ENABLE NETWORK SERVICES STANDARD TERMS AND CONDITIONS
1. Definitions and interpretation
Where used in these Terms and Conditions:
“Authorised Representative” means any person who holds the job title and office of a manager, director or chief executive officer;
“Contract” means any agreement for the purchase and sale of Products from Enable Networks to the Customer which result from an Order submitted to and accepted by Enable Networks in accordance with these Terms and Conditions;
“Contract Date” means the date upon which an Order is accepted by Enable Networks;
“Credit Account” means any credit facility made available to the Customer by Enable Networks which shall be governed by these Terms and Conditions;
“Customer” means any individual person, entity, company, firm or organisation that purchases Products from Enable Networks for use in its business or the business of a third party end-user and not as a consumer (meaning any natural person who is acting for purposes not related to his or her trade, business or profession);
“Enable Networks” means Enable Network Services Limited, a company registered in England and Wales under number 8850297 and whose registered office is at Suite 104, 128 Aldersgate Street, Barbican, London;
“Force Majeure Event” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of
Enable Networks (including delay by its Suppliers);
“Goods” means any Supplier’s goods and/or software, or any instalment or parts thereof, that are supplied by Enable Networks to the Customer pursuant to a Contract, including any Supplier documentation related thereto;
“Order” means the Customer’s oral, written or electronic order for Products and shall include any order that the Customer places online through the Website or transmits via email or fax;
“Products” means any combination of Goods, Special Order Goods and Services which are supplied by Enable Networks to the Customer pursuant to a Contract;
“Services” means any Supplier’s services that are supplied by Enable Networks to the Customer pursuant to a Contract;
“Special Order Goods” shall mean any Goods that are custom ordered or configured to the Customer’s specifications, or otherwise designated as special order Goods by Enable Networks;
“Supplier” means the supplier, licensor, publisher, manufacturer or other third party provider of Products; and
“these Terms and Conditions” means these Terms and Conditions or any such successor standard terms and conditions that the Customer is notified are in full force and effect as of the date of a Contract and are concurrently available on Enable Networks’ website.
As used in these Terms and Conditions: (a) any reference to a statute shall be construed as a reference to that provision as amended, waived, re-enacted or otherwise modified from time to time; (b) the term “including” will always be deemed to mean “including, without limitation”; (c) a
definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined; and (d) any headings in these Terms and Conditions are for convenience only and shall not affect the interpretation of any terms.
2. General terms of order and sale
2.1 These Terms and Conditions govern every contract between Enable Networks and the Customer. No additional or alternative terms or conditions or any alteration to these Terms and Conditions proposed by the Customer contained or referred to in an Order or other form submitted to Enable Networks shall be deemed to apply unless they are expressly accepted in writing by an authorised representative of Enable Networks.
2.2 Enable Networks will use reasonable efforts to notify the Customer of any material changes to these Terms and Conditions before they become applicable, but it is the sole responsibility of the Customer to ensure it is familiar with the most current set of Terms and Conditions which apply to any contract between Enable Networks and the Customer.
2.3 The Customer shall be deemed to have accepted these Terms and Conditions upon the earlier of: (a) signing an Enable Networks Credit Account application; (b) submitting an Order to Enable Networks, or (c) accepting Goods from Enable Networks.
2.4 Notwithstanding the foregoing, the Customer agrees that Enable Networks’ provision of a price quotation, price list or any other information shall not be considered an offer by Enable Networks to sell Goods at those prices or subject to any other terms and conditions. Only an Order submitted by the Customer shall constitute an offer to contract subject to these Terms and Conditions; however, an Order shall not be deemed a Contract until the earlier of: (a) written confirmation being provided by Enable Networks; or (b) Enable Networks proceeding with the fulfilment of the Order.
2.5 Notwithstanding the foregoing, Enable Networks and its Suppliers reserve the right to make any changes in the specifications of the Goods, without notice to the Customer, which are (a) required in order to conform to any legal requirements, or (b) which do not materially affect the performance of the Goods.
2.6 Any Goods that are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to the Customer subject to any such guidelines, restrictions or provisions.
