Terms and Conditions
1. Definitions and Interpretation
1.1 In these terms and conditions the following words shall have the meanings given:
"Business Day" means any day other than a Saturday, Sunday or a public or bank holiday in England, Wales, Scotland or Northern Ireland;
"Contract" means a contract for the purchase by the Customer of Products or Services from DATEK SOLUTIONS LIMITED incorporating these terms and conditions and arising from the acceptance by DATEK SOLUTIONS LIMITED of an Order pursuant to these terms and conditions;
"Customer” means the person, firm or company ordering Products or Services from DATEK SOLUTIONS LIMITED;
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
"Default” shall mean any breach by either party of its obligations under the Contract, any default, act, omission, negligence or statement by either party, its employees, agents or sub-contractors arising out of or in connection with the Contract and in respect of which either party may be legally liable;
DATEK SOLUTIONS LIMITED means DATEK SOLUTIONS Ltd or, for the purposes of providing the Services, any such other company as DATEK SOLUTIONS Ltd may appoint as sub-contractor to provide the Products or the Services to the Customer;
"Group" means in relation to any party that company and every other company which is for the time being a subsidiary or holding company (as defined in the Companies Act 1985) of that company or a subsidiary of such holding company;
"Intellectual Property Rights” means any copyright, patent, trademark, service marks, registered designs, know-how, confidential information, trade or business names or other similar rights together with applications for any of the foregoing;
"Licence Agreement" means any licence agreement relating to use of the Software;
"Order" means the Customer’s written order for the Products and/or Services;
"Services” means those services which are to be provided by DATEK SOLUTIONS LIMITED to the Customer (including but not limited to configuration or installation services) in conjunction with the supply of Products;
"Software" means any computer software supplied by DATEK SOLUTIONS LIMITED, whether embodied in ROM, RAM, and firmware or on disk, tape or other media.
"Confidential Information” means all information of whatsoever nature (whether oral, written or in any other form) containing or consisting of material of a technical, operational, administrative, economic, marketing, planning, business or financial nature or in the nature of intellectual property of any kind or in the nature of any Specification and relating either to the Products, DATEK SOLUTIONS LIMITED or the Customer (as the case may be);
"Premises” means the address or addresses for delivery of the Products or performance of the Services stated in the Order and confirmed in DATEK SOLUTIONS LIMITED’s written acknowledgment of Order;
GDPR: General Data Protection Regulation ((EU) 2016/679)
"Price” means the price payable for the Products and or Services in accordance with these terms and conditions;
"Products” means those products which are to be sold by DATEK SOLUTIONS LIMITED to the Customer;
"Specification” means any plans, drawings, data or other information relating to the Products or Services;
1.2 All other words and expressions are to be given their normal English meaning taken in the context of the Contract. Any dispute as to the meaning of a word is to be settled by reference to the Oxford English Dictionary.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)
1.4 Any reference to a clause shall mean a clause of these terms and conditions unless otherwise stated.
1.5 The use of headings in these terms and conditions shall be for convenience only and shall not affect the interpretation of these terms and conditions.
1.6 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.7 Words in the singular include the plural and in the plural include the singular.
1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 A reference to writing or written includes fax and email.
2. Contract Formation and description of Products and Services
2.1 All Orders submitted by the Customer to DATEK SOLUTIONS LIMITED and accepted by DATEK SOLUTIONS LIMITED shall be subject to these following terms and conditions of which shall form part of and govern any Contract.
2.2 Acceptance by the Customer of any estimate or quotation for Products and/or Services issued by DATEK SOLUTIONS LIMITED shall be deemed to be acceptance of these terms and conditions.
2.3 Any terms and conditions appearing in any Order or other document whatsoever issued by the Customer shall be void and of no effect and these terms and conditions shall override any previous agreements relating to the provision of Products or Services between the parties.
2.4 No Order placed by the Customer shall be deemed to be accepted by DATEK SOLUTIONS LIMITED until:
(a) a written acknowledgement of Order is issued and executed by DATEK SOLUTIONS LIMITED; or
(b) (if earlier) DATEK SOLUTIONS LIMITED starts to supply the Products or Services.
2.5 Without prejudice to the provisions of clause 2.4, if the Customer wishes to change any Order, (which, for the avoidance of doubt shall include, but shall not be limited to, any amendment, addition or substitution with respect to any specification), any such change is subject to acceptance by DATEK SOLUTIONS LIMITED and the Customer must pay any additional charges associated with fulfilling the changed Order.
2.6 The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate and are submitted to DATEK SOLUTIONS LIMITED within a sufficient time period such as will enable DATEK SOLUTIONS LIMITED to fulfil DATEK SOLUTIONS LIMITED’s obligations under the Contract.
2.7 Any quotation is given on the basis that no Contract shall come into existence until DATEK SOLUTIONS LIMITED accepts the Customer’s Order in accordance with the provisions of clause 2.4. Any quotation is valid for a period of 30 days only from its date, provided that DATEK SOLUTIONS LIMITED has not previously withdrawn it.
