any request by the Customer for
cancellation of any order or for the rescheduling of any deliveries will only
be considered by the Company if made at least 12 hours before
despatch of the Products, and shall be subject to acceptance by the
Company at the Company’s sole discretion, and subject to a reasonable
administration charge. The Customer hereby agrees to indemnify against
all liabilities, costs, expenses, damages and losses (including any direct,
indirect or consequential losses, loss of profit, (including the cost of
labour and materials used and overheads incurred, loss of reputation and
all interest, penalties and legal and other professional costs and
expenses) suffered or incurred by the Company arising out of or in
connection with the order and its cancellation or rescheduling.
7. PRICING
7.1 Catalogues, price lists and other advertising literature or material as used
by the Company are intended only as an indication as to the price and
range of the Products offered and no prices, descriptions or other
particulars contained therein shall be binding on the Company.
7.2 The marketed and official real-time price of the Products on InTouch shall
be confirmed using the InTouch “On-line Check” facility. All other listed
prices on InTouch are shown on the understanding that they are a
guideline only.
7.3 All prices are given by the Company at the time of the order on an exworks
basis and the Customer is liable to pay for the transport, packing
and insurance costs.
7.4 All quoted or listed prices are based on the cost to the Company of
supplying the Products to the Customer. While the Company tries to
ensure that all prices are accurate, errors may occur, if prior to delivery of
the Products, the Company discovers an error in the price of the
Products ordered via InTouch or otherwise, or the price changes as a
result of circumstances beyond the Company’s control, the Company
may change the Product’s price and such changes shall apply to any
purchase order placed with the Company.
7.5 All prices are represented in Pounds Sterling or Euros and are exclusive
of value added tax and/or any similar taxes. All such taxes are payable
by the Customer and will be levied in accordance with UK legislation in
force at the tax-point date.
8. PAYMENT TERMS AND RETENTION OF TITLE
8.1 Invoices for Products shall be raised and dated by the Company on the
date of despatch of the Products. Invoices for the Services shall be
raised and dated by the Company after receipt by the Company of the
Customer’s purchase order or within the Company’s sole discretion.
Unless an alternative method of payment is advised by the Company to
the Customer in writing, invoices will be payable by the Customer within
30 days from the date of invoice by Direct Debit. The time of payment
shall be the essence of the Contract. Payments which are not received
in full by the due-date will be considered overdue and remain payable by
the Customer together with the interest for late payment and reasonable
debt recovery costs. The interest payment will be at a rate equivalent to
that set for the purposes of s6 of the Late Payment of Commercial Debts
(Interest) Act 1998, calculated on a daily basis from the date of invoice
until payment; such interest to be compounded on the first day of each
calendar month and payable both before and after any judgment (unless
the court orders otherwise).
8.2 The Company reserves the right to charge a surcharge on credit card
transactions (which may exceed the amount charged to the Company by
the credit card companies) by way of a handling or processing charge.
8.3 The Customer must notify the Company in writing within 7 days of the
date of invoice of any errors within the invoice. Failure will result in the
Company assuming acceptance of the invoice in full.
8.4 The Customer’s credit-limit may be withdrawn or amended without prior
notice by the Company. If credit facilities are withdrawn all invoices shall
become immediately payable by the Customer.
8.5 Should credit facilities be provided, the Customer undertakes to notify the
Company without delay of any material change in its finances, structure,
share ownership and/or value of assets which may affect the Customer’s
credit status. In addition to any remedy available at law, failure to report
any such changes may result in credit being withdrawn without prior
notice.
8.6 The Customer does not have the right to set off any money claimable
from the Company against any sums owing to the Company by the
Customer this includes but is not limited to pass through manufacturer
funding.
8.7 If Products are delivered in instalments the Company shall be entitled to
invoice each instalment upon delivery thereof.
8.8 The Company will claim a lien on any Customer property in the
Company’s possession if the Customer is in debt to the Company.
