LINUX AND OPEN SOURCE SOLUTIONS FOR ALL

Gotek Terms And Conditions.

Purchases of Gotek products and services are governed by one of the following terms and conditions. Please review this document carefully.

1. What Are Terms And Conditions?

1.1 This document (the "Conditions") forms part of an agreement between Gotek and you, the Customer.

1.2 The Conditions together with the (1) Service Descriptions and/or (2) Product Descriptions and (3) pricing applicable to the Products & Services that you wish to buy together form the whole of Gotek's "Agreement" with Customer. The Agreement is a binding document and Customers should ensure that they understand it.

1.3 Some parts of this Agreement apply to all of our Customers. However, other parts are specific to Consumers only or to Business Users only.

1.4 We need to have an agreed written record of what we are supplying to ensure that no mistakes are made. Consequently we will not normally seek to make or agree variations to the Agreement orally and will seek to ensure that changes are documented in writing (which will be required in all cases for Business Users).

1.5 Our Agreement is intended to comply with all of your statutory rights as a Consumer. However, in the event that any uncertainty arises your statutory rights as a Consumer will take priority over the Agreement.

2. Definitions.

Business User: legal entity or person who buys or agrees to buy Products and/or Services from Gotek other than for private use.

Conditions: this document.

Consumer: an individual who buys or agrees to buy Products and/or Services from Gotek for private use.

Customer: Consumers and Business Users collectively.

Gotek: the Gotek Limited company identified in your Order Confirmation and/or invoice.

Description: a document forming part of the Agreement which describes a Product or Service that Customers may purchase from Gotek.

Indemnify: promise to be responsible for another's loss, damage, liability or penalty including promise to compensate for any loss, damage, liability or penalty which occurs.

IPR: "Intellectual Property Rights", patents, trade marks, registered designs and applications for same, copyright, design rights, know-how, trade and business names and any other similar protected rights in any country.

Order: request by Customer to purchase Product or Services from Gotek.

Order Confirmation: written acceptance by Gotek of Customer's Order.

Price: the total charge for Products and/or Services payable by Customer to Gotek.

Products: an individual good (including Software) as described in any current document published by Gotek physically and/or on its internet site, or in any Order Confirmation and which Customer buys or agrees to buy from Gotek.

Services: service & support carried out by or for Gotek in accordance with the Service Offering.

Service Offering(s): the Service options offered by Gotek as described in any current document published by Gotek physically and/or on its internet site, or in any Order Confirmation.

Software: computer operating systems, middleware, applications or other software that is manufactured or owned by, or licensed by, Gotek.

Third Party Products: products not manufactured, assembled or authored by Gotek that Gotek sells.

Third Party Software: computer operating systems, middleware, applications or other software from a third party editor or licensor.

WEE Regulations: means Waste Electrical & Electronic Equipment Regulations 2006.

3. Quotations/Orders And Changes.

3.1 Gotek quotations are valid only if in writing and for 10 days after the quotation date, unless otherwise stated in the quotation.

3.2 All Orders for Products and/or Services shall be regarded as an offer by Customer to purchase Products and/or Services under the terms of this Agreement.

3.3 Gotek accepts Customer's offer to purchase under this Agreement and makes a binding Agreement by issuing an Order Confirmation. Order confirmation is binding except, in the case of consumers only, where there is a discrepancy between order confirmation and what consumer ordered and where discrepancy is unacceptable to the consumer. It is recommended that Customer review the Order Confirmation and notify Gotek within a reasonable period of time of any discrepancies that are noticed.

3.4 Gotek reserves the right to make changes to ordered specifications but will identify any such changes in the Order Confirmation. Gotek guarantees that any such changed Products will offer at least equivalent functionality and performance. Gotek will not make any significant variations to Products or Services without Customer's prior agreement and except as provided for above, will manufacture and deliver Product in accordance with the Order Confirmation.

4. Price And Payment.

All Customers:
4.1 The Price that Customers have to pay will be shown on Gotek's Order Confirmation and invoices.

Consumers:
4.2 Payment shall be made before supply of Product or Service. Gotek may suspend delivery of Product or Service until full payment is received. If Gotek has delivered Product and/or Services and the Product and/or Services remain neither paid for nor made available for collection when reasonably demanded then Gotek may recover the outstanding payment and/or Product and the recovery costs are to be paid by the Consumer.

Business Users:
4.3 If agreed in advance in writing, Business Users may pay within 30 days of the date of invoice. Gotek may suspend delivery of Product or Service until full payment is received. If full payment is not received Gotek will be entitled to charge interest on the amount outstanding at the rate of 3% per annum above the London Inter Bank Offer Rate ("LIBOR"). If Gotek must recover the outstanding payment and/or Product, recovery costs are to be paid by Business User.

4.4 For Orders to be delivered in instalments over a period of time, Gotek may adjust prices due to changes to exchange rates, duties, insurance, freight, handling and purchase costs.

5. Delivery.

All Customers:
5.1 The delivery date specified in the Order Confirmation is an estimate.

5.2 The place of delivery is as stated in the Order Confirmation.

5.3 For practical reasons, Products may be delivered by instalments, which shall be communicated to Customer.

Consumers:
5.4 Delivery will take place less than 30 days after the date of Order unless specifically otherwise agreed at the time of making the Order.

5.5 If the estimated delivery date cannot be met and the revised delivery date will exceed 30 days from the original date of order then Consumer will be contacted and advised of a proposed new date for delivery. If Consumer refuses the revised delivery date and delivery is not made within 30 days from the original date of order or prior to the specifically agreed delivery date if applicable, then Consumer may cancel the order without charge and obtain a full refund.

5.6 Where Product is delivered in instalments, then, unless expressly otherwise agreed at the time of placing the Order, these instalments will be delivered within 30 days of placing the Order.

6. Passing Of Ownership And Risk.

6.1 Ownership of Products passes to Customer on the later of receipt by Gotek of full payment or delivery to Customer of Product. Gotek may recover any Products supplied at any time prior to ownership passing if Customer is in breach of these Conditions. This clause shall not apply to IPR.

6.2 Risk meaning: a: (for Consumers only, within the period of time specified in clause 7.3), a duty to take reasonable care of Product received and b: (after the period specified in Clause 7.3 for Consumers and in all circumstances for Business Users) responsibility for damage caused to or by use, handling or storage of the Product, passes to Customer on delivery of Products to Customer or to their representative.

7. Acceptance Of Products On Delivery, "Cooling Off" And Rights Of Return And Cancellation.

All Customers:
7.1 Customer should notify Gotek promptly: following delivery of any missing, incorrectly delivered, incorrect specification (subject to Clauses 3.3 and 3.4), or otherwise not as ordered Products or Products which are either in damaged packaging or are visibly damaged; following discovery of any non-visible damage or defect in Product supplied.

7.2 Where Product can be returned to Gotek by Customer under the terms of this Agreement, it should be made available for collection at a time which is mutually convenient insofar as possible. Customers should act reasonably in complying with a request by Gotek to collect Product at a particular time.

Consumers:
7.3 Consumers may cancel their Orders for any reason until, but no later than:

  1. 7.3.1 the end of the 7th "working day" (days other than weekend days and public holidays) after the day of receipt of the Product and/or of the Service Order Confirmation (as applicable); or

  2. 7.3.2 the end of the 7th working day after the date when all such information required by law is supplied.
7.4 Consumers' right to cancel Software that is supplied on CD, DVD or other similar storage devices is also lost if the Software is unwrapped.

7.5 On cancellation of Products Consumer is obliged to return the goods to Gotek in their original condition, undamaged and at the cost of Consumer. Consumer shall take reasonable care to ensure that the goods are not damaged whilst in transit using means arranged by Consumer. Whilst in possession of the goods Consumer shall be under a duty to take reasonable care of them. Gotek shall take action against Consumer for goods returned which have been made unfit for resale or damaged whilst in the possession of Consumer.

7.6 The provisions of Clauses 7.3, 7.4 and 7.5 do not apply to Product or Software that is damaged or defective.

7.7 On cancellation of the Order Gotek will refund the price paid, less the direct cost of recovering the goods (when applicable), within a period of 30 days from date of cancellation.

Business Users:
7.8 Notwithstanding anything herein to the contrary (including without limitation Clauses 3.3 and 3.4), Business Users may only reject Product for material non-conformity with the Product Description by providing written notice to Gotek within 7 days after delivery or otherwise shall be deemed to have accepted the Products.

8. Statutory Rights, Warranties, Repairs, Replacements And Provision Of Services.

All Customers:
8.1 Gotek will fulfil its legal obligations to repair and/or replace Products. These obligations are dependent upon proper use of Products and do not cover any parts of Products which have been modified or repaired without Gotek's prior written consent. Gotek may ask third party Software licensors to fulfil Gotek's and/or licensor's legal obligations relating to the supply of that licensor's software.

8.2 Gotek's obligations under its Service Offerings are as stated in the Descriptions for those Service Offerings. Gotek will use all reasonable endeavours to meet response times estimated in the Service Offerings, but actual timings may vary depending, among other factors, on the remoteness or accessibility of Customer's location, weather conditions and availability of components. Gotek will comply with all other terms of its Service Offerings. Notwithstanding the above, the following are excluded from Service unless stated otherwise in the Service Offering: local working hours, relocation, removal of non-Gotek supplied hardware or software, preventative maintenance, repairs to Products that are functioning within industry standards including without limitation defective pixels on monitors, transfer of data or Software and viruses. Customer is responsible for removal of non-Gotek supplied products.

8.3 Gotek does not provide Gotek Service Offerings for Third Party manufactured Software or Products but will pass to Customers, to the extent that it is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of Third Party Products.

8.4 Service may be provided via telephone (at the normal national rate) or Internet where appropriate. Additional optional value added Services may be offered using Premium Rated Services. Any such Services will be clearly identified and will be provided in compliance with relevant regulations and codes applying to provision and use of Premium Rated Services. Telephone calls may be recorded for training purposes. Customer must provide Gotek with all reasonable courtesy, information and cooperation to enable Gotek to deliver the Services and shall be responsible for all telephone and postal charges in contacting Gotek.

8.5 Gotek makes repairs as required at law and, if applicable, under Service Offerings by using components which are new or equivalent to new in accordance with industry standards and practice. Products will be repaired using parts which will work for the balance of the statutory entitlement period and/or the Service Offering period relating to the Product into which they are installed. If the part is installed into a Product for which this statutory entitlement period and/or the Service Offering Period (as applicable) has less than 90 days to run at the date of installation then the part itself will continue to work for at least 90 days after the date upon which it was installed.

8.6 Gotek owns any Product or parts that are removed during repair. Gotek may require Customer to return removed parts to Gotek for reconditioning, analysis or for environmental reasons.

8.7 If Customer does not return removed parts Gotek then may charge a fee of which Customer will be informed prior to charge. The fee will reflect the cost incurred by Gotek in retrieving the part(s), and/or the cost of procuring another component to recondition and/or arising from failure to comply with environmental obligations as a result of the Customer's failure to return the Product or part.

8.8 The charge referred to in 8.6 and 8.7 above will not apply to Consumers returning defective parts which have been replaced in accordance with statutory rights.

8.9 Products, Software and Services sold will correspond to their Description (except as stated in Term 3.4 above).

Consumers:
8.10 Products sold will be suitable for general use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality and service standards described in the Product's Description. Fitness for use in any other manner or environment must be explicitly and clearly agreed (preferably in writing) with Gotek prior to purchase.

8.11 Gotek will repair, or in the event that repair does not occur, replace Product which is defective within a reasonable period and with reasonable care and skill. This may only be varied to the extent reasonably agreed with Consumer.

Business Users:
8.12 Business Users must satisfy themselves as to the suitability of the Description for their needs. Gotek does not warrant fitness for any particular purpose. Fitness for use in any particular manner or environment must be agreed in writing with Gotek prior to purchase.

8.13 Business Users are not automatically entitled to repair or replacement other than as described in a Service Description or as otherwise agreed by Gotek. Gotek shall have no liability or obligation for defects in Products or failure to remedy defects except as expressly provided under this Agreement.

8.14 Except as expressly provided herein, no warranty, express or implied, as to the condition, quality, performance, merchantability, or durability of Products is given or assumed by Gotek and all such warranties are hereby excluded.

9. Frustration/Circumstances Beyond The Parties' Control ("Force Majeure").

Consumers:
9.1 Neither party is responsible for non-performance in case of circumstances beyond its reasonable control ("Force Majeure") including without limitation, strikes by non Gotek employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply Gotek.

9.2 If a Force Majeure event occurs and Gotek cannot deliver within the period set out in the Order Confirmation, Gotek will and Consumer may act in accordance with the terms of clause 5.5 above.

9.3 If the Force Majeure event lasts longer than 60 days then Gotek shall have the right to terminate the Agreement by providing notice in writing to Consumer and returning all sums paid by Consumer under the Agreement. No compensation to Consumer will then be due in these circumstances.

Business Users:
9.4 The same provisions apply to Business Users as apply to Consumers in Clauses 9.1 and 9.3. Neither Gotek in respect of a Business User nor a Business User in respect of Gotek may use Clause 9.2.

10. Liability.

All Customers:
10.1 Gotek accepts liability for any loss or damage to private property, death or personal injury caused by the Products and Services supplied, the negligence or deliberate misconduct of Gotek or any employees, agents or subcontractors acting on Gotek's behalf, provided, however, that in all cases, except for death or personal injury (where there shall be no limit on liability), Gotek's liability for losses suffered by Customer will be assessed in accordance with the applicable terms of this Clause 10.

Consumers:
10.2 Gotek shall accept liability for reasonably foreseeable losses arising as a direct consequence of breach by Gotek of its statutory duty. However Gotek shall not be liable in certain circumstances for example where the causes or potential causes of the loss:

  1. 10.2.1 were not reasonably foreseeable by both parties; and/or

  2. 10.2.2 were known by Consumer to the exclusion of Gotek at the time that the Agreement was entered into; and/or

  3. 10.2.3 arose from the use of the Product and/or Services for purposes other than those contemplated in Clause 8.10.

  4. 10.2.4 were reasonably foreseeable and preventable by Consumer such as those arising from, but not limited to:

    1. 10.2.4.1 data or information loss caused by failing to keep back up copies of important data on separate media; or

    2. 10.2.4.2 virus damage; or

    3. 10.2.4.3 user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing or orally by a Gotek technician.
10.3 In claiming against Gotek for any such losses Consumer is expected to have acted reasonably, for example, with regard to:
  1. 10.3.1 how the losses were accrued - including steps taken to mitigate or to avoid losses occurring; and

  2. 10.3.2 taking reasonable precautions to avoid loss (such as contacting Gotek promptly upon becoming aware of an issue).
Business Users:
10.4 The provisions of Clauses 10.2 and 10.3 will also apply Business Users as if the word "Consumer" were replaced by the words "Business User" except that:
  1. 10.4.1 in all cases except for death or personal injury (where there will be no limit on liability) Gotek's liability for losses will not exceed a sum equal to 125% of the Price; and

  2. 10.4.2 Gotek will not be liable for:

    1. 10.4.2.1 use not consistent with clause 8.12 (rather than clause 8.10);

    2. 10.4.2.2 loss resulting from any defect or deficiency in Products or Services which Gotek shall have remedied within a reasonable period and/or consistently with the terms of a Service Description;

    3. 10.4.2.3 consequential losses such as loss of business profits, salary, revenue, data or anticipated savings.

11. Intellectual Property And Software.

All Customers:
11.1 Gotek Indemnifies Customer from all costs and liabilities arising from any claim that use of Product or Software infringes any third party IPR. Gotek may recall and exchange or modify Product or Software or refund Customer (minus depreciation in this event) or require Customer to install replacement or altered Software from a CD, DVD or an internet download.

11.2 Gotek retains all Gotek-owned IPR in Product. Customer must notify Gotek immediately of any infringing or unauthorised use of Product or IPR in it.

11.3 Gotek does not Indemnify Customer for:

  1. 11.3.1 Third Party Hardware or Third Party Software;

  2. 11.3.2 unauthorised modification or use of the Products or Software;

  3. 11.3.3 any claim caused by the use of Products or Software in conjunction with anything not supplied by Gotek. Customer must comply with the license conditions for any Software supplied.
11.4 Customer Indemnifies Gotek for any claim which arises due to Customer's own actions of which Gotek had no knowledge or could not reasonably be expected to have had knowledge.

11.5 Gotek is allowed to litigate, negotiate and settle claims and Customer must provide reasonable assistance if requested to assist Gotek if litigation is directly related to Products supplied to Customer.

Business Users:
11.6 Business Users additionally Indemnify Gotek, without limit, for any claim related to IPR specified or owned by Business User & integrated into Product.

12. Export Control.

12.1 Customer is advised that Product, which may include technology and software, is subject to EU and US export control laws and laws of the country where it is delivered or used. Under these laws, Product may not be sold, leased or transferred to restricted end-users or countries or for restricted end-uses. Customer agrees to abide by these laws.

13. Data Protection.

13.1 Personal data obtained by Gotek from Customer shall be held and processed in accordance with all applicable laws. Gotek may share such personal data with other Gotek entities, agents, or subcontractors performing services for Gotek under Clause 17. Customer consents to the processing of Customer's personal data in accordance with the terms of this Clause 13.

14. Confidentiality.

14.1 Each party must treat all information received from the other which appears to be confidential as it would treat its own confidential information generally, but at least, with no less than a reasonable degree of care.

15. Termination.

15.1 Either party may terminate this Agreement if the other:

  1. 15.1.1 commits a material or persistent breach of these Conditions; and

  2. 15.1.2 fails to remedy such breach within 30 days of written notice being given to it by the other part requiring a remedy.
15.2 Gotek may terminate this Agreement with immediate written notice if Customer:
  1. 15.2.1 fails, without good reason, to pay on time; or

  2. 15.2.2 breaches or Gotek reasonably suspects Customer has breached export control laws.
15.3 Either party may terminate if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due. This provision shall not relieve Gotek of an obligation to complete the delivery of any Product that has been ordered and fully paid for by a Customer prior to that Customer becoming insolvent or bankrupt.

15.4 The following clauses of these Conditions shall survive any termination or expiration of these Conditions and shall continue to bind the parties and their permitted successors and assigns: clauses 4.2, 4.3, 4.4, 6, 7, 8.6, 8.7, 10, 11, 12, 13, 14 and 16.

16. Law And Jurisdiction.

16.1 This Agreement is to be interpreted in accordance with English Law and for all Customers the English courts shall have exclusive jurisdiction.

16.2 If any part of these Conditions are found to be unenforceable by a court, the rest are unaffected. All notices must be in writing and sent to a legal officer of each party, at the address provided on the invoice.

17. Assignment And Subcontracting.

Consumers:
17.1 Gotek may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part and provided that the assignment, subcontract or transfer occurs without negatively affecting:

  1. 17.1.1 the provision of the Products and/or Services and

  2. 17.1.2 rights or remedies of the Consumer under the Agreement.
17.2 Gotek requires Consumer to inform it in advance of any assignment, subcontract or transfer on the Consumer's part.

Business Users:
17.3 Gotek may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part. Business Users may do so only with Gotek's written consent.

18. TUPE.

Transfer of Undertakings (Protection of Employment) Regulations 2006.

Business Users:
18.1 Customer shall keep Gotek fully indemnified against any claims, costs, demands, awards, compensation or other liability of any nature arising out of the termination of the employment rights (by way of redundancy or otherwise) or deemed transfer of any employment rights of any employees of the Customer or otherwise resulting from the entering into or termination of any Order, Services or this Agreement (in whole or in part) for whatsoever reason.