Supplemental - Hardware and Software
Where a Customer purchases Hardware and/or Software from Trustack, these Supplemental Terms shall apply, in addition to those in the Agreement.
Interpretation
These additional definitions apply:
Hardware and/or Software | the hardware and/or software outlined in the Quotation (or otherwise in writing) to be purchased by the Customer from Trustack (including without limitation any part or parts of it) (and Hardware and Software may be used interchangeably).
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1.1 Trustack will use its reasonable endeavours to ensure that a Quotation is valid for a period of 14 (fourteen) days. The Customer acknowledges that each Quotation may contain products which are provided by third parties and, as such, quotes from third parties cannot always be guaranteed for 14 (fourteen) days and, therefore, each Quotation will set out the period for which it is valid. Trustack may withdraw a Quotation at any time by notice to the Customer.
1.2 Each order or acceptance of a quotation for Hardware and/or Software by the Customer shall be deemed to be an offer by the Customer subject to these Supplemental Terms. The Customer shall ensure that its order is complete and accurate.
1.3 A binding contract shall not come into existence between Trustack and the Customer unless and until Trustack issues a written order acknowledgement to the Customer, or Trustack delivers the Hardware and/or Software to the Customer (whichever occurs earlier).
1.4 Trustack may deliver or provide the Hardware and/or Software by separate instalments and may (at Trustack’s sole discretion) therefore be paid for, in instalments. In which case, each instalment shall be a separate contract and no cancellation or termination by either party of any one contract relating to an instalment shall entitle the Customer to repudiate or cancel any other contract or instalment.
1.5 No order which has been acknowledged by Trustack may be cancelled by the Customer, except with the agreement in writing of Trustack and provided that the Customer indemnifies Trustack in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by Trustack as a result of cancellation.
1.6 All orders are subject to credit approval by Trustack, which may, in its sole discretion at any time, change the Customer’s credit and payment terms.
2. Quantity and Description of the Hardware and/or Software
2.1 The quantity and description of the Hardware and/or Software shall be as set out in Trustack’s Quotation.
2.2 All samples, drawings, descriptive matter, specifications and advertising issued by Trustack, and any descriptions or illustrations contained in Trustack’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of these Supplemental Terms.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Trustack shall be subject to correction without any liability on the part of Trustack.
2.4 Trustack reserves the right (but does not assume the obligation) to make any changes in the specification of the Hardware and/or Software which are required to conform with any applicable legislation or, where the Hardware and/or Software is to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where Trustack is not the manufacturer of the Hardware and/or Software, Trustack shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to Trustack.
2.5 Trustack’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Hardware and/or Software.
3.1 The Customer shall:
3.1.1 co-operate with Trustack in all matters relating to the Hardware and/or Software;
3.1.2 provide in a timely manner such information as Trustack may request (including but not limited to shipping address, bank account numbers, Customer contact details, availability of resources to receive Hardware and/or Software, access information for installation and anything else Trustack may reasonably require), and ensure that such information is accurate in all material respects;
3.1.3 be responsible for the safeguarding of all data and shall take appropriate precautions against any loss of data;
3.1.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Hardware and/or Software;
3.1.5 assume full responsibility with regard to any licence agreement affected by, involved in or related to the use of the Hardware and/or Software and shall comply with all licence terms provided by the manufacturer of the Hardware and/or Software; and
3.1.6 comply with the applicable manufacturer’s guidelines for the Hardware and/or Software.
4.1 Subject to any special terms agreed in writing between the Customer and Trustack, Trustack shall invoice the Customer for the price of the Hardware and/or Software on the date it is ordered by the Customer.
4.2 The terms of payment shall be, in the case of Hardware and/or Software delivered or provided in the United Kingdom, within 30 (thirty) days of the date of Trustack’s invoice, whether or not delivery has taken place or title in the Hardware has passed to the Customer.
