TERMS AND CONDITIONS OF SALE AND SUPPLY
By placing an Order with Distology, the Customer agrees that these Terms and Conditions of Sale shall apply to such Order. Any terms in Customer’s Order are void.
These Conditions will use the following definitions:
“Distology” shall mean Distology Ltd, 2nd Floor, 1 St Peters Square, Stockport, SK1 1NZ. Registered in England and Wales, Number 08991329
“Conditions” shall mean these Terms and Conditions of Sale and Supply. The Conditions are automatically incorporated into any Order, Confirmation and Contract.
“Confirmation” shall mean Distology’s written acceptance, acknowledgement or confirmation of an Order or (if earlier) Distology’s supply of Deliverables to Customer. A Confirmation may be in whole or in part with respect to Deliverables.
“Consents” shall mean all necessary authorisations, consents and registrations required by Data Protection Laws in connection with the execution or performance of these Conditions or a Contract, including, but not limited to, accessing, processing and/or transferring any end customer personal data and providing Distology with copies thereof upon Distology’s request.
“Contract” shall mean the agreement between the Parties for the sale of Deliverables when Distology has confirmed an Order as set out in Paragraph 2 of these Conditions. Any Contract is subject to these Conditions. Also for the sake of clarity any SOW will be deemed to incorporate these Conditions.
“Customer” shall mean the entity purchasing Deliverables from Distology.
“Customer Schedule” shall mean the document setting out the agreed Deliverables, the Price and all other information relevant to the Contract (including any the specification of any Deliverables and/or service description/scope of works for any Services), which may include the Price or such other document(s) which contain that information as were provided to the Customer pre-Contract, or a subsequently-signed document.
“Deliverables” shall mean any equipment, products, software, services (including cloud, consultancy or professional services) and/or standard, customised and/or tailored courses and trainings sold or supplied by Distology to Customer.
“Export Terms” shall mean the separate terms and conditions of export under which equipment, software and/or products are exported by Distology from the Manufacturer to any particular territory or jurisdiction for a Customer. Such terms shall be made available to Customer either via access to an electronic portal or sent via Email to the Customer.
“Data Protection Laws” shall mean all data protection laws, including UK General Data Protection Regulation (“UK GDPR”), covered by the Data Protection Act 2018 and any equivalent, applicable or associated law regarding data protection, including other regulations and directives covering the same topic and applicable local laws regarding the same.
“Good Industry Practice” shall mean the degree of skill and care which it is reasonable to expect of a typical provider of services similar to the Deliverables being provided under the relevant Contract.
“Late Payment Charge” shall mean, when a Contract is in default based on Customer’s failure to pay the Price and Other Charges in accordance with Paragraph 3 of these Conditions. Delinquent amounts shall bear interest at a rate equal to the lesser of one and one- half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum permitted by law, which ever is less. Customer shall pay all costs and expenses, including any attorneys’ fees, expended or incurred by Distology in connection with the collection of any delinquent amounts hereunder.
“Manufacturer” shall mean the manufacturer, vendor and/or original supplier of any Deliverable.
“Order” shall mean Customer’s order for Deliverables as set out in a purchase order form and as further detailed in paragraph 2 of these Conditions. An Order is deemed an offer by Customer to Distology for said Deliverables.
“Other Charges” shall mean amounts chargeable to Customer for value added tax, all costs or charges in relation to freight, handling, loading, unloading, carriage and insurance related to a Contract.
“Parties” shall mean Distology and Customer.
“Premises” shall mean Customer’s place of business or such other place specified by Customer to and agreed by Distology as being the place for performance of a Contract.
“Price” shall mean, unless otherwise agreed by the Parties in writing, the price (or licence fee as appropriate) payable by Customer to Distology for the Deliverables as set out in the Confirmation and/or Distology invoice.
“SOW” shall mean a statement of work in writing and agreed between the Parties for the delivery of services (including, but not limited to, cloud, consultancy or professional services).
“Working Day” shall mean Monday to Friday excluding public holidays in England and Wales (and, if the supply of Products and/or Services is to a country other than England and Wales, also excluding the public holidays in the country to which the supply is made).
