Booking Conditions

 

DISTINCTIVE SYSTEMS LTD

Registered In England No.1632153

Amy Johnson Way, York, YO30 4XT

Terms and Conditions of Sale, Support Services, Hardware Maintenance and Software Licence

 

1.    Definitions

 

In these conditions, the following terms have the meanings ascribed to them:

 

"DSL" means Distinctive Systems Ltd.

 

"Customer" means the person, company, firm or organisation placing an order with DSL.

 

"Order" means acceptance of quotation, instruction to proceed or other confirmation by the Customer.

 

"Goods" means any computer hardware, consumables, software, software licence, Software Support, Operating System Support, Hardware Maintenance or services supplied by DSL.

 

"System" means any one or combination of items included in the term "Goods".

 

"Software" means any computer software whether embodied in ROM, tape, disk or other media including the DSL Software.

 

"Specified Software" means any of the following as notified by the Customer to DSL in writing and which DSL agrees to support under this Contract:

 

(a)    data backup and security Software

 

(b)    e-mail, fax and Internet access Software

 

(c)    anti-virus Software

 

"DSL Software" means Coach Manager, Coach Manager Express Edition, Coach Manager Web Pack 1, Tour Booking System, Tour Booking System Online Bookings, Vehicle Maintenance System, Vehicle Maintenance System Express Edition, Vehicle Maintenance System Stock Control, Vehicle Maintenance System Invoicing, Vehicle Maintenance System Sales Ledger, Coach Manager PHC SQL, Coach Assistant PHC SQL, Coach Manager PHC for Windows, Coach Manager PHC for DOS/XENIX, Coach Manager PBS for Windows and Coach Manager PBS for DOS/XENIX.

 

"Licence" means the licence of DSL Software on the terms set out in clause 6 below.

 

"Hardware" means:

 

(a)    servers and PCs and their associated operating systems (e.g. Windows Server 2003, Windows XP Professional, Windows 2000)

 

(b)    printers, print servers, routers, network hubs, switches, modems, back-up devices and other peripherals and their associated software and     

drivers

 

"Specified Hardware" means the Hardware of the Customer as notified by the Customer to DSL in writing and which DSL agrees to support under this Contract.

 

"Firewall" means a configuration of Hardware and/or Software implemented to regulate the security of data transmission between one or more proprietary networks and/or machines and the Internet.

 

"Software Support" means the terms upon which DSL agrees to support the DSL Software as set out in clause 7 below.

 

"Operating System Support" means the terms upon which DSL agrees to support the Specified Hardware and/or Specified Software and/or Firewalls as set out in clauses 8 and 9 below.

 

"Hardware Maintenance" means the terms upon which DSL agrees to provide maintenance for the Specified Hardware as set out in clause 10 below

 

"Insolvency Event" means if any distress or execution shall be levied upon any of the Customer's goods or if the Customer offers to make any arrangement with its creditors, or if any bankruptcy petition is presented against the Customer or the Customer is unable to pay its debts or if the Customer, being a limited company has any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) passed or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Customer's business or assets, the Customer goes into liquidation or the Customer suffers any similar proceedings under any foreign law.

 

2.    General

    

2.1    These terms and conditions apply to all contracts by DSL for the supply of Goods. In the case of conflict, these conditions override any terms and conditions imposed by the Customer and supersede all previous agreements or arrangements whether oral or written. These conditions may only be varied in writing signed by a Director of DSL

 

2.2    Words of a technical nature used in this agreement are construed in accordance with general trade use in the computer industry

 

3.    Orders & Acceptance

3.1    DSL's quotations are not binding on DSL until the Order in writing is received from the Customer by DSL and acknowledged in writing.

 

3.2    All orders are subject to availability of Goods. DSL reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory requirements or which do not materially reduce the quality or performance of the Goods or which reflect changes in the specification of the Goods by their manufacturer.

3.3    In the event that DSL has not given a written acceptance of the Order, these conditions nonetheless apply to the contract, provided that the Customer has had prior notice of them.

