Conditions of sale of LBS (South West), LBS (South West) Ltd, Linden Business Systems & Linden Business Systems Ltd (herein called “the Company”) for all Goods sold by the Company (hereinafter called “the Goods”) to customers of the Company (hereinafter called “the Customer”)

PRECEDENCE OF CONDITIONS

1. • The Company only accepts orders for and only sells it goods upon the subject to the following conditions. These terms and conditions shall prevail over any terms and conditions of the buyer.

QUOTATIONS

2. • All quotations by the Company unless otherwise stated in them shall be open for acceptance within thirty days of the date of quotation.

PRICES

3. • The prices for the Goods exclude packing, insurance, and carriage and V.A.T.

PAYMENT

4. • All invoices are payable without discount of any kind in pounds sterling upon delivery, or unless otherwise agreed and in no circumstances shall the Customer be entitled to make any deduction or withhold any payments for any reason at all.
   • Without prejudice to any other rights of the Company if the Customers fails to pay the invoice price by the due date the Customer shall not be allowed given that invoice or in any other way agreed and shall pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgement) on a daily basis at a rate of 4% per annum over the base rate from time to time quoted by H.S.B.C. Bank Plc., and reimburse to the Company all costs and expenses (including legal incurred in the collection or any overdue amount.

RISK AND OWNERSHIP

5. • Risk of damage to or loss of or any other peril in respect of the goods shall pass to the Customer at the time of delivery of the Goods to the buyer or to a third party specified by the Customer or, if the Customer (or any said third party) wrongfully fails to take delivery of the Goods, at the time when the Company has tendered delivery of the Goods.
   • Notwithstanding collection or delivery of the Goods and the passing of risk in the Goods the ownership of each item of the Goods supplied by the Company to the Customer shall be and shall remain in the Company until the Company shall have received in cash or cleared funds payment of:
     • the full tax inclusive price of that item; and
     • the full tax inclusive price of all other Goods supplied by the Company at any time to the Customer and payment of which is then due.
   • Until such time as ownership of any item of the Goods passes to the Customer in accordance with the provisions of this condition 10 the Buyer shall at all times hold each item of the Goods as fiduciary agent and bailee for the Company and shall keep the goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the property of the Company.
   • The Company shall have the right (subject as is provided in paragraph (b) below as to the exercise of such right) at any time and from time to time to recover and thereafter permanently to retain possession of any one or more items of the Goods supplied (insofar as the Company is the owner of the same pursuant to (ii) above and to the extent that the Customer has not previously exercisable the Customers right of re-sale of the Goods as provided for in (v) below and the Company and any of its duly authorised employees, officers or agents may, if necessary, enter upon the Customers premises for this purpose.
   • The company's right to recover possession of any one or more items of the Goods supplied to the Customer shall become exercisable without any form of prior notice in any one or more of the following events whereupon the full tax inclusive price of all Goods supplied to the Customer by the Company shall forthwith become due and payable notwithstanding the provisions of condition (iii) above:
     • there being any default in due payment by the Customer to the Company of the full tax inclusive price of any item of the Goods supplied and any related charge,
     • the Customer (being a Company) passing a resolution or an order being made for the winding-up of the Company (other than a winding-up for the purpose of amalgamation or re-construction) or an administrative receiver being appointed of the whole or any part of the Customer’s undertaking, business or assets or a petition being presented for the making of an administration order in respect of the Customer or the Customer entering into any arrangement or composition with or for the benefit of its creditors; or (being one or more individuals) a petition being presented for bankruptcy order in respect of any one or more of such individuals or any one or more of such individuals entering into any arrangement or composition with or for the benefit of his or her creditors.
   • Prior to ownership of any item of the Goods passing to the Customer in accordance with the provisions of the condition 10 the Customer shall not be entitled to re-sell the goods in the ordinary course of its business.
   • The Customer shall not be entitled to pledge in any way charge by way of security for any indebtedness any of the goods which remain the property of the Company, but if the Customer does so all monies owing to the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