2.8 No waiver of or amendment to these terms and conditions shall be effective unless made in writing and signed by a director of DATEK SOLUTIONS LIMITED. Purported amendments by e-mail or telephone will not be effective.
2.9 The Contract contains the entire agreement of the parties in relation to the supply of Products or Services by DATEK SOLUTIONS LIMITED to the Customer and the Customer irrevocably waives any right it might have to claim for damages and/or to rescind a Contract because of any misrepresentation by DATEK SOLUTIONS LIMITED (unless such misrepresentation was made fraudulently) or any warranty not contained in the Contract.
2.10 The quantity and description of any Products or Services shall be as set out in DATEK SOLUTIONS LIMITED's quotation or acknowledgement of order.
2.11 All samples, drawings, descriptive matter, specifications and advertising issued by DATEK SOLUTIONS LIMITED and any descriptions or illustrations contained in DATEK SOLUTIONS LIMITED's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products and Services described in them. They shall not form part of the Contract and this is not a sale by sample.
2.12 If any Products are to be manufactured, ordered, designed, built, configured, altered, adapted, or subjected to any process by or on behalf of DATEK SOLUTIONS LIMITED for the Customer or any Services are to be performed by DATEK SOLUTIONS LIMITED , in each case in accordance with any Specification or design submitted by the Customer, the Customer shall hold DATEK SOLUTIONS LIMITED harmless and shall fully indemnify DATEK SOLUTIONS LIMITED against any and all loss, damage, costs and expenses awarded against or incurred by DATEK SOLUTIONS LIMITED in connection with, or paid or agreed to be paid by, DATEK SOLUTIONS LIMITED , in settlement of any claim for infringement of any patent, copyright, design, trade mark or any other intellectual property right of any other person resulting from DATEK SOLUTIONS LIMITED ’s use of any Specification or design so submitted.
2.13 Subject to clause 11.2 (b), the Customer shall be solely responsible for ensuring the suitability of any Products for any specific purpose.
2.14 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
3.1 The Price shall be the price set out in DATEK SOLUTIONS LIMITED's quotation or written acknowledgment of Order and unless otherwise agreed in writing will be:
(a) Exclusive of Value Added Tax or other applicable sales tax whether in substitution or in addition that shall be paid by the Customer at the rate from time to time in force.
(b) Exclusive of DATEK SOLUTIONS LIMITED's charges for delivery, handling packaging and insurance which will be added to DATEK SOLUTIONS LIMITED's invoice .
3.2 DATEK SOLUTIONS LIMITED will not increase the Price of any Product after acceptance of the Order where the Product is available from stock, irrespective of any price changes from the manufacturer. In all other cases, DATEK SOLUTIONS LIMITED reserves the right to review and increase the price of any Products or Services (on account of increased material or labour costs, or otherwise) at any time before delivery or performance.
3.3 The Customer shall pay to DATEK SOLUTIONS LIMITED any additional sums which, in DATEK SOLUTIONS LIMITED’s sole discretion, are required as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any specification or any other cause attributable to the Customer directly or indirectly, including, without limitation, any failure by the Customer to fulfil any obligation set forth in clause 7.3. DATEK SOLUTIONS LIMITED reserves the right to increase the price of any Products or Services due to any change in delivery dates, quantities or specifications for the Products or the Services requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give DATEK SOLUTIONS LIMITED adequate information or instructions.
4.1 DATEK SOLUTIONS LIMITED may at its discretion offer credit terms to the Customer subject to the status of the Customer and completion by the Customer of a credit application form supplied by DATEK SOLUTIONS LIMITED. Such credit terms shall be determined by DATEK SOLUTIONS LIMITED and confirmed in writing with the Customer.
4.2 Unless and until credit terms are granted, the Customer will pay for any Products or Services on a "cash with order" basis in which case the Customer should allow at least three (3) Business Days for the payment to be credited to DATEK SOLUTIONS LIMITED's account. DATEK SOLUTIONS LIMITED reserves the right not to release any Products or provide any Services until all such payments are cleared and credited to DATEK SOLUTIONS LIMITED's bank account.
4.3 Where credit terms are granted, and unless other terms are granted in writing, the Customer will pay no later than 30 days following the date of DATEK SOLUTIONS LIMITED's invoice and DATEK SOLUTIONS LIMITED reserves the right to suspend deliveries or performance where payment is delayed.
4.4 Where Credit terms are granted, no amendments will be effective unless made in writing by the Credit Manager. Purported Amendments by e-mail or telephone will not be effective.
4.5 If Products are delivered in instalments DATEK SOLUTIONS LIMITED reserves the right to invoice each instalment as and when delivery is made to the Customer in which case payment shall be due in accordance with clause 4.2 or 4.3 above notwithstanding non-delivery of other instalments or fulfilment of the entire order.