“Working Hours” shall mean the hours of 9.00a.m. to 5.00p.m. during a Working Day unless otherwise specified as different in a SOW.
2. Contract Formation
2.1 These Conditions form the exclusive basis on which Distology will sell or supply, and Customer will purchase, Deliverables under a Contract. The Parties agree that no trade, custom, usage, practice or course of dealing will govern or supplement their Contract. The Parties have no other agreements or oral agreements regarding the subject matter of these Conditions or with respect to any Contract. Any term or condition of Customer, however expressed (orally, in writing, in an Order, etc.), are void and shall in no way govern the Parties’ Contract. To the extent there is any conflict the order of precedence shall be as follows: (i) these Conditions and (ii) the Contract.
2.2 Distology may provide quotations for Deliverables. Quotations are not offers; rather, they are invitations to Customer to make an offer to Distology. Each quotation is valid for 10 calendar days from the date of the quotation unless a different period is stated in writing on the quotation.
2.3 A Customer’s Order is an offer to purchase Deliverables in accordance with these Conditions. An Order may not be rescinded except by written agreement of Distology.
2.4 Distology may accept or reject an Order. An acceptance occurs when Distology issues a Confirmation or ships the Deliverables, at which point and on that date a Contract is formed. If Distology rejects an Order, no Contract is formed.
2.5 Any variation to a Contract shall only be binding if expressly agreed in writing and signed by both Parties and by directors of the respective Parties.
2.6 Any typographical, clerical or other error, omission or mistake of fact in any sales literature, quotation, price list, Confirmation, invoice or other document or information issued by Distology shall be subject to correction without liability on the part of Distology.
2.7 Distology shall have the right, from time to time, to amend and/or augment these Conditions to the extent the Manufacturer requires certain terms and conditions be included associated with a Contract for Deliverables. Distology shall provide Customer a copy of the same, whereby upon such provision such amended and/or augmented terms shall be considered part of any existing Contract and these Conditions.
2.8 The Parties may enter into an SOW associated with services. The SOW shall be deemed to incorporate these Conditions and the terms of the same shall take precedence over these Conditions to the extent of any inconsistency.
3. Price and Payment Terms
3.1 With respect to a Contract, Distology shall invoice Customer for the Deliverables.
3.2 Customer shall pay the Price and Other Charges in accordance with the payment term set forth under the invoice in full and in cleared funds to a bank account nominated in writing by Distology. Failing a payment term in the invoice, the Price and Other Charges shall be paid by Customer to Distology within thirty days of the date of the invoice.
3.3 Price and Other Charges shall be paid in full without any deduction or withholding (other than any that are required by law), and Customer shall not assert any set-off or counterclaim against Distology.
3.4 If Customer fails to pay the Price and Other Charges within the time stated in paragraph 3.2, the Contract shall be considered in default.
3.5 While the Contract is in default, Distology may assess a Late Payment Charge. The Parties agree that the Late Payment Charge represents a fair attempt to recompense Distology for associated costs, lost business opportunity and administrative burdens associated with late payments, and Customer covenants that it will not challenge these Late Payment Charges in any forum. In addition to clause 16.4, the Parties agree that if for any reason the interest rate is declared to be unlawful, the Late Payment Charge should be reduced to the maximum amount allowed by law.
3.6 Any credit account facility or extension of credit by Distology to Customer, if any, may be changed or withdrawn by Distology at its sole discretion at any time and will become effective and binding once Distology has given Customer notice of the same.
3.7 Distology reserves the right at any time prior to delivery of the Deliverables to adjust the Price in proportion to any increase of costs to Distology, including, but not limited to, any increase as a result of default of the Customer, rescheduling costs, cancellation of any part of an Order, non-adherence to agreed call-off or scheduled delivery arrangements and/or any increase in the costs to it of materials, labour, transport taxes or services, any currency fluctuation or any other matter beyond the control of Distology.
