1. Definitions
1.1 “Affiliate” includes any subsidiary or holding companyof the Company and each and any subsidiary of a holding company of the Company,any business entity from time to time controlling, controlled by, or undercommon control with the Company.
1.2 “Authorised Reseller Programme” means the programme oragreement under which the manufacturer or Third Party Service Provider consentsto the Customer purchasing the Products, airtime and/or Services from theCompany.
1.3 “Company” means HYPER SCALERS PTY LTD headquartered out of 10-65 Tennant Street Fyshwick ACT 2609 Australia
1.4 “Contract” means these Standard Terms and Conditions ofSupply and, if applicable, the Supplemental Framework Services Terms and anyfurther supplemental terms (as advised by the Company from time to time)between the Company and the Customer, under which the Products and Services (asapplicable) are supplied by the Company to the Customer as amended by theCompany from time to time.
1.5 “Customer” means the party identified as the Customer inthis Contract to whom the Company may agree to supply Products, Airtime and/orServices (as applicable) from time to time in accordance with the terms andconditions of this Contract.
1.6 “Drop Ship” means deliveries to End User(s) by theCompany (as requested by the Customer).
1.7 “End User” means the Customer’s end customer.
1.8 “InTouch” means the Company’s Customer web-shop.
1.10 “Services” means the services as defined in theSupplemental Framework Services Terms.
1.11 “Products” means the hardware or software goods includingbut not limited to computer hardware and software items to be provided by theCompany to the Customer in accordance with this Contract. 1.12 “Projects” meanspublic sector projects and/or any manufacturer funded end user projects(including but not limited to, SBP, OPG, SBA).
1.12 “Supervisor” means the person who is employed andcharged by the Customer to administer and authorise Users of InTouch on behalfof the Customer.
1.13 “Supplemental Framework Services Terms” means thesupplemental terms and conditions in respect of the Services.
1.14 “Third Party Service Provider” means a third party whoprovides the Products, airtime and/or Services to the Customer and the EndUsers.
1.15 “Third Party Software” means all software owned by orlicensed to the Customer from a third party owner (whether or not supplied bythe Company) and which comprises part of the Products.
1.16 “User” means the person who is employed by the Customerand who accesses InTouch on behalf of the Customer.
1.17 “Website” means the Company’s internet website,accessed through the address of:
2. Order Acceptance
2.1 By placing an order with the Company, the Customerwarrants that they have obtained and will comply with any consent required froma Third Party Service Provider including, if appropriate, membership of anyAuthorised Reseller Programme. In the event that the consent or membership ofthe Authorised Reseller Programme is terminated, the Customer will immediatelynotify the Company in writing.
2.2 All orders placed with the Company by the Customer forProducts, airtime and Services (as applicable) shall constitute an offer to theCompany, under the terms and conditions of this Contract, subject toavailability of the Products and Services (as applicable) and to acceptance ofthe order by the Company’s authorised representative.
2.3 All orders are accepted and the Products and Services(as applicable) supplied subject to the express terms and conditions of thisContract only. The Company may at any time amend this Contract by posting theamended Contract on the Website. The amended Contract shall apply to any ordersplaced on the Company or to the use of InTouch by the Customer.
2.4 It is agreed that the terms and conditions of thisContract (or any amendments to them) shall prevail over the Customer's termsand conditions of purchase.
2.5 On receipt of the Customer’s order on InTouch theCompany will send the Customer an order acknowledgment email detailing theProducts and Services (as applicable) ordered. This email is not an orderconfirmation or acceptance of order by the Company. For the avoidance of doubt,the Company shall be at liberty to refuse to accept any order placed by theCustomer on InTouch for any reason whatsoever.
2.6 No order placed on InTouch shall become a purchasecontract, and therefore binding upon the Company, until the Products have beendespatched to the Customer in accordance with clause 5 below and the ordermarked as confirmed within the “Order Status” facility of InTouch.
3. Independent Contractor
The relationship between the Company and the Customer isthat of independent contractor. Neither party is the agent of each other, andneither party has any authority to make any contract or to impose anyobligation on the other party without their express prior permission.
4. InTouch
4.1 Obligations of the Customer
4.1.1 The Customer will appoint the Supervisor.
4.1.2 The Supervisor shall be the person responsible for theuse of InTouch on behalf of the Customer.
4.1.3 The Customer may change the person appointed to be theSupervisor, either by using the on-line InTouch “Manage Users” facility or byinforming the Company in writing of the new identity of the Supervisor.
4.1.4 The Customer shall ensure that they meet all technicalrequirements of InTouch access and that the Company shall not be liable for anylosses which result due to technical incompatibilities or system errors.