 

3.4    DSL reserves the right to correct any clerical or typographical errors made by its employees in quotations.

 

4.    Selection of Goods

 

     DSL is happy to help the Customer to select particular items of computing hardware, software and services, but only the Customer can know his requirements. Accordingly, such selection is the Customer's responsibility and no representations made by or on behalf of DSL in relation to any such hardware, software or services are binding on DSL unless made in writing and signed by DSL.

5.    Software

 

5.1    All Software, including related documentation, is supplied under licence of the applicable proprietary owner and the Customer, in using the Software, is deemed to have read and accepted the terms of that licence.

 

5.2    Title to or ownership of Software does not transfer to the Customer under any circumstances.

 

5.3    It is the sole responsibility of the Customer to comply with any terms and conditions of any Software licence and failure to comply with such terms and conditions could result in the Customer having the licence revoked by the proprietary owner.

 

5.4    All Software, whether the DSL Software or third party Software, is supplied to the Customer "as is". DSL makes no warranty that the Software is error free or that its use will be uninterrupted and the Customer acknowledges and agrees that the existence of such errors shall not constitute a breach of contract.

 

5.5    In the case of DSL Software, providing that the Software performs substantially in accordance with DSL's current published specifications and documentation, the Customer is not entitled to demand any program modification. Any modification is entirely at the discretion of DSL.

 

6.    Licence of DSL Software

 

6.1    DSL grants a licence by this clause 6 to the Customer of DSL Software including programs, documentation and any subsequent corrections, additions or modifications.

 

6.2    This Licence confers on the Customer a non-exclusive non-transferable right to use the DSL Software but only on a single PC or single server connected to a single local network or single wide area network.

 

6.3    The Customer may keep one copy of the DSL Software for security purposes only. Except for such security copy no other copies of any part of the DSL Software shall be made, and the Customer shall not download the DSL Software to, or permit it to be accessed from, any unlicensed equipment or by any third party.

 

6.4    The Customer may not use, copy, modify or transfer the DSL Software (including any related documentation) or any copy, in whole or in part, including any print-out of all or part of any database, except as expressly provided for in this Licence. If the Customer transfers possession of any copy of the DSL Software to another party except as provided above, this Licence is automatically terminated. The Customer may not translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the DSL Software, except as expressly permitted by the law or this agreement. The Customer may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the DSL Software.

 

6.5    Subject to the rights granted to the Customer by this Licence, the Customer acknowledges that all and any proprietary rights in the DSL Software (including but not limited to copyright) and in all associated documentation and other materials related to the DSL Software shall be and shall remain the sole property of DSL.

 

6.6    DSL warrants to the Customer that the DSL Software will not infringe any copyright, patent or other intellectual property rights of any third party. The Customer shall promptly give notice to DSL of any claim alleging infringement of any intellectual property right of any third party, and DSL shall at its discretion either compromise or defend such claim. DSL shall have the right to replace or change the DSL Software so as to avoid infringement of any third party intellectual property rights.

 

6.7    DSL warrants that for a period of 90 days from the date of delivery or installation of the DSL Software, whichever is the later, ("the Warranty Period") the DSL Software will perform substantially in accordance with its published specifications, but does not warrant that the DSL Software is error free. Faulty media or documentation will be replaced during the Warranty Period free of charge on receipt by DSL of written notification from the Customer setting out details of the faults.

 

6.8    DSL shall not be liable under the warranty in clause 6.7 if the DSL Software fails to operate in accordance with the said warranty due to any modification, variation or addition to the DSL Software not performed by DSL or caused by any abuse, corruption or incorrect use of the DSL Software, including use of the DSL Software with equipment or other software which is incompatible.

 

6.9    The warranty in clause 6.7 is made in lieu of any other warranties, representations or guarantees of any kind, either expressed or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result. The Customer assumes the entire risk as to quality and performance of the DSL Software. DSL does not warrant that the DSL Software will meet the Customer's requirements or that its operation will be uninterrupted or error free.

 

6.10    The Customer may terminate the Licence by giving written notice to DSL at any time. DSL may terminate this Licence immediately by notice in writing if the Customer breaches any of its terms, or if the Customer suffers, or threatens to suffer, any form of Insolvency Event.

 

6.11    On termination of the Licence for whatever reason the Customer shall destroy the DSL Software together with all copies in any form.

