NSO-SF-97002 March 2007
NS Optimum Ltd Standard Terms and Conditions of Sale
1.1 "Buyer": means person, to whom The Company may agree to supply Goods in accordance with these conditions
1.2 "The Company ": means NS Optimum Limited, Jenton Road, Sydenham Industrial Estate, Leamington Spa, Warwickshire CV31 1XS or any subsidiary or associated company (as the case maybe)
1.3 "Goods": means any Goods and software items to be provided by The Company to the Buyer in accordance with these conditions
1.4 "Software": means any software supplied to the Buyer.
1.5 "Contract": means the contract for the supply of Goods
2. ORDER ACCEPTANCE
2.1 All orders placed by the Buyer whether written or
oral shall constitute an offer to THE COMPANY, under these conditions, subject to availability of the Goods and to acceptance of the order by THE COMPANY 's authorised representative. Any quotation given by THE COMPANY does not constitute an offer capable of acceptance
3. All orders are accepted and Goods supplied subject to these conditions only. No terms or conditions put forward by the Buyer shall apply. No amendment of these conditions will be valid unless confirmed in writing on or after the date hereof by THE COMPANY 's authorised representative
3 HARDWARE OWNERSHIP
3.1 Notwithstanding delivery, installation and acceptance, and the passing of risk in the Hardware, or any other provision of these conditions, the property in the Hardware shall not pass to the Buyer until THE COMPANY has received in cash or cleared funds payment in full of the price of the Hardware and all other goods agreed to be sold by the Company to the Buyer for which payment is then due.
3.2 Until such time as the property in the Hardware passes to the Buyer, the Buyer shall hold the Hardware as THE COMPANY’S bailee, and shall keep the Hardware separate from that of the Buyer and third parties and properly stored, protected and insured and identified as THE COMPANY’S property. THE COMPANY shall be entitled to seek a court injunction to prevent the Buyer from selling, transferring or otherwise disposing of the Hardware.
3.3 Until such time as the property in the Hardware passes to the Buyer, THE COMPANY shall be entitled at any time to require the Buyer to deliver up the Hardware 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 Hardware is installed or stored and repossess the Hardware.
3.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Hardware which remains 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.
4 HARDWARE WARRANTY
4.1 Unless otherwise specified The COMPANY warrants to the Buyer that the Hardware supplied hereunder by THE COMPANY is free from defects of workmanship and materials for the period set out below which commences on installation by THE COMPANY or on delivery of Hardware if not to be installed by THE COMPANY. If the Buyer delays installation by THE COMPANY for more than 30 days from delivery installation shall be deemed to have occurred on the thirtieth day following delivery. THE COMPANY undertakes subject to Paragraphs 4.3, 4.4 & 4.5 below to repair or, at its option, to replace the hardware purchased hereunder which THE COMPANY has on inspection found to be defective:
4.1.1 for ninety (90) days in the case of upgrades and spare parts sales unless otherwise stated in writing by a company representative at the time of contracting
4.1.2 for a minimum of one (1) year and as specified by the manufacturer in the case of printers and peripherals unless otherwise stated in writing by a company representative at the time of contracting
4.1.3 and otherwise for one (1) year, unless otherwise stated in writing by a company representative, provided that THE COMPANY may vary the warranty periods and service level at its discretion from time to time as published in the THE COMPANY Price List applicable at the time of purchase.
4.1.4 Warranty for products provided which are in whole purchased from a third party manufacturer for example printers and peripherals (but not limited to these) shall be provided direct from that manufacturer and shall be limited to the warranty provisions of that manufacturer.
4.2 Each claim by the Buyer under this warranty shall be notified to THE COMPANY within the warranty period specifying the serial number and date of purchase of Hardware and nature of defect. On notification, THE COMPANY or its agents or representatives shall have the option of telephone diagnostics and remote resolution. Should further testing, inspection, repair or replacement be required, THE COMPANY shall have the option of providing such service on-site at the Buyer’s location or of having the Hardware returned to THE COMPANY or such other address as may be notified to the Buyer freight pre-paid. Replacement parts or Hardware shall be sent by THE COMPANY to the Customer ordinary freight pre-paid, subject always to 4.3, 4.4 & 4.5 below.
4.3 On-site service is only available within the UK mainland and islands connected by road bridges. Onsite service for monitors will usually be a permanent exchange with similar new or refurbished as new monitors.
4.4 In the event of any claim presented under warranty being found on investigation by THE COMPANY either to be outside the scope or duration of this warranty or the fault not being confirmed, then the cost of such investigation and repair shall be borne by the Buyer.