4.1.5 The Customer shall take all reasonable steps to ensurethat its authorised Supervisors and Users shall not pass any login user detailsto third parties under any circumstances.
4.2 Obligations of Supervisor
4.2.1 The Supervisor is obliged to carry out the followingduties:
4.2.1.1 Authorisation, approval and access level setting ofnew and existing Users
4.2.1.2 Removal, deletion and amendments of Users who leavethe Customers employment or are deemed not to be fit to use InTouch on behalfof the Customer for any reason.
4.2.1.3 Ensuring that all Customer details held on InTouch,including, but not limited to, postal and delivery addresses are correct.
4.2.2 The Customer acknowledges that it is solelyresponsible for the actions of the Supervisor in the modification of any of thedata set out in clause
4.2.1 and that the Company shall not have any liability tothe Customer for any modifications made by the Supervisor.
4.3 Obligations of the User
4.3.1 The User must at all times be acting on behalf of theCustomer in any actions performed using InTouch.
4.3.2 The User shall not pass any security detailsincluding, but not limited to, usernames and passwords, to third parties underany circumstances.
4.3.3 On ceasing to represent or be employed by theCustomer, the User shall not use any supplied login information relating to theCustomer for accessing InTouch.
4.4 Security and Login
4.4.1 InTouch login credentials comprise three elements:
4.4.1.1 The Customer’s Account Number (6 numerical digits);
4.4.1.2 The User’s (unique within the Customer) username(any alphanumeric combination); and
4.4.1.3 The User’s password (any alphanumeric combination).4.4.2 The use of the login information indicates proof that the Customerconsents to orders and information placed by it or in its name.
4.4.3 The Customer, the Supervisor and the User will use allreasonable endeavours to ensure that the login credentials remainsconfidential.
4.5 InTouch Availability
4.5.1 The Company will not be liable for any losses ordamages resulting from InTouch being unavailable. Whilst the Company endeavoursto provide 24 hours a day access to InTouch, the Company reserves the right tosuspend InTouch operation, temporarily or permanently and without prior notice.
4.5.2 Whilst InTouch is intended to provide 24 hours a dayservice, all orders must be placed on InTouch before 17:15 to qualify for anext working day delivery of the Products.
4.6 Software Renewals
4.6.1 Where the Customer uses the software renewals databaseavailable via the Website, the Customer consents to receiving electroniccommunications from the Company in relation to the renewals database, includingbut not limited to pending renewal opportunities and notifications of newmanufacturers, Products and/or services becoming available.
4.6.2 The Customer acknowledges and agrees that the Companymay take steps to validate users added to the software renewals database atleast once in any 12 month period.
4.6.3 The Company reserves the right to monitor the usage ofthe software renewals database to ensure compliance with the terms andconditions of this Contract.
4.6.4 Should the Company decide, at its sole discretion,that the Customer is in breach of such terms, or, in the Company’s solediscretion, is misusing the software renewals database, the Company maywithdraw and/or amend access immediately and without prior notice.
5. Despatch
5.1 Any date or time quoted for despatch of the Products isto be treated as an estimate only. Despatch may be postponed because ofconditions beyond the Company's reasonable control, and in no event shall theCompany be liable for any damages or penalty for delay in despatch or deliveryof the Products.
5.2 Risk shall pass to the Customer at the time the Productsare handed over to the transportation company.
5.3 At the time of delivery the Customer must check that thequantity of Products matches the quantity set out on the proof of delivery(“POD”) and that the exterior of the Products are in good condition. TheCustomer must then indicate this on the POD and sign the POD accordingly. If anover shipment of the Products has occurred the Customer must also notify theCompany as soon as possible and in any event within 5 working days of thedelivery. The Customer must not sign the POD “unchecked” or “unexamined” or anysuch similar wording.
5.4 A signed POD by or on behalf of the Customer shall beconclusive evidence of delivery and (except to the extent that any damage ordiscrepancy is noted on the POD) that it was received in good order andcondition and accordingly no claims shall be bought in respect of the deliveryclaiming the contrary.
5.5 The Customer must inspect the Products immediately afterdelivery is complete. If any Products are damaged, incorrect or not delivered,the Customer must notify the Company within 5 working days of the delivery orexpected delivery. For the avoidance of doubt, the Customer is still requiredto notify the Company as set out in this clause
5.5 notwithstanding anything noted by the Customer on thePOD. If a POD is required, this must be requested within 14 days of the date ofthe invoice.
5.6 In the event of any Drop Ship delivery, the Customershall ensure that the End User complies with the Customer’s obligations set outabove in clauses 5.3, 5.4 and 5.5.
