Terms and Conditions of Sale
In these Conditions:
Authorised Officer: a person whose position with DS is that of Chairman, Director, Customer Services Manager or Credit Manager of DS
Backorder: an Order accepted by DS for which the Goods are not available at time of Order placement and which are still to be received by DS from its main supplier
Buyer: is the person (including a natural person, corporate or unincorporated body, whether or not having a separate legal personality) who places an Order with DS for the purchase of the Goods or the provision of the Services and whose Order is accepted by DS in accordance with these Conditions
Buyer-Owned Goods: are any hardware or software, whether packaged, licensed or as a service, and instalments of such goods or any parts of them owned by the Buyer
Charges: the amounts payable for the Goods or the Services, as set out in the relevant Order accepted by DS
Contract: is each individual Order between DS and the Buyer for the purchase and sale of the Goods and/or Services accepted by DS in accordance with, and incorporating, these Conditions
Data Controller: has the meaning set out in the Data Protection Legislation
Data Protection Legislation: means (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) as amended or updated from time to time and the Data Protection Act 2018 and any successor legislation to the GDPR or the Data Protection Act 2018
Data Subject: an individual who is the subject of Personal Data
Delivery: the delivery of the Goods either (i) by DS’s carrier, completion of which being DS’s carrier’s notification to the Buyer that the Goods are ready to be off-loaded at the address supplied by the Buyer or (ii) by Buyer’s carrier, completion of which being DS’s notification to Buyer that the Goods are ready for collection
Electronic Means: any electronic means including without limit on the Web, by EDI or XML, or other platform utilised for the placing of Orders
any third party to whom the Buyer resells the Goods or Services (for the avoidance of doubt, such third party can be another reseller)
End User: are any hardware or software, whether packaged, licensed or as a service, and instalments of the Goods or any parts of them sold by DS to the Buyer in accordance with the Conditions
Insolvency Event: any one or more of the events listed at clauses 2.2.2 – 2.2.8 (inclusive)
Order: is the Buyer’s order for the supply of Goods and/or Services placed with DS (including Backorders), as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of DS’s quotation or statement of work, the Buyer’s order placed on any website of DS, or any automatic renewal by DS of an existing order, as the case may be
Personal Data: has the meaning given to it in the applicable Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Buyer is the Data Controller and in relation to which DS is providing services under the Contract.
Processing and process: have the meanings set out in the applicable Data Protection Legislation
Services: any services (including, but not limited to, asset-tagging, collections, configuration, customisation, disposal, etching, fulfilment, implementation, installation, pre-delivery inspection or software enrolment) relating to the Goods or Buyer-Owned Goods (as applicable) provided by DS (or any third party on its behalf) to the Buyer or End User (as appropriate) from time to time under these Conditions;
DS: is Westcoast Limited trading as Data Select of Arrowhead Park, Arrowhead Road, Theale, Reading, RG7 4AH.
THE BUYER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSES 8 AND 9.
1. BASIS OF SALE
1.1 All Contracts shall be governed by these Conditions (and where applicable any other terms agreed in writing by an Authorised Officer of DS) to the exclusion of any other terms and conditions, including without limit any terms on or referred to in any Buyer purchase order or other Buyer documentation. In the case of Orders placed by Electronic Means which refer to any terms and conditions of the Buyer, DS’s automatic taking on to its system of such order shall amount to a rejection of the Buyer’s terms and conditions and an offer to supply the Goods ordered on the basis of these Conditions.
1.2 No variation to these Conditions shall be binding unless agreed in writing by an Authorised Officer of DS.
1.3 Subject to clause 1.4, DS’s employees or agents have no authority to make any representations concerning the Goods or Services. In entering into the Contract the Buyer acknowledges that it does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind the Contract for any such representations (unless made fraudulently).
1.4 Any advice or recommendation for the Goods given by DS or its employees or agents to the Buyer or its employees or agents not confirmed in writing by an Authorised Officer is followed or acted upon entirely at the Buyer’s own risk and DS shall not be liable for any such advice or recommendation.
