INGEN DISTRIBUTION UK LIMITED
STANDARD TERMS OF SALE FOR PEPLINK PRODUCTS
1 DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, unless expressly stated to the contrary, the following expressions shall have the following meanings:
- Business Day(s) a day other than a Saturday or Sunday or public holiday in England and Wales;
- Contract each agreement for the supply of Goods formed in accordance with clause 2;
- Customer as named overleaf on the Trading Account Form;
- End Users the persons to whom the Products are sold, leased, hired or otherwise made available by a Reseller;
- Ingen as detailed overleaf on the Trading Account Form;
Insolvency Event any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of a corporate entity for any composition or arrangement with creditors generally, winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if the entity is unable to pay its debts as they fall due, or if the corporate entity ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the corporate entity is incorporated, resident or carries on business;
Intellectual Property Rights all intellectual and industrial property rights, including patents, rights in registered and unregistered trade marks (including domain names), rights in registered and unregistered designs, utility models, trade or business names, confidential information, know-how, database rights, passing-off rights, and copyright (including moral rights), or other industrial, intellectual or commercial rights (including rights in any invention, discovery or process), and applications for registration of any of the foregoing, and the right to apply therefor, in each case in any part of the world;
Order each order for the Products placed by the customer whether by email, telephone or via Ingen’s online ordering system
Peplink Peplink International Limited, a Hong Kong corporation with its principal place of business at 1703A, 17/F, Park Building, 476 Castle Peak Road, Cheung Sha Wan, Kowloon, Hong Kong;
Peplink Warranty the standard limited warranty provided by Peplink in respect of the Products;
Price the sum payable for the Products and detailed in each Contract;
Products the Peplink hardware together with any pre-installed software the quantity and description of which are set out in each Contract;
Reseller a Customer who has permission from Ingen (pursuant to clause 3.1) to purchase the Products and supply the Products to End Users either for purchase, hire or other terms of use;
Terms these Standard Terms of Sale;
Territory those member states of the European Union unless otherwise agreed;
Trading Account Form the trading account form attached to these Terms;
Writing/writing includes e-mail, facsimile transmission and comparable means of communication except in the case of service of notices pursuant to clause 18.8.
1.2 References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision. 1.3 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association. 1.4 References to any party shall include its personal representatives, lawful successor in title and permitted assigns. 1.5 In the event of a conflict between these Terms and any Order these Terms shall take precedence.
2 ORDERS AND CONTRACT FORMATION
2.1 Any quotations of the Price are not binding on Ingen and are subject to withdrawal and alteration at any time before acceptance takes place as set out in clause 2.2 and shall be valid for 30 days following the date of issue after which Ingen may requote.
2.2 No order by the Customer is binding upon Ingen until accepted by Ingen. Acceptance of an order shall take place on the earlier of the date on which Ingen delivers the Products to the Customer or if earlier, when Ingen issues an order confirmation in Writing.
2.3 Upon acceptance in accordance with clause 2.2, a binding contract shall exist between Ingen and the Customer for the supply of the Products which is the subject of the order accepted shall be formed. Each Contract shall comprise these Terms, the Trading Account Form, the Order accepted by Ingen (but excluding any terms and conditions which the Customer may seek to attach to it or send with it unless otherwise agreed by Ingen in Writing) and any additional terms which may be agreed in Writing by Ingen as applicable.
2.4 Ingen shall sell, and the Customer shall purchase, the Products in accordance with the Contract, and the terms of the Contract shall apply to the exclusion of any other terms and conditions of the Customer.
2.5 Once an Order becomes binding and a Contract is formed in accordance with clause 2.2, the Contract cannot be cancelled by the Customer, except with the written agreement of Ingen and provided the Customer indemnifies Ingen in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by Ingen as a result of cancellation.