5.7 The Company may deliver the Products in instalments.Each instalment is treated as a separate delivery.
5.8 With the exception of risk that shall pass in accordancewith clause 5.2, Products will be supplied under DDP Incoterms 2010 where thecountry of destination is inside the EU and will be supplied CIP port/airportcountry of destination Incoterms 2010 to all other countries of destination.
6. Cancellation and Rescheduling
Unless otherwise agreed in writing, any request by theCustomer for cancellation of any order or for the rescheduling of anydeliveries will only be considered by the Company if made at least 12 hoursbefore despatch of the Products, and shall be subject to acceptance by theCompany at the Company’s sole discretion, and subject to a reasonableadministration charge. The Customer hereby agrees to indemnify against allliabilities, costs, expenses, damages and losses (including any direct, indirector consequential losses, loss of profit, (including the cost of labour andmaterials used and overheads incurred, loss of reputation and all interest,penalties and legal and other professional costs and expenses) suffered orincurred by the Company arising out of or in connection with the order and itscancellation or rescheduling.
7. Pricing
7.1 Catalogues, price lists and other advertising literatureor material as used by the Company are intended only as an indication as to theprice and range of the Products offered and no prices, descriptions or otherparticulars contained therein shall be binding on the Company.
7.2 The marketed and official real-time price of theProducts on InTouch shall be confirmed using the InTouch “On-line Check”facility. All other listed prices on InTouch are shown on the understandingthat they are a guideline only.
7.3 All prices are given by the Company at the time of theorder on an EXW Incoterms 2010 basis and the Customer is liable to pay for thetransport, packing and insurance costs.
7.4 All quoted or listed prices are based on the cost to theCompany of supplying the Products to the Customer. While the Company tries toensure that all prices are accurate, errors may occur, if prior to delivery ofthe Products, the Company discovers an error in the price of the Productsordered via InTouch or otherwise, or the price changes as a result ofcircumstances beyond the Company’s control, the Company may change theProduct’s price and such changes shall apply to any purchase order placed withthe Company.
7.5 All prices are represented in Pounds Sterling or Eurosand are exclusive of value added tax and/or any similar taxes. All such taxesare payable by the Customer and will be levied in accordance with UKlegislation in force at the tax-point date.
8. Payment Terms and Retention of Title
8.1 Invoices for Products shall be raised and dated by theCompany on the date of despatch of the Products. Invoices for the Servicesshall be raised and dated by the Company after receipt by the Company of theCustomer’s purchase order or within the Company’s sole discretion. Unless analternative method of payment is advised by the Company to the Customer inwriting, invoices will be payable by the Customer within 30 days from the dateof invoice. The time of payment shall be the essence of the Contract. Paymentswhich are not received in full by the due-date will be considered overdue andremain payable by the Customer together with the interest for late payment andreasonable debt recovery costs. The interest payment will be at a rateequivalent to that set for the purposes of s6 of the Late Payment of CommercialDebts (Interest) Act 1998, calculated on a daily basis from the date of invoiceuntil payment; such interest to be compounded on the first day of each calendarmonth and payable both before and after any judgment (unless the court ordersotherwise).
8.2 The Company reserves the right to charge a surcharge oncredit card transactions (which may exceed the amount charged to the Company bythe credit card companies) by way of a handling or processing charge.
8.3 The Customer must notify the Company in writing within 7days of the date of invoice of any errors within the invoice. Failure willresult in the Company assuming acceptance of the invoice in full.
8.4 The Customer’s credit-limit may be withdrawn or amendedwithout prior notice by the Company. If credit facilities are withdrawn allinvoices shall become immediately payable by the Customer.
8.5 Should credit facilities be provided, the Customerundertakes to notify the Company without delay of any material change in itsfinances, structure, share ownership and/or value of assets which may affectthe Customer’s credit status. In addition to any remedy available at law,failure to report any such changes may result in credit being withdrawn withoutprior notice.
8.6 The Customer does not have the right to set off anymoney claimable from the Company against any sums owing to the Company by theCustomer this includes but is not limited to pass through manufacturer funding.
8.7 If Products are delivered in instalments the Companyshall be entitled to invoice each instalment upon delivery thereof.
8.8 The Company will claim a lien on any Customer propertyin the Company’s possession if the Customer is in debt to the Company.
8.9 Until the Customer pays all debts to the Company:
8.9.1 all Products that have been purchased by the Customerfrom the Company will remain the property of the Company;
8.9.2 all Products that have been purchased by the Customerfrom the Company must be stored so that they are clearly identifiable as theproperty of the Company; and
8.9.3 the Customer must properly protect and insure all suchProducts and store them separately to any and all other products.
