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1.1 "Company" means Xironet of 104
Crown House,
North Circular Road,
London
NW10 7PN
or associated companies and its sub-contractors.
1.2 "Client" means the party identified
as the Client in this terms & Condition. to whom The Company may agree to supply
Products in accordance with these terms and conditions.
1.3 "Products" means goods or services
(which may include Consultancy, Project Management, Networking Services or Training,
PC Manufacturing, Web Design & Promotion, Software or Application development,
Database Services, server solutions) including but not limited to computer software
items to be provided by The Company to The Client in accordance with these terms
and conditions.
1.4 "Third Party Software" means all
software owned by or licensed to The Client from a third party owner (whether or
not supplied by The Company) and which may or comprises part of the Products.
2. ORDER
ACCEPTANCE
2.1 All orders placed with The Company
by The Client for Products shall constitute an offer to The Company, under these
terms and conditions, subject to availability of the products and to acceptance
of the order by The Company’s authorized representative.
2.2 All orders are accepted and Products
supplied subject to these express terms and conditions only. No amendment to these
terms and conditions will be valid unless confirmed in writing on or after the date
hereof by The Company’s authorized representative.
2.3 It is agreed that these terms and
conditions prevail over The Client’s terms and conditions of purchase unless these
latter terms and conditions are amended by The Company in writing and signed by
the Company.
2.4 The Company’s catalogues, brochures,
leaflets or other correspondence including but not limited to particulars published
on The Company’s WorldWideWeb site are not binding and reasonable variations may
be made to The Services without notice, and The Services and/or The Goods so varied
shall be accepted as complying with the Contract.
3. INDEPENDENT CONTRACTOR
The relationship between The Company and
Client is that of Independent Contractor. The Company may be using sub-contractors
in order to perform part of its obligations as and when The Company sees fit. The
Client may not get involve in any business related discussion or activities with
The Company’s sub-contractors connected with the performance of this Agreement.
4. DISPATCH
4.1 Any time quoted for dispatch is
to be treated as an estimate only, but dispatch 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 dispatch or delivery.
4.2 Risk shall pass to The Client at
the time The Products are dispatched by the Company. The Company accepts no liability
for loss or damage caused by the carrier.
4.3 If Products have not been received,
The Client must notify The Company within 3 days of the date of the invoice. If
proof of delivery is required, this must be requested within 6 days of the date
of the invoice.
5. CANCELLATIONS AND RESCHEDULING
5.1 Subject to clause 8.2, any request by
The Client for cancellation of any order or for the rescheduling of any deliveries
will only be considered by The Company if made at least 48 hours before dispatch
of the Products, and shall be subject to acceptance by The Company at The Company’s
sole discretion, and subject to a 5% administration charge therefore by The Company.
The Client hereby agrees to indemnify The Company against all loss, costs (including
the cost of labour and materials used and overheads incurred), damages, charges
and expenses arising out of the order and its cancellation or rescheduling.
5.2 Where cancellation or scheduling relates
to training section 15.5 applies.
6. PRICING
6.1Catalogues, 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 goods offered and no prices, descriptions or other
particulars contained therein shall be binding on The Company.
6.2 All prices are given by The Company at
the time of the order on an ex-works basis and The Client is liable to pay for transport,
packing and insurance.
6.3 All quoted or listed prices are based
on the cost to The Company of supplying The Products to The Client. If before delivery
of The Products there occurs any increase in any way of such costs in respect of
Products, which have not yet been delivered, the price payable may be subject to
amendment without notice at The Company’s discretion.
6.4 All prices are exclusive of Value Added
Tax and any similar taxes. All such taxes are payable by The Client and will be
supplied in accordance with UK
legislation in force at the tax point date. For promotional offers, VAT may not
be charged and the price may be quoted as per package at the discretion of The Company.
7. PAYMENT TERMS
7.1 Invoices will be raised and dated by
The Company on the date of dispatch of The Products. Unless otherwise specifically
requested and agreed, invoices will be payable by the Client 7 days from the date
of invoice subject to The Client having a credit account with The Company. Payments
which are not received when payable will be considered overdue and remain payable
by The Client together with interest for late payment from the date payable at the
rate of 6% per annum above the base rate (currently 5.25%) for the time being of
the Barclays Bank plc. Such interest shall accrue on a daily basis and be payable
on demand after as well as before judgment. Where The Client does not hold credit
account with The Company, cleared funds will be required prior to dispatch.
7.2 When all prices, taxes and charges due
in respect of The Products and any Products supplied previously to The Client have
been paid in full, title to hardware Products only shall pass to the Client.
7.3 Notwithstanding dispatch and the passing
of risk in The Products to The Client pursuant to Clause 4, or any other provision
of these conditions, the property of the hardware Products shall not pass to The
Client until The Company has received cash or cleared funds payment of the price
of The Products and all of The Products agreed to be sold by The Company to The
Client for which payment is then due.
