Terms of Use

1.         Definitionsand Interpretation

1.1       In these terms and conditions thefollowing words have the meanings given:-

"BusinessDay"                                 meansany day other than a Saturday, Sunday or a public or bank holiday in England, Wales,Scotland or Northern Ireland;

"Contract"                                          meansa contract for the purchase by the Customer of Products or Services fromInterchange incorporating these terms and conditions and arising from theacceptance by Interchange of an Order;

"Customer"                                        meansthe person, firm or company ordering Products or Services;

"Default"                                             shallmean any breach by either party of its obligations under a Contract, anydefault, act, omission, negligence or statement by either party, its employees,agents or sub-contractors arising out of or in connection with a Contract andin respect of which either party may be legally liable;

“Interchange”                                      meansInterchange Distribution Limited or any such other company as InterchangeDistribution Limited may appoint as sub-contractor to provide the Services tothe Customer;

“Group”                                               meansin relation to any party that company and every other company which is for thetime being a subsidiary or holding company (as defined in the Companies Act1985) of that company or a subsidiary of such holding company;

"IntellectualProperty Rights"            meanscopyright, patent, trademark, service marks, registered designs, sui generisrights, know-how, confidential information, trade or business names or othersimilar rights together with applications for any of the foregoing;

"LicenceAgreement"                       meansany licence agreement relating to use of the Software;

"Order"                                               meansany written order for Products, or Products and Services, received byInterchange from the Customer; 

"Services"                                          meansany configuration or installation services provided by Interchange assub-contractor of the Customer to end-users of Products in conjunction with thesupply of Products;

"Software"                                          means any computer softwaresupplied by Interchange, whether embodied in ROM, RAM, firmware or on disk,tape or other media.

1.2       Allother words and expressions are to be given their normal English meaning takenin the context of the Contract. Any dispute as to the meaning of a word is tobe settled by reference to the Oxford English Dictionary.

1.3       Any reference to a clause shall mean aclause of these terms and conditions unless otherwise stated.

1.4       The use of headings in these terms andconditions shall be for convenience only and shall not affect theinterpretation of these terms and conditions.

1.5       Reference to any statute or statutoryprovision or any other regulation includes any provision which subsequentlysupersedes it or re-enacts it (whether with or without modification).

2.         Contract Formation

2.1       All Orders submitted by the Customer toInterchange and accepted by Interchange shall be subject to these followingterms and conditions which shall form part of and govern any Contract.

2.2       Acceptance by the Customer of anyestimate or quotation for Products and/or Services issued by Interchange shallbe deemed to be acceptance of these terms and conditions.

2.3       Any terms and conditions appearing in anyOrder or other document whatsoever issued by the Customer shall be void and ofno effect and these terms and conditions shall override any previous agreementsrelating to the provision of Products or Services between the parties.

2.4       No waiver of or amendment to these termsand conditions shall be effective unless made in writing and signed by adirector of Interchange. Purported amendments by E-Mail or telephone will notbe effective.

2.5       The Contract contains the entireagreement of the parties in relation to the supply of Products or Services byInterchange to the Customer and the Customer irrevocably waives any right itmight have to claim for damages and/or to rescind a Contract because of anymisrepresentation by Interchange (unless such misrepresentation was madefraudulently) or any warranty not contained in the Contract.

3.         Price

3.1            All prices for Products or Services stated in any quote,estimate or acceptance of Order are those current at the time of the Customer'senquiry.

3.2            The price payable by the Customer for Products or Serviceswill be the price as quoted in the Purchase Order and unless otherwise agreedin writing will be

(a)   exclusive ofValue Added Tax or other applicable sales tax whether in substitution or inaddition which shall be paid by the Customer at the rate from time to time inforce.

(b)   exclusive ofInterchange's charges for delivery, handling or Services which will be added toInterchange's invoice for the Products.

3.3            Interchange shall not be entitled to increase the Price(whether on account of increased material, labour or otherwise) without theprior written consent of the Customer, such consent not to be unreasonablywithheld or delayed.

3.4            Interchange willnot increase or decrease the price of any product after acceptance of the orderwhere the product is available from stock, irrespective of any price changesfrom the manufacturer. For the avoidance of doubt no price protection will beoffered.

3.5            Where thePurchase Order quotes a HP OPG and the price quoted is after the OPG has beenapplied, the price to be paid by the Customer will initially be the price onthe accepted purchase order but may be increased to the price before the OPGdiscount at Interchange’s Discretion if HP do not accept the OPG claim as aresult of any non compliance by the Customer with any of the Special PricingTerms and Conditions governing the OPG.

