Terms and Conditions of Sale for Xperience Customers

1. General

1.1. Unless otherwise expressly agreed in writing by a Director of the Company or authorised executive of the Company, the equipment or services are sold under the following terms and conditions and no agent or representative of the Company has any authority to vary or omit these conditions or any of them. Any conditions printed on the Customer’s order forms are binding only insofar as they are not at variance with these conditions. This agreement comes into force when signed by or on behalf of the Customer and by a person authorised by the Company.

1.2. These are for a duration of twelve months and once invoiced will automatically renew and can only be cancelled by notice in writing to the Company, to be received prior to three months before the anniversary date.

2. Acceptance and Variation of Price

2.1. All quotations whether verbal or in writing do not constitute offers and are subject to the Company’s written confirmation on receipt of the Customer’s order and no contract shall be concluded until such written confirmation is provided.

2.2. Any order placed with the Company will be accepted at the Company’s sole discretion and, if accepted, will only be accepted on and subject to these Conditions.

2.3. Each order so accepted constitutes a separate legally binding contract between the Company and the Customer.

2.4. The Customer is responsible for ensuring the accuracy of any order submitted to the Company.

2.5. Once accepted by the Company, no order may be cancelled by the Customer without prior written mutual agreement.

2.6. All prices quoted or listed by the Company are based on the prices of the Company’s suppliers at the time of quotation or listing and are subject to adjustment prior to despatch to cover any increase in such prices or in taxation or duty, which might take place prior to delivery.

2.7. The Company reserves the right, by giving the Customer written notice at any time before delivery, to increase the price of hardware and/or software and/or support and/or services to reflect any increase in the cost to the Company, which is due to any factor beyond the Company’s control. Where possible, the Company will provide 30 days’ notice of any price changes but the Customer acknowledges this may not always be possible where prices vary for reasons outside of the Company’s control. The Company, therefore, reserves the right to vary prices at short, or even no, notice. Any price changes will be notified to the Customer as soon as reasonably possible.

2.8. The Company shall be able to increase the price for support and maintenance services by giving the Customer not less than 30 days’ notice prior to the commencement of the next 12 month period of support and maintenance.

2.9. Unless otherwise stated, quotations are valid for acceptance for 30 days or earlier acceptance, after which they will lapse. Any quotation that has lapsed must be reconfirmed with the Company prior to any order being accepted.

2.10. All prices are exclusive of packing, carriage and VAT.

2.11. Where the goods are imported the Company reserves the right to vary the price quoted to reflect the rate of exchange for the purchase of the relevant currency in pounds sterling.

2.12. In the case of site visits, if a minimum 48 hours’ notice of cancellation is not received, a cancelled site visit will be chargeable at the normal day rate.

3. Payment

3.1. Payment will be made by the Customer to the Company in accordance with the payment terms stated on each invoice.

3.2. Interest on overdue invoices will be payable by the Customer, before as well as after judgment, on a daily basis at an annual rate of 8% above the Bank of England base lending rate.

3.3. The Customer is not entitled to withhold or delay any payment due by reason of any actual or alleged defect, unless such defect is the subject of any claim.

3.4. The Customer is responsible for any bank or other charges (including, but not exclusively, transfer charges, costs of cheques not being honoured etc.).

3.5. If and for so long as there are any overdue invoices (whether under this Contract or otherwise), the Company shall be entitled to suspend the provision of any goods or services to the Customer.

3.6. If:

3.6.1. any sum owed by the Customer to the Company or any other associated company, under this or any other contract is overdue; or

3.6.2. at any time the credit standing of the Customer has in the Company’s reasonable opinion been impaired for any reason; or

3.6.3. the Customer fails to make any payment when it becomes due; or

3.6.4. the Customer makes any voluntary composition or arrangement with its creditors; or

3.6.5. the Customer becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or if a resolution for the winding up of the Customer is passed or a court makes an order to that effect; or if there is any breach by the Customer of these Conditions; or the Customer ceases, or threatens to cease, to carry on business; or there is a change of control of the Customer (as described in Section 840 of Income and Corporation Taxes Act 1988) or any purported arrangement of the legal or beneficial interest in this contract; or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then the Company may, without prejudice to its other rights and remedies and at its option, be entitled to cancel the Contract or withhold any further deliveries and/or suspend the provision of further services without liability to the Customer until arrangements as to payment or credit have been established to the Company’s reasonable satisfaction.

3.6.6. the Company shall be entitled but not obliged at any time or times without notice to the Customer to set off any liability of the Customer (or any group company of the Customer) to the Company against any liability of the Company to the Customer (or any group company of the Customer) (in either case howsoever arising and whether any such liability is present or future liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to the Company under this Contract or otherwise.