TRADING

6. • Where the Company agrees to allow part of the price of any Goods to be discharged in part by the Customer delivering a trade-in to the Company that allowance shall be given and the trade-in shall be accepted as part of the sale price of the Goods on the following conditions:
     • either the trade-in is the absolute property of the Customer and is free from encumbrances or it is the subject of a hire purchase agreement or other encumbrance capable of being discharged by the Company for cash and in the latter case the allowance shall be reduced by the amount required to be paid by the Company in settlement of the agreement or other encumbrance.
     • if the Company has examined the trade-in before the completion of the contract the Customer shall deliver it to the Company on completion of the contract in the same condition as at the date of examination.
     • the trade-in shall be delivered to the Company on or before the delivery of the Goods and in any event in fourteen days of notification to the Customer that the Goods have been completed for delivery and the property in the trade-in shall then pass to the Company absolutely
   • If any of these conditions are not fulfilled the Company shall be discharged from any obligation to accept the trade-in or to make any allowance in respect of it and the Customer shall discharge in cash the full price of the Goods

CLAIMS NOTIFICATION

• • Any claim that any Goods have been delivered damaged or are not the correct quantity or do not comply with their description shall be notified by the Customer to the Company within seven days of their delivery
  • Any alleged defect shall be notified by the Customer to the Company within seven days of delivery of the Goods or in the case of any defect which is not reasonably apparent upon inspection within seven days of the defect of coming to the Customer’s attention and in any event in the following periods
    • for Goods manufactured by the Company 6 months from the date of delivery
    • for Goods not of the Company’s manufacture the warranty period given by the manufacturer
  • Any claim under this condition must be in writing and must contain full details of the claim
  • The Company should be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall if so requested in writing by the Company promptly return any Goods the subject of any claim and any packing materials securely packed and carriage paid to the Company for examination
  • The Company shall have no liability with regard to any claim in respect of which the Customer has not complied with the claim procedures in these conditions

SCOPE OF CONTRACT

• • Under no circumstances shall the Company have any liability of whatever kind for:
    • any defects resulting from wear and tear accident improper use by the Customer or use by the Customer except in accordance with the instructions or advice of the Company or the manufacture of any Goods or neglect or from any instructions or materials provided by the Customer,
    • any Goods that have been adjusted modified or repaired except by or at the instance of the Company,
    • the suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company,
    • any substitution by the Company of any materials or components not forming any part of any specification of the Goods agreed in writing by the Company,
    • any descriptions illustrations specifications figures as to performance drawings and in particular weights and dimensions submitted by the Company contained in the Company’s catalogues price-lists or elsewhere since they are merely intended to give a general representation of the Goods and not to form part of the contract or to be treated as representations,
    • any technical information recommendations statements or advice furnished by the Company its servants or agents not given in writing in response to a specific written request from the Company before the contract is made, or
    • any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components if the variation or substitution does not materially affect the characteristics of the Goods and the substituted materials or components are of a quality equal or superior to those originally specified.

EXTENT OF LIABILITY

9. • The Company shall have no liability to the Customer for any loss or damage of any nature arising from any breach of any express or implied warranty of condition of the contract or any negligence breach of statutory or other duty on the part of the Company or in any other way out of or in connection with the performance or purported performance of or failure to perform the contract except as expressly stated in these conditions
   • If the Customer establishes that any Goods have not been delivered, have been delivered damaged, or are not of the correct quantity or do not comply with their description the Company shall at its option replace with similar Goods any Goods which are missing lost or damaged or do not comply with their description allow the Customer credit for their invoice value or repair damaged Goods
   • If the Customer establishes that any Goods are defective the Company shall at its option replace with similar Goods or repair any defective Goods allow the Customer credit for their invoice value or to the extent that the Goods are not of the Company’s manufacture assign to the Customer so far as the Company is able to do so any warranties given by the manufacture of the Goods to the Company
   • The Delivery of any repaired or replacement Goods shall be at the Company’s premises or at the delivery point specified for the original Goods
   • Where the Company is liable in accordance with this condition in respect of only some or part of the Goods the contract shall remain in full force and effect in respect of the other or other parts of the Goods and no set-off or claim shall be made by the Customer against or in respect of such other or other parts of the Goods
   • No claim against the Company shall be entertained from any defect arising from any design or specification provided or made by the Customer or if any adjustments alterations or other work has been done to the Goods by any person except the Company
   • The Company shall not be liable where any Goods the price of which does not include carriage or lost or damage in transit and all claims by the Customer shall be made by the Customer against the carrier. Replacement for such or damaged Goods will if available be supplied by the Company at the prices ruling at the date of despatch.
   • In no circumstances shall the liability of the Company to the Customer under this condition exceed the invoice value of the Goods
   • The Customer acknowledges that no consequential liability of the Company (even where the Company has been advised of the possibility of such loss or damage) for any loss or damage whatever caused by defects in any of the Software; and the negligence of the Company, its employees, agents or sub-contractors in performing its obligations under this Agreement; and breach of this Agreement by the Company

