These terms ('Terms') apply to all Products, Software and/or Services purchased by or on behalf of customer (the legal person who agrees to buy the Products, Software and/or Services from Disking) ('Customer') direct from Disking International Limited ('Disking') for its internal use only and to the exclusion of all other terms and conditions.
These Terms together with Disking’s Order Documents and Service Documents (as defined below) form a legally binding contract between Customer and Disking for the purchase of Products, Software and Services (“the Agreement”). These documents will apply in following order of priority:
Order Documents
Service Documents
These Terms
2. Definitions
'Confidential Information' means collectively information of the disclosing party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, 'know-how', or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential.
'Deliverables' means tangible and intangible materials including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Disking or its suppliers, licensors in the course of providing the Services.
'Disking-branded' means IT hardware, software and related products and services which are marked with the Disking logo or sold under the Disking brand and components thereof, excluding (1) Third Party Products and (2) any parts or components added after delivery of the Products or through Disking’s custom factory integration service.
Intellectual Property Rights' means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
'Materials' means all content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software.
'Order Documents' means the quotation and/or the order confirmation and/or the invoice sent by Disking to Customer which describes the Products, Software and Services purchased by Customer under the Agreement as well as Prices, payment terms and other provisions.
'Prices' means the gross price payable for the Products, Software and/or Services including the charges set out in clause 3.2.
'Products' means computer hardware and related products supplied by Disking under the Agreement.
'Services' means the services provided by Disking as described in any Service Documents.
'Service Descriptions' means descriptions of services found with Disking.
'Service Documents' means the Service Descriptions available at Disking, Statements of Work and any other mutually agreed documents describing Services, Software or Deliverables.
'Software' means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Disking to Customer. Software includes software (1) provided by Disking and locally installed on Customer’s hardware and/or equipment or (2) made available by Disking and accessed by Customer through the internet or other remote means (such as websites, portals, and 'cloud-based' solutions).
'Statement of Work' means any mutually agreed statement of work describing specific Services and/or Deliverables as agreed between Customer and Disking.
'Third Party Products' means any non Disking-branded products, software, or services.
3. Ordering, Prices, Payment
3.1 Any quotes issued by Disking shall be valid for 15 days unless stated otherwise in the quote.
3.2 Prices for the Products, Software and Services shall be stated in the Order Documents or Service Documents issued by Disking and be in Pounds Sterling (GBP). Where deliveries occur in instalments or phases Disking may need to adjust Prices for Products, Software or Services due to changes in exchange rates, taxes, duties, freight, levies and purchase costs. Quotes provided by Disking exclude value added tax, sales tax, governmental fees and any other applicable taxes, levies, and shipping charges unless expressly set out in the quote. Such charges are payable by Customer in addition to the prices quoted and may appear as separate items on the Order Documents. If the Customer is eligible for tax exemptions, it shall provide Disking with a valid certificate of exemption or other documentary proof of exemption.
3.3 Payment in full by cleared funds, for Products, Software or Services must be received by Disking prior to Disking shipping the Products or providing the Software or Services to Customer. If for any reason the sum due from the Customer to Disking under the Agreement is not paid by the due date for payment then (without prejudice to any other right or remedy available to Disking), Disking shall be entitled to:
Cancel or suspend its performance of the Agreement or any order including suspending deliveries of the Products and/or Software.
Suspend provision of the Services until cleared funds are received in full.
Charge interest on overdue amounts at a rate of 3 per cent above the Bank of England base rate calculated on a daily basis (both before and after judgement) until full payment is received.
3.4 All payments made or to be made by Customer to Disking under this Agreement shall be made free of any restriction or condition and without any deduction or withholding (except to the extent required by law) on account of any other amount, whether by way of set-off or otherwise.
3.5 Disking may invoice electronically and the parties agree to make the necessary arrangements to enable such electronic invoicing to take place.
4. Returns and Exchanges
4.1 If the customer has changed their mind, Disking will exchange any product(s) sold in-store within 28 days for any other product (or products) or service provided that the original product(s) are returned in the condition that they were sold. If the customer purchased a product online then it may be exchanged within 14 days or if the customer wishes, refunded minus shipping and handling fees.
4.2 After 28 days for in-store purchases or 14 days for web purchases, exchanges and refunds (as detailed in 4.3) may be offered on a case-by-case basis and are at the sole discretion of Disking and may incur a 25% restocking fee. If a refund is offered at this time Disking will only offer in-store credit.
