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PROCESS 2 TERMS AND CONDITIONS OF SALE AND SERVICE

1. DEFINITIONS
"Process 2" means Process 2, Staythorpe Road, Staythorpe, Newark, Nottinghamshire and sub-contractors.
"Customer" means the legal entity, any person, firm or company, accepting Process 2's written or oral quotation for the supply of Products or Services or whose order for Products or Services is accepted by Process 2.
"Products" means hardware, software or peripheral goods sold by Process 2 pursuant to the Agreement, as specified on the Invoice.
"Services" means those services either bundled with the Products or required under a Service Option selected and ordered by the Customer, accepted by Process 2 and specified on the Invoice, and such additions or changes thereto as may from time to time be agreed in writing between the parties.
"Service Options" means the extended or additional maintenance options offered by Process 2 for Products, as published in Process 2 service literature.
"Invoice" means the document sent / given by Process 2 to the Customer, demanding payment for the Products or the Services and containing, recording and evidencing contractual terms relating to the Agreement.
"Price" means the charge for the Products or Services.
"Agreement" means a contract for the supply by Process 2 to the Customer of the Products and/or Services incorporating these terms and conditions and the terms of any Service Options selected by the Customer.
"Third Party Products" means Products not manufactured or assembled or authored by Process 2 and supplied to Process 2 by third parties for re-supply by Process 2.
"Upgrade" means replacing an existing Product part that is fitted and working, with a part of similar function but may be of different specification, type, performance or manufacture.

2. PRODUCTS AND SERVICES
2.1. Process 2 shall supply and the Customer shall purchase, the Products and/or the Services as principals only, to the intent and with the effect that no other party shall have any rights or obligations, or be entitled to sue or liable to be sued, under the Agreement. The Agreement (including all right and benefits under it) is not transferable or assignable by the purchaser in whole or in part to any other party or entity whatsoever.
2.2. The Products and Services are supplied subject to the terms and conditions of this Agreement to the exclusion of any other terms or conditions of the customer and variations or amendments must be confirmed by Process 2 in writing.
2.3. The supply of Services will start on the agreed date as shown on Process 2's invoice.
2.4. The Customer agrees to send Process 2 a written order in confirmation of any telephoned order duly marked with any confirmation reference given by Process 2 otherwise Process 2 will not accept liability for any errors or duplications that may occur.

3. DELIVERY, TITLE AND RISK
3.1. The Products are delivered at Process 2's assembly facility or other agreed delivery point.
3.2. Availability of parts and manufacturing requirements may cause Products to be delivered in instalments. These conditions will apply to each partial delivery. Delivery dates are only an estimate and in regard to any such date time shall not be of the essence.
3.3. Delivery of the Products to the Customer's address or any other place stipulated by the Customer shall constitute delivery and the risk therein shall pass upon such delivery to the Customer. Title to Products passes to Customer when full payment is made. Notwithstanding delivery and the passing of Risk, the legal and beneficial ownership of the Products will remain with Process 2 and Process2 shall be entitled at any time before title passes (without any liability):
i) to terminate Customer's right to use, sell or deal in Products
ii) to enter the premises of customer and repossess Products:
or iii) to use or sell Products.

4. ACCEPTANCE OF PRODUCTS
Process 2 will not be responsible for damage to any of the goods or loss of the goods or part thereof in transit. Unless the Customer shall, promptly after delivery or collection of the Products from the Process 2 premises, inspect the Products and notify Process 2 in writing within 48 hours of delivery, of any discrepancy or defects found, the Products shall be deemed to have been accepted on delivery.

5. SERVICE OPTIONS
5.1. Services are provided in accordance with the provisions contained in the Service Option selected by the Customer, as shown on the Invoice.
5.2. Process 2 will use reasonable efforts to meet relevant response times.
5.3. Customer agrees that Process 2 shall not be liable for any direct, indirect or consequential losses occurring as a result of Process 2's failure to meet relevant response times except as set out in Clause 11.
5.4. The Customer may purchase extended service coverage in accordance with then current Process 2 policy.

6. EXCEPTIONS
6.1. Process 2 shall be under no obligation to supply the Services where, in Process 2's reasonable opinion, these are needed because of improper or inadequate installation, storage, use or maintenance; actions or modifications by unauthorised third parties or the Customer; or accidental or wilful damage.
6.2. The Services do not include the correction or avoidance of software defects or errors or the loading or reloading of Customer's applications software or data or any reconfiguration of the Products beyond reloading the operating system software as carried out before shipment.