3.6            Where the priceis increased under clause 3.5 above, the Customer will pay the additionalamount together with any Value Added Tax applicable to Interchange within 14days of receipt of an invoice for the additional amount.

4.         Payment

4.1       Interchange may at its discretion offercredit terms to the Customer subject to the status of the Customer andcompletion by the Customer of a credit application form supplied byInterchange.  Such credit terms shall bedetermined by Interchange and confirmed in writing with the Customer.

4.2       Unless and until credit terms aregranted, the Customer will pay for any Products or Services on a "cashwith order" basis in which case the Customer should allow at least three(3) Business Days for the payment to be credited to Interchange's account.Interchange reserves the right not to release any Products or provide anyServices until all such payments are cleared and credited to Interchange's bankaccount.

4.3            Where credit terms are granted, and unless other terms aregranted in writing, the Customer will pay no later than 30 days following thedate of Interchange's invoice and Interchange reserves the right to suspenddeliveries where payment is delayed.

4.4            Where Credit terms are granted, no amendments will beeffective unless made in writing by the Credit Manager. Purported Amendments byE-Mail or telephone will not be effective.

4.5            If Products are delivered in instalments Interchangereserves the right to invoice each instalment as and when delivery is made tothe Customer in which case payment shall be due in accordance with clause 4.2or 4.3 above notwithstanding non-delivery of other instalments or fulfilment ofthe entire order.

4.6            If any payments are overdue the Customer may be placed oncredit hold and no further Products or Services will be delivered or madeavailable to the Customer until all payments due to Interchange under theContract have been paid. Interchange may at it’s discretion, withdraw creditfacilities in the event of any breach of this contract by the Customer.

4.7            If payment is not received by the relevant due dateInterchange may

(1)              Charge the Customer interest on any overdue amount (on adaily basis) from the due date of payment to the date of actual payment (bothdates inclusive) at the rate of four (4) per cent per annum above the HSBC Bankplc Base Rate for the time being in force.

(2)              Take legal action for the recovery of any amount due andinterest thereon at the rate specified in clause 4.7(2) above together withcosts payable on a Solicitor and own Client basis.

4.8            All payments made by the Customer to Interchange shall be insterling in immediately available funds free and clear of any right of set offor counter claim or any withholding or deduction whatsoever.

4.9            Only a director of the company may agree terms of paymentwhereby the Customer may defer payment to Interchange until receipt of moniesfrom a third party

4.10        Any agreement in 4.9 must be in writing, prepared before andreferred to in the Customer’s Purchase Order and will not constitute aguarantee of performance to the Customer of any third party

4.11        The customer agrees to make all payments due under thiscontract irrespective of any dispute or claim the Customer may have with oragainst any third party

5.         Title

5.1            Risk of damage to or loss of the Products shall pass to theCustomer upon delivery to the address specified in the Purchase Order inaccordance with Clause 6

5.2            Full legal, beneficial and equitable title to and propertyin any Products shall remain vested in Interchange ( even though they have beendelivered and risk has passed to the Customer ) until :

(i)         payment in full of the purchase price(together with any interest and VAT thereon) and in cleared funds has beenreceived by Interchange in respect of those Products; and

(ii)        all other amounts payable by theCustomer to Interchange have been received by Interchange.

5.3            Title to and property in Products will remain withInterchange notwithstanding that the relevant Products have been incorporatedin or affixed to other products including, for the avoidance of doubt, the storageof or incorporation of any Software in ROM, RAM or any other hardware, softwareor firmware or other media whatsoever.

5.4            Until full legal, beneficial and equitable title to andproperty in any Products passes to the Customer,

(a)              the Customer shall hold the Products on a fiduciary basis asInterchange’s bailee

(b)              the Customer will store those Products delivered to itspremises in a proper manner and condition which adequately protects andpreserves the products and shall insure them, without any charge to Interchangeand not tamper with any identification upon the products or their packaging andshall ensure that they are stored separately from any other goods ( whether ornot supplied by Interchange ) and are clearly identifiable  as belonging to Interchange  and Interchange shall be entitled to examineany such Products in storage at any time during normal business hours upongiving the Customer reasonable notice to do so