4.3 Software and Consumables (i.e. Printer Ink, Batteries etc) are exempt from the above and Disking will not accept exchanges or refunds on these products unless they are, deemed faulty (4.4), retain their original factory seals, are unopened and returned within the time period specified in 4.1.
4.4 Should the customer suspect any product(s) sold or purchased online to be faulty, the product(s) may be returned within 28 days of the original sale to any Disking retail store outlet or shipped back to our Liphook HQ at the customer's expense, providing that it is in good condition, it is accompanied by a valid till reciept or invoice, and it is complete in it's original packaging with all handbooks and associated accessories as supplied at point of sale or delivery. Disking will then test this product for any reported faults within 3 working days of receipt.
4.5 A refund or exchange will be offered to the customer upon completion of testing if a fault or defect is identified or if Disking is supplied with a Return Material Authorisation (RMA) number from the product's manufacturer.
4.5 If no fault or defect are identified with the product(s), a ÂŁ5 administration / testing fee will be applied and the customer will be required to collect their product(s) from a Disking retail store of their choice after a minumum of 3 working days or Disking may ship the product(s) back to the customer's billing address at the customer's expense.
5. Changes to Products, Software or Services
5.1 Changes in a Product, Software, or Service may occur after a Customer places an order but before Disking ships the Product or Software or performs the Service, and Products and Software or Services Customer receives might display minor differences from the Products, Software, or Services Customer orders but they will meet or exceed all material functionality and performance of the Products, Software or Services that were originally ordered.
6. Products
6.1 Disking shall deliver the Products to Customer’s location or the customer may collect from any one of Disking’s premises as agreed prior and set out in the Order Documents. For any product purchased online or any RMA return we reserve the right to use the courier of our choice. Normally smaller orders may be sent via Royal Mail, whereas larger orders may be sent by Parcel Force, Interlink or alternative couriers. We aim for most packages to be delivered to the UK mainland in 3-5 business days. Signatures will normally be required for larger orders. Disking reserves the right to ship orders to the Billing Address for any reason. Delivery dates are non-binding and time for delivery shall not be of the essence. If no delivery dates are specified, delivery shall be within a reasonable time. Delivery of Products may be made in instalments. Disking shall not be liable for any loss (including loss of profits), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by Disking’s negligence), nor will any delay entitle Customer to terminate or rescind the Agreement. Disking shall only be liable for any non-delivery of Products if Customer gives written notice to Disking within 7 days of the date when the Products would, in the ordinary course of events, have been delivered.
6.2 The Products shall be at the risk of Customer or its representative from the time of delivery. Disking retains all title to the Products until full payment for such Products is received by Disking from Customer. Therefore, until full payment is received, Customer will (1) hold the Products on a fiduciary basis as Disking’s bailee and shall not pledge or in any way charge by way of security for any indebtedness any of the Products (2) ensure that the Products remain readily identifiable as Disking's property (3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products (4) maintain the Products in satisfactory condition and keep them insured [on Disking's behalf] for their full price against all risks to the reasonable satisfaction of Disking. On request Customer shall produce the policy of insurance to Disking. Customer grants Disking, its agents and employees an irrevocable licence at any time to enter without restriction any premises where the Products are or may be stored without prior notice in order to inspect them, or, where Customer's right to possession has terminated, to recover them. Disking shall be entitled to maintain an action against Customer for the price of the Products notwithstanding that title to and property in the Products has not passed to Customer.
6.3 Customer shall inspect the Products to identify any missing, wrong or damaged Products or packaging, and notify Disking of any such issues which would be apparent on reasonable inspection and testing of the Products within 7 days of the date of delivery of the Products. Where the defect or failure would not be so apparent within 7 days of the date of delivery, Customer shall notify Disking in writing of any defects or other failure of the Products within a reasonable time. If Customer does not comply with the notification requirements in this clause, Customer shall not be entitled to reject the Products; Disking shall have no liability for such defect or failure, and Customer shall be bound to pay for the Products as if they had been delivered in accordance with the Agreement. Disking shall, at its discretion, repair or replace Products rejected in accordance with this clause.
6.4 If for any reason Customer does not accept delivery of any of the Products when they are ready for delivery, or Disking is unable to deliver the Products on time because Customer has not provided appropriate instructions, documents, licences or authorisations then the Products will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Disking’s negligence) and Disking may:
6.4.1 store the Products until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or
6.4.2 sell the Products at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the Price for the Products.