4.5 THE COMPANY shall not be liable at any time for damage or defects in the Hardware or parts caused by:
4.5.1 improper use or installation; or
4.5.2 use of the Hardware outside the specifications detailed in the documentation relating to the Hardware; or
4.5.3 outside the specific application of the Hardware; or
4.5.4 where Hardware has been repaired or modified by persons not authorised by THE COMPANY
4.6.1 Notebook Battery warranty is limited to 6 months from purchase date of 500 charges and discharges whichever is soonest.
4.6.2 Desktop Power Supply Unit warranty is limited to 2 years.
4.6.3 “All in one” PCs warranty is Limited to 1 year unless otherwise stated in writing.
4.6.4 “Shuttle” PCs warranty is Limited to 1 year unless otherwise stated in
4.6.5 Third Party Advance replacement warranties on Monitors will be reduced to return to base warranties should the school permanently mark the monitor casing with security marking specific to the school.
5 SOFTWARE WARRANTY
5.1 In the case of Software produced by THE COMPANY. THE COMPANY Software is warranted to conform substantially to its published functional specifications for a period of ninety (90) days from the date of installation. THE COMPANY will during the said period, at its own expense, correct any such non-conforming Software provided that the Buyer has notified THE COMPANY and upon inspection THE COMPANY has found the Software to be non-conforming. The Buyer’s sole and exclusive remedy under this warranty will be limited to such correction. This warranty is subject to the following conditions:
5.1.1 Any modification of the Software by any persons not authorised by THE COMPANY shall void this warranty.
5.1.2 Damage resulting from or aggravated by negligence or misuse is excluded.
5.1.3 This warranty is subject to the Buyer following the procedures (if any) specified by THE COMPANY from time to time for fault recording.
5.1.4 The Buyer reporting any faults in the Software within seven (7) days of the fault becoming apparent and co-operating with THE COMPANY in carrying out such diagnostic and test routines as THE COMPANY may require in accordance with THE COMPANY’S instructions.
5.1.5 The Buyer returning to THE COMPANY, if so required by THE COMPANY, at its own expense the Software suitably packed.
5.2 In the case of Software not owned by THE COMPANY ("Third Party Software") THE COMPANY will use all reasonable endeavors at its own expense to procure that the Buyer will have the benefit of any warranty given by a Third Party in respect of Third Party Software delivered subject to the Buyer complying with the conditions of such warranties.
6 SOFTWARE LICENCE
6.1 If the Buyer is furnished with a developer's software license, this will be in the form of an invoice from THE COMPANY'S suppliers. This invoice will act as the documentation for the licenses purchased.
6.2 Buyer Upon delivery of the Software the Buyer will be granted and will accept a non-exclusive, non-transferable license to use the Software on a single designated system or temporary back up system containing not more than one central processing or master unit ("CPU"), on the terms of this Agreement including the following:
6.2.1 The Buyer undertakes not to copy Software in whole or in part other than up to a maximum of three (3) machine readable copies for Buyer's internal use on a single designated CPU.
6.2.2 The Buyer undertakes not to reproduce, translate, adapt, vary or modify the Software.
6.2.3 The Buyer undertakes to reproduce and include THE COMPANY'S or any third party's copyright notice and/or any other legend as requested by THE COMPANY on each copy of the Software including partial copies and modifications of the Software.
6.2.4 The Buyer agrees not to reverse assemble or reverse compile the Software in whole or in part except to the extent permitted by law.
6.3The Buyer shall grant access to the Software only to those employees whose duties require it and shall take all such reasonable steps to ensure that all such persons are bound by the same obligations as the Buyer and in particular shall ensure that in the case of employees such obligations are expressed so as to continue in force beyond any termination of their employment with the Buyer.
6.4 THE COMPANY shall be entitled from time to time during working hours, on giving reasonable notice, to enter on to Buyer's premises where Software is installed to verify whether the Buyer is complying with these conditions.
7 LICENCE TERM
This License is effective from the date of delivery of Software by THE COMPANY and shall remain in effect until it expires or is terminated by the Buyer or by THE COMPANY provided THE COMPANY shall only exercise its right to terminate in the event that continued use or possession of the Software by the Buyer infringes rights of the developer or of a third party or if THE COMPANY is forced so to do by law or if the Buyer is in breach of contract. In the event of such exceptional termination, the Buyer shall cease all further use of Software and will certify in writing to THE COMPANY that to the best of its knowledge the original and all copies of the Software have been (at the option of THE COMPANY) either returned to THE COMPANY or destroyed.
Unless specifically agreed in writing and authorised by a Director of THE COMPANY these Conditions shall supersede all Terms and Conditions of the Buyer. These Conditions shall constitute the entire understanding between the parties and (for the avoidance of doubt) acceptance of deliveries of the Goods hereunder shall constitute acceptance by the Buyer of these Conditions. No liability shall attach to THE COMPANY its agents or employees in respect of any representations made or advice given with regard to Goods to be supplied unless confirmed in writing and signed by a Director of THE COMPANY.