1.5 All references in these Conditions to DS agreeing, approving, waiving or specifying a matter apply only if such is confirmed in writing by an Authorised Officer.
1.6 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 DS shall be subject to correction without any liability on the part of DS.
1.7 It shall be a condition of any quotation and subsequent Contract (if applicable) that the information provided by the Buyer is correct, accurate, not misleading and a complete response to DS’s request(s) when provided and remains so for at least until the later of the date when the quotation lapses or the relevant Goods and/or Services are delivered.
1.8 Any quotation for the Goods given by DS shall (i) not constitute an offer and (ii) only be valid for a period of 5 business days from its date of issue.
1.9 Any Order constitutes an offer by the Buyer to purchase the Goods and/or Services incorporating these Conditions. Orders accepted by DS are accepted solely subject to these Conditions . Any element of an Order shall only be deemed to be accepted at the earliest of despatch of those particular Goods or performance of those particular Services or when acceptance is communicated in writing by DS at which point, and on which date, the Contract shall come into existence.
2. CANCELLATION OF ORDERS
2.1 No Contract may be cancelled by the Buyer unless agreed in writing by DS if so agreed, the Buyer shall indemnify DS in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by DS as a result of cancellation.
2.2 DS shall have the right immediately to cancel or to suspend any Contract or any delivery to be made under the Contract without any liability to the Buyer if:
2.2.1 the Buyer fails to make any payment when due or breaches any provision of the Contract and the Buyer has failed to remedy such breach within 7 days after receipt of notice in writing from DS requiring the Buyer to do so;
2.2.2 the Buyer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; or
2.2.3 the Buyer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally; or
2.2.4 the Buyer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or a winding-up order is made other than solely in relation to a solvent amalgamation or reconstruction (or in the case of an individual is made bankrupt); or
2.2.5 an administrator, receiver or administrative receiver is or is likely to be appointed in relation to the Buyer or any of its assets; or
2.2.6 any creditor of the Buyer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Buyer’s assets, and such attachment or process is not discharged within ten Business Days
2.2.7 the Buyer ceases, or threatens to cease, to carry on business; or
2.2.8 DS reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
2.2.9 the Buyer commits or is a party to dishonest or fraudulent conduct in relation to the Contract.
2.3 If clause 2.2 applies then, without prejudice to any other right or remedy available to DS, DS shall be entitled to do any one or more of the following:
2.3.1 cancel each and every Contract yet to be performed (in whole or in part);
2.3.2 suspend any further deliveries under each and every Contract without liability to the Buyer;
2.3.3 immediately revoke any and all credit extended to the Buyer on such terms as DS shall in its sole and absolute discretion determine;
2.3.4 reduce or cancel all quantity and other discounts offered to the Buyer; and
2.3.5 if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
3.1 Unless otherwise agreed in writing with an Authorised Officer the costs of packing and Delivery shall be for the Buyer’s account. If DS pays for or incurs all or part of such costs, it shall invoice its costs so incurred to the Buyer at the date of dispatch.
3.2 The Buyer warrants the details of any address for Delivery stipulated by the Buyer (including those of End Users). DS reserves the right to invoice the Buyer for any losses incurred by DS for failed or re-routed deliveries as a result of inaccurate information provided by the Buyer (including where recipient is not available/unwilling to accept the Goods).
3.3 Any Delivery dates given are estimated dates only and time is not of the essence for Delivery. Changed specifications or instructions may result in revised estimated Delivery times.
3.4 The Goods may be delivered in instalments. Each delivery shall constitute a separate Contract and failure by DS to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
3.5 If the Buyer (i) arranges collection of the Goods from DS and the Buyer’s carrier fails to take receipt of the Goods after DS has notified the Goods are ready for collection or (ii) fails to give DS adequate Delivery instructions or (iii) has requested a delay in Delivery or (iv) is unable to give access to its premises for the purposes of Delivery or installation then DS may at the risk and expense of the Buyer:
3.5.1 store the Goods until actual Delivery and invoice the Buyer for all such costs of storage and re-Delivery; or
3.5.2 sell the Goods at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Buyer (if available) or charge the Buyer for any shortfall (as applicable).
