Definitions

1) The following definitions apply.

1. "Company" means the limited company named above whose company number is 4393394 and whose registered office is at 1 Carnegie Road, Newbury, Berkshire, RG14 5DJ.
2. "Contract" means the contract between the Company and the Customer to which on any particular occasion these terms and conditions relate.
3. "Customer" means the customer of the Company under the Contract.
4. "Goods" means the goods to which the Contract relates.
5. "Software" means such (if any) of the Goods as are within the meaning of that term as currently used in the information technology industry.
6. "Equipment" means such of the Goods as are not Software.
7. "Special Condition" means only a special condition or term which has been agreed by the Company and which is set out in the part of the Contract signed on behalf of the Company.
8. "Standard Charges" means the charges normally made by the Company from time to time as certified in writing by the Company.
9. "Special Software" means software and/or modifications to software developed and/or supplied by Company to Customer in accordance with Customer's specifications.
10. "Working Days" means every day except Saturdays, Sundays and English public and bank holidays.
11. "Specification" means the functional specification of the Goods supplied to Customer.
12. "Customer's Affiliates" means the Customer's holding company and subsidiary companies and all subsidiary companies of its holding company and subsidiary company and holding company shall have the meanings ascribed to them in sections 736 and 736A of the Companies Act 1985.

General

2) These terms and conditions shall apply to all contracts made between the Company and the Customer, whether written or oral and whether expressly mentioned or not.

3) These terms and conditions shall apply to the Contract save so far as varied by or inconsistent with any Special Condition. No other term or condition shall have any effect whatsoever.

4) The Customer shall have no right to modify cancel or change the delivery date applicable to the Contract without the prior written consent of the Company, which shall not be unreasonably withheld or delayed.

5) Any request by the Customer for cancellation of any order or for rescheduling of deliveries will only be considered by the Company if made at least 24 hours before despatch of the Goods. The Customer 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 by the Customer provided that the Company shall use all reasonable endeavours to mitigate such loss, costs, damages, charges and expenses.

6) Neither the Contract or any document forming part of the Contract shall be binding on the Company unless it has been accepted by each party under the signature of one of its Directors or other authorised signatory.

7) No quotation or estimate given by the Company shall be deemed to be an offer by the Company unless expressed to be a "fixed quotation" and valid until a given date in which case it shall be open to acceptance by the Customer but only by written acceptance delivered to the Company by such a date.

8) The headings appearing in these terms and conditions are for guidance only and shall not in any way be deemed to affect or prejudice the interpretation or effect thereof save that those which appear under the heading "Special Software" shall only apply to the Special Software (if any) covered by the Contract and those which appear under the heading "Installation" shall only apply if the Contract provides for installation of the Equipment by the Company.

9) It is intended that these terms and conditions and any Special Conditions shall be reasonable as between the Company and the Customer having regard to the nature of the Contract but if at any time any of them is either unenforceable or void at law it shall not adversely affect or prejudice the remainder of them or the Contract and it shall be deemed to be excluded from these terms and conditions and (where possible) to be replaced by such other enforceable and valid term or condition as shall be as near as may be to the original in both form and effect.

Price

10) The price of the Goods shall be as stated in the Company’s quotation accepted in writing by the Customer.

11) The price takes into account freight rates, currency exchange rates, import and other duties and taxes of whatsoever kind (other than UK VAT) deemed by the Company applicable at the date of the Contract.

12) The Customer shall, subject to receipt of a valid VAT invoice, pay UK VAT on any sum payable by the Customer to which it applies at the rate prevailing at the appropriate time.

13) For the purposes of the remainder of these terms and conditions "the price" shall be deemed to be the price payable by the Customer plus any UK VAT.

14) Unless otherwise expressly agreed the price does not include installation, operator training, travelling or hotel expenses and if any such are provided or carried out by the Company the Customer shall pay the Company its Standard Charges for installation and operator training and will pay the Company’s reasonable travel and accommodation costs provided that such items are supported, upon request, by appropriate receipts.

15) Save where installation is to be carried out by the Company, the Customer will pay the Company any delivery charges incurred by the Company if the Company arranges for delivery to or on behalf of the Customer. Such charges will be included in the price.

Payment

16) Save in respect of Special Software and installation the price (less any deposit paid) shall be paid within thirty days of the Customer’s receipt of the invoice sent by the Company to the Customer or (if later) within thirty days of the date on which the Goods are ready for collection by or delivery to the Customer.

17) If any sum payable by the Customer to the Company is not paid within 5 Working Days of the due date the Company shall have the right to charge interest on the balance at such annual rate as shall be 5% above the base rate of Lloyds TSB PLC from time to time in force calculated on a daily basis from the date on which such sum became due down to the actual date of payment.

Delivery and Acceptance

18) Delivery dates quoted are estimates only and the Company shall not be responsible for any delays due to cause beyond its control but will use all reasonable endeavours to meet any date quoted.