3. Special Order Goods
3.1 Notwithstanding anything to the contrary contained herein, if the Customer has elected to purchase Special Order Goods, the Customer agrees that any Contracts for Special Order Goods may not be cancelled, withdrawn, rescheduled or otherwise modified by the Customer, and the Customer further agrees that such Special Order Goods (except as set forth under clause 13), may not be returned, refused or rejected for any reason whatsoever. Further, the Customer shall not be entitled to a credit or refund for such Special Order Goods for any reason. The Customer shall indemnify and hold Enable Networks harmless for all delays, claims, losses, liabilities, costs or expenses related to Special Order Goods.
3.2 The Customer shall be solely responsible for the accuracy of any Order submitted for Special Order Goods, including the specification, configuration or other details of such Special Order Goods and their functionality, compatibility and interoperability with other Goods, as well as their fitness for particular use as required by the Customer.
3.3 Enable Networks warrants, for a period of fourteen (14) days from delivery, that any Special Order Goods will be delivered subject to the configuration set forth on the Order. Enable Networks’ sole and exclusive liability, and the Customer’s sole remedy, for a breach of the foregoing warranty shall be to repair or replace, at its sole and absolute discretion, the Special Order Goods PROVIDED THAT Enable Networks shall have no liability for any inaccuracies on an Order.
4. Cancelling and rescheduling Orders
No Order which has been accepted by Enable Networks may be cancelled or rescheduled by the Customer except with the written agreement of Enable Networks and on terms that the Customer shall indemnify Enable Networks in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages and expenses incurred by Enable Networks as a result of a cancellation, subject to a minimum of 5% of the total value of a cancelled Order (which amount the Customer agrees represents a genuine estimate of Enable Networks’ loss), together with Enable Networks’ costs of recovering Goods delivered or in transit.
5.1 The price of Goods in Enable Networks’ stock on the Contract Date shall be: (a) the quoted price (which shall be given formally in writing and be valid for seven days following the date of quotation); or (b) the list price in Enable Networks’ then current published price list on the date of Contract, where no price has been quoted or a quoted price has expired.
5.2 The price of Goods which are not in stock on the Contract Date (“Backordered Goods”) shall be: (a) the quoted price (which shall be given formally in writing and be valid for seven days following the date of quotation); or (b) the list price in Enable Networks’ then current published price list on the date the Backordered Goods are scheduled for delivery to the Customer.
5.3 Notwithstanding the foregoing, Enable Networks may, by giving notice to the Customer at any time before delivery, to increase the price of Goods after the Contract Date to reflect any increase in the cost of such Goods that is due to any factor beyond the control of Enable Networks, including (but not limited to) any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which are requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give Enable Networks adequate information or instruction, but Enable Networks shall only increase its price by the amount necessary to reflect such an increase. Further, if Enable Networks or its agent makes a material error or omission when quoting a price, Enable Networks may, for a period of 30 days following the Contract Date, increase the price of the related Goods sold to the Customer by either: (a) invoicing the Customer for the Goods’ proper list price on the date of the Contract Date; or (b) allowing the Customer to return such Goods to Enable Networks and crediting the Customer for the fees paid by the Customer for such Goods.
5.4 Except as otherwise stated on a price quotation or in Enable Networks’ then current price list, and unless otherwise agreed in writing between the Customer and Enable Networks, all prices are quoted on an Ex Works basis and the Customer shall be liable to pay Enable Networks’ charges for transport, packaging and insurance.
5.5 All prices and charges are exclusive of packaging and delivery costs, configuration, fulfilment and other services provided, and applicable value added tax (VAT) or other applicable sales tax and other taxes (other than taxes based upon Enable Networks’ net income) for which the Customer shall be additionally liable. The Customer shall make all payments to Enable Networks without reduction for any withholding taxes, which shall be the Customer’s sole responsibility. All such taxes shall be paid by the Customer to Enable Networks unless the Customer provides Enable Networks with a valid certificate of exemption acceptable to the appropriate taxing authority.
5.6 Prices exclude any copyright levies, waste and environment fees and similar charge that Enable Networks by law may charge or collect.
5.7 If a Supplier should grant a special pricing consideration or discount to Enable Networks and such Supplier pricing is made available to the Customer (“Pass-Through Discounts”), the Customer agrees to adhere to the terms and conditions of such Pass-Through Discounts
(“Pass-Through Discount Terms”) and agrees to indemnify Enable Networks for any Supplier claims against Enable Networks for the Customer’s failure to comply with such PassThrough Discount Terms. The Customer agrees that payment and receipt of benefits under Pass-Through Discount Terms are contingent upon the Customer’s compliance with such terms, and further agrees to pay any costs or fees, if any, charged to Enable Networks by the Supplier for participation in Pass-Through Discounts.