9 CANCELLATION OR RESCHEDULING NSO-SF-97002 March 2007
If Buyer cancels an order for Goods (or re-schedules and subsequently cancels) then the Buyer may be charged a cancellation charge of 15% of the Goods price. The Buyer agrees that such charge amounts to a genuine pre-estimate of the losses suffered by THE COMPANY on such cancellation. Rescheduling of deliveries will only be considered by THE COMPANY if made at least 48 hrs (2 working days) before dispatch.
10.1 Catalogues, price lists and other advertising literature or materials as used by the Company are intended only as an indication as to price and range of Goods offered and no prices, descriptions or other particulars shall be binding on the Company.
10.2 All prices are given by the Company at the time of the order on an ex-works basis and unless otherwise agreed the Buyer is liable to pay for the cost of delivery. The Company may by giving notice to the Buyer at any time before the delivery increase the price of the Goods to reflect an increase in the cost to the Company.
Where the Goods supplied include installation the Goods supplied will be invoiced when delivered to the Buyer. This will normally be in the following order of:
1) The supply and installation of the cabling
2) The supply of Workstations and Application Software
3) The supply of peripherals e.g. printers.
4) The supply and installation of the File Server.
THE COMPANY reserves the right to change the order of the above at any time. Unless otherwise notified to the Buyer in writing by THE COMPANY, the Buyer shall pay all invoices within SEVEN (7) days of the date thereof (time being of the essence). THE COMPANY reserves the right to charge interest at a rate of 3% per annum above Lloyds TSB Bank base rate ruling from time to time on any payment or any part payment overdue calculated from the date due and to recover its expenses including legal fees and costs of collection and to suspend delivery, performance of any warranty or (at THE COMPANY'S option) forthwith to determine the same in the event of non-payment.
12 DELIVERY AND INSTALLATION
12.1 Dates for delivery of the Goods are estimates only and are subject to THE COMPANY'S availability schedule. THE COMPANY shall make every reasonable effort to meet any delivery date(s) acknowledged but shall not be liable for failure to meet such date(s).
12.2 Where THE COMPANY installs Hardware, THE COMPANY shall perform the standard inspection diagnostic checks. For Hardware designated by THE COMPANY as Buyer installable the Buyer shall be responsible for the installation of Hardware in accordance with instructions provided by THE COMPANY.
All deliveries shall be made between 09.00 hours and 18.00 hours ("working hours") Monday to Friday inclusive excluding Public Holidays. If the Buyer requires delivery to be made outside such times an additional charge shall be payable. THE COMPANY reserves the right to make partial deliveries
13 DAMAGES, SHORTAGES OR LOSS IN TRANSIT
The Buyer shall inspect the Goods immediately on delivery and THE COMPANY will accept responsibility for damages, shortage or loss in transit only if:
13.1 Such loss or damage is noted on the consignment note or delivery document upon receipt, and copies provided to THE COMPANY or is notified in writing to THE COMPANY in cases of outwardly non visible loss or damage to unchecked Goods to arrive in either case within five (5) working days from receipt of the Goods by the Buyer; and
a) In cases of suspected damage in transit the added packaging is retained for inspection; and
b) The Goods are handled by the Buyer in accordance with THE COMPANY’S or the carriers conditions of carriage or handling stipulations.
Where THE COMPANY accepts responsibility under this clause THE COMPANY shall at its option replace or repair any Goods proved to THE COMPANY'S satisfaction to have been lost or damaged in transit.
14 ACCEPTANCE OF GOODS
a. For THE COMPANY installed Goods, satisfactory completion of THE COMPANY'S standard installation procedure and an Acceptance Form signed by the Buyer and THE COMPANY will be sufficient to establish acceptance.
b. If the acceptance Form is not signed by the Buyer within seven (7) days after physical installation of the Hardware and in the absence of written notification of valid reasons justifying non acceptance, the Buyer shall be deemed to have accepted the Goods on the eighth (8th) day.
c. If installation is not performed by THE COMPANY, THE COMPANY shall be under no obligation to perform any acceptance test procedures and the date of acceptance shall be the date of delivery to the Buyer.
d. Title to the goods transfers at the point that the invoice is raised.