7. Services, Software provided by Disking in connection with the provision of the Services & Deliverables
7.1 Disking shall provide Services, Software, or Deliverables to Customer in accordance with the Service Documents. Disking may, at its option, propose to renew the Service and the Software licence by sending Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer is deemed to have agreed to such renewal of the Service and Software licence by paying such invoice by its due date or by continuing to order Services or use the Software.
7.2 All Intellectual Property Rights embodied in the Materials and Deliverables shall belong solely and exclusively to Disking, its suppliers or its licensors except as expressly granted in this Agreement.
7.3 Subject to payment in full for the applicable Services, Disking grants Customer a non-exclusive, non-transferable, royalty-free right to use the Materials and Deliverables solely (1) in the country or countries in which Disking delivers the Services, (2) for its internal use, and (3) as necessary for Customer to enjoy the benefit of the Services as stated in the applicable Service Documents.
7.4 Disking may cancel or suspend its performance of the Services or Customer’s access or any user access to the Software provided by Disking in connection with the provision of the Services where Disking is required to do so (1) by law, (2) by order of a court of competent jurisdiction, or (3) when Disking has reasonable grounds to believe that Customer (or Customer’s users) are involved in any fraudulent or other illegal activities in connection with the Agreement.
7.5 It may be necessary for Disking to carry out scheduled or unscheduled repairs or maintenance, or remote patching or upgrading of the Software provided by Disking in connection with the provision of the Services and which is installed on Customer’s computer system(s) (“Maintenance”), which may temporarily degrade the quality of the Services or result in a partial or complete outage of the Software. Any degradation or interruption in the Software or Services during such Maintenance shall not give rise to a refund or credit of any fees paid by Customer.
7.6 Customer agrees that the operation and availability of the systems used for accessing and interacting with the Software provided by Disking in connection with the provision of the Services (including telephone, computer networks and the internet) or to transmit information can be unpredictable and may from time to time interfere with or prevent access to, use or operation of the Software. Disking shall not be liable for any such interference with or prevention of Customer’s access to, use or lack of operation of the Software.
7.7 During the performance of the Services or in connection with Customer’s use of the Software provided by Disking in connection with the provision of the Services, it may be necessary for Disking to obtain, receive, or collect data or information, including system specific data (collectively, the “Data”). Customer grants to Disking a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to:
7.7.1 use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for the purposes set out in clause 7.7;
7.7.2 a licence to aggregate the Data with other data for use in an anonymous manner for Disking’s marketing and sales activities; and
7.7.3 a right to copy and maintain such Data on Disking’s servers (or the servers of its suppliers) during the term of this Agreement.
7.8 Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which Customer is located in connection with Disking’s performance of the Services or Customer’s use of the Software.
8. Services
8.1 Where the Services purchased consist of repair of Disking-branded Products, such Services shall be those repair services that are necessary to fix a defect in materials or construction of any Products covered by this Agreement. Preventive maintenance is not included and Disking shall not be responsible for repairs of Disking-branded Products caused by problems with Software or Customer provided Third Party Products. Unless expressly stated in a Service Document, Services do not include repair of any Products or Product component that has been damaged as a result of (1) work carried out by anyone other than Disking or its representatives (2) accident, misuse, or abuse of the Product or Product component (such as, without limitation, use of incorrect line voltages or fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Disking or its representatives; (3) the moving of the Product from one geographic location or entity to another; or (4) an act of nature, including without limitation, lightning, flooding, tornado, earthquake, or hurricane. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
8.2 Customer authorises Disking to use or access any Customer provided Third Party Products as necessary or as requested by Customer in Disking’s performance of the Services, including without limitation, copying, storing, and reinstalling a backup system or data. Customer shall defend, indemnify, and hold Disking harmless from any third party claim or action arising out of Customer’s failure to provide such authorisation (including without limitation, obtaining appropriate licenses, Intellectual Property Rights, or any other permissions, regulatory certifications, or approvals associated with technology, software, or other components).
9. Software
9.1 Software is subject to separate software licence agreements accompanying the software media and any product guides, operating manuals, or other documentation presented to Customer during the installation or use of the Software.
9.2 In the absence of licence terms accompanying the Software, Disking grants Customer a non-exclusive licence to access and use the Software provided by Disking. Software provided or made available to Customer by Disking in connection with the provision of the Services may be used only during the term of the Services and solely as necessary for Customer to enjoy the benefit of the Services.