3.8 Any increase in Price for annually delivered services Deliverables shall be applied no more often than once per year at or around each anniversary of the commencement of those Deliverable, and shall not exceed the increase in the UK Retail Price Index or Consumer Price Index (whichever is lower) calculated over the preceding 12 months unless Distology can demonstrate that its costs in providing such Deliverables have unavoidably increased by a sum exceeding that figure. Distology shall notify the Customer in writing (a) at least 90 days in advance of any increase in the Price for the services Deliverable, or (b) if Distology is notified of such increase less than 90 days in advance of it becoming effective, at soon as is reasonably practicable thereafter.
4. Delivery and Performance
4.1 Customer accepts that Distology are dependent upon the manufacture and supply of Deliverables by third parties, including the Manufacturer, and therefore all times and dates provided by Distology for delivery of Deliverables are estimates and not binding delivery dates and times. If no dates are specified, delivery and/or performance shall be within a reasonable time, continuing to bear in mind the first sentence of this clause.
4.2 Shipping of Deliverables shall be pursuant to Incoterms (2020) ExWorks unless Distology specifies otherwise in writing.
4.3 Customer will take delivery of the Deliverables within the time specified by Distology once Distology gives Customer notice that the same are ready for delivery.
4.4 Distology shall deliver the Deliverables to the Premises. Customer shall provide Distology details of the Premises at the time Customer places an Order.
4.5 Distology may make and Customer shall accept one or more partial deliveries of Deliverables. Each delivery shall be considered to be part performance of the Contract. Failure by Distology to make one or more deliveries shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.6 Customer shall prepare the Premises, including the area of delivery and installation for the Deliverables, and provide Distology (including its employees, agents and/or subcontractors) free access to the Premises and area of installation and to any information required for the performance of Distology’s obligations for such period of time as Distology reasonably requires to deliver, perform or meet its obligations under a Contract.
4.7 Customer shall procure that the owner(s) and occupier(s) of the Premises shall take all measures as necessary to ensure that the Premises are safe and without risks to the health and safety of Distology’s employees, agents and/or subcontractors and that they comply with all relevant health and safety legislation. Customer shall indemnify Distology against all losses, claims and demands suffered by Distology as a result of its employees, agents and/or subcontractors attending the Premises and suffering any injury and/or loss and/or damage as a result of non-compliance with this clause. Customer shall make the Premises available to Distology and/or its agents to the extent necessary for Distology to perform its obligations under these Conditions and/or Contract and to grant Distology and/or its agents licence to enter and inspect Premises.
4.8 Distology reserves the right to defer the date of delivery or terminate a Contract or reduce the volume of Deliverables (without liability to Distology) if Distology are prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Distology including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), changes in law, Brexit or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
4.9 Customer acknowledges that the sale, resale or use of any software/licenced Deliverable or incorporated as part of any hardware is subject to the acceptance of the relevant Manufacturer’s end user licence agreement and/or other conditions. Customer shall sign and return, and/or as the case may be, shall procure that its end customer shall sign and return, such end user licence agreement and/or registration card and/or other conditions (as maybe appropriate) relating to each licenced Deliverable to the Manufacturer or as otherwise specified. Customer shall immediately report violations of the end user licence agreement or other conditions to Distology or the Manufacturer.
4.10 If Customer fails, or the end user fails, either to communicate acceptance of the terms of the end user licence agreement or other conditions in accordance with these Conditions or pay any relevant licence fee for the licenced Deliverable, Customer’s or the end user’s, as the case may be, right to use the licenced Deliverable shall immediately cease, and the Customer/end user shall remove the licenced Deliverable from its computer systems and return all physical copies thereof to Distology. Customer will (upon request) provide a signed declaration (from a director of Customer) that clauses 4.9 and 4.10 have been complied with, Customer shall indemnify, defend and hold harmless Distology in respect of all loss, damages, costs and expenses howsoever incurred where Customer or end user fail to comply with clauses 4.9 and 4.10.
4.11 Where Distology agrees to provide Deliverables which are a service (professional services, support services, managed services), any estimate or indication by Distology as to the number of Working Days or Working Hours required by Distology to undertake a specific task shall be construed as being an estimate only. Distology shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Particular Losses) suffered or incurred by the Customer where such estimate or indication is incorrect.
4.12 Unless stated otherwise, the Price agreed for the Services does not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which Distology shall charge the Customer at its or its sub-contractors’ (as applicable) then current rates, available on request.
