1.1 'Agreement' means these Terms and Conditions

1.2 ‘Company’ means Xicon Limited whose registered office is at Bank House, 1 Bank St, Warrington WA1 2AP

1.3 ‘Credit Facility’ means an agreed credit facility with the Company

1.4 ‘Customer’ means the customer placing the order for Goods with the Company

1.5 ‘Delivery’ means delivery of the Goods to the Site

1.6 ‘Description’ means a document forming part of this Agreement which describes the Goods

1.7  ‘Goods’ means Third Party Equipment or Service Offerings to be purchased by the Customer

1.8 ‘Manufacturer’ means third party manufacturer of the Goods

1.9 ‘Order’ means a submitted Order Confirmation page on the Company’s Web Store

1.10 ‘Payment Information Page’ means

1.11 ‘Place of Use’ means that part of the Customer’s premises at the Site where the Goods are to be installed and operated 

1.12 ‘Price’ means the aggregate price of the Goods. The cost of freight, insurance, import or export duties or other associated costs such as delivery and VAT shall be added unless already specified as included in the Price.

1.13 ‘Site’ means the address for delivery of the Goods specified by the Customer in the Order

1.14 ‘Software’ means computer operating systems, middleware, applications or other software that is manufactured or owned by a third party

1.15 ‘Terms’ means the payment option chosen by the Customer on the Payment Information Page

1.16 ‘Third Party Equipment’ means products not manufactured or assembled by the Company which the Company is authorized to sell

1.17 ‘Web Store’ means

 2 SCOPE OF THE AGREEMENT

2.1 In consideration of the Customer paying the Price in accordance with this Agreement the Company agrees to supply the Goods subject to the terms of this Agreement

2.2 All Orders shall be regarded as an offer by the Customer to purchase the Goods under the terms of this Agreement and not under any other terms stated on such Order

2.3 These terms and conditions will be incorporated in all future agreements for the provision of Goods between the Company and the Customer unless otherwise agreed in writing by the Company

2.4 The Company reserves the right to refuse to process any order at any time and the Company will not be liable for any loss or damage incurred by the Customer as a result.

2.5 The Company reserves the right to withdraw credit terms from a Customer at any time.

3 PAYMENT TERMS 

3.1 The Company will invoice the Customer on receipt of Order, for the Price and any costs of freight, insurance, import or export duties or other associated costs such as delivery,VAT and any other taxes duties or levies at the then prevailing rate.

3.2 The Customer will pay to the Company all sums payable under this Agreement in accordance with the Terms.

3.3 If any sums payable to the Company are not made in accordance with the Terms the Company reserves the right without prejudice to any other right or remedy to charge interest on such overdue sum on a day to day basis from receipt of an invoice by the Customer until paid at 3% above National Westminster Bank Plc base rate in force from time to time. If the Company must recover the outstanding payment &/or Goods, recovery costs are to be paid by the Customer

3.4 If the Goods are delivered in installments over a period of time, the Company may adjust prices due to exchange rates, duties, insurance, freight, handling and purchase

 4 DELIVERY

4.1 Any delivery date specified by the Company is an estimate. The Company will not be liable for any loss or damage incurred by the Customer through unavoidable delay in delivery

4.2 The Site is as stated by the Customer in the Order. For practical reasons, the Goods may be delivered by installments, which shall be communicated to the Customer

4.3 Delivery will not take place until cleared funds are received by the Company unless the Customer has an agreed Credit Facility

4.4 If the Customer fails to take delivery of the Goods then the Company may store the goods at the Customer’s risk and expense until such time as delivery can successfully take place. Any redelivery costs must be settled by the Customer.

5 SOFTWARE

5.1 All Software is supplied subject to a license agreement and the Customer agrees that it will be bound by such license agreement in addistion to these terms. Title to Software remains with the applicable licensor.

