1.1 “Products” means goods or services including but not limited to computer hardware and software items to be provided by Us to You in accordance with these terms.
1.2 “Third Party Software” means all software owned by or licensed to You from a third party owner (whether or not supplied by Us) and which comprises part of the Products.
1.3 “Us”, “We”, Creative Software Solutions (Europe) Limited or “Company” means Creative Software Solutions (Europe) Limited Europe or any subsidiary or associated company.
1.4 “You” means the Creative Software Solutions (Europe) Limited customer identified in an order to whom Creative Software Solutions (Europe) Limited may agree to supply Products in accordance with these terms and conditions.
1.5 “Contract” will mean the agreement of sale between Us and You.
1.6 “Resellers” means a company that purchases Products with the intention of selling them on rather than consuming or using them.
1.7 “End-user” means a company or a person who actually uses Products rather than one who makes or sells them.
2. ORDER ACCEPTANCE
2.1 All orders are accepted and Products supplied subject to these express terms only. No amendment to these terms will be valid unless confirmed in writing by our authorised representative on or after the date hereof.
2.2 For the avoidance of doubt, your general conditions or trading terms, if any, shall be herewith explicitly excluded.
3.1 Any time or date quoted for dispatch is to be treated as an estimate only. We will use reasonable endeavors to dispatch the Products within the time or date quoted, but the time of dispatch will not be of the essence. If, despite those endeavors, We are unable for any reason to dispatch on the specified time or date, We will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will We have any liability to You for direct, indirect or consequential loss (all three of which terms includes, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, claims of third parties and like loss) howsoever caused (including as a result of negligence) by any delay or failure in dispatch.
3.2 Delivery of the Products will be made Ex Works as defined Incoterms 2000.
3.3 Delivery of the Products will be accepted at any time of day. If You fail to take delivery, or provide any necessary documents, the Products will be deemed to have been delivered and We may, without prejudice to our other rights, at our option:
3.3.1 store or arrange for storage for the Products until actual delivery or sale and charge You for all related costs and expenses (including, without limitation, storage and insurance); and/or
3.3.2 following written notice to You, sell any of the Products at the best price reasonably obtainable in the circumstances and charge You for any shortfall below the price under the Contract.
3.4 From the time of the delivery, the Goods shall be at your risk and You shall be solely responsible for their custody, shipment and maintenance.
3.5 You must inspect the Products on delivery. If any Products are damaged, non- conforming, defective or not delivered You must notify us within five working days of delivery (or the expected delivery time). If proof of delivery is required, this must be requested within 14 calendar days of the date of the invoice.
4. CANCELLATION AND RESCHEDULING
Notwithstanding clause 5.3 below, unless otherwise agreed in writing, any request by You for cancellation of any order or for the rescheduling of any deliveries will only be considered by Us if made at least 12 hours before dispatch of the Products, and shall be subject to acceptance at our consent (such consent not to be unreasonably withheld), and subject to our reasonable administration charges. You hereby agree to indemnify Us against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
5.1 Catalogues, price lists and other advertising literature or material as used by Us are intended only as an indication as to the price and range of Products offered and no prices, descriptions or other particulars contained in them shall be binding on Us.
5.2 All prices are given by Us at the time of the order on an Ex-Works basis and You are liable to pay for all transport, packing and insurance costs.
5.3 All quoted or listed prices are based on the cost to Us of supplying the Products to You. If before delivery of the Products there is an increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be changed in order to reflect this increase without notice. Any increase in price will entitle You to cancel the order by giving written notice to Us within 2 business days of You being made aware of such increase. If You cancel the order in accordance with this condition 6.3 then:
5.3.1 We will refund to You any sums which You have paid to Us in respect of that order or part of the order which has been cancelled; and
5.3.2 You will be under no liability to make any payments in respect of that order or part of the order which has been cancelled.
5.4 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by You and will be levied in accordance with laws in force at the tax point date.
6. PAYMENT TERMS
6.1 Invoices will be raised and dated by Us on the date of dispatch of the Products. Unless otherwise specifically requested and agreed, invoices will be payable by You 30 calendar days from the date of invoice. If You do not pay Us in full by the due date You must pay Us interest at the rate of 3% above the base rate at the time of Barclay’s Bank, calculated (on a daily basis) from the due date until payment is made in full both before and after any judgment (unless the court orders otherwise). Unless otherwise agreed, the currency of payment is GBP.