3.6 Where Goods are to be exported out of the United Kingdom by either (i) DS to the Buyer or (ii) by the Buyer itself (subject to any special terms agreed in writing between the Buyer and DS and notwithstanding any other provision of these Conditions):
(i) The terms of purchase of the Goods will be subject only to warranty provided by the original equipment manufacturer (“OEM”) and the Buyer shall be solely responsible for ensuring that it fully understands and is aware of such warranty terms;
(ii) The Buyer shall ensure that it complies with any export controls as notified by DS, the OEM or a third party or as contained within any supporting documentation provided with the Goods;
(iii) The relevant tax legislation will be applied in accordance with and under the United Kingdom legislation at the time of the contract;
(iv) The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any import taxes or duties thereon;
(v) Unless otherwise agreed in writing between the Buyer and DS, delivery terms of the Goods shall be ‘Delivered at Place’ (as per Incoterms 2010) to the UK port of export and DS shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979;
(vi) the Buyer shall be responsible for arranging for testing and inspection of the Goods at DS’s premises before shipment. DS shall have no liability for any claim in respect of any defect in the Goods, which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit;
(vii) The Buyer shall not be entitled to withhold payment of the price for the Goods due to the Buyer’s failure to comply with the provisions of this clause; and
(viii) The Goods will be packaged in accordance with DS’s standard practice, and the packaging shall meet any reasonable requirements stipulated in advance by any independent contractors or shippers.
3.7 The Buyer’s failure to make due payment in respect of any deliveries or instalments under any Contract shall entitle DS to delay, suspend or cancel further deliveries in whole or in part at its option.
3.8 Where the Buyer fails to take Delivery of the whole quantity of the Contract at the due time, any discount or other allowance in respect of the Goods, which the Buyer is or would be entitled to shall be forfeited.
3.9 Where DS has agreed to ship Goods or perform Services direct to End User on behalf of Buyer any such shipment or performance shall be deemed to be Delivery to Buyer and any refusal by the End User to accept Delivery or performance shall be deemed to be a refusal by Buyer. It shall be Buyer’s obligation to report any delivery discrepancies in accordance with this clause 3 when Goods are shipped direct to End User or when Goods are sent onto End User by Buyer.
4. ACCEPTANCE AND RETURNS PROCEDURE
4.1 DS shall not be liable in respect of any damage to the Goods, discrepancy in the Contract, shortage in the Goods Delivered, loss of the Goods in transit or any claim that the Goods delivered or collected do not otherwise comply with the Contract other than in accordance with this Condition and warranty clause 4 as stated below.
4.2 Damage, discrepancies, shortages and invoice queries:
(i) The Buyer shall be responsible for inspecting the boxed / parcel contents containing the Goods on Delivery to check the Goods for damages, discrepancies and shortages. On Delivery, the Buyer must write on the Despatch Note prior to signing of any damages, discrepancies and shortages.
(ii) The invoiced Charges shall, in the absence of a manifest error, be deemed accepted by the Buyer unless the Buyer notifies DS customer services in writing within 14 days of the date of the invoice.
(iii) The Buyer shall notify DS customer services in writing within 48 hours of Delivery of any short Deliveries, damaged Goods Delivered or any non-shipment of Goods detailed on the proof of Delivery.
Save for bona fide notifications received by DS under 4.2(i), (ii) and 4.2(iii) above, DS shall have no liability whatsoever to Buyer in respect of the matters noted above.
4.3 Goods that fail on installation “DOAs”): DS operates a returns procedure for DOAs. The DOA returns procedure may vary depending on the OEM of the Goods and will be notified to the Buyer upon the Buyer notifying DS (within 14 days of Delivery) that the Goods have apparently failed on installation.
4.4 Goods that fail after installation (“Faulty Goods”): In no circumstances may the alleged Faulty Goods be returned to DS without DS’s prior written consent. Where Goods are returned a handling charge may be levied at DS’s discretion and shall be either deducted from any credit allowed by DS (should the Goods be accepted at DS’s discretion as Faulty Goods) or be payable to DS by the Buyer upon demand. The Buyer must notify DS immediately of the fault becoming apparent and follow DS’s instructions in relation to the fault.
