1. INTERPRETATION
1.1 In these Conditions unless the context otherwise permits:-
"Authorised Representative" means a person whose job title is that of Owner or Partner or a person who holds the office of manager.
"Consumer" shall mean any natural person who in the contract with the Client is acting for purposes that are not related to his trade, business or profession.
"Client" means the person, firm, company, entity or organisation with whom First Choice PCs contracts for the sale of Products and/or supply of Services.
"the Conditions/ these Conditions" means the standard terms and conditions of sale set out in this document or such replacement standard terms and conditions notified to Client as are in force at the date of the Contract and which at that date appear on First Choice PCs web site at www.firstchoicepcs.co.uk and/or which are available on request at First Choice PCs principal trading address: 27F Pennygillam Way, Launceston, COrnwall. PL15 7ED
"The Contract" means any contract for the purchase and sale or other supply of Products and/or the supply of Services by First Choice PCs to a Client.
"Electronic Means" means any electronic means including without limit on the Web, by EDI or XML, or Inside Line®.
"FCPCS" means First Choice PCs. Head Office: 27F Pennygillam Way, Launceston, Cornwall. England. Pl15 9SA
"Products" means any Products (including, for the avoidance of doubt software and instalments of the Products or any parts of or for them) sold by FCPCS to a Client.
"Services" means any services supplied by FCPCS to the Client.
"Special Order Products" shall mean Products that are classified in FCPCS’s current comprehensive product listing as special order products or have been ordered specifically by Client or configured to Client's specifications.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 The Conditions shall apply to sales of all Products including Special Order Products ordered for shipment to or within the UK mainland. FCPCS reserves the right to apply supplemental or other terms for Products to be shipped by FCPCS outside the UK mainland.
1.4. Without prejudice to the application of these Conditions additional and more detailed terms may apply for certain Products and suppliers including specific terms applicable to special prices offered by suppliers through FCPCS ("Special Terms") and additional terms may apply with respect to FCPCS’s delivery and other aspects of its business. Any additional terms and the updated Special Terms will be made available on FCPCS’s web site www.firstchoicepcs.co.uk. It is the Client's responsibility to be aware of and adhere to the additional and Special Terms as current from time to time, and by ordering Products from FCPCS the Client agrees to be bound by additional and Special Terms.
2. BASIS OF THE SALE
2.1 All Contracts between FCPCS and a Client shall be governed by these Conditions (and, where applicable, any other terms and conditions pursuant to Clause 1.3 and/or Clause 1.4) to the exclusion of any other terms and conditions not accepted in writing by an Authorised Representative of FCPCS, including without limit any terms on or referred to in any Client purchase order. In the case of orders placed by Electronic Means which refer to any terms and conditions of the Client FCPCS's automatic taking on to its system of such order shall amount to a rejection of the Client's terms and conditions and an offer to supply the Products ordered on the basis of these Conditions. No variation to these Conditions shall be binding unless agreed by letter signed by an Authorised Representative of FCPCS. It is the Client's responsibility to be aware of the Conditions as current from time to time but FCPCS will use best efforts to notify Client of any material changes to the Conditions before they become applicable. In addition to any acceptance of these Conditions by signing FCPCS's account application form, the Client's acceptance of these Conditions shall also be made (in respect of the first Contract and all subsequent Contracts) either by (1) Client providing a purchase order to FCPCS or (2) Client accepting Products or Services from FCPCS, whichever occurs first.
2.2 No employee or agent of FCPCS other than an Authorised Representative has any authority to make any representation at all concerning Products or Services and an Authorised Representative has no authority to make such representation other than by letter (an "authorised representation") and accordingly Client agrees that in entering into any Contract it does not rely on any unauthorised representation and Client agrees it shall have no remedy in respect of any unauthorised representation (unless made fraudulently).
3. CLIENT IDENTIFICATION
3.1 In placing an order including by Electronic Means Client may utilise one or a combination of account name, account number and other forms of identification including password or other code issued to Client (together and individually "Client's Identification" or "Client Identification").
3.2 It is the Client's responsibility to keep the Client's Identification confidential. Client has the sole responsibility for its Client Identification. Client shall immediately inform FCPCS in case of loss of password or in case of any abuse or attempted abuse of Client password or other Client Identification. Client agrees that Client is entirely responsible for use of Client's Identification and that it is Client's responsibility to have in place security measures and procedures to ensure use of its Client Identification only by authorised personnel for authorised purposes.
