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 HD Forensic
e. "Software" - the software to be purchased and related materials, updates and enhancements developed by HD Forensic or third parties and supplied by HD Forensic.
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 HD Forensic until full payment for the Products has been received by HD Forensic from the Customer.
b. Until such time as title in the Hardware has passed to the Customer, HD Forensic:
i. shall have absolute authority to retake, sell or otherwise deal with or dispose of any or part of the Hardware; and
ii. for the purpose specified in (b)(i) above, HD Forensic 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
iii. 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 HD Forensic warrants to the Customer that the Hardware supplied hereunder by HD Forensic is free from defects of workmanship and materials for the period set out below which commences on installation by HD Forensic or on delivery of Hardware if not to be installed by HD Forensic. If the Customer delays installation by HD Forensic for more than 30 days from delivery, installation shall be deemed to have occurred on the thirtieth day following delivery. HD Forensic undertakes subject to Paragraphs (c), (d) and (e) below to repair or, at its option, to replace the hardware purchased hereunder which HD Forensic has on inspection found to be defective:
i. for ninety (90) days in the case of upgrades and spare parts sales;
ii. for a minimum of one (1) year and as specified by the manufacturer in the case of printers, workstations and peripherals; and
iii. and otherwise for three (3) years for servers provided that HD Forensic may vary the warranty periods and service level at its discretion from time to time as published on our website.
b. Each claim by the Customer under this warranty shall be notified to HD Forensic within the warranty period specifying the serial number and date of purchase of Hardware and nature of defect. On notification, HD Forensic or its agents or representatives shall have the option of telephone diagnostics and remote resolution. Should further testing, inspection, repair or replacement be required, HD Forensic shall have the option of providing such service on-site at the Customer's location or of having the Hardware returned to HD Forensic or such other address as may be notified to the Customer freight pre-paid. Replacement parts or Hardware shall be sent by HD Forensic to the Customer ordinary freight pre-paid, subject always to (c), (d) and (e) below.
c. On-site service is only available within the UK mainland and islands connected by road bridges. Onsite service for monitors will usually be a permanent exchange with similar new or refurbished as new monitors.
d. In the event of any claim presented under warranty being found on investigation by HD Forensic 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. HD Forensic shall not be liable at any time for damage or defects in the Hardware or parts caused by:
i. improper use or installation (if not installed by HD Forensic); 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 HD Forensic.
4. SOFTWARE WARRANTY
a. In the case of software produced by HD Forensic ("HD Forensic software") HD Forensic software is warranted to conform substantially to its published functional specifications for a period of ninety (90) days from the date of installation. HD Forensic will during the said period, at its own expense, correct any such non-conforming software provided that the Customer has notified HD Forensic and upon inspection HD Forensic has found the software to be non-conforming. The Customer's sole and exclusive remedy under this warranty will be limited to such correction. This warranty is subject to the following conditions:
i. Any modification of the software by any persons not authorised by HD Forensic shall void this warranty.
ii. Damage resulting from or aggravated by negligence or misuse is excluded.
iii. This warranty is subject to the Customer following the procedures (if any) specified by HD Forensic from time to time for fault recording.
iv. The Customer reporting any faults in the software within seven (7) days of the fault becoming apparent and co-operating with HD Forensic in carrying out such diagnostic and test routines as HD Forensic may require in accordance with HD Forensic's instructions.
v. The Customer returning to HD Forensic, if so required by HD Forensic, at its own expense the software suitably packed.
b. In the case of non HD Forensic software ("Non HD Forensic software"), HD Forensic will use reasonable endeavours at its own expense to procure that the Customer will have the benefit of any warranty given by a Third Party in respect of non HD Forensic software delivered subject to the Customer complying with the conditions of such warranties.
Unless specifically agreed in writing and authorised by a Director of HD Forensic 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 HD Forensic 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 HD Forensic.
6. CANCELLATION / RETURNS
If for any reason the Customer is unhappy with any purchase, the Customer shall be entitled to return it to HD Forensic, at the Customer's expense, in its original condition within 28 days of the date the relevant item is received by the Customer, unopened (with any seals and shrink-wrap intact) and HD Forensic will issue a full refund for the price paid for the item.
The Customer must ensure the Product delivery note; the customer's name and address are enclosed with the returns package to enable HD Forensic to identify the Customer and the returns package. Provided the Customer has complied with the provisions of this and paragraph 6 (Cancellation), the Customer will be liable only for the cost of return of the Product to HD Forensic. The Customer must take reasonable care of the Product whilst it is in the Customer's possession and ensure it is appropriately marked for safe return to HD Forensic.
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 HD Forensic's acceptance of the order. Orders are not binding upon HD Forensic until accepted by HD Forensic. 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 HD Forensic's invoice.
Unless otherwise notified to the Customer in writing by HD Forensic, the Customer shall pay for Products at the time of order. Alternatively where the Customer is invoiced by HD Forensic 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 HD Forensic's sole discretion and unless otherwise agreed to by HD Forensic, payment may be received by HD Forensic prior to HD Forensic's acceptance of an order. HD Forensic reserves the right to charge interest at a rate of 3% per annum above HSBC 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 HD Forensic's option) forthwith to determine the same. HD Forensic has no obligation to provide service or support until HD Forensic has received full payment for the Product or services or support that the Customer has purchased.