8.10 The Customer shall have the right to sell the Productsin the ordinary course of business unless, or until:
8.10.1 the Customer becomes or is deemed to be insolvent inaccordance with clause 15.2 herein if the aforementioned circumstance occursthen the right to sell the Products will be revoked with immediate effect andwithout the Company being required to give notice to the Customer; or
8.10.2 the Company revokes the right to sell Products in theordinary course of business by informing the Customer in writing (including viaemail or fax), which revocation shall have immediate effect.
8.11 If the Customer’s right to use and sell the Products inthe ordinary course of business ends, the Customer must permit the Company toreclaim the Products.
8.12 The Customer agrees to give the Company permission toenter any premises where the Products are stored:
8.12.1 at any time to inspect them; and
8.12.2 to remove them, using reasonable force if necessary,after the Customer’s right to use or sell them has finished.
8.13 Despite the Company’s retention of title to theProducts, the Company reserves the right to take legal proceedings to recoverthe cost of Products supplied should the Customer not make full payment by theinvoice due date.
8.14 The Customer is not entitled to pledge or in any waycharge by way of security for any indebtedness any of the Products which remainthe property of the Company. Should the Customer do so, all monies owing by theCustomer to the Company shall without prejudice to any other rights or remediesof the Company immediately become due and payable.
8.15 The Company reserves the right to stop supplyingProducts and Services (as applicable) to the Customer at any time.
9. Specification of Products
9.1 The Company will not be liable in respect of any loss ordamage caused by or resulting from any variation for whatsoever reason in themanufacturer’s specifications or technical data of the Products.
9.2 The Company will not be responsible for any loss ordamage resulting from curtailment or cessation of supply of Products followingany variation as described in clause 9.1 of this Contract.
9.3 The Company will use its reasonable endeavours to advisethe Customer of any such impending variation as soon as it receives any suchnotice thereof from the manufacturer.
9.4 Unless otherwise agreed, the Products are supplied inaccordance with the manufacturer’s standard specifications as these may beimproved, substituted or modified.
9.5 The Company reserves the right to increase its quoted orlisted prices, or to charge accordingly in respect of any orders accepted forProducts of non-standard specifications and in no circumstances will theCompany consider cancellation of such orders or the return of such orders.
10. Intellectual Property
10.1 The Customer hereby acknowledges that any proprietaryrights used on or in relation to the Products, InTouch or any Third PartySoftware supplied hereunder, including, but not limited to, any title orownership rights, patent rights, copyrights and trade secret rights, shall atall times and for all purposes vest and remain vested in the Company or theThird Party Software owner.
10.2 The Customer hereby acknowledges that it is its soleresponsibility to comply with any terms and conditions of licence attaching toThird Party Software supplied and delivered by the Company (including if sorequired the execution and return of a Third Party Software licence). TheCustomer is hereby notified that failure to comply with such terms andconditions could result in the Customer being refused a software licence orhaving the same revoked by the proprietary owner. The Customer further agreesto indemnify the Company in respect of any costs, charges or expenses incurredby the Company as the result of any breach by the Customer of such terms andconditions.
10.3 No title or ownership of software Products or any thirdparty software licensed to the Customer under this Contract is transferred tothe Customer under any circumstances.
11. Confidentiality
11.1 The Customer shall safeguard and (save as may berequired by law) keep confidential all information entrusted to it by theCompany which is not in the public domain and take all reasonable precautionsto safeguard the Company’s confidential information.
11.2 Only those members of staff who need to be aware ofconfidential information in order for the Customer to fulfil its obligationsunder this Contract shall be entitled to access to the confidentialinformation.
11.3 All confidential information passed to the Customer bythe Company shall remain the exclusive property of the Company and the Customerundertakes to return such information at the request of the Company or, at thelatest, upon termination or expiration of this Contract.
11.4 The communication of any InTouch login credentials tothird parties is prohibited and will result in immediate withdrawal of the useof InTouch and the possible instigation of further legal proceedings.
12. Returns
12.1 The Company reserves the right to levy an administrationcharge in respect of the rotation of Products and returns.
12.2 Returns must be made subject to the following:
12.2.1 prior authorisation having been obtained via theCompany’s after sales management tool or such other method as the Company mayadvise. Such prior authorisation shall be given at the Company's solediscretion;
12.2.2 the request for the return must be made within 14days of the date of invoice
12.2.3 Products in issue must be returned within 7 days ofthe authority to return;
12.2.4 the Products must be properly packed;
12.2.5 the Products must be in a saleable condition;
12.2.6 the Products must be accompanied by a list of theProducts; and
12.2.7 the Products must still be covered by warranty inaccordance with clause 13 below.