4.13 Distology expects that the Customer has adequate inspection, testing and approval processes and, on completion of any services Deliverables provided by Distology, the sign off by the Customer of such services shall be considered the Customer’s absolute acceptance of the satisfactory completion of such Deliverables. In the event that the Customer has not confirmed their acceptance of the Deliverables, nor raised any concerns about them, within 7 days of Distology notifying the Customer that the Deliverables are complete, the Customer agrees it is reasonable for Distology to infer their acceptance and, where relevant, invoice for those Deliverables.
4.14 Should the Customer become dissatisfied with the performance of any personnel assigned by Distology to perform the Deliverables, the Customer shall notify Distology in writing with details of the unsatisfactory performance and, provided that Distology is satisfied that the Customer’s dissatisfaction is reasonable, Distology shall re-assign personnel as soon as reasonably practicable.
4.15 No liability shall accrue to Distology as a result of any defects in the delivery of the Deliverables unless:
a) a reasonably detailed inspection and testing procedure has been undertaken by the Customer to ascertain that the Deliverable had been undertaken correctly and in full, and
b) such inspection would not have been expected to identify the defect-causing loss (due to the latent and uncheckable nature of such defect).
4.16 Although services Deliverable are undertaken with reasonable skill and care, Distology cannot guarantee the accuracy of any advice, design or report.
4.17 The Customer may from time to time wish to vary the scope of a Deliverable. Distology will use reasonable commercial endeavours to accommodate that variation. Any changes in the Price or SOW and/or timescales as a result of that variation shall be negotiated between the Customer and Distology, and where such negotiation has not concluded at the time the Customer confirms the variation is required, the Customer accepts any increase in work required pursuant to the variation shall be provided on a time and materials basis at Distology’s or its sub-contractors’ (as applicable) then current rates for the same, available on request.
4.18 Unless Distology undertakes services Deliverables with an expressly stated outcome of advising a Customer in writing on the Deliverables which it recommends to meet a particular requirement, the Customer acknowledges that it is relying solely upon its own skill and judgement, and not that of Distology, in determining the suitability of any Deliverables and their fitness for any general or specific purpose.
4.19 Where the Customer is being provided with ongoing services Deliverables (including support and managed services), Distology shall be entitled to cease provision of those Deliverables and invoice any Prices which would have been payable over the anticipated period of delivery of those Deliverables.
5. Risk and title
5.1 Subject to clauses 4.2 and 5.2, risk in equipment, products and non-licenced software, passes to the Customer upon the earlier of the following:
5.1.1 a freight forwarder takes possession of the same for onward shipment to Customer or its designee;
5.1.2 the equipment, products and non-licenced software leave Distology’s warehouse for onward shipment to Customer or its designee; and
5.1.3 in the case of non-licenced software delivered electronically to Customer, the time at which the software is sent to Customer or its designee by Distology or a third-party supplier.
5.2 If for any reason:
a) Customer will not or does not accept delivery of any part or all of the Deliverables when they are ready for delivery; or
b) delivery of the Deliverables is delayed because Customer has not provided appropriate instructions, documents, licences or authorisations or because of any other circumstances within the Customer’s responsibility,
then risk in the Deliverables shall immediately pass to Customer, and Distology shall be entitled (at its discretion) to store the Deliverables until delivery is made, whereupon Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.3 In the case of licenced software and/or cloud services, title shall vest with the Manufacturer and only a licence to use the software/cloud service, upon acceptance of the end user licence agreement and/or the terms of access and use set forth by the Manufacturer, shall be granted and then only in accordance with the terms of the end user license agreement or other conditions.
5.4 Title to other Deliverables for a given Contract shall pass to Customer when full payment in cleared funds under said Contract has been received by Distology. Until such time Distology shall retain title to the Deliverables until payment is made in full and Distology shall have a security interest in the Deliverables to secure payment. Distology may record applicable financing and charging statements to protect its security interest, and Customer shall, at the request of Distology, assist in taking any measures necessary to protect Distology’s title to Deliverables in the country or countries concerned.
