Solid State Disks Ltd - Terms and Conditions of Sale

1. DEFINITIONS

a.	"Conditions" - these terms and conditions
b.	"Customer" - any purchaser or licensee of the Products
c.	"Hardware" - the computer equipment to be purchased
d.	"Products" - any Hardware or Software sold or licensed by Solid State Disks Ltd
e.	"SSD LTD" - Solid State Disks Ltd

2. TITLE TO THE HARDWARE

a.	Notwithstanding delivery, installation and acceptance, title to the Hardware shall not pass to the Customer but shall be retained by SSD LTD until full payment for the Products has been received by SSD LTD from the Customer.
Until such time as title in the Hardware has passed to the Customer, RDS:
b.	shall have absolute authority to retake, sell or otherwise deal with or dispose of any or part of the Hardware; and
c.	for the purpose specified in (b)(i) above, SSD LTD or any of its agents or authorised representatives shall with reasonable cause be irrevocably entitled at any time and without notice to enter upon any premises in which the Hardware or any part thereof is installed, stored or kept, or is reasonably believed so to be; and
d.	shall be entitled to seek a Court injunction to prevent the Customer from selling, transferring or otherwise disposing of the Hardware.

3. HARDWARE WARRANTY

Unless otherwise specified SSD LTD warrants to the Customer that the Hardware supplied hereunder by SSD LTD is free from defects of workmanship and materials for the period set out below which commences on installation by SSD LTD or on delivery of Hardware if not to be installed by SSD LTD. SSD LTD undertakes subject to Paragraphs (c), (d) and (e) below to repair, arrange for repair by OEM or, at its option, to replace the hardware purchased hereunder which RDS has on inspection found to be defective:
a.	for ninety (90) days in the case of repairs or spare parts sales;
b.	for a minimum of one (1) year and as specified by the manufacturer.
c.	Each claim by the Customer under this warranty shall be notified to SSD LTD within the warranty period specifying the serial number and date of purchase of Hardware and nature of defect. On notification, SSD LTD or its agents or representatives shall have the option of telephone diagnostics and remote resolution. Should further testing, inspection, repair or replacement be required, SSD LTD shall have the option of providing such service on-site at the Customer's location or of having the Hardware returned to SSD LTD or such other address as may be notified to the Customer freight pre-paid. Replacement parts or Hardware shall be sent by SSD LTD to the Customer ordinary freight pre-paid, subject always to (c), (d) and (e) below.
d.	In the event of any claim presented under warranty being found on investigation by SSD LTD either to be outside the scope or duration of this warranty or the fault not being confirmed, then the cost of such investigation and repair shall be borne by the Customer
e.	SSD LTD shall not be liable at any time for damage or defects in the Hardware or parts caused by:
	i. improper use or installation; or
	ii. use of the Hardware outside the specifications detailed in the documentation relating to the Hardware; or
	iii. outside the specific application of the Hardware; or
	iv. where Hardware has been repaired or modified by persons not authorised by RDS.

4. APPLICATION

Unless specifically agreed in writing and authorised by a Director of SSD LTD these Conditions shall supersede all Terms and Conditions of the Customer. These Conditions shall constitute the entire understanding between the parties and (for the avoidance of doubt) acceptance of deliveries of the Products hereunder shall constitute acceptance by the Customer of these Conditions. No liability shall attach to SSD LTD its agents or employees in respect of any representations made or advice given with regard to Products to be supplied unless confirmed in writing and signed by a Director of SSD LTD. SSD LTD shall not be obliged to accept any orders placed by the Customer and SSD LTD shall be under no legal obligation to fulfil any order until SSD LTD has accepted such order in accordance with clause 5.

5. PRICE

Unless a written quotation has been given (whereupon the price quoted will be fixed for a period of thirty days or such other period as is specified therein) the prices for the Products are subject to alteration without notice and the price charged to the Customer will be that applicable at the date of SSD LTD's acceptance of the order. Orders are not binding upon SSD LTD until accepted by SSD LTD. All prices are exclusive of Value Added Tax (and any similar tax) packing carriage insurance and installation. Where applicable these will be added as separate items on SSD LTD's invoice. SSD LTD shall not be considered to have accepted any order until SSD LTD has commenced delivery of the Product in question.

6. PAYMENT

a.	Unless otherwise notified to the Customer in writing by SSD LTD, the Customer shall pay for Products at the time of order. Alternatively where the Customer is invoiced by SSD LTD on the date of delivery for the Products, the Customer shall pay all invoices within thirty (30) days of the date thereof (time being of the essence). Terms of payment are within SSD LTD's sole discretion and unless otherwise agreed to by SSD LTD, payment may be received by SSD LTD prior to SSD LTD's acceptance of an order in accordance with these terms.
b.	SSD LTD reserves the right to charge interest at a rate of 3% per annum above National Westminster Bank base rate ruling from time to time on any payment or any part payment overdue calculated from the date due and to recover its expenses including legal fees and costs of collection and to suspend delivery, performance of any warranty or (at SSD LTD's option) forthwith to determine the same. SSD LTD has no obligation to provide service or support until SSD LTD has received full payment for the Product or services
c.	SSD LTD has no obligation to provide service or support until SSD LTD has received full payment for the Product or services
d.	SSD LTD has no obligation to provide service or support until SSD LTD has received full payment for the Product or services or support that the Customer has purchased. If payment of the Price is in any instance not made within the time prescribed by this clause, SSD LTD may, without further notice to the Customer and in addition to any other remedy provided by this Agreement or at law:
	i. suspend its further obligations to the Customer pursuant to this or any other agreement;
	ii. be deemed agent of the Customer for the purpose of recovering outstanding amounts owing to the Customer in relation to the Product and applying amounts received in reduction of the Customer’s indebtedness to SSD LTD.