 

7.    Software Support

7.1    The Software Support to be provided by DSL to the Customer comprises:

 

(a)    correction of the DSL Software should it fail to perform substantially in accordance with DSL's published specifications. DSL will use its reasonable endeavours to correct faults in the DSL Software which the Customer reports to DSL (with sufficient supporting documentation for such faults) during the term of the Software Support

 

(b)    access during DSL's normal business hours to DSL's telephone support lines to obtain advice and assistance concerning the DSL Software and the use of the DSL Software

 

(c)    for DSL Software on DSL's current price list, the opportunity to receive from time to time, enhanced or upgraded versions of the DSL Software. Provided that the DSL Software performs substantially in accordance with DSL's published specifications, whilst DSL is happy to consider any reasonable requests for enhancements to the DSL Software on DSL's current price list, the Customer is not entitled to demand program modifications

 

7.2    DSL will use its reasonable endeavours to provide Software Support promptly and accurately subject to the limitations in clause 19 below. DSL will not be under any obligation to provide Software Support in respect of:

 

(a)    problems resulting from any modifications or customisations of the DSL Software not authorised in writing by DSL

 

(b)    any Software other than the DSL Software or any program or software used in conjunction with the DSL Software

 

(c)    incorrect or unauthorised use of the DSL Software or operator error where these are defined as use or operation not in accordance with the accompanying documentation to the DSL Software

(d)    any fault in the Customer's Hardware

 

(e)    use of the elements of the DSL Software in any combination other than those specified in the DSL Software's manual and/or help files

 

(f)    use of the DSL Software with computer Hardware, operating systems or other supporting Software other than those specified in the accompanying documentation to the DSL Software     

 

(g)    any versions of the DSL Software more than 12 months out of date

 

7.3    The Customer's obligations are as follows:

 

(a)    in accordance with best computing practice and the terms of the Licence, to be responsible for the correct operation and use of the DSL Software and of the equipment on which it runs. The Customer agrees to comply at all times with DSL's recommendations and advice on the use of the DSL Software    

 

(b)    to be responsible for promptly reporting in writing to DSL all program faults which become apparent. The Customer uses faulty DSL Software at its own discretion and own sole risk

 

(c)    except with the prior written consent of DSL, the Customer will not permit or authorise any other person to provide any Software Support in respect of the DSL Software

 

7.4    DSL warrants to provide Software Support with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.

 

    DSL does not warrant that all errors in the DSL Software can and will be corrected. DSL shall use its reasonable endeavours to correct errors in the DSL Software, so long as the errors are repeatable by the Customer, or to provide a software patch, or to bypass around such errors.

 

7.5    DSL will provide Software Support for any period of 12 months in respect of which DSL receives payment in full of the fee for Software Support unless otherwise terminated earlier. Software Support will terminate automatically if the Licence terminates for whatever reason. DSL may terminate the provision of Software Support immediately on written notice if the Customer breaches any of the terms of this contract or suffers or threatens to suffer any Insolvency Event.

 

8.    Operating System Support

 

8.1    DSL will provide Operating System Support for the Specified Hardware, the Specified Software and Firewall, on condition that they have been notified by the Customer to DSL and accepted by DSL at the commencement of the Operating System Support.

 

8.2    The Operating System Support to be provided by DSL to the Customer comprises access during DSL's normal business hours to DSL's telephone support lines to obtain advice and assistance concerning problems arising in the use of the Specified Hardware, the Specified Software and Firewall.

 

8.3    DSL will use its reasonable endeavours to provide Operating System Support promptly and accurately subject to the limitations in clause 19 below. DSL will not be under any obligation to provide Operating System Support in respect of:

 

(a)    installation of or problems arising from the installation of Hardware and Software not supplied by DSL

 

(b)    problems arising from modification or reconfiguration of operating systems without direction from DSL    

 

(c)    problems arising from virus infestation (irrespective of whether anti-virus software has been installed)

 

(d)    problems arising from adverse environmental conditions such as electrical power failure or surge, damp or dirty surroundings and extreme heat or cold

 

(e)    instruction in the use of application Software (e.g. Microsoft Office)

 