3.3 Client agrees that FCPCS is entitled to rely absolutely on any orders placed on FCPCS which have utilised Client's Identification and to deliver as directed by such orders and to invoice and be paid in respect of such orders.
3.4 Client agrees that any order placed on FCPCS including by Electronic Means mentioning or utilising Client's Identification is a valid and binding purchase order.
3.5 Client acknowledges that FCPCS cannot guarantee the security of the Internet and the possibility of interception or corruption of data transmitted from Client to FCPCS using correct Client Identification, and that FCPCS is nonetheless entitled to rely on data transmitted in the form it is received at FCPCS.
4. FCPCS INFORMATION
4.1 All Product pricing, description, availability and related information ("Information") provided by FCPCS, in any form, is the property of FCPCS or its suppliers. FCPCS hereby grants Client a limited, non-exclusive, non-transferable license to use the Information for its internal use only for the purpose of Client's purchases and sales of Products sold by FCPCS to it. FCPCS shall be entitled to stop the provision of Information at any time without notice. Client agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilise the Information for any purpose except as permitted herein. FCPCS makes no warranty, either express or implied on the Information or its accuracy. All Information is provided to Client "as is." If FCPCS provides Information to Client by Electronic Means, Client agrees to update such Information regularly to ensure its accuracy. Specifically but without limitation Client is not entitled to utilise Information for any purpose other than in the normal course of business and is not entitled to use, reproduce or display the Information in any way, which in FCPCS's opinion; (1) would enable it to be identified as information obtained from FCPCS (2) would enable comparison of the Information with other suppliers' information relating to Products or (3) could be damaging to FCPCS's business interests.
4.2 FCPCS agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any Client sensitive information or utilise such information for any purpose if Client has notified FCPCS in writing that such information is confidential. Client agrees that FCPCS may disclose to its suppliers certain details (including personal data) about the Client and FCPCS’s sales of the respective suppliers’ Products to the Client.
5. ORDERS AND SPECIFICATIONS
5.1 The Client shall be responsible to FCPCS for ensuring the accuracy of the terms of any purchase order, and shall be sole responsible for its selection of Products on any purchase order and the fitness of the Products for any particular purpose. FCPCS disclaims any liability for any errors in the Client’s purchase order.
5.2 FCPCS reserves the right to make any changes to the Contract due to changes in the specification of the Products made by its suppliers or changes that are required to conform with any applicable safety or other statutory requirements. These changes will be duly notified to the Client. The Client cannot cancel or reschedule the Contract provided the changes do not alter the material terms of the Contract. For other types of changes, the possibility of cancellation will be subject to FCPCS's discretion and conditions.
5.3 FCPCS is under no obligation to accept the withdrawal of an order or the cancellation of a Contract which has been accepted by FCPCS. If FCPCS agrees to accept the Client's withdrawal of any order or the cancellation of a Contract such agreement will only be effected by means of letter, fax or email signed or sent by an Authorised Representative of FCPCS.
5.4 Notwithstanding any other terms of these Conditions it is agreed that the provision or display of Product pricing and other Information (as defined in Clause 4.1) by FCPCS to Client does not amount to an offer by FCPCS to sell such Product at that price or on any other terms. Supply of such Information is only an invitation to treat. An order by the Client for Product or Services shall be the offer.
5.5 Notwithstanding any acceptance by FCPCS of any offer to purchase Products, if there has been a material or obvious pricing error by FCPCS, FCPCS shall be entitled within 30 days of its acceptance of such offer to either invoice the Client for the Client's true list price (not exceeding the prevailing market price at wholesale level) of the Product at the date of order or, if the Client shall prefer, collect the Product at FCPCS's expense and credit the Client for any charges (e.g. price and freight) invoiced by FCPCS.
5.6 Orders for direct shipment to Client's Clients or Special Order Products may require the Client’s acceptance of additional terms including prepayment of the order and will be subject to additional fees.
5.7 FCPCS will set minimum order levels and charge additional fees for any order below such levels. Current minimum order levels can be found on FCPCS's web site www.firstchoicepcs.co.uk. (wholesale to trade only)
6. PRICE OF THE PRODUCTS
6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-
6.1.1 Prices for Products in FCPCS's stock ready to be shipped will be established at the time the order is accepted by FCPCS;
6.1.2 If the Client places an order for Products not in stock at the time of order (a "Backorder") or the Client places an order for scheduled delivery, such orders shall be irrevocable and the price for such Products shall be the price established at the time the Backorder or scheduled delivery is accepted by FCPCS.