7. SUPPLY, DELIVERY & RISK

a.	SSD LTD shall use reasonable endeavours to deliver the Product to the Customer at the Customer’s delivery address and by the requested delivery date.
b.	SSD LTD accepts no responsibility for late delivery of any order and, in particular, accepts no responsibility for any sale lost or jeopardised as a result of late delivery.
c.	SSD LTD’s obligation to supply Products under this Agreement is subject to:
	i. the availability to SSD LTD of the Products;
	ii. SSD LTD’s lead times for the supply of the Products.
d.	SSD LTD is entitled by notice to the Customer at any time to discontinue the production or supply of any of the Products.
e.	While SSD LTD will use reasonable efforts to ensure delivery occurs within the timeframe quoted by SSD LTD, SSD LTD is not liable for any loss or damage as a result of delays in delivery unless agreed in writing beforehand.
f.	Risk in the Product shall pass when the goods are delivered to the delivery address.

8. DAMAGES, SHORTAGES OR LOSS IN TRANSIT

a.	For SSD LTD installed Products, satisfactory completion of SSD LTD's standard test procedure and an Acceptance Form signed by the Customer and RDS will be sufficient to establish acceptance.
b.	In cases of suspected damage in transit the added packaging is retained for inspection; and
c.	The Products are handled by the Customer in accordance with SSD LTD's or the carrier’s conditions of carriage or handling stipulations. Where SSD LTD accepts responsibility under this clause SSD LTD shall at its option replace or repair any Products proved to SSD LTD's satisfaction to have been lost or damaged in transit.

9. ACCEPTANCE OF PRODUCTS

The Customer shall inspect the Products immediately on delivery and SSD LTD will accept responsibility for damages, shortage or loss in transit only if:
a.	Such loss or damage is noted on the consignment note or delivery document upon receipt, and copies provided to SSD LTD or is notified in writing to SSD LTD in cases of outwardly non visible loss or damage to unchecked Products to arrive in either case within five (5) working days from receipt of the Products by the Customer; and
b.	If the acceptance Form is not signed by the Customer within seven (7) days after physical installation of the Hardware and in the absence of written notification of valid reasons justifying non acceptance, the Customer shall be deemed to have accepted the Products on the eighth (8th) day.
c.	If installation is not performed by SSD LTD, SSD LTD shall be under no obligation to perform any acceptance test procedures and the date of acceptance shall be the date of delivery to the Customer.

10. LIMITATION AND EXCLUSIONS OF LIABILITY

a.	Except in relation to liability for personal injury (including sickness and death), SSD LTD shall be under no liability to the End User in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to these Terms and Conditions of Sale or in respect of a failure or omission on the part of SSD LTD to comply with its obligations under this Agreement.
b.	SSD LTD will not have any liability for any damages arising from the use of the products in any high risk activity, including, but not limited to, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, medical systems, life support or weapons systems. SSD LTD will not be liable for lost profits, loss of business, or other incidental, indirect, consequential, special or punitive damages, even if advised of the possibility of such damages, or for any claim by any third party except as expressly provided herein.
c.	SSD LTD, in all cases where a Mandatory Condition does not apply, limits its total liability to the Customer (and persons claiming through the Customer) in respect of all claims made by or through the Customer for any direct loss or damages, whether that loss arises under statute, contract, tort or equity, to the Price paid for the Products which are the subject of the claim.
d.	The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract (including fundamental breach or breach of a fundamental term).
e.	Neither SSD LTD nor the Customer may institute any action in any form arising out of this agreement more than eighteen (18) months after the cause of action has arisen, or in the case of non-payment, more than eighteen (18) months from the date of last payment.
f.	SSD LTD excludes all implied conditions and warranties except Mandatory Conditions.
g.	SSD LTD in all cases where a Mandatory Condition applies, limits its liability to the Customer (and persons claiming through the Customer) in respect of a claim arising out of a breach of a Mandatory Condition, at its option:
	i. in the case a claim arising in respect of a Product, to one or more of the following:
	(1) the replacement of the Product or the supply of equivalent Product;
	(2) the repair of the Product;
	(3) the payment of the cost of replacing the Products or acquiring an equivalent Product; or
	(4) the replacement of the Product or the supply of equivalent Product;
	ii.in the case of a claim arising in respect of any services provided by SSD LTD, to one of the following:
	(1) the supplying of the services again; or
	(2) the payment of the cost of acquiring the services again.
h.	SSD LTD is not liable to the Customer (or persons claiming through the Customer) for any loss suffered by the Customer (or persons claiming through the Customer) due to SSD LTD’s inability to comply with this Agreement as a result of accident, scarcity of materials, strikes, war, acts of God, government interference or any other cause beyond its control.