(f)    Hardware failure or the re-instatement of operating systems as a result of Hardware failure, except where the Customer has Hardware Maintenance, the terms of which are set out in clause 10 below

 

(g)   the re-instatement of Software as a result of Hardware failure, except for the re-instatement of the DSL Software

    

8.4    The Customer's obligations are as follows:

 

(a)    in accordance with best computing practice to be responsible for the correct operation and use of the Hardware and Software

 

(b)    to comply at all times with DSL's recommendations and advice on the use of the Hardware and Software

 

(c)    to be responsible for promptly reporting in writing to DSL all faults which become apparent. The Customer uses faulty Hardware and Software at own discretion and own sole risk

 

(d)    except with the prior written consent of DSL, the Customer will not permit or authorise any other person to provide any Operating System Support in respect of the Specified Hardware and/or the Specified Software and/or a Firewall

 

8.5    DSL warrants to provide Operating System Support with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.

 

8.6    DSL will provide Operating System Support for any period of 12 months in respect of which DSL receives payment in full of the fee for Operating System Support unless otherwise terminated earlier. DSL may terminate the provision of Operating System Support immediately on written notice if the Customer breaches any of the terms of this contract or suffers or threatens to suffer any Insolvency Event.

 

8.7    The Operating System Support in respect of a Firewall is subject to the additional conditions set out in clause 9 below.

 

9.    Firewall    

 

DSL will install a Firewall for the Customer subject to the following additional conditions over and above the conditions contained in this contract:

 

(a)    the Customer accepts that DSL is unable to prevent others from invading or breaking into the Customer's physical network or other systems

 

(b)    the Customer accepts that a Firewall provides no guarantee against invasion or break in and agrees that DSL shall not be liable in any way for any such invasion or break in

(c)    the Customer is solely responsible for all use of the Customer's machines, network(s) and account(s) and confidentiality of all passwords

 

(d)    e-mail and other transmissions over the Internet are insecure in many cases and DSL does not guarantee the protection or privacy of any information thus transmitted. The Customer accepts that private and confidential information should not be placed on the Internet

 

10.    Hardware Maintenance

 

10.1           DSL sub-contracts Hardware Maintenance to its chosen hardware maintenance supplier which is notified to the Customer before the commencement of the Hardware Maintenance.

     

10.2    DSL will provide Hardware Maintenance for the Specified Hardware, on condition that they have been notified by the Customer to DSL and accepted by DSL at the commencement of the Hardware Maintenance.

 

10.3    The Hardware Maintenance comprises:

 

(a)    response between the hours of 9.00 and 17.00, Monday to Friday (except public holidays) to a call in respect of a hardware fault logged by the Customer or DSL at the hardware maintenance supplier's Call Logging Centre

 

(b)    repair and/or replacement of any defective part as appropriate. DSL will endeavour to ensure that the hardware maintenance supplier repairs and/or provides a replacement within 8 working hours of a call being logged with the hardware maintenance supplier, subject to the limitations in clause 19 below

 

(c)    if repair has to be made away from the location of the Specified Hardware , the hardware maintenance supplier may provide on loan a temporary replacement unit. Any unit on loan to the Customer will not become the property of the Customer and the Customer will be liable for any loss or damage to that unit

 

(d)    a permanent replacement part, new or refurbished will be provided by the hardware maintenance supplier if, in the opinion of the hardware maintenance supplier, repair of a defective part is not possible. In such case, the defective part will become the property of the hardware maintenance supplier

 

(e)    the re-instatement by the hardware maintenance supplier of the Specified Hardware to the working condition prior to the fault occurrence including re-loading of the operating system

 

10.4    DSL will not be under any obligation to provide Hardware Maintenance in respect of:  

 

(a)    if in the opinion of the hardware maintenance supplier, any of the Specified Hardware becomes irreparable or spare parts become unavailable or the fault rate is so high or its condition is such that a complete overhaul or replacement is necessary, DSL may give notice to the Customer to that effect. If the Customer declines to have the item overhauled or replaced at the Customer's expense within 30 days, DSL may exclude the item from the Specified Hardware and refund any charges paid by the Customer for Hardware Maintenance relating to that item from the end of the notice period to the expiry date of the Hardware Maintenance. Any loan Hardware relating to the said item will be removed from the Customer's premises at the end of the notice period

