1. CONTRACT

All services and goods supplied by Hertfordshire Business Machines Limited, hereafter known as HBM are subject to the terms set out below unless varied by written document signed by a Director of HBM.  Howsoever the same may be qualified, the placing of an order with HBM shall be deemed acceptance of these terms.

2. DELIVERY

Dates for delivery are estimated dates only and HBM shall incur no liability for loss or damage whatsoever as a result of late delivery.

3. TERMS OF PAYMENT

a) Unless otherwise agreed in writing by HBM payment in full (and without deduction whatsoever) shall be made  at HBM offices on or before delivery of goods sold hereunder and before work commences on any services to be provided hereunder.

b) Any sum overdue for payment from the client to HBM (whether under this agreement or otherwise) shall bear interest at the rate of 3% for each calendar month or part of a calendar month during which the sum remains unpaid (whether before or after judgement in a court of law).  The client shall indemnify HBM against any legal costs and disbursements (on a solicitor and own client basis) which they may incur in recovering any such sum.

4. TITLE AND RISK

Title to Equipment shall not pass to the Customer but shall be retained by the Seller until the Contract Price has been paid to the Seller in full by the Customer.

Until such time as title in the Equipment has passed to the Customer:

a) the Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all any or part of the Equipment in which title remains vested in the Seller;

b) for the purpose specified in (i) above, the Seller or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the Equipment or any part thereof is installed, stored or kept, or is reasonably believed so to be;

c) the Seller shall be entitled to seek a court injunction to prevent the Customer from selling, transferring or otherwise disposing of the Equipment;

d) the Buyer shall store or otherwise denote the Equipment in respect of which property remains with the Seller in such a way that the same can be recognised as the property of the Seller.

Notwithstanding the foregoing, risk in the Equipment shall pass on delivery of the same to the Customer, and until such time as title in the Equipment has passed to the Customer, the Customer shall insure such Equipment to its replacement value [naming the Seller as the loss payee] [noting the Seller’s interest on the relevant insurance policy] and the Customer shall forthwith, upon request, provide the Seller with a Certificate or other evidence of such Insurance.

b) Tile of any Software shall pass to the Client on delivery.  Such title shall consist of a non-exclusive and non-transferable licence to use the same terminable upon 7 days notice in writing by HBM to the Client in the event that the Client fails to pay all sums due to HBM (whether under this agreement or otherwise).  The Client shall not make or permit to be made any copies of the Software or any part thereof except for its own use or back-up purposes only.

c) If the Client shall purport to sell, licence, transfer or otherwise confer any rights in excess of the title of rights it may have from time to time under this agreement then the full amount of any proceeds thereof (or the right to recover the full amount of any proceeds thereof) shall be held by the Client as Trustee for HBM (without HBM thereby being obliged to comply with the obligations of the Client to the third party).

5.  WARRANTY

If and only if the Client has made payment in full to HBM therefore HBM warrants the Hardware, any other goods sold hereunder and the Software to be free from any defects caused by faulty materials or poor workmanship where such defect becomes apparent within a period of 90 days from delivery thereof provided.

i) that the Client gives written notice to HBM within 7 days of any defect becoming apparent with full details thereof and

ii) that the examination of the items by HBM shall disclose to its satisfaction that such defects exist and were caused by faulty materials or poor workmanship and

iii) that the liability of HBM shall be limited to the replacement or repair (as HBM option) of the item and

iv) that this warranty is contingent on proper use of Hardware, Software or other goods in application intended and does not apply to any item which has been modified or had any equipment connected to it otherwise than with the written consent of HBM or which has had the original identification marks removed or altered.  Nor will this warranty apply to any item which has been subjected to unusual physical or electrical stress.  The contingencies and exceptions of this clause shall apply whether or not those matters can be shown to be the cause of or relevant to the particular defect or matter complained of.

v) that the Client shall pay HBM of any test and transport of items in respect of which HBM does not admit liability hereunder.

6.  DEFAULT

If the client shall make or offer to make any arrangements or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him or, if the client being a Limited company, and resolution or petition to wind up the Client (other than for the purposes of reconstruction or amalgamation) shall be passed or presented, or if a Receiver of the property undertaking or assets (or part thereof) of the Client shall commit any breach of its obligations hereunder, then, and in any such case HBM may forthwith (and without prejudice of any other right or remedy of HBM system):

a) suspend or determine this agreement or any other unfulfilled part thereof and

b) stop any goods, including software, in transit and

c) recover any goods including software, from the Client title of which has not passed to the Client.