11. CONFIDENTIAL INFORMATION

Customer agrees to maintain in confidence and not disclose, reproduce or copy any materials, documentation or specifications which are provided to the Customer hereunder the Customer shall take all reasonable steps to ensure that its employees are bound by the same obligations and that such obligations ensure beyond any termination of employment with the Customer.

12. INTELLECTUAL PROPERTY RIGHTS

a.	If notified promptly in writing of any action (and all prior claims relating to such action) brought against the Customer, based on a claim that the Customer's use of Products infringes a United Kingdom patent or copyright, SSD LTD will defend such action at its expense and pay the costs and damages awarded, provided that SSD LTD shall have sole control of the defence of any such action and all negotiations for its settlement or compromise. At any time during the course of any litigation arising out of a claim of infringement for a United Kingdom patent or copyright, or if in SSD LTD's opinion, a Product is likely to become the subject of a claim of infringement of a United Kingdom patent or copyright, SSD LTD will at its option and expense either procure for the Customer the right to continue using the Product, replace or modify the same so that it becomes non-infringing, or grant the Customer a credit for the Product as depreciated and accept its return. Depreciation will be an equal amount per year over the lifetime of the Product as established by SSD LTD. SSD LTD will not have any liability to the Customer under any provision of this clause if the infringement or claim thereof is based upon:-
	i. Use of Products in combination with other equipment or software not supplied by SSD LTD; or
	ii. The use of Products in carrying out any patented process; or
	iii. Infringement as described in (c) below.
b.	The foregoing states the entire liability of SSD LTD with respect to infringement of patents or copyrights by Products or any part thereof or by their operation. No costs or expenses will be incurred for the account of SSD LTD without the prior written consent of SSD LTD.
c.	The Customer will hold SSD LTD harmless against any expense, judgement or loss of infringement of any patents, copyrights or trademarks which results from SSD LTD's compliance with Customer's designs specifications or instructions.

13. SPECIFICATIONS

SSD LTD reserves the right to change specifications of Products at any time and without notice and to supply Hardware and/or Software which differs from the specifications agreed between SSD LTD and Customer provided that such substitutions do not materially affect the performance of the Products.

14. TERMINATION

a.	SSD LTD shall have the right, without prejudice to any other remedies, at any time by giving notice in writing to the Customer to terminate forthwith this agreement, including any Software licence in any of the following events:-
	i. if the Customer fails to pay any sums to SSD LTD on the due date of payment; or
	ii. if the Customer commits any other breach of any of the Conditions provided that if the breach in question is one which the Customer can effectively remedy then the said notice of termination shall not be effective to terminate this agreement unless the Customer fails within thirty (30) days of the date of such notice effectively to remedy the breach complained of; or
	iii. if the Customer ceases to carry on business or substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due.

15. MISCELLANEOUS

a.	Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) provided that such a failure is due to causes beyond its reasonable control.
b.	Failure by SSD LTD to exercise or delay exercising any of these Conditions shall not constitute or be deemed to be a waiver of SSD LTD's rights hereunder nor prejudice SSD LTD's rights to take subsequent action.
c.	The headings in these Conditions are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of these Conditions.
d.	The invalidity or unenforceability for any reason of any part of these Conditions shall not prejudice the continuation in force of the remainder thereof.
e.	The Agreement set out in these Conditions shall not be assigned by the Customer without the prior written consent of SSD LTD. Any such attempt to assign shall be void.
f.	Any notice required to be given under these Conditions shall be in writing and shall be sent to the address of the Customer set out in each sales order (for notices to be sent to the Customer) or the registered office of SSD LTD (for notices sent to SSD LTD).
g.	Where the customer comprises two or more persons their liability and obligations to SSD LTD shall be joint and several.

16. RIGHTS OF THIRD PARTIES

Both parties expressly agree to waive any rights that they may have under the Contracts (Rights of Third Parties) Act 1999 to bring a claim in respect of any other agreement entered into between the parties to this Agreement in relation to the subject matter of this Agreement and that any third party mentioned in this Agreement either specifically or by implication shall be expressly excluded from bringing a claim under the said Act.

17. DATA PROTECTION

The information that you provide about your company to SSD LTD will be used by SSD LTD for the effective administration of its services and to communicate with you generally. Your details will only be disclosed outside of SSD LTD to SSD LTD's partners who help in the delivery of those services.

18. GOVERNING LAW

a.	These Conditions shall be governed by and construed in all respects in accordance with the laws of England and Wales and both the Customer and RDS hereby agree to the exclusive jurisdiction of the English Courts in the event of any dispute in relation thereto.

Solid State Disks Ltd, Terms and Conditions of Sale