(c)              Interchange may at any time, on demand and with priornotice, require the Customer to deliver the Products up to Interchange and mayrepossess and resell the Products if any of the events specified in Clause 15occurs or if any sum due to Interchange from the Customer under this contractis not paid when due

5.5            If the Customer fails to redeliver any Product on demand inaccordance with clause 5.3, Interchange shall be entitled with notice, withoutincurring any liability to the Customer, to enter the Customer's premises forthe purpose of taking possession of the Product, and to take such steps as arenecessary to remove the Product including the right to dismantle any productinto which the Product has been incorporated and the right to detach theProduct from any other goods to which the Product has been attached, providedthat this can be done without damaging any product into which it has beenincorporated

5.6            The Customer shall fully indemnify Interchange in respect ofall Interchange's costs (including legal costs) in connection with enforcingthe provisions of clause 5.5.

5.7            Interchange hereby authorises the Customer to use and/orsell the Products in the normal course of the Customer’s business and to passgood title in the Products to it’s customers, if they are purchasers in goodfaith without notice of Interchange’s rights. This right shall automaticallycease on the occurrence of any event set out in Clause 15 and/or if any sumowed to Interchange by the Customer is not paid when due. If the Customer sellsthe Product prior to paying the full price thereof the Customer shall hold theproceeds of sale on trust for Interchange.

5.8            Where a Product is sold or otherwise disposed of to a thirdparty before title to and property in it has passed to the Customer, the salewill constitute a sale by the Customer of Interchange's property, and the Customershall hold on trust for Interchange such sum as represents, or is equivalentto, the price at which the Product concerned was invoiced by Interchange to theCustomer.

5.9            On termination under Clause 15.1(a) or (b) or upon theCustomer entering into a voluntary arrangement, if the Customer has notreceived the proceeds of any such sale or disposition, it will, if required byInterchange, assign to Interchange forthwith all rights against the person,firm or company by whom the proceeds are owed, identify the person ,firm orcompany and provide all relevant information relating to the transaction withthe third party.

6.         Delivery

6.1            Interchange shall use its reasonable endeavour to deliverProducts by the date stated upon the relevant acceptance of any Order butfailure to do so shall not constitute a breach of this contract.

6.2            Any dates quoted or mentioned by Interchange for delivery ofthe Products or the provision of the Services whether verbally or otherwise areestimates only and whilst Interchange will use all reasonable endeavours tomeet such dates it cannot guarantee to do so.

6.3            Time will not be of the essence in the delivery of theProducts or the performance of the Services.

6.4            Interchange shall deliver the Products to such address oraddresses as notified by the Customer to Interchange for each order, subject toprior agreement with the Customer. Interchange shall be entitled to makepartial deliveries of the Products or deliveries of the same by instalments. Asigned delivery note shall be satisfactory proof that delivery has taken place.

6.5            Notwithstanding clause 5 above, the risk in any Productshall pass to the Customer on delivery of the same to the Customer at theaddress given by the Customer to deliver the Products.

6.6            All illustrations or specifications contained in anycatalogues or publicity material produced by Interchange are approximate onlyand are only intended to convey a general idea of the Products or Services.

6.7            Interchange will accept no liability for non-delivery of,loss of or damage to any Products occurring prior to the delivery of the sameto the Customer and no claim that the Products are not in accordance with theContract will be accepted by Interchange unless claims to that effect arenotified in writing to Interchange

(a)       within two days of delivery in the case ofloss, damage, or non-compliance with the Contract

(b)       within two days of receipt ofInterchange's invoice in the case of non-delivery.

6.8      Any claim in respect of 6.7(a) must beaccompanied by a signed proof of delivery supporting the details of the claim.

6.9            In the event of a valid claim by the Customer under clause6.7, Interchange will at its option replace or repair the Product at its ownexpense but will be under no other liability to the Customer with respect tosuch claim whether in contract or in tort. All Products (or any part) replacedby Interchange will become Interchange's property upon replacement.

6.10       If the Customer fails to give notice in accordance withclause 6.7, it will be deemed to have accepted the Products, the Products willbe deemed to be in accordance with the Contract and the Customer will be boundto pay for the same.

7.         Services

7.1       Wherethe Customer requires Interchange to carry out any configuration orinstallation services as defined in clause 1.1 herein either for the Customerand /or the end-user Interchange shall do so as sub-contractor to the Customerand this agreement and the terms contained herein shall constitute thesub-contract.

