OPTUS Services Ltd

OPTUS SERVICES LIMITED TERMS AND CONDITIONS OF SUPPLY

1. Definitions

1.1 "Customer" means the party identified as the Customer in this Agreement to whom Optus Services Ltd may agree to supply Products in accordance with these terms and conditions.

1.2 "Products" means goods including but not limited to computer hardware and software items to be provided by Optus Services Ltd to the Customer in accordance with these terms and conditions.

1.3 "Third Party Software" means all software owned by or licensed to the Customer from a third party owner (whether or not supplied by Optus Services Ltd and which comprises part of the Products.

2. Order Acceptance

2.1 All orders placed with Optus Services Ltd by the Customer for Products shall constitute an offer to Optus Services Ltd, under these terms and conditions, subject to availability of the Products and to acceptance of the order by Optus Services authorised representative.

2.2 All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by Optus Services authorised representative.

2.3 It is agreed that these terms and conditions prevail over the Customer's terms and conditions of purchase unless these latter terms and conditions are amended by Optus Services in writing and signed by Optus Services.

3. Independent Contractor

The relationship between the Supplier and Customer is that of independent contractor. Neither part is the agent of the other, and neither party has any authority to make any contract or make any obligation expressly or implied in the name of the other party, without that party's prior written consent for express purposes connected with the performance of the Agreement.

4. Despatch

4.1 Any time quoted for despatch is to be treated as an estimate only, but despatch may be postponed because of conditions beyond Optus Services reasonable control, and in no event shall Optus Services be liable for any damages or penalty for delay in despatch or delivery.

4.2 Risk shall pass to the Customer at the time the Products are despatched by Optus Services. Optus Services accepts no liability for loss or damage caused by the carrier.

4.3 If Products have not been received, the Customer must notify Optus Services within 2 days of the date of the invoice. If proof of delivery is required, this must be requested within 7 days of the date of the invoice.

5. Cancellations And Rescheduling

Subject to clause 8.2, any request by the Customer for cancellation of any order or for rescheduling of deliveries will only be considered by Optus Services if made at least 12 hours before despatch of the Products, and shall be subject to acceptance by Optus Services at Optus Services sole discretion, and subject to a reasonable administration charge therefore by Optus Services. The Customer hereby agrees to indemnify Optus Services against all loss, costs (including the cost of labour and materials used and overhead (incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.

6. Prices

6.1 Catalogues, price lists and other advertising literature or material as used by Optus Services 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 Optus Services.

6.2 All prices are given by Optus Services at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance.

6.3 All quoted or listed prices are based on the cost to Optus Services of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment without notice at Optus Services discretion.

6.4 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Customer and will be applied in accordance with UK legislation in force at the tax point date.

7. Payment Terms

7.1 Invoices will be raised and dated by Optus Services on the date of despatch of the Products. Unless otherwise specifically negotiated and agreed, invoices will be payable by the Customer on the day that goods are ordered. Payments will normally be made by UK bank cheques or electronic money transfer or if applicable credit card as agreed at the time with Optus Services. Credit card payments will be subject to a surcharge of 4%. Goods ordered will be dispatched upon receipt of fully cleared funds into the existing bank used by Optus Services at the time. Payments that are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for Barclays Bank Plc. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgement.

7.2 When all prices, taxes and charges due in respect of the Products and any products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.

7.3 Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, the property in the hardware Products shall not pass to the Customer until Optus Services has received in cash or cleared funds payment of the price of the Products and all of the products agreed to be sold by Optus Services to the Customer for which payment is then due.

7.4 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as Optus Services fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as Optus Services property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to Optus Services for proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

7.5 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), Optus Services shall be entitled at any time to require the Customer to deliver up the Products to Optus Services 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.

7.6 The Customer's power of sale or right to use such Products shall immediately cease if an Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within meaning of The Insolvency Act 1986.

7.7 On termination of the Customer's power of sale or right to use the Products the Customer will immediately hold the Products to the order of Optus Services.

7.8 The Customer shall not be entitled to pledge or in any way change by way of security for any indebtedness any of the Products that remain the property of Optus Services, but if the Customer does so, all monies owing by the Customer to Optus Services shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.

7.9 Optus Services reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Optus Services reserves the right to withdraw any credit facility such that the whole of the Customer's account becomes due for payment forthwith.

