Terms & Conditions of Sale
RECTIALS
These Terms and Conditions govern the supply to the Customer of
Absolute Network Solutions Limited Service/Products. OPERATIVE PART
1.
INTRODUCTION
1.1
In these
terms and conditions the following terms shall, unless the
context otherwise requires have the meanings set out below:-
“Contract” means any agreement between Absolute Network
Solutions Limited and the customer for the supply of products
which expressly or by implication incorporate these terms and
conditions
“Customer” means the party named in the invoice
“Delivery Address” means the address as the point of delivery as
notified by Absolute Network Solutions Limited to the customer
“Delivery date” means the delivery dated as notified by Absolute
Network Solutions Limited to the customer
“Hardware” means the hardware components of Absolute Network
Solutions Limited products including all ancillary equipment,
spares, supplies, and related documentation
“Invoice” means the invoice prepared by Absolute Network
Solutions Limited and issued to the customer
“Licence agreement” means the terms and conditions governing the
supply of software, whether Absolute Network Solutions Limited
own software or third party software which Absolute Network
Solutions Limited is authorised to supply to the customer
“Price” means the total price for the products as specified in
the invoice
“Products” means Absolute Network Solutions Limited products
including but not limited to any configuration of hardware
and/or software. All services offered by Absolute Network
Solutions Limited, including maintenance and support, training
and education, and consultancy services are not products to
which these terms and conditions apply, but are supplied on the
terms and conditions contained in Absolute Network Solutions
Limited applicable agreements
“Absolute Network Solutions Limited” means Absolute Network
Solutions Limited a company Number 4089118 registered in England
who’s head office is at Unit 19, Elm Court , Ellesmere Port CH65
4LY..
“Software” means any operating system, utility or application
software supplied by Absolute Network Solutions Limited in
machine readable object, printed, interpreted or any other form
whatsoever and either incorporated with hardware or separately
supplied, including related documentation
1.2
This contract constitutes the entire agreement between the
parties with regard to the supply to the customer of products.
Each party confirms that it has not relied upon any
representation nor recorded in this document including it to
enter into the contract. No variation of these terms and
conditions will be valid unless confirmed in writing by
authorised signatories on or after the date of contract.
1.3
If these terms and conditions are incorporated by reference into
any other form of agreement between Absolute Network Solutions
Limited and the customer and that other agreement is currently
in effect at the time the contract is made, so that the contract
constitutes a contract for the purposes of that agreement, the
terms and conditions of the agreement will prevail in the event,
but only to the extent, of any conflict of meaning with these
terms and conditions
2.1
Applicable
taxes, import duties and other duties are not included in the
price and will be charged in addition unless agreed otherwise.
Value Added Tax will be charged at the appropriate rate at the
time of invoice.
2.2
Payment of the price or any part payment thereof and any other
charges due under the contract must be made upon receipt of the
invoice (unless otherwise specified in the invoice). The
contents of the invoice, including inter alia the price shall,
in the absence of a manifest error, be deemed to have been
accepted by the customer unless the customer has notified
Absolute Network Solutions Limited in writing within seven days
of the date of the invoice that such contents are disputed.
Unless otherwise agreed, the payment shall be made in pounds
sterling, without set-off, deduction or withholding. All
payments which are not received within 14 days of the date of
invoice shall be considered overdue and Absolute Network
Solutions Limited reserves the right to charge interest on a
daily basis at ten percent per annum above the RBS Plc base
rate.
4.
TITLE
4.1
Title to the products is vested in Absolute Network Solutions
Limited. Only when the price, all taxes and other charges due
under the contract have been paid in full, will title to any
hardware supplied under the contract pass to the customer.
4.2
No title or ownership of any software supplied under the
contract and licensed to the customer under any license
agreement is transferred to the customer
4.3
Until such time as title in the products passes to the customer,
the customer shall hold the products as Absolute Network
Solutions Limited fiduciary agent and bailee, and shall keep the
products separate from the customer and third parties and
properly stored, protected and insured and identified as
Absolute Network Solutions Limited 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 Absolute
Network Solutions Limited 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 property of the customer and third parties
and in the case of tangible proceeds properly stored, protected
and insured.
4.4
Until such time as title in the products passes to the customer
(and provided the products are still in existence and have not
been resold) Absolute Network Solutions Limited shall be
entitles at any time to require the customer to deliver up the
products to Absolute Network Solutions Limited 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.
4.5
The customer shall not be entitled to pledge or in any way
charge by way of security or any indebtedness any of the
products which remain the property of Absolute Network Solutions
Limited but if the customer does so all monies owing by the
customer to Absolute Network Solutions Limited shall (without
prejudice to any other right or remedy of Absolute Network
Solutions Limited) forthwith become due and payable
5.
DELIVERY
5.1
Delivery will be certified at the delivery address.
5.2
If appropriate the customer will make the delivery address
available for inspection by appropriate Absolute Network
Solutions Limited staff at an agreed time during a period of 60
days before the delivery date if so required by Absolute Network
Solutions Limited.
