Terms and Conditions for the provision of Repair Services

1. Definitions & interpretation

1.1 The following definitions and rules of interpretation in this Clause apply in these Conditions and any Contract formed hereunder:

Ad Hoc Services: means the provision of Services to a Device which is not subject to an XtraCare Service Agreement.

Call Out Fee: means the element of the Fees relating to the call out of the Supplier’s personnel to the Customer’s site for the provision of Field Services, being the amount as set out at Clause 9

Conditions: means these written terms and conditions for the provision of repair services which shall govern the provision of the Services to relevant Devices

Consumables: means any part which is subject to wear and tear, including but not limited to, printheads, cutters, rollers, rewinders and peel units.

Contract: means a contract for the provision of the Services, which is formed in accordance with these Conditions.

Confidential Information: information which is disclosed by one Party to the other however conveyed (including these Conditions and any Contract formed hereunder) whether before or after the date of the formation of any such Contract and which is marked confidential or which would appear to a reasonable person to be confidential and which relates to the business affairs of the Party disclosing it including products, operations, methods, processes, plans or intentions, developments, trade secrets, know-how, design rights, market opportunities, personnel, agents, subcontractors, customers and suppliers of the Party disclosing it, customer information and all information derived from the above together with the provisions of these Conditions and the negotiations relating to it;

Customer: means the entity purchasing the Services

Data Protection Legislation: means the Data Protection Act 2018, the UK GDPR and any other applicable laws relating to the protection of Personal Data and the privacy of individuals as updated, replaced, re-enacted or amended from time to time.

Device: means an electronic printer or device which is under an XtraCare Service Agreement or subject to an Ad Hoc request from a Customer which will receive the Services

Fees: means the amounts payable for the Services as calculated and payable in accordance with these Conditions and any relevant Renewal Document or Order Confirmation

Field Services: means the element Services which are only available to Customers who have purchased Xtracare Gold, which are undertaken at a Customer’s site following a Service Request in accordance with these Conditions

Good Industry Practice: means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a Party seeking in good faith to comply with its contractual obligations in relation to services similar to the Services;

Initial Assessment: means the element of the Services which is an initial diagnostic testing and assessment of a Device under a Service Request to ascertain the fault and the extent of Services required.

Initial Assessment Fee: means the element of the Fees payable upon completion of the Initial Assessment, being the amount as set out at Clause 9

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application) and all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world, including copyright and related rights, moral rights, rights in confidential information, know-how, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, utility models, design rights, semi-conductor topography rights, database rights, rights in computer software, registered designs and all rights in the nature of unfair competition rights or rights to sue for passing off;

Order Confirmation means the automated notification of confirmation of purchase of an XtraCare Service Agreement issued by the Supplier.

Party means the Supplier or the Customer and together known as the Parties

Pre-Contract Inspection: means an initial inspection of a pre-used Device or a Device which has not previously been under an XtraCare Service Agreement, which the Customer has requested to be placed under an XtraCare Service Agreement.

Renewal Document: means the document issued by the Supplier following acceptance of a renewal quote by the Customer, setting out the details of a new XtraCare Service Agreement in accordance with these Conditions, including but not limited to an RTB service agreement or an Xtracare maintenance certificate.

Return Shipping Charge: means the element of the Fees payable by the Customer in accordance with these Conditions for the return of the Device to the Customer following completion of the Services, as further set out at Clause 9

Services: mean repair services to be provided to a relevant Device to bring the Device back into working order in accordance with the relevant specification for the Device in question from the relevant manufacturer, not including the Services Exclusions and as further defined in these Conditions.

Services Exclusions: means the elements of work to a Device which are not provided under the Services, including:

a) painting, refurbishment or routine cleaning;

b) the maintenance of equipment or interfaces not required to complete the Services;

c) service made necessary by accident, negligence or misuse or over use (taking into account the relevant manufacturer’s specification and/or documentation or user guides) by you or a third party, or by any circumstance covered by Force Majeure as described in these Conditions

d) damage which results from your failure to comply with instructions contained in documentation supplied with any Product, or with reasonable requests that we may make from time to time.

e) service or replacement of Consumables;

f) any other service which is not deemed necessary to complete the Services to a Device to bring the relevant Device in line with the relevant manufacturer’s specification

g) Annual or requested Service of the device

Service Request: means an online submission of required information and request for Services to a Device which requires a return to the Supplier’s base for the provision of Services at the Supplier’s website at https://www.thebarcodewarehouse.co.uk/contact-repairs-and-service/ or in respect of a request for Field Service, the email or telephone request to the details set out at the Supplier’s website as above.

Supplier: means The Barcode Warehouse Limited, being the entity providing the Services to the Customer in accordance with these Conditions.

Third Party Warranty: means the provision of warranty services by a relevant manufacturer.

