DIGITA INTERNATIONAL LTD1. DefinitionsIn these Terms and Conditions of Sale:"the Company" shall mean Digita International Limited of Black Horse House Exmouth Devon EX8 1JL"the Buyer" shall mean the person, firm, company or buyer who accepts a quotation of the Company or whose order for the Goods is accepted by the Company"the Goods" shall mean the software, equipment, parts or services to be supplied by the company (including any instalments or part of them)
2. Basis of Sale2.1 It is a contractual responsibility to inform the Company of all problems in writing. The Company has the right to repair and replace. 2.1.1 The Company policy is to utilise the latest technology and in order to achieve this it will be necessary from time to time for the Buyer to upgrade their hardware.2.2 All quotations given by the Company are subject to written confirmation at the time of acceptance by the Company upon receipt of the Buyer's purchase order and remittance. Acceptance and execution of orders is dependent upon the availability of Goods and the absence of any circumstances beyond the Company's control which may hinder or prevent execution or acceptance.2.3 No conditions or terms stipulated in any other communication or document shall vary or annul any of these conditions except if they were expressly consented to in writing by an officer of the Company.2.4 The company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. The Company does not have agents only independent distributors.2.5 Any advice or recommendation given by the Company or its employees or distributors to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by a Director of the Company is followed or acted upon entirely at the Buyer's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.2.7 If the Goods are to be manufactured or any software is to be written by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company's use of the Buyer's specification.2.8 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Company's specification, which do not materially affect their quality or performance.2.9 No order which has been accepted by the Company may be cancelled by the Buyer expect with the agreement in writing by a Director of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.2.9.1 The Company reserves the right to refuse the supply goods given reasonable grounds or suspicions.
3. Price3.1 Quoted prices are ex works unless otherwise stated and include the cost of normal packaging but exclude delivery, transit insurance (which are charged extra at cost). VAT and installation charges (where applicable) shall be paid in addition by the Buyer. Any query by the Buyer of any invoice rendered by the Company must be made in writing within 30 days of the date of invoice or the parties agree that such invoice shall be deemed accepted and any purchaser's query waived. The Prices for the goods shall be those ruling at the date of despatch and the Company reserves the right to amend its quoted prices at any time prior to the date of despatch. Sales made directly to the general public using current Company standard retail price list include VAT.
4. Terms of Payment4.1 Normal terms are remittance in advance with order or invoice.4.2 The time for payment of invoices shall be of the essence of the Contract.
4.3 By cheque or approved credit card (subject to surcharge of 2.5%).
5. Risk and Property5.1 Risk of damage to or loss of the Goods shall pass to the Buyer: 5.1.1 In the case of Goods to be delivered at the Company's premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or 5.1.2 In the case of Goods to be delivered otherwise than at the Company's premises, at the time of delivery, or if the Buyer wrongfully fails to take delivery of the Goods, or the time when the Company has tendered delivery of the Goods.5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, rights to the licence in the Goods shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Buyer for which payment is then due. 5.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties by being properly stored, protected, insured and identified as the Company's property. Until that time the Buyer shall be entitled to resell (if a distributor) or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.5.4 Until such time as the licence of the Goods passes to the Buyer the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.5.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
6. Buyer's PropertyThe Buyer's property and all property supplied to the Company by or on behalf of the Buyer, shall while it is in the possession of the Company or in transit to or from the Buyer be deemed to be at the Buyer's risk and the Buyer shall insure accordingly. The Company shall be entitled to make a reasonable charge for the storage of any of the Buyer's property left with the Company before receipt of the order or after notification to the Buyer of completion of the work.
7. Loss or Damage in Transit or Non-DeliveryThe Buyer shall examine the Goods immediately they are delivered. The Company reserves the right to reject claims in respect of shortages or damage in transit or non-delivery unless the same are submitted in writing to the Company within 4 days after delivery of Goods or in the case of non-delivery 7 days after the due date of delivery.
8. Late Delivery8.1 Dates for delivery are approximate only. Time of delivery shall not be the essence of the Contract.8.2 Whilst the Company will use its best endeavours to deliver the goods in accordance with the Buyer's requirements, the Company will not be liable for any consequences of late delivery however caused.