5.3
If appropriate the customer will furnish the necessary labour
(If Absolute Network Solutions Limited so requires under
Absolute Network Solutions Limited direction) for taking any
hardware supplied under the contract into its designated
operation point, unpacking it and placing it in the desired
location.
5.4
Delivery date is approximate only and not of any contractual
effect. While Absolute Network Solutions Limited will use all
reasonable endeavours to meet the delivery date it will not be
liable for any loss or damage (including loss of use, loss of
contract or loss of profits) incurred by the customer as a
result of any failure to deliver on such particular date.
5.5
Each delivery of products under the contract will be deemed to
constitute a separate enforceable contract to which these terms
and conditions will apply.
5.6
If the customer refuses or fails to take delivery of products
tendered in accordance with the contract, delivery will
nevertheless be deemed to have taken place for the purpose of
Absolute Network Solutions Limited rights to payment and
Absolute Network Solutions Limited will be entitled to store the
products at the customers risk and expense, including all
transportation charges.
5.7
The customer shall inspect the products on delivery and shall
within 48 hours of delivery notify Absolute Network Solutions
Limited of any alleged shortage in quantity, damage or failure
to comply with description or sample. If the customer fails to
notify Absolute Network Solutions Limited within such time the
products shall be conclusively presumed to be in accordance with
the contract.
5.8
If the products are not in accordance with the contract the sole
remedy of the customer shall be limited to Absolute Network
Solutions Limited making good any shortage by replacing such
products or if Absolute Network Solutions Limited shall elect by
refunding a proportionate part of the invoice.
6.1
Absolute
Network Solutions Limited reserves the right to make
improvements, substitutions or modifications to any part of the
products at any time prior to delivery, provided that such
improvements, substitutions or modifications will not materially
affect the performance of such products.
6.2
Absolute Network Solutions Limited further reserves the right to
change the delivery date and increase the price of the products
at any time prior to delivery to reflect any increase in the
cost to Absolute Network Solutions Limited which is due to any
factor beyond Absolute Network Solutions Limited control. |
6.3
No order that has been accepted by Absolute Network Solutions
Limited may be cancelled by the customer except with the prior
written consent of Absolute Network Solutions Limited and the
customer shall indemnify Absolute Network Solutions Limited in
full against all loss (including loss of profit), costs
(including cost of all labour and materials used), damages,
charges and expenses incurred by Absolute Network Solutions
Limited as a result of such cancellation.
7.1
Where installation or training is not included in the price and
not ordered by the customer, the customer will be solely
responsible for this, and Absolute Network Solutions Limited
disclaims all liability in this connection.
7.2
Where the hardware includes data communications equipment and
data transmission speeds are given in relation to any item of
hardware, these are at all times subject to any conditions of
the applicable telecommunications utility company relating to
the use of the relevant data communications hardware at the
speeds indicated and the capability of any of that company’s
equipment to which the hardware is linked.
7.3
Where the hardware is installed or used in conjunction with
other products not supplied by Absolute Network Solutions
Limited, the customer will be solely responsible for ensuring
that the products are compatible with such other products, and
Absolute Network Solutions Limited disclaims all liability in
this connection.
7.4
Absolute Network Solutions Limited warrants that it has good
title to or the legal right to supply all hardware supplied to
the customer. Hardware is warranted solely in accordance with
any manufacturer’s warranty supplied.
7.5
Where any product is to be returned to Absolute Network
Solutions Limited, the expense, responsibility and risk of
delivering the product to Absolute Network Solutions Limited
shall be borne by the customer. Absolute Network Solutions
Limited shall assume the expense and responsibility of
redelivering the product to the customer. In any case where
Absolute Network Solutions Limited reasonably determines that
the hardware is not defective, the customer will pay Absolute
Network Solutions Limited all costs of handling, transportation
and repairs at Absolute Network Solutions Limited then
prevailing rate.
7.6
The stated warranties apply only to the customer and not the
initial end user of the hardware and are contingent upon proper
treatment and use of the products with no unauthorised
modifications and maintenance, at a safe and suitable premises.
7.7
The supply of hardware to the customer does not convey any
ownership or licence to exploit any of the proprietary rights of
Absolute Network Solutions Limited in the hardware. Any such
rights granted to the customer by Absolute Network Solutions
Limited will be granted only subject to a separate restrictive,
non-transferable, non-exclusive license agreement supplied by
Absolute Network Solutions Limited. All operating instructions,
manuals and other documentation referencing the hardware and
supplied by Absolute Network Solutions Limited are subject to
copyright and shall not be copied or disclosed to any third
party without the prior express written consent of Absolute
Network Solutions Limited
8.1
Copyright
subsists in all software whether it is Absolute Network
Solutions Limited proprietary software or software supplied by
Absolute Network Solutions Limited under licence. All software
is supplied to the customer only under the terms ands conditions
of the applicable licence agreement (whether is has been signed
and/or returned to Absolute Network Solutions Limited or not).