9.3 For Software provided by Disking in connection with the provision of the Services, the following clauses shall apply:
9.3.1 Customer may not: (1) copy (save for making a back up copy), adapt, licence, sell, assign, sublicense, or otherwise transfer or encumber the Software; (2) use the Software in a managed services arrangement; or (3) use the Software in excess of the authorised number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Service Documents.
9.3.2 Customer is prohibited from (1) attempting to use or gain unauthorised access to Disking or to any third party’s networks or equipment; (2) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Disking or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Disking (or Disking’s suppliers’) facilities used to deliver the Services.
9.4 Customer grants Disking, or an agent designated by Disking, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with Disking in such audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to verification of Customer’s compliance with the terms of usage relating to such Software under this Agreement.
10. Warranty
10.1 Subject to clause 10.3, Disking warrants that Disking-branded Products shall (1) conform to their product specification and (2) be free from material defects for a period of 12 months from the date of the invoice (“Warranty Period”) and (3) that Disking-branded spare parts shall be free from defects for 90 days from the date of delivery or for the remainder of the Warranty Period, if longer. Performance of any one of the options set out at clause 9.3 below shall constitute an entire discharge of Disking’s liability under the warranties given in this clause 9.1.
10.2 All warranties, conditions and other terms implied by law are to the fullest extent permitted by law, excluded from this Agreement.
10.3 Disking shall at its own discretion, repair or replace Disking-branded Products that do not comply with the warranties set out in clause 10.1 provided Disking is notified in writing of the alleged defect within 7 days of the time when Customer discovers or ought to have discovered the defect and in any event within the Warranty Period. If Disking elects to replace Disking-branded Products or parts pursuant to the warranties set out in clause 9.1, Disking shall deliver the replacement Products or parts to Customer at Disking’s own expense at the address to which the defective Disking-branded Products were delivered and the legal, equitable and beneficial title to the defective Products or parts which are being replaced shall (if it has vested in Customer) re-vest in Disking. Customer shall make any arrangements as may be reasonably necessary to deliver up to Disking the defective Products which are being replaced and Disking shall be entitled to charge Customer if such defective Product or parts are not returned on request.
10.4 Disking warrants that (1) the Services and Deliverables shall conform to the Service Documents and (2) the Services shall be performed with reasonable skill and care during the applicable service period.
10.5 Disking warrants that for a period of 90 days from the date of delivery Disking-branded Software will be capable of functioning in all material respects in accordance with the relevant specifications provided (1) Customer notifies Disking of any error or defects in the Software within 14 days of the time when Customer discovers or ought to have discovered the error or defect and (2) Customer provides Disking with documented examples of such error or defect. Disking provides no assurance or warranty that the Software will be free from minor errors. Disking’s sole responsibility in respect of the warranty given in this clause 9.5 and Customer’s sole remedy shall be the correction of any failure of the Disking-branded Software so that it functions in material respects in accordance with the relevant specifications.
10.6 Disking shall not be liable under the warranties given in this clause 10 in respect of:
10.6.1 any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Disking’s instructions (whether oral or in writing), misuse or alteration, modification, adjustment or repair of the Products and/or Software without Disking’s approval;
10.6.2 if the total Price for the Products and/or Software has not been paid by the due date for payment;
10.6.3 for any Products, Software, Deliverables parts, materials or equipment not manufactured or produced by Disking, in respect of which Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier to Disking to the extent that they are assignable by Disking to Customer;
10.6.4 any Software, Deliverables and Products manufactured, produced or provided by Disking pursuant to the Agreement in accordance with any design, specification, instruction or recommendation made to Disking by Customer;
10.6.5 any type of defect, damage or wear specifically excluded by Disking by notice in writing; and/or
10.6.6 if Customer makes any further use of the Products and/or Software after giving notice pursuant to clause 10.3.
10.7 Disking does not warrant that the Products, Software, Deliverables or Services will function (1) with any specific configuration not provided by Disking or (2) to produce a specific result even if the configuration or result has been discussed with Disking.
11. Liability
11.1 Neither party excludes or limits liability to the other party for (1) death or personal injury resulting from negligence, (2) fraud or (3) fraudulent misrepresentation or (4) any other liability that cannot be excluded by law.