4.6 If any payments are overdue the Customer may be placed on credit hold and no further Products or Services will be delivered or made available to the Customer until all payments due to DATEK SOLUTIONS LIMITED under the Contract have been paid. DATEK SOLUTIONS LIMITED may at its discretion, withdraw credit facilities in the event of any breach of the Contract by the Customer.
4.7 If payment is not received by the relevant due date DATEK SOLUTIONS LIMITED may
(1) Charge the Customer interest on any overdue amount (on a daily basis) from the due date of payment to the date of actual payment (both dates inclusive) at the rate of four (4) per cent per annum above the Bank of England Base Rate for the time being in force. DATEK SOLUTIONS LIMITED reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse DATEK SOLUTIONS LIMITED for any and all costs incurred by DATEK SOLUTIONS LIMITED in recovering payment pursuant to this clause 4.
(2) Take legal action for the recovery of any amount due and interest thereon at the rate specified in clause 4.7(2) above together with costs payable on a Solicitor and own Client basis.
4.8 All payments made by the Customer to DATEK SOLUTIONS LIMITED shall be in sterling in immediately available funds free and clear of any right of set off or counter claim or any withholding or deduction whatsoever. All payments payable to DATEK SOLUTIONS LIMITED under the Contract shall become due immediately on its termination despite any other provision. Time for payment shall be of the essence.
4.9 Only a director of the Company may agree terms of payment whereby the Customer may defer payment to DATEK SOLUTIONS LIMITED until receipt of monies from a third party.
4.10 Any agreement pursuant to clause 4.9 must be in writing, prepared prior to and referred to in the Customer’s Purchase Order and will not constitute a guarantee of performance to the Customer of any third party.
4.11 The Customer agrees to make all payments due under the Contract irrespective of any dispute or claim the Customer may have with or against any third party.
5.1 Risk of damage to or loss of the Products shall pass to the Customer upon delivery to the Premises.
5.2 Full legal, beneficial and equitable title to and property in any Products shall remain vested solely in DATEK SOLUTIONS LIMITED (even though they have been delivered and risk has passed to the Customer) until:
(1) Payment in full of the purchase price (together with any interest and VAT thereon) and in cleared funds has been received by DATEK SOLUTIONS LIMITED in respect of those Products; and
(2) All other amounts payable by the Customer to DATEK SOLUTIONS LIMITED have been received by DATEK SOLUTIONS LIMITED.
5.3 Title to and property in the Products will remain with DATEK SOLUTIONS LIMITED notwithstanding that the relevant Products have been incorporated in or affixed to other products including, for the avoidance of doubt, the storage of or incorporation of any Software in ROM, RAM or any other hardware, software or firmware or other media whatsoever.
5.4 Until such time as full legal, beneficial and equitable title to and property in any Products passes to the Customer:
(a) The Customer shall hold the Products on a fiduciary basis as DATEK SOLUTIONS LIMITED's bailee;
(b) The Customer shall store the Products in a proper manner and condition which adequately protects and preserves the products and shall insure them, without any charge to DATEK SOLUTIONS LIMITED and not tamper with any identification upon the products or their packaging and shall ensure that they are stored separately from any other goods (whether or not supplied by DATEK SOLUTIONS LIMITED) and are clearly identifiable as belonging to DATEK SOLUTIONS LIMITED and DATEK SOLUTIONS LIMITED shall be entitled to examine any such Products at any time during normal business hours upon giving the Customer reasonable notice of its intention to do so.
(c) DATEK SOLUTIONS LIMITED may at any time, on demand and with prior notice, require the Customer to deliver the Products up to DATEK SOLUTIONS LIMITED and may repossess and resell the Products if any of the events specified in Clause 15 occur or if any sum due to DATEK SOLUTIONS LIMITED from the Customer under the Contract is not paid when due.
5.5 If the Customer fails to redeliver any Product on demand in accordance with clause 5.4, DATEK SOLUTIONS LIMITED shall be entitled with notice, without incurring any liability to the Customer, to enter the Premises or any other premises where any Product may be stored for the purpose of taking possession of the Product, and to take such steps as are necessary to remove the Product including the right to dismantle any product into which the Product has been incorporated and the right to detach the Product from any other goods to which the Product has been attached, provided that this can be done without irreparably damaging any product into which it has been incorporated.
5.6 The Customer shall fully indemnify DATEK SOLUTIONS LIMITED in respect of all DATEK SOLUTIONS LIMITED's costs (including legal costs) incurred in connection with enforcing the provisions of clause 5.5.
5.7 DATEK SOLUTIONS LIMITED hereby authorises the Customer to use and/or sell the Products in the normal course of the Customer’s business and to pass good title in the Products to its customers, if they are purchasers in good faith without notice of DATEK SOLUTIONS LIMITED's rights. This right shall automatically cease on the occurrence of any event set out in Clause 15 and/or if any sum owed to DATEK SOLUTIONS LIMITED by the Customer is not paid when due. If the Customer sells the Product prior to paying the full price thereof to DATEK SOLUTIONS LIMITED the Customer shall hold the proceeds of sale on trust for DATEK SOLUTIONS LIMITED.