19) The Company may make delivery by instalments if agreed by the Customer in writing. In the event these terms and conditions shall apply to each delivery as though it were the subject of a separate Contract.

20) Save as mentioned below the Customer shall take delivery at the Company’s premises within 5 Working Days of the Company serving written notice to the Customer that the Goods are ready for Collection.

21) If the Company agrees to make delivery to the Customer such delivery shall be effected on a Working Day to the address of the Customer as shown in the Contract, unless otherwise agreed.

22) Delivery shall be deemed to be effected at the time when the Customer effects collection from the Company or in cases where collection is not effected by the Customer or on its behalf, when delivery is made to the address of the Customer. Unless the Customer shall deliver written notice to the Company within 10 Working Days of delivery to the effect that the Goods are damaged or subject to shortage the Customer shall be deemed to accept that the Goods have been delivered in accordance with the terms of the Contract solely to the extent of any damage apparent upon initial inspection or shortage.

23) If the Company agrees to arrange for delivery of the Goods the Customer shall give verbal and written notice to the Company forthwith if the Goods are not received within 5 Working Days of the expected delivery date.

Property Risk and Insurance

24) Until the price payable has been paid to the Company in full the Goods shall remain the property of the Company. The Company shall have the right at any time prior to the price being paid in full to require the Customer to return the Goods or make them available for collection from the Customer’s premises.

25) If the Customer should sell or otherwise dispose of the Goods to a third party at any time before the Company has received full payment for the same, the Customer shall hold and keep the proceeds of sale on trust and/or in a fiduciary capacity for the Company, and the said proceeds of sale shall remain the property of the Company. For the avoidance of doubt, the Customer shall place the said proceeds of sale in a separate bank account in the name of the Company in order to be identifiable as the Company’s property.

26) Not withstanding the aforegoing the Goods shall be entirely at the risk of the Customer in all respects from the time of delivery.

27) The Customer shall adequately insure the Goods against all relevant insurable risks from no later than the time of passing of risk under clause 25.

Copyright

28) Save in respect of Special Software and to the extent provided below the Customer shall not be entitled to any rights of copyright or design or any similar rights in respect of any of the Goods and the Company shall be free to prepare and produce similar goods and sell them to other parties without any restrictor whatsoever. The Company hereby grants to the Customer a royalty free, worldwide, same as provided in clauses 33 and 34 irrevocable right to use the software provided.

29) The Company shall indemnify and hold the Customer harmless from and against any and all costs, losses, damage, liability, costs and expenses (including, without limitation, reasonable legal fees) awarded against, suffered or incurred by the Customer in connection with any claim that the whole or any part of the Goods infringe the patent, copyright, trade secrets, know how or other intellectual property rights of any third party.

Force Majeure

30) The Company shall be under no liability for any failure to perform all or any part of its obligations under the Contract if such failure shall be due to Act of God, strikes, lock outs, labour disturbances, statute, order or any regulation of any Government, public or local or other Authority, delays or defaults of suppliers or sub contractors, or (without prejudice to the generality of the aforegoing) any other causes beyond the reasonable control of the Company and which the Company could not reasonably insure or protect against and the Condition shall apply notwithstanding that it may conflict with any Special Condition.

Default and Termination

31) The rights each party as set out in these conditions shall apply in addition and without prejudice to all rights that each party may have by common law statute or otherwise in respect of any default by the other party.

32) If the Customer fails to take delivery of any part of the Goods at the time or place required under the Contract the Company shall have the right (i) to charge the Customer with reasonable storage charges until such time as delivery is taken and/or (ii) at any time thereafter to give written notice to the Customer requiring the Customer to take delivery of the Goods in conformity with the Contract within a period of twenty eight days from the date of sending such notice and in the event of the Customer failing to take delivery within such period the Company may, by sending further written notice to the Customer treat the Contract as having been repudiated by the Customer and recover from the Customer all losses damages and costs occasioned to the Company by virtue of such repudiation.

33) Each party shall have the right to terminate the Contract forthwith upon notice to the other should the other become bankrupt or insolvent or make any arrangement or compound with its creditors or should any receiver be appointed in respect of its undertaking or any of its assets or should a judgement be obtained against it and remain unpaid for a period in excess of twenty-eight days.

34) Each party shall be entitled to terminate the Contract forthwith upon written notice to the other in the event that the other commits a material breach of the Contract which, in the case of a material of breach that is capable of remedy, is not remedied within thirty days of written notice from the other party specifying the breach and requiring its remedy.

Warranty

35) The Company warrants that for a period of 90 days from the date of delivery to Customer the Goods will correspond and will operate in all material respects in accordance with their Specification.

36) Save as expressly stated in these terms and conditions neither party shall have any liability whatsoever in respect of any representation warranty undertaking or condition not expressly incorporated herein and any such as might be implied in statute or otherwise is hereby expressly excluded.