4.5 General provisions relating to DOAs and Faulty Goods:
(1) The Buyer shall pay all DS’s reasonable costs and expenses if the Goods suspected to be DOA or Faulty Goods by the Buyer prove not to be DOA or Faulty Goods (at DS’s sole discretion). (2) Any returns shall be subject to and the Buyer shall comply with DS’s returns authorisation procedures. (3) DOA and Faulty Goods shall be dealt with in accordance with the applicable OEM’s DOA or Faulty Goods procedures and the Buyer shall comply with the same. (4) The Buyer shall be responsible for all transportation and insurance costs relating to returned Goods. (5) The Buyer shall have no right to return any Goods delivered in accordance with the Contract. (6) Goods must be received by DS within 14 days of DS issuing a returns authorisation number to Buyer.
4.6 Where a return under this clause 4 is approved in writing by DS, the Goods (or part thereof) to be returned must be delivered to DS’s premises in its original packaging together with supporting documentation confirming the alleged fault and quoting the relevant returns number. In the event the Buyer fails to comply with this clause 4.6, DS will be entitled to levy a handling fee as applicable in the circumstances.
4.7 DS shall be under no obligation to accept return of any Goods other than as provided in the warranty clause below.
5.1 All DS prices for Goods and/or Services (“Price(s)”) are quoted subject to (i) acceptance within any period specified and (ii) any increase which may occur as a result of factors falling outside the control of DS, which without limitation, shall include any of the following circumstances:
(a) where the Buyer has requested (whether before or after a Contract has been made) any variation whatsoever to the quantity, capacity, form, content, style or description of the Order or Goods and/or Services, or has requested an earlier or a later Delivery date to that originally requested; or
(b) where steps are taken by DS to comply with any statutory provisions from time to time in force, and any increases in the price charged to DS of any equipment or goods bought in from DS’s suppliers in order for DS to fulfil the Contract; or
(c) where the supply of the Goods or the provision of Services is suspended, varied or otherwise delayed by any acts or omissions of the Buyer
(d) where DS has incurred any additional or unforeseen import duties after the Contract has been made.
5.2 Unless otherwise stated, the Price does not include the costs of Delivery and VAT and any other applicable customs or excise duties or taxes (where applicable) and these will be added to all invoices at the rate ruling at the date of despatch.
6.1 Payment of the Charges or any part thereof and any other charges due under the Contract must be made by the Buyer within 30 days month end following the date of DS’s invoice (unless otherwise specified in writing by an Authorised Officer).
6.2 Should the Buyer fail to make payment by the due date, DS shall be entitled to charge interest on the overdue amount at the rate of 4% above Barclays Banks’ base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual date of payment (whether before or after judgment).
6.3 The Buyer shall make all payments in pounds sterling immediately when due without set off, deferment, deduction or withholding whatsoever (whether on account of any claim or counterclaim or otherwise). Where payments in an alternative currency are authorised in writing by the Authorised Officer prior to the Contract being concluded, such payments shall be made by telegraphic transfer to the account to be designated by the Authorised Officer from time to time.
6.4 DS shall be entitled at any time to set-off any sums owed to the Buyer (including but not limited to vendor rebates or vendor pass through funds) against sums owed by the Buyer to DS.
6.5 The time of payment shall be of the essence of the Contract.
6.6 The Buyer shall indemnify DS against the total costs incurred (without limitation) by DS arising out of the Buyer’s breach(es) of these Conditions.
6.7 On the happening of a “Relevant Event” DS shall be entitled in its sole and absolute discretion to alter its terms of payment or to alter any credit terms which may have been granted. For the purposes of this clause 6.7, a “Relevant Event” shall be defined as being:
(i) where DS is notified or otherwise reasonably believes that the Buyer’s credit record has worsened to a level unacceptable to DS; or
(ii) where DS in its sole discretion deems the Buyer’s financial position to be unacceptable; or
(iii) where DS’s trade indemnity insurers require such alteration.
