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NB Data Ltd
Floor 8 St James's House,
Pendleton Way,
Salford. M6 5FW
GB
Call Us
0161 737 7377
Email Us
sales@nbdata.co.uk
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1. INTERPRETATION
1.1 In these Conditions unless the context otherwise permits:-
"Authorised Representative" means a person whose job title is that of
Director or Managing Director or a person who holds the office of
director.
"Consumer" shall mean any natural person who in the contract with the
Customer is acting for purposes that are not related to his trade,
business or profession.
"Customer" means the person, firm, company, entity or organisation with
whom NB Data Ltd contracts for the sale of Products and/or supply of
Services.
"the Conditions/ these Conditions" means the standard terms and
conditions of sale set out in this document or such replacement standard
terms and conditions notified to Customer as are in force at the date of
the Contract and which at that date appear on NB Data Ltd's web site at
www.nbdata.co.uk and/or which are available on request at NB Data Ltd's
principal trading address at Suite B, Floor 8, St James's House,
Pendleton Way. Salford. M6 5FW
"the Contract" means any contract for the purchase and sale or other
supply of Products and/or the supply of Services by NB Data Ltd to a
Customer.
"Electronic Means" means any electronic means including without NB Data
Ltd on the Web, by EDI or XML, or Inside Line®.
"NB Data Ltd" means NB Data Ltd (UK) Ltd (registered in England number
05144591) with its registered office at Suite B, Floor 8, St James's
House, Pendleton Way. Salford. M6 5FW
"Products" means any Products (including, for the avoidance of doubt
software and instalments of the Products or any parts of or for them)
sold by NB Data Ltd to a Customer.
"Services" means any services supplied by NB Data Ltd to the Customer.
"Special Order Products" shall mean Products that are classified in NB
Data Ltd's current comprehensive product listing as special order
products or have been ordered specifically by Customer or configured to
Customer's specifications.
1.2 The headings in these Conditions are for convenience only and shall
not affect their interpretation.
1.3 The Conditions shall apply to sales of all Products including
Special Order Products ordered for shipment to or within the UK
mainland. NB Data Ltd reserves the right to apply supplemental or other
terms for Products to be shipped by NB Data Ltd outside the UK mainland.
1.4. Without prejudice to the application of these Conditions additional
and more detailed terms may apply for certain Products and suppliers
including specific terms applicable to special prices offered by
suppliers through NB Data Ltd ("Special Terms") and additional terms may
apply with respect to NB Data Ltd’s delivery and other aspects of its
business. Any additional terms and the updated Special Terms will be
made available on NB Data Ltd's web site www.nbdata.co.uk. It is the
Customer's responsibility to be aware of and adhere to the additional
and Special Terms as current from tNB Data Ltde to tNB Data Ltde, and by
ordering Products from NB Data Ltd the Customer agrees to be bound by
additional and Special Terms.
2. BASIS OF THE SALE
2.1 All Contracts between NB Data Ltd and a Customer shall be governed
by these Conditions (and, where applicable, any other terms and
conditions pursuant to Clause 1.3 and/or Clause 1.4) to the exclusion of
any other terms and conditions not accepted in writing by an Authorised
Representative of NB Data Ltd, including without NB Data Ltd any terms
on or referred to in any Customer purchase order. In the case of orders
placed by Electronic Means which refer to any terms and conditions of
the Customer NB Data Ltd's automatic taking on to its system of such
order shall amount to a rejection of the Customer's terms and conditions
and an offer to supply the Products ordered on the basis of these
Conditions. No variation to these Conditions shall be binding unless
agreed by letter signed by an Authorised Representative of NB Data Ltd.
It is the Customer's responsibility to be aware of the Conditions as
current from tNB Data Ltde to tNB Data Ltde but NB Data Ltd will use
best efforts to notify Customer of any material changes to the
Conditions before they become applicable. In addition to any acceptance
of these Conditions by signing NB Data Ltd's account application form,
the Customer's acceptance of these Conditions shall also be made (in
respect of the first Contract and all subsequent Contracts) either by
(1) Customer providing a purchase order to NB Data Ltd or (2) Customer
accepting Products or Services from NB Data Ltd, whichever occurs first.
2.2 No employee or agent of NB Data Ltd other than an Authorised
Representative has any authority to make any representation at all
concerning Products or Services and an Authorised Representative has no
authority to make such representation other than by letter (an "authorised
representation") and accordingly Customer agrees that in entering into
any Contract it does not rely on any unauthorised representation and
Customer agrees it shall have no remedy in respect of any unauthorised
representation (unless made fraudulently).
3. CUSTOMER IDENTIFICATION
3.1 In placing an order including by Electronic Means Customer may
utilise one or a combination of account name, account number and other
forms of identification including password or other code issued to
Customer (together and individually "Customer's Identification" or
"Customer Identification").