5.8 Where a Product is sold or otherwise disposed of to a third party before title to and property in it has passed to the Customer, the sale will constitute a sale by the Customer of DATEK SOLUTIONS LIMITED's property, and the Customer shall hold on trust for DATEK SOLUTIONS LIMITED such sum as represents, or is equivalent to, the price at which the Product concerned was invoiced by DATEK SOLUTIONS LIMITED to the Customer.
5.9 On termination of the Contract under Clause 15.1(a) or (b) or upon the Customer entering into a voluntary arrangement, if the Customer has not received the proceeds of any such sale or disposition, it will, if required by DATEK SOLUTIONS LIMITED, assign to DATEK SOLUTIONS LIMITED forthwith all rights against the person, firm or company by whom the proceeds are owed, shall identify such person, firm or company and shall provide DATEK SOLUTIONS LIMITED with all relevant information relating to the transaction with the third party.
6.1 DATEK SOLUTIONS LIMITED shall use its reasonable endeavours to deliver Products or perform Services by any date stated upon the written acknowledgment of Order but failure to do so shall not constitute a breach of the Contract. If no date is so stated, delivery or performance, as applicable, shall be within a reasonable time.
6.2 Any dates quoted or mentioned by DATEK SOLUTIONS LIMITED for delivery of the Products or the provision of the Services whether verbally or otherwise are estimates only and whilst DATEK SOLUTIONS LIMITED will use all reasonable endeavours to meet such dates it cannot guarantee to do so.
6.3 Time shall not be of the essence in the delivery of the Products or the performance of the Services.
6.4 DATEK SOLUTIONS LIMITED shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products or performance of the Services (even if caused by DATEK SOLUTIONS LIMITED's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.5 DATEK SOLUTIONS LIMITED shall deliver the Products to the Premises. DATEK SOLUTIONS LIMITED’s receipt of a signed delivery note shall constitute satisfactory proof that delivery has taken place. Performance of the Services shall take place at the Premises.
6.6 DATEK SOLUTIONS LIMITED shall be entitled to make partial deliveries of the Products. The Customer shall not be entitled to object to or reject the Products or any of them by reason of any shortfall and shall pay for such Products at the pro rata Contract rate.
6.7 DATEK SOLUTIONS LIMITED may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
6.8 If for any reason the Customer fails to take or accept delivery of any of the Products, or DATEK SOLUTIONS LIMITED is unable to deliver the Products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Products shall pass to the Customer (including for loss or damage caused by DATEK SOLUTIONS LIMITED's negligence);
(b) the Products shall be deemed to have been delivered at 9:00am on the third Business Day following the day on which DATEK SOLUTIONS LIMITED notified the Customer that the goods were ready; and
(c) DATEK SOLUTIONS LIMITED may store the Products until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or
(d) sell the Products at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Products), charge the Customer for any shortfall below the price for the Products.
6.9 DATEK SOLUTIONS LIMITED will accept no liability for non-delivery of, loss of or damage to any Products occurring prior to the delivery of the same to the Customer and no claim that the Products are not in accordance with the Contract will be accepted by DATEK SOLUTIONS LIMITED unless claims to that effect are notified in writing to DATEK SOLUTIONS LIMITED (with a copy of DATEK SOLUTIONS LIMITED’s carrier in the case of non-delivery, loss or damage):
(a) Within two days of delivery in the case of loss, damage, or non-compliance with the Contract; or
(b) Within two days of receipt of DATEK SOLUTIONS LIMITED’s invoice in the case of non-delivery
6.10 Any liability of DATEK SOLUTIONS LIMITED for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Products.
6.11 If the Customer fails to give notice in accordance with clause 6.9, it will be deemed to have accepted the Products, the Products will be deemed to be in accordance with the Contract and the Customer will be bound to pay for the same.