5.5 Customer may resell the Deliverables before title has passed to Customer only on the following conditions:
a) the sale shall be in the ordinary course of the Customer’s business;
b) the sale shall be a sale of Distology’s property on Customer’s behalf and the Customer shall deal as principal when making such a sale; and
c) Customer shall hold sums due to Distology pursuant to such sale in trust for the sole benefit of Distology and separately from any other money held by the Customer.
6.1 Customer acknowledges and accepts that Distology are not the Manufacturer and that Deliverables sold or supplied under these Conditions is subject to, if any, a warranty with the Manufacturer.
6.2 The following sets forth Distology sole obligations with respect to warranties. Distology makes no other warranty and excludes all others.
Equipment, Software and Products
6.3 Subject always to all the limitations, terms and conditions of a warranty contained in the contractual documents between the Manufacturer and Distology, Distology will either:
a) obtain for Customer the benefit of standard end-user warranties available in respect of the equipment, software or products; or, if this is unavailable,
b) grant Customer the same warranties that Distology receives from the Manufacturer in respect of the equipment, software or products.
6.4 Distology shall not be liable under any warranty referenced clause 6.3(a).
6.5 The sum total of payments by Distology to Customer pursuant to clause 6.3(b) shall be limited to the sum total of payments received by Distology from the relevant Manufacturer in respect of Customer’s warranty claim.
6.6 Distology shall not be liable under any warranty issued pursuant to clause 6.3(b) unless Customer gives notice and details of the damage or defect in the equipment, software or products to Distology within 24 hours of delivery; Distology are given a reasonable opportunity after receiving such notice from the Customer to examine the equipment, software or products; and the Customer (if asked to do so by Distology) returns such equipment, software or products in the packaging in which it was supplied in resaleable condition to Distology’s place of business for examination there.
6.7 Distology shall not be liable under any warranty in clause 6.3(b) if:
a) the defect arises because Customer or end user has failed to follow instructions of Distology and/or the Manufacturer as to the storage, installation, commissioning, use or maintenance of the equipment, software or products, or, if there are none, good trade practice; or
b) Customer or end user alters or repairs the equipment, software or products without the written consent of Distology or the Manufacturer or takes any step or action which has the effect of invalidating the warranty; or
c) the defect arises out of regular wear and tear; or
d) Distology are unable to pass any such liability onto the
relevant Manufacturer under its warranty due to an act or omission of Customer or any person to whom Customer has supplied the equipment, software or products (including a failure by Customer to return the same in the relevant packaging in resaleable condition).
6.8 In the event that Customer has a valid claim under any warranty issued pursuant to clause 6.3(b), Distology shall provide Customer with the remedy or remedies available under the warranty. If, in accordance with the terms of the warranty, Distology are required to refund and does refund the price of any equipment, software or products as set out in a Contract, Distology shall have no further liability to Customer under any of the warranties issued pursuant to clause 6.3(b) in respect of such claim, and any equipment, software or products returned by the Customer to Distology will therefore belong to Distology.
6.9 The performance of any customised and/or value-added products and services may void the Manufacturer’s warranty and render products or services non-returnable which, in turn, will void any Warranties made under these Conditions. Orders incorporating customised products or value-added services are, accordingly, non-cancellable and the products or services are non-returnable. Any third-party value-added service provider is deemed to be an agent of Customer.
6.10 CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS SPECIFICALLY SET FORTH OR REFERRED TO HEREIN, AND TO THE EXTENT PERMITTED BY LAW, DISTOLOGY MAKES NO WARRANTY AND EXPRESSLY EXCLUDES OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE DELIVERABLES, EXPRESS OR IMPLIED, SUCH AS A WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT OR ANYTHING ELSE THAT MAY BE IMPLIED BY THE SALES OF GOODS ACT OF 1979 OR THE SUPPLY OF GOODS AND SERVICES ACT OF 1982, AND CUSTOMER ACCEPTS THE DELIVERABLES “AS IS”. EXCEPT AS SET FORTH HEREIN, DISTOLOGY EXCLUDES ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE TO THE FULLEST EXTENT PERMITTED BY LAW. BOTH PARTIES ACKNOWLEDGE THE REASONABLENESS OF THESE EXCLUSIONS.