3.2 It is the Customer's responsibility to keep the Customer's
Identification confidential. Customer has the sole responsibility for
its Customer Identification. Customer shall NB Data Ltdmediately inform
NB Data Ltd in case of loss of password or in case of any abuse or
attempted abuse of Customer password or other Customer Identification.
Customer agrees that Customer is entirely responsible for use of
Customer's Identification and that it is Customer's responsibility to
have in place security measures and procedures to ensure use of its
Customer Identification only by authorised personnel for authorised
purposes.
3.3 Customer agrees that NB Data Ltd is entitled to rely absolutely on
any orders placed on NB Data Ltd which have utilised Customer's
Identification and to deliver as directed by such orders and to invoice
and be paid in respect of such orders.
3.4 Customer agrees that any order placed on NB Data Ltd including by
Electronic Means mentioning or utilising Customer's Identification is a
valid and binding purchase order.
3.5 Customer acknowledges that NB Data Ltd cannot guarantee the security
of the Internet and the possibility of interception or corruption of
data transmitted from Customer to NB Data Ltd using correct Customer
Identification, and that NB Data Ltd is nonetheless entitled to rely on
data transmitted in the form it is received at NB Data Ltd.
4. NB Data Ltd INFORMATION
4.1 All Product pricing, description, availability and related
information ("Information") provided by NB Data Ltd, in any form, is the
property of NB Data Ltd or its suppliers. NB Data Ltd hereby grants
Customer a NB Data Ltded, non-exclusive, non-transferable license to use
the Information for its internal use only for the purpose of Customer's
purchases and sales of Products sold by NB Data Ltd to it. NB Data Ltd
shall be entitled to stop the provision of Information at any tNB Data
Ltde without notice. Customer agrees to hold in confidence and not to
directly or indirectly use, reveal, report, publish, disclose or
transfer to any other person or entity any of the Information or utilise
the Information for any purpose except as permitted herein. NB Data Ltd
makes no warranty, either express or NB Data Ltdplied on the Information
or its accuracy. All Information is provided to Customer "as is." If NB
Data Ltd provides Information to Customer by Electronic Means, Customer
agrees to update such Information regularly to ensure its accuracy.
Specifically but without NB Data Ltdation Customer is not entitled to
utilise Information for any purpose other than in the normal course of
business of a reseller and is not entitled to use, reproduce or display
the Information in any way, which in NB Data Ltd's opinion; (1) would
enable it to be identified as information obtained from NB Data Ltd (2)
would enable comparison of the Information with other suppliers'
information relating to Products or (3) could be damaging to NB Data
Ltd's business interests.
4.2 NB Data Ltd agrees to hold in confidence and not to directly or
indirectly use, reveal, report, publish, disclose or transfer to any
other person or entity any Customer sensitive information or utilise
such information for any purpose if Customer has notified NB Data Ltd in
writing that such information is confidential. Customer agrees that NB
Data Ltd may disclose to its suppliers certain details (including
personal data) about the Customer and NB Data Ltd’s sales of the
respective suppliers’ Products to the Customer.
5. ORDERS AND SPECIFICATIONS
5.1 The Customer shall be responsible to NB Data Ltd for ensuring the
accuracy of the terms of any purchase order, and shall be sole
responsible for its selection of Products on any purchase order and the
fitness of the Products for any particular purpose. NB Data Ltd disclaNB
Data Ltds any liability for any errors in the Customer’s purchase order.
5.2 NB Data Ltd reserves the right to make any changes to the Contract
due to changes in the specification of the Products made by its
suppliers or changes that are required to conform with any applicable
safety or other statutory requirements. These changes will be duly
notified to the Customer. The Customer cannot cancel or reschedule the
Contract provided the changes do not alter the material terms of the
Contract. For other types of changes, the possibility of cancellation
will be subject to NB Data Ltd's discretion and conditions.
5.3 NB Data Ltd is under no obligation to accept the withdrawal of an
order or the cancellation of a Contract which has been accepted by NB
Data Ltd. If NB Data Ltd agrees to accept the Customer's withdrawal of
any order or the cancellation of a Contract such agreement will only be
effected by means of letter, fax or email signed or sent by an
Authorised Representative of NB Data Ltd.
5.4 Notwithstanding any other terms of these Conditions it is agreed
that the provision or display of Product pricing and other Information
(as defined in Clause 4.1) by NB Data Ltd to Customer does not amount to
an offer by NB Data Ltd to sell such Product at that price or on any
other terms. Supply of such Information is only an invitation to treat.
An order by the Customer for Product or Services shall be the offer.