7.1 DATEK SOLUTIONS LIMITED will ensure that the Services are provided with reasonable care and skill.
7.2 DATEK SOLUTIONS LIMITED shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8. Customer’s Obligations
8.1 With respect to any Services which DATEK SOLUTIONS LIMITED is to perform for the Customer, the Customer shall:
(a) co-operate with DATEK SOLUTIONS LIMITED in all matters relating to the provision of the Services;
(b) provide DATEK SOLUTIONS LIMITED, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with such access to the Premises together with anything therein or thereon and such other facilities as may be required by DATEK SOLUTIONS LIMITED, together with any utilities as may be specified by DATEK SOLUTIONS LIMITED;
(c) provide to DATEK SOLUTIONS LIMITED, in a timely manner, such relevant information as DATEK SOLUTIONS LIMITED may require, in such a format or formats as DATEK SOLUTIONS LIMITED may require, and ensure that it is accurate and fully comprehensible in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining any relevant part of the Premises for the performance of the Services and for reinstating any such part of the Premises once performance of the Services has been completed;
(e) be solely responsible (at its own cost) for ensuring that conditions at the Premises are suitable for the performance of the Services and that any relevant thing therein or thereon is in good working order;
(f) if requested to do so by DATEK SOLUTIONS LIMITED and without charge, provide facilities at the Premises for the off-loading and storage of the Products in a readily accessible and secure storage area protected from theft and damage and shall be solely responsible for the safekeeping of the Products whilst the same are stored at the Premises;
(g) be solely responsible for ensuring the safety of any and all persons who are or may be present at the Premises during the performance of the Services, including but not limited to restricting access to those areas of the Premises where the Services are or are to be performed to those individuals engaged in performing the Services, or providing assistance to those so engaged;
(h) inform DATEK SOLUTIONS LIMITED of all health and safety rules and regulations and any other reasonable security requirements that apply at the Premises;
(i) obtain and maintain (at its own cost) all necessary and appropriate licences, consents and approvals and comply with all relevant legislation, standards or requirements in relation to the provision of the Services at the Premises, in all cases before the date on which the provision of the Services is to commence; and
(j) effect and maintain appropriate insurance in an adequate amount with respect to all possible risks which may arise:
(1) in connection with the deployment of any person engaged by DATEK SOLUTIONS LIMITED to perform the Services at the Premises; and
(2) in connection with the storage of the Products at the Premises and shall, at DATEK SOLUTIONS LIMITED’s request, provide such evidence of such insurance as DATEK SOLUTIONS LIMITED may reasonably require.
8.2 If DATEK SOLUTIONS LIMITED's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a)without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Cancellation and Return
9.1 No Order may be cancelled without the prior written consent of DATEK SOLUTIONS LIMITED, who reserves the right to require the Customer to pay a restocking fee in such a percentage as shall reasonably be determined by the Company. This fee will be invoiced to the Customer and will be paid under the Customer’s normal credit terms.
9.2 The Customer is entitled to request a return of any Products for any reason within 5 working days from their receipt by the Customer. Any damaged Products must be notified to DATEK SOLUTIONS LIMITED verbally (and in writing via e-mail or fax) within two working days of receipt. Any items found damaged after this time will not be accepted back for return. As well as a full refund, DATEK SOLUTIONS LIMITED will also refund any relevant losses involved such as posting or delivery charges if the Products are found to be faulty or were sold incorrectly. If the Customer is returning a faulty item, the Customer must first establish whether or not the Products are in fact faulty. It may well be that the item works perfectly well but does not tie in with the Customer’s system correctly due
to a configuration or set up problem. If the Customer is unsure about any of this, the Customer must contact DATEK SOLUTIONS LIMITED so that DATEK SOLUTIONS LIMITED can pass on the relevant manufacturer’s details.
9.3 If the Products are definitely faulty or if they have been shipped in error, the Customer needs to complete the returns form.
9.4 Once DATEK SOLUTIONS LIMITED have received and validated the Customer’s form, the Customer will be contacted and issued with a returns number (RMA number). This normally takes 1-2 business days but can take longer if any details on the form have been omitted. RMA numbers cannot be issued without DATEK SOLUTIONS LIMITED’s knowledge of the relevant serial numbers, invoice numbers and dates involved. Customers should note that once issued, RMA numbers will only remain valid for a period of 10 working days. If Products are not returned within this period, the return will be closed. DATEK SOLUTIONS LIMITED must receive the completed RMA form back within 48 working hours from the time of sending. As soon as the Customer has been issued with an RMA number, the Customer can arrange for the Products to be returned to DATEK SOLUTIONS LIMITED . DATEK SOLUTIONS LIMITED cannot accept responsibility for any damage caused in transit, so the Customer must ensure that:
(a) The item(s) are properly packaged. The Customer must ensure that the original packaging is used and must also ensure that the Products are wrapped securely to avoid movement/damage in transit. Items not packaged with a reasonable amount of care will be rejected;
(b) No labels, stickers or any parts have been removed;
(c) The Products have not been defaced, altered, manhandled or subjected to any other form of intentional or careless damage;
(d) All supplied contents; inner and outer packaging, manuals, documentation and accessories must be included;
(e) No writing or markings are made on the packaging as this may affect the ability of DATEK SOLUTIONS LIMITED to accept the Products back.
9.5 Products are inspected by DATEK SOLUTIONS LIMITED on arrival and, if appropriate, tested. Where appropriate, replacement item(s) will be shipped. DATEK SOLUTIONS LIMITED reserves the right to decide whether to issue replacement goods or a credit. Items returned where DATEK SOLUTIONS LIMITED have arranged collection, and do not conform to these requirements, will be charged according to any damage incurred. DATEK SOLUTIONS LIMITED will only meet shipping costs for returns in the case of an error on the part of DATEK SOLUTIONS LIMITED or in cases where the Products are faulty, or were sold incorrectly.