8.9 Until the Customer pays all debts to the Company:
8.9.1 all Products that have been purchased by the Customer from the
Company will remain the property of the Company;
8.9.2 all Products that have been purchased by the Customer from the
Company must be stored so that they are clearly identifiable as
the property of the Company; and
8.9.3 the Customer must properly protect and insure all such Products
and store them separately to any and all other products.
8.10 The Customer shall have the right to sell the Products in the ordinary
course of business unless, or until:
8.10.1 the Customer becomes or is deemed to be insolvent in
accordance with clause 15.2 herein if the aforementioned
circumstance occurs then the right to sell the Products will be
revoked with immediate effect and without the Company being
required to give notice to the Customer; or
8.10.2 the Company revokes the right to sell Products in the ordinary
course of business by informing the Customer in writing
(including via email or fax), which revocation shall have
immediate effect.
8.11 If the Customer’s right to use and sell the Products in the ordinary course
of business ends, the Customer must permit the Company to reclaim the
Products.
8.12 The Customer agrees to give the Company permission to enter any
premises where the Products are stored:
8.12.1 at any time to inspect them; and
8.12.2 to remove them, using reasonable force if necessary, after the
Customer’s right to use or sell them has finished.
8.13 Despite the Company’s retention of title to the Products, the Company
reserves the right to take legal proceedings to recover the cost of
Products supplied should the Customer not make full payment by the
invoice due date.
8.14 The Customer is not entitled to pledge or in any way charge by way of
security for any indebtedness any of the Products which remain the
property of the Company. Should the Customer do so, all monies owing
by the Customer to the Company shall without prejudice to any other
rights or remedies of the Company immediately become due and
payable.
8.15 The Company reserves the right to stop supplying Products and Services
(as applicable) to the Customer at any time.
9. SPECIFICATION OF PRODUCTS
9.1 The Company will not be liable in respect of any loss or damage caused
by or resulting from any variation for whatsoever reason in the
manufacturer’s specifications or technical data of the Products.
9.2 The Company will not be responsible for any loss or damage resulting
from curtailment or cessation of supply of Products following any
variation as described in clause 9.1 of this Contract.
9.3 The Company will use its reasonable endeavours to advise the Customer
of any such impending variation as soon as it receives any such notice
thereof from the manufacturer.
9.4 Unless otherwise agreed, the Products are supplied in accordance with
the manufacturer’s standard specifications as these may be improved,
substituted or modified.
9.5 The Company reserves the right to increase its quoted or listed prices, or
to charge accordingly in respect of any orders accepted for Products of
non-standard specifications and in no circumstances will the Company
consider cancellation of such orders or the return of such orders.
10. INTELLECTUAL PROPERTY
10.1 The Customer hereby acknowledges that any proprietary rights used on
or in relation to the Products, InTouch or any Third Party Software
supplied hereunder, including, but not limited to, any title or ownership
rights, patent rights, copyrights and trade secret rights, shall at all times
and for all purposes vest and remain vested in the Company or the Third
Party Software owner.
10.2 The Customer hereby acknowledges that it is its sole responsibility to
comply with any terms and conditions of licence attaching to Third Party
Software supplied and delivered by the Company (including if so required
the execution and return of a Third Party Software licence). The
Customer is hereby notified that failure to comply with such terms and
conditions could result in the Customer being refused a software licence
or having the same revoked by the proprietary owner. The Customer
further agrees to indemnify the Company in respect of any costs, charges
or expenses incurred by the Company as the result of any breach by the
Customer of such terms and conditions.
10.3 No title or ownership of software Products or any third party
software licensed to the Customer under this Contract is
transferred to the Customer under any circumstances.
11. CONFIDENTIALITY
11.1 The Customer shall safeguard and (save as may be required by law)
keep confidential all information entrusted to it by the Company which is
not in the public domain and take all reasonable precautions to safeguard
the Company’s confidential information.
11.2 Only those members of staff who need to be aware of confidential
information in order for the Customer to fulfil its obligations under this
Contract shall be entitled to access to the confidential information.