5.5 Notwithstanding any acceptance by NB Data Ltd of any offer to
purchase Products, if there has been a material or obvious pricing error
by NB Data Ltd, NB Data Ltd shall be entitled within 30 days of its
acceptance of such offer to either invoice the Customer for the
Customer's true list price (not exceeding the prevailing market price at
wholesale level) of the Product at the date of order or, if the Customer
shall prefer, collect the Product at NB Data Ltd's expense and credit
the Customer for any charges (e.g. price and freight) invoiced by NB
Data Ltd.
5.6 Orders for direct shipment to Customer's customers or Special Order
Products may require the Customer’s acceptance of additional terms
including prepayment of the order and will be subject to additional
fees.
5.7 NB Data Ltd will set minNB Data Ltdum order levels and charge
additional fees for any order below such levels. Current minNB Data
Ltdum order levels can be found on NB Data Ltd's web site
www.nbdata.co.uk.
6. PRICE OF THE PRODUCTS
6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-
6.1.1 Prices for Products in NB Data Ltd's stock ready to be shipped
will be established at the tNB Data Ltde the order is accepted by NB
Data Ltd;
6.1.2 If the Customer places an order for Products not in stock at the
tNB Data Ltde of order (a "Backorder") or the Customer places an order
for scheduled delivery, such orders shall be irrevocable and the price
for such Products shall be the price established at the tNB Data Ltde
the Backorder or scheduled delivery is accepted by NB Data Ltd.
6.2 Notwithstanding any of the foregoing NB Data Ltd reserves the right
to increase its prices after acceptance of a Backorder or scheduled
delivery due to an increase in its supplier's price to NB Data Ltd or an
increase in direct costs to which NB Data Ltd becomes subject (including
without NB Data Ltd costs resulting from currency fluctuation) but NB
Data Ltd shall only increase its price by such level as is necessary to
reflect such increases.
6.3 All prices quoted by NB Data Ltd exclude the cost of transport from
NB Data Ltd's warehouse to the Customer's receiving point, as well as
configuration, fulfilment and other services provided by NB Data Ltd.
6.4 All prices and charges are exclusive of any applicable Value Added
Tax, which the Customer will be additionally liable to pay to NB Data
Ltd. Unless otherwise stated prices exclude any copyright levies, waste
and environmental fees, and sNB Data Ltdilar charges that NB Data Ltd by
law or statute may or shall charge or collect upon resale.
6.5 If Customer is offered special pricing for certain orders and such
pricing is made available to NB Data Ltd from its suppliers ("Special
Bids"), the Customer shall adhere to the applicable Special Terms and
other terms and conditions of such Special Bids and agrees to indemnify
NB Data Ltd for any claNB Data Ltds made against NB Data Ltd by the
suppliers for Customer's non-compliance with the supplier's terms and
conditions. Customer agrees to pay any service fees charged for NB Data
Ltd's pass-through of Special Bids and other supplier driven benefits
the Customer may receive, including any marketing funding, price
protection and individual rebates, and agrees that pass-through and
payment of such benefits will be subject to NB Data Ltd having received
the benefits from its supplier. The Special Terms may oblige the
Customer to comply with certain requirements including but not NB Data
Ltded to (i) the sale of the Products only to specifically named
end-users; (ii) the disclosure of end-user information to NB Data Ltd
and its suppliers for the purpose of end-user verification; and (iii)
the submission of copies of end-user invoices, end-user purchase orders
or end-user shipping documents to NB Data Ltd and its suppliers. Subject
to the Special Terms applicable for the individual suppliers and
Products, non-compliance with the Special Terms may entitle NB Data Ltd
and/or its suppliers to reclaNB Data Ltd and invoice the Customer in
full for all discounts, rebates and other special price conditions
granted to the Customer under the special price.
7. TERMS OF PAYMENT
7.1 Unless NB Data Ltd shall have previously agreed in writing with the
Customer that the Products shall be supplied on credit, payment for the
Products shall be made in full by the Customer with the Customer's order
or on delivery or collection of the Products as determined by NB Data
Ltd. If payment is made by credit or debit card the Customer agrees to
pay all fees and service charges incurred by NB Data Ltd for the
handling of such transaction including fees charged by the card company
to NB Data Ltd.
7.2 Where NB Data Ltd has agreed to supply the Products on credit
Customer shall pay the price of the Products within 30 days of the date
of NB Data Ltd's invoice notwithstanding that title to the Products has
not passed to the Customer. Customer may take advantage of an early
payment discount subject to meeting the conditions detailed on NB Data
Ltd's web-site www.nbdata.co.uk. Customer shall not deduct or set off
any other amount against the invoice as compensation for any payment
made prior to the due date. Invoices will be dated the day of dispatch
of the Products. NB Data Ltd shall be entitled at its absolute
discretion to alter payment terms (other than on concluded Contracts)
and withdraw or alter any credit NB Data Ltd granted at any tNB Data
Ltde with notice. If Customer exceeds its credit NB Data Ltd or fails to
qualify for continued credit terms, NB Data Ltd may, at its sole
discretion, delay subsequent shipments or require prepayment until NB
Data Ltd determines that Customer is once again qualified to receive
credit terms. Customer shall not set off or withhold any amount due to
NB Data Ltd against its receivables without NB Data Ltd's prior written
approval, and shall in the event of a bona fide dispute, pay any
undisputed part of the invoice.