6.8 Notwithstanding clause 6.7, DS reserves the right to withdraw any credit facilities afforded to the Buyer at any time, without notice.
6.9 In the event that the trading relationship between the Buyer and DS is terminated for whatsoever reason then all sums due by the Buyer shall immediately become due and payable.
7. RETENTION OF TITLE AND RISK
7.1 Risk in the Goods will pass to the Buyer on completion of Delivery.
7.2 Title to the Goods (including full legal and beneficial ownership but excluding software, title of which shall never pass to the Buyer) shall not pass to the Buyer until:
(i) DS receives payment in full for the Goods as supplied to the Buyer; and
(ii) DS receives payment in full for all and any other debts owed by the Buyer to DS at any given time; or
(iii) The Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at such time as specified in clause 7.4.
7.3 Until title to the Goods has passed to the Buyer, the Buyer will:
(i) hold the Goods as bailee for DS;
(ii) store the Goods separately from all other material in the Buyer’s possession;
(iii) take all reasonable care of the Goods and keep them in reasonable condition;
(iv) insure the Goods: (i) with a reputable insurer (ii) from the date of delivery (iii) against all risks (iv) for an amount at least equal to the Price (v) noting DS’s interest on the policy;
(v) ensure that the Goods are clearly identifiable as belonging to DS;
(vi) not remove or alter any mark on or packaging of the Goods;
(vii) inform DS as soon as possible if it becomes subject to an Insolvency Event; and
(viii) provide DS such information concerning the Goods as DS may request from time to time.
7.4 Notwithstanding clause 7.3, and subject to clause 7.5, the Buyer may use or resell the Goods in the ordinary course of its business (but not otherwise) before DS receives payment for the Goods. However, if the Buyer resells the Goods before that time:
7.4.1 It does so as principal and not as DS’s agent; and
7.4.2 Title to the Goods shall pass from DS to the Buyer immediately before the time at which resale by the Buyer occurs.
7.5 If, at any time before title to the Goods has passed to the Buyer, the Buyer informs DS, or DS reasonably believes, that the Buyer has or is likely to become subject to an Insolvency Event and the Goods remain in the possession or control of the Buyer, then, without limiting any of DS’s other rights and remedies:
7.5.1 The Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 DS may at any time:
188.8.131.52 at its sole discretion elect to transfer title to Buyer; or
184.108.40.206 require the Buyer at the Buyer’s expense to redeliver the Goods to DS and if Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
7.6 Where the Buyer uses banking facilities or factoring or an invoice discounting company which involves the selling of debtors or using debtors as security, the Buyer shall notify the third party concerned of DS’s interest in the Goods and specifically that title in the Goods has not passed until DS’s invoice has been paid in full and otherwise as set out in these Conditions.
8. LIMITED WARRANTY
8.1 Buyer acknowledges that DS does not manufacture the Goods (or where Goods comprise computer software does not publish or license the software) and, except for DS’s limited warranty hereunder, DS only sells the Goods with the benefit of the OEM’s warranty to the extent legally and contractually permitted to do so. The OEM’s warranty is offered from the OEM on a pass-through basis to End User or directly by OEM to End User. The Buyer shall be responsible for making itself aware of the terms of the OEM’s warranty prior to the Contract being formed, complying in all respects with the same at all times, and contacting the OEM for instructions on how to claim under the OEM’s warranty process.
8.2 DS warrants that for a period of 28 days from the date of delivery to the End User, the Goods will conform to the specifications stated by the OEM in its published data sheet for the Goods (the “Limited Warranty”). DS’s warranty in this clause:
8.2.1 shall only operate where DS is able to claim under the OEM’s warranty.
8.2.2 The Limited Warranty is in lieu of all terms whatsoever (whether expressed or implied and whether arising at common law or by statute) by DS in respect of the quality of the Goods (including, but not limited to, terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (as amended)) all of which are hereby excluded to the full extent permitted by law.
