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C103
GDS Technologies Ltd – Conditions of Sale
12.
TRANSFER OF PROPERTY AND RETENTION OF TITLE
Notwithstanding delivery to the buyer and notwithstanding
incorporation into the goods of materials supplied by
the buyer, the property in the goods supplied by GDS
shall remain the sole and absolute property of GDS as
legal and equitable owner, until such time as the buyer
shall have paid to GDS the contract price. The source
code and copyright of any software, patent, model right,
trade mark, design right, registered trade name and
copyright shall remain the property of GDS.
13. LIEN
GDS has a lien and a right to hold (in any chosen place)
goods and any tools or other materials supplied by the
buyer for all sums due on any account whatsoever by
the buyer to GDS, who may exercise such lien by disposing
of the goods on any such terms as GDS may think fit
after giving 28 days notice to the buyer. The expenses
of maintaining and exercising any lien shall be a debt
forthwith due to GDS from the buyer to GDS.
14. TERMINATION OF CONTRACT/AGREEMENT
GDS shall be entitled to terminate the contract/agreement
by notice in writing to the Buyer. If the buyer shall
make default in or commit any breach of any of his obligations
to GDS, or if any distress or execution shall be levied
upon the buyer, its property or assets, or if the buyer
shall make or offer to make any arrangements or composition
with creditors, or if any petition or receiving order
in bankruptcy shall be presented or made against the
buyer, or it the buyer shall be a company and any resolution
or petition to wind up such company’s business
shall be passed or presented, or if a receiver of such
company’s undertaking property or assets or any
part thereof shall be appointed, or the company undergo
reconstruction, amalgamation or take-over.
15. RIGHT TO SUB-CONTRACT
GDS shall be entitled to sub-contract the whole or any
part thereof of the contract, whether for the supply
of goods or services.
16. DIVISIBILITY CLAUSE
This contract is divisible. Each delivery made hereunder
shall be deemed to arise from a separate contract and
shall be invoiced separately; any invoice for a delivery
shall be payable in full in accordance with the terms
of payment provided for herein, without reference to
and notwithstanding any defect of default in delivery
of any other instalment.
17. HIMALAYA CLAUSE
No servant or agent or sub-contractor of GDS performing
the whole or part of the contract shall in any circumstances
whatsoever be under any liability whatsoever to the
buyer or the buyers principle for any loss, damage or
delay of any kind, arising or resulting directly or
indirectly from any act, neglect or default on his part
while acting in the course of or in connection with
his employment, and every exemption limitation and condition
hereunder is applicable to the servant, agent, or sub-contractor
and shall be available to and shall extend to protect
every such servant, agent or sub-contractor as aforesaid,
and for the purposes of this condition GDS shall be
deemed to be acting as an agent on behalf of and for
the benefit of all persons who are or may be GDS servant,
agent or sub-contractor, and all such persons shall
to this extent be or be deemed to be parties to the
contract.
18. FORCE MAJEURE
If the contract shall become impossible of performance
or otherwise frustrated by reason of war, invasion,
act of terrorism, hostilities (whether war be declared
or not), civil war, rebellion, revolution or civil strife,
consequent upon any of the said events, GDS shall be
relieved of all liabilities incurred under the contract
wherever and to the extent to which the fulfilment of
such obligations is prevented, frustrated or impeded
as a consequence of any such event, or by any statutes,
rules, regulations, orders or requisitions issued by
any Government department, Council or other duly constituted
authority, or from strikes, lockouts, breakdown of plant
or any other causes (whether or not of a like nature)
beyond the control of GDS.
19. CONFLICTING CONDITIONS
In the event of any stipulation contained in these terms
and conditions coming into conflict with any other stipulation
herein contained, GDS shall be entitled to the benefit
to that stipulation which is most favourable to GDS,
any rule of law to the contrary notwithstanding.
20. WARRANTY
GDS warrants to the Buyer that the Products will be
free from defects in material and workmanship for a
period of twelve months for parts and thirteen months
for finished products from the date of delivery to the
Buyer (the “Warranty Period”). Provided the
Buyer makes a full inspection of the Products immediately
upon receipt and thereafter gives GDS written notice
within fourteen days containing full particulars of
any defects it discovers and the circumstances in which
such defects occurred, GDS shall, at its sole option,
EITHER repair, replace OR give a credit for the price
of any such Products which examination confirms are
defective in performance, material or in workmanship
within the Warranty Period provided that the Buyer has
adhered to the payment provisions contained in section
7 hereof and FURTHER PROVIDED that:
(1) Carriage charges to and from GDS for repairs under
warranty will be at the Buyer’s expense. Site visits
are not covered under warranty, any on site work involving
GDS personnel will only be undertaken at the written
request and expense of the Buyer, charged at the current
GDS day service rate, including any delays beyond GDS
control and including travel, accommodation and living
costs.
For fixed systems (not portable or transportable) located
in the United Kingdom, GDS at its sole option may offer
on site warranty providing that: -
(a) the goods supplied by GDS, have been commissioned
on site (set working) by GDS personnel and that the
buyer is in receipt of a GDS commissioning report of
completion.
(b) an annual maintenance agreement has been offered
and accepted.
(c) the Buyer has adhered to the payment provisions
contained in section 7 hereof.
In all cases the goods warranty start date remains from
the date of delivery.
(2) Overseas Equipment Only - Where “time is of
the essence” the buyer will have the option to
purchase replacement equipment, returning the defective
items to GDS for assessment as defined in section 20,
following which a credit note will be issued on establishing
that the defect to the original equipment satisfies
the conditions of the warranty. Where new equipment
has been purchased, GDS reserve the right to make reasonable
adjustment to the value of the credit note accounting
for wear and tear and life expectancy of some components
that may be incorporated in the returned product.
(3) The repair or replacement of defective Products
during the Warranty period in accordance with section
20 shall not as regards such Products extend the period
of warranty therein provided.
(4) The provisions of section 20 do not extend to any
Products which have been subjected to misuse, accident
or improper installation, maintenance, application or
operation nor do they extend to products which have
been repaired, modified, fitted with unapproved (not
GDS supplied) parts or altered otherwise than by the
employees of GDS unless previously authorised in writing
by GDS.
(5) In no circumstances shall GDS liability to the buyer
for any breach of the warranty exceed the price paid
for the products with respect to which any claim is
made.
21. LIMITATION OF LIABILITY
With the exception of the terms specified in section
20, GDS shall accept no liability whatsoever to the
buyer, whether in contract, tort or otherwise for any
indirect, special, consequential or incidental loss
or damage of any kind suffered or incurred by the buyer
howsoever caused or arising, whether from breach or
non-performance of any of its obligations under the
contract or from the supply, installation, performance,
operation or use of the products, except liability for
death or personal injury arising from GDS proven negligence.
22. VARIATION
No variation by the buyer of any order can in any circumstances
whatsoever be accepted without the consent in writing
of an authorised representative of GDS.
23. BUYER’S RESPONSIBILITES
The Buyer acknowledges that it is responsible for the
selection of the Goods for their intended application,
and for giving instructions to the Seller as to the
configuration of the Goods, and that the Seller makes
no representation and gives no warranty as to the fitness
or suitability of the Goods (as configured in accordance
with the Buyer’s instructions) for any particular
application in use. |
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