12.3 The Company reserves the right to reject any Productswhich do not comply with the conditions set out in clause 12.2 of thisContract.
12.4 If the Company nevertheless agrees to accept anyProducts returned which are not in a saleable condition, the Company reservesthe right to charge the cost to the Customer of bringing the Products into asaleable condition.
13. Warranty
13.1 The Customer warrants that it will notify the Companyif its VAT registration is amended in any way.
13.2 Subject to any Authorised Reseller Programmes, theCompany warrants that it has good title to or licence to supply all Products tothe Customer.
13.3 If any part of the hardware Products should provedefective in materials or workmanship under normal operation or service, suchProducts will be repaired or replaced only in accordance with any warrantycover or terms as provided by the manufacturer of the Products PROVIDED THAT nounauthorised modifications to the Product or to the system of which the Productforms part have taken place. The Company is not responsible for the cost oflabour or other expenses incurred in repairing defective or non-conformingparts.
13.4 The Company reserves the right to test all Productsreturned as faulty and to return to the Customer (at the Customer’s expense)any Products found not to be faulty. The Company also reserves the right tolevy an additional reasonable charge to cover the cost of such testing.
13.5 Where the Company and/or manufacturer has expressed inwriting that the Products qualify for an advance replacement under the terms ofthe Product warranty, such advance replacements shall be provided subject to:
13.5.1 compliance with any warranty terms as provided by themanufacturer of the Products; and
13.5.2 defective Products must still be covered by warrantyin accordance with this clause 13; and
13.5.3 the defective Products must have been purchased fromthe Company; and
13.5.4 compliance with clauses 12.1, 12.2.1, 12.2.4, 12.2.6and 12.2.7 above.
13.6 All software Products supplied hereunder are supplied“as is". The sole obligation of the Company in connection with the supplyof software Products is to use all reasonable endeavours to obtain and supply acorrected version from the manufacturer concerned in the event that suchsoftware Product should fail to conform to product description PROVIDED ALWAYSTHAT the Customer notifies the Company of any such non-conformity within 90days of the date of delivery of the applicable software Product.
13.7 The Company cannot accept any liability in relation toany losses, costs or expenses which arise through any difficultly caused overdate changes.
13.8 If the Products are rejected by the Customer as notbeing in accordance with the Customer's order pursuant to clause 13.3 or 13.6of these terms and conditions, the Company will only accept the return of suchProducts as provided in clause 12 of these terms and conditions. The Companywill not consider any claim for compensation, indemnity or refund underliability unless it has been established or agreed with the manufacturer and,where applicable, the insurance company.
13.9 The Company further warrants that the Managed Servicesshall be provided with reasonable skill and care.
13.10 Except as specifically set out in this clause 13, theCompany disclaims and excludes all other warranties, whether express orimplied, by statute or otherwise, including but not limited to the warrantiesof description, design, satisfactory quality and fitness for a particularpurpose, or arising from any previous course of dealing, usage or tradepractice.
14. Indemnities and Limits of Liability
14.1 This clause sets out the entire financial liability ofthe Company (including any liability for the acts or omissions of the Company’semployees, agents and sub-contractors) to the Customer in respect of:
14.1.1 any breach of this Contract;
14.1.2 any use made or resale of the Products by theCustomer, or of any product incorporating any of the Products; and
14.1.3 any representation, statement or tortious act oromission (including negligence) arising under or in connection with thisContract.
14.2 Nothing in this Contract shall limit or exclude theliability of either party for:
14.2.1 death or personal injury resulting from negligence;or
14.2.2 fraud or fraudulent misrepresentation; or
14.2.3 breach of the terms implied by section 12 of the Saleof Goods Act 1979.
14.3 Without prejudice to clause 14.2, the Company shall notbe liable to the Customer whether in contract, tort (including negligence) orrestitution, or for breach of statutory duty or misrepresentation, orotherwise, for any:
14.3.1 loss of profit; or
14.3.2 loss of goodwill; or
14.3.3 loss of business; or
14.3.4 loss of business opportunity; or
14.3.5 loss of anticipated saving; or
14.3.6 loss or corruption of data or information; or
14.3.7 special, indirect or consequential damage; or
14.3.8 loss, additional payments, damage or inconveniencethe Customer or any End-User may suffer arising from the suspension ortermination of any Authorised Reseller Programme suffered by the Customer thatarises under or in connection with this Contract.