7.4 Until such time as the property in The
Products passes to The Client, The Client shall hold the Products as The Company’s
fiduciary agent and bailey, and shall keep The Products properly stored, protected
and insured and identified as The Company’s property. Until that time The Client
shall be entitled to use the products in the ordinary course of its business, but
not reselling The Products, and shall account to The Company for the proceeds of
sale or otherwise of The Products, whether tangible or intangible, including insurance
proceeds, and shall keep all such proceeds separate from any monies or properties
of The Client and third parties and, in the case of tangible proceeds, properly
stored, protected and insured.
7.5 If you have a credit account with us, we may withdraw
it or reduce the credit limit or bring forward the due date for payment without
notice.
7.6
You do not have the right to set off any money you may claim from us against any
sums that you may owe us. If you owe money to us, we will claim a lien on any of
your property in our possession. Until you pay all debts owed to us.
7.7 Until such time as the property
in The Products passes to The Client, The Company shall be entitled at any time
to require The Products be delivered to The Company and, if The Client fails to
do so forthwith, to enter upon any premises of The Client or any third party where
The Products are stored and repossess The Products.
7.8 The Client’s power of sale or right
to use such Products shall immediately cease if an administrative receiver is appointed
over all or any part of its assets or if it adjudicated bankrupt or enters liquidation
whether compulsory or voluntary, or if The Client makes an arrangement with its
creditors, or generally becomes unable to pay its debts within the meaning of the
Insolvency Act 1986.
7.9 On termination of The Company’s
power of sale or right to use The Products The Client will immediately hold the
Products to the order of The Company.
7.10 The Client shall not be entitled
to pledge or in anyway charge by way of security for any indebtness any of The Products
which remain the property of The Company, but if the Client does so, all monies
owing by The Client to The Company shall (without prejudice to any other right or
remedy of the seller) forthwith become due and payable.
7.11 The Company reserves the right to cease
supplies of Products to The Client at any time. On such cessation of supplies, The
Company reserves the right to withdraw any credit facility such that the whole of
The Client’s account becomes due for payment forthwith.
7.12 Where the Services in question relates
to the provision of training Services payment shall be made in full no later than
7 working days prior to the commencement of the training.
7.13 Where the Services in question relate
to the provision of consultancy Services 50% of the payment shall be made no later
than 7 working days prior to the date upon which the consultancy Service in question
is to be provided and the balance on demand by the Company.
7.14 If the Services are provided over a
period of time the Company shall be entitled to invoice The Client at regular intervals
during the period of time that the Services are being provided and payment shall
be due within 7 days of the date of each such invoice not withstanding that subsequent
Services are not provided or any other default on the part of The Company.
8. SPECIFICATION OF PRODUCTS
8.1 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 and will not be responsible
for any loss or damage resulting from curtailment or cessation of supply following
such variation. The Company will use its reasonable endeavours to advise The Client
of any such impending variation as soon as it receives any such notice thereof from
the manufacturer.
8.2 Unless otherwise agreed, The Products
are supplied in accordance with the manufacturer’s standard specifications as these
may be improved, substituted or modified. The Company reserves the right to increase
its quoted or listed price, or to charge accordingly in respect of any orders accepted
for Products of non-standard specifications and in no circumstances will it consider
cancellation of such orders or the return of such orders.
9. PROPRIETARY RIGHTS IN SOFTWARE
PRODUCTS
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9.1 The Client hereby acknowledges that any
proprietary rights in 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 Third Party Software owner.
9.2 The Client hereby acknowledges that it
is its sole responsibility to comply with any terms and conditions of license attaching
to Third Party Software supplied and delivered by The Company (including if so required
the execution and return of a Third Party Software license). The Client is hereby
notified that failure to comply with such terms and conditions could result in The
Client being refused a software license or having the same revoked by the proprietary
owner. The Client further agrees to indemnify The Company in respect of any costs,
charges or expenses incurred by The Company at the suit of a Third Party Software
owner as a result of any breach by The Client of such.
9.3 No title or ownership of software products
or any third party software licensed to The Client under this agreement is transferred
to The Client under any circumstances.
10. PC MANUFACTURING
10.1 Any PC ordered by a Client or an Individual
will be treated as the Client’s design and specification unless the PC’s specification
is determined by The Company.
10.3 The Company will make every effort to
make sure the specification decided by The Client are compatible with each other
and there will be no conflict of drivers or software/hardware. However, in circumstances
where there is such conflict, The Company may have to change the specification or
the type of hardware / software used in that specification with prior knowledge
of The Client.
10.4 The Company will take every steps to
ensure that operating systems and all the software installed on PCs are legitimate
and of legal nature for which The Client has been invoiced for.