GENERAL

10. • The Company may sub-contract the performance of the contract in whole or in part
    • The Customer shall not assign the contract in whole or in part without the consent in writing of the Company
    • The Company shall have a lieu and all the Customer’s property in the Customer’s possession for all amounts due at any time from the Customer and may use sell or dispose of that property as agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such amounts on twenty-eight days’ notice in writing to the Customer. On accounting the Customer for any balance remaining after payment of any amounts due to the Company and the cost of sale or disposal the Company shall be discharged of any liability in respect of the Customer’s property
    • The Company may at its discretion suspend or terminate the supply of any Goods if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the contract or becomes insolvent has an Administrative Receiver appointed to its business or is compulsorily or voluntarily wound up or the Company bonafide believes that any of these events may occur and in case of termination may forfeit any deposit paid
    • If the Goods are manufactured in accordance with any design or specification provided or made by the Customer, the Customer shall compensate the Company in full on demand for all claims expenses and liabilities of any nature in connection with them including any claim whether actual or alleged that the design or specification infringes the rights of any third party
    • Except for any which it is expressly agreed shall be included in the contract all materials drawings specifications tools patents and other data provided by the Company shall remain its property and all technical information patentable or unpatentable copyright and registered designs from the execution of any orders shall become the property of the Company

SOFTWARE

11. • The entire and exclusive liability and remedy for breach of this limited warranty for Software shall be limited to replacement of defective media or documentation and shall not include or extend to any claim for or right to recover any other damages, including but not limited to loss of profit data or use of any software or special incidental or consequential damages or other similar claims even if the Company has been specifically advised of the possibility of such damage. In no event will the Company’s liability for any damages to the Customer or any other person ever exceed the paid price of the licence to use the Software, regardless of the form of the claim.
    • Software is sold without support unless a support contract is expressly included in the scope of supply
    • The Company makes no representation or warranty that the Software or documentation are “error-free”, or meet any Customer’s particular standards, requirements or needs. In all events any implied warranty, representation, condition or other term is limited to the physical media and is limited to the duration of the limited warranty.

CONFIDENTIAL INFORMATION

12. • For the purpose of this Agreement “Confidential Information” means only information concerning the business, accounts, financial information and clients of the Customer and The Company from time to time whether in written or electronic form or otherwise which is of its nature or is expressed in writing to be confidential and the elements of the Software and Documentation.

UNAUTHORISED DISCLOSURE OF INFORMATION

• • The Company and the Customer shall take all necessary steps to prevent unauthorised disclosure of Confidential Information to third parties.
  • The provisions of Clause 15 shall not apply to information that:
    • is already in the possession of the receiving party unless obtained or derived from Confidential Information provided to the receiving party by the other party,
    • is received by the receiving party from a third party without similar restrictions and without breach of this agreement;
    • is furnished to a third party by the providing party without similar restriction on the third party’s use,
    • is or becomes publicly known, otherwise than by a breach of this Agreement by the receiving party; or is disclosed pursuant to the requirement or request of a Government agency or order of the Courts.
  • Notwithstanding the above, the Company shall be entitled to provide software partners with information relating to the Customer in connection with the sales of Software in accordance with the Company’s obligations to these partners.

CANCELLATION

14. • In the event that the Customer wishes to cancel an order or fails to meet any of the payment obligations (whether as to the amount or dates of payment) detailed on the order form then the Company may (but without being obliged to do so and without prejudice to any other right or remedy available to the company) apply a cancellation charge of 50% of the total order.
    • If the Customer wishes to cancel, then written notices of such wish must be forwarded to the Company by Recorded Deliver Post and any such notice shall be deemed served on the day (not being a Saturday or Sunday or Public Holiday) two days following the date of posting.

BANKRUPTCY

15. • In the event of the Customer becoming bankrupt or insolvent or committing any act of bankruptcy or insolvency or going into liquidation, or in the event that a Receiver or Administrator or Administrator Receiver is appointed in respect of any of its assets, the Company reserves the right to terminate the contract with the Customer and the Cancellation Charges shall apply.

FORCE MAJEURE

16. • The Company shall not be liable for any failure in the performance of any of its obligations under this contract caused by factors outside its control.

JURISDICTION

17. • The law governing the Agreement shall be English law. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to determine any disputes, which may rise out of, under, or in connection with this Agreement.

THE COMPANY SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. ALL OTHER IMPLIED TERMS ARE EXCLUDED