Terms & Conditions

WHERE YOU ARE PURCHASING PRODUCTS FROM US AS A CONSUMER (I.E. NOT AS A BUSINES OR IN THE COURSE OF YOUR TRADE), SECTION 1 SETS OUT THE TERMS ON WHICH WE SELL OUR PRODUCTS TO YOU.

 

WHERE YOU ARE PURCHASING PRODUCTS FROM US OTHERWISE THAN AS A CONSUMER, SECTION 2 SETS OUT THE TERMS ON WHICH WE SELL OUR PRODUCTS TO YOU.

Each of Sections 1 and 2 are completely separate and independent of one another: any defined terms used in either Section 1 or Section 2 shall therefore apply only to that Section.

 

SECTION 1 – SALES TO CONSUMERS

PLEASE NOTE CLAUSE 13 WHICH LIMITS OUR LIABILITY TO YOU AND CLAUSE 8.4 WHICH REMOVES YOUR RIGHT IN CERTAIN CIRCUMSTANCES TO CANCEL FOR CONVENIENCE.

1.  These terms

1.1  What these terms cover. These are the terms and conditions on which we supply products to you, whether these are goods or digital content. You should note that where you are required to download software from our website http://www.digico.biz/docs/about/open-source-software.shtml

which is integral to the use and functionality of the goods we sell to you, that software is referred to as “integral software”. Integral software forms part of the goods: any reference to “goods” therefore also refers to integral software unless these terms state otherwise.

Any software which is not integral software is referred to as “digital content”.

In these terms integral software and digital content are referred to together as “software”.

1.2  Software is licensed to you, and so you do not own it. Any software for which you have paid us and which you download from our website is not sold to you: it is licensed to you on the terms of the End User Licence, a copy of which can be found at http://www.digico.biz/docs/about/legal.shtml

Your use of any software, whether integral software or digital content, is subject to you accepting the terms of the End User Licence. You agree not to download or to use any software where you do not agree to be bound by the terms of the End User Licence.

Where you download or use any software you indicate your acceptance of the terms of the End User Licence. Please therefore read the terms of the End User Licence before you submit your order to us and before you download any software.

1.3  Why you should read these terms. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will provide products to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.

2.  Information about us and how to contact us

2.1  Who we are. We are DIGICO UK LIMITED, a company registered in England and Wales. Our company registration number is 4336508 and our registered office is at Unit 10, Silverglade Business Park, Leatherhead, Chessington, Surrey KT9 2QL. Our registered VAT number is GB 915 9952 82.

2.2  How to contact us. You can contact us by telephoning our customer service team at +44 (0) 1372 845600 or by writing to us at info@digiconsoles.com or our registered office address (see clause 2.1).

2.3  How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.

2.4  "Writing" includes emails. When we use the words "writing" or "written" in these terms, this includes emails.

3.  Our contract with you

3.1  How we will accept your order. Our acceptance of your order will take place when we email you to accept it, at which point a contract will come into existence between you and us.

3.2  If we cannot accept your order. If we are unable to accept your order, we will inform you of this and will not charge you for the product. This might be because the product is out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because we have identified an error in the price or description of the product or because we are unable to meet a delivery deadline you have specified.

3.3  Your order number. We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.

3.4  We only sell to the UK. Our website is solely for the promotion of our products in the UK. Unfortunately, we do not accept orders from or deliver to addresses outside the UK.

4.  Our products

4.1  Goods may vary slightly from their pictures. The images of the goods on our website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that a device's display of the colours accurately reflects the colour of the goods. Your goods may vary slightly from those images.

4.2  Product packaging may vary. The packaging of the product may vary from that shown in images on our website.

5.  Your rights to make changes

If you wish to make a change to the product you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the product, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to end the contract (see clause 8- Your rights to end the contract).

6.  Our rights to make changes

6.1  Minor changes to the products. We may change the product:

(a)  to reflect changes in relevant laws and regulatory requirements; and

(b)  to implement minor technical adjustments and improvements, for example to address a security threat.