11.3 All confidential information passed to the Customer by the Company shall
remain the exclusive property of the Company and the Customer
undertakes to return such information at the request of the Company or,
at the latest, upon termination or expiration of this Contract.
11.4 The communication of any InTouch login credentials to third parties is
prohibited and will result in immediate withdrawal of the use of InTouch
and the possible instigation of further legal proceedings.
12. RETURNS
12.1 The Company reserves the right to levy an administration charge in
respect of the rotation of Products and returns.
12.2 Returns must be made subject to the following:
12.2.1 prior authorisation having been obtained via the Company’s after
sales management tool or such other method as the Company
may advise. Such prior authorisation shall be given at the
Company's sole discretion;
12.2.2 the request for the return must be made within 14 days of the
date of invoice
12.2.3 Products in issue must be returned within 7 days of the authority
to return;
12.2.4 the Products must be properly packed;
12.2.5 the Products must be in a saleable condition;
12.2.6 the Products must be accompanied by a list of the Products; and
12.2.7 the Products must still be covered by warranty in accordance
with clause 13 below.
12.3 The Company reserves the right to reject any Products which do not
comply with the conditions set out in clause 12.2 of this Contract.
12.4 If the Company nevertheless agrees to accept any Products returned
which are not in a saleable condition, the Company reserves the right to
charge the cost to the Customer of bringing the Products into a saleable
condition.
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13. WARRANTY
13.1 The Customer warrants that it will notify the Company if its VAT
registration is amended in any way.
13.2 Subject to any Authorised Reseller Programmes, the Company warrants
that it has good title to or licence to supply all Products to the Customer.
13.3 If any part of the hardware Products should prove defective in materials
or workmanship under normal operation or service, such Products will be
repaired or replaced only in accordance with any warranty cover or terms
as provided by the manufacturer of the Products PROVIDED THAT no
unauthorised modifications to the Product or to the system of which the
Product forms part have taken place. The Company is not responsible for
the cost of labour or other expenses incurred in repairing defective or
non-conforming parts.
13.4 The Company reserves the right to test all Products returned as faulty
and to return to the Customer (at the Customer’s expense) any Products
found not to be faulty. The Company also reserves the right to levy an
additional reasonable charge to cover the cost of such testing.
13.5 Where the Company and/or manufacturer has expressed in writing that
the Products qualify for an advance replacement under the terms of the
Product warranty, such advance replacements shall be provided subject
to:
13.5.1 compliance with any warranty terms as provided by the
manufacturer of the Products; and
13.5.2 defective Products must still be covered by warranty in
accordance with this clause 13; and
13.5.3 the defective Products must have been purchased from the
Company; and
13.5.4 compliance with clauses 12.1, 12.2.1, 12.2.4, 12.2.6 and 12.2.7
above.
13.6 All software Products supplied hereunder are supplied “as is". The sole
obligation of the Company in connection with the supply of software
Products is to use all reasonable endeavours to obtain and supply a
corrected version from the manufacturer concerned in the event that
such software Product should fail to conform to product description
PROVIDED ALWAYS THAT the Customer notifies the Company of any
such non-conformity within 90 days of the date of delivery of the
applicable software Product.
13.7 The Company cannot accept any liability in relation to any losses, costs
or expenses which arise through any difficultly caused over date
changes.
13.8 If the Products are rejected by the Customer as not being in accordance
with the Customer's order pursuant to clause 13.3 or 13.6 of these terms
and conditions, the Company will only accept the return of such Products
as provided in clause 12 of these terms and conditions. The Company
will not consider any claim for compensation, indemnity or refund under
liability unless it has been established or agreed with the manufacturer
and, where applicable, the insurance company.
13.9 The Company further warrants that the Managed Services shall be
provided with reasonable skill and care.
13.10 Except as specifically set out in this clause 13, the Company
disclaims and excludes all other warranties, whether express or
implied, by statute or otherwise, including but not limited to the
warranties of description, design, satisfactory quality and fitness
for a particular purpose, or arising from any previous course of
dealing, usage or trade practice.