9. LIMITATION OF DS’S LIABILITY
9.1 DS has obtained insurance cover in respect of its own legal liability for individual claims not exceeding the cost of the Contract relating to the claim. DS has been unable to obtain insurance in respect of certain types of loss at a commercially viable price, including but not limited to insurance for Goods whilst in transit. The limits and exclusions in this clause reflect the insurance cover DS has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Nothing in the Contract limits any liability which cannot legally be limited or excluded, including liability for: (a) death or personal injury caused by the negligence of DS; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) defective products under the Consumer Protection Act 1987.
9.4 Subject to clause 9.3 and 9.5, DS’s total liability to the Buyer shall not exceed the greater of (a) the price of the Contract which the claim relates to and (b) £500.
9.5 Subject to clause 9.3, DS’s total liability to the Buyer for any loss of, theft of or physical damage to the Goods or the Buyer-Owned Goods (as applicable) by DS, its employees or any third party acting on its behalf while in transit with DS’s nominated carrier (acting on its behalf) shall be subject to DS’s nominated carrier’s insurance terms, conditions and limits (such information being available at any time upon written request (email shall suffice)).
9.6 Subject to clause 9.3, the following types of loss are wholly excluded by DS: (a) loss of profits; (b) loss of sales or business; (c) wasted expenditure; (d) loss of agreements or contracts; (e) loss of anticipated savings; (f) loss of use or corruption of software, data or information; (g) loss of or damage to goodwill; (h) loss of discount or rebate; (i) losses (including any liability for fines, penalty payments, liquidated damages or service credits) due to any delays or failures in the delivery of the Goods or Services; (j) losses or costs in connection with product recall; and (k) indirect, special or consequential loss.
9.7 This clause 9 shall survive termination of the Contract.
10. FORCE MAJEURE
DS shall not be liable for any loss or damage and be entitled to cancel or rescind any Contract if the performance of its obligations under the Contract is in any way adversely affected by any cause whatsoever beyond DS’s control including (but not limited to) the delays or default of supplies or the defaults of any sub-contractor, act of God, explosion, fire or accident, war, threat of war, sabotage, insurrection, civil disturbance, requisition, Acts, restrictions, regulations, bye-laws, prohibitions or measures of any Government or Parliamentary or Local Authority, strike, lock-out, trade disputes, flood, accident to plant or machinery, shortage of materials or labour, import or export regulations or embargoes. If due to any such event DS has insufficient stocks to satisfy an Order DS may apportion available stocks between its customers at its sole discretion.
11.1 The Buyer may raise an Order for Services that it wishes DS to provide in connection with the Goods or Buyer-Owned Goods. DS shall, following its acceptance of any such Order, use its reasonable endeavours to provide the Services to the Buyer or End User (as applicable) in accordance with the Conditions.
11.2 To the extent any Services are to be performed at the Buyer’s or End User’s site(s), the Buyer shall:
(a) at its cost, prepare the Buyer’s or procure the preparation of the End User’s site(s) (as applicable) and co-operate with DS in accordance with DS’s instructions and timescales; and
(b) provide an adequate environment and space for DS, its nominated subcontractors or agents for the safe operation of the Services.
11.3 The Buyer hereby permits DS, its nominated subcontractors and agents to have access to the Buyer site(s) or shall procure permission for DS, its nominated subcontractors and agents to have access to the End User site(s) (as applicable) for the purpose of carrying out the Services at such times as may be agreed between DS and the Buyer, such access not to be unreasonably withheld or delayed.
11.4 DS shall be entitled to charge the Buyer for any costs incurred by DS as a result of any failure by the Buyer to satisfy any requirements of clauses 11.2 and 11.3.
11.5 In supplying the Services, DS warrants that it shall:
(a) perform the Services with reasonable care and skill; and
(b) use reasonable endeavours to perform the Services in accordance with the service description (if any) set out in the Order in all material respects.
11.6 Notwithstanding any other provision of these Conditions, DS shall use reasonable endeavours to meet any performance or delivery dates specified in an Order but any such dates shall be estimates only and time for performance by DS shall not be of the essence of the Contract.
11.7 The Buyer must report any breach of the warranties set out in clause 11.5 to DS in writing within ten (10) days following the delivery of the Services to the Buyer or End User (as applicable).