7.  TERMINATION

Upon termination of this agreement whether by the parties hereunder or by operation of law the Client shall at his expense forthwith return to HBM all copies of programs and written materials related thereto.  Such termination’s shall be without prejudice to any pre existing rights of breach of this agreement and without prejudice to HBM remaining and continuing rights under this agreement in relation to liability title and risk.

8.  LIABILITY

a) HBM shall not be liable for any loss of profits, loss of contract, waste of staff time or consequent loss of any sort whatsoever and however caused.

b) HBM shall not be liable for damages for delay in delivery of hardware or other items (other than software) supplied hereunder unless caused by the negligence of HBM..

c) HBM shall not be liable for damages for delay in

the delivery of software however caused.

b) HBM liability in respect of any defective item of hardware, software or any other item supplied hereunder shall be limited to the value thereof (such valued to be deemed to be the sale price of the item from HBM to the Client.

e) if the client is at risk of economic risk of damage to his business, trade or personally (or if the Client is at risk of causing such loss or damage to others) as a result of malfunction of the hardware or software or any other items supplied hereunder he is advised to insure against such risk.  HBM shall not be liable for any such loss or damage as is described in this sub paragraph and the Client shall indemnify HBM against any claim for such loss or damage.

f) HBM shall not be responsible for non-performance in whole or in part of its obligations nor under any liability to the Client under this agreement if such non-performance or liability is due to any cause beyond the control of HBM including without limitation of God, War, Insurrection, Riot, Civil commotion, Government regulations, Embargoes, Explosion, Strikes, Labour Disputes, Illness, Flood, Fire, Tempest, or failure of its subcontractors to honour its obligation to HBM.

g) Nothing in this clause shall operate to exclude HBM liability for death or personal injury arising out of their negligence.

h) each foregoing sub-clause of this clause shall constitute a separate and severable agreement.  The provisions of this clause shall continue in effect notwithstanding the termination, the completion or any other matter, which might otherwise cause the agreement to become ineffective.

j) the provisions of this clause shall operate to protect every servant, agent and subcontractor of HBM shall be deemed to be trustee for itself and such servants, agents and subcontractors so as to make them parties to this agreement for the purposes of this clause only.

k) HBM cannot be held responsible for any delays or faults concerning third party products, goods or services, which are out of our control.

9.  MISCELLANEOUS

a) HBM shall have the right at its sole discretion to increase the price of the Hardware or other goods supplied hereunder in the event that the price charged to HBM by the manufacturers or suppliers of any item are increased between the date hereof and the date of delivery of the Hardware.  The rates charge by HBM for the service of their staff are subject to review from time to time and the Client will be charged the current rate(s) applicable at the time of the services.

b) All pre-contract representations (not specifically incorporated into this agreement) made by or on behalf of HBM are hereby excluded and the Client warrants that he has not relied upon them in entering into this agreement.

c) All goods returned after 14 days shall incur a 15% handling charge.

10.  LAW

This agreement shall be construed according to the Law of England and Wales and any disputes in connection herewith shall be tried in the courts of England and Wales.

11.  SOFTWARE

1.  Warranty

Software is supplied in accordance with the software licence which is distributed with the software.

a) In the case of software which is an HBM product.  HBM warrants that is it will where properly installed and operated on or in conjunction with products and equipment approved by HBM perform substantially as described in any functional specification submitted or accepted by a director of HBM in writing for a period of 90 days after installation.  HBM undertakes to correct at its own expense any material deviation from such description reported to it in writing within such 90 day period, provided the software is returned to HBM’s premises carriage prepaid.

b) HBM does not warrant that the software will be suitable for any particular requirement of the customer or that its operation will be uninterrupted or error free.

2.  Software Support

a) Software support is provided on the following basis:

i.  Telephone support only is provided during office hours e.g. Monday to Friday 9am to 5pm only.

ii.  Software repairs are provided as quickly as possible.  No guarantee is given as to time taken on repair.

iii.  Software support is provided to operators trained by HBM only.

iv.  Should data loss occur, our best endeavours will be made to recover all data.  Data recovery is only guaranteed to the last reliable backup taken by the customer, via our software.

v.  Software support is only available to those customers with a modem.

vi.  Should a site visit be required, this will be at an additional charge.  This charge will not exceed the standard HBM call out charges at the time.

vii.  All updates or improvements to the software are provided free of charge to customers holding a support contract.  Unless the improvement is at the customers specific request and a charge for the work is agreed in writing beforehand.

b) The Software packages supplied by HBM or its nominated Software suppliers may have a payment code, which will be asked for by the Software.  This payment code may be withheld if payment has not been received by HBM in full