 

(b)   Hardware serviced, repaired or modified by any person other than personnel employed by or approved by DSL and/or the hardware maintenance supplier

 

(c)    Hardware failure or fault caused by accident, neglect, operator error or misuse, adverse environmental conditions such as electrical power failure or surge, damp or dirty surroundings, extreme  heat or cold, failure of storage media or transportation

 

(d)    Hardware which was faulty or operating in an unstable manner prior to the commencement of the Hardware Maintenance

 

(e)    printer consumables as defined by the printer manufacturer e.g. print heads, toner cartridges, fuser assemblies, paper feed rollers, thermal films, OPC belts, transfer belts, ozone filters and thermal transfer heads. This list is not exhaustive

 

(f)    printer accessories e.g. paper bins, duplex units, paper trays and switch boxes. This list is not exhaustive

 

(g)    cables, batteries, CDM ROM caddies, cathode ray tubes, LCD, TFT and plasma screens outside warranty, removable storage media except for removable hard drives in laptops and servers

 

(h)    electrical work external to the Specified Hardware

 

(i)    faults or failure of Hardware due to manufacture or design defects

 

(j)    refurbishment or repair of casings or outer surfaces

 

(k)    DAT drive faults caused by tape jamming in the mechanism         

 

(l)    faults relating to worn media        

 

(m)    failure caused by any Software or any Hardware not on the Specified Hardware schedule  

 

10.5    The Customer's obligations are as follows:

 

(a)    to notify DSL or the hardware maintenance supplier immediately upon Hardware failure or fault. The Customer uses faulty Hardware at   

       own discretion and own sole risk

    

(b)    to allow the personnel of the hardware maintenance supplier free access to the Hardware

 

(c)    in accordance with best computing practice to be responsible for the correct operation of the Hardware by properly trained staff

 

(d)    to keep properly licensed software disks and back-ups, including an up to date back-up of the DSL Software data files, necessary for the restoration of the Specified Hardware to its condition prior to the fault occurrence

 

(e)    except with the prior written consent of DSL, the Customer will not permit or authorise any person other than personnel employed by or approved by the hardware maintenance supplier sub-contracted under this agreement to provide any Hardware Maintenance in respect of the Specified Hardware

 

(f)    to notify DSL in writing of a change of location of the Specified Hardware

 

10.6    DSL will provide Hardware Maintenance for any period of 12 months in respect of which DSL receives payment in full of the fee for Hardware Maintenance unless terminated earlier. DSL may terminate the provision of Hardware Maintenance immediately on written notice if the Customer breaches any of the terms of this contract or suffers or threatens to suffer any Insolvency Event. If the Customer terminates  the Hardware Maintenance during the period of the Hardware Maintenance, the fee will not be refunded either in full or in part.

 

11.    Warranties

11.1    DSL will pass to the Customer the benefit of any warranties and/or guarantees against defects in Goods supplied by third parties.

    

11.2    All claims under any such warranties and/or guarantees are subject to the terms and conditions imposed by those third parties.

 

12. Prices

 

12.1    Catalogues, price lists and other advertising literature or material as used by DSL are only as an indication of price and range of Goods offered. No prices, descriptions or other particulars contained therein are binding on DSL.

 

12.2    DSL reserves the right to change its quoted charges to cover any items not previously specified by the Customer as requirements when the quotation was prepared, incorrect or inadequate information provided by the Customer, or to cover increases in the costs it incurs to third parties or which unforeseeably arise after the date of the quotation.

 

12.3    All prices are exclusive of VAT and delivery charges unless stated otherwise.

 

12.4    Whilst every effort is made to ensure the accuracy of prices quoted or charged, DSL can accept no responsibility for any errors or omissions.

 

13.    Payment

13.1    For Customers with an established credit account with DSL, DSL's payment terms are as follows:

 

(a)    for all Hardware, Software and associated services, supplied as a whole or part of a new or upgraded System, cash on delivery

 

(b)    for renewals of Software Support, Operating System Support and Hardware Maintenance, cash prior to commencement  of the period of the contract

 

(c)    for all other Goods, cash by the 15th day of the month following the invoice date

 

13.2       For new Customers and until such time as a credit account may be established, DSL's payment terms are cleared funds prior to delivery.