14.4 Without prejudice to clause 14.2 the Company’s totalliability arising under or in connection with this Contract, whether arising incontract, tort (including negligence) or restitution, or for breach ofstatutory duty or misrepresentation, or otherwise, shall be limited to£100,000.
14.5 The Customer shall indemnify the Company against allliabilities, costs, expenses, damages and losses (including any direct,indirect or consequential losses, loss of profit, loss of reputation and allinterest, penalties and legal and other professional costs and expenses)suffered or incurred by the Company arising out of or in connection with any:
14.5.1 breach of the warranty OR warranties contained inthis Contract;
14.5.2 Customer's breach or negligent performance ornonperformance of this Contract;
14.5.3 claim made against the Company by a third partyarising out of or in connection with the provision of the Services OR thesupply of the Products, to the extent that such claim arises out of the breach,negligent performance or failure or delay in performance of this contract bythe Customer, its employees, agents or subcontractors;
14.5.4 claim made against the Company by a third party fordeath, personal injury or damage to property arising out of or in connectionwith defective Products, to the extent that the defect in the Products isattributable to the acts or omissions of the Customer, its employees, agents orsubcontractors;
14.5.5 claims made against the Company by third partieswhich arises from any Company performance or non-performance pursuant to theinstructions of the Customer or its authorised representative;
14.5.6 claim arising out of or in connection with any breachof clause 5.6 ;
14.5.7 any breach of clause 4.3.2 by the Customer, Supervisorand / or User; and
14.5.8 any breach of clause 22 by the Customer (includingany liability that the Customer has to the Company by virtue of the acts oromissions of any Associated Person under clause 22.3). This indemnity shallapply whether or not the Company has been negligent or at fault.
15. Termination
15.1 The Company may terminate this Agreement at any timewithout any liability to the Customer.
15.2 This Contract may be terminated forthwith by notice inwriting:
15.2.1 if either party fails to perform any of itsobligations under this Contract and such failure continues for a period of 14days after written notice thereof by the other party; or
15.2.2 by the Company if the Customer fails to pay any sumsdue hereunder by the due-date notwithstanding the provisions for late paymentas stated in clause 8.1 of this Contract or if the Customer becomes insolventor the Company deems it to be insolvent.
15.3 The Company will deem the Customer insolvent if:
15.3.1 the Customer is unable to pay debts as they fall due;or
15.3.2 the Customer or any item of the Customer’s propertybecomes the subject of:
15.3.2.1 any formal insolvency procedure such asreceivership, liquidation, administration, voluntary arrangements (including amoratorium) or bankruptcy; or
15.3.2.2 any application or proposal for any formalinsolvency procedure; or
15.3.2.3 any application, procedure or proposal overseaswith similar effect or purpose.
15.4 Any termination of the Contract under clause 15 ofthese terms and conditions shall be without prejudice to any other rights orremedies a party might be entitled to and shall not affect any accrued rightsor liabilities of either party.
15.5 The confidentiality obligations under 11 shall survivetermination of this Contract.
16. Third Party Providing the Service
16.1 Our Third Party Service Providers will provide theServices to the Customer and End User, as appropriate, and the Customeracknowledges that the Third Party Service Provider is a third party, which theCompany does not control. The Company makes no representation, guarantee orwarranty about the Third Party Service Provider’s. 16.2 In the event that theThird Party Service Provider terminates any Authorised Reseller Programme withthe Customer, the Company may terminate or temporarily suspend the provision ofthe Services and the Company will have no further obligation or liability tothe Customer or the End User in respect of the Service or the Contract. Anydelay by the Company in suspending or terminating the provision of the Servicesshall not constitute a waiver under this provision.
17. Insolvency of a Third Party Service Provider
17.1 If a Third Party Service Provider enters into any typeof insolvency, administration, receivership, liquidation, creditor arrangementor becomes the subject of winding up proceedings (“Insolvency Event”) theCompany may terminate or temporarily suspend the provision of the Services.
17.2 If the Company suspends the provision of the Servicesit shall use reasonable endeavours to engage a new service provider onmaterially similar terms in a reasonable period. If required, the Customeragrees to pay an additional charge to the Company in respect of the new serviceprovider’s provision of the Services.
17.3 The Customer recognises that the Company will be anordinary creditor of the Third Party Service Provider if an Insolvency Eventoccurs. The Company will use reasonable endeavours to obtain repayment of anyfees paid by the Customer in respect of Services not yet performed by the ThirdParty Service Providers, but the Company shall not be liable to pay those feesto the Customer or End User if they are not repaid by the Third Party ServiceProvider or its liquidator.
17.4 Except where such liability may not be limited by lawthe Company shall not be held responsible for any loss, additional payments,damage or inconvenience the Customer or any End User may suffer from suspensionor termination of the Services in accordance with this clause.
