1. INTERPRETATION
1. In these conditions:
"Conditions" means the standard terms and conditions of sales set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and PC Again Ltd
"Contract" means the contract for the purchase and sale of Products
"Customer" means the person whose order for the Products is accepted by PC Again Ltd
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made
"Products" means the goods such as but not limited to hardware and software items (including any instalment of the goods or any parts of them) which PC Again Ltd is to supply in accordance with these Conditions
"PC Again Ltd" means PC Again (registered in England under number 4245346)
"RMA Conditions" means PC Again Ltd's standard return, materials authorisation procedures as amended by PC Again Ltd from time to time (a copy of the current form of which is available from PC Again Ltd)
"Writing" includes email facsimile transmission and comparable means of communications
2. Unless the context otherwise requires any term of 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
3. The headings in these conditions are for convenience only and shall not effect their interpretation
2. BASIS OF THE SALE
1. All orders placed with PC Again Ltd by the Customer for Products shall constitute an offer to PC Again Ltd, under these terms and conditions, subject to availability of the Products and to acceptance of the order by PC Again Ltd's authorised representative
2. All orders are accepted and Products supplied subject to these express terms and conditions only. No amendments of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by PC Again Ltd's authorised representatives
3. These terms and conditions prevail over the Customer's terms and conditions of purchase unless these latter terms and conditions are accepted in writing or amended by and accepted by PC Again Ltd in writing and signed by PC Again Ltd
I. Any advice or recommendation given by PC Again Ltd or its employees or agents to the Customer or its employees or agents as to the application use performance or fitness for purpose of the Products which is not confirmed in Writing by PC Again Ltd is followed or acted upon entirely at the Customer's own risk and accordingly by PC Again Ltd shall not be liable for any such advice or recommendation which is not so confirmed
II. 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 PC Again Ltd shall be subject to correction without liability on the part of PC Again Ltd
III. Unless otherwise agreed in Writing, software items are supplied to the Customer for licensing to end users and on the medium (i.e. disk) on which it is loaded is sold to the Customer. PC Again Ltd shall have no responsibility whatsoever for any non-compliance by the Customer or end user with the manufacturer's licensing terms and conditions relating to those software items
3. DELIVERY AND DESPATCH
1. Unless otherwise agreed in Writing, delivery of the Products shall be made by PC Again Ltd despatching the Products by courier normally within five working days, delivery in the United Kingdom to the Customer's usual trading address. Products will only be delivered to third party addresses if requested by the Customer in writing and accepted by PC Again Ltd
2. Any dates quoted for the delivery of the Products are approximate only and PC Again Ltd shall not be liable for any delay in the delivery of the Products however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by PC Again Ltd in Writing. The Products may be delivered by PC Again Ltd in advance of the quoted delivery date upon giving reasonable notice to the Customer
3. PC Again Ltd reserves the right to deliver Products by instalments. Where the products are to be or are delivered in instalments each delivery shall constitute a separate contract and failure by PC Again Ltd to deliver on or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one ormore instalments shall not entitle the Customer to treat the Contract as a whole as repudiated
4. If PC Again Ltd fails to deliver the Products (or any instalment) for any reason other than any cause beyond PC Again Ltd's reasonable control or the Customer's fault and PC Again Ltd is accordingly liable to the Customer PC Again Ltd's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Products to replace those not delivered over the price of the products
5. If the Customer fails to take delivery of the Products or fails to give PC Again Ltd adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of PC Again Ltd's fault) then without prejudice to any other right or remedy available to PC Again Ltd PC Again Ltd may:
I. store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
II. sell the Products at the best price readily obtainable and (after deducting all reasonable selling and storage expenses) account to the Customer for the excess
over the price under the Contract or charge the Customer for any shortfall below the price under contract
6. If Products have not been received or are received damaged or in incorrect quantities the Customer must notify PC Again Ltd within 2 days of the date of the invoice. If the Customer does not notify PC Again Ltd accordingly the Customer shall not be entitled to reject the Products and PC Again Ltd shall have no liability for such damage or non delivery and the Customer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract. If proof of delivery is required this must be requested within 7 days of the date of the invoice
4. CANCELLATION AND RESCHEDULING
Any request by the Customer for cancellation of any Contract or rescheduling of deliveries shall be subject to acceptance by PC Again Ltd at PC Again Ltd's sole discretion and subject to a reasonable administration charge. In no circumstances will PC Again Ltd permit the cancellation of Contracts for Products with specifications which are non-standard. The Customer hereby agrees to indemnify PC Again Ltd against all losses costs (including the cost of labour and materials used and overheads incurred) damages charges and expenses arising out of the Contract and its cancellation or rescheduling
5. PRICES
1. Catalogues, price lists and other advertising literature or material as used by PC Again Ltd are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on PC Again Ltd
