1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Oracle Storage: Oracle Storage Systems Ltd, Unit 6 Minerva House, Calleva Park, Aldermaston, Berkshire, RG7 8NA
Customer: means the person, company, business or organisation named on the order form.
Deliverables: all goods and materials supplied by Oracle Storage as set out in the attached Purchase Order.
Purchase Order: the purchase order attached to these terms and conditions
Services: the installation of the Deliverables to be provided under the Purchase Order
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 A reference to writing or written includes faxes and e-mail.
1.6 References to conditions are to the conditions of the Purchase Order
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Purchase Order; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Purchase Order, confirmation of order, acceptance of a contract, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s obligation to purchase the Deliverables and the Services where applicable on these Conditions is established by the Customer’s signature of the Purchase Order.
2.3 The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any order form or other Document shall not govern the Purchase Order.
3. OBLIGATIONS OF ORACLE STORAGE
3.1 Oracle Storage shall use reasonable endeavours to deliver the Deliverables to the Customer, in accordance in all material respects with the Purchase Order.
3.2 Oracle Storage shall use reasonable endeavours to meet any performance dates specified in the Purchase Order but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Where Services are to be provided, Oracle Storage shall provide the Services with the skill, care and diligence that can be reasonable be expected of a professional contractor experienced in the provision of the services of a comparable nature.
3.4 When providing the Services Oracle Storage shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customers premises and that have been communicated to Oracle Storage provided that it shall not be liable under the Purchase Order if, as a result of such observation, it is in breach of any of its obligations under the Purchase Order.
3.5 Oracle Storage shall not be liable for any breach or alleged breach of their obligations to provide the Services and Deliverables under the Purchase Order if it results directly or indirectly from any failure by the Customer to fulfil the obligations contained in the Purchase Order.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with Oracle Storage in all matters relating to the Services;
(b) provide Oracle Storage, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, and other facilities as reasonably required by Oracle Storage.
(c) inform Oracle Storage of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;
4.2 If Oracle Storage performance of its obligations under the Purchase Order is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Oracle Storage shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
4.3 The Customer shall be liable to pay to Oracle Storage, on demand, all reasonable costs, charges or losses sustained or incurred by Oracle Storage (including, but not limited to, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Purchase Order, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
4.4 The Customer shall inspect the Deliverables immediately on delivery and shall within 3 days from such inspection give notice in writing to Oracle Storage of any defects in the Deliverables. If no notice is received, the Deliverables will be deemed as accepted.
5. CHARGES AND PAYMENT
5.1 In consideration of the provision of the Deliverables and Services by Oracle Storage, the Customer shall pay the charges as set out in the Purchase Order,
5.2 The total price for the Deliverables and the Services (if applicable) shall be the amount set out in the Purchase Order. The total price shall be paid to Oracle Storage without deduction or set-off
5.3 The parties agree that Oracle Storage may review and increase the charges set out in the Purchase Order provided that any increase is notified to the Customer in writing within 28 days of the proposed date of the increase.
5.4 The Customer shall pay each invoice submitted to it by Oracle Storage, in full within 30 days of receipt of each invoice
5.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Oracle Storage on the due date, Oracle Storage may charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the Royal Bank of Scotland accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement and the Customer shall pay the interest immediately on demand. Oracle Storage may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
5.6 Time for payment shall be of the essence of the Purchase Order.
6. TITLE AND RISK
6.1 Until payment is made in full under the Purchase Order title to the Deliverables shall remain with Oracle Storage.
6.2 The risk in the Deliverables shall however pass to the Customer on delivery (or storage at the Customer’s site) and the Customer shall promptly affect and maintain in the joint names of the parties insurance in the Deliverables against loss or damage for the full price under the Purchase Order until payment is received.
6.3 In the event that the Customer shall be unable to accept delivery of the Deliverables at the time that the Deliverables are ready for delivery Oracle Storage shall store the Deliverables at its premises if storage facilities are available until actual delivery and the Customer shall be liable for the reasonable costs (including insurance) for such storage.
7. WARRANTIES
7.1 Oracle Storage give no warranties whatsoever as to the condition of or fitness for purpose of the Deliverables.
8. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
8.1 This Condition 10 sets out the entire financial liability of Oracle Storage (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Deliverables or any part of them; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Purchase Order.
8.2 Nothing in these Conditions limits or excludes the liability of Oracle Storage:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Creative.
8.3 Subject to conditions 10.1 and 10.2, Oracle Storage shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.4 Oracle Storage’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Purchase Order shall be limited to the price paid for the Deliverables and Services (where applicable)
9. FORCE MAJEURE
9.1 Oracle Storage shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Oracle Storage or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of manufacturers, suppliers or subcontractors.
10. VARIATION
10.1 No variation of the Purchase Order or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
11. WAIVER
11.1 A waiver of any right under the Purchase Order is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Purchase Order or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
11.2 Unless specifically provided otherwise, rights arising under the Purchase Order are cumulative and do not exclude rights provided by law.
12. SEVERANCE
12.1 If any provision of the Purchase Order (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Purchase Order, and the validity and enforceability of the other provisions of the Purchase Order shall not be affected.
12.2 If a provision of the Purchase Order (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
13. ENTIRE AGREEMENT
13.1 The Purchase Order constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
13.2 Each party acknowledges that, in entering into the Purchase Order, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
13.3 Nothing in this condition shall limit or exclude any liability for fraud.
14. RIGHTS OF THIRD PARTIES
14.1 A person who is not a party to the Purchase Order shall not have any rights under or in connection with it.
15. NOTICES
15.1 Any notice required to be given under the Purchase Order shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 1, or as otherwise specified by the relevant party by notice in writing to the other party.
15.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address referred to in the Purchase Order or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
15.3 This Condition shall not apply to the service of any proceedings or other documents in any legal action.
15.4 A notice required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
16. GOVERNING LAW AND JURISDICTION
16.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
16.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.