18. Insolvency as a Force Majeure Event
18.1 The Company shall not be in breach of the Contract, norliable for any failure or delay in performance of any obligations under theContract (and, subject to clause
18.2, the time for performance of the obligations shall beextended accordingly) arising from or attributable acts, events, omissions oraccidents beyond its reasonable control, including nonperformance by suppliersor Third Party Service Providers or Third Party Service Providers undergoing anInsolvency Event (other than by companies in the same group as the partyseeking to rely on this clause).
18.2 If an event envisaged by clause 18.1 prevails for acontinuous period of more than one month, the Company may terminate theServices or the Contract by giving 14 days' written notice to the Customer. Onthe expiry of this notice period, this Service or Contract shall terminate.Following termination, the Company will have no further obligation or liabilityto the Customer or the End User in respect of the Service or the Contract.
19. Export and/or Re-Export Limitation
19.1 The Customer acknowledges and agrees that the hardwareand software Products, and technology subject to this Contract, are subject tothe export control laws and regulations of the United States, EU and Nationallegislation. The Customer will comply with all these laws and regulations. Thisincludes but is not limited to the Export Administration Regulations("EAR"), and sanctions regimes of the U.S. Department of Treasury,Office of Foreign Asset Controls. The Customer will comply with all these lawsand regulations.
19.2 The Customer shall not, without prior appropriategovernment authorisation, export, re-export, or transfer any hardware orsoftware Products, or technology subject to this Contract, either directly orindirectly, to any country subject to a U.S. trade embargo or to any residentor national of any such country, or to any person or entity listed on the"Entity List" or "Denied Persons List" maintained by theU.S. Department of Commerce or the list of "Specifically DesignatedNationals and Blocked Persons" maintained by the U.S. Department of Treasuryor any other comparable European or local regulation.
19.3 In addition, any hardware or software Products, ortechnology subject to this Contract may not be exported, re-exported, ortransferred to an enduser engaged in activities related to weapons of massdestruction. Such activities include but are not necessarily limited toactivities related to: (1) the design, development, production, or use ofnuclear materials, nuclear facilities, or nuclear weapons; (2) the design,development, production, or use of missiles or support of missiles projects;and (3) the design, development, production, or use of chemical or biologicalweapons.
20. Data Protection
20.1 The parties are committed to respecting the privacyrights of individuals. To the extent that a party collects and transfers to theother party any personal data, the receiving party will comply with relevantlaws and regulations related to this collection and transfer and agrees also tocomply with relevant laws and regulations related to the storage, maintenanceand processing of such personal data.
20.2 Customer acknowledges that it has read and understoodthe Company’s Privacy Statement and agrees at all times to comply with theCompany’s Privacy Statement.
20.3 For the purpose of verifying the Customer’s financialstanding the Company reserves the right to obtain information on the Customer’screditworthiness from credit agencies or credit insurers and to report data tothem. The Customer expressly consents and agrees that the Company may make suchenquiries and searches and obtain such references as it considers necessaryfrom credit reference agency or credit insurer (which will keep a record of anysearch made) and may disclose the results of those enquiries, searches andreferences and any information given by the Customer to any credit referenceagency or to any other company in any corporate group of which it is a member.
21. Projects
21.1 The Company may grant special bids and/or, specialprices and/or special conditions for the execution of Projects subject to the permissionof the respective manufacturer and the delivery to the qualifying End Usernamed in the offer. 21.2 The Customer undertakes to: 21.2.1 comply with anyterms advised by the Company; and 21.2.2 comply with the respectivemanufacturer terms, and 21.2.3 to hold ready all end user proofs of deliverysuch as delivery notes and invoices (blackening of irrelevant data is permittedfor data protection compliance purposes) for the previous twelve months and toprovide them on request to the Company and/or the manufacturer; and 21.2.4 sellthe Products only to the qualifying End User. 21.3 In the event of refusal ofthe permission by the manufacturer or noncompliance with any or all of theterms of clause 21.2, the Company reserves the right to invoice the Customerfor the difference between the approved special price and the regular purchaseprice of the Products. Such an invoice will become payable immediately.
22. Anti-Bribery
22.1 The Customer acknowledges and agrees that the Companywill not tolerate bribery in any form in connection with the conduct of itsbusiness.