6.1 If the Customer has not been granted credit facilities by Enable Networks, then the Customer’s payment shall be due on the date of the invoice and in advance of delivery. If the Customer has been granted credit facilities by Enable Networks then the Customer shall pay the purchase price, without any deduction or set-off, within 14 days from the date of the invoice which shall be issued to the Customer on the date that Goods are shipped. If payment is made by credit or debit card, then the Customer agrees to pay all fees and service charges incurred by Enable Networks in handling such transactions, including fees charged by the card issuer.
6.2 All express deliveries are subject to additional shipping charges regardless of invoice value.
6.3 Timely payment is of the essence of these Terms and Conditions. Enable Networks may recover any invoiced amounts notwithstanding that delivery may not have taken place and title has not passed to the Customer. If: (a) the Customer fails to make any payment under any Contract when due; (b) any distress or execution is levied upon the Customer’s property or assets; (c) the Customer makes or offers any arrangement or composition with its
creditors; (d) the Customer is a body corporate and any resolution or petition to wind up the Customer’s business (other than for the purpose of a bona fide amalgamation or reconstruction) is passed or presented; (e) a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of the Customer or any part thereof; (f) the Customer is an individual and any grounds arise for the presentation of a
petition for a bankruptcy order made under Part IX Chapter 1 Insolvency Act 1986 or any statutory re-enactment or modification thereof or on the presentation of such a petition; or (g) the Customer exceeds its credit limit then, without prejudice to any other right or remedy available to Enable Networks, the full price of all Goods delivered to the Customer under any Contract, but not paid for, shall become immediately due (notwithstanding any previously agreed credit terms) and Enable Networks may take any or all of the following courses of action:
(i) by notice, suspend or determine any Contract or any part thereof, without liability, stop any Goods in transit and, at its discretion, subject to clause 9, enter the Customer’s premises to recover Goods for which payment has not been made in full;
(ii) charge the Customer interest, both pre- and post-judgment, on any unpaid amount past due at the rate of 5% per month until full payment is made (a part of a month shall be treated as a full month for the purpose of calculating interest);
(iii) appropriate any payment made by the Customer to such Goods (including Goods supplied under any other contract between the Customer and Enable Networks) as Enable Networks may deem fit (notwithstanding any purported appropriation by the Customer); and/or
(iv) alter the Customer’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and/or demanding adequate assurance of due performance by the Customer through the provision of a bank guarantee.
6.4 The Customer shall provide Enable Networks with copies of its annual and/or quarterly financial statements upon Enable Networks’ request. The Customer shall notify Enable Networks in writing prior to entering into any contract whereby the Customer would sell, assign, factor or otherwise transfer any book debt owed to the Customer, or before entering into any form of invoice discounting arrangement with a third party.
6.5 Any credit note, balance or other liability issued by Enable Networks to the Customer (including values of Product trade-ins or promotions) shall expire, without notice, within 12 months of the date of issue by Enable Networks. The Customer shall be deemed to have forfeited any right to such credit amounts and shall not be entitled to a replacement or repayment of any amounts related thereto.
7. Credit Accounts
7.1 The Customer may use a Credit Account for the payment of invoices for Goods and/or services from Enable Networks subject to these Terms and Conditions and to the terms and conditions of sale or supply of the Goods and/or services in question.
7.2 If the Customer does not have a Credit Account, or has had its account suspended in accordance with these Terms and Conditions, Enable Networks shall only provide Goods and/or services on receipt of cleared funds, pre-paid.
7.3 Upon the Customer’s application for a Credit Account, Enable Networks may: (a) request written references in support of the Customer’s creditworthiness; (b) obtain reports from credit reference agencies; and/or (c) refer to the Customer’s previous dealings with Enable Networks (where relevant). Enable Networks shall inform the Customer of its decision in writing. If the Customer’s application for a Credit Account is rejected, Enable Networks shall give the Customer a reason or reasons for such rejection.
7.4 All invoices shall be issued to the Customer on delivery of the Goods and/or following the completion of the services to which an invoice relates.