9. Software LicenceNote: By breaking the seal on the package containing the disks and personalising the product you agree to be bound by these terms and conditions.9.1 The disk, tape, software program, instruction book or other hard copy ("The program") is sold to the Purchaser and any other property over which intellectual property rights are held by the Company or third parties which are included in or on the disk, tape, instruction manual or other hard copy item included with the software are licensed to the end user in accordance with the Company's standard software licence conditions set out below. The Buyer acknowledges that the software will only be sold subject to the licence.9.2 Software Licence Conditions9.2.1 The Company's software products are protected by English Company Law and international treaties relating to intellectual properties, any breach of which can result in legal action being taken against the original licensee of the product. The licensee can transfer the software from one computer to another as long as it is only used on one computer at a time. The Company agrees to grant the conditions of this non-transferable and non-exclusive licence to use their software.9.2.2 There is a one-off non-refundable licence fee for all software due for payment with order.9.2.3 Where applicable-Software Continuity, Support and Maintenance: This cost is due per annum (in advance) after expiry of free support period which provides technical support and software maintenance. This is non-optional and is in addition to the one-off payment of the licence fee.9.2.4 The Company reserves the right to increase costs for software continuity, support and maintenance also to increase machine specifications in the light of advances in technology and on-going development.9.2.5 The Company reserves the right to withdraw its products from the marketplace at any time.9.3 Program LicenceEach program licence authorises the Buyer to use the licensed programs on any single user system or networked system. This agreement and the licenses, Programs and documentation may not be assigned sub-licensed or otherwise by the Buyer without written consent from the Company.9.4 Effective DateThe licence is effective from the date that the Programs are received by the Buyer. The Company may discontinue the licence or terminate this agreement with written notice if the Buyer fails to comply with the terms of the agreement.9.5 Documentation and SoftwareThe Buyer shall not copy in whole or part any licensed documentation provided by the Company. The licensed Program can be copied in whole or part sufficiently for the sole use of the Buyer within the licence system for back-up purposes in support of the Buyer's use of the licensed program on design on designated equipment. Any such copies of the licensed Program shall remain the property of the Company. The buyer may not distribute or otherwise make the licensed Program available to any third party. If the Buyer should wish to use the licensed Program on any other than the designated equipment the Buyer must purchase further copies from the Company.9.6 Termination of LicenceWithin one month following termination, the Buyer will provide the Company in writing confirmation that all copies of the Program and documentation have been destroyed. All original software and documentation must be returned to the Company by Registered Post at the cost of the Buyer.
10. Warranty - Software10.1 The provisions set out below relate to the Program only.10.2 If you discover physical defects in the media on which the Program is distributed or in the documentation, the Company will replace the media or documentation at no charge to the Buyer provided the Buyer returns the item to be replaced with proof of purchase to the Company during the 30 day period after you purchased the Program.10.3 The Company excludes any and all implied warranties, including warranties of merchantability and fitness for a particular purpose and limits the Buyer's remedy to return of the program and the documentation to the Company for replacement. Although the Company has tested the Program and reviewed the documentation the Company makes no warranty or representation either express or implied with respect to the Program or the documentation. The company does not warrant that the functions contained in the Program will meet the Buyer's requirements or that the operation of the Program will be uninterrupted or error free or that Program defects will be corrected. As a result the program and the documentation are licensed "as is" as a tool used by a professionally qualified user and the Buyer is assuming the entire risk as to its quality and performance. It is important that all software problems must be reported immediately in writing to the Company at the time of occurrence.10.4 Neither the Company nor anyone else who has been involved in the creation, production or delivery of the Program or documentation shall be liable for any direct, indirect, special, consequential, or incidental damages arising out of the use, results of use, or inability to use the Program or documentation or its back-up copy, even if the Company has been advised of the possibility of such damages or claim. In particular the Company shall have no liability for any programs stored or used with the Program or back-up copy, including the cost of recovering such programs or data. The warranty and remedies set forth above are exclusive and in lieu of all others, oral or written, express or implied. No Company, dealer, agent or employee is authorised to make any modification or addition to this warranty.
11. Warranty - Goods11.1 The provisions set out below relate to Goods other than the Program.11.2 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.11.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.11.4 Where any valid claim in respect of any of the Goods or their failure to meet specification is notified to the Company in accordance with these conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge, at the Company's sole discretion, refund to the Buyer a maximum of 1.25 (one and one quarter) the price of the Goods of actual fee paid (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.11.5 Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contact, for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or distributors or otherwise), which arise out of or in connection with the supply of the Goods or their use or re-sale by the Buyer except as expressly provided in these Conditions.11.6 The Company will not be held responsible for any work or activity conducted by any third party, contractor, consultant or the like. Any work so authorised by the Buyer is entirely at their risk. Any work undertaken by the Company employees must be confirmed in writing by a director of the Company. It is at the Company's sold discretion whether it repairs or gets involved in technical assistance.
12. Returns ProcedureA returns authorisation number must first be obtained from our customer service department by telephone or letter. Returned goods must be accompanied by a copy of the original invoice relating to purchase. Goods returned must be in the original packaging and in a clean resalable condition. Goods returned otherwise will at the Company's discretion be either refused or a further additional re-stocking fee charged to cover additional costs involved.This document does not itself constitute an offer of sale. We reserve the right to vary the specification at any time, withdraw, modify or amend any item without prior notice.
13. Force MajeureThe Company reserves the right to cancel, vary or suspend the operation of contracted sale if events occur which are in the nature of force majeure including (without prejudice to the generality of the foregoing) fire, flood, storm, plant breakdown, strikes, lockouts, riot, hostilities, non- availability of materials or supplier any other event outside the control of the Company and the Company shall not be held liable for any breach of contract resulting from such event.
14. Export Terms:14.1 In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms and these conditions, the latter shall prevail.14.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these conditions.14.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.14.4 Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be collected (ex-works) from the Company premises and the Company shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
15. General15.1 These conditions of sale shall be construed in accordance with English Law.15.2 The Company is a member of a group of Companies and accordingly the Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other members of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.15.3 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to the provision to the party giving the notice.15.4 No waiver by the Company of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provisions.15.5 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.22/10/96
