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Definitions. In these Conditions, the following definitions apply:
"Business Day"; a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
"Conditions"; these terms are conditions as amended from time to time in accordance with clause 22.
"Contract"; the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
"Customer"; the person or firm who purchases the Goods and/or Services from the Supplier.
"Delivery Location"; has the meaning set out in clause 4.1.
"Force Majeure Event"; has the meaning set out in clause 15.1
"Goods"; the goods (or any part of them) set out in clause 3.1.
"Order"; the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form.
"Services"; the installation of such software as agreed between the Supplier and the Customer.
"Supplier"; Exacta Technologies Limited being a company registered England and Wales with company number 04166214 and whose registered address is 3 Vertex Park South Emersons Green Bristol BS16 7LB.
Construction. In these Conditions, the following rules apply:
1.2.1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2. a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5. a reference in writing or written includes faxes and e-mails.
2.1. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions
2.2. The Order shall only be deemed to be accepted when the Supplier delivers the Goods at which point and on which date the Contract shall come into existence.
2.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given on behalf of the Supplier which is not set out in the Contract.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Supplier may revoke or vary its standard terms of sale from time to time and the Customer is advised to review these prior to placing each Order.
2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1. The parties may include a description of the Goods at Schedule 1 ("the Goods Specification"). The Customer is responsible for ensuring that the terms of the Order and (where applicable) the Goods Specification are complete and accurate.
3.2. It shall be the Customer's sole responsibility to ensure the accuracy of the any Goods Specification supplied and the Customer acknowledges that it shall be solely responsible for ensuring that any Goods supplied in accordance the Goods Specification are satisfactory for the purpose that they are intended and that they will support, be compatible and inter-operable with any hardware, software or middleware which the Goods are intended to operate.
3.3. The Supplier reserves the right to amend the Goods Specification if the required by any applicable statutory or regulatory requirements.
4.1. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ("Delivery Location") at any time after the Supplier notifies the Customer that the Goods are ready.
4.2. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.3. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.4. The Supplier shall be entitled to assume that any person who reasonably presents themselves as having authority to accept delivery on behalf of the Customer has such authority.
4.5. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. While the Supplier shall use its best endeavours to deliver the Goods at the time notified by it to the Customer but shall not be liable for any delay in delivery of the Goods howsoever caused.
4.6. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the prices of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extend that such failure is caused by a Force Majeure Event, the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of Goods.
4.7. No liability for non-delivery, loss or damage to the Goods occurring prior to delivery or for any claim the Goods are not in in accordance with the Contract will attach to the Supplier unless claims to that effect are notified in writing by the Customer to the Supplier and the case of claims for non-delivery. Loss of or damage with a copy to the carrier if the Supplier's own vehicle has not been used to deliver the Goods.
4.7.1. Within three days of the delivery for loss, damage Or non-compliance with the contract;
4.7.2. Within five days of the date of invoice for non-delivery.
5.1. The risk in the Goods shall pass to the Customer on completion of delivery.
5.2. Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
5.2.1. the Goods;
5.2.2. any Services; and
5.2.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3. Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1. hold the Goods on a fiduciary basis as the Supplier's bailee;
5.3.2. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
5.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Suppliers behalf from the date of delivery;
5.3.5. notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1.1 to 10.1.12 and
5.3.6. give the Supplier such information relating to the Goods as the Supplier may require from time to time but the Customer may resell or use the Goods in the ordinary course of its business.
5.4. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1.1 to clause 10.1.12, or the Supplier reasonably believes that such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to delivery up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.1. The Supplier or its sub-contractor shall provide the Services to the Customer.
6.2. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature of quality of the Services, and the Supplier shall notify the Customer in any such event.
6.3. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
All written information, drawings and diagrams and copies of the same prepared by the Supplier in relation to the provision of the Goods and Services and the copyright therein shall remain the property of the Supplier and shall be returned by the Customer 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 Supplier.
8.1. The Customer shall:
8.1.1. ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
8.1.2. co-operate with the Supplier in all matters relating to the Services;
8.1.3. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4. provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in material respects;
8.1.5. if necessary, prepare the Customer's premises for the supply of the Goods.
8.2. If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any actor or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
8.2.1. the supplier shall without limiting is other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.2.2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8.3. The Customer agrees to indemnify the Supplier in respect of any cost incurred by the Supplier in respect of the collection, treatment, recovery or environmentally sound disposal of any waste electrical and electronic equipment to the extent that such equipment is not from a private household. In this context, "private household" shall be interpreted in accordance with The Waste Electrical and Electronic Equipment Regulations 2006.
9.1. The price for Goods shall be the price set out in the Supplier's quotation. The price of the Goods is exclusive of all costs and charges of insurance and delivery of the Goods, which shall be listed separately in the Supplier' s invoice and paid by the Customer with it pays for the Goods.
9.2. The Customer acknowledges that when delivering to the outside of the United Kingdom, third party carriers may charge in respect of local taxes and duties. To the extent that these apply. These shall be payable in full by the Customer and shall not be the responsibility of the Supplier.
9.3. The charges for Services shall be as agreed between the Supplier and the Customer.
9.4. Payment shall be due at the time of order or as otherwise agreed in writing between the Customer and Supplier. In the event that credit terms are agreed to by the Supplier, these are subject to the condition that they may vary or withdrawn at any time by the Supplier at its sole discretion.
9.5. The time of payment shall be of the essence.
9.6. In the event of the obvious error within the Supplier's invoice, the Supplier reserves the right to submit a further invoice for the balance.