7. REPLACEMENT
Process 2 reserves the right to replace the whole or any part of the Products. Repairs may be carried out using reconditioned parts or products which, whilst not necessarily identical to the faulty Products, are equivalent to new in functionality and appearance.

8. CUSTOMER'S OBLIGATIONS
8.1. The Customer shall properly use the Products and shall provide Process 2 with all reasonable facilities and information to enable Process 2 to perform its duties.
8.2. The Customer shall be responsible for complying with all Customer applicable regulatory requirements.

9. PRICE AND PAYMENT
9.1. Payment shall be made in full on or before supply of Products or Services or, if agreed at the time of order, within 30 days of the date of Invoice.
9.2. The Prices quoted are those current at the time of quotation and the price payable by the Customer shall be that which is current at the time of delivery to the Customer.
9.3. All Prices quoted in writing are valid for 5 days only. Oral quotations are valid only to the end of the business day upon which they are given.
9.4. All Prices for the sale of Products exclude Process 2's charges for transport and insurance.
9.5. The Price and any additional charges payable under the Agreement are exclusive of all sales taxes including Value Added Tax, unless otherwise stated.
9.6. Time for payment is of the essence. Process 2 reserves the right to charge interest on sums more than 7 days overdue on a day to day basis, as well after as before any judgement, from the date or last date for payment thereof to the date of actual payment (both days inclusive) at the rate of 4% above the base rate of Barclays Bank plc from time to time in force, compounded quarterly. Such interest shall be paid on demand.
9.7. Process 2 reserves the right to suspend delivery where payment is not received in accordance with paragraph 9.1 of this clause.
9.8. No cash or other discount is allowed unless agreed in writing.
9.9. If Process 2 is able to deliver some Products which are the subject of an Agreement but unable to deliver all such items due to cause beyond its control (including but not limited to examples referred in clause 12) the Customer shall pay for such items as are delivered.

10. WARRANTY
10.1. Process 2 warrants that the Products offered for sale (excluding third Party Products and software) will be free from defects in materials, workmanship and design for a period of 12 months from the date of purchase. In the event of such a defect Process 2 will at its option remedy the defect by replacement or repair or give credit to the Customer. Unless Process 2 otherwise decides, credit will only be given if the Customer notifies Process 2 of the alleged defect or damage within 48 hours of the Customer's receipt of the Products.
10.2. Process 2 warrants that spare parts used in repairing Products under any Service Option will be free from defects in materials, workmanship and design for a period of 90 days from installation in the Products or the remainder of the Warranty Period or Service Option appropriate to or purchased by the Customer in respect of the Products, whichever is the longer.
10.3. In respect of Third Party Products, the Customer shall only be entitled to the benefit of any warranty or guarantee given by the Third Party manufacturer.
10.4. Process 2 warrants that the parts used to Upgrade Products will be free from defects in materials, workmanship and design for a period of 12 months from installation in the Products. This warranty does not apply to:
i) Product parts already existing and subject to a separate Agreement and the Warranty terms contained therein
ii) Defects resulting directly or indirectly from the failure of existing Third Party or non-warranted Product parts.
10.5. If, before the expiry of the warranty period or appropriate Service Option, Process 2 receives written notice from the Customer of any breach of the warranty, then Process 2 shall, within a reasonable time, repair or, at its option, replace Products or spare parts that are defective or otherwise remedy such defects.
10.6. This warranty does not apply to defects resulting from improper or inadequate installation, use or maintenance: actions or modifications by unauthorised third parties or the Customer or accidental or wilful damage.
10.7. Process 2 does not give any warranty that the Products are fit for any particular purpose and this warranty is given in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade, usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
10.8. Process 2 shall not be responsible for adapting or modifying any Products to conform to statutory requirements not current at the time of the acceptance or order.