7.3 The tNB Data Ltde of payment shall be of the essence. If the
Customer fails to make a payment on the due date then without prejudice
to any other right or remedy available to it NB Data Ltd shall be
entitled to:-
7.3.1 cancel the Contract or suspend any further deliveries or suspend
any Services to the Customer; NB Data Ltd may at its discretion grant
Customer a reasonable cure period before cancelling the Contract due to
non-payment;
7.3.2 appropriate any payment made by the Customer to such of the
Products as NB Data Ltd may think fit (notwithstanding any purported
appropriation by the Customer);
7.3.3 charge the Customer interest (both before and after judgement) on
the amount unpaid at the rate of 5% per annum above Barclays Bank plc
base rate from tNB Data Ltde to tNB Data Ltde until payment in full is
made such interest being calculated on a daily basis.
7.4 Customer shall provide NB Data Ltd's Credit Department with copies
of its annual financial statements and its quarterly statements within
sixty (60) days of the close of the fiscal period to which they relate.
Customer shall inform NB Data Ltd promptly if there is a change of
ownership or control of Customer or its direct or indirect parent
company (excluding changes of ownership of the shares of a publicly
quoted company which do not result in a change in control of the
company's board of directors or other governing board), a management
buy-out, or all or a substantial part of the Customer's assets are sold
or otherwise transferred to any non-affiliated company or member of the
Customer's group of companies.
7.5 In the event Customer intends to sell, assign, factor or otherwise
transfer any book debt owed to Customer or to enter into any form of
invoice discounting arrangement Customer agrees to inform NB Data Ltd in
writing prior to entering into any such arrangements.
7.6 It is NB Data Ltd's policy not to accept cash as a method of payment
for Products or Services.
7.7 If NB Data Ltd issues a credit note and the Customer does not
utilise the credit note within a period of 12 months from the date of
its issue NB Data Ltd shall have the right to cancel the credit note and
the Customer shall not be entitled to a replacement or any payment in
respect of the same.
7.8 Any credit balance shown on a Customer's statement of account issued
by NB Data Ltd which remains on the statement for a period of 12 months
will be forfeited by the Customer who shall no longer have any rights to
the same.
7.9 NB Data Ltd reserves the right to issue and send all invoices to the
Customer in an electronic format, and the Customer accepts to receive
all invoices electronically including receipt of invoices by e-mail.
8. DELIVERY
8.1 Delivery of the Products shall take place Free Carrier NB Data Ltd’s
warehouse. Absent specific instructions from the Customer NB Data Ltd
will select the carrier. Unless the Customer shall have notified NB Data
Ltd in writing within 5 working days of the date of NB Data Ltd's
invoice that the Products have not been received or that the Products
were damaged then delivery shall be deemed to have taken place in
accordance with the Contract and the Customer shall not be entitled to
raise any claNB Data Ltd of short or mis-shipment or damage to the
Products.
8.2 The Customer shall upon receipt of the Products sign the delivery
note (proof of delivery) and be responsible for complying with the
applicable shipping requirements of NB Data Ltd and its carriers details
of which are made available at NB Data Ltd’s web-site (www.nbdata.co.uk).
The Customer’s sign-off on NB Data Ltd’s delivery shall be at carton
level. NB Data Ltd shall be entitled to assume that any person who both
reasonably appears and claNB Data Ltds to have authority to accept
delivery who signs a note in respect of the Products on behalf of the
Customer or the Customer's customer (if NB Data Ltd has agreed to
deliver direct) does in fact have the authority.
8.3 Any dates quoted or scheduled for the delivery of Products are
approxNB Data Ltdate only and NB Data Ltd shall not be liable for any
delay in delivery of the Products howsoever caused.
8.4 Partial delivery is allowed unless otherwise mutually agreed by both
parties. Failure by NB Data Ltd to deliver the rest of the Products
shall not entitle the Customer to treat the order as a whole as
repudiated.
8.5 For the purpose of these Conditions where NB Data Ltd has agreed to
ship Products direct to the Customer's customer any such shipment shall
be deemed to be delivery to the Customer and any refusal by the
Customer's customer to accept delivery shall be deemed to be a refusal
by the Customer.