4.3 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Hardware and/or Software then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Trustack, Trustack shall be entitled to:
4.3.1 suspend any further deliveries or provision of Hardware and/or Software to the Customer;
4.3.2 suspend all further delivery, provision, installation or warranty service until payment has been made in full;
4.3.3 make a storage charge for any undelivered Hardware at its current rates from time to time;
4.3.4 stop any Hardware in transit; and
4.3.5 a general lien on all Hardware and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to Trustack. Trustack shall be entitled, on the expiry of 14 (fourteen) days’ notice in writing, to dispose of such Hardware or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
5. Delivery of Hardware and Acceptance
5.1 Trustack shall use its reasonable endeavours to deliver or provide the Hardware and/or Software on the date or dates specified in Trustack’s acknowledgement of order and/or Quotation, but any such date is approximate only. If no dates are so specified, delivery or provision shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery or provision of the Hardware and/or Software and Trustack is not in any circumstances liable for any delay in delivery, however caused.
5.2 Delivery of Hardware to any carrier appointed by the Customer shall constitute delivery to the Customer.
5.3 The Hardware may be delivered by Trustack in advance of the quoted delivery date on giving reasonable notice to the Customer.
5.4 Delivery shall be made during normal business hours (excluding bank or public holidays). Trustack may levy additional charges for any deliveries made outside such hours at the Customer’s request.
5.5 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Hardware and for the provision of all necessary access and facilities reasonably required to deliver and install the Hardware. If Trustack is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, Trustack may levy additional charges to recover its loss arising from this event.
5.6 The Customer shall be deemed to have accepted the Hardware when the Customer has had one week to inspect it after delivery and has not exercised in writing its right of rejection in accordance with paragraph 7.
5.7 Trustack shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to Trustack (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Hardware and that the Hardware has been handled in accordance with Trustack’s stipulations. Any remedy under this paragraph 5.7 shall be limited, at the option of Trustack, to the replacement or repair of any Hardware which is proven to Trustack’s satisfaction to have been lost or damaged in transit
6. Risk and Property (Hardware)
6.1 The Hardware shall be at the risk of Trustack until delivery to the Customer at the place of delivery specified in Trustack’s acknowledgement of order. The courier shall off-load the Hardware at the Customer’s risk.
6.2 Ownership of the Hardware shall pass to the Customer on the later of completion of delivery (including without limitation off-loading) either to the Customer or to its appointed carrier, or when Trustack has received in full in cleared funds all sums due to it in respect of:
6.2.1 the Hardware; and
6.2.2 all other sums which are, or which become due to Trustack from the Customer on any account.
6.3 Until ownership of the Hardware has passed to the Customer under paragraph 6.2, the Customer shall:
6.3.1 hold the Hardware on a fiduciary basis as Trustack’s bailee;
6.3.2 store the Hardware (at no cost to Trustack) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as Trustack’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Hardware; and
6.3.4 keep the Hardware insured on Trustack’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Trustack, ensure that Trustack’s interest in the Hardware is noted on the policy, and hold the proceeds of such insurance on trust for Trustack and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 In the case of delivery direct to an end-customer of the Customer before ownership of the Hardware has passed to the Customer, the Customer shall procure that its end-customer complies with the provision of paragraph 6.3 above.
6.5 The Customer’s right to possession of the Hardware before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 13 of the Agreement (Termination) arise or if the Customer encumbers or in any way charges the Hardware, or if the Customer fails to make any payment to Trustack on the due date.
6.6 The Customer grants Trustack, its agents and employees an irrevocable licence at any time to enter any premises where the Hardware is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by Trustack in repossessing the Hardware shall be borne by the Customer.
6.7 On termination of this Agreement for any reason, Trustack’s (but not the Customer’s) rights in this paragraph 6 shall remain in effect.
6.8 Trustack may appropriate payments by the Customer to such Hardware as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary and may make such appropriation at any time.
7.1 If it is found, on due examination by the Customer, that the Hardware and/or Software (or any part thereof) does not meet the relevant manufacturer’s specifications or it does not meet the Customer’s specifications, Trustack shall, subject to paragraph 7.6, be liable under the warranty, which is limited to Trustack (i) refunding the Customer’s at market price for such Hardware and/or Software (without interest and in any case limited to the purchase or service price), (ii) repairing such Hardware, or (iii) replacing such Hardware and/or Software; provided always, however, that in all cases the Customer must provide acceptable evidence of the defects and that defective Hardware and/or Software is returned to Trustack. Repair and replacement of Hardware and/or Software does not prolong the warranty term.
7.2 The Customer cannot claim any warranty rights if it is in default with its obligations set out in this Agreement. The Customer is also obliged to notify Trustack immediately, but in any event not later than one week after the Customer has obtained knowledge about any fault or defect with its customer or any end user.