37) Save as provided under clause 29 the Company shall not be liable for any loss of use of the Goods or consequential loss arising out of any defect in the Goods or otherwise.

38) The obligation of the Company in respect of the Warranty under clause 35 will be to promptly repair or replace the Goods free of charge to the Customer if they are found to be defective or, if it is unable to do such things to promptly repay all sums paid by the Customer in respect of the Goods.

39) Under no circumstances shall the Company have any liability under the aforegoing obligation or otherwise for normal wear and tear or if (other than by or with the written consent of the Company) any part of the Goods are modified or repaired, improperly stored or used, damaged by accident or neglect or maintained otherwise than or not maintained in accordance with the maintenance requirements specified by the Company to the Customer.

40) The Company represents that to the best of its knowledge and belief, the information contained in its published Engineering Specifications and Manuals is correct but any warranty, implied or otherwise, that the Goods are suitable for the purposes of the Customer or may be integrated with other equipment is hereby expressly excluded.

41) These terms and conditions and the Special Conditions (if any) constitute the entire agreement between the Company and the Customer and may not be modified, waived, amended or supplemented except by written agreement between them signed on behalf of the Company and Customer as mentioned above.

Special Software

42) The Company shall as soon as reasonably practicable submit a specification of Special Software to the Customer.

i. Such specification shall be written to the requirements of the Customer as notified to the Company. The Customer shall check that such specification is in accordance with its requirements and subject to any necessary amendments shall as soon as possible thereafter approve such specification in writing.

ii. As soon as the specification for Special Software has been approved as aforesaid the Customer shall pay the customer a deposit of 25% of such part of the price as relates to Special Software.

iii. Following the date of delivery of Special Software to the Customer it shall be tested using samples and data (which shall be supplied by the Customer as being fully representative of the data to be encountered in operation use) and if such test is successful and the Special Software conforms with the specification mentioned above it shall be deemed to have been accepted by the Customer.

iv. On acceptance of Special Software as mentioned above the balance of the part of the price relative to Special Software shall become due and payable in full within 30 days of acceptance.

v. Save so far as varied by or inconsistent with the aforegoing paragraphs relating to Special Software all other of the terms and conditions shall also apply to Special Software.

vi. Save for any part of the Special Software that has been developed by the Company prior to or independently of its Contract with the Customer (the “Background Rights”) all copyright and other intellectual property rights in the Special Software shall be the sole property of the Customer and the Company shall no rights in or to the same. The Company hereby grants to the Customer a royalty free, irrevocable, worldwide licence to use the Background Rights as part of the Special Software.

Installation

43) Where the Contract includes installation by the Company it shall give at least seven days notice of the date on which it intends to effect delivery and installation.

i. The Customer shall prepare and make available the installation site for each item of the equipment in accordance with the reasonable specifications previously furnished by the Company. The Customer shall in all such respects and otherwise ensure that delivery is capable of being made on the intended delivery date as notified by the Company although the Company gives no warranty that delivery will actually be made on such date but agrees that it will use all reasonable endeavours to ensure that it is.

ii. The Customer shall permit the Company to have access to the installation site at all reasonable times during working hours for the purposes of checking its suitability and ultimately for the purposes of delivering and installing the Goods.

iii. Following delivery the Company shall carry out the installation using appropriately qualified and trained personnel acting with reasonable care and skill and in such a way as to cause a minimum of disruption to the Customers business.

iv. After installation the Company will conduct tests to ensure that the equipment is in full working order and when such tests are satisfactory to the Customer (acting reasonably) the Customer will be deemed to have accepted the Equipment and its installation and will confirm acceptance in writing if so requested by the Company.

v. Unless otherwise agreed in the Special Conditions (if any) the obligation of the Company to install shall not imply any obligation on the part of the Company to train operators in the use of the equipment.

vi. Save so far as varied by or inconsistent with the aforegoing paragraphs relating to installation all other items of these terms and conditions shall also apply to installation.

Assignment Etc.

44) The benefit and obligations of either party shall not be assigned or sublet without the prior written consent of the other (which shall not be unreasonably withheld or delayed). The benefit and obligations of the Contract may however be sublet by the Company providing that it shall remain primarily responsible to the Customer for its obligations hereunder.

Law

46) This contract in all respects shall be governed by and construed in accordance with the laws of England and be subject to the sole jurisdiction of the courts of England and Wales.

Third Party Rights

46) Save as provided below, nothing in the Contract shall confer any rights upon any person who is not a party to it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Notwithstanding the above Customer's Affiliates may:

i. enforce Customer's rights under the Contract;

ii. take advantage of the benefits conferred upon Customer by the Contract

iii. rely on the representations, warranties and covenants given by the Company; and

iv. rely on the exclusions and limitations of liability benefiting Customer in this Agreement

PROVIDED THAT any enforcement by Customer's Affiliates of such rights, benefits, warranties, representations, covenants, exclusions and/or limitations shall be subject to the terms of the Contract.