1.1.1 The Following expressions shall have the following meanings:
“DS365” Data Store 365 Limited and any subsidiary or holding company or associate (as defined in the Companies Act 2006 as amended) of the said company.
“Buyer” the individual firm company or other party from whom an order to supply Goods is received by DS365.
“Conditions” the standard terms and conditions of sale of DS365 as set out herein and includes any additional terms and conditions of sale agreed by DS365.
“Contract” a contract for the supply of Goods to the Buyer.
“Date of Delivery” the date on which the delivery of the Goods takes place pursuant to Condition 5.
“DOA Period” the period during which a third party manufacturer will offer to automatically replace defective Goods without exercising any option to repair them
“Goods” the goods which DS365 is to supply under the Contract.
“Software” any standard software along with the Goods, whether pre-installed on the Goods, accompanying the Goods on separate media or supplied as a service accessible remotely by using the Goods.
1.1.2 Words importing the singular number shall include the plural and vice versa, words importing one gender shall include all genders, and words importing persons shall include bodies, corporate, unincorporated associations and partnerships.
1.2 If satisfactory references on the Buyer are not provided within 7 days of a request therefor by DS365, DS365 may terminate the Contract without liability.
1.3 DS365 reserves the right to assign or sub-contract the Contract or any part thereof. The Buyer shall not be entitled to assign the benefit of the Contract without the consent in writing of DS365.
1.4 If at any time one or more of the provisions or part thereof of these Conditions becomes or is held by a court to be invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions shall not in any way be impaired thereby.
1.5 No waiver by DS365 of any breach of any provisions of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision and DS365 shall not be prejudiced by any forbearance or indulgence granted by it to the Buyer.
1.6 The Buyer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Buyer by DS365 or its agents and only use and disclose that information as permitted by the Contract or applicable law.
1.7 The Contract and any disputes or claims arising out of or in connection with are governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
2 ORDERS, ACKNOWLEDGEMENTS AND VARIATIONS
2.1 Notwithstanding that DS365 may have given a detailed quotation or estimate either verbally or in writing no order shall be binding on DS365 unless and until it has been acknowledged in writing by DS365 or the Goods are delivered by DS365 to the Buyer pursuant to the order.
2.2 These Conditions are incorporated in the Contract and contain the entire obligations between DS365 and the Buyer. No order, letter, terms and conditions or form or contract sent or referred to by the Buyer to DS365, whatever may be their respective dates shall form part of the Contract. In the event of DS365 entering into the Contract without DS365 having submitted a written quotation or other letter or document incorporating or referring to these Conditions but in circumstances where the Buyer has had prior notice of these Conditions then all Goods supplied shall be subject to these Conditions.
2.3 No variation of the Contract by the Buyer shall be binding upon DS365 unless made in writing and signed on behalf of DS365.
2.4 Any representations (except fraudulent misrepresentations) or warranties made by or on behalf of DS365 prior to the Contract (whether verbally or in writing, including without limitation, any catalogue published by DS365 or by any other person) are hereby expressly excluded and shall be of no effect.
2.5 To enable DS365 to pursue its policy of continuous improvement of its products DS365 reserves the right to amend the specification of the Goods and Software from time to time whether before or after the making of the Contract. For the purposes of the Contract, all references to Goods below are deemed to include references to Software save where expressly stated otherwise.
3 DESIGNS AND INTELLECTUAL PROPERTY
3.1 Unless otherwise agreed in writing, DS365 will be the sole owner of the copyright and all other intellectual property rights in all documents and drawings made or produced by it in preparing a quotation for the Buyer or in the course of work on any Contract with the Buyer.
3.2 The Buyer acknowledges that all intellectual property rights used by or subsisting in the Goods are and shall remain the sole property of DS365 or the third party rights owner.
4.1 DS365 shall be entitled to by giving notice to the Buyer at any time before delivery to adjust the contract price of the Goods in the event of any variation in the cost to DS365 of supplying the same or any part thereof caused by any reason whatsoever beyond the control of DS365, any change in delivery dates, quantities or specifications for the Goods or Software which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate information or instructions.
4.2 Unless otherwise stated, the price set out in DS365’s quotation does not include VAT nor the cost of packaging, loading, carriage, insurance, off-loading or installation which should be arranged by the Buyer at its sole risk and expense.