4. Delivery

4.1. The Company will use its best endeavours to deliver at the time stated but delivery dates shall be regarded as estimates only. The Company shall not be liable for any delay occasioned by any cause whatsoever beyond the Company’s control.

4.2. Goods shall be deemed to be delivered when handed over to the carrier in the case of delivery by independent carrier or when the Company’s delivery/despatch note is signed by the Customer’s representative in the case of delivery by the Company’s own personnel.

4.3. In the case of delivery of the goods by instalments, the Customer will not be entitled to treat the delivery of faulty goods in any one instalment or the late delivery or non-delivery of any one instalment as a repudiation of the whole contract.

4.4. If the customer fails to give delivery instructions within 14 days of it being notified that the goods are ready for delivery, the Company shall (without prejudice to any other rights or remedies available to it) be entitled (but not bound) to store the goods at any available place at the Customer’s expense.

4.5. Unless otherwise stated goods will be consigned by road transport or goods train to the address in the United Kingdom specified by the buyer in writing.

4.6. The Customer’s refusal to accept delivery (either part or whole) shall permit the Company to treat the Contract as repudiated by the Customer and to decline to make any further deliveries, without prejudice to the Company’s right to recover damages for breach of contract.

4.7. The cost of carriage and packaging (including cases and materials) will be charged to the buyer on the invoice for the goods at the time of despatch. Packing cases and materials are non-returnable unless otherwise stated.

5. Risk and title to the Equipment

5.1. The risk in the goods passes to the Customer upon delivery but property in the hardware equipment remains vested in the Company and shall only pass from the Company to the Customer upon full payment being made by the Customer of all sums due in respect of the goods on whatsoever account or grounds. In the event of the goods being sold by the Customer, in such manner as to pass to a third party a valid title to the goods whilst such sums are due as aforesaid the Customer shall be the Trustee for the Company of the proceeds of such sale or to claim for such proceeds of such sale or to the claim for such proceeds and the Customer shall place such proceeds in a separate bank account. Nothing herein shall constitute the Customer the agent of the Company for the purpose of such sub-sale.

5.2. Property in any software shall, at all times, remain vested as per the software licence agreement of its licensor, and the Customer’s rights shall be governed by the terms of any licence relating to such software. All third party licensing agreements must be complied with by the Customer in all respects. The Customer shall indemnify the Company against the consequences of any breach or infringement of that licence.

5.3. In the absence of express agreement, to the contrary, any software written, created, adapted or developed by the Company shall remain the exclusive property of the Company. The Customer shall not reverse compile, copy, adapt or reverse, assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Company’s intellectual property and shall keep the same confidential, shall maintain a record of the whereabouts and number of licensed copies and shall take all necessary step to prevent unauthorised use.

5.4. The Customer agrees that prior to full payment being made as aforesaid, the Company may at any time enter upon the Customer’s premises and remove the goods therefrom and that prior to such payment, the customer shall keep such goods separate and identifiable for this purpose.

5.5. In the event of the goods becoming constituents of or being converted into other products whilst such sums are due, the Company shall have the ownership of and title to such other products as if they were the goods and accordingly this Clause 5 shall so far as appropriate apply to such other products subject to the buyer’s right to the surplus of any amounts of money realised by the said goods in excess of those due to the Company as provided herein.

5.6. Any implied authority that the Customer shall be entitled to sell the goods and pass property in the same to third parties in the normal course of its business or manufacture products out of the same or sell such products will continue until otherwise notified to the Customer by the Company or until the happening of the following events:-

5.6.1. any notice to the Customer that a Receiver or Manager is to be or has been appointed in respect if its undertaking or a material part thereof or other property or assets.

5.6.2. any notice to the Customer that a petition to wind up the Customer is to be or has been presented to the Customer under Section 223 of the Companies Act 1948 or otherwise or any notice to the Customer of a proposal to pass a Resolution to wind up the Customer (including any proposal by the Customer to do so).

5.6.3. a decision by the Customer that the Customer intends to make an arrangement with its creditors.

5.6.4. any act of Bankruptcy by the Customer as defined by the Bankruptcy Act 1914. And upon the happening of any such events, the Customer shall immediately notify a Director or other authorised officer of the Company.

5.6.5. On receipt of notice from the Company or on the happening of the events set out in 5.6 above the Customer’s implied authority to sell the Company’s goods shall be immediately withdrawn and all such goods and products made there from shall immediately be delivered to the Company.

6. Notification of Loss or Damage

6.1. The Company must be informed in writing by 12 noon on the next working day following delivery of the goods in the event of any shortage or damage and within seven days of receipt of the invoice if the goods have not been delivered. No return of goods will be accepted unless a valid Returned Materials Authorisation (RMA) number is clearly marked on accompanying documentation. No goods will be accepted for credit unless they are returned unopened and in their original packaging.