9.6 For account holders, it may be possible to arrange an advance replacement. If the Customer requires replacement Products to be sent to the Customer before DATEK SOLUTIONS LIMITED receives the returned items, the Customer will be invoiced at the original sales price and DATEK SOLUTIONS LIMITED will quote the Customer’s original purchase order number on all documentation followed by the reference /R at the end of the PO. Once DATEK SOLUTIONS LIMITED receives the returned Products, and providing that the above procedure has been complied with, DATEK SOLUTIONS LIMITED will credit the Customer’s account with the appropriate sale price.
9.7 The return of any Products, whether correctly or incorrectly supplied, or whether faulty or damaged, may only be made with DATEK SOLUTIONS LIMITED’s prior authorisation. Any attempts to return Products to DATEK SOLUTIONS LIMITED without following the procedures described above will be rejected.
10. DOA Policy
10.1 Any Products failing within the specified period of either DATEK SOLUTIONS LIMITED's invoice to the Customer or the Customer’s invoice to their customer shall be returned to DATEK SOLUTIONS LIMITED within the time stipulated on the date of a notification advising their return to DATEK SOLUTIONS LIMITED, at the expense of DATEK SOLUTIONS LIMITED, for full credit to the Customer, subject to the Product not having become discontinued, as defined by the manufacturer.
10.2 The specified period in clause 9.1 shall vary, depending upon the particular Product and/or manufacturer.
10.3 Products not returned within the time stipulated on the date of the notification advising their return will not be credited.
10.4 All Products must be returned with their original packaging.
10.5 On acceptance of the returned Product, a credit note will be issued by DATEK SOLUTIONS LIMITED to the Customer for 100% of the value originally invoiced.
10.6 Unless otherwise agreed, this clause does not apply to any Product which is not returned in an undamaged state fit for resale by the Company.
11.1 DATEK SOLUTIONS LIMITED shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to DATEK SOLUTIONS LIMITED.
11.2 DATEK SOLUTIONS LIMITED warrants that (subject to the other provisions of these terms and conditions):
(a) on delivery, the Products shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
(b) if the Customer has made it expressly known to DATEK SOLUTIONS LIMITED in the Order that the Products shall be suitable for a particular purpose and DATEK SOLUTIONS LIMITED has expressly stated in the acknowledgment of Order that it will supply Products suitable for that purpose, then the Products shall, on delivery, be reasonably fit for the purpose so stated; and
(c) any Services will be performed with reasonable skill and care.
11.3 DATEK SOLUTIONS LIMITED shall not be liable for a breach of any of the warranties in clause 11.2 unless:
(a) the Customer gives written notice of the defect to DATEK SOLUTIONS LIMITED (and also to the carrier, if the defect is a result of damage to any Products in transit), within 48 hours of the time when the Customer discovers or ought to have discovered the defect; and
(b) DATEK SOLUTIONS LIMITED is given a reasonable opportunity after receiving the notice, of examining any Products which the Customer has alleged to be defective and the Customer (if asked to do so by DATEK SOLUTIONS LIMITED) returns such Products to DATEK SOLUTIONS LIMITED's place of business at DATEK SOLUTIONS LIMITED 's cost for the examination to take place there.
11.4 DATEK SOLUTIONS LIMITED shall not be liable for a breach of any of the warranties in clause 11.2 if:
(a) the Customer makes any further use of any Products which the Customer has alleged to be defective after giving notice of any such defect; or
(b) the Customer alters or repairs the Products without the prior written consent of DATEK SOLUTIONS LIMITED ; or
(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice; or
(d) the defect arises from any Specification supplied by the Customer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Products; or
(e) the full price for the Products and/or Services has not been paid by the time for payment stipulated in clause 4; or
(f) the defect is of a type specifically excluded by DATEK SOLUTIONS LIMITED by notice in writing.
11.5 Subject to clause 11.3 and clause 11.4, if any of the Products do not conform with any of the warranties in clause 11.2:
(a) DATEK SOLUTIONS LIMITED shall, at its option, repair or replace any such Products (or the defective part) or issue a credit note at the pro rata Contract rate against any invoice raised for the Products provided that, if DATEK SOLUTIONS LIMITED so requests, the Customer shall, at DATEK SOLUTIONS LIMITED 's expense, return the Products or the part of such Products which are defective to DATEK SOLUTIONS LIMITED. DATEK SOLUTIONS LIMITED shall, if it opts to replace the defective Products, then deliver replacement Products to the Customer at the Premises (at DATEK SOLUTIONS LIMITED ’s expense), and ownership of the defective Products shall, if it has vested in the Customer, re-vest in DATEK SOLUTIONS LIMITED; and
(b) DATEK SOLUTIONS LIMITED shall re-perform any Services which are proved to the reasonable satisfaction of DATEK SOLUTIONS LIMITED not to have been performed with reasonable skill and care, or at DATEK SOLUTIONS LIMITED’s option, shall refund any monies already paid by the Customer for any such Services.