8.6 The Customer shall bear all costs associated with the unjustified
refusal of Products. If the refusal is made on the grounds that the
order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and
the refusal is accepted by NB Data Ltd, NB Data Ltd reserves its right
to charge accordingly additional fees for return transportation and
administrative expenses related thereto, and original carriage costs
will not be reNB Data Ltdbursed.
9. RISK AND TITLE
9.1 Risk of damage to or loss of Products shall pass to the Customer at
the tNB Data Ltde of delivery or if the Customer unjustifiably fails to
take delivery of Products the tNB Data Ltde when NB Data Ltd has
tendered delivery of the Products.
9.2 Notwithstanding delivery and the passing of risk of the Products or
any other provisions of these Conditions, title to the Products shall
not pass to the Customer until NB Data Ltd has received in cleared funds
payment in full of:-
9.2.1 the Products; and
9.2.2 all other sums which are or which become due to NB Data Ltd from
the Customer on any account.
9.3 Until such tNB Data Ltde as title to the Products passes to the
Customer the Customer shall:-
9.3.1 hold the Products as NB Data Ltd's fiduciary agent and bailee; and
9.3.2 keep the Products separate to those of the Customer and third
parties; and
9.3.3 keep the Products properly stored protected and insured, and
identified as NB Data Ltd's property; and
9.3.4 accept that Products may be labelled as being NB Data Ltd's
property until NB Data Ltd is paid.
9.4 Until such tNB Data Ltde as the title in the Products passes to the
Customer (and provided the Products are still in existence and have not
been resold) NB Data Ltd shall be entitled at any tNB Data Ltde to
require the Customer to deliver up the Products to NB Data Ltd and if
the Customer fails to do so forthwith to enter upon any premises of the
Customer or any third party where the Products are stored and repossess
the Products.
9.5 The Customer's right to possession of the Products shall terminate
NB Data Ltdmediately if:-
9.5.1 the Customer has a bankruptcy order made against hNB Data Ltd or
makes an arrangement or composition with his creditors, or otherwise
takes the benefit of any Act for the tNB Data Ltde being in force for
the relief of insolvent debtors, or (being a body corporate) convenes a
meeting of creditors (whether formal or informal), or enters into
liquidation (whether voluntary or compulsory) except a solvent voluntary
liquidation for the purpose only of reconstruction or amalgamation, or
has a receiver and/or manager, administrator or administrative receiver
appointed of its undertaking or any part thereof, or a resolution is
passed or a petition presented to any court for the winding up of the
Customer or for the granting of an administration order in respect of
the Customer, or any proceedings are commenced relating to the
insolvency or possible insolvency of the Customer; or
9.5.2 the Customer suffers or allows any execution, whether legal or
equitable, to be levied on his/its property or obtained against hNB Data
Ltd/it, or fails to observe/perform any of his/its obligations under the
Contract or any other contract between NB Data Ltd and the Customer or
is unable to pay its debts within the meaning of Section 123 of the
Insolvency Act 1986 or the Customer ceases to trade; or
9.5.3 the Customer encumbers or in any way charges any of the Products.
9.6 Customer is entitled to resell the Products in the ordinary course
of business. Customer is not able or entitled to offer the Products as
collateral or otherwise grant a charge in respect of the Products until
title has passed to the Customer in accordance with these Conditions.
Customer shall inform its customers that title to the Products is
retained by NB Data Ltd until Customer has paid NB Data Ltd, and shall
ensure that its customer has agreed with the Customer that any unpaid
Products shall be returned to NB Data Ltd in the event of Customer's
failure to pay NB Data Ltd's invoices when they fall due. The Customer
shall upon NB Data Ltd's request provide NB Data Ltd with all details
and information necessary for NB Data Ltd to collect the Products.
10. WARRANTIES AND LIABILITY
10.1 NB Data Ltd does not manufacture the Products (or where the
Products comprise computer software does not publish or license the
software) and subject to the conditions set out below in this Clause 10
NB Data Ltd only sells the Products with the benefit of the
manufacturer's or publisher's or licensor's (“publisher's”) warranty (as
the case may be).
10.2
10.2.1 NB Data Ltd will accept liability for defective Products only to
the extent that NB Data Ltd is entitled to make a claNB Data Ltd under
the manufacturer's or publisher's, Dead on Arrival, warranty or other
defective goods terms and actually obtains from the manufacturer or
publisher a refund credit repair or replacement in respect of the
defective Products. Processing of these defective Products shall be made
according to the manufacturer's procedure and the instructions set out
in Clause 10.4 below. NB Data Ltd cannot and shall have no obligation to
accept a return of and/or grant a credit for Product not compliant with
the manufacturer's procedures.
10.2.2 NB Data Ltd shall be under no liability in respect of any defect
arising from fair wear and tear wilful damage negligence abnormal
working conditions failure to follow NB Data Ltd's or the manufacturer's
or publisher's instructions (whether oral or in writing) misuse or
alteration or repair of the Products without NB Data Ltd's approval.