7.3 Each warranty expires in accordance with the terms agreed with or the options purchased by the Customer at the point of sale.
7.4 Where the Customer wishes to renew or extend its warranty cover with Trustack then it shall request such renewal or extension at least 3 (three) months prior to expiry. Trustack reserves the right to refuse any such renewal or extension in its absolute discretion.
7.5 Trustack shall transfer to the Customer whatever transferable warranties and indemnities it receives from its vendor(s) including any transferable warranties and indemnities with respect to patent infringement, in which case no separate warranty will be granted by Trustack.
7.6 Trustack shall not be liable whatsoever or howsoever arising as a result of any act or omission that relates to:
7.6.1 incorrect sizing of the Hardware where the Customer provided the sizing or specification to Trustack or a third party vendor;
7.6.2 any incorrect information provided by the Customer to Trustack which results in incorrectly sized Hardware (regardless of the advice provided by Trustack, where the Customer has not paid for or asked Trustack to size the Hardware itself);
7.6.3 incorrectly sized Hardware provided based on third party vendor best practice where Trustack has not been instructed to size the Hardware.
8. Remedies
8.1 Trustack shall not in any circumstances be liable for any non-delivery of Hardware (even if caused by Trustack’s negligence) unless the Customer notifies Trustack in writing of the failure to deliver within 7 (seven) days after the scheduled delivery date.
8.2 Any liability of Trustack for non-delivery of the Hardware shall in all circumstances be limited to replacing the Hardware within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Hardware.
8.3 If Trustack’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer (other than by reason of Force Majeure under clause 18 of the Agreement), the Customer shall in all circumstances be liable to pay to Trustack all reasonable costs, charges or losses sustained by it as a result, subject to Trustack notifying the Customer in writing of any such claim it might have against the Customer in this respect.
8.4 In the event of any claim by the Customer under the warranty given in paragraph 7, the Customer shall notify Trustack in writing of the alleged defect. Trustack shall have the option of testing or inspecting the Hardware and/or Software at its current location or moving it to Trustack’s premises (or those of its agent or sub-contractor) at the cost of Trustack. If the Customer’s claim is subsequently found by Trustack to be outside the scope or duration of the warranty in paragraph 7, the costs of transportation of the Hardware, investigation and repair shall be borne by the Customer.
9.1 Where Trustack agrees to hire the Hardware to the Customer for a short period of time, it does so subject to this paragraph 9. The period of rental shall be set out in the Quotation, or as otherwise agreed in writing.
9.2 Trustack shall not, other than in the exercise of its rights under these Supplemental Terms or applicable law, interfere with the Customer’s quiet possession of the Hardware.
9.3 The Hardware shall at all times remain the property of Trustack.
9.4 The risk of loss, theft, damage or destruction of the Hardware shall pass to the Customer on delivery. The Hardware is the sole risk of the Customer during the rental period and the Customer shall maintain appropriate insurances to protect the Hardware to a value not less than its full replacement value.
9.5 The Customer shall immediately notify Trustack in the event of any loss, damage or accident to the Hardware and shall be responsible for all costs of repair and/or replacement of such Hardware that fall outside of any applicable manufacturer’s warranty.
9.6 The Customer shall:
9.6.1 ensure the Hardware is kept and operated in a suitable environment, used only for the purposes for which it is designed and operated in a proper manner by trained staff in accordance with the operating instructions;
9.6.2 (unless the Hardware is also covered by a Trustack support agreement) maintain at its own expense the Hardware in good and substantial repair;
9.6.3 make no alterations to the Hardware with prior written consent of Trustack;
9.6.4 not move the Hardware from the Customer’s site;
9.6.5 permit Trustack to inspect he Hardware at all reasonable times;
9.6.6 not sell or offer for sale or lend the Hardware, or allow creation of any charge, lien or other security interest in respect of it;
9.6.7 not do anything which might jeopardise Trustack’s title, right or interest in the Hardware;
9.6.8 not use the Hardware for any unlawful purpose; and
9.6.9 deliver up the Hardware at the end of the rental period, or on earlier termination of these Supplemental Terms.
9.7 The Customer shall indemnify Trustack against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Trustack arising out of or in connection with the Customer’s breach of paragraph 9.