14. INDEMNITIES AND LIMITS OF LIABILITY
14.1 This clause sets out the entire financial liability of the Company
(including any liability for the acts or omissions of the Company’s
employees, agents and sub-contractors) to the Customer in respect
of:
14.1.1 any breach of this Contract;
14.1.2 any use made or resale of the Products by the Customer, or
of any product incorporating any of the Products; and
14.1.3 any representation, statement or tortious act or
omission (including negligence) arising under or in
connection with this Contract.
14.2 Nothing in this Contract shall limit or exclude the liability of either
party for:
14.2.1 death or personal injury resulting from negligence; or
14.2.2 fraud or fraudulent misrepresentation; or
14.2.3 breach of the terms implied by section 12 of the Sale of
Goods Act 1979.
14.3 Without prejudice to clause 14.2, the Company shall not be liable to
the Customer whether in contract, tort (including negligence) or
restitution, or for breach of statutory duty or misrepresentation, or
otherwise, for any:
14.3.1 loss of profit; or
14.3.2 loss of goodwill; or
14.3.3 loss of business; or
14.3.4 loss of business opportunity;
or
14.3.5 loss of anticipated saving;
or
14.3.6 loss or corruption of data or information; or
14.3.7 special, indirect or consequential damage; or
14.3.8 loss, additional payments, damage or inconvenience the
Customer or any End-User may suffer arising from the
suspension or termination of any Authorised Reseller
Programme suffered by the Customer that arises under or in
connection with this Contract.
14.4 Without prejudice to clause 14.2 the Company’s total liability arising
under or in connection with this Contract, whether arising in
contract, tort (including negligence) or restitution, or for breach of
statutory duty or misrepresentation, or otherwise, shall be limited to
£100,000.
14.5 The Customer shall indemnify the Company against all liabilities,
costs, expenses, damages and losses (including any direct, indirect
or consequential losses, loss of profit, loss of reputation and all
interest, penalties and legal and other professional costs and
expenses) suffered or incurred by the Company arising out of or in
connection with any:
14.5.1 breach of the warranty OR warranties contained in this
Contract;
14.5.2 Customer's breach or negligent performance or nonperformance
of this Contract;
14.5.3 claim made against the Company by a third party arising out
of or in connection with the provision of the Services OR the
supply of the Products, to the extent that such claim arises
out of the breach, negligent performance or failure or delay
in performance of this contract by the Customer, its
employees, agents or subcontractors;
14.5.4 claim made against the Company by a third party for death,
personal injury or damage to property arising out of
or in connection with defective Products, to the extent that
the defect in the Products is attributable to the acts or
omissions of the Customer, its employees, agents or
subcontractors;
14.5.5 claims made against the Company by third parties which
arises from any Company performance or non-performance
pursuant to the instructions of the Customer or its
authorised representative;
14.5.6 claim arising out of or in connection with any breach of
clause 5.6 ;
14.5.7 any breach of clause 4.3.2 by the Customer, Supervisor and
/ or User; and
14.5.8 any breach of clause 22 by the Customer (including any
liability that the Customer has to the Company by virtue of
the acts or omissions of any Associated Person under
clause 22.3).
This indemnity shall apply whether or not the Company has been
negligent or at fault.
15. TERMINATION
15.1 The Company may terminate this Agreement at any time without any
liability to the Customer.
15.2 This Contract may be terminated forthwith by notice in writing:
15.2.1 if either party fails to perform any of its obligations under this
Contract and such failure continues for a period of 14 days after
written notice thereof by the other party; or
15.2.2 by the Company if the Customer fails to pay any sums due
hereunder by the due-date notwithstanding the provisions for late
payment as stated in clause 8.1 of this Contract or if the
Customer becomes insolvent or the Company deems it to be
insolvent.