11. LIABILITY
11.1. Process 2 shall not be liable for any loss or damage sustained or incurred by the Customer or any third party (including without limitation any loss of use of the Products or loss or spoiling of any of the Customer's programs or data) resulting from any breakdown of or fault in the Products, unless such breakdown or fault is caused by the negligence or wilful misconduct of Process 2, its employees or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Process 2 in providing the relevant Services and then only to the extent not excluded by the Agreement.
11.2. Process 2 shall indemnify the Customer and keep the Customer fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of Process 2, its employees or sub-contractors, or by any breach of its contractual obligations.
11.3. The Customer shall indemnify Process 2 and keep Process 2 fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors, or by any breach of its contractual obligations.
11.4. Notwithstanding anything else contained in the Agreement, Process 2 shall not be liable to the Customer for the loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

12. FRUSTRATION (FORCE MAJEURE)
Neither party shall be liable for any delay in performance caused by circumstances beyond its reasonable control (including without limitation breakdown of plant or machinery, strike or industrial dispute, shortage of materials or failure of or delay in receiving supplies, act of war (whether declared or not), Act God, or any law regulation of any government or any local or municipal authority), and the party in delay shall be entitled to a reasonable extension of time for performance. If such an event continues for more than 28 days Process 2 may terminate the agreement forthwith by written notice to the Customer without prejudice to the accrued rights of either party.

13. INTELLECTUAL PROPERTY RIGHTS
Each party will indemnify the other against all costs, claims, demands, expenses and liabilities arising out of or in connection with any claim that the normal use or possession of the Products or Third Party Products or products supplied by the Customer for integration purposes (whether used separately or in combination) infringes the intellectual property rights (including without limitation any patent, copyright, registered design, design right or trade mark) of any third party.

14. CONFIDENTIALITY
Each party shall treat as it does its own trade secret information, information obtained from the other pursuant to the Agreement which is marked "confidential" or the equivalent or has the necessary quality of confidence about it.

15. TERMINATION AND CANCELLATIONS
15.1. The Agreement may be terminated forthwith by written notice from either party if:
i) The other commits any material breach of any of the terms of the Agreement and, if capable of remedy, shall have failed within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (such notice to detail the breach and to contain a warning of such party's intention to terminate); or
ii) The other becomes insolvent or bankrupt or is otherwise unable to pay its debts as they fall due.
15.2. The Agreement may be terminated forthwith by written notice from Process 2 if: i) Customer fails to pay any sum due and such sum remains unpaid for 14 days after written notice from Process 2 that such sum has not been paid.
15.3. Where Products have been specifically purchased by Process 2 to meet Customer's requirements, Process 2 reserves the right to refuse cancellation of the order. If Process 2, at its discretion, gives consent, it reserves the right to make a cancellation charge of 25% (or as notified to the Customer before or when such consent is given by Process 2) of the Contract Price of the Products concerned plus Value Added Tax.

16. ENTIRE AGREEMENT
16.1. The Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire Agreement between the parties relating to the subject matter hereof.
16.2. The Customer warrants to Process 2 that it has not been induced to enter into the Agreement by any prior oral representation (whether innocently or negligently made) except as specifically contained in the Agreement.

17. CONSUMERS
The statutory rights of a Customer dealing with Process 2 as a consumer as defined in the Unfair Contract Terms Act 1977 remain unaffected.

18. ASSIGNMENT
Process 2 may sub-contract all or any of its obligations under the Agreement to a competent third party. Except for this, neither party shall assign or otherwise transfer any of its rights or obligations.

19. NOTICES
19.1. All notices must be in writing and sent to the address of the recipient set out in the Agreement or the recipient's registered office or such other address as the recipient may designate.
19.2. Any such notice may be delivered personally or by first class prepaid letter, telex or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by telex or facsimile transmission when despatched. 19.3. Any notice concerning the validity of existence of the Agreement must be delivered personally or sent by Recorded Delivery first class letter post.

20. DRAWINGS
All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in sales literature and price lists are approximate only and do not form part of the Agreement. In addition, any drawings, technical documents issued either before or after the conclusion of the Agreement for the use or information of the Customer and such other information as maybe supplied to the Customer including specifications shall not be copied, reproduced or communicated by any third party without Process 2's prior written consent.

21. SEVERANCE
If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provisions in question shall not be affected.

22. LAW AND JURISDICTION
The Agreement shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English courts.

23. HEADINGS
The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.

THESE TERMS AND CONDITIONS ARE TO BE READ TOGETHER WITH THE TERMS OF ANY SERVICE OPTION SELECTED BY THE CUSTOMER

Process 2 [1996-2003]

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