7.5 Subject to any alternative credit term agreed in writing by Enable Networks and the Customer, all invoices shall be paid in full by the Customer within 14 days of the invoice date.
7.6 If Enable Networks does not receive payment either before or on the due date, interest shall be charged on all sums due at the rate of 4% above the base rate of the Bank of England which prevails during the period that payment is overdue.
7.7 Enable Networks accepts Direct Debit as the only method of payment for the settlement of invoices and Credit Accounts.
7.8 Unless otherwise agreed in writing by Enable Networks and the Customer, all payments shall be made in pounds sterling.
7.9 If the Customer has no previous dealings with Enable Networks, the Customer will initially be granted a maximum credit limit of £5,000.
7.10 Enable Networks shall determine the Customer’s application for a Credit Account and, if granted, its credit limit with reference to: (a) the length of time the Customer has been trading; and (b) the trading history of the Customer and its directors and officers.
7.11 The Customer may exceed a credit limit only in Enable Networks’ sole discretion and Enable Networks shall require: (a) a bank guarantee; and/or (b) a company guarantee.
7.12 Enable Networks will review the Customer’s credit limit annually or at the Customer’s request.
7.13 Enable Networks will review the Customer’s credit limit in accordance with the criteria set out in this clause 7 and shall be determined using the same procedures as those used for new Credit Accounts.
7.14 All decisions made by Enable Networks regarding Credit Accounts and credit limits are final. Reviews of decisions shall be made at Enable Networks’ sole discretion.
7.15 If any details submitted by the Customer to Enable Networks when applying for a Credit Account change following submission, the Customer shall notify Enable Networks of such changes in writing within five business days of such change(s) taking place. Enable Networks may review the Customer’s Credit Account if any such changes give it cause to do so. All reviews shall be at Enable Networks’ sole discretion.
7.16 If at any time Enable Networks is not satisfied as to the creditworthiness of the Customer and/or if the Customer is in default, Enable Networks may give written notice to the Customer that no further credit will be allowed to the Customer, in which event no further Goods and/or services will be provided to the Customer other than against cash pre-payment and Enable Networks may require immediate cash payment of all sums owing by the Customer in settlement of the Customer’s Credit Account.
7.17 If the Customer’s Credit Account is either not suspended or is subsequently reinstated following suspension or withdrawal, the Customer’s credit limit may be reduced to a level deemed appropriate by Enable Networks.
7.18 If the Customer is unable to make any payment, Enable Networks may agree to the payment of the sums owing in instalments. The decision of Enable Networks in this respect shall be final.
7.19 Notwithstanding the other provisions of this clause 7, Enable Networks may terminate or suspend the Customer’s Credit Account at any time without notice.
7.20 Enable Networks may terminate or suspend the Customer’s Credit Account if any information supplied by the Customer is found to be misleading or incorrect or if the Customer fails to comply with these Terms and Conditions or any related terms and conditions of sale or service issued by Enable Networks in relation to a particular transaction.
7.21 Enable Networks shall not be liable to the Customer for any loss or damage arising directly or indirectly out of the reduction, suspension, withdrawal, refusal or termination of the Credit Account.
8.1 Any dates quoted for delivery of the Goods are approximate only and Enable Networks shall not be liable for any delay in delivery of the Goods. Time for delivery shall not be of the essence of any Contract unless previously agreed in writing by Enable Networks. Any Goods may be delivered by Enable Networks in advance of the quoted delivery date upon giving reasonable notice to the Customer.
8.2 Unless otherwise agreed in writing, delivery of the Goods shall be made at Enable Networks’ premises upon notification to the Customer that such Goods are ready for collection. The Customer may collect the Goods any time thereafter on reasonable notice during Enable Networks’ normal business hours. Enable Networks may assume that any person who both reasonably appears and claims to have the authority to accept and sign for delivery of the Goods on behalf of the Customer does, in fact, have requisite authority from the Customer.
8.3 Claims for non-delivery of Goods must be made in writing to Enable Networks within five business days from the date of invoice. If Enable Networks agrees to deliver Goods directly to the Customer’s buyer, any such delivery shall be deemed to be made to the Customer and any refusal by the Customer’s buyer to accept such delivery shall be deemed to be a refusal by the Customer.
8.4 The Customer agrees to accept partial delivery of Goods ordered unless otherwise agreed by the parties in writing. Where the Goods are delivered in instalments, each delivery shall constitute a separate Contract. Failure by Enable Networks to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat a Contract as repudiated or to cancel any other instalment.