3 RESELLERS
3.1 The Customer is only permitted to act as a Reseller if the Trading Account Form expressly stipulates that Ingen grants the Customer permission to act in this capacity. Without this express permission the Customer may not act as a Reseller.
3.2 Subject to clause 3.1, the Reseller is appointed by Ingen as an independent and non-exclusive reseller of the Products in the Territory and the Customer accepts such appointment and acknowledges that:
3.2.1 Ingen expressly reserves the right to market and sell the Products in the Territory, directly or through other distributors and/or other channels; and
3.2.2 Peplink may sell the Products in the Territory, directly or through other distributors and/or other channels.
3.3 The Reseller is prohibited from promoting, advertising, marketing, selling or otherwise distributing the Products outside the Territory without Ingen’s prior written consent.
4 PRICE AND PAYMENT
4.1 The Price for the Products shall be as stated in the Contract and shall be calculated by Ingen in accordance with its current price list in force at the time the Contract is formed.
4.2 Ingen reserves the right to amend its price list from time to time.
4.3 Unless otherwise specified in the Trading Account Form and Ingen may invoice the Customer for the Price on or at any time after delivery of the Products unless:
4.3.1 the Products are to be collected by the Customer; or
4.3.2 the Customer wrongfully fails to take delivery of the Products,
and in either case Ingen shall be entitled to invoice the Customer for the Price at any time after Ingen has notified the Customer that the Products are ready for collection.
4.4 Where payment terms or credit facilities have been agreed in the Trading Account Form, including any requirement to make payment with order or in advance of delivery, then notwithstanding anything to the contrary in these Terms, the Customer must pay Ingen in accordance with the payment terms and credit facilities agreed. Notwithstanding any such agreement, Ingen reserves the right to vary such payment terms or credit facilities with immediate effect on written notice to the Customer where the Customer is in breach of these Terms or any Contract, including requiring the Customer to make payment with order.
4.5 The permitted methods of payment are by way of:
4.5.1 bank transfer to the bank account number provided by Ingen for this purpose. All banking transaction costs associated with such transfer shall be paid for by the Customer; or
4.5.2 credit or debit card payment over the phone.
4.6 Ingen is entitled to allocate payments received to settle (in full or in part) any sums due from the Customer, whether under these Terms or any Contract or other agreement, in any order or manner Ingen determines, and in particular shall be entitled to apply any part payment to settle outstanding interest on overdue amounts, ahead of principal.
4.7 Prices shall be invoiced in £GBP sterling unless stated otherwise in the Trading Account Form.
4.8 Prices are exclusive of any applicable value added tax and of all other duties, imposts and levies which shall be the Customer’s responsibility to pay.
4.9 Prices exclude packaging, freight/transport charges and other costs of carriage and delivery (“delivery charges”). Where Ingen has undertaken to provide or arrange for carriage to the Customer’s designated delivery address, delivery charges shall be levied in addition to the Price unless otherwise expressly agreed by Ingen in the Contract.
4.10 The Customer shall be responsible for obtaining all required export and import clearances and any other documentation necessary for the delivery of the Goods.
4.11 Notwithstanding clause 4.4 the whole of the Price for the Products bought or agreed to be bought by the Customer shall be immediately payable without demand upon the occurrence of an Insolvency Event.
4.12 If the Customer fails to make any payment when due, without affecting any other rights which it may have, Ingen shall be entitled to:
4.12.1 terminate the Contract without liability to the Customer by giving written notice to the Customer at any time; and/or
4.12.2 suspend any further deliveries of the Products (whether ordered under the same contract or not) to the Customer until paid; and/or
4.12.3 be paid compensation and charge interest at a rate of 3% above the official Bank Rate from time to time (as determined by the Bank of England’s Monetary Policy Committee) which shall accrue daily (both before and after any judgment) from the due date until payment in full is received by Ingen and shall be compounded monthly.