6.11 Under no circumstance will Distology be liable for anything more than repairing, replacing or refunding the Price for the Deliverables, all at Distology’s discretion. All other Customer remedies or damages associated with the Deliverables are hereby excluded and waived.
7.1 Subject to clause 6, the following provisions set out the entire financial liability of Distology (including any liability for the acts or omissions of its employees, agents and/or sub- contractors) to Customer.
7.2 Nothing in these Conditions excludes or limits the liability of Distology for:
a) death or personal injury caused by Distology’s gross negligence or the gross negligence of its employees, agents or subcontractors; or
b) fraud or fraudulent misrepresentation.
7.3 Subject to clause 7.2:
a) Distology shall under no circumstances be liable to
Customer in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any increased costs or expenses, or any loss of profit, business, contracts, revenues, or anticipated savings or any special, indirect or consequential damage and/or loss of any nature whatsoever and howsoever arising under or in connection with a Contract; and
b) Distology’s total liability to Customer in respect of all other losses arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the lesser of the Price paid by Customer under a Contract or one hundred thousand pounds (£ 100,000).
8. Packaging and Returns
8.1 Any Deliverables supplied in accordance with a Contract can only be returned to Distology under conditions where a return is authorised in writing and if Customer obtains a return authorisation number from Distology.
8.2 Customer shall send returns to the location advised by Distology. All such returns are at Customer’s sole risk and expense. Distology reserves the right to refuse to accept any such returns if they are not returned in the original packaging in resaleable condition.
9. Renewal Contracts
9.1 If the contract between Distology and Manufacturer contains an automatic renewal clause, an identical term shall be implied into a Contract, save that any notice period specified in the automatic renewal clause relating to notice of intention not to renew shall be extended by 20 business days. Distology will provide Customer notice of any such automatic renewal clause.
9.2 Customer shall indemnify Distology in respect of all costs and expenses howsoever incurred as a result of any breach and/or failure to strictly comply with clause 9.1.
10. Data Protection
10.1 Customer represents and warrants to Distology that Customer shall comply with all Data Protection Laws in respect of the processing of the personal data.
10.2 Customer hereby explicitly authorises Distology and the Manufacturer and any of their sub-processors to process data provided by Customer and/or to access the network of the end customer if necessary to provide Deliverables. Customer represents and warrants that it will only disclose personal data after the Consent of the end customer has been obtained in accordance with the authorisation set out herein. Under the authorisation, Distology and the Manufacturer and their sub- processors may directly process the data and/or access the network of the end customers upon written notification of Customer for the purpose of providing Deliverables to such end customer.
10.2.1 Where the Customer intends to, or might, include personal data in their use of the Deliverables purchased from Distology, they will inform Distology at the time a Price is requested. Where so informed, Distology will identify whether Distology or a third party is the data processor for the purposes of data processing, communicate that to the Customer at the point of Price, and to the extent that Distology or a third party performs data processing activities as the result of a purchase by the Customer from Distology of the Deliverables or of that third party, Distology will:
10.2.2 Operate safety and security measures and procedures consistent with Good Industry Practice for the prevention of unauthorised access or damage to any and all locations in which personal data is stored and/or processed by Distology; and
10.2.3 Take appropriate technical and organisational measures to protect personal data processed by Distology against unauthorised or unlawful processing and accidental loss, destruction, alteration or disclosure and ensure that, having regard to the state of technological development and their cost of implementation, those measures ensure a level of security appropriate to (a) the harm that might result from such processing, loss, destruction or damage; and (b) the nature of such personal data.
10.2.4 Distology shall facilitate the conclusion of a Data Processing Agreement between those parties, on the basis that the data processing relationship exists between the Customer and Distology or a third party (so that the third party is the direct Data Processor to the Customer’s Data Controller).
10.3 Customer warrants to Distology that (i) Customer has obtained and maintained all necessary Consents to make such authorisations; (ii) all instructions from Customer to Distology to process and/or access the data are in compliance with the Data Protection Laws; (iii) Customer has in place and undertakes to maintain at all times appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of personal data.