No part of the software may be copied, reproduced or utilised in
any form by any means without the prior written consent of
Absolute Network Solutions Limited.
8.2
It is the sole responsibility of the customer to comply with all
of the terms and conditions of any licence agreement, and the
customer is hereby notified that any failure to comply with such
terms and conditions may result in the revocation of such
licence agreement.
8.3
Software is warranted in accordance with the terms of any
licence agreement governing its supply
9.1
Absolute
Network Solutions Limited will indemnify the customer for direct
physical injury or death caused solely either by defects in the
products or by negligence of its employees acting within the
course of their employment and the scope of their authority.
9.2
Absolute Network Solutions Limited will indemnify the customer
for direct damage to property caused solely either by defects in
the products or by the negligence of its employees acting within
the course of their employment and the scope of their authority.
The total liability of Absolute Network Solutions Limited under
this sub-clause will be limited to £250,000 for any one event or
series of connected events.
9.3
Except as expressly stated in this clause and elsewhere in these
terms and conditions any liability of Absolute Network Solutions
Limited for breach of contract will not exceed, in the aggregate
of damages, costs, fees and expenses capable of being awarded to
the customer, the price.
9.4
Except as expressly stated in these terms and conditions
Absolute Network Solutions Limited disclaims all liability to
the customer in connection with Absolute Network Solutions
Limited performance of this contract or the customers use of the
products and in no event will Absolute Network Solutions Limited
be liable to the customer for special, indirect or consequential
damages including but not limited to loss of profits or arising
from loss of data or unfitness for use purposes.
10.1
Notwithstanding any other provision hereunder some or all of the
products may be delivered subject to Absolute Network Solutions
Limited or its suppliers obtaining the required export licence
or other authorisation from the United Kingdom Government.
Regardless of any disclosure made by the customer to Absolute
Network Solutions Limited of any ultimate destination of any
products, the customer hereby agrees not to re-export, transmit,
transfer or engage in or permit oral exchanges or visual
inspections of, whether directly or indirectly, any of the
products to any other party without first obtaining the required
export licence or other authorisation from the United States
Department of Commerce or other agency or department of the
United Kingdom Government or from the United Kingdom Government.
11.1
Each party shall treat as confidential all information obtained
from the other pursuant to the contract and shall not divulge
such information to any person (except to such party’s own
employees and then only to those employees who need to know the
same) without the other party’s prior written consent provided
that this clause shall not extend to negotiations leading to the
contract, which is already public knowledge or becomes so at a
future date (otherwise than as a result of a breach of this
clause). Each party shall ensure that its employees are aware of
and comply with the provisions of this clause. If Absolute
Network Solutions Limited shall appoint any sub-contractor then
it may disclose confidential information to such sub-contractor
subject to such sub-contractor giving Absolute Network Solutions
Limited an undertaking in similar terms to the provisions of
this clause. The foregoing obligations as to confidentiality
shall survive any termination of contract.
12.1
Absolute
Network Solutions Limited shall not be liable for failure to
perform its obligations in the event such performance is
prevented or hindered by reasons of force majeure. Force majeure
shall be deemed to mean all causes beyond the reasonable control
of Absolute Network Solutions Limited (including without
prejudice to the generality of the foregoing any delays arising
from the act, omission, or default of any of Absolute Network
Solutions Limited suppliers or sub-contractors), fires or
industrial disputes.
13.1
When
computer equipment is connected to a public network, ie a
switchboard or telephone network, certain regulations of the
telecommunications provider apply. It is the sole responsibility
of the customer to ensure compliance with all such regulations
14.1
The products
are designed for standard commercial use and are not intended to
be installed or used in hazardous or life-threatening
environments or for potentially life-threatening applications,
including but not limited to environments or applications
involving safety critical systems in the nuclear industry or the
control of aircraft in the air. The customer undertakes not to
use or supply the products for any of these purposes and agrees
to indemnify and hold Absolute Network Solutions Limited
harmless from and against all liabilities and related costs
arising out of the use of any of the products for any of these
purposes.
15.1
The customer
shall not assign its rights or obligations under the contract
except with the prior written consent of Absolute Network
Solutions Limited.
16.1
Failure by
either party any time to enforce any of the provisions of the
contract shall not be construed as a waiver by that party of any
such provisions nor in any way affect the validity of the
contract.
17.1
In the event
that any or any part of the contract shall be determined
invalid, unlawful or unenforceable to any extent, such term,
condition or provision shall be severable from the remaining
terms, conditions and provisions which shall continue to be
valid and enforceable to the fullest extent permitted by law.
18.1
The contract
shall be subject to and interpreted in accordance with English
law and the parties hereby irrevocably submit to the exclusive
jurisdiction of the English Courts in all matters arising out of
the contract.
19.1
Any notice
to be served by either party pursuant to the contract is to be
sent by registered mail to that other party’s address as
specified in the invoice. |
