Terms Of Sale

The terms and conditions set out in this document govern goods purchased from Xinit Systems Ltd. Please read this document carefully as it contains important information regarding your rights and obligations as well as limitations and exclusions pertaining to your purchase of goods and / or services from Xinit Systems Ltd. This document should be used in conjunction with P/N: 50003 - "Xinit Systems UK Limited Product Warranty" and P/N: 50005 - "Xinit Systems Professional Services Contract", both available upon request, wherever applicable.

P/N: 50004 Rev. A, June 2004

Definitions

  • Customer -- a person, firm or company buying or using Xinit's products
  • Consumer -- a Customer who is also a private person purchasing Products for private use
  • Xinit -- Xinit Systems Limited
  • Order Confirmation -- Xinit's formal written acknowledgement of the Product ordered by you
  • Price -- the total price of the Product and/or Services as stated in the Order Confirmation
  • Product -- hardware, Software, documents, consumables and any other materials as described in the Order Confirmation, which may include Xinit-branded products, Third Party Products and Services
  • Services -- the services to be provided by Service Providers as set out in the Order Confirmation which may include delivery and/or installation of Products, hosting and maintenance services
  • Service Providers -- Xinit, and/or its authorized third party service experts
  • Special Orders -- an order which includes Third Party Products that Xinit does not normally stock
  • Software -- any programs' instructions that control the operation of computer hardware including but not limited to operating systems and applications
  • Terms -- these terms and conditions including any amendments to it, that Xinit may make from time to time
  • Third Party Products -- products and materials (whether hardware, software or otherwise) from a third party

Application

  1. These Terms apply to all sales, orders and statements made by Xinit whether in brochures, price lists, adverts, quotations, on this website, verbally or otherwise.
  2. All other terms and conditions are excluded and by placing an order with Xinit the Customer confirms acceptance of these Terms.
  3. Any variations to these Terms shall only be valid if confirmed by Xinit in writing.
  4. The warranty terms applicable to any Product supplied to you are as set out in Xinit's standard warranty terms, a copy of which is available upon request.
  5. The technical support terms applicable to any Product supplied to you are as set out in Xinit's standard support terms, a copy of which is available upon request.

Orders / contract

  1. Orders may be placed by writing, via the Xinit website, by telephone or by fax. In the case of orders placed verbally, the Customer agrees to send Xinit a written order in confirmation of any such orders duly marked with any confirmation reference given by Xinit.
  2. Orders only become binding when accepted by Xinit by the provision of an Order Confirmation.
  3. When providing an Order Confirmation in respect of a Special Order Xinit shall be entitled to charge a 25% non-refundable deposit and where so charged, Xinit shall not action the order (including ordering the Third Party Product) until such deposit has been paid.
  4. The Customer shall check the Order Confirmation and immediately notify Xinit of any mistake in writing. Failing any such notification the details stated in the Order Confirmation will apply.
  5. Due to continuing technological advancements and fluctuations in supplier availability, Xinit reserves the right to alter the Product at any time. Xinit shall attempt to adhere to Customer specifications, however equivalent products or those with the nearest equivalent performance/specification may be substituted to ensure quality and performance.
  6. The Customer confirms that it will be the end user and does not intend to distribute the Product to third parties. Separate terms and conditions apply to reseller/OEM agreements.

Price and Payment Terms

  1. Promotional price lists and other advertising literature or material as used by Xinit are intended only as an indication of the price and range of products available and no prices, descriptions or other particulars contained therein shall be binding on Xinit unless and until such have been included in an Order Confirmation. Quotations provided by Xinit shall only be honoured (errors and omissions excluded) if in writing and for the period stated therein. If no period is stated, the quotation shall be honoured for 30 days.
  2. The Price is exclusive of Value Added Tax or any other taxes and any Services unless set out in the Order Confirmation.
  3. The Price is based on the cost to Xinit of supplying the Product and/or Services or any part thereof to the Customer. If before delivery of the Product there occurs any increase of such costs in respect of the Product or any part thereof which have not yet been delivered, Xinit may (in its sole discretion) amend the Price accordingly and notify such amendment to the Customer.
  4. Payment will be made before supply of the Product or the commencement of the Services or, if agreed, within 30 days of the date of Xinit's invoice. For the avoidance of doubt the time for payment on Xinit's invoice shall be of the essence. Xinit may suspend deliveries of the Product or provision of Services until it has received full payment. If payment is late the Customer shall pay interest on any unpaid amounts calculated at 5% above HSBC Bank Plc's base rate for the time being in force calculated on a daily basis (both before and after any judgment). In addition, the Customer shall reimburse Xinit for all costs incurred in the collection of the debt or the recovery of Product including Xinit's legal fees and disbursements on an indemnity basis.