 

13.3    DSL offers credit to Customers for Goods as in clause 13.1(c) subject to status.

 

13.4    Overdue accounts will have credit suspended and no further Goods will be supplied until all payments due to DSL under any contract of sale between DSL and the Customer have been cleared. Repeated failure to comply with DSL's payment terms will result in permanent withdrawal of credit facilities, and payment will be required at the time of order, prior to delivery.

 

13.5    DSL reserves the right to charge interest on late payments at the rate of 4% above National Westminster Bank plc base rate (as varied from time to time), calculated on a daily basis and compounded.

 

13.6    The fee for the provision of the Software Support and/or Operating System Support is payable annually in advance, inclusive of all taxes. If payment of the fee for the Software Support and/or Operating System Support is not received in full by the date of commencement or renewal of the Software Support and/or Operating System Support contract, the provision of Software Support and/or Operating System Support will cease. DSL reserves the right to increase the fee for Software Support and Operating System Support annually, by giving notice in writing at least 30 days before the date on which the Customer is due to renew the Software Support or Operating System Support.

 

13.7    Any Software Support provided over and above those services set out in clause 7 and/or in respect of faults which result from any of the circumstances listed in clause 7.3 will be supplied to the Customer at DSL's sole discretion and at its current charging rate.    

 

13.8    Any Operating System Support provided over and above those services listed in clause 8 and/or in respect of faults which result from any of the circumstances listed in clause 8.3 will be supplied to the Customer at DSL's sole discretion and at its current charging rate.

 

13.9    Any Hardware Maintenance provided over and above those services listed in clause 10 and/or in respect of faults which result from any of the circumstances listed in clause 10.4 will be supplied to the Customer at DSL' s sole discretion and at its current charging rate.

 

13.10    Software Support or Operating System Support which cannot be performed by telephone and which requires a visit to the Customers' premises, is not covered by this agreement, and is chargeable at DSL's current charging rate. DSL shall invoice the Customer for such additional services and the Customer shall pay the invoice by the 15^th day of the month following the invoice date.

 

14.    Leasing/Hire Purchase

 

Where a finance company has agreed to lease or hire purchase Goods to the Customer, DSL requires that the necessary documentation for the finance agreement is completed and signed prior to delivery of the Goods. Finance arrangements between the Customer and the finance company do not in any way relieve the Customer of its obligations under the terms of the contract between the Customer and DSL or in the application of these terms and conditions to the sale of the Goods.

 

15.    Cancellation

    Contracts accepted by DSL cannot be cancelled by the Customer except by giving written notice to DSL and after agreeing terms with DSL that will fully compensate DSL for actual or anticipated expenses and loss of profit.

 

16.    Delivery

16.1    Any delivery dates quoted or mentioned by DSL, whether verbally or otherwise, are estimates only and are not to be of the essence of the contract. Whilst DSL will use all reasonable endeavours to meet the delivery dates requested by the Customer, it cannot guarantee to do so.

 

16.2    DSL has no liability to the Customer if it fails to meet any requested, quoted, estimated or agreed date of delivery and any delay in the time of delivery does not entitle the Customer to cancel the Order, unless explicitly agreed and accepted by DSL in writing.

 

16.3    The non-delivery or non-performance of Goods supplied by other parties needed to set up the Customer's System, does not give the Customer the right to refuse delivery of Goods supplied by DSL.

 

16.4    No liability for non-delivery, loss or damage to the Goods or for any claim that the Goods are not in accordance with the contract, can be accepted by DSL unless claims are notified in writing to DSL by the Customer:

 

(a)    in the case of loss, damage or non-compliance with the contract, within 10 working days of delivery

 

(b)    in the case of non-delivery, within 10 working days of the date of DSL's invoice

 

16.5    In the event of a valid claim for non-delivery, loss or damage or non-compliance with the contract, DSL will replace the Goods at its own expense, but is under no liability whatsoever to the Customer or any third party. The Customer is not entitled to make any claim against DSL for any consequential or other losses arising out of non-delivery, loss or damage to the Goods or non-compliance with the contract.