8.5 If the Customer fails to take delivery of the Goods or fails to give Enable Networks adequate delivery instructions in its Order then, without prejudice to any other right or remedy available, Enable Networks may: (a) store the Goods until actual delivery and charge the Customer for the reasonable costs thereof, including insurance costs; or (b) terminate the Contract forthwith and sell the Goods.
8.6 The Customer shall bear all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Goods ordered pursuant to a Contract.
8.7 If there is a shortage of Goods available to Enable Networks, then Enable Networks may allocate any available Goods between its customers on such a basis as it deems appropriate. In such case, the Customer agrees to accept any Goods delivered to it and shall pay the
appropriate pro-rated portion of the invoiced price for such Goods.
9. Title and risk
9.1 Risk of loss or damage to the Goods shall pass to the Customer: (a) upon delivery; or (b) if the Customer unjustifiably fails to take delivery of the Goods when delivery is tendered by Enable Networks. The Customer shall insure the Goods for the invoice value from the date delivery is made or tendered. Notwithstanding delivery and the passing of risk in the Goods, the Customer agrees that title to the Goods shall not pass to the Customer until Enable Networks has received cleared funds as full payment for the price of the Goods and all other sums which are then currently outstanding to Enable Networks on any account.
9.2 Until title in the Goods passes to the Customer, the Customer shall: (a) hold the Goods as Enable Networks’ fiduciary agent and bailee; (b) store the Goods in such a way as to be clearly separate and identifiable from the Customer’s other Goods; and (c) keep the Goods in their original packaging, properly stored, protected, insured and identified as Enable Networks’ property.
9.3 Notwithstanding the foregoing, the Customer may resell the Goods in the ordinary course of business PROVIDED THAT (a) any such resale shall be subject to a retention of title clause, including a right of entry to repossess those Goods, and (b) the Customer does not offer those Goods as collateral or otherwise pledge or grant a charge in respect of the Goods (a “Third Party Security Interest”) until title has passed to the Customer in accordance with these Terms and Conditions. If the Customer permits, allows or otherwise creates a Third Party Security Interest in the Goods before title has passed to the Customer, then all monies owed to Enable Networks shall immediately become due and payable. Upon Enable Networks’ request, the Customer shall provide Enable Networks with all details and information necessary to collect the Goods in the event of non-payment.
9.4 If the Customer sells any Goods in such a manner as to pass valid title to the Goods to a third party, then the Customer shall hold the proceeds of such sale on trust for Enable Networks PROVIDED THAT the foregoing shall not constitute the Customer as an agent of Enable Networks for the purposes of any such resale.
9.5 Until title in the Goods passes to the Customer, Enable Networks may require the Customer to return the Goods to Enable Networks. If the Customer should fail to immediately comply with Enable Networks’ request, then Enable Networks may enter on or in any premises or
vehicles of the Customer where the Goods are loaded or stored for the purpose of repossessing said Goods.
9.6 The Customer may not sell any Goods in its inventory after the appointment of a receiver to its property or after it has been placed in liquidation or administration or, not being a company, has committed an act of bankruptcy. Further, the Customer’s right to possess the Goods shall immediately cease when and if the Customer makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws, is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or otherwise ceases to trade.
10. Damage and loss in transit
10.1 Enable Networks shall not be liable in respect of error in delivery, loss, damage or destruction to any Goods during transportation of the Goods to the Customer unless notice thereof is advised to Enable Networks by telephone immediately on receipt of the Goods and confirmed in writing within five business days. The Customer shall concurrently notify the carrier in writing of any such error, loss or damage and shall in all cases, where possible, enter a note of the same upon the carrier’s bill of lading or other delivery receipt. If, by reason of the Customer’s failure to give any such notice, Enable Networks is unable to make recovery from the carriers in respect of the error, loss or damage complained of, then the Customer shall be liable to pay for the Goods as though no such error, loss or damage occurred. No liability for Product(s) shortages will be accepted by Enable Networks unless such shortage is noted on the bill of lading or other delivery receipt.
10.2 Subject to the foregoing, any Goods delivered in error or lost, damaged or destroyed during transportation will be replaced or rectified by Enable Networks as originally ordered or, if rectification or replacement is not practicable, Enable Networks will issue a credit to the Customer equal to any payments received by Enable Networks for such Goods. Enable Networks shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any error, loss, damage or defect except as set forth herein.