11.6 If DATEK SOLUTIONS LIMITED complies with clause 11.5 it shall have no further liability for a breach of any of the warranties in clause 11.2 in respect of such Products.
12.1 The Customer shall hold DATEK SOLUTIONS LIMITED harmless and keep DATEK SOLUTIONS LIMITED indemnified in full and shall be liable to pay to DATEK SOLUTIONS LIMITED, on demand, all reasonable costs, charges, losses or expenses (including legal and other professional fees and expenses) sustained or incurred by DATEK SOLUTIONS LIMITED (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those losses arising from injury to or the death of any person and loss of opportunity to deploy resources elsewhere), arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of, or breach of, any of its obligations under the Contract, or from any use made or resale by the Customer of any Products, subject to DATEK SOLUTIONS LIMITED confirming such costs, charges and losses to the Customer in writing.
13.1 The following provisions set out the entire financial liability of DATEK SOLUTIONS LIMITED (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these terms and conditions;
(b) any use made or resale by the Customer of any of the Products, or of any product incorporating any of the Products; and
(c) any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
13.3 Nothing in these terms and conditions excludes or limits the liability of DATEK SOLUTIONS LIMITED:
(a) for death or personal injury caused by DATEK SOLUTIONS LIMITED 's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for DATEK SOLUTIONS LIMITED to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
(a) DATEK SOLUTIONS LIMITED's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
(b) DATEK SOLUTIONS LIMITED shall not be liable to the Customer for loss of profit, loss of data, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever or howsoever caused, which arise out of or in connection with the Contract.
13.5 Without limiting the generality of any of the other provisions of this clause 12, any advice or recommendations given to the Customer by DATEK SOLUTIONS LIMITED or its employees or agents as to storage, application, use or preference of the Products which is not confirmed in writing by DATEK SOLUTIONS LIMITED, is followed or acted upon entirely at the Customer’s own risk and accordingly DATEK SOLUTIONS LIMITED shall not be liable for any such advice or recommendation which is not so confirmed.
14. Intellectual Property Rights
14.1 All Intellectual Property Rights in or relation to the Products (including any manuals and operating documentation relating thereto) or otherwise in any materials (including Software) created by DATEK SOLUTIONS LIMITED during the course of providing the Services shall vest in DATEK SOLUTIONS LIMITED or its suppliers as the case may be and the Customer shall have no title to or interest in any such Intellectual Property Rights except to the extent (if any) specifically agreed by DATEK SOLUTIONS LIMITED.
14.2 The Customer shall not make any illegal or unauthorised use of any of the Products/relevant materials or any of the Intellectual Property Rights in the Products/relevant materials and will notify DATEK SOLUTIONS LIMITED immediately if it becomes aware of any illegal or unauthorised use of any of the Products/relevant materials or any of the Intellectual Property Rights in the Products/relevant materials and will assist DATEK SOLUTIONS LIMITED and/or its suppliers in taking all steps necessary to defend the owners' rights.
14.3 The Customer undertakes to ensure that any Software which is sold to end-users or any other third party will be accompanied by any Licence Agreement (whether shrink-wrap or otherwise) relating to that Software and any other documentation which DATEK SOLUTIONS LIMITED or DATEK SOLUTIONS LIMITED's suppliers may require.
14.4 The Customer undertakes that it shall not (and that it shall not employ nor permit any third party to) challenge DATEK SOLUTIONS LIMITED and/or its suppliers’ ownership of any Intellectual Property Rights, nor (unless specifically authorised under a Licence Agreement) attempt to copy, adapt, amend, disassemble, de-compile or reverse engineer Software or any part thereof, except to the extent allowed by English law.
15.1 Each party shall treat as confidential all Confidential Information obtained from the other and shall not divulge such Confidential Information to any person (except to such party's own employees and then only to those employees who need to know the same) or use such Confidential Information for any purpose other than to perform its obligations under the Contract without the other party's prior written consent.
15.2 This clause shall not extend to any information which was rightfully in the possession of the non-disclosing party prior to the commencement of the negotiations leading to the Contract, or which is already public knowledge or becomes so at a future date (otherwise as a result of a breach of this clause 15) .
15.3 Each party shall ensure that its employees are aware of and comply with the provisions of this clause 15.
15.4 This clause 15 shall apply for a period of 2 years following any termination of the Contract.
16.1 Without prejudice to any other rights or remedies DATEK SOLUTIONS LIMITED might have against the Customer, DATEK SOLUTIONS LIMITED may terminate the Contract or suspend the performance of its obligations under the Contract forthwith by notice in writing to the Customer, if:
(a) The Customer defaults in making payment for any of the Products or Services for a period of seven days from the due date for payment; or
(b) The Customer defaults in the performance of any of its obligations under these terms and conditions or the Contract; or
(c) The Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Defaulting Party; or
(d) The Customer is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 be unable to pay his debts or any steps are taken to wind up the Customer, or an administrator, administrative receiver or receiver is appointed over the Customer's business or any part of its assets.