8. Specification Of Products

8.1 Optus Services will not be liable in respect of any loss or damage caused by 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 of supply following such variation. Optus Services 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.

8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's standard specifications as these may be improved, subtitled or modified. Optus Services reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of the Products.

9. Proprietary Rights In Software Products

9.1 The Customer hereby acknowledges that any proprietary rights in any Third Party Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights shall at all times and for all purposes vest and remain vested in the Third Party Software owner.

9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by Optus Services (including if so required the execution and return of a Third Party Software licence). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner. The Customer further agrees to Indemnify Optus Services in respect of any costs, charges or expenses incurred by Optus Services at the suit of a Third Party Software owner as a result of any breach by the Customer of such conditions.

9.3 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OF SOFTWARE PRODUCTS OR ANY THIRD PARTY SOFTWARE LICENSED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES

10. Returns

10.1 Optus Services reserves the right to levy an administration charge in respect of the rotation of Products returns.

10.2 Returns must be made subject to the following:

1. prior authority having been obtained from Optus Services which will be given at Optus Services sole discretion;
2. within 30 days of date of the invoice;
3. subject to stock rotation policy;
4. the Products must be properly packed;
5. the Products must be in a saleable condition;
6. the Products must be accompanied by a detailed packing list;
7. the Product is covered by warranty (see section 11).

10.3 Optus Services reserves the right to reject any Products returned which do not comply with the conditions set out in clause 10.2

10.4 If Optus Services nevertheless agrees to accept any Products returned in a non-saleable condition. Optus Services reserves the right to charge the cost to the Customer of bringing the Products to a saleable condition

11. Warranty

11.1 Optus Services warrants that it has good title to or licence to supply all Products to the Customer.

11.2 If any part of the hardware Products should prove defective in materials or workmanship under normal operation of service, such Products will be repaired or replaced only in accordance with any warranty cover and terms provided by the manufacturer of the Product PROVIDED THAT no unauthorised modifications to the product or to the system of which the Product forms part have taken place. Optus Services is not responsible for the cost of labour or other expenses incurred in repairing or replacing defective or non-conforming parts.

11.3 All software Products supplied hereunder are supplied "as is" and the sole obligation of Optus Services in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Product should fail to conform to its product description PROVIDED ALWAYS THAT the Customer notifies Optus Services of any such non-conformity within 90 days of the date of delivery of the applicable software Product

11.4 If the Products are rejected by the Customer as not being In accordance with the Customer's order pursuant to clause 11.2 or 11.3, Optus Services will only accept the return of such Products provided that it receives notification thereof giving detailed reasons for rejection. Optus Services will not consider any claim for compensation Indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the Invoiced Products be deducted or set off by the Customer until Optus Services has passed a corresponding credit note.

11.5 EXPECT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11.OPTUS SERVICES DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES. WHETHER EXPRESS OR IMPLIED. BE STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.

12. Termination For Cause

This Agreement may be terminated forthwith by notice in writing:

12.1 By Optus Services if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in clause 7.1.

12.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.

12.3 If either party is involved in any legal proceeding concerning it’s solvency, or ceases trading or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a Receiver or manager appointed over all or any part of its assets or generally becomes unable to pay Its debts within the meaning of Section 123 of Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this agreement forthwith.

12.4 Any termination of this agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party

13. Export And/Or Re-export Limitation

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 States of America, to the current 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 Optus Services of an ultimate destination for any Products, the Customer will not re-export directly any Products without first obtaining all such consents or authorisations as may be required by any government regulations.

14. Contract

14.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.

14.2 No forbearance, delay or indulgence by either part in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be waiver of any other right or any later breach.

14.3 The Customer agrees not to assign any of its rights herein without the prior written consent of Optus Services.

14.4 In the event of any of these terms and conditions or any part of any of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.

14.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.

14.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.

14.7 These terms and conditions shall be governed and construed in accordance with English Law.

14.8 Optus Services hold title to goods invoiced until payment is received in full.

REPORTING FAULTS ON GOODS & DELIVERIES

Claims for, error, faults, must be notified within 5 days & damage in transit or short delivery must be notified to the company by phone within one day and confirmed in writing within two days of receipt of goods.

Sales Enquiries:   Telephone: 01189 679126   Fax: 01183 750506
Copyright © 2004 Optus Services Limited