10.3 Any error, loss, damage or destruction of Product(s) discovered by the Customer in delivery shall not entitle the Customer to rescind the remainder of a Contract.
11. Publications and specifications
All specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of Enable Networks or a Supplier are intended to be illustrative and approximate only and shall not form part
of a Contract or constitute a representation, warranty or condition regarding any Goods unless agreed in writing by the Customer and Enable Networks. No employee or agent of Enable Networks has any authority to make any representation regarding the Goods. The Customer acknowledges that it has not been induced to accept these Terms and Conditions by any representations or statement, oral or written, not expressly contained herein.
12.1 The Customer acknowledges that Enable Networks is not the Supplier of the Goods. Accordingly, all Goods are sold subject to the express warranty terms, if any, specified by the original Supplier of the Goods. The Customer will ensure that any express warranty terms provided with the Goods, including any benefits related thereto, are passed on to its buyers from the original Supplier of the Goods. Any software supplied to the Customer pursuant to a Contract is supplied subject to the provisions of the Supplier’s licensing terms.
12.2 The Customer may not make or pass on, and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on to its buyers any warranty or representation relating to a Product on behalf of Enable Networks or the Supplier.
12.3 Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Terms and Conditions (except to title, in the case of Goods) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation.
13. Warranty assistance
13.1 The Customer shall immediately notify Enable Networks in writing if any Goods supplied to the Customer prove to be defective in quality or condition within the Supplier’s warranty period. Upon receipt of notification of such claim from the Customer, Enable Networks shall notify the Customer whether, as a matter of Supplier policy, the claim must be handled directly with the Supplier or indirectly through Enable Networks. If the claim must be handled directly between the Customer and the Supplier, Enable Networks shall provide contact information to enable the Customer to contact the Supplier. If the claim will be handled by Enable Networks, then Enable Networks shall provide the Customer with a return material authorization (“RMA”) for the Customer to return the Goods to Enable Networks, and the Customer shall return such Goods to Enable Networks in accordance with these Terms and Conditions and Enable Networks’ then current RMA policy (which is available to the Customer upon request). No Goods may be returned to Enable Networks without a valid RMA number displayed on the Goods packaging. Any Goods returned without a valid RMA number displayed on the Goods packaging will be refused or returned. Enable Networks shall not be obligated to ship replacement Goods to the Customer until Enable Networks is in receipt of the original Goods being returned.
13.2 The Customer agrees that Enable Networks’ sole liability to the Customer regarding any Product defect claims is limited to the administration of such claims with the Supplier and is expressly contingent upon Enable Networks’ ability to obtain a refund, credit or new replacement Goods from the Supplier. Enable Networks has no obligation to accept a return of Goods that fail to comply with a Supplier’s policy on Product returns.
13.3 Enable Networks shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with the Supplier’s Product documentation, modification or alteration not authorised by the Supplier, or use in conjunction with a third party product. Enable Networks may, in its sole discretion, determine whether any Goods are defective.
13.4 All transport charges incurred in returning or replacing Goods are the responsibility of the Customer.
14.1 The Customer shall return Goods to Enable Networks in accordance with these Terms and Conditions and Enable Networks’ then current RMA policy (which is available to the Customer upon request). Any Goods returned pursuant to an RMA issued by Enable Networks must be returned to Enable Networks within five business days of the date of such RMA.
14.2 The Customer irrevocably authorises Enable Networks to carry out any necessary tasks related to the repair or replacement of Goods on behalf of the Customer under these Terms and Conditions.
14.3 Unless Enable Networks collects Goods using its own carrier, the Customer agrees that Enable Networks shall not be liable for any loss or damage to Goods returned to Enable Networks.
14.4 Except for Goods returned pursuant to clause 13 above, all returns are subject to Enable Networks’ sole and absolute discretion and may be subject to a 15% restocking fee at Enable Networks’ sole discretion.