7.2            Interchange will use all reasonable endeavours to providethe Services in accordance with the terms of the Contract and will ensure thatthe Services will be provided with all reasonable care and skill and bysuitably trained and qualified persons.

7.3       If the Services are to be provided accordingto a timetable(“the        Timetable”)Interchange shall use all reasonable endeavours to adhere to the timetable inproviding the Services but, save as stated herein, time shall not be of theessence in the provision of the Services.

8.         Cancellation and Return

8.1            Except as provided herein, the Customer shall not beentitled to return any Product or cancel any Orders which Interchange hasaccepted without Interchange's prior written agreement and any suchcancellation or return shall be subject to the Product returned being :-

(1)              accompanied by a reference to a returns note number issuedby Interchange

(2)              in “mint” condition, defined as being the condition thatthey were in at the time and point of delivery to the customer i.e. thepackaging must be clean and with seals unbroken.

(3)              complete with all original packing

(4)              being a stock item as defined by Interchange

Products, which are returned butdo not meet these conditions for acceptance will be refused, will be returnedto the customer and the invoice must be paid in full.

8.2            Interchange may at it’s sole discretion accept products forreturn and may charge a restocking fee of £35 or 10% of the current productcost if greater

8.3            Any goodsaccepted for return at the discretion of Interchange must be returned atthe Customer’s risk within 10 days of the date of confirmation of suchacceptance or the acceptance will lapse

8.4            Interchange will not accept a return for any products boughtspecifically to meet the customer’s order or for any products originallyinvoiced more than 30 days prior to the date of any return request

9.                 DOA Policy

9.1            Any Products failing within the specified period of eitherInterchange’s invoice to the Customer or the Customer’s invoice to theircustomer shall be returned to Interchange within 10 days of the date ofadvising the failure to Interchange following the current returns proceduresfor full credit to the Customer.

9.2            The specified period in 9.1 will be as per the manufacturersguidelines.

9.3      Productsnot returned within 10 days of notification will not be accepted and no creditwill be issued

9.4       All products must be returned with their original packaging

9.5      Uponreceipt the returned products will be inspected and if they are not found to befaulty will be returned to the Customer with no credit note issued or furtherliability on behalf of Interchange

9.6      Onacceptance of the returned product, a credit note will be issued by Interchangeto the Customer for 100% of the value originally invoiced

9.7      Unlessotherwise agreed, this clause does not apply to Laptop computers with crackedor damaged screens.

10.       Warranties

10.1    Interchange, to the extent that it ispermitted to do so, hereby assigns the benefit of any guarantee or warrantycovering any defects in Products received by Interchange under an agreementwith the manufacturer or supplier of the relevant Product.

10.2    Thewarranty service (if any) will be that provided by the manufacturer and anyvalidation procedures relating to that warranty service are the responsibilityof the Customer.

10.3    Interchange may in its discretion offersupport or maintenance services with respect to Products.

10.4    The warranty of the manufacturer or supplieris in lieu of all other terms or conditions whether express or impliedconcerning the quality or fitness for purpose of Products and all such otherterms and conditions are hereby excluded.

10.5    If any services are provided by Interchange,Interchange warrants that the Services will be carried out with reasonable careand skill and by suitably trained and qualified persons.

11.       Year 2000

11.1    Interchange undertakes that it will use allreasonable endeavours to obtain from the original manufacturer of the Productsa warranty that the Products are Year 2000 Compliant, and to the extent that itis able, Interchange will transfer to the Customer the benefit of any suchwarranty. For the purposes of this clause “Year 2000 Compliant” means that neither the performance northe functionality of the Products shall in any way be affected by any datewhether before, at or after 1^st January 2000, that the Productsshall in any way be affected by any date whether before, at or after 1^stJanuary 2000, that the Products will be capable of correctly processing alldates and that Year 2000 will be recognised as a leap year.

11.2    Interchange will in no circumstances beliable to the Customer for any losses, claims or damages of whatever naturethat the Customer may suffer as a result of the Products not being Year 2000Compliant.

11.3    All other express or implied warranties orconditions relating to quality or fitness for purposes (whether implied bystatute or otherwise) are hereby excluded in so far as they might apply in theevent of the Products not being Year 2000 Compliant.

12.       Liability

12.1    Interchange will accept liability withoutlimitation for death or personal injury caused by the negligence of Interchange(and for any fraudulent misrepresentation).