5.1 Delivery of Goods shall be deemed to be effected by DS365 at the following times:
5.1.1 Where Goods are delivered by DS365, when the same arrive prior to unloading at the Buyer’s premises or at the premises nominated by the Buyer or at the nearest accessible road point to such premises.
5.1.2 Where Goods are delivered by an independent carrier, at the time of loading onto the carrier’s vehicle.
5.1.3 Where Goods are to be collected by or on behalf of the Buyer by its servants or agents, when the same are collected or when DS365 notifies the Buyer that the same are ready for collection, whichever is earlier.
5.2 Whilst DS365 will make every reasonable effort to complete the Contract by the date(s) therein specified for delivery of Goods such date(s) shall only constitute the times by which DS365 expects to effect such delivery but the time for performance of the Contract by DS365 shall not be of the essence of the Contract, DS365’s failure to so deliver by the due date(s) shall not constitute a breach of Contract and DS365 shall not in any circumstances be responsible for any direct or consequential loss or damage of any kind whatsoever resulting therefrom. DS365 may wholly or partly suspend deliveries of Goods and the Buyer shall accept late delivery of such Goods unless the Buyer has cancelled the Contract in accordance with the provisions of Condition 10.2.
6 QUANTITIES INSTALMENTS AND STORAGE
6.1 Where Goods are delivered by instalments each instalment shall be deemed to be sold under a separate Contract and no default in respect of any one instalment shall affect due performance of the Contract as regards other instalments.
6.2 DS365 will endeavour to deliver the quantity of Goods ordered. If there is a surplus or shortage of Goods which is so slight that it would be unreasonable for the Buyer to reject delivery of them the Buyer shall be deemed to have accepted the Goods and shall pay for the actual quantity delivered.
6.3 The Buyer shall indemnify and keep indemnified DS365 in full against all costs, losses, damages and expenses whatsoever arising in connection with the storage of the Goods if DS365 shall be prevented from delivering any of the Goods in accordance with the Contract as a result of delay or default on the part of the Buyer or any reason beyond DS365’s reasonable control and such costs, losses, damages and expenses will be added to and form part of the price of the Goods. DS365 shall be entitled in its absolute discretion and without giving prior notice to the Buyer at the expiration of 3 months to sell or otherwise dispose of Goods kept in storage.
7 RISK AND TITLE TO GOODS (but not software)
7.1 The Goods are at the risk of the Buyer from the time of delivery.
7.2 Ownership of the Goods shall not pass to the Buyer until DS365 has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1 the Goods; and
7.2.2 all other sums which are or which become due to DS365 from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
7.3.1 hold the Goods on a fiduciary basis as DS365’s bailee;
7.3.2 store the Goods (at no cost to DS365) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as DS365’s property;
7.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 maintain the Goods in satisfactory condition and keep them insured on DS365’s behalf for their full price against all risks to the reasonable satisfaction of DS365. On request the Buyer shall produce the policy of insurance to DS365; and
7.3.5 hold the proceeds of the insurance referred to in Condition 8.3.4 on trust for DS365 and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
7.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
7.4.2 any such sale shall be a sale of DS365’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Buyer’s right to possession of the Goods before ownership has passed shall terminate immediately if:
7.5.1 An order is made or a resolution is passed for the winding-up of the Buyer or an order is made for the appointment of an administrator to manage the affairs, business and property of the Buyer or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the Buyer’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the Buyer takes or suffers any similar or analogous action in consequence of debt or the Buyer ceases to trade; or
7.5.2 DS365 reasonably apprehends that any of the circumstances in Condition 8.5.1 is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
7.5.3 if the Buyer commits a material breach of any of the terms of the Contract or any other contract between the Buyer and DS365 fails to remedy the same within 7 days of being notified of the breach;
7.5.4 the Buyer encumbers or in any way charges any of the Goods; or
7.5.5 anything analogous to the foregoing occurs in any other jurisdiction.
7.6 DS365 shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from DS365.
7.7 The Buyer grants DS365, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8 USE OF SOFTWARE
8.1 The Buyer acknowledges that DS365 is reselling the Software from third party licensors and that all intellectual property rights in the Software are, and shall remain, the property of the third party licensors.