15. Limitation of liability
15.1 Enable Networks’ liability for any direct loss or damage arising out these Terms and Conditions and any Contract shall be limited to, and shall under no circumstances exceed, the price paid by the Customer for the Goods giving rise to the claim (excluding VAT). Enable Networks shall have no liability under these Terms and Conditions or any Contract if Enable Networks has not received payment of the total invoice price of the Goods giving rise to the
15.2 Except as expressly provided in these Terms and Conditions, Enable Networks and its Suppliers shall not be liable to the Customer for any financial or other loss or damage caused to the Customer by reason of any representation, warranty (either express or implied), condition or other term, or any duty at common law; or for any special, indirect, incidental or consequential damages (including loss of profits, revenue, records or data, costs of
procurement of substitute Goods, damage to reputation or goodwill, or any matter beyond its reasonable control) or for any other claims for compensation however caused (whether caused by the negligence of Enable Networks, its employees, agents, Suppliers or otherwise) which arise out of or in connection with these Terms and Conditions or a Contract, even if Enable Networks or its Suppliers have been advised of the possibility of such loss, liability or damages.
15.3 Nothing contained herein shall be construed as excluding or limiting Enable Networks’ liability for death or personal injury caused by Enable Networks’ negligence, or for breach of implied title to Goods.
16. Intellectual property rights
16.1 The Customer acknowledges that the Goods are the intellectual property of the Suppliers. Nothing contained herein shall be deemed to grant any right or title to such intellectual property to the Customer. The Customer further agrees not to translate, reverse compile or disassemble any software and agrees to transfer to its buyers a copy of any licence agreements or other documents included with the Goods. The Customer must not remove,
alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Goods.
16.2 The Customer agrees that Enable Networks will not, and has no duty to, indemnify, defend or hold the Customer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection the actual or alleged infringement of a third party’s intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such
indemnification and defence to the Customer on a pass-through basis.
16.3 When making proposals and agreements with foreign governments which involve any Goods, the Customer will take all reasonable steps to ensure that the Supplier’s proprietary rights in such Goods receive the maximum protection available from such foreign government for commercial computer software and related documentation developed solely at private expense.
16.4 Nothing contained herein shall be construed as authorising or grant to the Customer any right or licence to use any logo, trademark or trade name of Enable Networks or its Suppliers, any licence of which shall be subject to separate agreement including any then current use policies of Enable Networks or its Suppliers, as appropriate.
17. Force majeure
17.1 Enable Networks shall not be liable to the Customer or be deemed in breach of these Terms and Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by a Force Majeure Event.
17.2 In the event of a Force Majeure Event: (a) Enable Networks shall, as soon as commercially practicable, notify the Customer of such Force Majeure Event PROVIDED THAT Enable Networks shall incur no liability for its failure to give such notice; (b) Enable Networks’ duty to perform shall be suspended for the duration of the Force Majeure Event; and (c) the time of Enable Networks’ performance shall be extended by a period equal to the duration of said Force Majeure Event.
17.3 If a Force Majeure Event continues for more than 90 days, either party may, by written notice to the other, cancel a Contract insofar as Goods remain undelivered under said Contract. Upon such cancellation, Enable Networks shall have no obligation to deliver and the Customer shall have no obligation to accept delivery of the undelivered Goods, but the Contract shall remain in full force and effect regarding all Goods delivered prior to the date of cancellation.
18. Compliance with laws
18.1 The Customer acknowledges that the Goods and any technical data related thereto is licenced or sold subject to and controlled by the export laws of the United States of America (“USA”) including its Export Administration Regulations, the European Union (“EU”) and countries within the European Free Trade Area (“EFTA”) (collectively the “Export Control Laws”) and the Customer hereby agrees not to export, re-export or otherwise distribute Goods, or direct Goods thereof, in violation of any Export Control Laws. The Customer agrees to advise its the Customers that the Goods are subject to and controlled by such Export Control Laws and that the USA government and/or the member states of the EU and EFTA may require licensing or other authorisation prior to export.
18.2 The Customer warrants that it will not export or re-export any Goods 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 the Customer has obtained prior written approval from the appropriate department of the USA government. The Customer further warrants that it will not export or re-export, directly or indirectly, any Goods to embargoed countries or sell Goods to companies or individuals listed on the Denied Persons List published by the USA Department of Commerce.
18.3 It is the Customer’s sole responsibility to obtain all appropriate approvals from the USA government and/or member states of the EU and EFTA prior to exporting such Goods, or any technical data related thereto, from the United Kingdom. Enable Networks shall not be responsible for any costs, liabilities or damages resulting from the Customer’s failure to obtain any such required authorisation. The Customer acknowledges that the Export Control Laws may change from time to time. It is the Customer’s sole responsibility to obtain guidance of counsel or other appropriate channels to ensure its compliance with these laws.