9.7. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.8. Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due the Supplier under the Contract by the due date for payment ("Due Date"), the Supplier shall have the right to charge interest on the overdue amount a the rate of 5 percent per annum above the then current base rate of HSBC Plc accruing on a daily basis from the Due Date until the date of the actual payment of the overdue amount, whether before or after judgement, and compounding quarterly.
9.9. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in the whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10.1. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
10.1.1. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being and individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.2. the Customer commence negotiations with all of any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sloe purpose of a scheme for a solvent reconstruction of that other party;
10.1.3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies of the solvent reconstruction of the Customer;
10.1.4. the Customer (being an individual) is the subject of a bankruptcy petition or order;
10.1.5. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.6. an application is made to court, or an order is made, for the appointment of an administrator of if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
10.1.7. a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.1.8. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
10.1.9. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.1 to clause 10.1.8 (inclusive);
10.1.10. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
10.1.11. the Customer (being and individual dies or, by reason of illness or incapacity (whether mental of physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation;
10.1.12. the Customer fails to pay any amount due under this Contract on the due date for payment.
10.2. Without limiting is other rights or remedies, the Supplier shall have the right to suspend the supplier of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
10.2.1. The Customer fails to pay any amount due under this Contract on the due date for payment; or
10.2.2. The customer becomes subject to any of the events listed in clause 10.1.1 to clause 10.1.11 or the Supplier reasonably believes that the Customer is about to become subject to any of them
On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall then submit an invoice, which shall be payable by the Customer immediately on receipt.
12.1. Subject to clause 12.2, the Customer shall keep in strict confidence all information relating to the Supplier's pricing list, product availability and related information ("Confidential Information").
12.2. The Customer shall be entitled to use Confidential Information to the extent reasonably necessary to do everything in the ordinary courier of acting as a re-seller of the Goods.
13.1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:
13.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2. fraud or fraudulent misrepresentation;
13.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
13.1.5. defective products under the Consumer Protection Act 1987
13.2. Subject to clause 13.1:
13.2.1. the Supplier shall under no circumstances whatever be liable to the Customer, whether in contact, tort (including negligence), breach of statutory duty, or otherwise, for:
13.2.2. any loss of profit;
13.2.3. any indirect loss;
13.2.4. any consequential loss; or
13.2.5. any loss of or corruption of data; arising under or in connection with the Contract
13.2.6. in the case of Goods where the Supplier is acting as re-seller, the Supplier shall have no liability to the Customer in respect of defective Goods to the extent the Supplier itself is not able to recover from its own supplier or the manufacturer (as the case may be) in respect of the defect in question; and
13.2.7. the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods and Services supplied under the relevant order;
13.3. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extend permitted by law, excluded from the Contract.
14.1. In the event that the Goods are defective, the Supplier may at its absolute discretion permit them to be return in order to repair or to replace them as the Supplier sees fit.
14.2. In the event that the Supplier permits the Customer to return Goods in accordance with clause 14.1, the Customer shall ensure that the Goods are suitably packaged.
14.3. In the event that the supplier agrees to the return of Goods other than in accordance with clause 14.1, the Customer shall ensure that the Goods are returned in their original packaging in a clean and re-saleable condition.
14.4. In any event, the Supplier shall accept no liability for damage or destruction to the Goods arising from the Goods being returned otherwise than in accordance with this clause 14.
15.1. For the purpose of this Contract, "Force Majeure" Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire flood, storm or default of suppliers or subcontractors.
15.2. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.3. If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
16.1. The Customer acknowledges that certain Goods are subject to export and other resale restrictions. If Customer delivers the Goods to any customer who may use the Goods outside the United States or European Union or EFTA countries, Customer acknowledges and shall advise is customers that some Goods are controlled for resale or export by the U.S. Department of Commerce, the EU or EU/EFTA member state bodies and such Goods may require authorisation prior to resale or export. Customer agrees that it will not export, re-export, or otherwise distribute Goods, or any direct products thereof, in violation of any dual use restrictions and export control laws or regulations of the U.S., the EU or any EU/EFTA member state. Customer warrants that it will not resell, export or re-export any Goods with knowledge that the Goods will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless the Customer has obtained prior approval from the U.S. Department of Commerce, the EU or the competent EU/EFTA member state's government agency. The Customer further warrants that it will not export or re-export, directly or indirectly, any Goods to embargoed countries or resell any Goods to companies or individuals restricted from purchasing Goods including those listed on the Sanctioned Parties List published by the U.S. Department of Commerce and similar lists issued by the EU or EU countries.
16.2. The restriction set out herein change from time to time. If the Customer has any questions regarding its obligations under U.S export regulations the Customer should contact the Bureau of Export Administration, U.S. Department of Commerce, Office of Export Licencing, Washington DC, USA (202) 377 4811 or the local U.S Consulate. Information concerning restrictions applicable to export from the EU and any intra-EU sales restrictions on dual use items and license requirement can be obtained from the European Commission or the UK Export Control Organisation.
16.3. It shall be the Customer's responsibility to comply with all export and other resale restrictions. Upon request the Customer agrees to reaffirm in writing its compliance and its intentions to comply with applicable export and restricted user and uses regulations.
17.1. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
17.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
17.3. This clause 17 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under the Contract shall not be validly served if sent by e-mail.
A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a parting exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of single right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19.1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extend required, be deemed deleted, and the validity and enforce-ability of the other provisions of the Contract shall not be affected.
19.2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind the other party in any way.
A person who is not a party to the Contact shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by a director of the Supplier.
This Contract, and any dispute of claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims, shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.