16.2 Upon termination of a Contract under clause 16.1, DATEK SOLUTIONS LIMITED shall have the right, without prejudice to any other right or remedy available, to enter the Premises and repossess the Products or any of them and shall have the right to dismantle any machinery, product, item or equipment into which the Products or any of them have been incorporated and the Customer shall be responsible for all DATEK SOLUTIONS LIMITED's costs and expenses in connection with so doing.
16.3 Those clauses capable of surviving termination of the Contract shall do so.
17.1 DATEK SOLUTIONS LIMITED reserves the right to modify these terms and conditions upon notice in writing to the Customer. Any such modification will apply on the effective date specified in the said notice to all Orders, which are accepted by DATEK SOLUTIONS LIMITED on or after the date of notice. The Customer shall have thirty days from the date of notice within which to cancel any Order sent to DATEK SOLUTIONS LIMITED prior to the date of notice and not accepted by DATEK SOLUTIONS LIMITED as at that date.
18.1 The Customer shall not assign or otherwise transfer any of its rights or obligations under the Contract (whether in whole or in part) without the prior written consent of DATEK SOLUTIONS LIMITED.
19.1 The Customer acknowledges that DATEK SOLUTIONS LIMITED has incurred significant costs in recruitment and training its employees to enable them to provide the Services. Accordingly the Customer agrees that it will not, and it will ensure that no other company within its Group will not, solicit or approach in any way, any of DATEK SOLUTIONS LIMITED's employees who are involved in the provision of the Services with a view to offering them employment or to solicit services from them on their own account (whether for the Customer or another party) during the period of the Contract and for a period of six (6) months after termination or expiration of the Contract.
19.2 The Customer acknowledges that damages will not be an adequate remedy for DATEK SOLUTIONS LIMITED if the Customer breaches clause 19.1 and that DATEK SOLUTIONS LIMITED will be entitled to seek injunctive relief and any other equitable remedies with respect to such breach.
19.3 If any employee of DATEK SOLUTIONS LIMITED leaves the employment of DATEK SOLUTIONS LIMITED as a result of a breach by the Customer of clause 19.1 and commences employment with, or provision of services to, the Customer or any other member of the Customer’s Group it shall pay DATEK SOLUTIONS LIMITED 50% of the higher of:
(a) The annual salary (including any benefits-in-kind, bonus payments, commissions and other emoluments) of the employee at the date that they ceased to be an employee of DATEK SOLUTIONS LIMITED; or
(b) The annual salary of the employee at the time they commence employment with the Customer or other member of the Customer’s Group.
19.4 The Customer acknowledges that any payment pursuant to the provisions of clauses 19.3 (a) or (b) shall be by way of liquidated damages and is a reasonable and genuine pre-estimate of DATEK SOLUTIONS LIMITED's losses.
20.1 If any provisions, or portions thereof, of these terms and conditions or the Contract are held to be invalid and/or unenforceable under any applicable statute or rule of law, they are to that extent to be deemed omitted and the validity and/or enforceability of the remaining provisions (or the remainder of the provision, where only part of the provision is deemed to be invalid and/or unenforceable) of the Contract shall not be impaired or affected by that invalidity and/or unenforceability, or by that omission.
21. Force Majeure
21.1 Neither DATEK SOLUTIONS LIMITED nor the Customer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Products or the Services, (other than the requirement to pay for the Products or the Services) if the delay or failure is beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:
21.1.1 Act of God, explosion, flood, tempest, fire or accident
21.1.2 war, sabotage, insurrection, civil disturbance or requisition;
21.1.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
21.1.4 import or export regulations or embargoes;
21.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of either DATEK SOLUTIONS LIMITED or the Customer or of a third party);
21.1.6 power failure or breakdown in machinery.
22.1 All notices that are required to be given hereunder shall be in writing and shall be sent to the registered address of the party in question.
23. Export/Import Control
23.1 The Customer acknowledges that certain Products may be subject to export/import controls imposed by United Kingdom or other Governments and undertakes, at the Customer’s sole cost, to apply for and obtain any necessary licences or other consents that may be necessary to export or take any Product (or any part thereof) out of the United Kingdom, or to import or bring any Product (or any part thereof) into any other country.
24.1 The Contract shall be governed by, and construed in accordance with, English law and the parties submit to the exclusive jurisdiction of the English courts.
25.1 The waiver by either party of a breach or default of any of the provisions of these terms and conditions or the Contract by either party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder operate as a waiver of any breach or default by either party.
26. Rights of Third Parties
26.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions or to the Contract. No person who is not a party to the Contract shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any provision of these terms and conditions or the Contract.
27. Data Protection
27.1 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
27.2 Without prejudice to the generality of Clause 27.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
27.3 Without prejudice to the generality of Clause 27.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv )the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;