12.2    The maximum liability of Interchange whetherin contract, tort or otherwise for any direct physical damage to tangibleproperty of the Customer caused by a Default by Interchange shall be limited tothe lesser of £100,000 per incident or series of incidents or an amount equalto the sums paid by the Customer under the Contract during the preceding 6 months.

12.3    The maximum aggregate liability ofInterchange to the Customer whether in contract, tort or otherwise for anydirect loss or damage (other than to tangible property) suffered by theCustomer as a result of any Default of Interchange shall be limited inaggregate to the lesser of £25,000 or an amount equal to the sums paid by theCustomer under the Contract during the preceding 12 months.

12.4    Interchange shall not be liable to theCustomer whether in contract, tort or otherwise and even if foreseeable by orin the contemplation of Interchange for:-

(a)              any loss of profits, business, revenue, goodwill, data oranticipated savings, whether sustained by the Customer or any other person; or

(b)              any special, indirect, or consequential loss whethersustained by the Customer or any other person.

12.5    Anyadvice or recommendations given to the Customer by Interchange or its employeesor agents as to storage, application, use or preference of the goods which isnot confirmed in writing by Interchange, is followed or acted upon entirely atthe Customer’s own risk and accordingly Interchange shall not be liable for anysuch advice or recommendation which is not so confirmed.

13.       Intellectual Property Rights

13.1    All Intellectual Property Rights in orrelation to the Products (including any manuals and operating documentationrelating thereto) or in any materials (including Software) created byInterchange during the course of providing the Services shall vest inInterchange or its suppliers as the case may be and the Customer shall have notitle to or interest in any such Intellectual Property Rights except to theextent specifically agreed by Interchange.

13.2    The Customer will notify Interchangeimmediately if it becomes aware of any illegal or unauthorised use of any ofthe Products or any of the Intellectual Property Rights in the Products andwill assist Interchange and/or its suppliers in taking all steps necessary todefend the owners' rights.

13.3        The Customer undertakes to ensure that any Software which issold to end-users or any other third party will be accompanied by any LicenceAgreement (whether shrink-wrap or otherwise) relating to that Software and anyother documentation which Interchange or Interchange's suppliers may require.

13.4        Unless specifically authorised under a Licence Agreement,the Customer undertakes that it shall not (and that it shall not employ norpermit any third party) attempt to copy, adapt, amend, disassemble, de-compileor reverse engineer Software or any part thereof except to the extent allowedby English law.

14.       Confidentiality

14.1    Each party shall treat as confidential allinformation obtained from the other which is specifically designated asconfidential or proprietary and shall not divulge such information to anyperson (except to such party's own employees and then only to those employeeswho need to know the same) without the other party's prior written consent.

14.2    This clause shall not extend to anyinformation which was rightfully in the possession of a party prior to thecommencement of the negotiations leading to a Contract, which is already publicknowledge or becomes so at a future date (otherwise than as a result of abreach of the clause) or which is trivial or obvious.

14.3        Each party shall ensure that its employees are aware of andcomply with the provisions of this clause.

14.4        This clause shall apply for a period of 2 years followingany termination of this contract

15.       Termination

15.1    Without prejudice to any other rights orremedies Interchange might have against the Customer Interchange may terminatea Contract or suspend the performance of its obligations under a Contractforthwith by notice in writing to the Customer if:-

(a)       the Customer defaults in making paymentfor any of the Products or Services supplied by Interchange within seven daysof its due date; or

(b)       the Customer defaults in any of itsobligations under these terms or a Contract; or

(c)        the Customer makes any voluntaryarrangement with its creditors (within the meaning of the Insolvency Act 1986)or becomes subject to an administration order or goes into liquidation(otherwise than for the purposes of amalgamation or reconstruction) or atrustee receiver, administrative receiver or similar officer is appointed inrespect of all or any part of the business or assets of the Defaulting Party;or

(d)       the Customer is deemed unable to pay itsdebts within the meaning of section 123 of the Insolvency Act 1986 be unable topay his debts or any steps are taken to wind up the Customer, or anadministrator, administrative receiver or receiver is appointed over theCustomer's business or any part of its assets.

15.2    Upon termination of a Contract under clause15.1, Interchange shall have the right, without prejudice to any other right orremedy available, to enter the Customer's premises and repossess the Product orany of them and shall have the right to dismantle any machinery, product, itemor equipment into which the Product or any of them have been incorporated andthe Customer shall be responsible for all Interchange's costs and expenses inconnection with so doing.