6.2 Notwithstanding any of the foregoing FCPCS reserves the right to increase its prices after acceptance of a Backorder or scheduled delivery due to an increase in its supplier's price to FCPCS or an increase in direct costs to which FCPCS becomes subject (including without limit costs resulting from currency fluctuation) but FCPCS shall only increase its price by such level as is necessary to reflect such increases.
6.3 All prices quoted by FCPCS exclude the cost of transport from FCPCS's warehouse to the Client's receiving point, as well as configuration, fulfilment and other services provided by FCPCS.
6.4 All prices and charges are exclusive of any applicable Value Added Tax, which the Client will be additionally liable to pay to FCPCS. Unless otherwise stated prices exclude any copyright levies, waste and environmental fees, and similar charges that FCPCS by law or statute may or shall charge or collect upon resale.
6.5 If Client is offered special pricing for certain orders and such pricing is made available to FCPCS from its suppliers ("Special Bids"), the Client shall adhere to the applicable Special Terms and other terms and conditions of such Special Bids and agrees to indemnify FCPCS for any claims made against FCPCS by the suppliers for Client's non-compliance with the supplier's terms and conditions. Client agrees to pay any service fees charged for FCPCS's pass-through of Special Bids and other supplier driven benefits the Client may receive, including any marketing funding, price protection and individual rebates, and agrees that pass-through and payment of such benefits will be subject to FCPCS having received the benefits from its supplier. The Special Terms may oblige the Client to comply with certain requirements including but not limited to (I) the sale of the Products only to specifically named end-users; (ii) the disclosure of end-user information to FCPCS and its suppliers for the purpose of end-user verification; and (iii) the submission of copies of end-user invoices, end-user purchase orders or end-user shipping documents to FCPCS and its suppliers. Subject to the Special Terms applicable for the individual suppliers and Products, non-compliance with the Special Terms may entitle FCPCS and/or its suppliers to reclaim and invoice the Client in full for all discounts, rebates and other special price conditions granted to the Client under the special price.
7. TERMS OF PAYMENT
7.1 Unless FCPCS shall have previously agreed in writing with the Client that the Products shall be supplied on credit, payment for the Products shall be made in full by the Client with the Client's order or on delivery or collection of the Products as determined by FCPCS. If payment is made by credit or debit card the Client agrees to pay all fees and service charges incurred by FCPCS for the handling of such transaction including fees charged by the card company to FCPCS.
7.2 Where FCPCS has agreed to supply the Products on credit Client shall pay the price of the Products within 30 days of the date of FCPCS's invoice notwithstanding that title to the Products has not passed to the Client. Client shall not deduct or set off any other amount against the invoice as compensation for any payment made prior to the due date. Invoices will be dated the day of dispatch of the Products. FCPCS shall be entitled at its absolute discretion to alter payment terms (other than on concluded Contracts) and withdraw or alter any credit limit granted at any time with notice. If Client exceeds its credit limit or fails to qualify for continued credit terms, FCPCS may, at its sole discretion, delay subsequent shipments or require prepayment until FCPCS determines that Client is once again qualified to receive credit terms. Client shall not set off or withhold any amount due to FCPCS against its receivables without FCPCS's prior written approval, and shall in the event of a bona fide dispute, pay any undisputed part of the invoice.
7.3 The time of payment shall be of the essence. If the Client fails to make a payment on the due date then without prejudice to any other right or remedy available to it FCPCS shall be entitled to:-
7.3.1 cancel the Contract or suspend any further deliveries or suspend any Services to the Client; FCPCS may at its discretion grant Client a reasonable cure period before cancelling the Contract due to non-payment;
7.3.2 appropriate any payment made by the Client to such of the Products as FCPCS may think fit (notwithstanding any purported appropriation by the Client);
7.3.3 charge the Client interest (both before and after judgement) on the amount unpaid at the rate of 5% per annum above Lloyds Bank plc base rate from time to time until payment in full is made such interest being calculated on a daily basis.
7.4 Client shall provide FCPCS's Credit Department (Sally Reed Ltd) with copies of its annual financial statements and its quarterly statements within sixty (60) days of the close of the fiscal period to which they relate. Client shall inform FCPCS promptly if there is a change of ownership or control of Client or its direct or indirect parent company (excluding changes of ownership of the shares of a publicly quoted company which do not result in a change in control of the company's board of directors or other governing board), a management buy-out, or all or a substantial part of the Client's assets are sold or otherwise transferred to any non-affiliated company or member of the Client's group of companies.