10.4 Customer shall provide Distology with such other documentation and information on request and as necessary for Distology to provide the Deliverables and to comply with its data processing and collection obligations under this clause 10.
10.5 Customer shall indemnify, defend and hold harmless Distology in respect of all losses, damages, costs and expenses howsoever incurred by Distology as a result of any breach and/or failure to strictly comply with this clause 10.
11. Compliance with local laws and regulations, export terms and other terms
11.1 Any export of the Deliverables shall be subject to the Export Terms which will apply in addition to these export sections under these Conditions.
11.2 Customer shall be responsible for obtaining all necessary export and import licences or permits necessary for the export of the Deliverables and warrants that none of the of the Deliverables will be exported and/or imported unless and until all such necessary export and import licences or permits have been obtained in writing from the appropriate regulatory authorities. Customer shall be responsible for customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the exportation, importation and delivery of the Deliverables. Without limitation Customer shall comply with all export laws, restrictions, sanctions and embargoes imposed by the United States of America, the European Union and the United Nations.
11.3 Customer warrants to Distology that Customer will comply with all of the following:
a) all applicable laws and regulations, including, without limitation, all applicable anti-bribery laws and laws governing transactions with government, public and private entities, antitrust and competition laws, applicable insider trading, securities and financial reporting laws, laws governing consumer transactions and laws regarding data privacy;
b) all laws and regulations affecting the purchase and/or use and/or resale of the Deliverables;
c) Customer warrants that the sale and supply of the Deliverables to Customer’s end customer and any resale by Customer to a third party will not contravene any sanctions or restrictions on trade, nor will Customer contravene terms of an equivalent nature agreed between Distology and the Manufacturer; and 11.4 Customer shall comply with Distology’s Business Code of Conduct.
11.5 Customer shall comply with all further obligations imposed by the Manufacturer that apply as a condition to the supply of the Deliverables.
11.6 Customer represents and warrants that Customer shall: (i) not attempt to obtain, receive, review, or otherwise use or have access to the source code of the software (or any part thereof) by reverse engineering, de-compilation, disassembly or other means; (ii) refrain from reverse engineering, copying, translating, bundling, or private labelling, the product, or granting any other third party the right to do so; (iii) refrain from modifying the products, or granting any other third party the right to do so; (iv) not engage, itself or through the assistance of any third party, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any product which is or may constitute a derivative work of the software (and its codes); (v) not represent that it possesses any proprietary interest in the product (or any part hereof); (vi) not directly or indirectly, take any action to contest the Manufacturer’s intellectual property rights or infringe them in any way; (vii) not remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with or in the product; (viii) not register, nor to have registered, any trademarks, trade names or symbols of the Manufacturer (or which are similar to the Manufacturer trademarks); (ix) not register any domain name using any of the Manufacturer’s trademarks; (x) not remove the software embedded in the hardware delivered as part of the product; and (xi) unless specifically otherwise authorised in writing by Distology, it shall not use the name, trademarks, trade-names, and logos of the Manufacturer in any manner whatsoever.
11.7 Customer shall indemnify Distology (including its employees, and/or its agents, and/or its subcontractors) in respect of all loss, damages, costs and expenses howsoever incurred as a result of any breach and/or failure to strictly comply with this paragraph 11.
12.1 It is understood and agreed that these Conditions and any Contract are confidential, and no news release, advertisement or public announcement, or denial or confirmation of the same, concerning any part of the subject matter of these Conditions and any Contract will be made by either Party without the prior written consent of the other party in each instance.
12.2 The Parties acknowledge that during the term hereof, each Party may receive or become aware of confidential, secret of proprietary information pertaining to the other Party and its operations (including without limitation information with respect to bidding, pricing, suppliers and customers, or lists thereof, know-how, research, development and manufacturing, internal operations, inventory control, data processing, technical data and other procedures or systems) and that disclosure of such information would materially and adversely affect the affected Party. Each Party agrees to maintain such confidentiality and secrecy and not to disclose any such proprietary information which is so marked or designated as confidential or could reasonably be deemed to be so by reason of the disclosure or information itself to any person, firm or other entity or to utilise the same in any manner or form, except and to the extent that (i) disclosure is required by law, regulation or court order, or enters into the public domain through no fault of the Party obligated to maintain such confidentiality or (ii) it may be expressly required by the terms of these Conditions or a Contract. Notwithstanding anything to the contrary, Distology shall have the right to share such information with Manufacturers to the extent necessary to perform under these Conditions and a Contract. The confidential provisions set forth herein will survive any termination of these Conditions or any Contract for a period of three (3) years.
12.3 The Parties explicitly agree that the Price shall be absolutely confidential and shall not be shared with any third party for any reason.
13.1 Without limiting its other rights or remedies, Distology, without cost, penalty or liability to Distology, may terminate a Contract:
a) by giving the Customer one month’s written notice; or
b) immediately if Customer is in breach or in default of any
of the Conditions or a Contract; or
c) immediately if the Customer or Customer’s end
customer has applied for or declared insolvency or bankruptcy.
13.2 Without limiting its other rights or remedies, Distology shall have the right to suspend the sale and supply of Deliverables if Customer is in breach or in default of any of the Conditions or a Contract.
13.3 Save as provided for elsewhere in these Conditions, no Contract may be cancelled unless agreed by Distology in writing and upon payment by the Customer to Distology sufficient to indemnify Distology for all losses and liabilities resulting from the Customer’s cancellation of a Contract.
14. Click Through and E-Signatures valid
Customer agrees that by clicking its acceptance of these Conditions through any electronic portal or by making an electronic signature that this shall be sufficient to provide assent to these Conditions and shall be as valid as a traditional handwritten signature and, by doing so, Customer assents to the Conditions herein. Customer also assents to the fact that these Conditions shall apply to any Contract. Customer waives any right or claim it may have to assert invalidity of a click-through process or electronic/portal signatures. Customer warrants and covenants to Distology that persons clicking the acceptance of these Conditions and/or executing electronic or portal signatures have the authority to do so for Customer and have the authority to bind. Nothing herein should be deemed to imply that handwritten or holographic signatures are invalid.
15. Governing law and jurisdiction
15.1 These Conditions and any Contract, and any dispute or claim arising out of or in connection with the subject matter or formation of the same, shall be governed by and construed in accordance with internal laws of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
15.2 Any dispute or claim arising out of or in connection with these Conditions or a Contract shall be resolved exclusively in the courts of England. No other court shall have subject matter jurisdiction and the Parties irrevocably submit to the jurisdiction of said court and covenant not to file suit anywhere else or challenge the subject matter or personal jurisdiction in said court.
16.1 Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under a Contract and may not subcontract or delegate in any manner any or all of its obligations under a Contract to any third party.
16.2 Distology reserves the right to sub-contract or assign any part of any work or supply of any Deliverables or any other rights of obligations arising under these Conditions or a Contract.
16.3 Each right or remedy of Distology under a Contract is without prejudice to any other right or remedy of Distology whether under the Contract or otherwise.
16.4 If any provision of these Conditions or any Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, said Conditions and Contract shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of these Conditions and any Contract shall continue in full force and effect. In such circumstance, such voided provision shall be deemed automatically adjusted to the minimum extent necessary to conform to applicable requirements of validity, legality and enforceability and, as so adjusted, be deemed a provision of these Conditions and a Contract as if it were originally included herein.
16.5 Failure or delay by Distology in enforcing or partially enforcing any provision of these Conditions or any Contract will not be construed as a waiver of any of Distology’s rights under these Conditions or any Contract.
16.6 Any waiver by Distology of any breach of, or any default under, any provision of these Conditions or any Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of these Conditions or any Contract.
16.7 The parties to a Contract do not intend that any these Conditions or any Contract will be enforceable by third parties and/or any person that is not a party to it.
16.8 At reasonable and agreed times and upon reasonable prior notice, Distology and/or its designees/agents may audit Customer’s business records as they pertain to the purchase of Deliverables, these Conditions or Contract. Customer shall make Premises available to Distology and/or its designees/ agents to the extent necessary for Distology to exercise its rights under these Conditions and Contract and to grant Distology and/or its designees/agents licence to enter and inspect Premises.