15.3    Those clauses capable of survivingtermination shall do so.

16.       Variations

16.1    Interchange reserves the right to modifythese terms and conditions upon notice in writing to the Customer. Any suchmodification will apply on the effective date specified in the said notice toall Orders which are accepted by Interchange on or after the date of notice.The Customer shall have thirty days from the date of notice within which tocancel any Order sent to Interchange prior to the date of notice and notaccepted by Interchange at that date.

17.       Assignment

17.1    The Customer shall not assign or otherwisetransfer any of its rights or obligations under a Contract whether in whole orin part without the prior written consent ofInterchange which shall not be unreasonably withheld

18.       Personnel

18.1    TheCustomer acknowledges that Interchange has incurred significant costs inrecruitment and training its employees to enable them to provide the Services.Accordingly the Customer agrees that it will not, and it will ensure that noother company within its Group will not, solicit or approach in any way, any ofInterchange’s employees who are involved in the provision of the Services witha view to offering them employment or to solicit services from them on theirown account (whether for the Customer or another party) during the period ofthe Contract and for a period of six (6) months after termination or expirationof the Contract.

18.2    TheCustomer acknowledges that damages will not be an adequate remedy forInterchange if the Customer breaches clause 7.1 and that Interchange will beentitled to seek injunctive relief and any other equitable remedies withrespect to such breach.

18.3    Ifany employee of Interchange leaves the employment of Interchange as a result ofa breach by the Customer of clause 18.1 and commences employment with, orprovision of services to, the Customer or any other member of the Customer’sGroup it shall pay Interchange 50% of the higher of:-

(a)       theannual salary (including any benefits-in-kind, bonus payments, commissions andother emoluments) of the employee at the date that they ceased to be anemployee of Interchange; and

(b)       theannual salary of the employee at the time they commence employment by theCustomer or other member of the Customer’s Group

            andthe Customer acknowledges that any such payment is by way of liquidated damagesand is a reasonable and genuine pre-estimate of Interchange’s losses.

19.       Invalidity

19.1    If any provisions, or portions thereof, of aContract are held to be invalid and unenforceable under any applicable statuteor rule of law, they are to that extent to be deemed omitted and the validityand/or enforceability of the remaining provisions of the Contract shall not beimpaired or affected by that omission.

20.       ForceMajeure

20.1        Neither Interchange nor the Customer shall beliable to the other or be deemed to be in breach of this Agreement by reason ofany delay in performing, or any failure to perform, any of its obligations inrelation to the Products, if the delay or failure is beyond that party’sreasonable control.  Without prejudice tothe generality of the foregoing, the following shall be regarded as causesbeyond either party’s reasonable control:-

20.1.1                Act of God, explosion, flood, tempest, fire oraccident

20.1.2                war, sabotage, insurrection, civil disturbanceor requisition;

20.1.3                acts, restrictions, regulations, bye laws,prohibitions or measures of any kind on the part of any governmental, parliamentaryor local authority;

20.1.4                import or export regulations or embargoes;

20.1.5                strikes, lock-outs or other industrial actionsor trade disputes (whether involving employees of either the Seller or theBuyer or of a third party);

20.1.6                power failure or breakdown in machinery.

21.       Notices

21.1    All notices which are required to be givenhereunder shall be in writing and shall be sent to the registered address ofthe party in question.

22.       Export Control

22.1    The Customer acknowledges that certainProducts may be subject to export controls imposed by United Kingdom or otherGovernments and undertakes to apply for and obtain any necessary licences orother consents that may be necessary to export or take any product (or any partthereof) out of the United Kingdom.

23.       Law

23.1       All Contracts shall be governed by, and construed inaccordance with, English law and the parties submit to the exclusivejurisdiction of the English courts.

24.            Waiver

24.1         The waiver by either party of a breach ordefault of any of the provisions on this Agreement by either party shall not beconstrued as a waiver of any succeeding breach of the same or other provisions,nor shall any delay or omission on the part of either party to exercise oravail itself of any right, power or privilege that it has, or may havehereunder operates as a waiver of any breach or default by either party

25.        Rightsof Third Parties

The Contracts (Rights ofThird Parties) Act 1999 shall not apply to this Contract. No person who is not aparty to this Contract (including any employee, officer, agent, representativeor subcontractor of either party) shall have the right (whether under theContracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any termof this Contract which expressly or by implication confers a benefit on thatperson without the express prior agreement in writing of the parties whichagreement must refer to this clause.