7.5 In the event Client intends to sell, assign, factor or otherwise transfer any book debt owed to Client or to enter into any form of invoice discounting arrangement Client agrees to inform FCPCS in writing prior to entering into any such arrangements.
7.6 It is FCPCS's policy not to accept cash as a method of payment for Products or Services.
7.7 If FCPCS issues a credit note and the Client does not utilise the credit note within a period of 12 months from the date of its issue FCPCS shall have the right to cancel the credit note and the Client shall not be entitled to a replacement or any payment in respect of the same.
7.8 Any credit balance shown on a Client's statement of account issued by FCPCS which remains on the statement for a period of 12 months will be forfeited by the Client who shall no longer have any rights to the same.
7.9 FCPCS reserves the right to issue and send all invoices to the Client in an electronic format, and the Client accepts to receive all invoices electronically including receipt of invoices by e-mail.
8. DELIVERY
8.1 Delivery of the Products shall take place Free Carrier FCPCS’s warehouse. Absent specific instructions from the Client FCPCS will select the carrier (normal deliveries via FCPCS). Unless the Client shall have notified FCPCS in writing within 5 working days of the date of FCPCS's invoice that the Products have not been received or that the Products were damaged then delivery shall be deemed to have taken place in accordance with the Contract and the Client shall not be entitled to raise any claim of short or miss-shipment or damage to the Products.
8.2 The Client shall upon receipt of the Products sign the delivery note (proof of delivery) and be responsible for complying with the applicable shipping requirements of FCPCS and its carriers details of which are made available at FCPCS’s web-site (www.firstchoicepcs.co.uk). The Client’s sign-off on FCPCS’s delivery shall be at carton level. FCPCS shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Products on behalf of the Client or the Client's Client (if FCPCS has agreed to deliver direct) does in fact have the authority.
8.3 Any dates quoted or scheduled for the delivery of Products are approximate only and FCPCS shall not be liable for any delay in delivery of the Products howsoever caused.
8.4 Partial delivery is allowed unless otherwise mutually agreed by both parties. Failure by FCPCS to deliver the rest of the Products shall not entitle the Client to treat the order as a whole as repudiated.
8.5 For the purpose of these Conditions where FCPCS has agreed to ship Products direct to the Client's Client any such shipment shall be deemed to be delivery to the Client and any refusal by the Client's Client to accept delivery shall be deemed to be a refusal by the Client. (wholesale only)
8.6 The Client shall bear all costs associated with the unjustified refusal of Products. If the refusal is made on the grounds that the order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is accepted by FCPCS, FCPCS reserves its right to charge accordingly additional fees for return transportation and administrative expenses related thereto, and original carriage costs will not be reimbursed.
9. RISK AND TITLE
9.1 Risk of damage to or loss of Products shall pass to the Client at the time of delivery or if the Client unjustifiably fails to take delivery of Products the time when FCPCS has tendered delivery of the Products.
9.2 Notwithstanding delivery and the passing of risk of the Products or any other provisions of these Conditions, title to the Products shall not pass to the Client until FCPCS has received in cleared funds payment in full of:-
9.2.1 The Products; and
9.2.2 all other sums which are or which become due to FCPCS from the Client on any account.
9.3 Until such time as title to the Products passes to the Client the Client shall:-
9.3.1 hold the Products as FCPCS's fiduciary agent and bailee; and
9.3.2 keep the Products separate to those of the Client and third parties; and
9.3.3 keep the Products properly stored protected and insured, and identified as FCPCS's property; and
9.3.4 Accept that Products may be labelled as being FCPCS's property until FCPCS is paid.
9.4 Until such time as the title in the Products passes to the Client (and provided the Products are still in existence and have not been resold) FCPCS shall be entitled at any time to require the Client to deliver up the Products to FCPCS and if the Client fails to do so forthwith to enter upon any premises of the Client or any third party where the Products are stored and repossess the Products.