5 DELIVERY OF PRODUCTS AND ACCEPTANCE
5.1 Delivery of Products shall take place:
5.1.1 at the time Ingen notifies the Customer that the Products are ready for collection; or
5.1.2 if Ingen has agreed to transport them to the Customer’s designated delivery address, when they are unloaded at the Customer’s premises.
5.2 Delivery of the Products shall be within a reasonable time of acceptance of the Order and any specific dates for delivery discussed between the parties and/or written in any order form or any other document shall be approximate only. Time is not of the essence as to the delivery of the Products and Ingen is not in any circumstances liable for any delay in delivery, however caused.
5.3 Notwithstanding clause 5.2, if delivery by Ingen of any Products has not been made 60 Business Days after the advised estimated date for delivery of the Products, provided such delay was in no way caused by the Customer, the Customer shall be entitled to terminate the Contract in respect of those Products and any liability of Ingen however arising, shall be limited to a cancellation of the Price due or a refund of sums paid by the Customer for those Products not delivered. In no circumstances shall Ingen have any further liability to the Customer in damages or otherwise for non-delivery or late delivery of any of the Products.
5.4 The Products may be delivered by Ingen in advance of any quoted delivery date on giving reasonable notice to the Customer.
5.5 Ingen may deliver the Products all at once or by separate instalments. If delivery is to take place by separate instalments, each separate instalment shall be invoiced and paid for in accordance with the provisions of these Terms and each Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.6 Delivery shall be made during normal business hours (excluding bank or public holidays). Ingen may levy additional charges for any deliveries made outside such hours at the Customer’s request.
5.7 If the Customer fails to take delivery of the Products or fails to give Ingen adequate delivery instructions at the time stated for delivery then, without prejudice to any of its other rights or remedies, Ingen may:
5.7.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
5.7.2 where the Customer has failed to take delivery of the Products after a period of 30 days following the date upon which Ingen notified the Customer that the Products were available for delivery, sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract..
6 RISK AND TITLE
6.1 Risk of loss or damage to the Products shall pass to the Customer at the time of delivery of the Products.
6.2 Title in the Products shall pass from Ingen to the Customer only on receipt by Ingen in full of the Price (and VAT) for those Products; and all other sums then due from the Customer under the Contract.
6.3 Until such time as the title in the Products has passed to the Customer under clause 6.2 the Customer shall:
6.3.1 hold such Products on a fiduciary basis as Ingen’s bailee and shall store and mark them in such a way that they are readily identifiable as Ingen’s property, and shall not mix them with any other Products;
6.3.2 not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Products; and
6.3.3 not dispose of or deal with Products or any documents of title relating to them or any interest in them;
except that the Customer may on its own account use and sell the Products and pass title to its usual customers in the ordinary course of its trade, provided that the Customer’s right to use or sell the Products shall automatically cease upon the occurrence of an Insolvency Event.
6.4 If:
6.4.1 payment becomes overdue;
6.4.2 the Customer is in breach of any of its obligations under these Terms, any Contract or any other agreement between Ingen and the Customer;
6.4.3 Ingen exercises any right to terminate the Contract or any other contract between Ingen and the Customer; or
6.4.4 an Insolvency Event occurs or Ingen reasonably expects that an Insolvency Event is about to occur:
(a) Ingen may by written notice terminate the Customer’s right (if still subsisting) to use or sell the Products; and/or
(b) Ingen shall be entitled upon demand to the immediate return of all the Products which remain in the ownership of Ingen, and the Customer irrevocably authorises Ingen to recover such Products and any documentation relating to them and for that purpose, to enter any place. The Customer shall take all reasonable steps to help Ingen recover them. Recovery by Ingen of, the Products shall not of itself cancel the Customer’s liability to pay the whole or balance of the price for the Products or any other rights of Ingen under these Terms or any Contract.
7 CLAIMS
7.1 Any claim that the Products have not been delivered must be notified in writing to the Ingen within 5 days of the estimated or planned date for delivery or performance.