8.2 The Buyer’s rights to use the Software is subject to the standard licensing terms of the third party licensors and the Buyer acquires no rights in or to the Software other than those expressly granted in those licensing terms. Where DS365 pre-installs the Software on the Goods or sets up an online subscription to the Software, the Buyer acknowledges that it is bound by the licensing terms for such Software and where such pre-installation or set up involves DS365 accepting the terms, DS365 does so on behalf of the Buyer.
8.3 The Buyer shall acquire ownership of any physical media containing the Software in accordance with Condition 7.
9 TERMS OF PAYMENT
9.1 Unless otherwise agreed the price shall be due and payable at DS365’s offices in sterling within 30 days after the date of DS365’s invoice provided that DS365 reserves the right to require payment prior to delivery of the Goods or in sending notification that the Goods are in a deliverable state or if the Buyer has previously failed to make any payment owing to DS365 on the due date. Time for payment shall be of the essence.
9.2 If the Buyer does not pay the whole or any part of the price by the due date then the Buyer shall pay to DS365 interest on the amount outstanding from the due date until the actual date of payment at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 which shall accrue on a daily basis, as well as the late payment compensation as set out in the Act.
9.3 So long as any payment due from the Buyer to DS365 is outstanding, whether under the same or any other Contract or transaction, DS365 shall have a general lien on any Goods and any other property of the Buyer in its possession for whatever purpose and whether worked upon or not. DS365 shall be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards satisfaction of such debts.
9.4 The Buyer shall not be entitled to withhold payment of any amount due to DS365 by reason of any disputed claim by the Buyer in connection with the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to DS365 any amount which is not then due and payable by DS365 or for which DS365 disputes liability.
10 SUSPENSION AND CANCELLATION
10.1 Immediately upon the occurrence of any of the events in Conditions 7.5 or 9.2 DS365 may: (a) stop any Goods in transit and suspend further deliveries under the relevant and any other Contracts and/or (b) suspend work on any or all Contracts and/or (c) hold by way of a general lien all materials or other property of the Buyer in the possession of DS365 and/or (d) terminate the relevant Contract and any other Contracts forthwith: and if the Goods, or any part of them have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.2 In the event of DS365 other than in any of the circumstances referred to in Condition 10.1 being prevented or hindered from completing the Contract either wholly or in part in accordance with the terms thereof for any reason beyond its reasonable control then further performance of the Contract shall be suspended for the period during which DS365 is so prevented provided that in the event of the Contract being suspended for a continuous period of more than 3 months then either party may give the other notice to terminate the Contract forthwith and in such circumstances the Buyer shall pay for all Goods supplied to the date of such termination such payment to be made on or before the last day of the month following the month during which termination was effected. DS365 shall be under no liability whatsoever to the Buyer for any direct, indirect or consequential loss or damage suffered by the Buyer as a result of DS365’s inability to perform its obligations under the Contract in these circumstances.
10.3 The termination of the Contract for whatever reason will be without prejudice to the rights and duties of either party accrued prior to termination.
11 CLAIMS FOR DAMAGE IN TRANSIT/DEFECTS
11.1 The Buyer shall inspect the Goods within 7 days of the Date of Delivery and whether or not the Buyer carries out such obligation to inspect, subject to Condition 13, no claims for non-delivery, shortages in quantity of units delivered, defective Goods, partial loss or damage to Goods will be accepted by DS365 unless: (a) they are notified in writing by the Buyer to DS365 within 7 days after the Date of Delivery (in the case of partial loss, damage or defective Goods) or 14 days after the date of the invoice (in the case of non-delivery) and (b) the Goods in respect of which a claim is made together with the packaging are preserved intact as received and at the Buyer’s risk for a period of 21 days from notification of any such claim and (c) the Buyer permits DS365 or its servants or agents full and free right of access to inspect the Goods and investigate the claim.
11.2 If the Buyer fails to give the appropriate notice as specified in Condition 11.1 the Buyer’s claim will be deemed to have been waived and will be absolutely barred.
11.3 Section 35A Sale of Goods Act 1979 shall not apply.
12.1 If the Buyer wishes to return any non-defective Goods, a returns authorisation number (RAN) must be requested from DS365 within 7 days of receipt of the Goods and prior to returning any item. Once DS365 have issued a RAN, Goods must be returned within a 5 day period. All returned Goods must be unopened in the original manufacturer’s packaging complete with accessories and manuals. Goods must be in pristine, resalable condition with no markings on the packaging. If Goods are ordered in error or are no longer required, the Goods are charged at the full invoice amount. However, DS365 may at its discretion and subject to manufacturer’s guidelines accept the Goods back with a restocking fee of 25% of the order value (a minimum charge of £20.00 will apply) plus delivery costs.