15 THE COMPANY'S LIABILITY
a. Goods have been manufactured or developed by THE COMPANY or third parties to standard specifications. The Buyer accepts that THE COMPANY is acting only as a supplier and that it is the Buyer's responsibility to verify that the Hardware and Software will be suitable for its own requirements. There are no warranties, conditions, guarantees or representations as to description satisfactory quality or fitness for a particular purpose or other warranties, conditions, guarantees or representations whether express implied by statute or otherwise oral or in writing except as provided herein and except as to statutory implied terms as to title.
b. Notwithstanding (a) above the remedies set out in this Agreement do not apply to consumer transactions except in so far as they add to Buyer's rights implied by statute. In relation to such transactions the rights and obligations of THE COMPANY and the Buyer in respect of defects in any Goods supplied by THE COMPANY to the Buyer under this agreement, the fitness for any particular purpose of such Goods and the correspondence of such Goods with any description or sample shall be determined by the Terms and Conditions implied by Statue.
c. Notwithstanding (a) and (b) above all rights which the Buyer may have under the Consumer Protection Act 1987 are in addition to those set out in this Agreement.
d. If THE COMPANY is unable other than through the act or default of the Buyer within a reasonable time to replace or repair the defective Hardware or correct non-conforming Software in accordance with the warranty set forth herein and where the Hardware or Software in question is totally unusable due to the defect or non-conformity the Buyer may reject it and upon its return to THE COMPANY'S premises is entitled to recover the purchase price of the Hardware or the license fee for the Software as appropriate.
e. THE COMPANY shall be liable for death or personal injury arising from the use of Goods to the extent that it results from the negligence of THE COMPANY or its employees. THE COMPANY shall also be liable to the Buyer for any other direct loss of or damage to tangible property caused solely by the negligence of THE COMPANY or its employees subject always to the maximum aggregate liability of THE COMPANY under this Agreement or in connection with the supply of any Goods or services under it, whether in respect of contract, tort or otherwise in relation to any successful claim made on THE COMPANY by the Buyer not exceeding whichever is the greater of £250,000 or the amount received by THE COMPANY from the Buyer in respect of sale of the Goods and services to which the claim relates.
f. The Buyer agrees that THE COMPANY will not be liable for any loss arising out of the provision of Goods or services by any company organisation or person other than THE COMPANY or for any loss caused by the Buyer's failure to perform his obligations in relation to this agreement.
g. THE COMPANY shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or of data, teaching time or the cost over cover) in connection with or arising out of the supply, functioning or use of the Hardware or the Software even if THE COMPANY shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided for in this agreement.
h. Except in respect of the liability of THE COMPANY for death or personal injury resulting from the negligence of THE COMPANY or its employees or a claim under (b) or (c) above or in respect for a claim for non-payment of monies due under this agreement no action regardless of form arising out of the transactions in relation to this agreement may be brought by either party more than 2 years after the cause of action has accrued.
THE COMPANY reserves the right to change specifications of Goods at any time upon giving such reasonable notice as is practicable in the circumstances and to supply Hardware and/or Software which differs from the specifications agreed between THE COMPANY and Buyer provided that such substitutions do not materially affect the performance of the Goods.
a. THE COMPANY shall have the right, without prejudice to any other remedies, at any time by giving notice in writing to the Buyer to terminate forthwith this agreement, including any Software license in any of the following events:-
i. if the Buyer fails to pay any sums to THE COMPANY on the due date of payment; or
ii. if the Buyer commits any other breach of any of the Conditions provided that if the breach in question is one which the Buyer can effectively remedy then the said notice of termination shall not be effective to terminate this agreement unless the the Buyer fails within thirty (30) days of the date of such notice effectively to remedy the breach complained of; or
iii. if the Buyer ceases to carry on business or substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due.
a. Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) provided that such a failure is due to causes beyond its reasonable control.
b. Failure by THE COMPANY to exercise or delay exercising any of these Conditions shall not constitute or be deemed to be a waiver of THE COMPANY'S rights hereunder nor prejudice THE COMPANY'S rights to take subsequent action.
c. The headings in these Conditions are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of these Conditions.
d. The invalidity or unenforceability for any reason of any part of these Conditions shall not prejudice the continuation in force of the remainder thereof.
e. The Agreement set out in these Conditions shall not be assigned by the Buyer without the prior written consent of THE COMPANY. Any such attempt to assign shall be void.
f. These Conditions shall be deemed to have been made in, and shall be construed pursuant to, the laws of England
g. Any notice required to be given under these Conditions shall be in writing and shall be sent to the respective addresses of the Buyer set out in each sales order or the registered office of The Company to be served.
h. Where the customer comprises two or more persons their liability and obligations to THE COMPANY shall be joint and several.
19 RIGHTS OF THIRD PARTIES
Both parties expressly agree to waive any rights that they may have under the Contracts (Rights of Third Parties) Act 1999 to bring a claim in respect of any other agreement entered into between the parties to this Agreement in relation to the subject matter of NSO-SF-97002 March 2007
This Agreement and that any third party mentioned in this Agreement either specifically or by implication shall be expressly excluded from bringing a claim under the said act.