Working Hours means Monday to Friday 9:00am – 5:00pm

Xtracare Service Agreement: means a Contract for a defined term for the provision of Services to certain Devices which are registered to receive such Services by the Customer, being either Xtracare Gold or Xtracare Silver.

Xtracare Gold: means a form of Xtracare Service Agreement which provides for the provision of Field Services.

Xtracare Silver: means a form of Xtracare Service Agreement which provides for the provision of return to base Services only and excludes Field Services

Working Day: means Monday to Friday, excluding a bank or public holiday in England;

1.2 A reference to one gender includes a reference to the other gender.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.5 Except where a contrary intention appears, a reference to a Clause, Schedule or Annex is a reference to a clause of, or schedule or annex to, these Conditions.

1.6 Clause, Schedule and Annex headings do not affect the interpretation of these Conditions.

1.7 The Parties accept and acknowledge that these Conditions may be amended unilaterally by the Supplier, from time to time.

2. Agreement

2.1 These Conditions govern the provision of the Services and are hereby incorporated into each XtraCare Service Agreement and any Contract formed in accordance with these Conditions for the provision of Services, to the exclusion of any other terms and conditions, including any terms included in any purchase order issued by the Customer. The Customer is deemed to have automatically accepted these terms and conditions upon accepting such terms upon issuing a Service Request, upon receipt of any Order Confirmation, Renewal Document, and/or the commencement of the provision of any such Services, whichever is the earlier.

2.2 An XtraCare Service Agreement shall be formed and the Customer shall be deemed to have accepted these Conditions, upon the dispatch of any Device which is subject to an XtraCare Service Agreement and shall be in effect for the period of time as set out in the relevant Order Confirmation or upon the date of issue of a relevant Renewal Document.

2.3 Notwithstanding Clause 2.2, an XtraCare Service Agreement for pre-used Devices shall be only formed upon the issue of an Order Confirmation confirming the commencement date and term for the XtraCare Service Agreement. Such Order Confirmation shall only be issued following completion of a Pre-Contract Inspection and provision of Services to bring such Devices to a status acceptable for an XtraCare Service Agreement and receipt by the Supplier of the relevant Fees as set out at Clause 9. The Supplier may, at its absolute discretion, forego the requirement for a Pre-Contract Inspection as envisioned under this Clause 2.3.

2.4 A Contract for the provision of Ad Hoc Services shall be formed and the Customer shall be deemed to have accepted these Conditions upon the completion and submission of the Service Request by the Customer. By submitting the Service Request for Ad Hoc Services, the Customer further accepts liability for payment of the Initial Assessment Fee, even if further Services are not carried out by the Supplier.

2.5 Nothing in these Conditions is intended to or will operate to create a partnership, joint venture, employer / employee or agency relationship between the Parties. Furthermore, neither Party has the authority to make any representation or warranty or create any obligation of any kind, express or implied, on behalf of the other Party. The relationship between the parties shall be limited to the express provisions of these Conditions.

3. Term for Services

3.1 Each XtraCare Service Agreement shall be deemed to have commenced upon the formation of the Contract as further defined in Clause 2 and shall continue for the term as set out in the relevant Order Confirmation or Renewal Document.

3.2 Prior to the expiry of an XtraCare Service Agreement, the Supplier shall issue a quotation to the Customer for a new XtraCare Service Agreement to provide continual provision of the Services, save for where such Devices are deemed at the end of their service life or the Supplier otherwise is unable to continue to provide the Services. The issue of a Renewal Document shall constitute the creation of a new XtraCare Service Agreement for the term set out in the Renewal Document.

3.3 The term for the provision of Ad Hoc Services and Field Services shall be from when the relevant Contract is formed under these Conditions until the conclusion of the Services and return of the relevant Devices in accordance with these Conditions.

Devices

4.1 In the event that the Devices are pre-used or not been subject to an XtraCare Service Agreement at the time of the request for an XtraCare Service Agreement, the Parties shall liaise to arrange a Pre-Contract Inspection of the Device(s) in question at the Customer’s site. The Supplier shall undertake any Services necessary to bring the Devices in line with the relevant manufacturer’s specification and documentation before accepting the Device into an XtraCare Service Agreement as if such Devices were requested to be provided Ad Hoc Services in accordance with these Conditions. The Customer shall be liable for payment of a Call Out Fee and costs for the provision of any Services as if they were Ad Hoc Services before the commencement of the relevant XtraCare Service Agreement. The Supplier may, at its absolute discretion, forego the requirement for a Pre-Contract Inspection as envisioned under this Clause 4.1.

4.2 The Supplier’s obligation to deliver any Services is subject to:

a) the Customer completing and submitting a Service Request for the relevant Service; and

b) the Supplier’s receipt of all required information regarding the Customer, the Devices in question (including the serial number of the Device), description of the fault with the relevant Devices and any additional information which the Supplier may require to undertake the provision of the Services; and

c) the Supplier’s receipt of the relevant Fees in accordance with these Conditions.

4.3 The Supplier may require from the Customer a proof of purchase and confirmation that the relevant Device is subject to an XtraCare Service Agreement.

4.4 If a Device is covered under a Third Party Warranty, then these Conditions shall not apply and the Supplier shall forward the relevant Device to the relevant Third Party at no extra charge to the Customer, save for where such Third Party Warranty was not purchased from the Supplier, in which case the Supplier shall return such Device to the Customer and may charge, at its discretion, any Fees incurred as if the Device was an Ad-Hoc Repair. The Customer accepts and acknowledges that any support or services provided under such Third Party Warranty shall be provided by the relevant manufacturer of the Device or relevant third party and shall be provided in accordance with the relevant terms and conditions relating to the Third Party Warranty as notified to the Customer by such third party. The Customer accepts that the Supplier shall not be liable for any act or omission by any manufacturer or third party, where applicable, in respect of the provision of support or services provided under a Third Party Warranty

4.5 The Services relating to an XtraCare Service Agreement shall cover the particular Devices as set out in the relevant Order Confirmation or Renewal Document, issued by the Supplier which will, among other things, identify the product number and, where applicable, associated serial number for each unit of product covered only.

4.6 The title in the Devices shall not pass to the Supplier at any time in the provision of the Services and the Customer provides the Supplier with authority to access and use the Devices as necessary to undertake the Services.

4.7 Notwithstanding Clause 4.6, the title in respect of any part of the Devices which is removed and replaced as part of the Services, shall automatically transfer to the Supplier upon the provision of the element of the Services in which the removal and replacement occurs. The Customer shall do all things necessary to action such transfer of title of such parts.

4.8 Notwithstanding Clause 4.6, in the event that the Customer does not pay any Fees due under these Conditions, the Parties accept and acknowledge that the Supplier shall have a general lien over any Devices held by the Supplier, until receipt of any relevant Fees and that the Supplier, at its ultimate discretion, may sell the goods in question in the event that the Fees are not paid in accordance with these Conditions in order to recover the amount of Fees outstanding

4.9 Notwithstanding Clause 4.6, in the event that the Customer fails to accept or reject the quote issued for Ad-Hoc Services under Clause 5.5 or otherwise respond to any notices from the Supplier, the Supplier shall notify the Customer that it shall dispose of the Devices if it does not receive such response within 180 days, at which point the Supplier may, at its absolute discretion dispose of such Devices in accordance with applicable law at the Customer’s cost, without further notice

5. Repair request process

5.1 Following the submission of a Service Request for any type of Services other than a Field Service, the Customer shall arrange for the transportation of the relevant Device to the Supplier in accordance with these Conditions, DDP the Supplier’s premises as defined under Incoterms 2020. The Customer shall bear the risk and cost of such transport of the Devices to the Supplier.

5.2 As soon as reasonably practicable, the Supplier shall undertake the Initial Assessment of the Device and, where a fault is found, shall advise the Customer of the extent of Services required to bring the Device back into working order in accordance with the relevant specification for the Device in question from the relevant manufacturer.

5.3 Subject to Clause 5.4, in the event that the Device is subject to a valid XtraCare Service Agreement, the Supplier shall undertake the Services to the Device in accordance with these Conditions and shall arrange for the return of the Device to the Customer at the details provided by the Customer at no extra cost, save for any Services Exclusion items, DDP the Customer’s premises as defined under Incoterms 2020.

5.4 If the Services under an XtraCare Service Agreement requires the use of any Services Exclusion items, the Supplier shall issue a quotation for such Services Exclusion items and following approval of such Fees, issue an invoice to the Customer for the cost of such Services Exclusion items which must be paid before the completion of the Services and the return of the Device in question, save for where such requirement arises during the provision of Field Services, in which case, the Customer is deemed to have automatically accepted the requirement for the use of Services Exclusion items and shall be liable for payment of the same when invoiced in accordance with these Conditions. 

5.5 If the Device is not covered under an XtraCare Service Agreement and requires Ad Hoc Services, the Supplier shall undertake its obligations under Clause 5.2 and shall issue a quote for the provision of the Services to bring the Device back into working order in accordance with the relevant specification for the Device in question from the relevant manufacturer and the Initial Assessment Fee, calculated in accordance with Clause 9 to the Customer for approval. If the Customer accepts this quote, it shall issue a purchase order or otherwise confirmation of the same and the Supplier shall commence the provision of the Services. The Supplier shall not commence the provision of the Services until receipt of the relevant confirmation.

5.6 If following the Initial Assessment, the Supplier deems that there is no fault to the Device, it shall notify the Customer of the same. If the Device is subject to a valid XtraCare Service Agreement, the Supplier shall arrange for transportation of the Device back to the Customer at no extra charge, DDP the Customer’s premises as defined under Incoterms 2020. However, if the Device is receiving Ad Hoc Services, the Supplier shall invoice the Customer for the Initial Assessment Fee, which must be paid before the return of the Device in question.

5.6 In the event that the Customer rejects any quotation for Ad Hoc Services or the use of Services Exclusion items, for any reason, the customer shall be liable for payment of the Initial Assessment Fee and Return Shipping Charge and the Devices in question shall not be returned until payment of such Fees in accordance with these Conditions.

5.7 Save for where the Customer is subject to an Xtracare Service Agreement, if the Services required are Field Services, the Supplier shall issue an invoice for the Call Out Fee and one (1) hours labour, calculated in accordance with Clause 9 and then upon receipt of such Fee, shall commence the Field Services in accordance with these Conditions. Following completion of the Field Services, the Supplier shall issue an invoice for payment of the remainder of the Services undertaken at the Customer’s site.

5.8 If satisfactory repair is not achieved and the Customer is party to an XtraCare Service Agreement, where possible a loan unit will be set up on-site or sent to the Customer’s site, as agreed between the Parties, as a replacement until repair of the original Device is carried out and returned to you, the loan of such device shall be under separate terms. 

5.9 Notwithstanding Clauses any provision of these Conditions, if the Customer fails to transport a Device in accordance with these Conditions and as a direct result, such Device becomes damaged over and above the reported fault with the Device in the original Service Request, the Supplier may suspend the provision of Services and issue an invoice to undertake any additional Services it may require to return the Device back into working order in accordance with the relevant specification for the Device in question from the relevant manufacturer. Such Services, regardless of whether the Device is subject to an Xtracare Service Agreement or Third Party Warranty, would constitute Ad-Hoc Services and the process at Clause 5.5 would be followed.

The Services

6.1 The Supplier shall use reasonable endeavours to undertake the Services to the relevant Devices:

a) for any Devices under an XtraCare Service Agreement, the Supplier shall undertake and complete the Services within five (5) Working Days of completion of the Initial Assessment, or where the Services include any Services Exclusion items, five (5) Working Days of receipt of the relevant Fees for such Services Exclusion items;

b) For any Ad Hoc Services, the Supplier shall undertake and complete the Services within twenty eight (28) days of receipt of the confirmation of acceptance of the Supplier’s quote, in accordance with Clause 5.5.

c) For Field Services, which for the avoidance of doubt is only available to Customers who are subject to an Xtracare Gold Xtracare Service Agreement, the Supplier shall arrive at the Customer’s site to commence the provision of the Services within eight (8) Working Hours of receipt of payment of the relevant Fees as quoted in accordance with Clause 5.7 for a Device under an XtraCare Service Agreement and within five (5) Working Days for a Device requiring Ad Hoc Services.

6.2 The Services shall be providing during Working Hours only. 

6.3 When the Services are undertaken at the Supplier’s premises, the Supplier shall return the Device DDP the Customer’s premises as defined under Incoterms 2020, upon receipt of payment of all relevant Fees.

6.4 Notwithstanding any other provision of these Conditions, the Customer accepts and acknowledges that any timeframes in respect of the provision of the Services are indicative only and whilst the Supplier shall use Good Industry Practice in order to achieve them, there shall be no obligation upon the Supplier to complete the Services within such timeframes.

6.5 If, as a direct result of any act or omission of the Customer in the performance of its obligations under these Conditions, the provision of the Services are delayed, the timeframes as set out in Clause 6.1 shall be automatically extended by a time period reflecting of the delay caused by such act or omission.

6.6 Notwithstanding Clause 4.6, the Supplier shall be free to make all decisions regarding the Devices during the period of the provision of the Services, as if it were the legal owner of the Devices. During provision of the Services, if replacement parts or units of products are needed, such parts will be new or refurbished, and such units of products will be products equivalent to new in performance.

Service standards

7.1 The Supplier shall carry out the Services:

a) In accordance with Good Industry Practice;

b) In accordance with applicable laws as they relate to the provision of the Services;

c) In accordance with any relevant manufacturer’s guidance or documentation

7.2 The Customer accepts and acknowledges that whilst the Services shall be undertaken in accordance with these Conditions, there is no guarantee that the Services shall bring a Device back to good working order or in accordance with the relevant manufacturer’s specification or documentation.

7.3 The Supplier shall at all times use personnel who are suitably skilled and experienced to deliver the Services and, in such numbers, as will ensure that the Supplier’s obligations are fulfilled in accordance with these Conditions.

7.4 The Supplier warrants that at all times it has and shall maintain all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under these Conditions

7.5 Except for the express warranties and conditions expressly contained or referred to in these Conditions, the Supplier makes no other warranties or representations regarding the provision of the Services and all warranties, conditions and other terms express or implied statutory or otherwise in respect of compliance with descriptions, the satisfactory quality or the fitness for purpose of the Services or any parts, which are not expressly set out in these Conditions are excluded to the fullest extent permitted by law

7.6 The Supplier shall not be deemed to be in breach of these Conditions or any Contract or otherwise liable to the Customer for any delay in performance or any non-performance of any obligations under these Conditions or any Contract formed hereunder, to the extent that the delay or non-performance is caused by a failure by the Customer to comply with its obligations under these Conditions or any Contract formed hereunder (and the time for performance shall be extended accordingly).

Customer obligations

8.1 The Customer shall:

a) co-operate with the Supplier to enable the Supplier to provide the Services in accordance with these Conditions to the extent necessary for delivery of the Services;

b) provide all relevant information or data reasonably requested by the Supplier in order to undertake the Services;

c) comply with all instructions contained in documentation supplied by the Supplier or with a Device or with any reasonable requests that we may make from time to time;

d) when receiving Field Services

i) provide the Supplier’s personnel with suitable access and egress to the Customer’s site, including the areas of the site required to undertake the Services, at the time agreed between the Parties in order to complete the Services;

ii) provide a safe and suitable operating environment and power supply for each Device which requires such Services, which complies with the Supplier’s specification contained in the documentation supplied with the Device or as otherwise notified to the Customer;

iii) provide the Supplier’s personnel with suitable site induction and suitable personal protective equipment for use during their attendance upon your site in accordance with applicable health and safety laws;

e) promptly notify the Supplier of an issue with a Device under an XtraCare Service Agreement by submitting a Service Request;

f) identify the correct Device when submitting a Service Request. In the event a Service Request for Field Services is submitted stating that a Device is under an XtraCare Service Agreement, but it transpires the Services are required for a different device, then the Supplier may refuse to provide any Services and leave the Customers site. The Customer shall be liable for a call-out charge levied by the Supplier.

g) When transporting the Devices to the Supplier for the provision of the Services:

i) In accordance with Clause 5.1;

ii) Ensure that the Devices are transported using Good Industry Practice, using a courier or transportation company of good repute and in suitable and proper packaging to withstand handling, transport and storage conditions, so as to ensure that the Devices are not damaged during transit. The Customer shall indemnify and hold the Supplier harmless against any claims arising out of any defect or damage to the Devices caused during transport to the Supplier;

h) Remove any personal, sensitive or confidential data from any Device prior to transporting it to the Supplier for the provision of the Services. Subject to Clause 11, the Supplier accepts no liability whatsoever for loss of, or damage to, data (including but not limited to any personal, sensitive or confidential data, settings and applications) stored upon any Device sent to us for the provision of the Services. In the event that the Customer is unable to remove any personal, sensitive or confidential data, then the Customer shall contact the Supplier for further instructions before transporting the Device.

9. The Fees & Invoicing

9.1 In consideration for the provision of Services to Devices under an XtraCare Service Agreement, the Customer shall pay the Fees as set out in the relevant Order Confirmation or Renewal Document in advance of the commencement of the XtraCare Service Agreement. For the avoidance of doubt, these Fees include the provision of all labour, parts, return of Devices and Services, save for the Services Exclusions, which shall be chargeable as set out in Clause 9.2.

9.2 For Ad Hoc Services and Field Services, the Customer shall pay the amount as quoted by the Supplier for the provision of such Services, which shall be calculated in accordance with the following table:

9.3 The Supplier reserves the right to adjust any such Fees as set out in the table at Clause 9.2 without the consent or the provision of any notice to the Customer.

9.4 For the avoidance of doubt, all Fees payable are exclusive of any applicable VAT which shall be payable in addition by the Customer.

9.5 The Supplier shall issue an invoice for the Ad-Hoc Services upon completion of the Services. Payment terms for all invoices are immediate upon receipt of the Suppliers invoice and all payments must be paid by BACS unless otherwise agreed in writing.

9.6 If the Customer has an existing and open credit account with the Supplier and the amount to be paid for the provision of the Services is within the Customer’s credit limit, the Supplier shall undertake the Services and charge the Fees to their credit account and the Customer shall pay the Fees in accordance with the credit arrangement it holds with the Supplier. Notwithstanding the foregoing, the Supplier reserves the right to refuse the provision of any Services in the event that any credit account of the Customer is on stop and shall notify the Customer of this. The Supplier’s obligations in respect of the provision of any such Services shall recommence upon the payment of the outstanding amount of any such credit account. 

9.7 If the Customer fails to make a payment in accordance with these Conditions, the Supplier shall be entitled to recover interest on any outstanding amount at the rate of 5% per annum above Barclays Bank PLC base rate from time to time from the date the payment became due under the invoice until the date of payment.

9.8 The Customer accepts and acknowledges that a Device shall not be returned until the payment of the relevant Fees in accordance with these Conditions as provided for in this Clause 9.

10. Confidentiality

10.1 In relation to Confidential Information:

a) the Parties shall treat as confidential all Confidential Information of the other Party supplied under or in anticipation of any Contract formed under these Conditions and use such Confidential Information only for the purposes of fulfilling its obligations under these Conditions. The receiving Party shall not divulge any such Confidential Information to any person except to its own employees and then only to those employees who need to know the same for the undertaking of the relevant Party’s obligations under these Conditions. The receiving Party shall ensure that its employees are aware of, and comply with, the provisions of this Clause 13;

b) The Supplier may provide any sub-contractor or other third party with such Customer's Confidential Information as it needs to know in order to perform its obligations under a contract formed under these Conditions, provided that:

i) such sub­contractor or other third party is made aware, prior to the disclosure of any part of the Customer's Confidential Information, that the same is confidential and that they owe a duty of confidence to the Customer; and

ii) the Supplier shall remain primarily liable for any disclosure of the Confidential Information by such third party where such disclosure, if made by the Supplier, would have been a breach of these Conditions; and

c) the foregoing obligations shall remain in full force and effect notwithstanding any termination of the relevant Contract formed under these Conditions.

10.2 Clause 10.1 shall not apply to the extent that information is:

a) lawfully in the possession of the receiving Party prior to its earliest receipt from the disclosing Party;

b) already in or enters the public domain other than as a result of a breach by the receiving Party of a confidentiality obligation; or

c) required by law to be disclosed by the receiving Party, but only to the extent of such order and the receiving Party shall where it is legally able to do so promptly inform the disclosing Party of such requirement prior to any disclosure.

11. Data Protection

11.1 The Parties accept and acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor in respect of any Personal Data Processed in accordance with any Contract formed under these Conditions.

11.2 The Supplier shall process the Personal Data in accordance with the Data Protection Legislation only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Customer. An overview of the categories of Personal Data, categories of data subjects, nature of the processing and purposes for which the Personal Data is being processed is provided in Schedule 1 to these Conditions.

11.3 The Supplier shall, in relation to any Personal Data processed in connection with its obligations under these Conditions process that Personal Data only in accordance with Schedule 1 and the Data Protection Legislation, unless the Supplier is required to do otherwise by any applicable laws.

11.4 If the volume or type of Processing of Personal Data increases or changes, the parties shall acting in good faith, negotiate a suitable data processing agreement to reflect any further requirements.

12. Intellectual Property

12.1 All Intellectual Property Rights are and shall remain the exclusive property of the Party owning them (or, where applicable, the third party from whom its right to use the Intellectual Property Rights has derived).

12.2 Each Party shall grant or procure the grant of a royalty free, perpetual, irrevocable licence to the other Party to use Intellectual Property Rights as are necessary to allow the other Party to exercise its rights and perform its obligations under these Conditions and for the Supplier to undertake the relevant Services.

12.3 Each Party shall, at its own cost, promptly do or procure the doing of all such acts and things and execute or procure the execution of all such documents as may from time to time be required to give effect to this Clause 12.

12.4 Except as expressly provided in these conditions, no rights or obligations in respect of a Party's Intellectual Property Rights are granted to the other Party or shall be implied from these Conditions.

12.5 Each Party shall indemnify and keep the other Party indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the injured Party as a result of or in connection with any claim made against them for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection the use of any Intellectual property provided by the other Party.

Termination of Contracts

13.1 The Customer accepts and acknowledges that an XtraCare Service Agreement is non-cancellable by the Customer and shall automatically expire upon the end of the term or the expiry date as set out in the relevant Order Confirmation or Renewal Document

13.2 The Supplier shall be entitled to immediately terminate any XtraCare Service Agreement or cease the provision of any Services for Ad Hoc Services, in the event that the Customer:

a) Fails to pay any Fees in accordance with these Conditions; or

b) breaches any of its obligations specified under these Conditions and fail to remedy the breach within ten (10) days of the Supplier notifying the Customer of such breach;

c) fails to ship the Devices to the Supplier in accordance with these Conditions and as a result the Devices are damaged to the extent that the Supplier deems, at its ultimate discretion, that such damage has caused the relevant Devices to be beyond economical repair; or

d) the Devices under the relevant XtraCare Service Agreement, or the parts within become obsolete and the Services cannot be provided.

13.3 Notwithstanding Clause 13.1, either Party may terminate a contract formed under these Conditions immediately by written notice to the other Party if:

a) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 within the meaning of section 268 of the Insolvency Act 1986;

b) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party;

e) the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;

f) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;

g) A creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party's assets and such attachment or process is not discharged within days;

h) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 17.1 (a) to (g) (inclusive);

i) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

j) there is a change of control of the other Party (within the meaning of section 1124 of the Corporation Tax Act 2010) where such change of control would cause a material conflict of interest with the other Party.

13.4 In the event that any Contract formed under these Conditions, is terminated for any reason whatsoever, the Customer shall pay the Supplier all Fees due under the relevant Contract immediately. The Supplier shall not be liable to refund any advance payments for the provision of the Services in the event that the relevant contract is terminated prior to the expiry of the relevant XtraCare Service Agreement or before the completion of the Services.

13.6 Termination under the provision of this Clause 13 will not affect your or our rights or remedies under these Conditions or any Contract, or in law, neither will it affect the accrued rights or liabilities of either party.

14. Limitation of Liability

14.1 Neither Party excludes or limits liability to the other Party for death or personal injury caused by its negligence or the negligence of its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law.

14.2 Subject always to the provisions of Clause 14.1, neither Party shall be liable to the other whether in contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise, for the following losses whatsoever or howsoever caused or arising under or in connection with the provision of the Services or the provisions of these Conditions or any Contract, whether direct or indirect:

a) loss of profit or anticipated profit;

b) loss of business or business interruption;

c) loss of opportunity;

d) loss of goodwill;

e) loss of operation time;

f) wasted expenditure;

g) management or staff time;

h) loss of reputation; and/or

i) loss of data;

or for any indirect or consequential loss or damage whatsoever, even if a Party has been advised of the possibility and scope of such damages arising and the Parties intend that each type of loss under this Clause 14.2 shall be severable in accordance with Clause 26.4;

14.3 Subject always to the provisions of Clause 14.1, the Supplier's total aggregate liability to the Customer arising under or in connection with the provision of the Services, whether in contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise, shall be limited to:

a) In respect of the provision of the Services for a Device under an XtraCare Service Agreement, the amount of Fees paid in respect of the relevant XtraCare Service Agreement

b) In respect of ad hoc services, the amount of fees paid for the provision of such Services

14.4 Subject always to the provisions of Clause 14.1, neither Party shall be liable to the other Party in respect of any loss or damage to the extent that such loss or damage is caused by the act or omission in breach of these Conditions or any Contract formed hereunder by or the negligence of the other Party or any agent or employee of that other Party.

15. Force Majeure

15.1 Neither Party shall be deemed to be in breach of these Conditions or any Contract formed hereunder, or otherwise liable to the other Party for any delay in performance or any non-performance of any obligations under these Conditions or any Contract formed hereunder (and the time for performance shall be extended accordingly) to the extent that the delay or non-performance is due to circumstances of Force Majeure.

15.2 A Party affected by a Force Majeure Event shall promptly notify the other Party of the nature and extent of the circumstances of Force Majeure. During the subsistence of the circumstances of Force Majeure, both Parties shall take all reasonable steps to minimise any adverse implications (including costs) and the Parties shall promptly meet to discuss how best to overcome the circumstances of Force Majeure.

15.3 If the circumstances of Force Majeure continue for a period in excess of one (1) months after the date on which it began, the Party not asserting Force Majeure may give one (1) month’s written notice to the other Party terminating the relevant Contract. Neither Party shall have any liability to the other in respect of termination of such Contract, due to circumstances of Force Majeure but rights and liabilities pertaining to the period up to the date of termination and which have accrued prior to termination shall subsist and rights and obligations otherwise pertaining to the period after the date of termination shall cease to be of effect.

15.4 The provisions in this Clause 15 shall not relieve either Party of any obligation in respect of payment of sums due and payable under these Conditions or relevant Contract as at the date of termination.

16 Assignment and subcontracting

16.1 The Customer may not assign, novate, dispose of, sub-licence, or otherwise transfer any contract formed under these Conditions nor any or all of its rights and/or obligations hereunder to any third party without the previous consent in writing of the Supplier. (such consent shall not be unreasonably withheld).

16.2 The Supplier shall be entitled to:

a) sub-contract all or any part of its obligations under these Conditions to a third party; and/or

b) assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under these Conditions,

c) assign the benefit of this any contract formed under these Conditions to a third party funder,

without requiring the consent of the Customer provided always that the Supplier shall at all times remain primarily liable for its obligations under these Conditions and shall be liable under each relevant Contract for all acts or omissions of any third party sub-contractor.

Dispute Resolution

17.1 Any dispute which may arise between the Parties concerning these Conditions or any Contract formed hereunder, shall be determined as provided in this Clause 17. For the purpose of this Clause 17, a dispute shall be deemed to have arisen when one Party serves on the other a notice in writing stating the nature of the dispute.

17.2 After service of the notice of dispute, the following procedure shall be followed by the Parties (all periods specified in this Clause 17.2 shall be extendable by mutual agreement):

a) within five (5) Working Days, representatives of the Parties shall meet to attempt to settle the dispute;

b) if the representatives under Clause 17.2 (a) are unable to reach a settlement within ten (10) Working Days from the date of service of the notice, a Director of the Supplier and a Director of the Customer shall meet within the following five (5) Working Days to attempt to settle the dispute; and

c) If the dispute is not resolved within a further five (5) Working Days of the meeting specified in Clause 17.2 (b), the Parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator will be nominated by CEDR and costs shall be shared equally between the Parties or as adjudged by the mediator. To initiate the mediation a Party must give notice in writing (ADR notice) to the other Party to the dispute requesting mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 30 days after the date of the ADR notice.

17.3 No Party may commence any court proceedings in relation to any dispute arising out of these Conditions or any Contract formed hereunder, until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other Party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay and provided that this shall not prevent either Party seeking injunctive or other forms of equitable relief.

18. General Provisions

18.1 No variation of these Conditions or any contract formed hereunder shall be binding upon the Parties unless the same shall be in writing duly signed by the authorised representatives of both of the Parties and such variation shall be particular to the circumstances mentioned by such writing and shall not be regarded as a general variation.

18.2 The failure of either Party to insist upon strict performance of any provision of these Conditions, or the failure of either Party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established by these Conditions or any contract formed hereunder.

18.3 Subject to the specific limitations set out in these Conditions, no remedy conferred by any provision of these Conditions is intended to be exclusive of any other remedy except as expressly provided for in these Conditions and each and every remedy shall be cumulative and shall be in addition to every other remedy given thereunder under existing law or in equity, by statute or otherwise.

18.4 If any provision of these Conditions or any contract formed hereunder (or part of a provision) is held invalid, illegal or unenforceable for any reason by any court or administrative body of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if any relevant contract had been formed with the invalid, illegal or unenforceable provision eliminated.

18.5 These Conditions, together with the documents referred to in it firming the relevant Contracts and Schedule 1 represent the entire agreement between the Parties with respect to the subject matter covered by it and supersedes and replaces all prior communications, drafts, representations (excluding fraudulent representations), warranties, stipulations, undertakings and agreements of whatsoever nature, whether oral or written, between the Parties relating to the subject matter of these Conditions.

18.6 Each Party acknowledges that, in entering into any Contract formed under these Conditions, it is not relying upon any representation, warranty, promise or assurance made or given by the other Party or any other person, whether or not in writing, at any time prior to the formation of such contract, which is not expressly set out or referenced in these Conditions.

18.7 The Parties acknowledge that that they have not been induced to enter into any contract formed under these Conditions in reliance upon any representation or other statement or promise of any nature whatsoever other than as expressly set out in these Conditions and, save as expressly set out in these Conditions, neither Party shall have any liability in respect of any other representation, warranty or promise made prior to the date of the relevant contract formed under these Conditions, unless it was made fraudulently.

18.8 Other than as expressly set out in these Conditions, all representations, warranties, conditions or innominate terms whether express, implied by statute or otherwise are excluded from these Conditions and any contract formed hereunder. In the case of representations, warranties, conditions or innominate terms implied by statute, these are excluded to the fullest extent permitted by law. Nothing in this Clause 18.8 or elsewhere in these Conditions or any contract formed hereunder shall exclude or restrict any liability, which either Party would otherwise have to the other in respect of any statements made fraudulently by that Party prior to the date of such relevant contract.

18.8 A person who is not a Party to a contract formed under these Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

18.9 Each Party warrants that it has full capacity and authority, and all necessary permits and consents to enter into any contractor formed under these Conditions and perform their obligations under these Conditions.

18.10 The Parties acknowledge that unless otherwise specified in these Conditions, information exchanged between the Parties during the course of fulfilling their obligations under these Conditions may be conducted via insecure methods. Should either Party wish to transfer any information (including Confidential Information) in a secure manner it must inform the other Party of the requirement and subsequently agree with the other Party a suitable mechanism for such a secure transfer.

19. Governing Law

19.1 These Conditions, and any Contract formed hereunder and any disputes or claims arising out of or in connection with its subject matter shall be governed by and construed in accordance with English law and each Party hereby submits to the exclusive jurisdiction of the English Courts.

SCHEDULE 1

DATA PROCESSING INFORMATION

i) The contact details of the Supplier’s Data Protection Officer are:

Joanne Lee

Telford Drive, Newark, Nottinghamshire NG24 2DX

Email: joanne.lee@thebarcodewarehouse.co.uk

ii) The Customer shall provide the Supplier with the contact details of its data protection officer or other designated individual with responsibility for data protection and privacy to act as the point of contact for the purpose of observing its obligations under the Data Protection Legislation.

iii) The Supplier shall comply with any further written instructions provided by the Customer from time to time with respect to processing Personal Data under any contract formed under these Conditions.

TRANSFERS OUTSIDE THE EUROPEAN ECONOMIC AREA

There shall be no transfer of Personal Data outside of the European Economic Area.