10.2.3 NB Data Ltd shall be under no liability under the above warranty
if the total price of the Products has not been paid.
10.3 All warranties, conditions or other terms NB Data Ltdplied by
common law or statute, or otherwise in connection with the sale or
supply of goods or goods or services (save, in the case of goods, as to
title) are excluded to the fullest extent permitted by law.
10.4 Any claNB Data Ltd by the Customer which is based on a defect in
the quality or condition of the Products shall be notified to NB Data
Ltd's Customer Services Department. Upon notification of any such claNB
Data Ltd by the Customer NB Data Ltd shall either notify the Customer
whether the policy of the manufacturer of the Products is to deal with
the Customer direct (in which case the Customer shall deal with the
manufacturer direct provided NB Data Ltd gives sufficient details to
enable the Customer so to do) or shall provide the Customer with an RMA
number (in which case the Customer shall return the Products to NB Data
Ltd in their original UNMARKED packaging together with details of the
RMA number and the Customer's name and address). If NB Data Ltd issues
an RMA number to the Customer NB Data Ltd shall not send any replacement
Products to the Customer until after the original Product has been
returned to NB Data Ltd. This Clause 10.4 shall only apply to Products
the Customer is entitled to return to NB Data Ltd as provided in these
Conditions.
10.5 NB Data Ltd shall not be liable to the Customer for any economic or
financial loss or damage (including without NB Data Ltd any loss of
profits, loss of revenue, liabilities incurred by the Customer to third
parties relating to Products delivered or Services rendered by NB Data
Ltd, or additional expenses incurred or the cost of tNB Data Ltde spent)
or any consequential, indirect, or special loss or damage costs expenses
or other claNB Data Ltds for consequential compensation whatsoever
(including without NB Data Ltd loss of or damage to data or loss of
goodwill) incurred or suffered by the Customer and in every case
howsoever caused or arising (and whether caused by the negligence of NB
Data Ltd its employees or agents or otherwise).
10.6 NB Data Ltd's liability for direct loss or damage arising from
damage to tangible property for which NB Data Ltd is liable shall be NB
Data Ltded to the VAT exclusive price of the relevant Product or
Service. In no event shall NB Data Ltd’s liability exceed the maxNB Data
Ltdum amount of NB Data Ltd’s insurance cover.
10.7 Nothing in these Conditions shall in any way exclude or NB Data Ltd
any liability NB Data Ltd may have for death or personal injury caused
by its negligence.
10.8 NB Data Ltd shall not be liable to the Customer or be deemed to be
in breach of any Contract by reason of any delay in performing or any
failure to perform any of NB Data Ltd's obligation in relation to the
Products or Services if the delay or failure was due to any cause beyond
NB Data Ltd's reasonable control. Without prejudice to the generality of
the foregoing the following shall be regarded as causes beyond NB Data
Ltd's reasonable control:-
10.8.1 Act of God explosion flood tempest fire or accident;
10.8.2 act of terrorism war or threat of war sabotage insurrection civil
disturbance or requisition;
10.8.3 acts restrictions regulations bye-laws prohibitions or measures
of any kind on the part of any governmental or parliamentary or local
authority;
10.8.4 NB Data Ltdport or export regulations or embargoes;
10.8.5 strikes lock outs or other industrial actions or trade disputes
(whether involving employees of NB Data Ltd or a third party);
10.8.6 difficulties of NB Data Ltd's supplier in obtaining raw materials
labour fuel parts or machinery.
10.9 If Customer is selling Products or Services purchased from NB Data
Ltd to a Consumer the Customer shall ensure the Consumer is given
sufficient and appropriate information and descriptions as to the
Product's or Services' fitness for the purpose for which the Products or
Services are normally used and any particular purpose the Consumer has
required or agreed with the Customer. Customer shall not remove or
replace any labelling, user manuals, components or other material from
the Product as supplied by the manufacturer or NB Data Ltd, and shall
not in its advertising, marketing or labelling provide any public
statements on the specific characteristics of the Products or Services
on behalf of NB Data Ltd, the manufacturer or their representatives.
10.10 Customer accepts liability for the Products' conformity with the
Customer's Consumer contract ('conformity' as defined by the EU
Directive 1999/44/CE of May 25, 1999 and legislation NB Data
Ltdplementing the Directive), and Customer shall not offer any
warranties or representations to the Consumer as to the quality, fitness
for purpose of the Products without the manufacturers' express consent.