26.        VendorSpecial Pricing

26.1    Interchangemay supply HP products priced under the HP Special Pricing OPG terms andconditions on the condition that the Customer

(a)        obtains andfamiliarises themselves with a copy of the current Special Pricing Terms andConditions

(b)        complies withthe Special Pricing OPG Terms and Conditions in all respects

(c)         obtains andquotes an authorised OPG reference on their purchase order

(d)        cooperates fullywith any audit or End User Verification process undertaken by or on behalf ofHP

(e)        provides alldocumentation either detailed in the Special Pricing Terms and Conditions orreasonably requested by HP as part of an audit or End User Verificationprocess, either to HP directly or to any nominated representative within thetimescales set out in the Terms and Conditions

26.2       TheCustomer agrees to fully indemnify Interchange against any costs arising froman audit or End User Verification process into products purchased by theCustomer under an OPG, where HP determine that the OPG is not valid or that theCustomer has not complied fully with the Special Pricing Terms and Conditionsgoverning the OPG. Such costs to include the value of the OPG and cost of anassociated audit or End User Verification Process

26.3       Interchangerecognises the sensitive nature of the information which may be required by HPas part of their audits or End User Verification Processes and undertakes to

(a)        keep any suchinformation which is passed to Interchange confidential to Interchange  and to those employees of Interchange whoneed to have access to it for the purposes of the HP audit or End UserVerification

(b)        return ordispose of any such information upon request by the Customer

(c)         pass theinformation to HP only upon request as part of their Audit or End UserVerification procedures

27        Airtime Contracts

27.1        Interchange will raise a Purchase Order to the Customer forthe value of commissions due under Airtime contracts for the value advised bythe service provider when such advice is received.

27.2        The Customer should invoice Interchange quoting the PurchaseOrder reference within 30 days of receipt of such an order

27.3        Interchange will pay invoices received in agreement with anofficial Purchase Order at the end of the month following the month of invoicesubject to the conditions of clause 27.4 Clawbacks

27.4        Clawbacks

Where the airtime service provider claws backcommissions paid in respect of contracts signed by the Customer, Interchangewill

(a)   Deduct any such clawbackfrom any commission due to the customer at the time the clawback is notified toInterchange by adjustment to any purchase order due to be raised to theCustomer

(b)   If any deduction in 27.4(a) above is not sufficient to extinguish the clawback, cancel any outstandingPurchase Orders already raised to the Customer up to the value of theoutstanding clawback

(c)   If any deductions under27.4(a) and 27.4(b) above are not sufficient to extinguish the clawback, holdany future commissions which become due until such time as the clawback isextinguished. Purchase Orders in respect of future commission will not beraised until such time as all clawback has been recovered at which point aPurchase Order will be raised for the balance of commissions earned lessclawback recovered

(d)   At Interchange’s option,raise an invoice to the Customer for the value of the clawback irrespective ofany action taken under this clause for the value of any outstanding clawbacknot otherwise recovered

(e)   Should the above steps notprove sufficient to recover any clawback due take whatever action Interchangedeems fit to recover sums due from the Customer including legal action forrecovery of the sums due together with interest thereon and associated legal costs

27.5        If Interchange has reasonable grounds to believe that acommission that is due will become subject to a clawback, Interchange may holdback payment of such commission Commission payments will be made at the ratedetermined by the airtime provider and at the rate applicable when the phone isconnected to the network as determined by the airtime provider

27.6        Where clawbacks due from a Customer become a regularoccurrence Interchange may at it’s sole discretion withhold future commissionsdue to the Customer as a float against the value of future clawbacks. Detailsof any such float will be provided to the Customer.

27.7        Clawbacks may arise for a number of reasons including butnot restricted to the following : early termination, disconnection or downgradeof an airtime agreement by the relevant service provider; discontinuance of anyvalue added service; connections deemed by the service provider to be afraudulent connection; where the end customer fails to pay bills issued by theservice provider; where the end customer’s call spend or call activity is lowerthan that reasonably expected (as determined by the service provider); wherethe end customer does not receive a new phone handset, where the supply to theend customer is made for commission purposes rather than business efficacy andwhere there is evidence of non compliance with the service provider’soperational procedures (as determined by the service provider).

27.8        Commissions due to the Customer may not be deducted againstany other sums due to Interchange unless specifically agreed in writing by the InterchangeCredit Manager