9.5 The Client's right to possession of the Products shall terminate immediately if:-
9.5.1 the Client has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Client or for the granting of an administration order in respect of the Client, or any proceedings are commenced relating to the insolvency or possible insolvency of the Client; or
9.5.2 the Client suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between FCPCS and the Client or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Client ceases to trade; or
9.5.3 The Client encumbers or in any way charges any of the Products.
9.6 Client is entitled to resell the Products in the ordinary course of business. Client is not able or entitled to offer the Products as collateral or otherwise grant a charge in respect of the Products until title has passed to the Client in accordance with these Conditions. Client shall inform its Clients that title to the Products is retained by FCPCS until Client has paid FCPCS, and shall ensure that its Client has agreed with the Client that any unpaid Products shall be returned to FCPCS in the event of Client's failure to pay FCPCS's invoices when they fall due. The Client shall upon FCPCS's request provide FCPCS with all details and information necessary for FCPCS to collect the Products.
10. WARRANTIES AND LIABILITY
10.1 FCPCS does not manufacture the Products (or where the Products comprise computer software does not publish or license the software) and subject to the conditions set out below in this Clause 10 FCPCS only sells the Products with the benefit of the manufacturer's or publisher's or licensor's (“publisher's”) warranty (as the case may be).
10.2
10.2.1 FCPCS will accept liability for defective Products only to the extent that FCPCS is entitled to make a claim under the manufacturer's or publishers, Dead on Arrival, warranty or other defective goods terms and actually obtains from the manufacturer or publisher a refund credit repair or replacement in respect of the defective Products. Processing of these defective Products shall be made according to the manufacturer's procedure and the instructions set out in Clause 10.4 below. FCPCS cannot and shall have no obligation to accept a return of and/or grant a credit for Product not compliant with the manufacturer's procedures.

10.2.2 FCPCS shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow FCPCS's or the manufacturer's or publisher's instructions (whether oral or in writing) misuse or alteration or repair of the Products without FCPCS's approval.

10.2.3 FCPCS shall be under no liability under the above warranty if the total price of the Products has not been paid.
10.3 All warranties, conditions or other terms implied by common law or statute or otherwise in connection with the sale or supply of goods or goods or services (save, in the case of goods, as to title) are excluded to the fullest extent permitted by law.
10.4 Any claim by the Client which is based on a defect in the quality or condition of the Products shall be notified to FCPCS's Client Services Department (Head technician). Upon notification of any such claim by the Client FCPCS shall either notify the Client whether the policy of the manufacturer of the Products is to deal with the Client direct (in which case the Client shall deal with the manufacturer direct provided FCPCS gives sufficient details to enable the Client so to do) or shall provide the Client with an RMA number (in which case the Client shall return the Products to FCPCS in their original UNMARKED packaging together with details of the RMA number and the Client's name and address). If FCPCS issues an RMA number to the Client FCPCS shall not send any replacement Products to the Client until after the original Product has been returned to FCPCS. This Clause 10.4 shall only apply to Products the Client is entitled to return to FCPCS as provided in these Conditions.
10.5 FCPCS shall not be liable to the Client for any economic or financial loss or damage (including without limit any loss of profits, loss of revenue, liabilities incurred by the Client to third parties relating to Products delivered or Services rendered by FCPCS, or additional expenses incurred or the cost of time spent) or any consequential, indirect, or special loss or damage costs expenses or other claims for consequential compensation whatsoever (including without limit loss of or damage to data or loss of goodwill) incurred or suffered by the Client and in every case howsoever caused or arising (and whether caused by the negligence of FCPCS its employees or agents or otherwise).
10.6 FCPCS's liability for direct loss or damage arising from damage to tangible property for which FCPCS is liable shall be limited to the VAT exclusive price of the relevant Product or Service. In no event shall FCPCS’s liability exceed the maximum amount of FCPCS’s insurance cover.
10.7 Nothing in these Conditions shall in any way exclude or limit any liability FCPCS may have for death or personal injury caused by its negligence.
