1. DEFINITIONS
1.1 “Customer” means any client or customer of Positive Computing to which Positive Computing may agree to supply Products.
1.2 “Positive Computing” means Positive Computing Limited of 400 Thames Valley Park Drive, Thames Valley Park, Reading, Berkshire RG6 1PT or any subsidiary or associated company.
1.3 “Products” means goods or services including but not limited to computer hardware and software items to be supplied by Positive Computing to the Customer.
1.4 “Third Party Software” means all software owned by or licensed to the Customer from a third party owner (whether or not supplied by Positive Computing) and which comprises the Products or part of the Products.
1.5 References to a Clause are to clauses or sub-clauses in these terms and conditions.
1.6 The headings in these terms and conditions are for ease of reference only and shall not affect their interpretation or construction.

2. GENERAL
2.1 These terms and conditions shall apply to all contracts for the supply of Products by Positive Computing to the Customer and shall prevail over any terms and conditions stipulated by the Customer. No amendments to these terms and conditions shall be effective unless expressly agreed in writing and signed by a director of Positive Computing.
2.2 All orders placed with Positive Computing by the Customer for Products shall constitute an offer to Positive Computing, under these terms and conditions, subject to availability of the Products and to acceptance of the order by Positive Computing’s authorised representative.

3. INDEPENDENT CONTRACTOR
The relationship between Positive Computing and the Customer is that of independent contractor and neither party is the agent of the other.

4. DISPATCH
4.1 Any time quoted for dispatch is to be treated as an estimate only. Dispatch may be postponed because of conditions beyond Positive Computing’s reasonable control, and in no event shall Positive Computing be liable for any damages or penalty for delay in dispatch or delivery.
4.2 Risk shall pass to the Customer at the time the Products are dispatched by Positive Computing. Positive Computing accepts no liability for loss or damage caused by the carrier.
4.3 If Products have not been received, the Customer must notify Positive Computing within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.

5. CANCELLATIONS AND RESCHEDULING
Subject to Clause 8.2, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by Positive Computing if made at least 12 hours before dispatch of the Products, shall be subject to acceptance by Positive Computing (which Positive Computing may give or withhold at its sole discretion) and, if accepted, shall be subject to a reasonable administration charge by Positive Computing. The Customer hereby agrees to indemnify Positive Computing against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of any cancellation or rescheduling of the order.

6. PRICING
6.1 Catalogues, price lists and other advertising literature or material as used by Positive Computing are intended only as an indication as to the price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on Positive Computing.
6.2 All prices are given by Positive Computing at the time of the order are ex-works (as defined in Incoterms 1990) and the Customer is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to Positive Computing of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in the cost to Positive Computing of supplying any Products which have not yet been delivered, the price payable by the Customer may (at Positive Computing’s discretion) be increased accordingly.
6.4 All prices are exclusive of Value Added Tax and any other applicable taxes or levies, all of which shall be payable by the Customer in addition to the price.

7. PAYMENT TERMS AND PROPERTY IN GOODS
7.1 Invoices will be raised and dated by Positive Computing on the date of dispatch of the Products. Unless otherwise specifically agreed invoices will be payable by the Customer 30 days from the date of invoice.
7.2 If the Customer fails to pay any sum due under the contract on or before the due date for payment Positive Computing shall be entitled until payment has been made in full (without prejudice to its other rights and remedies):
7.2.1 to charge interest at the rate of 1.5 per cent. per month from the due date for payment; and/or
7.2.2 to rescind any agreement as to credit and require payment against invoice; and/or
7.2.3 to suspend or cancel all further deliveries of Products and performance of any services ordered by the Customer.
7.3 Notwithstanding dispatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these terms and conditions, no property in or title to any goods comprised in the Products shall pass to the Customer until the Customer has made full and unconditional payment of all sums due to Positive Computing under the contract in respect of such goods. If payment for such goods is overdue in whole or in part or in the event of termination of the contract under Clause 13 Positive Computing shall be entitled (without prejudice to its other rights or remedies) to recover the goods by entry into and removal from the Customer’s premises, and the Customer hereby irrevocably consents to the entry by Positive Computing into the Customer’s premises for that purpose..
7.4 Positive Computing reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Positive Computing reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.

8. SPECIFICATION OF PRODUCTS
8.1 Positive Computing will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. Positive Computing will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as from time to time improved, substituted or modified. Positive Computing reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or the return of such orders.

9. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
9.1 No title or ownership of software products or any Third Party Software licensed to the Customer is transferred to the Customer under any circumstances. The Customer hereby acknowledges that all proprietary rights in any Third Party Software supplied to it by Positive Computing including (but not limited to) any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by Positive Computing (including if so required the execution and return of a Third Party Software licence document).The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner. The Customer further agrees to indemnify Positive Computing in respect of any loss, liability, costs, charges or expenses suffered or incurred by Positive Computing, including (but without limitation) as a result of any proceedings instituted by a Third Party Software owner, as a result of any breach by the Customer of any such software licence or the terms of this Clause 9.2.

10. RETURNS
10.1 Positive Computing reserves the right to levy an administration charge in respect of the rotation of Products and returns.
10.2 Returns may only be made subject to the following: (a) if prior authority has been obtained from Positive Computing (which may be given or withheld at Positive Computing’s sole discretion); (b) if within 30 days of the date of Positive Computing’s invoice; (c) subject to Positive Computing’s stock rotation policy; (d) the Products must be properly packed; (e) the Products must be in a saleable condition; (f) the Products must be accompanied by a list; (g) the Products must still be covered by warranty (see Clause 11).
10.3 Positive Computing reserves the right to reject any Products, which do not comply with the conditions, set out in Clause 10.2.
10.4 If Positive Computing nevertheless agrees to accept any Products returned which are not in a saleable condition, Positive Computing reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.