Delivery / title / risk

  1. Unless included in the Order Confirmation, the Price does not include the delivery charges to the Customer and Xinit reserves the right to levy a charge for delivery to the destination stated in the Order Confirmation. The date of delivery in the Order Confirmation is approximate and Xinit reserves the right to deliver the Product in installments.
  2. Risk in the Product shall pass to the Customer on delivery.
  3. The Product shall remain the property of Xinit until such time as Xinit has received payment in full from the Customer.
  4. Until payment of the Price has been made the Customer must insure and store the Product separately from its other products and may not modify, pledge or sell the Product. In the event that the Customer breaches the provisions of this clause by selling the Product before title passes, the Customer shall become Xinit's agent and the proceeds of that sale shall be held on Xinit's behalf, separately from any other funds of the Customer. If payment in full is not made in accordance with these Terms Xinit may require the Customer to return the Product forthwith at the Customer's sole expense and if such requirement is not met immediately Xinit shall be entitled at any time and without notice to enter the premises occupied by the Customer and sever the Product from anything to which it is attached and take possession of and remove the same without being responsible for any damage caused thereby and without prejudice to any other remedy that may be available to Xinit.

Acceptance

  1. Upon receiving the Product (or after installation of the Product if installation is included in the Order Confirmation) it is the Customer's responsibility to inspect it for any defects and report any such defects to Xinit in writing within 3 working days. After this period, the Customer shall be deemed to have accepted the Product.
  2. In the case of the return of defective Product notified by the Customer to Xinit in accordance with clause 6.1 above or otherwise, such Product must be in its delivered condition together with all packaging, parts and instruction manuals supplied therewith and along with a return merchandise authorization number obtained in advance from Xinit.
  3. Upon receipt of a returned defective Product, Xinit will provide the Customer with a replacement Product at the earliest opportunity in the event that the Product cannot be promptly repaired.
  4. If Xinit agrees to the return of the Product (other than defective Product), such Product must be in its delivered condition (including but without limitation being unopened) together with all packaging, parts and instruction manuals supplied therewith and along with a return merchandise authorization number obtained in advance from Xinit. The costs of returning any Product in accordance with this clause shall be payable by the Customer.

Customer cancellation

  1. Requests by the Customer to cancel or amend any order as set out in an Order Confirmation or for the rescheduling of deliveries shall be made in writing and shall only be accepted by Xinit in writing. Xinit reserves the right to refuse to cancel any order once the order has been confirmed in an Order Confirmation or in particular any Special Order once the deposit has been paid.
  2. Consumers may cancel any order placed (whether or not confirmed in an Order Confirmation) at any time within 7 working days of receipt of that order by Xinit and receive a refund of the Price or any part thereof paid. To cancel any order, the Consumer must inform Xinit of such cancellation in writing, return the Product in its delivered condition immediately and at the Consumer's sole cost and risk. Any statutory consumer rights are unaffected by these Terms.
  3. If Xinit accepts the cancellation of an order in accordance with clause 7.1 or the return of the Product in accordance with clause 6.4 Xinit shall be entitled to apply a 15% restocking fee.

Services

  1. Services shall be provided at all times by Xinit or Service Providers and may, where appropriate, be provided by remote means such as via telephone or linking via the Internet.
  2. Response times are estimates and may vary according to the remoteness or accessibility of Product location.
  3. In order to be able to properly provide or perform the Services, the Service Provider may require that it examines the Product at either the Customers or the Service Providers premises. The Service Provider shall determine where such examination takes place.
  4. Unless stated otherwise, Services shall not include: work outside the hours of 9:00 AM to 6:00 PM, work at weekends or on public holidays, work in respect of Products excluded from warranty (howsoever such exclusion caused), changes to the configuration of the Product and/or preventative maintenance and/or the transfer of data or Software not set out in the Order Confirmation, relocation of Products, rectifying damage caused by viruses or work on Third Party Products (these will often have the benefit of a manufacturer or licensor warranty).
  5. Xinit has the expertise to integrate Third Party Products into its own to produce what is commonly referred to as Custom Factory Integration Products in accordance with the Customer's instructions and technical specifications. Any such integration shall be specified in the Order Confirmation provided that the Customer has provided sufficient information, details and specifications as Xinit shall reasonably require.
  6. Xinit owns any replacement Product or parts thereof used to repair Product until the Customer has paid for these unless the replacement or repair was conducted under warranty. Parts not critical to the Product function (e.g. hinges, doors, cosmetic features and frames) may not be serviced promptly.
  7. Any calls made to or from Xinit may be monitored and / or recorded for training purposes.
  8. Any warranty or other support requests that require on-site support must be made prior to 11.30 AM for on-site support to be provided the following business day.