Customer agrees to hold harmless and indemnify NB Data Ltd and the
manufacturers against any loss, costs, and damages caused by the
Customer's acts or omissions, and non-compliance with the obligations
set forth in Clause 10.9, Clause 10.10 and Clause 10.11. If Customer is
held liable to the Consumer caused by a Product's lack of conformity
resulting from an act or omission by the manufacturer or NB Data Ltd, or
any other intermediary, Customer may by law or statute be entitled to
pursue remedies against NB Data Ltd, the manufacturer or any other
person liable in the contractual chain. Provided Customer is legally
entitled to pursue such remedies and NB Data Ltd is held liable by a
competent court of law, NB Data Ltd's liability to Customer shall be NB
Data Ltded to an amount corresponding to the Customer's original
purchase price of the Product or Service giving rise to the claNB Data
Ltd by the Consumer.
10.11 Should the Product warranties offered by the manufacturers or NB
Data Ltd under these Conditions be restricted compared to the guarantees
the Consumer is entitled to under law, the Customer agrees to take sole
responsibility towards the Consumer for the excess liability and waives
any claNB Data Ltd it may have against NB Data Ltd in respect of such
excess.
10.12 The Products are subject to the intellectual property rights of NB
Data Ltd's suppliers (i.e. the Product manufacturers). Customer is not
authorised to alter, cover, or remove any reference to such intellectual
property rights on the Products, and shall adhere to any guidelines and
restrictions provided by NB Data Ltd's suppliers if the Customer is
granted a right to use such rights in the marketing and resale of
Products. NB Data Ltd shall have no duty to defend, indemnify or hold
Customer harmless from and against any or all claNB Data Ltds brought
against Customer or damages and costs incurred by Customer arising from
the infringement of a third party's intellectual property rights, except
to the extent NB Data Ltd's supplier is offering such defence or
indemnification to NB Data Ltd on a pass through basis. Upon threat of
claNB Data Ltd or claNB Data Ltd of infringement, NB Data Ltd may, at
its option (i) procure the right to continue using any part of Product,
(ii) replace the infringing Product with a non-infringing Product of sNB
Data Ltdilar performance, or (iii) refund to the Customer the purchase
price paid by the Customer for the infringing Product. Notwithstanding
any other terms or conditions to the contrary NB Data Ltd's liability
for infringement of intellectual property rights under these Conditions
shall not exceed the Customer's purchase price for the infringing
Products.
11. RETURNS AND REPAIRS
11.1 Except for Special Order Products, which are expressly excluded
from the terms of this Clause 11 and cannot be returned under any
circumstances, if NB Data Ltd agrees to accept the return of any
Products (other than for the purpose set out in Clause 10 above) or
agrees to carry out repairs to other products which have not been
purchased from NB Data Ltd or agrees to repair Products which are out of
warranty the Customer shall not send the same to NB Data Ltd unless they
are accompanied by an RMA number previously advised by NB Data Ltd's
customer services department and a copy of the relevant sales invoice
and are sent in their original packaging.
11.2 The Customer shall notify NB Data Ltd within 5 working days of any
delivery discrepancies or Product damages, other than for the purposes
set out in Clause 10. If NB Data Ltd issues a returns number (RMA),
Products must be returned to NB Data Ltd within 5 working days of the
date thereof.
11.3 If NB Data Ltd has agreed to carry out repairs or to replace
Products (or any parts thereof) other than for the purpose set out in
Clause 10 above the Customer irrevocably authorises NB Data Ltd to carry
out such repairs or provide such replacements as shall place the
Products in proper working order.
11.4 NB Data Ltd shall accept no liability for any damage to or loss in
transit of Products returned to NB Data Ltd whether under this Clause or
under Clause 10 above unless NB Data Ltd collects the Products using its
own carrier.
11.5 If NB Data Ltd has agreed to accept the return of Products, other
than for the purposes set out in Clause 10 above or for the purpose of
carrying out any other repair or replacement, the Products must be
returned in their original packaging and in a clean resalable condition,
and will be subject to a re-stocking fee at NB Data Ltd's discretion,
failing which NB Data Ltd will refuse to accept the same and the
Customer shall remain liable for the price thereof.
11.6 Details of NB Data Ltd's returns process and terms can be found on
www.nbdata.co.uk and Customer agrees to comply with this process and
abide to the terms when returning any Product to NB Data Ltd.
12. INSOLVENCY OF CUSTOMER
12.1 If:-
12.1.1 the Customer makes any voluntary arrangements with its creditors
or becomes subject to an administration order or (being an individual or
firm) becomes bankrupt or (being a company) goes into liquidation
otherwise than for the purposes of a solvent amalgamation or solvent
reconstruction;
12.1.2 an encumbrancer takes possession or a receiver is appointed of
any of the property or assets of the Customer; or
12.1.3 the Customer ceases or threatens to cease carrying on business;
or
12.1.4 NB Data Ltd reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Customer and
notifies the Customer accordingly;
then upon the happening of any of the above, without prejudice to any
other right or remedy available to NB Data Ltd, NB Data Ltd shall be
entitled to cancel the Contract and/or suspend any further deliveries or
services under the Contract without any liability to the Customer and if
the Products have been delivered and not paid for then the price shall
become NB Data Ltdmediately due and payable notwithstanding any previous
agreement or arrangement to the contrary.