10.8 FCPCS shall not be liable to the Client or be deemed to be in breach of any Contract by reason of any delay in performing or any failure to perform any of FCPCS's obligation in relation to the Products or Services if the delay or failure was due to any cause beyond FCPCS's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond FCPCS's reasonable control:-
10.8.1 Act of God explosion flood tempest fire or accident;
10.8.2 act of terrorism war or threat of war sabotage insurrection civil disturbance or requisition;
10.8.3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental or parliamentary or local authority;
10.8.4 import or export regulations or embargoes;
10.8.5 strikes lock outs or other industrial actions or trade disputes (whether involving employees of FCPCS or a third party);
10.8.6 Difficulties of FCPCS's supplier in obtaining raw materials labour fuel parts or machinery.
10.9 If Client is selling Products or Services purchased from FCPCS to a Consumer the Client shall ensure the Consumer is given sufficient and appropriate information and descriptions as to the Product's or Services' fitness for the purpose for which the Products or Services are normally used and any particular purpose the Consumer has required or agreed with the Client. Client shall not remove or replace any labelling, user manuals, components or other material from the Product as supplied by the manufacturer or FCPCS, and shall not in its advertising, marketing or labelling provide any public statements on the specific characteristics of the Products or Services on behalf of FCPCS, the manufacturer or their representatives.
10.10 Client accepts liability for the Products' conformity with the Client's Consumer contract ('conformity' as defined by the EU Directive 1999/44/CE of May 25, 1999 and legislation implementing the Directive), and Client shall not offer any warranties or representations to the Consumer as to the quality, fitness for purpose of the Products without the manufacturers' express consent. Client agrees to hold harmless and indemnify FCPCS and the manufacturers against any loss, costs, and damages caused by the Client's acts or omissions, and non-compliance with the obligations set forth in Clause 10.9, Clause 10.10 and Clause 10.11. If Client is held liable to the Consumer caused by a Product's lack of conformity resulting from an act or omission by the manufacturer or FCPCS, or any other intermediary, Client may by law or statute be entitled to pursue remedies against FCPCS, the manufacturer or any other person liable in the contractual chain. Provided Client is legally entitled to pursue such remedies and FCPCS is held liable by a competent court of law, FCPCS's liability to Client shall be limited to an amount corresponding to the Client's original purchase price of the Product or Service giving rise to the claim by the Consumer.
10.11 Should the Product warranties offered by the manufacturers or FCPCS under these Conditions be restricted compared to the guarantees the Consumer is entitled to under law, the Client agrees to take sole responsibility towards the Consumer for the excess liability and waives any claim it may have against FCPCS in respect of such excess.
10.12 The Products are subject to the intellectual property rights of FCPCS's suppliers (i.e. the Product manufacturers). Client is not authorised to alter, cover, or remove any reference to such intellectual property rights on the Products, and shall adhere to any guidelines and restrictions provided by FCPCS's suppliers if the Client is granted a right to use such rights in the marketing and resale of Products. FCPCS shall have no duty to defend, indemnify or hold Client harmless from and against any or all claims brought against Client or damages and costs incurred by Client arising from the infringement of a third party's intellectual property rights, except to the extent FCPCS's supplier is offering such defence or indemnification to FCPCS on a pass through basis. Upon threat of claim or claim of infringement, FCPCS may, at its option (I) procure the right to continue using any part of Product, (ii) replace the infringing Product with a non-infringing Product of similar performance, or (iii) refund to the Client the purchase price paid by the Client for the infringing Product. Notwithstanding any other terms or conditions to the contrary FCPCS's liability for infringement of intellectual property rights under these Conditions shall not exceed the Client's purchase price for the infringing Products.
11. RETURNS AND REPAIRS
11.1 Except for Special Order Products, which are expressly excluded from the terms of this Clause 11 and cannot be returned under any circumstances, if FCPCS agrees to accept the return of any Products (other than for the purpose set out in Clause 10 above) or agrees to carry out repairs to other products which have not been purchased from FCPCS or agrees to repair Products which are out of warranty the Client shall not send the same to FCPCS unless they are accompanied by an RMA number previously advised by FCPCS's Client services department and a copy of the relevant sales invoice and are sent in their original packaging.
11.2 The Client shall notify FCPCS within 5 working days of any delivery discrepancies or Product damages, other than for the purposes set out in Clause 10. If FCPCS issues a returns number (RMA), Products must be returned to FCPCS within 5 working days of the date thereof.
11.3 If FCPCS has agreed to carry out repairs or to replace Products (or any parts thereof) other than for the purpose set out in Clause 10 above the Client irrevocably authorises FCPCS to carry out such repairs or provide such replacements as shall place the Products in proper working order.
11.4 FCPCS shall accept no liability for any damage to or loss in transit of Products returned to FCPCS whether under this Clause or under Clause 10 above unless FCPCS collects the Products using its own carrier.