6.2. Unless otherwise stated payment is strictly net cash to be made on or before delivery of the goods. Failure to make due payment in respect of deliveries or installments under this or any other contract between the Customer and the Company shall entitle the Company to delay suspend or cancel deliveries in whole or in part at its option.

6.3. Payment shall be due whether or not property in the goods has passed by virtue of Clause 5 hereof and the Company shall (without prejudice to any other right or remedy) accordingly be entitled to sue for the price once the same is due even if the property in the goods has not passed.

7. Liability

7.1. The Customer shall inspect the goods on delivery. The Company will make good at its option by repair or replacement any defects in goods (save for consumable items) due solely to defective workmanship or materials which are notified to the Company within one year of the invoice date (subject as hereinafter provided) and in the case of any defect discoverable upon reasonable examination such notification must be made within eight weeks from the date of delivery and in the case of any defect not discoverable upon reasonable examination such notification must be made within a reasonable period from the date such defect is actually discovered provided that:

7.1.1. the aforesaid obligations on the Company shall not extend to defect caused by wilful damage negligence (other than by servants or agents of the Company) incorrect storage or application movement installation or defects caused by fair wear and tear; and

7.1.2. if required by the Company the goods are returned within fourteen days of notification of the defect.

7.2. Save as herein set out and for liability for death or personal injury resulting from negligence on the part of the Company and save for breach of the Company’s statutorily implied undertakings as to title all express or implied conditions representations or warranties as to quality or fitness of the goods or otherwise are expressly excluded.

7.3. Save for liability for death or personal injury resulting from negligence the Company accepts no liability under any claims howsoever arising (be it by negligence or otherwise) for any loss or claim over the figure of £5,000,000 or such greater figure as is from time to time the limit of liability laid down by the Company’s insurers in respect of such claims.

7.4. All computer equipment requires a constant and stable supply of mains electricity. It is the Customer’s responsibility to ensure that such supply is made available at the installation site.

8. Force majeure

8.1. The Company shall be excused from liability to the Customer if performance of the contract is prevented or hindered (in particular if an agreed delivery date is delayed by any cause whatsoever beyond the Company’s control and in particular but without prejudice to the generality of the foregoing by Act of God, war, riot, civil commotion, Government act or omission whether local or national, fire, flood, subsidence, sabotage, accident, strike or lockouts and the Company shall not be liable for any loss or damage resulting there from suffered by the Customer.

9. Confidentiality

9.1. Each of the parties to this Contract undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Contract save that which is:

9.1.1. trivial or obvious;

9.1.2. already in its possessions other than as a result of a breach of this clause; or

9.1.3. in the public domain other than as a result of a breach of this clause.

9.2. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 9.1 above by its employee’s agents and sub-contractors.

10. Warranties

10.1. All hardware and/or software are supplied on and subject to the terms and conditions of warranties and licences of the original manufacturers and/or licensors. The Company will pass on to the Customer the benefit of any guarantees or indemnities given to it by its supplier. Any software supplied is not warranted to operate error-free or on an uninterrupted basis.

10.2. The Company makes no warranty as to the description, quality, fitness for purpose, suitability or otherwise of any hardware and/or software supplied. The Company accepts no responsibility for any loss or damage, arising directly or indirectly, from the use of any hardware and/or software supplied by it, including any loss arising by reason of any failure of the hardware and/or software to comply with any specifications provided by the Customer.

10.3. The Company warrants that all services provided under this Contract will be provided with reasonable skill and care.

10.4. Except as otherwise expressly provided, and except where the Customer deals as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

10.5. Where the hardware and/or software are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.

11. Safety Instructions

11.1. The Customer undertakes with the Company that it will ensure compliance so far as is reasonably practicable by its servants agents licensees and Customers with any instructions given by the Company or the manufacturer of the goods for the purpose of ensuring that the goods will be safe and without risk to health when properly used and will take any other steps or precautions having regard to the nature of the goods as are necessary to preserve the health and safety of persons handling using or disposing of them.

12. Legal Interpretation

12.1. The Contract is governed by English Law. Any dispute arising out of or in connection with this contract shall be determined by the English Courts.

13. Severance

13.1. In the event of any part of these conditions being ineffective for any reason, the remainder thereof shall constitute the condition binding upon the parties.

13.2. Where this Agreement relates to more than one item of Equipment, it shall be a separate and severable contract for each item of equipment.

14. Assignment

14.1. Neither this contract nor any of the rights and obligations hereunder shall be assigned by the Customer without the prior written consent of a Director or authorised officer of the Company.

14.2. If the Customer wishes to lease or finance the purchase of the equipment through a third party then the Company shall allow the Customer to assign the obligations of payment to an assignee but without prejudice to the generality of this contract.

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