10.5 The Company will accept no liability
on any illegal copies of any software found on PCs after the sale has been completed
and will hold the Client fully responsible for this matter.
10.6 The Client will be responsible for registration
of any software or shareware installed by The Company with the proprietary owner
of that software.
11. RETURNS
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11.1 The Company reserves the right to levy
an administration charge (15% of product price) in respect of the rotation of Products
and returns.
11.2 Returns must be made subject to the
following:
(a) Prior authority having been
obtained from The Company which will be given at The Company’s sole discretion;
(b) Within 30 days of the date of
delivery;
(c) Subject to stock rotation
policy;
(d) The Products must be properly
packed;
(e) The Products must be in
a Pristine condition;
(f) The Products must be accompanied
by a list;
(g) The Product is still covered
by warranty (see section 11).
12.3 The Company reserves the right to reject
any Products, which do not comply with the conditions, set out in clause 12.2.
11.4 If The Company nevertheless agrees to
accept any Products returned which are not in a pristine condition, The Company
reserves the right to charge the cost to The Client of bringing the Products into
a pristine condition.
11.5 If the order was considered special
order, then The Company reserves the right to refuse the return of goods or to levy
an additional administration fee.
11.6 If an item is returned on money back
guarantee scheme, the customer must provide the company with a valid reason for
the return of the product (s). Excuses as "I don't like the colour or the look or
the size or similar excuses are not considered a valid excuse.
12. WARRANTY
12.1 The Company warrants that it has good
title to or license to supply all Products to The Client.
12.2 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
unauthorized 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.
12.3 All software Products supplied hereunder
are supplied "as is" and 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 Client
notifies The Company of any such non-conformity within 90 days of the date of delivery
of the applicable software Product. Specifically The Company gives no express warranty
in relation to The Products Year 2000 compliance and cannot accept any liability
in relation to any losses, costs or expenses, which arise through any difficulty,
caused over date changes.
12.4 If the Products are rejected by The
Client as not being in accordance with the Client’s order pursuant to clause 11.2
or 11.3, The Company will only accept the return of such Products provided that
it receives written notification thereof giving detailed reasons for rejection.
The Company will not consider any claim for compensation, indemnity or refund under
liability, if any, has been established or agreed with the manufacturer and where
applicable the insurance company. Under no circumstances shall the invoiced Products
be deducted or set off by The Client until The Company has passed a corresponding
credit note.
12.5 Except as specifically set out in this
clause 11, 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.
12.6 The Company will provide one-year RTB
(Return To Base) warranty from the date of delivery for the PCs made by The Company
subject to the terms and conditions stated in clause 12.2. This warranty doesn’t
apply to monitors, printers or other peripherals supplied by The Company where the
relevant manufacturers will provide warranty for their products. The Company will
be responsible for the replacement of these items only.
12.7 The company will NOT provide loan or
courtesy PC while client's PC is under repair during warranty period.
13. INDEMNITIES AND LIMITS OF
LIABILITY
13.1 The Company will indemnify The Client
for direct physical injury or death caused solely by defects in any of The Products
or caused solely by the negligence of its assigned employees acting within the course
of their employment and the scope of their authority.
13.2 The Company will indemnify The Client
for direct damage to property caused solely by defects in any of The Products or
caused solely by the negligence of its assigned employees acting within the course
of their employment and the scope of their authority. The total liability of The
Company under this sub clause shall be limited to £1000,000 for any one event or
series of connected events.
13.3 Except as stated in clauses 14.1 and
14.2 above, The Company disclaims and excludes all liability to The Client in connections
with these terms and conditions including The Client’s use of The Products and in
no event shall the Company be liable to The Client for special, indirect or consequential
damage including but not limited to loss of profits arising from loss of data or
in connection with the use of The Products. All terms of any nature, express or
implied, statutory or otherwise, as to correspondence with any particular description
or sample, fitness for purpose or merchantability, are hereby excluded.
13.4 The Client shall indemnify and defend
The Company and its employees in respect of any claims by third parties, which are
occasioned by or arise from any The Company performance or non-performance pursuant
to the instructions of The Client or its authorized representative.
14. TERMINATION FOR CLAUSE
This agreement may be terminated forthwith
by notice in writing:
14.1 By The Company if The Client fails to
pay any sums due hereunder by the due date notwithstanding the provisions for late
payment as in clause 7.1.
14.2 If either party fails to perform any
of its obligations under this Agreement and such failure continues for a period
of 14 days after written notice thereof, by the other party.
14.3 If either party is involved in any legal
proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy
or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary,
other than for the purposes of an amalgamation or a reconstruction, or makes an
arrangement with creditors or petitions for an administration order or has a Receiver
or Manager appointed over all or any part of its assets or generally becomes unable
to pay its debts within the meaning of Section 123 of the Insolvency Act 1986,then
without prejudice to any other rights or remedies available to it, the other party
shall have the right to terminate this Agreement forthwith.