11.5 If FCPCS has agreed to accept the return of Products, other than for the purposes set out in Clause 10 above or for the purpose of carrying out any other repair or replacement, the Products must be returned in their original packaging and in a clean resalable condition, and will be subject to a re-stocking fee at FCPCS's discretion, failing which FCPCS will refuse to accept the same and the Client shall remain liable for the price thereof.
11.6 Details of FCPCS's returns process and terms can be found on www.firstchoicepcs.co.uk and Client agrees to comply with this process and abide to the terms when returning any Product to FCPCS.
12. INSOLVENCY OF CLIENT
12.1 If:-
12.1.1 the Client makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation otherwise than for the purposes of a solvent amalgamation or solvent reconstruction;
12.1.2 an encumbrance takes possession or a receiver is appointed of any of the property or assets of the Client; or
12.1.3 the Client ceases or threatens to cease carrying on business; or
12.1.4 FCPCS reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly;
then upon the happening of any of the above, without prejudice to any other right or remedy available to FCPCS, FCPCS shall be entitled to cancel the Contract and/or suspend any further deliveries or services under the Contract without any liability to the Client and if the Products have been delivered and not paid for then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13. CONFIGURATION AND OTHER SERVICES
13.1 If agreed in any particular case FCPCS will provide configuration Services to Client. Configuration Services will be at the price agreed at the time the order is accepted. The Client shall be solely responsible for the accuracy of its order, the specification of the components and their configuration and for ensuring that the configured product specified is satisfactory for the purposes for which it is required including without limit that it has sufficient overall functionality, and will support, be compatible and inter-operable with any hardware, software or middleware with which it is intended to operate.
13.2 Configuration Services will have a warranty of 14 days from the date of shipment to the Client. FCPCS's sole liability (and the Client's sole remedy against FCPCS) in respect of any defective Services for which FCPCS is responsible shall be the repair by FCPCS or at FCPCS's option replacement of the Product on which the Services have been performed. (If any alleged defect shall be attributable to defect in Product the provisions of Clause 10 shall apply). Claims in respect of defective Services must be made within 21 days of the date of delivery of the configured Product.
13.3 FCPCS may offer other Services to Client including direct fulfilment and billing, installation and support services, storage and consolidation, and other logistics services. Such Services will be provided under these Conditions in addition to specific terms agreed upon in writing with Client.
14. MISCELLANEOUS
14.1 Client is not allowed for any purpose whatsoever to use FCPCS's logos and trade marks without FCPCS's prior written approval from an Authorised Representative.
14.2 Client agrees that FCPCS may use Client data, including any personal data, for the purpose of marketing and sales of Products, and Client agrees to FCPCS's collection, storage and use of such data for this purpose. Personal data will not be shared with third parties without the Client's consent. Client agrees to receive Product information and promotions and other communications from FCPCS by e-mail and other communication tools.
14.3 Client agrees to comply with its obligations under the WEEE directive (EC Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003) as implemented in the UK.
15. CLIENT IDENTIFICATION
15.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
15.2 No waiver by FCPCS of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.3 If any provision of these Conditions is held by any authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
15.4 These Conditions and any Contract shall be governed by the laws of England and the Client submits to the exclusive jurisdiction of the English Courts.

16. Clients leaving FCPCS's

16.1 Clients are required to pass on to FCPCS's details of any new company working on their behalf so we may make provisions to hand over any data FCPCS's handles on behalf of the client WITHIN 14 days.
16.2 Clients data will not be held by FCPCS's for longer than 14 days from the receipt of termination of contract or any communication to FCPCS's that we no longer represent the client.
16.3 FCPCS's reserves  the right to hold data that FCPCS's has copyright held upon this is to include websites, designs, Logos or any such material that FCPCS’s created for the client.
16.4 domains FCPCS’s will not hold domains for more than 14 days from the time FCPCS’s are informed we no longer act for the client.  Clients are therefore advised that FCPCS’s will return all domains to the governing body unless clients provided with an ISP tag for FCPCS’s to be able to transfer the domains. 
16.5 web sites FCPCS’s unless specifically asked for in writing hold copyright to all websites hosted and designed by FCPCS’s.  FCPCS’s do not under any circumstance other than above release copyright.  Please be aware of this before asking us to transfer your website.
16.6 domain names FCPCS’s will use their admin data on all domains for all websites hosted by FCPCS’s unless specifically requested by the client.  Clients made provide the owner data which FCPCS’s will then use on the domains.

REF 20070117 – First Choice PCs Terms and Conditions Of Sale