“Customer” means the party identified as the Customer in this Agreement to whom Excotek may agree to supply Products in accordance with these terms and conditions.
“Supplier” or any subsidiary or associated company.
“Products” means goods or services including but not limited to computer hardware and software items to be provided by Excotek to the Customer in
accordance with these terms and conditions.
“Third Part Software” means all software owned by or licensed to the Customer from a third-party owner (whether or not supplied by Excotek) and which comprises part of the Products.
All orders placed with Excotek by the Customer for Products shall constitute an offer to Excotek, under these terms and conditions, subject to
availability of the products and to acceptance of the order by Excotek’s authorised representative.
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 Excotek’s authorised representative.
It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless these latter terms and conditions are amended by Excotek Ltd in writing and signed by Excotek.
The relationship between the Supplier and Customer is that of Independent Contractor. Neither party is the agent of each other, and neither party has any authority to make any contractor make any obligation expressly in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this Agreement.
Any time quoted for despatch is to be treated as an estimate only, but despatch may be postponed because of conditions be yond Excotek’s reasonable control, and in no event shall Excotek be liable for any damages or penalty for delay in despatch or delivery.
Risk shall pass to the Customer at the time the Products are signed for by the customer.
If Products have not been received, the Customer must notify Excotek within 7 days of the date of the invoice. If proof of delivery is required, this must be
Requested within 14 days of the date of the invoice.
CANCELLATION AND RESCHEDULING
Subject to clause 8.2, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by Excotek if made at least 12 hours before despatch of the Products, and shall be subject to acceptance by Excotek at Excotek’s sole discretion, and subject to a reasonable administration charge therefore by Excotek. The Customer hereby agrees to indemnify Excotek 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.
Catalogues, price lists and other advertising literature or material as used by Excotek 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 Excotek.
All prices are given by Excotek at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance.
All quoted or listed prices are based on the cost to Excotek of supplying the Products to the Customer. If before deliver y 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 Excotek’s discretion.
All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the taxpoint date.
Invoices will be raised and dated by Excotek on the date of despatch of the Products. Unless otherwise specifically requested and agreed, invoices will be
payable by the Customer 30 days from the date of invoice. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate 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.
When all prices, taxes and charges due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.
Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, other property of the hardware Products shall not pass to the Customer until Excotek has received cash or cleared funds payment of the price of the Products and all the Products agreed to be sold by Excotek to the Customer for which payment is then due.
Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as Excotek’s fiduciary agent and bailee, and
shall keep the Products properly stored, protected and insured and identified as Excotek’s property. Until that time the Customer shall be entitled to resell or use the products in the ordinary course of its business, but shall account to Excotek 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 Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and not been resold), Excotek shall be entitled at any time to require the Products be delivered to Excotek and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
The Customer’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 Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
On termination of the Company’s power of sale or right to use the Products the Customer will immediately hold the Product s to the order of Excotek.
The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Excotek, but if the Customer does so, all monies owing by the Customer to Excotek shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
Excotek reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Excotek reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
SPECIFICATION OF PRODUCTS
Excotek 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. Excotek will use its reasonable endeavors to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.
Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified. Excotek 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.
PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
The Customer hereby acknowledges that any proprietary rights in any Third-Party Software supplied hereunder including, but not limited to any title or owner ship 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.
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 Excotek (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 Excotek in respect of any costs, charges or expenses incurred by Excotek at the suit of a Third-Party Software owner as a result of any breach by the Customer of such.
NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD-PARTY SOFTWARE LICENCED TOTHE CUSTOMER UNDER THIS AGREEMENT IS
TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
Excotek reserves the right to levy an administration charge in respect of the rotation of Products and returns.
Returns must be made subject to the following:
(a) prior authority having been obtained from Excotek which will be given at Excotek’s sole discretion;
(b) within 30 days of the date of the invoice;
(c) subject to stock rotation policy;
(d) the Products must be properly packed;
(e) the Products must be in a saleable condition; (f) the Products must be accompanied by a list;
(g) the Product is still covered by warranty (see section 11).
Excotek reserves the right to reject any Products which do not comply with the conditions set out in clause 10.2.
If Excotek nevertheless agrees to accept any Products returned which are not in a saleable condition, Excotek reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.
Excotek warrants that it has good title to or licence to supply all Products to the Customer.
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. Excotek is not responsible for the cost of labour or other expenses incurred in repairing defective or nonconforming parts.
All software Products supplied hereunder are supplied “as is” and the sole obligation of Excotek 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 Excotek of any such non-conformity within 90 days of the date of delivery of the applicable software Product. Specifically, Excotek 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.
If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 11.2 or 11.3, Excotek will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Excotek 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 Customer until Excotek has passed a corresponding credit note.
EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, EXCOTEK 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.
INDEMNITIES AND LIMITS OF LIABILITY
Excotek will indemnify the Customer 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.
Except as stated in clause 12.1 above, Excotek disclaims and excludes all liability to the Customer in connections with these terms and conditions including the Customer’s use of the Products and in no event shall Excotek be liable to the Customer 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.
The Customer shall indemnify and defend Excotek and its employees in respect of any claims by third parties which are occasioned by or arise from any
Excotek performance or non-performance pursuant to the instructions of the Customer or its authorised representative.
TERMINATION FOR CLAUSE
This agreement may be terminated forthwith by notice in writing:
By Excotek if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 7.1.
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.
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.
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.
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 Customer to Excotek of an ultimate destination for any Products, the customer will not export or re -export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
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.
The Customer agrees not to assign any of its rights herein without the prior written consent of Excotek.
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.
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 majeure, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
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 de livered 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.
These terms and conditions shall be construed in accordance with English Law.