 6  OWNERSHIP AND RISK

6.1 Ownership of the Goods will pass to the Customer on payment in full of all sums due to the Company by the Customer.

6.2 Until ownership has passed to the Customer in accordance with clause 5.1 the Customer must maintain the goods in satisfactory condition and insure them at full price on the Company’s behalf and hold any insurance monies on trust for the Company and not mix them with any other money nor pay the proceeds into an overdrawn bank account

6.3 The Company may recover any Goods supplied at any time prior to ownership passing if the Customer is in breach of these Conditions.

6.4 Risk passes to the Customer on delivery of the Goods to the Customer or to their representative.

7 ACCEPTANCE OF GOODS ON DELIVERY

7.1 Notwithstanding anything herein to the contrary, Customers may only reject the Goods for material non-conformity with the Description by providing written notice to the Company within 3 days after delivery or otherwise Customer shall be deemed to have accepted the Goods.

7.2 Customer shall notify the Company promptly following delivery

7.2.1 of any missing, incorrectly delivered, incorrect specification, or otherwise not as ordered.

7.2.2 Goods which are in damaged packaging or are visibly damaged; and

7.2.3 following discovery of any non-visible damage or defect in the Goods supplied.

7.3 Where Goods can be returned by Customer under the terms of this Agreement, they should either be returned to the Company or be made available for collection at a time which is mutually convenient insofar as possible. Customers should act reasonably in complying with a request by the Company to collect Goods at a particular time.

8 LIMITATION OF LIABILITY

8.1 The Company will pass to the Customer to the extent that it is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of the Third Party Equipment

8.2 Goods sold will correspond to their Description (except as stated in clause 7.11) 

8.3 The Customer must satisfy itself as to the suitability of the Description for their needs. The Company does not warrant fitness for any particular purpose.

8.4 Customers are not automatically entitled to repair or replacement other than as described in a Description or as otherwise agreed by the Company. The Company shall have no liability or obligation for defects in the Goods or failure to remedy defects except as expressly provided under this Agreement.

8.5 Except as expressly provided herein, no warranty, express or implied, as to the condition, quality, performance, merchantability, or durability of the Goods is given or assumed by the Company and all such warranties are hereby excluded to the extent possible under applicable law.

8.6 The Customer acknowledges that the Company's obligations and liabilities with regard to anything supplied by it to the Customer under this Agreement are exhaustively defined in this Agreement.

8.7 The Customer is responsible for the consequences of any use of the Goods. The Company will not be liable for any indirect or consequential loss damage cost or expense of any kind whatever and however caused whether arising under contract tort(including negligence) or otherwise including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if the Company has been advised of their possibility

8.8 The Company accepts liability to the extent that it results from the negligence of the Company and its employees for death or injury without limit.

8.9 In all other cases not falling within clause 7.3 the company's total liability (whether in contract or tort including negligence or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution will not exceed 125% of the Price

8.10 In claiming against the Company for any such losses the Customer is expected to have acted reasonably, for example, with regard to:

8.10.1  how the losses were accrued – including steps taken to mitigate or to avoid losses occurring; &

8.10.2 taking reasonable precautions to avoid loss (such as contacting the Company promptly upon becoming aware of an issue)

8.11 The Company will not be liable for loss resulting from any defect or deficiency in Goods which the Company or the Manufacturer shall have remedied within a reasonable period and/or consistently with the terms of a Description;

8.12 The Customer agrees that except as expressly provided in this clause 7 the Company will not be under any liability of any kind whatever and however caused arising directly or indirectly in connection with this Agreement. The Customer will indemnify the Company in respect of any third party claim for any injury loss damage or expense occasioned by or arising directly or indirectly from the Customer's possession operation use modification or supply to a third party of any thing supplied under the Service and any part of it except and in so far as the Company is liable as expressly provided in this Agreement

8.13 The parties acknowledge that the allocation of risk contained in this clause 7 is reflected in the Price and is also a recognition of the fact that inter alia it is not within the Company's control how and for what purpose the results of the Goods are used by the Customer

8.14 Except in the case of a claim against the Company arising under Clause 7.8 above the Company shall have no liability to the Customer pursuant to this Clause 7 unless the Customer shall have served notice in writing of the same within 2 years of the date the Customer became aware of the circumstances giving rise the claim or the date when it ought reasonably to have become so aware.