14.4 Any termination of this Agreement pursuant
to this clause shall be without prejudice to any other rights or remedies a party
may be entitled to hereunder or at law, and shall not affect any accrued rights
or liabilities of either party.
15. EXPORT AND/OR RE-EXPORT LIMITATION
Having regard to the current statutory or
other United Kingdom government regulations in force from time to time and, in the
case of Products manufactured in the United States of America, to the current export
rules and regulations of the United States Department of Commerce in force from
time to time and regardless of any disclosure made by the Client to The Company
of an ultimate destination for any Products, The Client will not export or re-export
any Products without first obtaining all such written consents or authorizations
as may be required by any applicable government regulations.
16. TRAINING
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16.1 Where The Services in question relate
to the provision of training, The Company reserves the right to provide such Services
at a venue or venues other than the Company’s Premises and to provide training personnel
of its own choice.
16.2 The Company reserves the right to cancel,
curtail or re-schedule training courses or events without notice to The Client and
without liability for financial penalty or compensation to The Client other than
an amount limited to a refund of 100% of any fees already paid by The Client in
advance of the related course or event, or cancellation of the invoice, where credit
arrangements have been established with The Company for The Client to pay post event.
16.3 The Company reserves the right to refuse
or curtail any training Services if a delegate or substitute delegate attending
on behalf of The Client fails to satisfy those requirements, or pre-requisites for
such course notified by The Company to The Client prior to the commencement of such
course.
16.4 Intellectual Property Rights
16.4.1 The Client shall indemnify The Company
against all costs claims and damages incurred or threatened arising out of any alleged
infringements of patents, trademarks, registered designs, design right or copyright
occasioned by the provision of the requirements of The Client and/or by the manufacture
or sale of Goods made to the specification or special requirements of the Client.
16.4.2 All written information, drawings,
diagrams, videos, software copies of same and audio tapes prepared by The Company
in relation to the provision of The Services and the copyright therein shall remain
the property of The Company and shall be returned by The Client on demand. All such
information shall be treated as confidential and shall not be copied or reproduced
or disclosed to any third party without the prior written consent of The Company.
16.4.3 The Client shall ensure that
its employees and all those under The Client’s control and supervision shall comply
with the obligations of confidentiality contained at clause 17.4.2.
16.5 Where the Contract relates to the provision
of training Services:
16.5.1 The Client agrees to pay The Company
a sum equal to the following percentages of the sums due in respect of a course
invoice due to The Company, if a delegate fails to attend, cancels or withdraws
from a course at which such training Services are to be provided, according to the
following table where the days are the days from the start of the course
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20-30 days 11-20days
Less than 10 days
Cancellation
25%
50%
100%
Re-Scheduling of Course 25%
50%
100%
16.5.2 If a delegate withdraws from a course
once that course has commenced or does not attend the first day of the course, then
The Client shall pay the full value of the Course Invoice to The Company and at
The Company’s discretion may not rejoin the course.
16.5.3 The Client may substitute delegates
at any time upon notification in writing to The Company subject to any new delegate
complying with the requirements for the course as notified by The Company to The
Client.
16.5.4 Where a Client wishes to change the
date of attendance, re-schedule attendance a particular course The Company will
issue a Supplementary Fee Invoice, which will be an additional charge based on a
percentage of the original invoice or another sum based upon the detail at 17.5.1
above.
16.7 Complaints Procedure
All complaints should be addressed to Customer
Services and sent to our head office by recorded delivery. Complaints should be
made within seven days of the occurrence of the event that initiated the complaint.
We will acknowledge precept of the complaint within three working days. We will
then endeavour to reply in full within 14 days of receiving the complaint.
17. CONTRACT
17.1 The headings in this Agreement are for
ease of reference only and shall not affect its interpretation or construction.
17.2 No forbearance, delay, 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.
17.3 The Client agrees not to assign any
of its rights herein without the prior written consent of The Company.
17.4 In the event of any of these terms
and conditions or any part of them being judged illegal or unenforceable for any
reason, the continuation in full force and effect of the remainder of them shall
not be prejudiced.
17.5 Neither party shall be liable to the
other for any delay in failure to perform its obligations hereunder (other than
a payment of money) where such delay or failure results from force major, act of
God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable
control.
17.6 Any documents or notices given hereunder
by either party to the other must be in writing and may be delivered personally
or by recorded delivery or registered post and in the case of post will be deemed
to have been given 2 working days after the date of posting. Documents or notices
shall be delivered or sent to the addresses of the parties on the first page of
this Agreement or to any other address notified in the normal course of trading
in writing by either party to the other for the purpose of receiving documents or
notices after the date of this Agreement.
17.7 These terms and conditions
shall be construed in accordance with English Law.
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