22.2 The Customer shall:
22.2.1 comply with all applicable laws, statutes,regulations, codes and guidance relating to anti-bribery and anti-corruption("Antibribery Laws"), including without limitation the Bribery Act;
22.2.2 not engage in any activity, practice or conduct whichwould constitute an offence under the Bribery Act 2010 if such activity,practice or conduct had been carried out in the United Kingdom;
22.2.3 comply with the Company’s anti-bribery policy asprovided by the Company to the Customer from time to time and any relevantindustry codes in each case as updated by the Company or the relevant industrybody from time to time ("Anti-bribery Policies");
22.2.4 not do, or omit to do, any act that will cause theCompany to be in breach of the Anti-bribery Laws or the Anti-bribery Policies;
22.2.5 promptly report to the Company any request or demandfor any undue financial or other advantage of any kind received by the Customerin connection with the performance of this Agreement;
22.2.6 maintain throughout the term of this Agreement itsown antibribery policies and procedures including without limitation adequateprocedures to ensure compliance with the Anti-Bribery Laws, the Anti-briberyPolicies and this clause 22.
22.2.7 shall provide a copy of such policies and proceduresto the Company on request, and shall enforce such policies and procedures whereappropriate; and
22.2.8 within 7 days of receipt of a request from theCompany, certify to the Company in writing its compliance with this clause 22.
22.3 In the event that the Customer sub-contracts theprovision of any element of this Contract to any person, or receives anyservices in connection with its performance of this Contract from any person,(each such person being an "Associate Person"), it shall impose uponsuch Associated Person anti-bribery obligations that are no less onerous thanthose imposed upon the Customer in this clause 22. The Customer shall be liableto the Company for the acts and omissions of each Associated Person in relationto compliance with such anti-bribery obligations (or, where the Customer hasfailed to impose such obligations, the obligations that the Associated Personwould be under if the Customer had complied with the obligation under thisclause) as if such acts or omissions were those of the Customer itself.
22.4 Breach of this clause 22 shall be deemed a materialbreach of this Contract.
22.5 For the purpose of this clause 22, the meaning ofadequate procedures and foreign public official and whether a person isassociated with another person shall be determined in accordance with section7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of thatAct), sections 6(5) and 6(6) of that Act and section 8 of that Actrespectively.
23. Contract
23.1 The headings in this Contract are for ease of referenceonly and shall not affect its interpretation or construction.
23.2 No forbearance, delay or indulgence by either party inenforcing its respective rights shall prejudice or restrict the rights of thatparty and no waiver of any such rights or of any breach of any contractualterms shall be deemed to be a waiver of any other right or any later breach.
23.3 This Contract constitutes the entire agreement betweenthe parties and supersedes and extinguishes all previous drafts, agreements,arrangements and understandings between them, whether written or oral, relatingto this subject matter.
23.4 Each party acknowledges that in entering into thisContract it does not rely on, and shall have no remedies in respect of, anyrepresentation or warranty (whether made innocently or negligently) that is notset out in this Contract.
23.5 The Customer agrees not to assign any of itscontractual rights herein without the prior written consent of the Company.
23.6 If any of these terms of this Contract areunenforceable as drafted it will not affect the enforceability of the otherterms and if it would be enforceable if amended, it will be treated as soamended.
23.7 Neither party shall be liable to the other for anydelay in or failure to perform its obligations hereunder (other than a paymentof money) where such delay or failure results from force majeure including anyact of God, fire, terrorism, explosion, accident, industrial dispute or anycause beyond its reasonable control.
23.8 Any documents or notices given hereunder by eitherparty must be in writing and may be delivered personally or by first-class postor by fax to the other’s registered address or principle place of business. Thenotice period for posted documents will be deemed to have been given 2 workingdays after the date of posting. All such notices must be signed.
23.9 This Contract shall be construed in accordance with thelaws of England and Wales and the jurisdiction of which shall be the courts ofEngland and Wales.
23.10 No contract will create any right enforceable byvirtue of the Contracts (Rights of Third Parties) Act 1999 by any person notidentified as the Company or the Customer.
23.11 Customer agrees that it will not use the Products forits own purposes and shall only purchase Products from the Company that it willsell on as a reseller. Customer shall indemnify the Company against allliabilities, costs, expenses, damages and losses (including any direct,indirect or consequential losses, loss of profit, (including the cost of labourand materials used and overheads incurred, loss of reputation and all interest,penalties and legal and other professional costs and expenses) suffered orincurred by the Company arising out of or in connection with any loss sufferedby the Company as a result of Customer’s failure to comply with this clause.
23.12 Customer hereby confirms that they understand andaccept that telephone calls to and from the Company may be recorded.
23.13 Where Customer requests a credit account Customeraccepts and acknowledges that the granting of interest free credit by Companyis of commercial value to the Customer and that this credit is subject tocompliance with the above terms the terms of this Contract.
&am