6.2 You must notify Us in writing within seven calendar days of the date of our invoice of any errors (for example incorrect prices) in that invoice. If You do not, You will be deemed to have accepted the accuracy of that invoice.
6.3 If You have a credit account with Us, We may withdraw it or reduce the credit limit or bring forward the due date for payment without notice.
6.4 All payments to be made by You will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
6.5 Notwithstanding dispatch and the passing of risk in the Products to You and notwithstanding any provision of these conditions, the title to the hardware Products shall not pass to You until We have received full payment of the price of the Products. When all prices, taxes and charges due in respect of the Products have been paid in full, title to the hardware Products only shall pass to You.
6.6 Until You pay all sums due to Us in respect of the Products and all other sums which are or which become due to Us from You on any account: all Products supplied to You will remain our property; all Products must be stored so that they are clearly identifiable as our property; You must insure all such Products for their full price against all risks to our reasonable satisfaction and hold the policy on trust for Us and produce a copy of your insurance policy upon request; You must hold the Products on a fiduciary basis as Creative Software Solutions (Europe) Limited’s Bailee; You must not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; You may use such Products and sell them in the ordinary course of your business at the best price reasonably obtainable in your business but account to Us for the proceeds of such sale(s) and allow Us to inspect records related to such sale(s) unless we revoke that right (by informing You in writing) or You become insolvent. Payment for the Products supplied to You hereunder will be deemed to have been made when the full amount of payment is irrevocably credited to our bank account.
6.7 You must inform Us (in writing) immediately if You become insolvent and/or in case of seizure of or damage to the goods in your premises.
6.8 Your right to sell or use the Products shall cease immediately if You are in material breach of this Contract, a bankruptcy order is made against You or You enter into liquidation, whether compulsory or voluntary, or make an arrangement with creditors or petition for an administration order or have a Receiver or Manager appointed over all or any part of your assets or generally become unable to pay your debts, and in case of seizure of goods in your premises. If your right to use and sell the Products ends, You must allow Us to remove the Products, dispose of the Products so as to discharge any sums You owe Us under this or any other Contract and/or withhold delivery of any undelivered Products and stop any Products in transit. Unless we expressly elect otherwise, this Contract or any other Contract You enter into with Us for the supply of Products shall remain in existence notwithstanding any exercise by Us of our rights hereunder. The Products shall, once the risk has passed to You per the terms hereunder or otherwise, be and remain at your risk at all times unless and until We have taken possession of them, and You shall insure them accordingly.
6.9 You grant Us an irrevocable license at any time to enter any premises where the Products are or may be stored to inspect them or, where your right to possession has ended, to recover them.
6.10 Despite our retention of title to the Products, We have the right to take legal proceedings to recover the price of Products supplied should You not pay Us in full by the due date.
6.11 You are not entitled to pledge (or in any way charge by way of security for any indebtedness) any of the Products which remain our property, but if You do so, all monies owing by You to Us shall (without prejudice to any other of our rights or remedies) immediately become due and payable.
6.12 We reserve the right to stop supplying the Products to You at any time and withdraw any credit facility provided to You.
7. SPECIFICATION OF PRODUCTS
7.1 We will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data of the Products. We will not be responsible for any loss or damage resulting from curtailment or cessation of supply of the Products following such variation.
7.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified.
7.3 We reserve the right to increase our quoted or listed prices, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will We consider cancellation of such orders or the return of such orders.
8. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
You hereby acknowledge that any proprietary rights in any Third Party Software supplied hereunder including, but not limited to, any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner. It is your sole responsibility to comply with any terms and conditions of any license attaching to Third Party Software supplied and delivered by Us (including if so required the execution and return of a Third Party Software license). Your failure to comply with such terms could result in You being refused a software license or having it revoked by the proprietary owner, notwithstanding other remedies included in the relevant license or by law. You further agree to indemnify Us in respect of any costs, charges or expenses incurred by Us as a result of any breach by You of such terms and conditions. No title or ownership of software Products or any Third Party Software licensed to You is transferred to You under any circumstances.
9.1 We reserve the right to levy a reasonable administration charge in respect of Product returns where no defects in materials or workmanship are found.