15.3 The Company will deem the Customer insolvent if:
15.3.1 the Customer is unable to pay debts as they fall due; or
15.3.2 the Customer or any item of the Customer’s property becomes
the subject of:
15.3.2.1 any formal insolvency procedure such as receivership,
liquidation, administration, voluntary arrangements
(including a moratorium) or bankruptcy; or
15.3.2.2 any application or proposal for any formal insolvency
procedure; or
15.3.2.3 any application, procedure or proposal overseas with
similar effect or purpose.
15.4 Any termination of the Contract under clause 15 of these terms and
conditions shall be without prejudice to any other rights or remedies a
party might be entitled to and shall not affect any accrued rights or
liabilities of either party.
15.5 The confidentiality obligations under 11 shall survive termination of this
Contract.
16. THIRD PARTY PROVIDING THE SERVICE
16.1 Our Third Party Service Providers will provide the Services to the
Customer and End User, as appropriate, and the Customer
acknowledges that the Third Party Service Provider is a third party, which
the Company does not control. The Company makes no representation,
guarantee or warranty about the Third Party Service Provider’s.
16.2 In the event that the Third Party Service Provider terminates any
Authorised Reseller Programme with the Customer, the Company may
terminate or temporarily suspend the provision of the Services and the
Company will have no further obligation or liability to the Customer or the
End User in respect of the Service or the Contract. Any delay by the
Company in suspending or terminating the provision of the Services shall
not constitute a waiver under this provision.
17. INSOLVENCY OF A THIRD PARTY SERVICE PROVIDER
17.1 If a Third Party Service Provider enters into any type of insolvency,
administration, receivership, liquidation, creditor arrangement or
becomes the subject of winding up proceedings (“Insolvency Event”)
the Company may terminate or temporarily suspend the provision of the
Services.
17.2 If the Company suspends the provision of the Services it shall use
reasonable endeavours to engage a new service provider on materially
similar terms in a reasonable period. If required, the Customer agrees to
pay an additional charge to the Company in respect of the new service
provider’s provision of the Services.
17.3 The Customer recognises that the Company will be an ordinary creditor
of the Third Party Service Provider if an Insolvency Event occurs. The
Company will use reasonable endeavours to obtain repayment of any
fees paid by the Customer in respect of Services not yet performed by
the Third Party Service Providers, but the Company shall not be liable to
pay those fees to the Customer or End User if they are not repaid by the
Third Party Service Provider or its liquidator.
17.4 Except where such liability may not be limited by law the Company shall
not be held responsible for any loss, additional payments, damage or
inconvenience the Customer or any End User may suffer from
suspension or termination of the Services in accordance with this clause.
18. INSOLVENCY AS A FORCE MAJEURE EVENT
18.1 The Company shall not be in breach of the Contract, nor liable for any
failure or delay in performance of any obligations under the Contract
(and, subject to clause 18.2, the time for performance of the obligations
shall be extended accordingly) arising from or attributable acts, events,
omissions or accidents beyond its reasonable control, including nonperformance
by suppliers or Third Party Service Providers or Third Party
Service Providers undergoing an Insolvency Event (other than by
companies in the same group as the party seeking to rely on this clause).
18.2 If an event envisaged by clause 18.1 prevails for a continuous period of
more than one month, the Company may terminate the Services or the
Contract by giving 14 days' written notice to the Customer. On the expiry
of this notice period, this Service or Contract shall terminate. Following
termination, the Company will have no further obligation or liability to the
Customer or the End User in respect of the Service or the Contract.
19. EXPORT AND/OR RE-EXPORT LIMITATION
19.1 The Customer acknowledges and agrees that the hardware and software
Products, and technology subject to this Contract, are subject to the
export control laws and regulations of the United States, EU and National
legislation. The Customer will comply with all these laws and regulations.
This includes but is not limited to the Export Administration Regulations
("EAR"), and sanctions regimes of the U.S. Department of Treasury,
Office of Foreign Asset Controls. The Customer will comply with all these
laws and regulations.