These changes will not affect your use of the product.

6.2  Updates to software. We may require you to update software, provided that where the software is integral software it shall not alter the use or functionality of your product, and where it is digital content it shall always match the description of it that we provided to you before you bought it.

7.  Providing the products

7.1  Delivery costs. The costs of delivery of goods will be as displayed to you on our website.

7.2  When we will provide the products.

(a)  If the products are goods. If the products are goods we will deliver them to you as soon as reasonably possible and in any event within 30 days after the day on which we accept your order. Where you are required to download integral software for the functioning of the product, you will be responsible for choosing when to download that software and the 30 day time limit will not apply to the download.

(b)  If the product is a one-off purchase of digital content downloaded through our website. We will make the digital content available for download by you as soon as we accept your order.

7.3  We are not responsible for delays outside our control. If our supply of the products is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any products you have paid for but not received.

7.4  If you are not at home when the product is delivered. If no one is available at your address to take delivery and the products cannot be posted through your letterbox, we will leave you a note informing you of how to rearrange delivery or collect the products from a local depot.

7.5  If you do not re-arrange delivery. If you do not collect the products from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery or collect them from a delivery depot we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract and clause 10.2 will apply.

7.6  Your legal rights if we deliver goods late. You have legal rights if we deliver any goods late. If we miss the delivery deadline for any goods then you may treat the contract as at an end straight away if any of the following apply:

(a)  we have refused to deliver the goods;

(b)  delivery within the delivery deadline was essential (taking into account all the relevant circumstances); or

(c)  you told us before we accepted your order that delivery within the delivery deadline was essential.

7.7  Setting a new deadline for delivery. If you do not wish to treat the contract as at an end straight away, or do not have the right to do so under clause 7.6, you can give us a new deadline for delivery, which must be reasonable, and you can treat the contract as at an end if we do not meet the new deadline.

7.8  Ending the contract for late delivery. If you do choose to treat the contract for an order as at an end for late delivery under clause 7.6 or clause 7.7, you can cancel your order for any of the goods or reject goods that form part of the same order that have been delivered. If you wish, you can reject or cancel part of the same order for some of those goods (not all of them), unless splitting them up would significantly reduce their value. After that we will refund any sums you have paid to us for those cancelled goods and their delivery. If the goods have been delivered to you, you must either post them back to us or (if they are not suitable for posting) allow us to collect them from you. We will pay the costs of postage or collection. Please call customer services or email us (see details in clause 2.2), and visit our webpage http://shop.digico.biz/index.php?route=account/return/add for a return label or to arrange collection.

7.9  When you become responsible for the goods. A product which is goods will be your responsibility from the time we deliver the product to the address you gave us.

7.10  When you own goods. You own a product which is goods once we have received payment in full. Please note however that you will not own any software we provide to you, whether integrated software or digital content: any software we provide will be licensed to you under the terms of the End User Licence.

7.11  What will happen if you do not give required information to us. We may need certain information from you so that we can supply the products to you, for example, your delivery address for goods. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract (and clause 10.2 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying products late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.

7.12  Reasons we may suspend the supply of products to you. We may have to suspend the supply of a product to:

(a)  deal with technical problems or make minor technical changes;

(b)  update the product to reflect changes in relevant laws and regulatory requirements;

(c)  make changes to the product as notified by us to you (see clause 6).

7.13  We may also revoke your licence to use the software where you have not paid for any product. We may revoke your licence to use our software. In such event, all rights granted to you under our End User Licence shall cease, you must cease all activities authorised by the End User Licence, and you must destroy all copies of our software and all of its component parts within your control.