13.1 Where Goods are supplied by DS365 but manufactured by a third party, DS365 shall:
13.1.1 where the Buyer notifies DS365 of a defect in such Goods within the relevant manufacturer’s DOA Period (if any), assist the Buyer with obtaining replacement Goods from such manufacturer; and
13.1.2 use its best endeavours to pass on to the Buyer any warranties or guarantees of such Goods which DS365 has under contract with that third party.
The Buyer is advised to view the brief details of such warranty and/or guarantee appearing in the specification section of the description of the Goods on DS365’s website at www.datastore365.co.uk or to contact the relevant manufacturer for more detail prior to placing its order for such Goods. DS365 shall have no liability in respect of defects in the Goods which will result from the manufacture, design, materials or workmanship of that third party and except as aforesaid any warranties, conditions or undertakings (whether express or implied by statute, common law or otherwise) howsoever in respect of such Goods are, to the extent permitted by law, hereby expressly excluded.
13.2 In substitution of all and any other rights which the Buyer might or would have against DS365 but for these Conditions and subject to Conditions 11.1 and 13.1, DS365 shall make good by replacement or, at its option, repair any failure (fair wear and tear excepted) in the Goods which, under conditions of proper use and maintenance, results from defects in DS365’s manufacture, design, materials or workmanship and which appears not later than 12 months after the Date of Delivery.
13.3 Notwithstanding the provisions of Condition 13.2, in the case of a claim falling within Condition 13.2, DS365 reserves the right at its sole discretion to credit the Buyer in full the price paid by the Buyer to DS365 in lieu of repair or replacement of the relevant Goods.
13.4 DS365’s liability under this Condition shall automatically cease if (a) the Buyer is in breach of this or any other contract made with DS365: or (b) DS365 or its servants or agents are denied full and free right of access to the allegedly defective Goods: or (c) the Goods have been treated improperly or in a way which has contributed to the defect (whether before or after a defect is detected).
13.5 The warranty set out in Condition 13.2 shall be in lieu of any warranties conditions or undertakings whether express or implied by statute common law or otherwise howsoever which warranties, conditions and undertakings are hereby expressly excluded except that such exclusions will not apply to any implied condition that DS365 has or will have the right to sell the Goods when the property is to pass.
13.6 Nothing in these Conditions excludes or limits the liability of DS365 for death or personal injury caused by DS365’s negligence or fraudulent misrepresentation.
13.7 Save as provided in Condition 13.6. DS365 shall not be liable to the Buyer for any indirect or consequential loss or damage, for loss of profit, loss of business, depletion of goodwill) costs, expenses or other claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the Contract.
13.8 Save as provided in Condition 13.6 and subject to Condition 13.7, DS365’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the contract price.
13.9 Where the Goods are sold under a consumer sale (as defined by the Consumer Rights Act 2015) the statutory rights of the Buyer are not affected by these conditions.
14 DATA PROTECTION
14.1 The parties acknowledge that the primary purpose of the Contract is not for the processing of personal data and that any data processed is incidental to the supply of the Goods or the Software.
14.2 Both parties will comply with all applicable requirements of applicable data protection legislation. Where the Buyer requires DS365 to processes personal data as part of the sale of the Goods and/or installation or set up of Software, the Buyer shall ensure it has the right to pass such data to DS365 and DS365 will: (i) only process that data on the Buyer’s written instructions set out in the Order Form or elsewhere; (ii) ensure that it has in place appropriate technical and organisational measures, to protect that data and keep it confidential; and (iii) not transfer that data outside the European Economic Area without providing appropriate safeguards in relation to the transfer and providing the data subject has enforceable rights and effective legal remedies; (iv) notify the Buyer without undue delay on becoming aware of a personal data breach; (v) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits of the same by the Buyer or the Buyer’s designated auditor; (vi) pass such data to third parties where it is necessary for the Buyer’s user of the Goods or Software (such as to Microsoft) or as part of DS365’s standard data storage (to DS365’s storage provider).
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