7.2 The Customer shall inspect the Products immediately on delivery and shall no later than 5 days after delivery notify Ingen in writing of any shortage in delivery, damage or any other non-conformity with the Contract that ought reasonably to have been apparent on a reasonable inspection of the Products.
7.3 All claims not notifiable under clauses 7.1 or 7.2 must be notified to Ingen no later than 20 days after the Customer first becomes aware of the circumstances giving rise to the claim.
8 SUPPORT
8.1 Save for the circumstances set out in clauses 8.2 and 8.3 below, Ingen shall provide the Customer with first-line technical support for the Products which shall include, installation, assistance and consultation on the use of the Products, timely responses to Customer’s questions concerning use of the Products, and the diagnosis and correction of problems encountered by the Customer in the use of the Products.
8.2 To the extent the Customer is a Reseller, Ingen shall provide the Reseller with second line technical support for the Products.
8.3 Resellers shall be solely responsible for providing first line technical support to End Users which shall be no less than the level of support detailed in clause 8.1.
9 SOFTWARE
9.1 To the extent the Products contain or consist of software or firmware, Ingen hereby grants the Customer to the extent that it is permitted to do so by Peplink and subject to the terms of the Peplink Customer Agreement which will be provided by Ingen to the Customer:
9.1.1 a non-exclusive, non-transferable licence to use such software or firmware subject to the Customer complying with the Peplink Customer Licence Agreement; and
9.1.2 to the extent that the Customer is a Reseller, the right to distribute such software and firmware to End Users subject to the Reseller providing its End Users with the Peplink Customer Licence Agreement (to be provided by Ingen) for distribution to End Users and ensuring that its End Users complies with the Peplink Customer Agreement.
9.2 The Customer acknowledges that:
9.2.1 the rights granted in clause 9.1 do not have the effect of transferring any right, title or interest in any such software or firmware to the Customer or any End Users;
9.2.2 the rights granted in clause 9.1 are granted in accordance with the Peplink Customer Agreement and in doing so Ingen makes no representation or warranty in respect of the software or firmware which is the subject of the Peplink Customer Agreement; and
9.2.3 that the right and licence to use the software or firmware in the Products granted to a Customer, or where applicable any End User shall immediately cease where the Customer or the End User (as applicable) fails to comply with the Peplink Customer Agreement.
10 PEPLINK’S WARRANTY
10.1 The Customer acknowledges that Ingen is not the manufacturer of the Products, and accordingly, Ingen makes no warranty or representation with regard to the quality or performance of the Products except to the extent to which it is required to do so by law and is not permitted to exclude such liability.
10.2 All Products supplied to the Customer will be provided with the Peplink Warranty.
10.3 Details of the Peplink Warranty can be found at: https://www.peplink.com/support/eula/ and http://www.peplink.com/support/policies/.
10.4 The Peplink Warranty shall apply for the duration set out therein and unless otherwise specified, shall come into effect on the date of delivery of the Products.
10.5 The Peplink Warranty does not apply to any Products which have been subject to misuse, neglect, accident or modification by the Customer or which are not capable of being tested by Peplink under its normal test conditions.
10.6 To the extent the Customer purchases the Products as a Reseller, the following shall apply:
10.6.1 the Reseller must include with each Product distributed to an End User a copy of the Peplink’s Warrant(ies) applicable to the Products purchased.
10.6.2 the Reseller shall notify the End User that:
(a) details of the Peplink Warranty shall be as specified in the warranty card enclosed with the Products or as displayed on Peplink’s website;
(b) unless otherwise specified, the warranty period for Products under a Peplink Warranty begins on the date of delivery to the End User; and
(c) the Peplink Warranty does not apply to any Products which have been subject to misuse, neglect, accident or modification by the End User or which are not capable of being tested by Peplink under its normal test conditions.
10.7 Ingen reserves the right to make any changes to the Products which are required to conform with any applicable legal requirements (whether UK or EU statutes, regulations, directives or otherwise) or which do not materially affect their quality or performance.
11 CUSTOMER’S OBLIGATIONS
11.1 The Customer shall be responsible to Ingen for ensuring the accuracy of any information it provides to Ingen and for giving Ingen any necessary information, facilities, instructions and responses relating to the Products within a sufficient time to enable Ingen to perform its obligations.
11.2 The Customer is responsible for using the Products in accordance with instructions supplied by Ingen and Ingen shall not be responsible for any damage, loss or claims arising from any failure to comply with such instructions.
11.3 If the Customer becomes aware that any third party has made or is likely to make any claim in respect of any Products (including, without limitation, as to defects in them or rights infringed by them) it shall immediately inform Ingen and shall afford to Ingen all reasonable assistance (including, without limitation, permitting Ingen to have conduct of any proceedings) which Ingen may reasonably require to enforce its rights and defend such claim.
11.4 The Customer agrees to co-operate, and in the case of Resellers, will ensure that End Users cooperate with any product recall operation initiated by Ingen including providing all information and assistance that Ingen may reasonably require and the Customer agrees promptly to recall any of the Products from the market when reasonably requested to do so by Ingen. The Customer shall not itself instigate any product recall without first obtaining approval from Ingen. The Customer shall inform Ingen of all serious complaints and any other circumstances of which the Customer is aware that may give rise to a product recall requirement.
11.5 Additionally, to the extent that that the Customer is purchasing the Products as a Reseller it shall;
11.5.1 use all reasonable endeavours to promote and market the Products to potential customers in the Territory but shall not actively market the Products outside the Territory;
11.5.2 not make any statements or representations with respect to the Products unless it has obtained Ingen’s prior written approval of the proposed statement or representation or unless such statement or representation is consistent in all respect with any materials provided by Ingen;
11.5.3 not export or re-export (directly or indirectly) any Products or documentation or other technical data in relation to the Products without complying with any applicable eexport controls and export regulations.
12 LIMITS ON LIABILITY
12.1 Ingen shall only be liable to the Customer in respect of claims notified to Ingen in accordance with the Contract and in particular clause 7 of these Terms.
12.2 Without prejudice to the other limitations on Ingen’s liability in the Contract but subject to clause 12.6, any liability that Ingen may have under these Terms or any Contract for:
12.2.1 each claim, or series of claims arising out of any claim that the intellectual property rights in the Products infringe the intellectual property rights of a third party shall be limited to 15% of the total Price paid (exclusive of VAT) by the Customer for the Products which are the subject of the claim. As Ingen is providing no warranty in respect of the intellectual property rights in the Products or its components the parties agree that this limit is fair; and
12.2.2 any other claims arising out of or in connection with the Contract and/or the Products, however arising shall be limited in respect of all claims in aggregate to a sum equal to the Price paid (exclusive of VAT) by the Customer for the Products under the Contract giving rise to the claims.
12.3 Notwithstanding any other provision of the Contract, but subject to clause 12.6, Ingen shall have no liability however arising out of or in connection with the Contract and/or the Products for any:
12.3.1 direct or indirect loss of or damage to:
(a) profit;
(b) revenue;
(c) business;
(d) contract;
(e) opportunities;
(f) anticipated savings;
(g) bargain;
(h) data;
(i) goodwill;
(j) reputation;
(k) use;
12.3.2 indirect or consequential loss or damage; or
12.3.3 claim arising out of a claim against the Customer by an End User or any other third party.
12.4 The Customer agrees that each of the sub-clauses in clause 12.3 and each of the sub-paragraphs 12.3.1(a) to 12.3.1(k) in sub-clause 12.3.1 constitute separate terms and the introductory wording of clause 12.3 shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause 12.3 or otherwise.
12.5 The term “however arising” when used or referred to in clause 12 covers all causes and actions giving rise to the liability of Ingen arising out of or in connection with the Contract and/or the Products including (i) whether arising by reason of any misrepresentation (whether made prior to and/or in the Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; or (iii) whether caused by any total or partial failure or delay in supply of the Products or defective Products.
12.6 The exclusions and limitations of liability contained in these Terms and the Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies Ingen of the possibility of any greater loss or damage but no such exclusion or limitation shall apply to the extent prohibited or limited by law and in particular nothing in the Contract shall affect liability:
12.6.1 for death or personal injury caused by negligence to the extent prohibited by the Unfair Contract Terms Act 1977;
12.6.2 for fraudulent misrepresentation or other fraud;
12.6.3 for any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
12.6.4 to the extent prohibited by the Consumer Protection Act 1987.
12.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract. All other warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of Ingen, in respect of compliance with descriptions, the quality or the fitness for purpose of the Products which are not expressly set out in the Contract are excluded except to the extent such exclusion is prohibited or limited by law.
12.8 In view of the exclusions and limitations of Ingen’s liability in these terms, Ingen recommends that the Customer considers taking out its own insurance in respect of those risks for which Ingen excludes or limits liability.
12.9 The terms of, and obligations imposed by, this clause 12 shall survive termination or expiry of any Contract.
13 INDEMNITY
13.1 The Customer shall indemnify Ingen, its officers, directors, shareholders, employees and agents, at all times against any and all claims, action, demands, costs (including legal costs on a full indemnity basis) expenses, losses and liabilities suffered or incurred by Ingen and arising out of:
13.1.1 any unauthorised acts or omissions of the Customer or the Customer’s agents, affiliates, or employees in connection with their activities under this Contract, including, but not limited to (i) the wilful misconduct or negligence of the Customer; (ii) violation by the Customer of any laws applicable to sales or other distribution of Products, (iii) the Customer’s unauthorised representations or warranties to End Users with respect to the Products, (iv) failure by the Customer to disclose to the End User all limitations on warranties and liabilities set forth on behalf of Ingen;
13.1.2 any breach by the Customer of any of these Terms; and
13.1.3 any third party claim arising out of a Contract or the Products, which is in excess of the liability expressly accepted by Ingen under these Terms.
14 TERMINATION
14.1 Without affecting any other rights and remedies it might have, Ingen shall be entitled to terminate a Contract and/or suspend its performance at any time without liability to the Customer (save as set out in this clause 14) by:
14.1.1 giving 30 days prior written notice to the Customer without the need to provide a reason. Where Ingen gives such notice it shall refund to the Customer any monies paid by the Customer for orders which will not be fulfilled by Ingen;
14.1.2 giving written notice to the Customer at any time if:
(a) the Customer is in breach of any material provision of these Terms, or purports to cancel, a Contract;
(b) the Customer is subject to an Insolvency Event;
(c) the Customer fails to make any payment; or
(d) pursuant to any other provision of these Terms which gives an express right for Ingen to terminate.
14.2 Any termination however caused shall not affect:
14.2.1 any right or liabilities which have accrued prior to the time of termination; or
14.2.2 the continuance in force of any provision of these Terms which expressly or by implication is intended to come into or continue in force after termination including without limitation clauses 12 (Limits on Liability), 15 (Confidentiality); or clause 15 (Intellectual Property).
14.3 Upon termination pursuant to clauses 14.1.1 or 14.1.2, Ingen shall refund any sums paid by the Customer for Products not delivered by Ingen.
14.4 Upon termination however caused:
14.4.1 the Customer shall immediately on Ingen’s request destroy or return any information or materials in its possession or control which belong to or were supplied by Ingen;
14.4.2 Ingen may dispose of any Products not collected by the Customer;
14.4.3 all sums due to Ingen shall be immediately payable by the Customer; and
14.4.4 to the extent the Customer is a Reseller, the Customer shall work with Ingen to ensure that there is a transition plan which meets Ingen’s reasonable requirements to provide post-termination support for End Users who purchased Products from the Customer.
15 CONFIDENTIALITY
15.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Ingen or its agents, and any other confidential information concerning Ingen’s business or its products or Peplink’s business which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to Ingen, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
15.2 This clause 15 shall survive termination of any Contract, however arising.
16 ANNOUNCEMENTS
16.1 The Reseller shall not, nor shall any of its employees, agents or contractors shall make, or cause to be made, (whether to the public, press, employees, customers, suppliers or otherwise) any media statement, announcement, communication or other disclosure whatsoever, whether written or oral, in relation to Ingen, Peplink, the existence of these Terms or any matter referred to in these Terms without Ingen’s written approval of its contents.
17 ENTIRE AGREEMENT
17.1 These Terms, the Trading Account Form and any the other documents entered into pursuant to them, constitutes the entire agreement and understanding of the parties and supersede any previous agreement or understanding between the parties with respect to the arrangements contemplated by or referred to in them.
17.2 Each party acknowledges and agrees that in entering into each Contract:
(a) it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to a Contract or not) which is not expressly set out in the Contract; and
(b) the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in this Contract shall be for breach of contract under these Terms.
17.3 Nothing in this clause 17 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
18 GENERAL
18.1 Ingen shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under a Contract caused by the actions or omissions of the Customer, its employees, agents, contractors or other third parties providing goods to Customer or by any circumstance beyond Ingen’s reasonable control, which shall include without limitation failure or delay by Peplink in supplying the Products, vandalism, accident, breakdown or damage to machinery or equipment, fire, flood, severe weather conditions, strike, lock-out or other industrial disputes (whether or not involving employees of Ingen) or shortage of materials at the market rates existing when the relevant Contract is made. If such circumstance continues for more than a period of 60 days then Ingen shall be entitled at its discretion to perform, suspend performance of, and/or terminate the Contract on notice to the Customer or the Customer may terminate the Contract with immediate effect on notice to Ingen. On termination of a Contract pursuant to this clause 18.1 Ingen shall refund any sums already paid by the Customer to Ingen in respect of that Contract less a deduction for any costs, charges and expenses which may have been incurred by Ingen in relation to that Contract.
18.2 No variation of these Terms or any Contract shall be effective unless it is made in writing and signed by both parties.
18.3 Ingen may at any time assign, transfer, charge or deal in any other manner with any of its rights hereunder, and may sub-contract any or all of its obligations under a Contract.
18.4 The Customer shall not assign, transfer, charge or deal in any other manner with any of its rights or obligations under a Contract, or purport to do so, or sub-contract any or all of its obligations under a Contract without the prior written consent of Ingen in its absolute discretion.
18.5 Nothing in these Terms or any Contract shall be:
18.5.1 deemed to constitute a partnership, joint venture, representative or agency relationship between the parties; or
18.5.2 construed or have effect as constituting any relationship of employer and employee between the parties.
18.6 Neither party shall have the authority to bind or pledge the credit of, or oblige, the other in any way without obtaining the other’s prior written consent.
18.7 No provision of these Terms or any Contract shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
18.8 Any notice given under these Terms shall be in writing (but excluding fax transmission and electronic mail), in English, and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to, the intended recipient’s address. The address of a party for service of notices is the address set out in the Trading Account Form or such other address as a party may designate by notice given in accordance with this clause. A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
18.9 Any failure or delay to exercise by a party to exercise a right or remedy arising in connection with these Terms or any Contract shall not constitute a waiver of such right or remedy.
18.10 If any provision of these Terms or a Contract is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected thereby.
18.11 Save as expressly provided in these Terms, the rights and remedies provided by these Terms are cumulative and are not exclusive of any right or remedy provided by law.
18.12 These Terms shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales to resolve all disputes or claims which may arise out of or in connection with these Terms.