19.2 The Customer shall not, without prior appropriate government
authorisation, export, re-export, or transfer any hardware or software
Products, or technology subject to this Contract, either directly or
indirectly, to any country subject to a U.S. trade embargo or to any
resident or national of any such country, or to any person or entity listed
on the "Entity List" or "Denied Persons List" maintained by the U.S.
Department of Commerce or the list of "Specifically Designated Nationals
and Blocked Persons" maintained by the U.S. Department of Treasury or
any other comparable European or local regulation.
19.3 In addition, any hardware or software Products, or technology subject to
this Contract may not be exported, re-exported, or transferred to an enduser
engaged in activities related to weapons of mass destruction. Such
activities include but are not necessarily limited to activities related to: (1)
the design, development, production, or use of nuclear materials, nuclear
facilities, or nuclear weapons; (2) the design, development, production, or
use of missiles or support of missiles projects; and (3) the design,
development, production, or use of chemical or biological weapons.
20. DATA PROTECTION
20.1 The parties are committed to respecting the privacy rights of individuals.
To the extent that a party collects and transfers to the other party any
personal data, the receiving party will comply with relevant laws and
regulations related to this collection and transfer and agrees also to
comply with relevant laws and regulations related to the storage,
maintenance and processing of such personal data.
20.2 Customer acknowledges that it has read and understood the Company’s
Privacy Statement and agrees at all times to comply with the Company’s
Privacy Statement.
20.3 For the purpose of verifying the Customer’s financial standing the
Company reserves the right to obtain information on the Customer’s
creditworthiness from credit agencies or credit insurers and to report data
to them. The Customer expressly consents and agrees that the Company
may make such enquiries and searches and obtain such references as it
considers necessary from credit reference agency or credit insurer
(which will keep a record of any search made) and may disclose the
results of those enquiries, searches and references and any information
given by the Customer to any credit reference agency or to any other
company in any corporate group of which it is a member.
21. PROJECTS
21.1 The Company may grant special bids and/or, special prices and/or
special conditions for the execution of Projects subject to the permission
of the respective manufacturer and the delivery to the qualifying End
User named in the offer.
21.2 The Customer undertakes to:
21.2.1 comply with any terms advised by the Company; and
21.2.2 comply with the respective manufacturer terms, and
21.2.3 to hold ready all end user proofs of delivery such as delivery
notes and invoices (blackening of irrelevant data is permitted for
data protection compliance purposes) for the previous twelve
months and to provide them on request to the Company and/or
the manufacturer; and
21.2.4 sell the Products only to the qualifying End User.
21.3 In the event of refusal of the permission by the manufacturer or noncompliance
with any or all of the terms of clause 21.2, the Company
reserves the right to invoice the Customer for the difference between the
approved special price and the regular purchase price of the Products.
Such an invoice will become payable immediately.
22. ANTI-BRIBERY
22.1 The Customer acknowledges and agrees that the Company will not
tolerate bribery in any form in connection with the conduct of its business.
22.2 The Customer shall:
22.2.1 comply with all applicable laws, statutes, regulations, codes and
guidance relating to anti-bribery and anti-corruption ("Anti-bribery
Laws"), including without limitation the Bribery Act;
22.2.2 not engage in any activity, practice or conduct which would
constitute an offence under the Bribery Act 2010 if such activity,
practice or conduct had been carried out in the United Kingdom;
22.2.3 comply with the Company’s anti-bribery policy as provided by the
Company to the Customer from time to time and any relevant
industry codes in each case as updated by the Company or the
relevant industry body from time to time ("Anti-bribery
Policies");
22.2.4 not do, or omit to do, any act that will cause the Company to be
in breach of the Anti-bribery Laws or the Anti-bribery Policies;
22.2.5 promptly report to the Company any request or demand for any
undue financial or other advantage of any kind received by the
Customer in connection with the performance of this Agreement;
22.2.6 maintain throughout the term of this Agreement its own antibribery
policies and procedures including without limitation
adequate procedures to ensure compliance with the Anti-Bribery
Laws, the Anti-bribery Policies and this clause 22.