Liability

  1. Xinit accepts liability for any private property loss or damage, death and/or personal injury caused by the negligence or deliberate misconduct of the employees, agents, subcontractors of Xinit. Except in the case of death and/or personal injury Xinit's liability in respect of these Terms is limited to the Price.
  2. Xinit does not accept liability for, and the Customer hereby fully indemnifies and holds harmless Xinit from and against any other form of loss, costs or damage, whether it be direct or indirect (irrespective of whether Xinit has been advised of the possibility of the same), which may arise as a result of the performance of any obligations under these Terms or resulting from or is incurred due to the action or inaction of the Customer (including but without limitation, failing to take regular back-ups of data or following the reasonable advice of a Service Provider).
  3. Xinit does not accept liability beyond the remedies set forth herein, including but not limited to any liability for products not being available for use or for lost or corrupted data.

Intellectual property

  1. The Customer hereby fully indemnifies and holds harmless Xinit from and against all loss, costs and liabilities resulting from any claim that use of any Third Party Product specified or provided by the Customer infringes the intellectual property rights of any third party.

Software

  1. Any and all Software of a third party supplied as a Product or part thereof is subject to the licence and warranty conditions of that third party. Xinit shall supply the licence and warranty applicable to such Software and the Customer shall comply with that licence and warranty.

Statutory restrictions

  1. The Product may include technology which is subject to restrictions (including but without limitation as to its export) whether under US and/or EU Law and the laws of any country to which it is delivered and the Customer shall abide by all these laws as may be in force from time to time.

Force majeure

  1. Neither party shall be liable for delays in performance (incl. delivery or Services) caused by circumstances beyond its reasonable control (including but without limitation strikes, terrorist acts, war, supplier / transport / production problems, failure or interruption of power or telecommunications networks, exchange fluctuations, governmental or regulatory action and natural disasters) and either party experiencing such circumstances shall notify the other upon becoming aware of the same and be entitled to a reasonable time extension for performance of its obligations. In the event that the circumstance in question lasts more than 2 months, the contract to which these Terms apply may be terminated by either party without compensation.

Confidentiality

  1. Each party must treat all information received from the other as confidential and treat it as it would its own confidential information.

Termination

  1. Xinit may terminate the contract to which these Terms apply with immediate effect by providing written notice if the Customer:

    1. fails to pay the Price in accordance with clause 4.4; or

    2. breaches or Xinit reasonably suspects that the Customer has breached export control laws.
  2. Either party may terminate the contract to which these Terms apply with immediate effect by providing written notice if the other:

    1. commits a material or persistent breach of the contract to which these Terms apply and, where such breach is remediable, fails to remedy such breach within 30 days of written notice from the other; or

    2. becomes insolvent or is unable to pay its debts as they fall due.

Customer's obligations

  1. The Customer shall be solely responsible for:

    1. the choice of Product and its suitability for any particular purpose;

    2. any specifications, requirements and instructions given to Xinit; and

    3. any administrative charges incurred contacting Xinit (including but without limitation telephone and postal charges).
  2. The Customer shall provide the Service Provider with all reasonable information, cooperation, facilities (including but without limitation electricity supply and telecommunications) and access to the Customer's premises to enable the Service Provider to perform the Services.

Data protection

  1. Any data (to which the Data Protection Act 1998 ``the Act'' applies) of the Customer that is held and/or transferred by Xinit shall be dealt with in strict accordance with the Act and the Customer hereby consents to this and further confirms that it has secured the consent of each and every individual which is the subject of such data to such holding and/or transfer.

Waiver

  1. The waiver by Xinit or any breach of any term hereunder shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.

General

  1. If any part of these Terms is found to be invalid or unenforceable by a court, the remainder is unaffected.
  2. Xinit may subcontract, assign or transfer its obligations or rights to a competent third party whether in whole or in part.
  3. The Customer may not assign or transfer any of its obligations or rights without the prior written consent of Xinit.
  4. Any notices served in accordance with these Terms shall be in writing and sent to the address of the party as last notified to the other or a legal officer of the receiving party (if known).

Jurisdiction

  1. These Terms are to be interpreted in accordance with the law of England and Wales and English courts shall have the non-exclusive jurisdiction in respect of any question or dispute arising hereunder.
  2. The Vienna Convention on Contracts for the International Sale of Goods is excluded.