 9 INTELLECTUAL PROPERTY

9.1 The Company agrees to indemnify the Customer from all reasonable, direct and demonstrable costs & liabilities arising from any claim that use of the Goods infringes any third party IPR. In the event of an IPR infringement the Company may recall on behalf of the Manufacturer the Goods. The Company may on behalf of the Manufacturer exchange or modify the Goods or refund the Customer (minus depreciation in this event)

9.2 The Manufacturer retains all Manufacturer owned IPR in the Goods The Customer must notify the Company immediately of any infringing or unauthorized use of the Goods or IPR in it.

9.3 The Company does not indemnify the Customer for unauthorized modification or use of the Goods; any claim caused by the use of the Goods in conjunction with anything not supplied by the Manufacturer

9.4 Customer must comply with the license conditions for any Software supplied.

9.5 The Customer agrees to indemnify the Company for any claim which arises due to the Customer’s own actions of which the Company had no knowledge or could not reasonably be expected to have had knowledge, or for any claim related to IPR specified or owned by the Customer & integrated into the Goods.

9.6 The Company (or the Manufacturer at the Company’s request) may litigate, negotiate & settle claims & the Customer must provide reasonable assistance if requested to assist the Company or the Manufacturer if litigation is directly related to the Goods

 10 FORCE MAJEURE

10.1  Neither party is responsible for non-performance in case of circumstances beyond its reasonable control (“Force Majeure”) including without limitation, strikes by non Company employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply the Company.

10.2  If the Force Majeure event lasts longer than 60 days then the Company shall have the right to terminate the Agreement by providing notice in writing to Customer & returning all sums paid by Customer under the Agreement. No compensation to the Customer will then be due in these circumstances.

11 EXPORT CONTROL

11.1 The Customer is advised that the Goods, which may include technology & software, is subject to EU and US export control laws & laws of the country where it is delivered or used. Under these laws, the Goods may not be sold, leased or transferred to restricted end-users or countries or for restricted end-uses. The Customer agrees to abide by these laws.

12 NOTICES

12.1 All notices required to be given under this Agreement will be in writing to the address of the recipient set out on the front page of this Agreement or any other address the recipient may designate by notice given in accordance with this clause. Any such notice shall be delivered personally or by first class pre-paid letter or facsimile transmission and will be deemed to have been received:

12.2 by hand delivery at the time of delivery

12.3 by first class post 48 hours after the date of posting

12.4 by facsimile transmission immediately on transmission provided a confirmatory copy is sent by first class pre-paid post or by hand at the end of the next business day.

13 WAIVER

13.1 No delay or failure by either party to exercise any of its powers rights or remedies under this Agreement will operate as a waiver of them nor shall any single or partial exercise of any such powers rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.

 14 TERMINATION

14.1 Either party may terminate this Agreement or any Order if the other:

14.1.1 commits a material or persistent breach of these Conditions and fails to remedy such breach within 30 days of written notice being given to it by the other party requiring a remedy;

14.1.2  becomes insolvent or bankrupt or is unable to pay debts as they fall due.

14.1.3 The Company may terminate this Agreement or any Order with immediate written notice if the Customer fails to pay on time or breaches or the Company reasonably suspects Customer has breached export control laws.

15 WHOLE AGREEMENT

15.1 This Agreement constitutes the entire Agreement between the parties relating to the Goods and supersedes all previous communications representations (except for fraudulent representations) and other arrangements oral or written. The Customer acknowledges that no reliance is placed on any representation made but not embodied in this Agreement. No changes to its terms will be effective unless it is in writing and signed by persons authorized on behalf of both parties.

16 GOVERNING LAW

16.1 This Agreement will be construed in accordance with and governed by the Law of England and each party agrees to submit to the non- exclusive jurisdiction of the Courts of England.

 17 SEVERABILITY

17.1 If any part of this Agreement is found by a Court of competent jurisdiction or other competent jurisdiction to be invalid unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.