13. EXPORT RESTRICTIONS
13.1 If Customer delivers the Products to its customer who may use the
Products outside the United States or the European Union or EFTA
countries, Customer acknowledges and shall advise its customer that some
Products are controlled for export by the U.S. Department of Commerce or
by EU/EFTA member state bodies and such Products may require
authorization prior to export. Customer agrees that it will not export,
re-export, or otherwise distribute Products, or direct products thereof,
in violation of any export control laws or regulations of the United
States or any EU/EFTA member state. Customer warrants that it will not
export or re-export any Products with knowledge that they will be used
in the design, development, production, or use of chemical, biological,
nuclear, or ballistic weapons, or in a facility engaged in such
activities, unless Customer has obtained prior approval from the U.S.
Department of Commerce or any other competent government agency.
Customer further warrants that it will not export or re-export, directly
or indirectly, any Products to embargoed countries or sell Products to
companies or individuals listed on the Denied Persons List published by
the U.S. Department of Commerce.
13.2 These restrictions change from tNB Data Ltde to tNB Data Ltde. If
the Customer has any questions regarding its obligations under USA
export regulations the Customer should contact the Bureau of Export
Administration, United States Department of Commerce, Office of Export
Licensing, Washington DC, USA (202) 377 4811 or the local United States
Consulate.
13.3 Upon request the Customer agrees to confirm in writing its
intention to comply with applicable export and restricted user and uses
regulations, by signing up to the terms in NB Data Ltd's reseller
application form.
14. CONFIGURATION AND OTHER SERVICES
14.1 If agreed in any particular case NB Data Ltd will provide
configuration Services to Customer. Configuration Services will be at
the price agreed at the NB Data Ltd the order is accepted. The Customer
shall be solely responsible for the accuracy of its order, the
specification of the components and their configuration and for ensuring
that the configured product specified is satisfactory for the purposes
for which it is required including without NB Data Ltd that it has
sufficient overall functionality, and will support, be compatible and
inter-operable with any hardware, software or middleware with which it
is intended to operate.
14.2 Configuration Services will have a warranty of 14 days from the
date of shipment to the Customer. NB Data Ltd's sole liability (and the
Customer's sole remedy against NB Data Ltd) in respect of any defective
Services for which NB Data Ltd is responsible shall be the repair by NB
Data Ltd or at NB Data Ltd's option replacement of the Product on which
the Services have been performed. (If any alleged defect shall be
attributable to defect in Product the provisions of Clause 10 shall
apply). NB Data Ltds in respect of defective Services must be made
within 21 days of the date of delivery of the configured Product.
14.3 NB Data Ltd may offer other Services to Customer including direct
fulfilment and billing, installation and support services, storage and
consolidation, and other logistics services. Such Services will be
provided under these Conditions in addition to specific terms agreed
upon in writing with Customer.
15. MISCELLANEOUS
15.1 Customer is not allowed for any purpose whatsoever to use NB Data
Ltd's logos and trade marks without NB Data Ltd's prior written approval
from an Authorised Representative.
15.2 Customer agrees that NB Data Ltd may use Customer data, including
any personal data, for the purpose of marketing and sales of Products,
and Customer agrees to NB Data Ltd's collection, storage and use of such
data for this purpose. Personal data will not be shared with third
parties without the Customer's consent. Customer agrees to receive
Product information and promotions and other communications from NB Data
Ltd by e-mail and other communication tools.
15.3 Customer agrees to comply with its obligations under the WEEE
directive (EC Directive 2002/96/EC of the European Parliament and of the
Council of 27 January 2003) as NB Data Ltdplemented in the UK.
16. CUSTOMER IDENTIFICATION
16.1 Any notice required or permitted to be given by either party to the
other under these Conditions shall be in writing addressed to that other
party at its registered office or principal place of business or such
other address as may at the relevant tNB Data Ltde have been notified
pursuant to this provision to the party giving notice.
16.2 No waiver by NB Data Ltd of any breach of the Contract by the
Customer shall be considered as a waiver of any subsequent breach of the
same or any other provision.
16.3 If any provision of these Conditions is held by any 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 provisions in
question shall not be affected thereby.
16.4 These Conditions and any Contract shall be governed by the laws of
England and the Customer submits to the exclusive jurisdiction of the
English Courts.
NB Data Ltd (UK) Ltd Terms and Conditions Of Sale |
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