11.2 Neither party shall be liable for:
11.2.1 special, indirect or consequential loss or damages;
11.2.2 loss of profit, income or revenue;
11.2.3 loss of use of Customer’s system(s) or networks;
11.2.4 loss of goodwill or reputation;
11.2.5 loss of, corruption of or damage to data or software; or
11.2.6 recovery of data or programs.
11.3 Disking’s total liability to Customer howsoever arising out of or in connection with the Agreement whether for negligence or breach of contract or otherwise shall not exceed 125% of the Price payable by Customer under the Agreement for Products, Software, Deliverables and/or Services.
12. High Risk Activities
12.1 Customer acknowledges that the Products, Software, Deliverables and Services are not designed or intended for use in hazardous environments requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life support machines, or any other application in which the failure of the Products, Software, Deliverables or Services could lead directly to death, personal injury, or severe physical or property damage (“High Risk Activities”). Disking expressly disclaims any express or implied warranty of fitness for High Risk Activities.
13. Confidentiality
13.1 Each party must treat all Confidential Information received from the other party as it would treat its own confidential information generally, but with no less than a reasonable degree of care.
14. Indemnities
14.1 Disking shall defend and indemnify Customer against any third-party claim or action that Disking-branded Products, Software, Deliverables or Services prepared or produced by Disking and delivered pursuant to this Agreement infringe or misappropriate that third party’s Intellectual Property Rights enforceable in the country in which Disking delivers and the Customer is authorised to receive such Products, Software, or Services (“IPR Claim”). If Disking receives prompt notice of an IPR claim that, in Disking’s reasonable opinion, is likely to result in an adverse ruling, then Disking shall at its option, (1) obtain a right for Customer to continue using such Products, Deliverables or Software or allow Disking to continue performing the Services; (2) modify such Products, Deliverables, Software, or Services to make them non-infringing; (3) replace such Products, Deliverables, Software, or Services with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverable or Software.
14.2 Notwithstanding clause 13.1, Disking shall have no obligation under clause 14.1 for any IPR Claim arising from (1) modifications of Disking-branded Products, Deliverables, Software, or Services that were not performed by or on behalf of Disking; (2) the combination, operation, or use of such Products, Deliverables, Software, or Services in connection with a third party product, software, or service (the combination of which causes the claimed infringement); or (3) Disking’s compliance with Customer’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer.
14.3 Clauses 14.1 and 14.2 set out Customer’s sole and exclusive remedies for any IPR Claim.
14.4 Customer shall defend and indemnify Disking against any third party claim or action arising out of (1) Customer’s failure to obtain any appropriate licence, Intellectual Property Rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by Customer, or (2) associated with software or other components directed or requested by Customer to be installed or integrated as part of the Products, Deliverables, Software or Services; (3) Customer’s breach of Disking’s proprietary rights as stated in this Agreement; or (4) any inaccurate representation regarding the existence of an export licence; or (5) any allegation made against Disking due to Customer’s breach or alleged breach of applicable export laws, regulations, or orders.
15. Termination
15.1 Either party may (without prejudice to any other rights or remedies it may have against the other party) terminate this Agreement by notice in writing immediately if the other party:
15.1.1 commits a material breach of the Agreement and fails to remedy such breach within 30 days of written notice; or
15.1.2 ceases, or threatens to cease, to carry on business or, becomes insolvent.
15.2 Disking may terminate this Agreement with immediate written notice if Customer:
15.2.1 fails to pay undisputed sums properly due to Disking in accordance with the Agreement;
15.2.2 Customer breaches or Disking reasonably suspects Customer has breached export control laws;
15.2.3 Customer breaches any IPR obligations, warranties and indemnities set out in the Agreement.
15.3 On termination of this Agreement, all rights and obligations of the parties relating to the Products, Services and/or Software relevant to the specific Order Documents under the Agreement will automatically terminate except for rights of action accruing prior to its termination
15.4 The following clauses shall survive termination of the Agreement and continue to bind the parties, their successors and assigns: 1 (Introduction); 2 (Definitions); 3.3 (Payment); 5 (Products); 6 (Services, Software & Deliverables); 7 (Services); 9 (Warranties); 10 (Liability); 11 (High Risk Disclaimer); 12 (Confidentiality); 13 (Indemnities); 14 (Termination); 15 (Force Majeure); 16 (Export Compliance); 17 (Data Privacy); 18 (WEEE Compliance); and 19 (General).