8.  Your rights to end the contract

8.1  You can always end your contract with us. Your rights when you end the contract will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the contract:

(a)  If what you have bought is faulty or misdescribed you may have a legal right to end the contract (or to get the product repaired or replaced or a service re-performed or to get some or all of your money back), see clause 11;

(b)  If you want to end the contract because of something we have done or have told you we are going to do, see clause 8.2;

(c)  If you have just changed your mind about the product, see clause 8.3. You may be able to get a refund if you are within the cooling-off period, but this may be subject to deductions and you will have to pay the costs of return of any goods;

(d)  In all other cases (if we are not at fault and there is no right to change your mind), see clause 8.6.

8.2  Ending the contract because of something we have done or are going to do. If you are ending a contract for a reason set out at 8.2(a) to 8.2(d) below the contract will end immediately and we will refund you in full for any products which have not been provided and you may also be entitled to compensation. The reasons are:

(a)  we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed;

(b)  there is a risk that supply of the products may be significantly delayed because of events outside our control;

(c)  we have suspended supply of the products for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than [30 days]; or

(d)  you have a legal right to end the contract because of something we have done wrong including because we have delivered late (see clause 7.6).

8.3  Exercising your right to change your mind (Consumer Contracts Regulations 2013) – ‘cooling-off period’. For most products bought online you have a legal right to change your mind within 14 days and receive a refund. These rights, under the Consumer Contracts Regulations 2013, are explained in more detail in these terms. Please note that this does not apply to digital content where you have downloaded it during the cooling-off period see clause 8.4(a)).

8.4  When you don't have the right to change your mind. You do not have a right to change your mind in respect of:

(a)  digital content after you have started to download or stream these – please note that where you download integral software for a product which you have bought from us during the cooling-off period, you will not lose your right to return the goods; and

(b)  sealed audio or sealed video recordings or sealed computer software (unless it is integral software, once these products are unsealed after you receive them.

8.5  How long do I have to change my mind? How long you have depends on what you have ordered and how it is delivered.

(a)  Have you bought goods? If so, you have 14 days after the day you (or someone you nominate) receives the goods, unless your goods are split into several deliveries over different days. In this case you have until 14 days after the day you (or someone you nominate) receive the last delivery to change your mind about the goods. Where you have bought goods for which you must download integral software, the 14 day time period runs from the date of delivery of the goods to which it relates.

(b)  Have you bought digital content? If so, you have 14 days after the day we email you to confirm we accept your order, or, if earlier, until you start downloading or streaming. If we delivered the digital content to you immediately, and you agreed when ordering that you would lose your right to change your mind as soon as you start downloading or streaming the digital content, you will not have a right to change your mind.

8.6  Ending the contract where we are not at fault and there is no right to change your mind. Even if we are not at fault and you do not have a right to change your mind (see clause 8.1), you can still end the contract before it is completed, but you may have to pay us compensation. A contract is completed for:

(a)  goods when the product is delivered and paid for; or

(b)  digital content when the product is downloaded and paid for.

If you want to end a contract before it is completed where we are not at fault and you have not changed your mind, just contact us to let us know. The contract will end immediately and we will refund any sums paid by you for products not provided but we may deduct from that refund (or, if you have not made an advance payment, charge you) reasonable compensation for the net costs we will incur as a result of your ending the contract.

9.  How to end the contract with us (including if you have changed your mind)

9.1  Tell us you want to end the contract. To end the contract with us, please let us know by doing one of the following:

(a)  Phone or email. Call customer services or email us (contact details are contained in clause 2.2). Please provide your name, home address, details of the order and, where available, your phone number and email address.

(b)  Online. Complete the [form http://shop.digico.biz/index.php?route=account/return/add ] on our website.

(c)  By post. Either complete and send to us the completed cancellation form contained in the Schedule to these terms (see below), or simply write to us at the address contained in clause 2.2 (including details of what you bought, when you ordered or received it and your name and address).

9.2  Returning goods after ending the contract. If you end the contract for any reason after goods have been dispatched to you or you have received them, you must return them to us. You must either, post them back to us at the address contained in clause 2.2 or (if they are not suitable for posting) allow us to collect them from you. Please call customer services or email us (contact details provided at clause 2.2) for a return label or to arrange collection. If you are exercising your right to change your mind you must send off the goods within 14 days of telling us you wish to end the contract.