 

16.6    All Goods returned to DSL due to faults or some other reason shall become the property of DSL.

 

17.    Title to Goods

 

17.1    The Goods supplied to the Customer by DSL are at the Customer's risk immediately on delivery to the Customer and the Customer must insure the Goods from the time of delivery.

 

17.2    Title to or in the Goods, excluding Software, passes from DSL to the Customer upon receipt of payment in full.

 

17.3    If the Customer fails to pay the full price plus VAT and delivery charges in accordance with the terms of payment, commits any other breach of this contract, or suffers or threatens to suffer any Insolvency Event, DSL may give notice in writing to the Customer that it treats the contract as repudiated. In that event, the Customer must hold the Goods for collection by DSL or its agent and must allow DSL or its agent to gain access to the place where the Goods are stored and must allow DSL to regain possession of such Goods. Repudiation of the contract does not prejudice DSL's right to compensation for actual or anticipated expenses and loss of profit. DSL shall be entitled to recover the price of the Goods (plus VAT and delivery charges) notwithstanding that property in the Goods has not passed to the Customer.

 

18.    Force Majeure

If the delivery of Goods by DSL is prevented or delayed, whether directly or indirectly, by any cause beyond the reasonable control of DSL, even if such cause existed or was foreseeable at the time of acceptance by DSL of the Order, DSL reserves the right to cancel or suspend delivery and is in no way liable for any loss or damage, direct or consequential (including loss of profit) suffered by the Customer.

 

19.    Limitation of Liability

19.1    DSL does not seek to limit or exclude liability for death or personal injury arising from DSL's or its servants' negligence.

 

19.2    DSL's liability for damage to property caused by negligence or breach of contract is limited to damage to property other than program carrying media, data, goodwill or other intangible property. Liability for any such damage is further limited to the total amount of payments received by DSL from the Customer under the contract by which such liability arises.

 

19.3    DSL accepts no liability for consequential or indirect loss of any kind including loss of profit suffered by the Customer arising out of a breach by DSL of this contract.

 

19.4    DSL excludes all warranties, either express or implied, including but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result.

 

19.5    DSL shall not be liable for any loss, direct or indirect, consequential or financial, suffered by the Customer caused by the delivery, use or performance of the DSL Software or for negligence or breach of contract in relation to the DSL Software. DSL's liability to the Customer for any losses shall not exceed the amount the Customer originally paid for the DSL Software.

 

19.6    The Customer hereby acknowledges and agrees that the limitations contained in this clause are reasonable in the light of all the circumstances.

 

20.    Assignment

20.1    The Licence is personal to the Customer and may not be assigned by the Customer. The Customer may not rent, lease, sublicence, sell, assign, pledge, transfer or otherwise dispose of the DSL Software, on a temporary or permanent basis, without the prior written consent of DSL.

 

20.2    The provision of Software Support, Operating System Support and Hardware Maintenance to the Customer is non-exclusive and cannot be transferred or assigned by the Customer. DSL reserves the right to assign or sub-contract its obligations under this agreement in whole or in part.

 

21.    Severability

In the event that any provision of this contract is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either you or us from any relevant competent authority, DSL shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or, at DSL's discretion, such provision may be severed from this contract and the remaining provisions of this contract shall remain in full force and effect.

 

22.    Entire Agreement

 

The Customer agrees that it has read and understands this contract and agrees that it constitutes the complete and exclusive statement of the agreement between DSL and the Customer with respect to the subject matter hereof and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating thereto.

 

23.    Waiver

Failure or neglect by either party to exercise any of its rights or remedies under this agreement will not be construed as a waiver of that party's rights nor in any way affect the validity of the whole or part of this contract nor prejudice that party's right to take subsequent action.

 

24.    Third Party Rights

For the avoidance of doubt nothing in this contract shall confer upon any third party any benefit or the right to enforce any term of this contract.

 

25.    Jurisdiction

These terms and conditions are governed by English Law and DSL and the Customer agree to submit to the jurisdiction of the English courts.