9.2 Returns are subject to the following: (a) prior authority having been obtained from Us which will be given at our sole discretion; (b) the request for a return must be made within 5 business days of the date of the invoice and the Products in issue must be returned within 5 business days of the authority to return; (c) our stock rotation privileges with the manufacturer; (d) the Products must be properly packed (original packaging); and (e) the Products must be in a saleable condition. We reserve the right to reject any Products which do not comply with the terms set out above.
10.1 We offer no warranties in respect of the Products supplied hereunder other than as offered by the manufacturers of such Products. We shall use our reasonable endeavors to ensure that You shall receive the benefit of such warranties directly from the manufacturer.
10.2 We reserve the right to test Products returned as faulty and to return to You (at your expense) any products found not to be faulty. In this case We may in addition charge You our costs of testing the Products.
10.3 All software Products supplied are supplied ‘as is’. Our sole obligation with the supply of software Products is to use all reasonable endeavors to supply a corrected version or a patch from the manufacturer concerned if the software Product fails to conform to its product description. You must notify Us of any such non-conformity within 90 calendar days of the date of delivery of the software Product. Maintenance of software and software updates or upgrades will depend on the offerings of the software manufacturer without any warranty from our side.
10.4 If the Products are found to be defective We will only accept the return of such Products as provided in clause 10. We will not consider any claim for compensation, indemnity or refund under liability unless it has been established or agreed with the manufacturer.
10.5 Except as specifically set out in this clause 11, We disclaim and exclude all other warranties, whether express or implied or otherwise (other than for breach of obligations We have by statute that may not be disclaimed), including but not limited to the warranties of description, design, non-infringement, satisfactory quality and fitness for a particular purpose, absence of harmful software code, or arising from any previous course of dealing, usage or trade practice. In no circumstances shall our liability to You for any breach of warranty exceed the price You paid for the Products with respect to which the claim is made.
11. INDEMNITIES AND LIMITS OF LIABILITY
11.1 We do not exclude liability (if any) to You:
11.1.1 for personal injury or death resulting from the Company’s negligence;
11.1.2 for any matter which it would be illegal for the Company to exclude (or to attempt to exclude) its liability; or
11.1.3 for fraud.
11.2 Except as provided in clauses 6.3, 11 and 12.1 We will be under no liability to You whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, claims of third parties, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
11.2.1 any of the Products, or the manufacture or sale or supply, or failure or delay in supply, of the Products by Us or on the part of our employees, agents or sub- contractors;
11.2.2 any breach by Us of any of the express or implied terms of the Contract;
11.2.3 any use made or resale by You of any of the Products, or of any goods incorporating any of the Products; or
11.2.4 any statement made or not made, or advice given or not given, by or on behalf of Us.
11.3 We do not, under any circumstances, accept liability when acting as a consultant, either directly or to a third party relating to advice on a technical or commercial level as a response to requests made. It should be noted that We do not accept liability in any form when visiting either Reseller or Reseller customer sites upon invitation to assess any given situation relating to hardware or software supplied directly or otherwise.
11.4 Except as set out in clauses 6.3 and 11 We exclude, to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in your favour.
11.5 You agree to fully indemnify, keep indemnified and hold harmless Us and our employees from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct , indirect or consequential loss (all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which We or our employees incur or suffer as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance by You or your authorised representative. You also agree to fully indemnify Us against all liabilities, costs, losses and damages whatsoever suffered or incurred by Us and arising out of claims by third parties in respect of or in connection with any acts or defaults by You, your employees, or representatives.
12. EXPORT AND/OR RE-EXPORT LIMITATION
Regardless of any disclosure made by You to Us of an ultimate destination for any Products, You will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
13.1 The headings in these terms are for ease of reference only and shall not affect their interpretation or construction.
13.2 No forbearance, delay, or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
13.3 You agree not to assign any of your contractual rights without our prior written consent.
13.4 If any of these terms are unenforceable as drafted it will not affect the enforceability of any other of these terms and if it would be enforceable if amended, it will be treated as so amended.
13.5 Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure including any act of God, fire, explosion, accident, shortage, industrial dispute, military or government restriction, or any cause beyond its reasonable control.
13.6 Any document or notice by either party which is to be served under these terms may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or principal place of business. In the case of post, the document or notice will be deemed to have been given two working days after the date of posting. All such notices must be signed.
13.7 These terms shall be construed in accordance with English Law and the English and Welsh courts shall have non-exclusive jurisdiction.
13.8 The parties to the Contract do not intend that any of its terms will be enforceable by any person not a party to it.