9.3  When we will pay the costs of return. We will pay the costs of return:

(a)  if the goods are faulty or misdescribed; or

(b)  if you are ending the contract because we have told you of an upcoming change to the product or these terms, an error in pricing or description, a delay in delivery due to events outside our control or because you have a legal right to do so as a result of something we have done wrong.

In all other circumstances (including where you are exercising your right to change your mind) you must pay the costs of return. 

9.4  What we charge for collection. If you are responsible for the costs of return and we are collecting the product from you, we will charge you the direct cost to us of collection.

9.5  How we will refund you. We will refund you the price you paid for the products including delivery costs (where appropriate), by the method you used for payment. However, we may make deductions from the price, as described below.

9.6  Deductions from refunds if you are exercising your right to change your mind. If you are exercising your right to change your mind:

(a)  We may reduce your refund of the price (excluding delivery costs) to reflect any reduction in the value of the goods, if this has been caused by your handling them in a way which would not be permitted in a shop. If we refund you the price paid before we are able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.

(b)  The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer. For example, if we offer delivery of a product within 3-5 days at one cost but you choose to have the product delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option.

9.7  When your refund will be made. We will make any refunds due to you as soon as possible. If you are exercising your right to change your mind then:

(a)  If the products are goods and we have not offered to collect them, your refund will be made within 14 days from the day on which we receive the product back from you or, if earlier, the day on which you provide us with evidence that you have sent the product back to us. For information about how to return a product to us, see clause 9.8.

(b)  In all other cases, your refund will be made within 14 days of your telling us you have changed your mind

10.  Our rights to end the contract

10.1  We may end the contract if you break it. We may end the contract for a product at any time by writing to you if:

(a)  you do not make any payment to us when it is due and you still do not make payment within [14] days of us reminding you that payment is due;

(b)  you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the products, for example, the correct delivery address;

(c)  you do not, within a reasonable time, allow us to deliver the products to you; or

(d)  where you breach the terms of our End User Licence.

10.2  You must compensate us if you break the contract. If we end the contract in the situations set out in clause 10.1 we will refund any money you have paid in advance for products we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the contract. We will not refund you for any digital content which you have downloaded.

11.  If there is a problem with the product

11.1  How to tell us about problems. If you have any questions or complaints about the product, please contact us. You can telephone our customer service team or write to us (see clause 2.1 for details).

11.2  Summary of your legal rights where there is a fault with our goods. Where our goods (which includes integral software):.

(a)  are faulty you can return them to us within 30 days of you receiving them, and be entitled to a full refund;

(b)  develop a fault within six months of you receiving them, and they cannot be repaired or replaced, then you will entitled to a full refund; or

(c)  develop a fault after six months of you receiving them, please contact us (see clause 2.1 for details).

11.3  Summary of your legal rights where there is a fault with our digital content. The digital content that we sell to you under these terms must be as described, fit for purpose and of satisfactory quality:

(a)  if your digital content is faulty, you're entitled to have the digital content repaired or a replaced;

(b)  if the fault can't be fixed, or if it hasn't been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back;

(c)  if you can show the fault has damaged your device and we haven't used reasonable care and skill, you may be entitled to have the device repaired or compensation.

11.4  Your obligation to return rejected goods. If you wish to exercise your legal rights to reject goods you must either post them back to us or (if they are not suitable for posting) allow us to collect them from you. We will pay the costs of postage or collection. Please call customer services on or email us at (see clause 2.1 for details) for a return label or to arrange collection.

11.5  Faults not covered by the above rights to refund/repair/replacement. Damage caused by any repair to the products other than by us, or damage to the goods due to misuse by you or a third party, are not covered by this clause 11. In addition, any unauthorised service or modification of the products will void your right to a refund/repair/replacement.