11.8 For any breach of the warranties set out in clause 11.5, where the Buyer notifies DS within such ten (10) day period, DS will, at its option and at no additional cost to the Buyer:
(a) provide remedial services necessary to enable the Services to conform to the warranty;
(b) replace the Goods or Buyer-Owned Goods (as applicable) on which the non-conforming Services have been performed with identical or materially similar goods; or
(c) refund amounts paid by the Buyer to DS for the defective Services.
The Buyer will provide DS with a reasonable opportunity to remedy any breach of the warranties set out under clause 11.5 and reasonable assistance in remedying any associated defects. The remedies set out in this clause are the Buyer’s sole remedies for breach of the warranties under clause 11.5.
11.9 Except as expressly set out in clause 11.5 and to the fullest extent permitted by law, DS makes no other warranties or representations with respect to the Services. All warranties, representations or other terms implied by law or statute or otherwise are expressly excluded from the Contract to the fullest extent permitted by law.
11.10 Notwithstanding any other provision of these Conditions, DS shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and DS shall notify the Buyer in any such event.
11.11 DS shall not be responsible in the event the Goods or Buyer-Owned Goods in respect of which DS has performed any Services are or become faulty or otherwise defective unless caused solely by the acts of omissions of DS, and in such situation the Buyer shall be required to re-order the Services (if required) and liable to pay for the same.
11.12 If the Services include configuration services, the Buyer shall be solely responsible for the accuracy of its Order which includes any such configuration services, the specification of the components and their configuration and for ensuring that the configured Goods or Buyer-Owned Goods specified (as applicable) are satisfactory for the purpose for which they are required, including that they have sufficient overall functionality and will support and be compatible and inter-operable with any hardware, software and middleware with which they are intended to operate. DS shall provide such configuration services entirely under Buyer’s instruction without warranting that the configured Goods or Buyer-Owned Goods (as applicable) are satisfactory for the purpose for which it is required.
11.13 The Buyer’s property (including any Buyer-Owned Goods) supplied to DS by the Buyer shall, while it is in possession of DS or in transit to or from the Buyer or the End User (as applicable), be deemed to be at the Buyer’s risk and the Buyer shall insure accordingly.
11.14 DS shall be entitled to make a reasonable charge (determined in its sole discretion) for the storage of any of the Buyer’s property (including any Buyer-Owned Goods) left with the Buyer before receipt of the Order or after notification to the Buyer of completion of the Services.
12. DATA PROTECTION
12.1 The parties acknowledge and agree that some or all of the services to be provided by DS pursuant to an Order entered into pursuant to these Conditions may involve DS processing Personal Data of which Buyer is the Data Controller. The parties acknowledge and agree that, in respect of such processing, for the purposes of the Data Protection Legislation, Buyer is the Data Controller and DS is the Data Processor.
12.2 Buyer warrants that:
(i) it has all necessary and appropriate consents and notices in place to enable the lawful transfer of any Personal Data to DS for the duration and purposes of any Contract;
(ii) all instructions given by it to DS in respect of Personal Data shall at all times be in accordance with Data Protection Laws; and
(iii) it has undertaken due diligence in relation to DS’s processing operations, and it is satisfied that DS’s processing operations are suitable for the purposes for which the Buyer proposes to use the services and engage DS to process the Protected Data.
12.3 DS shall process the Personal Data only in accordance with Buyer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by Buyer.
12.4 DS shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
12.5 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
12.6 DS warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(i) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(b) the nature of the data to be protected; and
(ii) take reasonable steps to ensure compliance with those measures.
12.7 On the basis DS warrants to adhere to the remainder of this clause 12.7, Buyer consents to DS engaging sub-processors for carrying out any processing activities in respect of the Protected Data. Prior to appointing any such sub-processor, DS warrants that:
(i) prior to the relevant sub-processor carrying out any processing activities in respect of the Protected Data, DS appoints each sub-processor under a written contract containing materially the same obligations as under this clause 12;
(ii) DS ensures each such sub-processor complies with all such obligations; and
(iii) DS to remain fully liable for all the acts and omissions of each sub-processor as if they were its own.
12.8 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, penalties, fines, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 12.