22.2.7 shall provide a copy of such policies and procedures to the
Company on request, and shall enforce such policies and
procedures where appropriate; and
22.2.8 within 7 days of receipt of a request from the Company, certify to
the Company in writing its compliance with this clause 22.
22.3 In the event that the Customer sub-contracts the provision of any
element of this Contract to any person, or receives any services in
connection with its performance of this Contract from any person, (each
such person being an "Associate Person"), it shall impose upon such
Associated Person anti-bribery obligations that are no less onerous than
those imposed upon the Customer in this clause 22. The Customer shall
be liable to the Company for the acts and omissions of each Associated
Person in relation to compliance with such anti-bribery obligations (or,
where the Customer has failed to impose such obligations, the
obligations that the Associated Person would be under if the Customer
had complied with the obligation under this clause) as if such acts or
omissions were those of the Customer itself.
22.4 Breach of this clause 22 shall be deemed a material breach of this
Contract.
22.5 For the purpose of this clause 22, the meaning of adequate procedures
and foreign public official and whether a person is associated with
another person shall be determined in accordance with section 7(2) of
the Bribery Act 2010 (and any guidance issued under section 9 of that
Act), sections 6(5) and 6(6) of that Act and section 8 of that Act
respectively.
23. CONTRACT
23.1 The headings in this Contract are for ease of reference only and shall not
affect its interpretation or construction.
23.2 No forbearance, delay or indulgence by either party in enforcing its
respective rights shall prejudice or restrict the rights of that party and no
waiver of any such rights or of any breach of any contractual terms shall
be deemed to be a waiver of any other right or any later breach.
23.3 This Contract constitutes the entire agreement between the parties and
supersedes and extinguishes all previous drafts, agreements,
arrangements and understandings between them, whether written or
oral, relating to this subject matter.
23.4 Each party acknowledges that in entering into this Contract it does not
rely on, and shall have no remedies in respect of, any representation or
warranty (whether made innocently or negligently) that is not set out in
this Contract.
23.5 The Customer agrees not to assign any of its contractual rights herein
without the prior written consent of the Company.
23.6 If any of these terms of this Contract are unenforceable as drafted it will
not affect the enforceability of the other terms and if it would be
enforceable if amended, it will be treated as so amended.
23.7 Neither party shall be liable to the other for any delay in or failure to
perform its obligations hereunder (other than a payment of money) where
such delay or failure results from force majeure including any act of God,
fire, terrorism, explosion, accident, industrial dispute or any cause
beyond its reasonable control.
23.8 Any documents or notices given hereunder by either party must be in
writing and may be delivered personally or by first-class post or by fax to
the other’s registered address or principle place of business. The notice
period for posted documents will be deemed to have been given 2
working days after the date of posting. All such notices must be signed.
23.9 This Contract shall be construed in accordance with the laws of England
and Wales and the jurisdiction of which shall be the courts of England
and Wales.
23.10 No contract will create any right enforceable by virtue of the Contracts
(Rights of Third Parties) Act 1999 by any person not identified as the
Company or the Customer.
23.11 Customer agrees that it will not use the Products for its own purposes
and shall only purchase Products from the Company that it will sell on as
a reseller. Customer shall indemnify the Company against all liabilities,
costs, expenses, damages and losses (including any direct, indirect or
consequential losses, loss of profit, (including the cost of labour and
materials used and overheads incurred, loss of reputation and all
interest, penalties and legal and other professional costs and expenses)
suffered or incurred by the Company arising out of or in connection with
any loss suffered by the Company as a result of Customer’s failure to
comply with this clause.
23.12 Customer hereby confirms that they understand and accept that
telephone calls to and from the Company may be recorded.
23.13 Where Customer requests a credit account Customer accepts and
acknowledges that the granting of interest free credit by Company is of
commercial value to the Customer and that this credit is subject to
compliance with the above terms the terms of this Contract.
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