12.  Price and payment

12.1  Where to find the price for the product. The price of the product will be the price indicated on the order pages when you placed your order. We use our best efforts to ensure that the price of the product advised to you is correct. However please see clause 12.3 for what happens if we discover an error in the price of the product you order.

12.2  We will pass on changes in the rate of VAT. If the rate of VAT changes between your order date and the date we supply the product, we will adjust the rate of VAT that you pay, unless you have already paid for the product in full before the change in the rate of VAT takes effect.

12.3  What happens if we got the price wrong. It is always possible that, despite our best efforts, some of the products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the product's correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the product's correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order. If we accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.

12.4  When you must pay and how you must pay. We accept payment with the credit and debit cards listed on our website. When you must pay depends on what product you are buying:

(a)  For goods, you must pay for the products before we despatch them. We will not charge your credit or debit card until we despatch the products to you.

(b)  For digital content, you must pay for the products before you download them.

12.5  We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 3% a year above the base lending rate of National Westminster Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.

12.6  What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know and we will not charge you interest until we have resolved the issue.

13.  Our responsibility for loss or damage suffered by you

13.1  We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.

13.2  We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation. To the extent permitted by law, and except as otherwise provided in these terms, we exclude all conditions, warranties, representations or other terms which may apply to your use of our products, whether express or implied

13.3  We are not liable for damages caused by defective digital content in certain circumstances. If defective digital content which we have supplied damages a device or other digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.

13.4  We are not liable for your use of software other than in accordance with these terms (and in particular where you breach the terms of our End User Licence). You acknowledge and agree that we shall not be responsible for any claims, losses and/or damages incurred by you as a result of you combining our software with materials/software not supplied by us or our representatives or modifying our software without our approval, or where you use our software other than in accordance with our instructions or the provisions of these terms.

13.5  We are not liable for business losses. We only supply the products for domestic and private use. If you use the products for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

14.  How we may use your personal information

14.1  How we will use your personal information. We will use the personal information you provide to us:

(a)  to supply the products to you;

(b)  to process your payment for the products; and

(c)  if you agreed to this during the order process, to give you information about similar products that we provide, but you may stop receiving this at any time by contacting us.

14.2  We will only give your personal information to other third parties where the law either requires or allows us to do so.

15.  Other important terms

15.1  We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation, and we will ensure that the transfer will not affect your rights under the contract.

15.2  You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.

15.3  Nobody else has any rights under this contract (except someone you pass your guarantee on to). This contract is between you and us. No other person shall have any rights to enforce any of its terms.

15.4  If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

15.5  Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.

15.6  Which laws apply to this contract and where you may bring legal proceedings. These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.

  • Model Cancellation Form

(Complete and return this form only if you wish to withdraw from the contract)

To DIGICO UK LIMITED, Unit 10, Silverglade Business Park, Leatherhead, Chessington, Surrey KT9 2QL, or by email to info@digiconsoles.com

I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the supply of the following service [*],

Ordered on [*]/received on [*],

Name of consumer(s),

Address of consumer(s),

Signature of consumer(s) (only if this form is notified on paper),

Date

[*] Delete as appropriate

© Crown copyright 2013.


 

SECTION 2 – SALES TO BUSINESSES/NON-CONSUMERS

DiGiCo (UK) Ltd

TERMS & CONDITIONS OF SALE

  1. Interpretation

1.1 In these Conditions:

“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.

“End User Licence” has the meaning given to it in Condition 2.2. “Goods” means the goods (including any part delivery of the goods or any parts for them) including any Integral Software, which the Seller is to supply in accordance with these conditions.

“Integral Software” means any software contained in the goods and which is integral to its use and functionality at the point of sale. “Seller” means DiGiCo (UK) Ltd (registered in England under number 4336508).

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires), includes any special terms and conditions agreed in Writing between the Buyer and the Seller.

“Contract” means the contract for the purchase and sale of the Goods.

“Writing” includes Email, facsimile transmission and any comparable means of communication.

1.2  Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3The headings in these Conditions are for convenience only and

shall not affect their interpretation.

  1. Basis of the Sale

2.1  The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern this Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2.2  THE BUYER ACKNOWLEDGES THAT THE INTEGRAL SOFTWARE IS LICENSED ON THE TERMS OF THE END USER LICENCE, A COPY OF WHICH CAN BE FOUND AThttp://www.digico.biz/legal AND THAT ITS USE OF THE GOODS IS SUBJECT TO THE BUYER ACCEPTING AND AGREEING TO THE TERMS OF THE END USER LICENCE, AND SUCH ACCEPTANCE AND AGREEMENT SHALL BE INDICATED BY THE BUYER’S USE OF THE GOODS. THE BUYER UNDERTAKES NOT TO USE THE GOODS WHERE IT DOES NOT ACCEPT THE TERMS OF THE END USER LICENCE.

2.3  No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.4  The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into this 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.

2.5  Any advice or recommendation given by the Seller or its employees or agents 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 the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller 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 Seller shall be subject to correction without any liability on the part of the Seller.

 

  1. Orders and specifications

 

3.1  No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s written acknowledgement.

3.2  The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform this Contract in accordance with its terms.

3.3  The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s written acknowledgement.

3.4  If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller 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 Seller’s use of the Buyer’s specification.

3.5  The Seller 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 Seller’s specification, which do not materially affect their quality or performance.

3.6  No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer may specify, which shall include indemnifying the Seller in full against all loss (including loss of profit), costs (including the cost of all labour

and material used), damages, charges and expenses incurred by the Seller as a result of cancellation.

 

  1. Price of Goods

4.1  The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, a price will be given or quoted on request. All prices quoted are valid for the duration of the current price list from time to time in force or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.2  The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3  Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an Ex-works basis (as set out in Condition 11.4), and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and, if applicable, insurance.

4.4  The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

4.5  The cost of pallets and shipping containers will be charged to

the Buyer in addition to the price of the Goods.

 

5.Terms of Payment

5.1  Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods (or remainder thereof where a deposit is paid in accordance with Condition 5.2) on or at any time after delivery or at any time after the Seller has notified the Buyer that the Goods are ready for collection .

5.2  The Buyer shall normally pay 20% deposit of the price of the Goods with order and the balance on the Seller shipping the Goods, (or as otherwise agreed in Writing) notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of this Contract. Receipts for payment will be issued only upon request.

5.3  If the Buyer fails to make any payment on the due date then,

without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.3.1  cancel the contract or suspend any further deliveries to the Buyer;

5.3.2  appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract

between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above National Westminster Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)

 

  1. Delivery

6.1  Delivery of the Goods shall be made by the Buyer or its agents collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, or by the Seller delivering the Goods to that place.

6.2  Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3  The Seller reserves the right to deliver the Goods in instalments without any adjustment in the price.

6.4  Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat this Contract as a whole as repudiated.

6.5  If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under this Contract or charge the Buyer for any shortfall below the price under this Contract.

 

  1. Risk and Property

7.1  Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1   in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2  in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

7.2  Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller 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 Seller to the Buyer for which payment is then due.

7.3  Until such time as the property in the Goods passes to the Buyer, the Buyer shall not mortgage the Goods, and shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller 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.

7.4  Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller 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.

 

  1. Warranties and liability

8.1  Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time

of delivery and will be free from material defects in material and workmanship for a period of 2 years from the date of their initial use or 2 years from delivery, whichever is the first to expire. Year 1 will have full parts and labour warranty and year 2, parts only.

8.2  The above warranty is given to the Seller subject to the following conditions:

8.2.1  where the Seller has modified the Goods to the Buyer’s specification the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.

8.2.2   the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), loss or damage in transit, misuse or alteration or repair of the Goods without the Seller’s approval, or where the Buyers has failed to comply with the terms of any relevant End User

Licence;

8.2.3   the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;

8.2.4   the above warranty does not extend to parts, software (including Integral Software which shall be covered by the warranty contained in the End User Licence), materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

8.3  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 Contracts Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4  Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements Order) 1976) the statutory rights of the Buyer are not affected by these Conditions.

8.5  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 Seller 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 Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller 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 this Contract.

8.6  Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

8.7  Except in respect of death or personal injury caused by the Seller’s negligence or for matters which cannot be excluded

under law, the Seller shall not be liable to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect, special or consequential loss (all four of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:

8.7.1   any of the Goods, or the manufacture or sale or supply, or failure or delay in supply, of the Goods by the Seller;

9.6.2  any breach by the Seller of any of the express or implied terms of this Contract;

9.6.3  any use made or resale by the Buyer of any of the

Goods, or of any product incorporating any of the Goods; or 9.6.4 any statement made or not made, or advice given or not given, by or on behalf of the Seller, except as expressly provided in these Conditions.

8.8  The Seller shall not be liable to the Buyer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

8.8.1  act of God, explosion, flood, tempest, fire or accident;

8.8.2  war or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.8.3  acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any government,

parliamentary or local authority;

8.8.4  import or export regulations or embargo;

8.8.5  strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

8.8.6  difficulties in obtaining raw materials, labour, fuel, parts or machinery; and

8.8.7  power failure or breakdown in machinery.

8.8.7  the Seller's entire liability under these Conditions shall not exceed the price paid by the Buyer to the Seller, which the Seller

has received in full and cleared funds, for the Goods.

 

9.Indemnity

9.1  If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the

claim, provided that:

9.1.1  the Seller is given full control of any proceedings or negotiations in connection with any such claim;

9.1.2  the Buyer shall immediately on becoming aware of the

claim notify the Seller and give the Seller all reasonable assistance for the purpose of any such proceedings or negotiations;

9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);

9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

 

9.1.5   the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and

 

9.1.6   without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Condition

 

9.1.7   where any claim is brought against the Buyer owing to any adaptation, modification or addition to the Goods the Buyer shall have no liability to the Seller.

 

10. Insolvency of the Buyer

 

10.1    This Condition applies if:

 

10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);

 

10.1.2 an encumbrancer takes possession, or a receiver or administrator is appointed, of any of the property or assets of the Buyer;

 

10.1.3 the Buyer ceases, or threatens to cease, to carry on business or suffers any action in consequence of debt; or

 

10.1.4 the Seller reasonably apprehends that any of the events

mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

 

10.2    If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel this Contract or suspend any further deliveries under

this Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

11. Export terms

 

11.1    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 this 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 shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

 

11.2    Where Goods are supplied for export from the United

Kingdom, the provisions of this Condition 11 shall (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.

 

11.3    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.

 

11.4    Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered Ex-works the Seller’s premises and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

 

11.5    Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in London acceptable to the Seller or, if the Seller has agreed in Writing on or before acceptance of the Buyer’s order, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable either 30, 60 or 90 days (or as agreed in Writing) after sight to the order of the Seller at such branch of National Westminster Bank in England as may be specified in the bill of exchange. The Buyer shall pay for all banking

charges and expenses. Acceptance of any bill of exchange prior to payment date is of the essence of this Contract.

 

12. General

 

12.1    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 of such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

 

12.2    No waiver by the Seller of any breach of this Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

12.3    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 provisions in question shall not be affected thereby.

 

12.4    The Seller shall have the right to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under this Contract and to sub-contract any of its obligations under this Contract by notice in Writing to the Buyer. The Buyer shall not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under this Contract or to sub- contract any of its obligations under this Contract.

 

12.5    This Contract shall be governed by the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the determination of any dispute arising out of or in connection with this Contract.

 

12.6    The parties do not intend that any term of this Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties.

 

12.7    This Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter. Neither party has entered into this Contract in reliance upon any representation or statement which is not expressly set out in this Contract. Nothing in this Condition 12.7 shall be interpreted or construed as limiting or excluding the liability of either party for fraud or fraudulent misrepresentation.

 

12.8    Both parties shall:

 

12.8.1 Recognise that under this Contract they may receive each other's trade secrets and/or the confidential or proprietary information of the other party. All information belonging to or relating to a party including information concerning business plans, customers, supplies, services,

intellectual property and financial results received by the other party as a result of entering into or performing this Contract which is designated as confidential by the disclosing party or is otherwise clearly confidential in nature constitutes 'confidential information';

 

 

12.8.2 not to use confidential information for any purpose other than the purpose for which it is supplied under this Contract and agrees not to divulge confidential information received from the other party to any of its employees who do not need to know it, and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party except to its professional advisers or as may be required by law or any legal or regulatory authority; and

 

12.8.3 use a reasonable degree of care which in any event will not be less than the same degree of care which the receiving party uses to protect its own confidential information to keep and ensure its employees and agents keep any and all such information confidential. This obligation will survive the termination of this Contract for a period of 5 years or, in respect of a particular item of confidential information, until such earlier time as that item of confidential reaches the public domain other than through the receiving party's own default.

 

12.9    Buyer shall:

 

12.9.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);

 

12.9.2 comply with the Seller’s Anti-bribery Policy (available on the Seller's website) and which may be updated from time to time (“Relevant Policy”);

 

12.9.3 maintain in place throughout the term of this Contract

its own policies and procedures, including but not limited to adequate procedures (as determined in the Bribery Act 2010), to ensure compliance with the Relevant Requirements and the Relevant Policy and will enforce them where appropriate;

 

12.9.4 promptly report to Seller any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Contract; and

 

12.9.5 ensure that any person associated with it (as determined in the Bribery Act 2010) who is performing services or providing goods in connection with this Contract does so only

on the basis of a written contract which imposes on and secures from such person terms equivalent to this Condition 12.9.

 

13.Special Order Contracts

 

The following special terms and conditions apply to any purchase of goods or equipment from the Seller where the

order is designated as a Special Order (“Special Order”).

 

13.1    The Seller or its designated representatives shall deliver the Goods to the Buyer’s premises. The Buyer shall be responsible for and shall pay for all installation costs of the Goods and the Buyer shall undertake all such necessary work.

 

13.2    The price for the Goods shall be paid by the Buyer in instalments as set out in writing in the quotation or the Seller’s order acknowledgement.

 

13.3    The Seller shall submit the Goods to its standard works tests before delivery to the Buyer. The Seller shall supply the Buyer on request copies of the specification of the works tests and a certificate that the Goods have passed the same. The Buyer or its authorised representative may attend the works tests.

 

13.4    The Seller or its designated representative shall within a reasonable period of time after the Goods has been installed by the Buyer attend the Buyer’s premises and submit the Goods to the commissioning tests to test that the Goods are in good working order. The Seller shall supply the Buyer with copies of the specification and results of the commissioning tests. The Buyer or its authorised representative may attend the commissioning tests.

 

13.5    The commissioning of the Goods is defined as the stable operation of the hardware and software within the Goods at the time of commissioning. It expressly excludes any software facilities that may be specified for future delivery to the Buyer. It expressly excludes a guarantee that the software will be free of “bugs.”

 

13.6    Once the Goods have successfully completed the commissioning tests as certified by the Seller, the Goods shall be deemed to have accepted by the Buyer. The Buyer will then immediately discharge any sums due under the payment instalment plan as set out in the quotation or the Seller’s order acknowledgement.

 

13.7    If the Seller is prevented or delayed from performing its obligations (including works tests or commissioning tests) by reason of any act or omission of the Buyer, the Buyer will pay to the Seller the price of the Goods as if the relevant tests had been completed and all reasonable costs, charges and losses sustained by the Seller as a result including, without limitation, the costs of storage and insurance of the Goods.

 

13.8    All of the Conditions numbered 1 to 12 above shall apply to the Special Order as if incorporated in full within this Contract with the exception of Conditions 5.1 and 6.1, which shall be excluded.

James Gordon

Managing Director

DiGiCo (UK) Ltd