12.9 Buyer acknowledges that DS is reliant on Buyer for direction as to the extent to which DS is entitled to use and process the Personal Data. Consequently, DS will not be liable for any claim brought by a Data Subject arising from any action or omission by DS, to the extent that such action or omission resulted directly from Buyer’s instructions.
12.10 The Buyer agrees that DS may transfer Protected Data that is processed pursuant to DS providing the goods and/or services in accordance with an Order to countries outside the European Economic Area (EEA) or to any International Organisation(s) (an International Recipient), provided all transfers by DS of Protected Data to an International Recipient (and any onward transfer) shall (to the extent required under Data Protection Laws) be effected by way of appropriate safeguards and in accordance with Data Protection Laws.
12.11 DS shall promptly (i) refer all data subject requests it receives to the Buyer and (ii) notify the Buyer of the Personal Data Breach and provide any necessary details of the same.
13.1 Where applicable, Buyer is responsible for all obligations and liabilities under the European Union’s (i) Waste Electrical and Electronic Equipment Directive (2012/19/EU), (ii) Packaging Waste Directive (94/62/EC) and (iii) Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time. DS shall have no liability or obligations under the preceding directives.
13.2 Buyer agrees to comply with the UK Bribery Act 2010 and corresponding legislation applicable in the jurisdictions Buyer conducts business in. Buyer shall not make any direct or indirect payment, offer to pay, or authorise to pay, any gift, money, promise to give or authorise the giving of anything of value to any government official or politician or the immediate family of the same for the purpose of influencing acts or decisions of such individual in order to assist directly or indirectly Buyer or DS in obtaining or retaining business or securing an improper advantage. Buyer’s commitment to comply with the Bribery Act 2010 and other such legislation shall also extend to its dealings with DS, its suppliers, the End Users and any other commercial parties.
13.3 DS may assign any of its rights and/or obligations under a Contract. The Buyer may not without the prior written consent of DS assign any of its rights and/or obligations under any Contract.
13.4 No delay or failure by DS in enforcing any provision shall constitute a waiver of that provision or any other provision. No waiver by DS of any breach of a Contract shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.5 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.
13.6 DS’s rights are cumulative and in addition to any rights available to it at common law.
13.7 These Conditions are DS’s current Conditions. DS maintains the right to add to or amend these Conditions at any time and in its sole discretion. The Buyer will be responsible for satisfying themselves as to the Conditions on an ongoing basis and those applicable to the transaction(s) in hand, by either viewing the DS website or requesting a hard copy direct from DS.
13.8 Nothing in these Conditions shall confer on any third party (that is, any party other than DS or the Buyer) any benefit or the right to enforce any term of these Conditions and the application of the Contracts (Rights of Third Parties) Act 1999 to these Conditions is hereby excluded.
13.9 The Buyer and DS agree that each Contract (incorporating these Conditions) shall be governed by and construed in accordance with English law and each of the Buyer and DS irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including but not limited to non-contractual disputes and claims).
13.10 DS may monitor, record, store and use any telephone, email or other communication with the Buyer in order to (i) check any instructions given to DS, (ii) for training purposes, (iii) for crime prevention and (iv) to improve the quality of DS’s customer service.
13.11 Except as specifically permitted in writing by (a) DS or (b) the relevant manufacturer(s) of relevant Goods, the Buyer hereby agrees that it will not (and will inform third parties they are not permitted to): (i) copy or manufacture any Goods; or (ii) translate, modify, adapt, enhance, extend, decompile, disassemble or reverse engineer any of the Goods.
13.12 The Buyer acknowledges and agrees that the Goods and Services may be subject to the export control laws and regulations of the United States, EU and national legislation. The Buyer warrants that it shall comply with all these laws and regulations including the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls.
13.13 The Buyer shall not, without prior appropriate government authorisation, export, re-export, or transfer any Goods or Services, either directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury or any other comparable European or local regulation.
13.14 In addition, any Goods or Services may not be exported, re-exported, or transferred to an End User engaged in activities related to weapons of mass destruction. Such activities include but are not limited to the following activities: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.