9. DELIVERY AND INSTALLATION
a. Dates for delivery of the Products are estimates only and are subject to HD Forensic's availability schedule. HD Forensic shall make every reasonable effort to meet any delivery date(s) acknowledged but shall not be liable for failure to meet such date(s).
b. Where HD Forensic installs Hardware, HD Forensic shall perform the standard inspection diagnostic checks. For Hardware, designated by HD Forensic as Customer installable the Customer shall be responsible for the installation of Hardware in accordance with instructions provided by HD Forensic.
c. All deliveries shall be made between 09.00 hours and 17.00 hours ("working hours") Monday to Friday inclusive excluding Public Holidays. If the Customer requires delivery to be made outside such times an additional charge may be payable. HD Forensic reserves the right to make partial deliveries.
10. DAMAGES, SHORTAGES OR LOSS IN TRANSIT
The Customer shall inspect the Products immediately on delivery and HD Forensic 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 HD Forensic or is notified in writing to HD Forensic 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. 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 HD Forensic's or the carriers conditions of carriage or handling stipulations.
Where HD Forensic accepts responsibility under this clause HD Forensic shall at its option replace or repair any Products proved to HD Forensic's satisfaction to have been lost or damaged in transit.
11. ACCEPTANCE OF PRODUCTS
a. For HD Forensic installed Products, satisfactory completion of HD Forensic's standard test procedure and an Acceptance Form signed by the Customer and HD Forensic will be sufficient to establish acceptance.
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 HD Forensic, HD Forensic 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.
12. PASSING OF THE RISK
Subject to Clause 6 risk of loss and damage shall pass from HD Forensic to the Customer upon delivery of Products to the Customer or its agent.
13. 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 endure beyond any termination of employment with the Customer.
14. HD FORENSICS LIABILITY
a. Products have been manufactured or developed by HD Forensic or third parties to standard specifications. The Customer accepts that HD Forensic is acting only as a supplier and that it is the Customer's responsibility to verify that the Hardware and software will be suitable for its own requirements. There are no warranties, conditions, guarantees or representations as to description merchantability or fitness for a particular purpose or other warranties, conditions, guarantees or representations whether express implied by statute or otherwise oral or in writing except as provided herein and except as to statute implied terms as to title.
b. Notwithstanding (a) above the remedies set out in this Agreement do not apply to consumer transactions except in so far as they add to Customer's rights implied by statute. In relation to such transactions the rights and obligations of HD Forensic and the Customer in respect of defects in any Products supplied by HD Forensic to the Customer under this agreement, the fitness for any particular purpose of such Products and the correspondence of such Products with any description or sample shall be determined by the Terms and Conditions implied by Statue.
c. Notwithstanding (a) and (b) above all rights which the Customer may have under the Consumer Protection Act 1987 and the Consumer Protection (Distance Selling) Regulations 2000 are in addition to those set out in this Agreement.
d. If HD Forensic is unable other than through the act or default of the Customer within a reasonable time to replace or repair the defective Hardware or correct non-conforming software in accordance with the warranty set forth herein and where the Hardware or software in question is totally unusable due to the defect or non-conformity the Customer may reject it and upon its return to HD Forensic 's premises is entitled to recover the purchase price of the Hardware or the license fee for the software as appropriate.
e. HD Forensic shall be liable for death or personal injury arising from the use of Products to the extent that it results from the negligence of HD Forensic or its employees. HD Forensic shall also be liable to the Customer for any other direct loss of or damage to tangible property caused solely by the negligence of HD Forensic or its employees subject always to the maximum aggregate liability of HD Forensic under this Agreement or in connection with the supply of any products or services under it, whether in respect of contract, tort or otherwise in relation to any successful claim made on by the Customer not exceeding the amount received by HD Forensic from the Customer in respect of sale of the products and services to which the claim relates.
f. The Customer agrees that HD Forensic will not be liable for any loss arising out of the provision of goods or services by any company organizational person other than HD Forensic or for any loss caused by the Customer's failure to perform his obligations in relation to this agreement.
g. HD Forensic shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or of data) in connection with or arising out of the supply, functioning or use of the Hardware or the software even if HD Forensic shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided for in this agreement.
h. Except in respect of the liability of HD Forensic for death or personal injury resulting from the negligence of HD Forensic or its employees or a claim under (b) or (c) above or in respect for a claim for non-payment of monies due under this agreement no action regardless of form arising out of the transactions in relation to this agreement may be brought by either party more than 2 years after the cause of action has accrued.
15. EXPORT CONTROL
Under regulations governing United Kingdom trade and by virtue of its agreements with suppliers, HD Forensic requires to be pre-notified of shipments outside the United Kingdom. Customer is required to obtain all necessary licenses prior to export. Delivery of Products is subject to all such authorisations being available at the time of delivery. HD Forensic will provide guidance and required data or at its option seek to obtain the relevant licenses on behalf of the end user.
HD Forensic 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 HD Forensic and Customer provided that such substitutions do not materially affect the performance of the Products.
a. HD Forensic 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 license in any of the following events:-
i. if the Customer fails to pay any sums to HD Forensic 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.
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 HD Forensic to exercise or delay exercising any of these Conditions shall not constitute or be deemed to be a waiver of HD Forensic 's rights hereunder nor prejudice HD Forensic'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 HD Forensic. 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 HD Forensic (for notices sent to HD Forensic).
g. Where the customer comprises two or more persons their liability and obligations to HD Forensic shall be joint and several.
19. 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.
20. DATA PROTECTION
The information that you provide about your company to HD Forensic will be used by HD Forensic for the effective administration of its services and to communicate with you generally. Your details will only be disclosed outside of HD Forensic to HD Forensic's partners who help in the delivery of those services.
21. GOVERNING LAW
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 HD Forensic hereby agree to the exclusive jurisdiction of the English Courts in the event of any dispute in relation thereto.
2nd March 2011
17th January 2011
30th September 2010
12th May 2010
4th May 2010