2. All prices are given by PC Again Ltd at the time of order on an ex-works basis and the Customer is liable to pay for packing and insurance despatch and delivery All quoted or list prices are based on the cost to PC Again Ltd of supplying the Product to the Customer. If before delivery of the products there occurs any increase in such cost in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at PC Again Ltd's discretion
3. All prices quoted by PC Again Ltd, or any of its representatives, either in advertising or any other written or verbal communication, are exclusive of Value Added Tax or any similar taxes. Any such taxes shall be payable by the Customer in accordance with UK legislation in force at the date of invoice
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6. TERMS OF PAYMENT
1. Subject to any special terms agreed in writing between the Customer and PC Again Ltd, PC Again Ltd shall be entitled to invoice the Customer for the price of the Products on or at any time after the despatch of the Products unless the Products are to be collected by the Customer or the Customer wrongfully fails to take delivery of the products in which event PC Again Ltd shall be entitled to invoice the Customer for the price at any time after PC Again Ltd has notified the Customer that the products are ready for collection or (as the case may be) PC Again Ltd has tendered delivery of the Products
2. Subject to any special terms agreed in Writing between the Customer and PC Again Ltd, the Customer shall pay the price of the Products by cheque handed to PC Again Ltd or PC Again Ltd's carrier without deduction or set off immediately upon receipt of the Products or as the case may be the instalment in question. PC Again Ltd shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Products has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued upon request
3. If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to PC Again Ltd, PC Again Ltd shall be entitled to:
I. cancel the Contract or suspend any further deliveries to the Customer;
II. appropriate any payment made by the Customer to such of the Products (or the Products supplied under any other contract between the Customer and PC Again Ltd) as PC Again Ltd may think fit (notwithstanding any attempt made by the Customer to appropriate the payment to another product or debt owed to PC Again Ltd),
and
III. charge the customer interest (both before and after any judgement) on the amount unpaid at the rate of 4 per cent per annum above Barclays Bank Ltd 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)
7. RISK AND PROPERTY
1. Risk of damage to or loss of the Products shall pass to the Customer:
I. in the case of products to be collected from PC Again Ltd's premises, at the time when PC Again Ltd notifies the Customer that the Products are available for collection or if PC Again Ltd does not so notify the Customer then at the time of collection from PC Again Ltd's premises;
or
II. in the case of products not to be collected from PC Again Ltd's premises, at the time of delivery or if the Customer wrongfully fails to take delivery of the Products the time when PC Again Ltd has tendered delivery of the Products
2. Notwithstanding delivery and the passing of risk in the Products or any other provision of these conditions the property in the Products shall not pass to the Customer until PC Again Ltd has received in cash or cleared funds payment in full of the price of the Products and all other Products agreed to be sold by PC Again Ltd to the Customer for which payment is then due
3. Until such time as the property in the Products passes to the Customer the Customer shall hold the Products as PC Again Ltd's fiduciary agent and bailee and shall keep the Products separate from those of the Customer and third parties and properly stored protected and insured and identified as PC Again Ltd's property but shall be entitled to resell or use the Products in the ordinary use of its business.
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) PC Again Ltd shall be entitled at any time to require the Customer to deliver up the products to PC Again Ltd 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
5. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of PC Again Ltd but if the Customer does so all moneys owing by the Customer to PC Again Ltd shall (without prejudice to any other right or remedy of PC Again Ltd) forthwith become due and payable
8. SPECIFICATIONS
1. Unless otherwise agreed in Writing, the products are supplied in accordance with the manufacturer's specifications and technical data as these may be improved substituted or modified by the manufacturer from time to time after the date of the Contract
2. PC Again Ltd will not be liable in respect of any loss or damage caused or resulting from any variation for whatsoever reason in the manufacturer's specifications or technical data, and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. PC Again Ltd will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer
3. PC Again Ltd reserves the right to make any changes in the specification of Products which are required to conform with any applicable statutory or EC requirements or where the Products are to be supplied to PC Again Ltd's specification which do not materially affect their quality or performance
9. RETURNS
1. PC Again Ltd reserves the right to levy an administration charge in respect of any return of Products, and will exercise that right in all instances where goods returned to PC Again Ltd are subsequently identified as non-faulty
2. The cost of all and any delivery charges in respect of the return of Product to PC Again Ltd under RMA conditions will be the responsibility of the Customer. PC Again Ltd will undertake to pay the delivery charge incurred in returning replacement or repaired Product to the Customer
3. Returns may only be made in compliance with the RMA Conditions
4. PC Again Ltd reserves the right to reject any Products returned which do not comply with the RMA Conditions
5. Should PC Again Ltd decide to make a credit for a returned Product, this will be in an amount which is equivalent to the cost of replacing the Product in question at the time the credit is made
10. WARRANTIES
1. PC Again Ltd warrants that it has good title to or license to supply the Products to the Customer
2. Subject to the conditions set out in condition 10.3 below, PC Again Ltd warrants that the Products will correspond with their specification at the time of delivery and will be free form defects in material and workmanship for a period of 12 months from the date of delivery
3. The warranty in condition 10.2 above is given by PC Again Ltd subject to the following conditions:
I. PC Again Ltd shall be under no liability in respect of any defect arising from wilful damage negligence abnormal working conditions failure to follow PC Again Ltd's instructions (whether oral or in Writing) misuse or alteration or repair of the products without PC Again Ltd's approval;
II. PC Again Ltd shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Products has not been paid by the due date for payment;
III. The warranty does not extend to parts materials or equipment not manufactured by PC Again Ltd in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to PC Again Ltd
4. Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
5. Any claim by the Customer in respect of Products which are dead on arrival shall be notified to PC Again Ltd within 7 days from the data of delivery, Subject to that, any claim by the Customer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to PC Again Ltd 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 Customer does not notify PC Again Ltd accordingly the
Customer shall not be entitled to reject the Products and PC Again Ltd shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract
6. Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified and returned to PC Again Ltd in accordance with these Conditions. PC Again Ltd shall repair or replace the Products (or the part in question) free of charge at PC Again Ltd's sole discretion refund the Customer the price of the Products (or a proportionate part of the price) but PC Again Ltd shall have no further liability to the Customer. Under no circumstances shall the Customer make any deduction from the price invoiced or operate any set off against the price invoiced
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11. LIABILITY
1. Except in respect of death or personal injury caused by PC Again Ltd's negligence PC Again Ltd shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any direct special or consequential loss or damage (whether for loss of profit or data or otherwise) costs expenses or other claims for compensation whatsoever (whether caused by the negligence of PC Again Ltd its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Customer
2. Except in resect of death or personal injury caused by PC Again Ltd's negligence the entire liability of PC Again Ltd under or in connection with the Contract shall not exceed twice the price of the Products
12. INDEMNITY
1. If any claim is made against the Customer that the Products infringe or that their use or resale infringes the patent copyright design trademark or other industrial or intellectual property rights of the other person then unless the claim arises from the use of any drawing design or specification supplied by the Customer PC Again Ltd shall subject to the limitation contained in Condition 11.1 indemnify the Customer against all loss and damages awarded against or incurred by the customer in connection with the claim or paid or agreed to be paid by the Customer in settlement of the claim PROVIDED THAT:
I. PC Again Ltd is given full control of any proceedings or negotiations in connection with any such claim;
II. The Customer shall give PC Again Ltd all reasonable assistance for the purposes of any such proceedings or negotiations;
III. Except pursuant to a final award the Customer shall not pay or accept any such claim or compromise any such proceedings without the consent of PC Again Ltd (which shall not be unreasonably withheld);
IV. The Customer hall do nothing which would or might have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
V. PC Again Ltd shall be entitled to the benefit of and the Customer shall accordingly account to PC Again Ltd for all damages and costs (if any) awarded in favour of the customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim;
and
VI. without prejudice to any duty of the Customer at common law PC Again Ltd shall be entitled to require the Customer to take such steps as PC Again Ltd may reasonably require to mitigate or reduce any such loss damages costs or expenses for which PC Again Ltd is liable to indemnify the Customer under this condition 12.1
13. INSOLVENCY OF CUSTOMER
1. This condition applies if:
I. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than for the purposes of amalgamation or reconstruction); or
II. the holder of a security interest in the Customer takes possession or a receiver is appointed of any of the property or assets of the Customer; or
III. the Customer ceases or threatens to cease to carry on business; or
IV. PC Again Ltd reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly
2. If this condition applies then without prejudice to any other right or remedy available to PC Again Ltd PC Again Ltd shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary
14 EXPORT TERMS
1. Where the Products are supplied for export from the United Kingdom the provisions of this Clause 14 shall (subject to any special terms agreed in Writing between the Customer and PC Again Ltd) apply notwithstanding any other provision of these Conditions
2. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on them
3. Unless otherwise agreed in Writing between the Customer and PC Again Ltd the Products shall be delivered ex-works PC Again Ltd's premises in Milton Keynes
4. Payment of all amounts due to PC Again Ltd shall be made in cash or cleared funds before collection
5. Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United Sates of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to PC Again Ltd of an ultimate destination for any Products, the Customer will not export or re-export directly any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations
15. GENERAL
1. Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than payment of money) to the extent that and for so long as such delay or failure results from force majeure act of God fire explosion accident industrial dispute or other cause beyond its reasonable control
2. The Customer will not assign the benefit of the Contract or any of its rights under it without the prior written consent of PC Again Ltd
3. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice
4. No waiver by PC Again Ltd 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
5. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected
6. The Contract shall be governed by the laws of England and the Customer agrees to submit to the non-exclusive jurisdiction of the English Courts
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