11. EXCLUSION FROM MAINTENANCE
11.1 Positive Computing’s obligations to provide maintenance services is contingent upon the proper use of all computer and associated equipment covered by the applicable service agreement between the parties and it shall not be obliged to furnish maintenance services in respect of any equipment that has: (a) been subjected to neglect, misuse, improper programming or unusual physical or electrical stress; (b) maintained or repaired (or attempts to do so have been made) by other than Positive Computing’s personnel without the prior approval of Positive Computing (such approval not to be unreasonably withheld or delayed)

12. WARRANTY
121 Positive Computing warrants that it has good title to or licence to supply all Products to the Customer.
12.2 If any part of any hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products provided that no unauthorised modifications to the Product or to the system of which the Product forms part have taken place. Positive Computing is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.
12.3 All software Products supplied by Positive Computing are supplied “as is” and the sole obligation of Positive Computing in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that the software should fail to conform to product description provided always that the Customer notifies Positive Computing of any such non-conformity within 90 days of the date of delivery of the applicable software Product.
12.4 If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to Clause 12.2 or 12.3, Positive Computing will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Positive Computing will not consider any claim for compensation, indemnity or refund unless liability, if any, has been established or agreed with the manufacturer (or, where applicable, any insurance company). Under no circumstances shall the Customer be entitled to withhold or set off any part of Positive Computing’s price or charge for any Products until Positive Computing has issued a corresponding credit note.
12.5 To the maximum extent permitted by applicable law the Customer acknowledges that Positive Computing’s obligations and liabilities in respect of the Products are exhaustively defined in these terms and conditions, the written contract incorporating them and (if applicable) Positive Computing’s terms and conditions for internet-based services. These express obligations and warranties made by Positive Computing are in lieu of and to the exlusion of all warranties, conditions or obligations express or implied of any kind including (without limitation) as to the condition, quality, fitness or description of the Products are expressly excluded and, save as expressly provided in these terms and conditions, neither the Customer nor any other person shall have any claim against Positive Computing.

13. INDEMNITIES AND LIMITS OF LIABILITY
13.1 The Customer shall indemnify and keep Positive Computing and its employees fully indemnified in respect of all loss, liability, costs, claims or expenses (including, but without limitation, pursuant to any claims by third parties) which arise out of or in connection with any act or thing done or omitted to be done by Positive Computing or its employees on the instructions of the Customer or its authorised representative.
13.2 Positive Computing accepts liability for loss or physical damage to tangible property of the Customer caused by the negligence of Positive Computing or its agents or sub-contractors, in each case up to a limit equal to 125% of the sum payable to Positive Computing under the contract in question in respect of any one event or series of events. Further, Positive Computing does not in any way seek to exclude or limit any liability to the Customer in respect of death or personal injury caused by any such negligence or in respect of any damage for which Positive Computing is liable under the Consumer Protection Act 1987.
13.3 Positive Computing shall not be liable for any loss of profits or consequential loss suffered or incurred by the Customer whether or not as a result of negligence or failure to perform. Positive Computing shall have no liability to any third party in connection with the Products or any services in relation to the Products or otherwise arising out of or in connection with the contract relating to the supply of the Products and the
Customer agrees to keep Positive Computing indemnified in respect of any such claim.

14. TERMINATION FOR CAUSE
Any contract to which these terms and conditions apply may (without prejudice to any other rights or remedies of the parties) be terminated forthwith by notice in writing:
14.1 by Positive Computing if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 7.2;
14.2 by either party if the other fails to perform any of its obligations under the contract in question and such failure continues for a period of 14 days after written notice thereof;
14.3 by either party if the other is involved in any legal proceedings concerning its solvency, or ceases or threatens to cease trading, or enters into liquidation, administration or receivership, or makes or proposes any arrangement with creditors, or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986.
14.4 Any termination of any contract pursuant to this clause 13 shall not affect any accrued rights or liabilities of either party.

15. EXPORT AND/OR RE-EXPORT LIMITATION
Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States in force from time to time and regardless of any disclosure made by the Customer to Positive Computing of an ultimate destination for any Products, the Customer will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.

16. MISCELLANEOUS
16.1 No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
16.2 The rights of the Customer under any contract with Positive Computing shall not be assignable without the prior written consent of Positive Computing.
16.3 The invalidity or unenforceability of any provision in these terms and conditions shall not affect the remainder of in these terms and conditions which shall continue to have full force and effect in accordance with their terms.
16.4 Neither party shall be liable to the other for any delay in failure to perform its obligations under any contract (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
16.5 Any notices given by either party to the other for the purposes of these terms and conditions or any contract to which they apply must be in writing and may be delivered personally or by recorded delivery or registered post and will be deemed to have been duly given (whether or not in fact received) either on delivery (if delivered personally) or 2 working days after the date of posting (if sent by post in the manner prescribed above) if delivered or sent to the registered office of the intended recipient (if a company) or to the principal business address at which the sender is accustomed to deal with the intended recipient in the normal course of trading or to any other address notified by the intended recipient to the sender in writing for the purpose of receiving documents or notices.
16.6 These terms and conditions and any contract to which they apply shall be governed by and construed in accordance with the laws of England and Wales and (for the benefit of Positive Computing) the Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these terms and conditions or any such contract.