In these ‘Terms & Conditions” the following expressions shall have the following meanings:
“Customer” means the person, firm or company with whom the Contract of sale is made by the Company
“Company” means Zeetta Networks Limited and also where the context permits its assigns and any sub-contractor of the said Company
“Contract” means this Contract of Sale, which is between the Company and the Customer and under which the Products are to be provided to the Customer
‘’Product” means the Software and Hardware provided by Company
“Services” means the Technical, Training and Professional Services provided by Company
“Business Day” means every day excluding Saturday, Sunday and Bank Holidays.
2.1 All orders placed on the Company are subject to these express terms and conditions only. It is agreed that these terms and conditions prevail over the Customers terms and conditions. These terms and conditions shall be deemed to be incorporated in and shall supersede all communications including correspondence, orders and letters between the parties, irrespective of dates. These terms and conditions shall continue to apply at all times, unless expressly varied in writing and signed by a Director on behalf of the Company.
2.2 Any concessions made or latitude allowed by the Company to the Customer shall not affect the rights of the Company under the Contract. If in any particular case any of these Conditions shall be held to be invalid by a court the remaining Conditions in this Contract shall continue in full force and effect.
3 OBLIGATION TO PROVIDE
PRODUCTS & SERVICES
All orders placed by the Customer with the Company for Products shall constitute an offer to the Company under these terms and conditions subject to acceptance of the order for Products by the Company’s authorised representative. A quotation for Products shall not constitute an acceptance by the Company.
4 TERMS OF PAYMENT
4.1 The price quoted by the Company for the Product is applicable at the time of quotation and for the period and dates noted on the quote. All prices are exclusive of Value Added Tax which is payable at the rate prevailing at the date of the invoice.
4.2 The sums due to the Company under the Contract shall be due in full in accordance with the terms of the Contract and the Customer shall not be entitled to exercise any set-off, lien or any other right or claim.
4.3 The time of payment shall be 30 days from the Invoice.
4.4 If Customer fails to make any payment due to Company under this Contract by the due date for payment, then without limiting the Company’s remedies under law the Customer shall pay interest on the overdue amount at the rate of 2%per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.
4.5 Any costs and/or expenses incurred by the Company in recovering funds from, or otherwise enforcing any of its rights against the Customer, whether within or outside the United Kingdom, shall be fully reimbursed to the Company by the Customer, and the Customer agrees fully to indemnify the Company in respect of any such costs or expenses.
5 CHANGE ORDER
5.1 Reschedule. Customer agrees to pay Company a sum equal to the following percentages of the sums due in respect Reschedule. Customer shall have the right to reschedule up to fifty percent (50%) of an accepted Purchase Order for no more than thirty (30) days from the scheduled shipping date for such accepted Purchase Order if Solution Provider provides written notice to Company at least fifteen (15) business days prior to the original scheduled shipping date; provided that each Purchase Order may only be rescheduled once. Customer shall have no right to return or exchange any portion of shipped orders, other than under Company’s standard warranty.
5.2 Cancellation. Customer shall have no right to cancel shipped Orders. Customer shall have the right to cancel an accepted Purchase Order or any portion thereof any time prior to the scheduled shipment date subject to a cancellation fee stated as a percentage of the affected Purchase Order amount as follows:
<15 Days 50%
15-30 Days 15%
>30 Days 0%
6 DELIVERY, FREIGHT CHARGES, RISK OF LOSS
In its acceptance of Purchase Orders, Company shall notify Customer of Company’s targeted shipment dates for the Products. Company shall provide the Products Ex-Works, Company’s designated facility and title to Hardware and all risk of loss shall pass to Customer upon tender of shipment. Customer shall be responsible for all freight, handling and insurance charges from the Ex-Works point, as well as all customs duties and import and export fees. Unless otherwise specified on the Purchase Order, delivery shall be made to Customer’s address specified on the first page of this Contract. In the absence of specific instructions from Customer, Company shall select the carrier and arrange for in-transit insurance, all at Customer’s expense. Title to Software shall at all times remain solely with Company. Company hereby reserves, and Customer hereby grants to Company, a purchase money security interest or reservation in title in each Product sold under this Contract until all amounts due and owing for such Product have been paid in full.
All amounts payable to Company hereunder this Contract do not include any taxes, levies, or similar governmental charges, however designated, or any related penalties, including those now in force or enacted in the future (“Taxes”). Customer shall be responsible for all such Taxes, unless Customer provides Company with a tax-exempt certificate. Customer shall be responsible for the remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase or importation of Products under this Contract.
8 INTELLECTUAL PROPERTY RIGHTS
The Company and/or its suppliers have and retain all right, title and interest in and to theSoftware portion of the Products and in and to all intellectual property rights relating to the Products (including, without limitation, any trademark, service mark or trade name rights associated therewith), as well as to all copies and derivative works thereof. Solution Provider will not delete or in any manner alter any proprietary notices of Company and its suppliers and licensors appearing on or in the Product(s) or Software. Customer will not cause, permit or otherwise:
8.1 disassemble, decompile, alter or reverse engineer the Products or otherwise attempt to derive the source code, structure, algorithms or ideas underlying the Products (except to the extent the provisions of this clause 9.1 are expressly prohibited by applicable law)
8.2 rent, lease or otherwise provide temporary access to a Product
8.3 copy or modify Products
8.4 register as its own, or adopt, use or attempt to register any trademark or service that is confusingly similar to Company’s trade names, trademarks or service marks or
8.5 Allow others to do any of the foregoing.
9 LIMITATION OF LIABILITY
Notwithstanding anything else in this Contract or otherwise, neither Company nor its licensors nor its suppliers will be liable with respect to any subject matter of this Contract under any contract, negligence, strict liability, or other legal or equitable theory for:
9.1 amounts that in the aggregate are in
excess of the amounts paid to Company hereunder during the sixmonth period prior to the date the cause of action first arose; or
9.2 any incidental, special or consequential
damages, lost profits or lost data; or
9.3 cost of procurement of substitute goods, technology, or services; or
9.4 for loss or corruption of data or interruption of use. None of Company nor its licensors or suppliers shall have any liability for any failure or delay due to matters beyond its reasonable control. This section does not limit liability for death or bodily injury caused by negligence or for fraud.
10 FORCE MAJEURE
Neither party shall in any circumstances be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the VAR or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or nonperformance continues for six months, the party not affected may terminate this Contract by giving 30 days’ written notice to the other party.
The headings in these Conditions are intended for reference only and shall not affect their construction Headings used in this Contract are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof.
12 DATA PROTECTION ACT
The Customer agrees that the Company may make such enquiries and searches and obtain such references as it considers necessary from any person, firm or company including any credit reference agency (which will keep a record of any search made) and may disclose the results of those enquiries, searches and references and any information given by the Customer (“relevant information”) to any credit reference agency or to any other company in any corporate group of which it is a member, to any company or business associated with it and to any person, firm or company acting on the Company’s behalf for any purpose connected with the Company’s business. The Company will at all times comply with the Data Protection Act.
13 GOVERNING LAW
This Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.
Any notice, report, approval or consent required or permitted hereunder shall be in writing and in the English language. Any notices required or permitted to be given to either party hereunder shall be deemed properly given when delivered by confirmed facsimile, certified mail (return receipt requested), hand delivery, or certified overnight delivery such as Federal Express, and directed to such Party at the address appearing in the first paragraph of this Contract, to the attention of Chief Legal Counsel.