16. Force Majeure
16.1 Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by any circumstances beyond a party’s reasonable control including, without limitation, fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (“Force Majeure Event”) provided that the delayed party shall provide the other party with prompt written notice of the Force Majeure Event. The delayed party’s time for performance shall be excused for the duration of the Force Majeure Event, but if the Force Majeure Event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
17. Export Compliance
17.1 Customer acknowledges that the Products, Deliverables, Software, and Services provided under this Agreement, (which may include technology and encryption), (1) are subject to U.S. and European customs and export control laws, (2) may be rendered or performed in countries outside the U.S. or Europe, or outside of the borders of the country in which Customer or Customer’s Products are located, and (3) may also be subject to the customs and export laws and regulations of the country in which the Products, Deliverables, Software, or Services are rendered or received. Under these laws and regulations, Products, Deliverables, Software, and Services purchased under this Agreement may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries. In addition, the Products, Deliverables, Software and Services may not be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in activities related to weapons of mass destruction, including but not necessarily limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. Customer agrees to abide by those laws and regulations.
17.2 Customer represents that any software provided by it and used as part of the Products, Deliverables, Software, or Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a licence. If Customer cannot make the preceding representation, Customer agrees to provide Disking with all of the information needed for Disking to obtain export licences from the U.S. government or any other applicable national government and to provide Disking with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is solely responsible for obtaining any necessary licenses relating to the export of software. Disking also may require export certifications from Customer for Software.
17.3 Disking’s acceptance of any order for Products, Deliverables, Software, or Services is contingent on the issuance of any applicable export license required by the U.S. Government or any other applicable national government. Disking shall not be liable for delays or failure to deliver Products, Deliverables, Software, or Services resulting from Customer’s failure to obtain such licence or to provide such certification.
17.4 Customer agrees to indemnify, defend and hold Disking harmless from any third party claims, demands, or causes of action against Customer’s breach or alleged breach of the applicable export laws
18. Data Privacy
In this section 18, the terms 'data controller', 'data processor', 'personal data' and 'processing' shall be as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.
18.1 To the extent Customer and Disking are data controllers for the purpose of any personal data processed under or in connection with this Agreement, each party shall comply with the provisions and obligations imposed by the Directive to the extent required by that legislation of each party. As data controller, Customer confirms that it has obtained all necessary authorisations for lawful processing, prior to passing personal data to Disking.
18.2 To the extent Disking processes personal data as a data processor for Customer under or in connection with this Agreement, Disking shall ensure appropriate protection is in place to safeguard such personal data. Disking shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of Disking’s reasonable professional charges for the time engaged by Disking staff in so doing.
18.3 Customer authorises Disking to collect, use, store and transfer the personal data Customer provides to Disking for the purpose of performing Disking’s obligations under this Agreement and for any additional purposes described, pursuant to the Agreement.
18.4 Disking may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Disking shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.
18.5 Disking shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Disking to the extent that such action or omission resulted from compliance by Disking with Customer’s instructions.
19. WEEE Compliance
19.1 Disking takes responsibility for compliance with the Waste Electrical and Electronic Equipment Directive 2002/96/EC (“WEEE”), including without limitation: reporting of equipment placed on the market, payment of ECO-fees to the appropriate authority where required and take back of product at Disking provided collection facilities in accordance with WEEE as transposed in national legislation. Products deposited at collection facilities will be recycled by Disking in accordance with WEEE. Customer shall be responsible for returning products at its cost to Disking’s designated collection facilities.
20. General
20.1 Notices given under the Agreement must be in writing and shall be effective when delivered to the other party’s legal officer at the address stated on Disking’s invoice.
20.2 Neither party may assign or transfer this Agreement without the prior written consent of the other party except that (1) no consent is required by Disking to assign to its affiliated companies and (2) Disking may subcontract its obligations under the Agreement but shall remain liable and responsible to Customer for such obligations.
20.3 This Agreement constitutes the entire agreement between the parties and each party acknowledges that in entering into this Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
20.4 Any changes to this Agreement or to any order placed pursuant to it shall not be valid or binding unless it is in writing and agreed by parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be struck out or modified to the extent necessary to comply with the law, and the remainder of this Agreement shall remain in full force and effect.
20.5 A waiver by either party of a breach of the Agreement or delay or failure to enforce a right under the Agreement shall not constitute a waiver of any subsequent breach of the Agreement.
20.6 A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
20.7 The Agreement and any non contractual obligations shall be interpreted according to English law and the English courts shall have exclusive jurisdiction.
20.8 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention) shall not apply to the Agreement.