18.4 The Customer warrants that it will not to take any action or permit or authorise any action that will render Enable Networks liable for a violation of the USA Foreign Corrupt Practices Act (the “Act”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or Enable Networks in obtaining or retaining
business and: (a) will not violate or cause Enable Networks to violate such Act in connection with the sale and distribution of the Goods; and (b) will notify Enable Networks in writing if any of its owners, partners, principals, and officers are or become officials, officers or representatives of any government or political party or candidate for political office.
18.5 The Customer shall comply with EU Directives 2002/95/EC (Restriction on Hazardous Substances and 2002/96/EC dated January 27, 2003 (Waste Electrical and Electronic Equipment) (“WEEE”) generally and as enacted or transposed within each country into which Goods are imported, exported or otherwise distributed by the Customer, such obligation which shall include registering as a “producer” under applicable WEEE legislation. The
Customer shall notify Enable Networks in writing if it should export any of the Goods outside of the United Kingdom.
18.6 The Customer shall indemnify, defend and hold Enable Networks harmless from any violation or alleged violation by the Customer of the terms of this clause 18. Upon Enable Networks’ request, the Customer agrees to confirm, in writing, its compliance with all applicable Export Control Laws and the Act.
For 12 months following the date of any Contract hereunder, the Customer hereby agrees not to solicit or induce any employee of Enable Networks involved in the marketing, promotion, sale or distribution of Goods to the Customer to leave their employment or terminate or breach their contract
for services with Enable Networks (as the case may be) and the Customer shall not appoint, engage, contract or employ such employee to provide services to the Customer. If the Customer should breach this clause 19, the Customer agrees to pay Enable Networks, by way of liquidated damages,
a sum representing 40% of the employee’s annual salary (excluding benefits) and the Customer hereby agrees that such sum is a genuine and reasonable estimate of Enable Networks’s loss.
20. Confidential information
The Customer agrees that these Terms and Conditions, including any Contracts, and all Product related information including pricing and descriptions which are provided by Enable Networks to the Customer, regardless of the form in which it is provided, are considered the confidential information
of Enable Networks and its Suppliers (“Confidential Information”). The Customer shall hold such Confidential Information in strict confidence and not use or disclose such Confidential Information to any third party. The Customer further agrees to limit access to such Confidential Information to those
of its employees who have a need to know and are subject to written obligations of confidentiality at least as protective of the Confidential Information as these Terms and Conditions. All Confidential Information is provided “as is” without any representation or warranty, either express or implied, as
to its accuracy or completeness. Enable Networks agrees to hold, in strict confidence and not disclose to a third party, any sensitive information provided by the Customer which is marked as confidential, proprietary or using similar terms.
The Customer may not transfer or assign these Terms and Conditions to a third party without the prior written consent of Enable Networks.
These Terms and Conditions and all Contracts are personal to the parties and cannot be enforced by any person not a party to them. Accordingly, the provisions of the Contract (Rights of Third Parties) Act 1999 are excluded from applying to these Terms and Conditions and all Contracts.
Failure of Enable Networks to enforce any provision of these Terms and Conditions or a Contract shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these Terms and Conditions or a Contract.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Terms and Conditions will remain in full force and effect.
The Customer shall keep and maintain true and complete records pertaining to its performance of these Terms and Conditions or any Contract hereunder in sufficient detail to permit Enable Networks to accurately determine whether the Customer has fully complied with their terms. The Customer shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by Enable Networks and its representatives. The Customer shall maintain such records for at least three years after the end of the calendar year to which they pertain.
The Customer agrees that Enable Networks may collect, store and use the Customer’s data, including personal data, for the purpose of facilitating its marketing and sale of the Goods, and the Customer hereby consents to such collection, storage and use of the Customer’s data by Enable Networks for these purposes. Notwithstanding the foregoing, Enable Networks agrees not to share personal data with third parties without the Customer’s prior consent. The Customer further consents to the use of such data for communicating Product and promotional information to the Customer via email or other electronic means.
These Terms and Conditions are governed by the laws of England and Wales, and the Customer hereby agrees to submit to the exclusive jurisdiction of the English courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions.