Daconi Terms and Conditions- continued

6. PRICE OF THE PRODUCTS

6.1 All prices are subject to change without notice and subject to the provisions of clause 6.2 and clause 5.5, will be established at the time the order which gives rise to a Contract is received by Electronic Means or in other cases confirmed or acknowledged by DACONI.

6.2 If Customer agrees to place an order for Product not available at the time of order (a “Backorder”) such order shall be irrevocable and be deemed to be for the Product at the price established at the time the Backorder is taken or confirmed. Should there be any price increase due to a rise of its suppliers price to DACONI or direct costs to which DACONI becomes subject (including without limit costs resulting from currency fluctuation) DACONI shall only increase its price by such level as is necessary.

6.3 Unless otherwise agreed by letter by an Authorised Representative of DACONI all prices exclude the cost of delivery.

6.4 All prices and charges are exclusive of any applicable Value Added Tax, which the Customer will be additionally liable to pay to DACONI.


7. TERMS OF PAYMENT

7.1 Unless DACONI shall have previously agreed in Writing with the Customer that the Products shall be supplied on credit payment for the Products shall be made in full by the Customer with the Customer’s order or on delivery or collection of the Product as determined by DACONI.

7.2 Where DACONI has agreed to supply the Products on credit Customer shall pay the price of the Products within 30 days of the date of DACONI’s invoice notwithstanding that the property in the Products has not passed to the Customer. Invoices will be dated the day of dispatch of the Products. DACONI shall be entitled at its absolute discretion to alter payment terms (other than on concluded Contracts) and withdraw or alter any credit limit granted at any time without notice.

7.3 The time of payment of the price shall be of the essence of the Contract. If the Customer fails to make a payment on the due date then without prejudice to any other right or remedy available to it DACONI shall be entitled to:-

7.3.1 cancel the Contract or suspend any further deliveries or suspend any services to the Customer.

7.3.2 appropriate any payment made by the Customer to such of the Products as DACONI may think fit (notwithstanding any purported appropriation by the Customer).

7.3.3 charge the Customer interest (both before and after judgement) on the amount unpaid at the rate of 5% per annum above Barclays Bank plc base rate from time to time until payment in full is made such interest being calculated on a daily basis.


8. DELIVERY

8.1 Delivery of the Products shall be made by DACONI to such place as shall have been agreed between DACONI and the Customer.  Unless the Customer shall have notified DACONI in Writing within 5 working days of the date of DACONI’s invoice that the Products have not been delivered then delivery shall be deemed to have taken place in accordance with the Contract and the Customer shall not be entitled to raise any claim of short or mishipment. DACONI is entitled to issue its invoice on or after the date of dispatch of Products from its facility.

8.2 DACONI shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Products on behalf of the Customer or the Customer’s customer (if DACONI has agreed to deliver direct) does in fact have the authority.

8.3 Any dates quoted for the delivery of Products are approximate only and DACONI shall not be liable for any delay in delivery of the Products howsoever caused.

8.4 Partial delivery is allowed unless otherwise mutually agreed by both parties. Failure by DACONI to deliver the rest of the goods shall not entitle the Customer to treat the order as a whole as repudiated.

8.5 The Customer shall bear all costs associated with the unjustified refusal of delivery of products. If the refusal is made on the grounds that the order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is accepted by DACONI, DACONI reserves its right to charge accordingly additional fees for return transportation and administrative expenses related thereto, and original carriage costs will not be reimbursed.


9. RISK AND PROPERTY

9.1 Risk of damage to or loss of Products shall pass to the Customer at the time of delivery or if the Customer unjustifiedly fails to take delivery of Products the time when DACONI has tendered delivery of the Products.

9.2 Notwithstanding delivery and the passing of risk of the Products or any other provisions of these Conditions the property in the Products shall not pass to the Customer until DACONI has received in cash or cleared funds payment in full of the price of the Products and all other Products and Services previously sold or supplied by DACONI to the Customer for which payment is then due.

9.3 Until such time as the property in the Products passes to the Customer the Customer shall hold the Products as DACONI’s fiduciary agent and bailee and shall keep the Products separate to those of the Customer and third parties and properly stored protected and insured and identified as DACONI’s property.

9.4 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold) DACONI shall be entitled at any time to require the Customer to deliver up the Products to DACONI and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.


10. WARRANTIES AND LIABILITY

10.1 DACONI does not manufacture the Products (or where the Products comprise computer software does not publish or license the software) and subject to the conditions set out below in this clause 10 DACONI sells the Products with the benefit of the manufacturer’s or publisher’s or licensor’s (“publisher’s”) warranty (as the case may be).

10.2

10.2.1 DACONI will accept liability for defective Products only to the extent that DACONI is entitled to make a claim under the manufacturer’s or publisher’s, Dead on Arrival, warranty or other defective goods terms and actually obtains from the manufacturer or publisher a refund credit repair or replacement in respect of the defective Products. Processing of these defective Products shall be made according to the manufacturer’s procedure and the instructions set in clause 10.4 below. DACONI cannot and shall have no obligation to accept a return of and/or grant a credit for Product not compliant with the manufacturer’s procedures.

10.2.2 DACONI 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 DACONI’s or the manufacturer’s or publisher’s instructions (whether oral or in Writing) misuse or alteration or repair of the Products without DACONI’s approval

10.2.3 DACONI shall be under no liability under the above warranty if the total price of the Products has not been paid.

10.3 All warranties, conditions or other terms implied by common law or statute, or otherwise in connection with the sale or supply of goods or goods or services (save,

in the case of goods as to title) are excluded to the fullest extent permitted by law.

10.4 Any claim by the Customer which is based on a defect in the quality or condition of the Products shall be notified to DACONI’s Customer Services Department. Upon notification of any such claim by the Customer DACONI shall either notify the Customer whether the policy of the manufacturer of the Products is to deal with the Customer direct (in which case the Customer shall deal with the manufacturer direct provided DACONI gives sufficient details to enable the Customer so to do) or shall provide the Customer with an RMA number (in which case the Customer shall return the Products to DACONI in their original UNMARKED packaging together with details of the RMA number and the Customer’s name and address). This clause 10.4 shall only apply to Product Customer is entitled to return to DACONI as provided in these Conditions.

10.5 DACONI shall not be liable to the Customer for any economic or financial loss or damage (including without limit any loss of profits, loss of revenue, liabilities incurred by the Customer to third parties, or additional expenses incurred or the cost of time spent) or any consequential, indirect, or special loss or damage costs expenses or other claims for consequential compensation whatsoever (including without limit loss of or damage to data or loss of goodwill) incurred or suffered by the Customer and in every case howsoever caused or arising (and whether caused by the negligence of DACONI its employees or agents or otherwise).

10.6 DACONI’s liability for direct loss or damage arising from damage to tangible property for which DACONI is liable shall be limited to the VAT exclusive price of the relevant Product or Service in connection with which any claim for damage or loss is made.

10.7 Nothing in these Conditions shall in any way exclude or limit any liability DACONI may have for death or personal injury caused by its negligence.

10.8 DACONI shall not be liable to the Customer or be deemed to be in breach of any Contract by reason of any delay in performing or any failure to perform any of DACONI’s obligation in relation to the Products if the delay or failure was due to any cause beyond DACONI’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond DACONI’s reasonable control:-

10.8.1 Act of God explosion flood tempest fire or accident.

10.8.2 war or threat of war sabotage insurrection civil disturbance or requisition.

10.8.3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental or parliamentary or local authority.

10.8.4 import or export regulations or embargoes.

10.8.5 strikes lock outs or other industrial actions or trade disputes (whether involving employees of DACONI or a third party)

10.8.6 difficulties of DACONI’s supplier in obtaining raw materials labour fuel parts or machinery


11. RETURNS AND REPAIRS

11.1 Except for Special Order Products, which are expressly excluded from these rules and cannot be returned under any circumstances, if DACONI agrees to accept the return of any Products (other than for the purpose set out in Clause 10 above) or agrees to carry out repairs to other Products which have not been purchased from DACONI or agrees to repair Products which are out of warranty the Customer shall not send the same to DACONI unless they are accompanied by an RMA number previously advised by DACONI’s customer services department and a copy of the suppliers sales invoice and are sent in their original packaging or same or similar material.

11.2 The customer shall notify DACONI within 14 working days of any delivery discrepancies, other than for the purposes set out in clause 10. If DACONI issues a returns number (RMA), goods must be returned to DACONI within 10 working days of the date thereof.

11.3 If DACONI has agreed to carry out repairs or to replace Products (or any parts thereof) other than for the purpose set out in clause 10 above the Customer irrevocably authorises DACONI to carry out such repairs or provide such replacements as shall place the Products in proper working order.

11.4 DACONI shall accept no liability for any damage to or loss in transit in Products returned to DACONI whether under this Clause or under Clause 10 above.

11.5 If DACONI has agreed to accept the return of Products other than for the purpose set out in Clause 10 above or than for the purpose of carrying out any other repair or replacement the Products must be returned in their original packaging and in a clean resaleable condition failing which DACONI will refuse to accept the same and the Customer shall remain liable for the price thereof.


12. INSOLVENCY OF CUSTOMER

12.1 This Clause applies if:-

12.1.1 the Customer makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation otherwise than for the purposes of amalgamation or reconstruction.

12.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer or

12.1.3 the Customer ceases or threatens to cease carrying on business or

12.1.4 DACONI reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

12.2 If this Clause applies then without prejudice to any other right or remedy available to DACONI DACONI shall be entitled to cancel the Contract or suspend any further deliveries or services under the Contract without any liability to the Customer and if the Products have been delivered and not paid for then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.


13. GENERAL

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

13.2 No waiver by DACONI of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.3 If any provision of these Conditions is held by any 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.

13.4 The Contract shall be governed by the laws of England and the Customer submits to the exclusive jurisdiction of the English Courts.