STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
1. Application of Conditions
These Conditions shall govern the Contract and, unless expressly agreed otherwise in writing, all future sales of goods and/or services, to the exclusion of any other terms and conditions which the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.1 In these Conditions:-
“Business Day” means any day other than a Saturday, Sunday or bank holiday in England;
“Buyer” means the person who purchases the Goods and/or Services from the Seller as set out in the Order;
“Contract” means the contract for the purchase of the Goods and/or the Services between the Buyer and the Seller arising under these Conditions;
“Conditions” means the standard terms and conditions of sale set out in this document;
“Delivery Date” means the date on which the Seller anticipates the Goods are to be delivered or made available for collection by the Buyer in accordance with clause 5.1 of these Conditions as set out in the Order or agreed otherwise;
“Goods” means the goods (including any installment of the goods or any parts for them) set out in the Order;
“IPR” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Order” means the Buyer’s order for the supply of the Goods and/or Services as set out in any purchase order received from the Buyer or the Buyer’s written acceptance of a quotation provided by the Seller, as the case may be;
“Seller” means Videonations Ltd, a company registered in England and Wales under company number 03821559; and
“Services” means any services set out in the Order and any additional services provided in relation to the Goods.
2.2 In these Conditions:
2.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.2.2 a reference to a party includes its successors or permitted assigns;
2.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
2.2.4 headings are for convenience only and shall not affect interpretation;
2.2.5 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.6 a reference to writing or written includes faxes, but not emails; and
2.2.7 a reference to a month means a calendar month.
3. Basis of Sale
3.1 The Order constitutes an offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions. The Order shall only be deemed to be accepted when an authorised representative of the Seller issues written acceptance of the Order at which point and on which date the Contract shall come into existence. The Buyer may not cancel or vary the Order following acceptance by the Seller without the Seller’s written agreement.
3.2 Any quotation given by the Seller shall not constitute an offer, and is only valid for 30 days from its date of issue, or such lesser time as the Seller may specify. The Seller may withdraw or amend its quote at any time prior to its acceptance of the Order in accordance with these Conditions.
3.3 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract (unless it is given fraudulently).
3.4 Sales literature, price lists and other documents and collateral issued by the Seller from time to time in relation to the Goods and Services are, unless otherwise expressly agreed in writing by the Seller, for illustration only and do not constitute part of the Contract.
3.5 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller, save that any typographical, clerical or other accidental errors or omissions in the Order shall be subject to correction without any liability on the part of the Seller.
4.1 On delivery, the Goods shall be:
4.1.1 free from material defects; and
4.1.2 comply in all material respects with their description and any specification as expressly stated in the Order.
4.2 The Seller shall use reasonable endeavours to pass on to the Buyer the benefit of any manufacturer’s warranty provided by a manufacturer of the Goods.
4.3 The Seller reserves the right to make any changes in the specification of the Goods at any time which are required to conform to applicable law, including health and safety or other regulatory requirements, or which do not materially affect the quality of the Goods.
5. Delivery of Goods
5.1 Delivery of the Goods shall be made by either:
5.1.1 the Seller delivering the Goods to the place specified in the Order; or
5.1.2 if so specified in the Order or otherwise agreed in writing by the parties, the Seller making the Goods available for collection by the Buyer at the Seller’s premises.
5.2 The Delivery Date is approximate only and time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer. Where the Buyer is collecting the Goods, it shall do so promptly and in any event within two Business Days of the Seller notifying it they are ready for collection.
5.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to any remedy in respect of the other instalments.
5.4 If the Buyer fails to take delivery of the Goods in accordance with this clause 5 or any part of them on, and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered by, the Delivery Date, the Seller shall be entitled upon given written notice to the Buyer to store or arrange for the storage of the Goods and, notwithstanding the provision of clause 8.1, risk in the Goods shall pass to the Buyer, and the Buyer shall pay to the Seller all costs and expenses (including storage and insurance charges) arising from such failure.
5.5 If on the Buyer’s request, the delivery details are changed from those previously agreed and as set out in the Order, the Seller reserves the right to charge the Buyer for any costs incurred as a result of this change. These charges may include but are not limited to storage, packaging and transport costs.
6.1 The Buyer shall, where possible, inspect the Goods on delivery or on collection as the case may be.
6.2 Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined” or “condition and contents unknown”.
6.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause 6 are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Seller within 3 Business Days of delivery detailing the alleged damage or shortage.
6.4 In all cases where damage or shortages are complained of the Seller shall be under no liability in respect thereof unless the Seller is given a reasonable opportunity to inspect the Goods before such Goods are used, altered, modified or sold by the Buyer.
6.5 Subject to clause 6.3 and clause 6.4, the Seller shall make good any shortage in the Goods and where appropriate replace any of the Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
7. Defective Goods
7.1 If on delivery any of the Goods do not conform with clause 4.1 and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery “not examined” or “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within 3 Business Days of such delivery, the Seller shall at its option:-
7.1.1 replace the defective Goods within a reasonable period of receiving the Buyer’s notice; or
7.1.2 refund to the Buyer the price for the Goods which are defective.
The Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as aforesaid.
7.2 If a latent defect becomes apparent during the period covered by a manufacturer’s warranty, the Buyer must give written notice of such defect to the Seller within a reasonable period following the latent defect becoming apparent. Following receipt of the Buyer’s notice and subject the Seller being satisfied such defect exists and has not arisen pursuant to any of the circumstances described in clause 7.3, the Seller shall at its option remedy the defect in accordance with either clause 7.1.1 or clause 7.1.2.
7.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s and/or manufacturer’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller’s approval, or any other act or omission on the part of the Buyer, its employees, agents, representatives, consultants and sub-contractors.
7.4 Except as provided in this clause 7 the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1 or the benefit of any warranty passed on pursuant to clause 4.2.
8. Risk and Retention of Title
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 if the Goods are to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2 if the Goods are to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.3 Until payment has been made to the Seller in accordance with these Conditions and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.5 The Seller reserves the right to repossess any of the Goods in which the Seller retains title and in which the Buyer’s right to possession has terminated in accordance with the provisions of clause 8.6 without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of clause 8.3.
8.6 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if the Seller is entitled to terminate the Contract.
8.7 Nothing in this clause 8 shall prevent the Buyer from using the Goods in the ordinary course of its business.
9.1 The Seller shall perform the Services described in the Order with reasonable care and skill in accordance with good industry practice and any applicable law.
9.2 The Seller shall use reasonable endeavours to meet any performance dates for the Services agreed, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 The Seller shall have the right to make any changes to the Services at any time which are required to conform to applicable law, including health and safety or other regulatory requirements, or which do not materially affect the quality of the Services.
9.4 The Buyer shall:
9.4.1 provide the Seller, its employees, agents, representatives, consultants and sub-contractors, with access to the Buyer’s premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services;
9.4.2 prepare the Buyer’s premises, as required by the Seller, for the supply of the Services;
9.4.3 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
9.4.4 keep and maintain all materials, equipment and other property of the Seller at the Buyer’s premises in safe custody at its own risk and in good condition until returned to the Seller on request, and not dispose of the same other than in accordance with the Seller’s written instructions or authorisation.
9.5 If the Seller fails to perform any of the Services in accordance with clause 9.1 and the Buyer gives written notice of such failure to the Seller within 3 Business Days of such performance, the Seller shall at its option:-
9.5.1 re-perform the Services within a reasonable period of receiving the Buyer’s notice; or
9.5.2 refund to the Buyer the price for the Service which are non-compliant,
in which case the Seller shall have no further liability to the Buyer.
10.1 The price of the Goods and Services shall be the price stated in the Order or such other price as may be agreed in writing by the Seller and the Buyer from time to time.
10.2 The Seller will allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller’s standard published price list for the Goods current at the date of acceptance of the Order and any additional conditions set out in the Contract.
10.3 Any settlement discount expressly stated in the Contract will be allowed by the Seller to the Buyer in respect of the Goods and Services for which payment is received by the Seller on or before the due date in accordance with the payment terms set out in these Conditions and provided that no other amounts owing by the Buyer to the Seller are overdue and unpaid.
10.4 Subject to clause 5.4 and except as otherwise stated in the Order or in the Seller’s standard published price list or otherwise agreed in writing between the Buyer and the Seller, all prices are inclusive of the Seller’s charges for packaging and transport.
10.5 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Buyer shall be additionally liable to pay to the Seller at the same time as the price.
11.1 Subject to anything expressly agreed in writing to the contrary, the Seller shall invoice the Buyer for the price for:
11.1.1 the Goods on or at any time after delivery, or as applicable installation, of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has correctly tendered delivery of the Goods; and
11.1.2 the Services on or at any time after the performance of the relevant Services.
11.2 The Buyer shall pay the price of the Goods and Services, without any other deduction credit or set off, within 30 days of the date of the Seller’s invoice or otherwise in accordance with such credit term as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
11.3 All payments shall be made to the Seller as indicated on the Seller’s written acceptance of an Order or invoice issued by the Seller.
11.4 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 2% per annum above National Westminster Bank plc’s base rate from time to time. Such interest shall accrue on a monthly basis from the due date until actual payment of the overdue amount (and any part month shall be treated as a whole month for the purpose of calculating the interest due), whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
11.5 The Seller may, without limiting its other rights or remedies, allocate any amount paid to it by the Buyer against any amounts owing to it by the Buyer, whether under the Contract or otherwise, and may set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer, whether under the Contract or otherwise.
11.6 The Buyer agrees that the Seller may perform a credit check against the Buyer and pass the Buyer’s credit history with the Seller to credit agencies as and when required. The Seller shall, upon written notice, be entitled to change the terms of or withdraw credit provided to the Buyer if at any time the Seller is not satisfied as to the creditworthiness of the Buyer including, without prejudice to any other rights, to require the provision of a down payment or prepayment in a form acceptable to the Seller.
12. Intellectual Property
All IPR in or arising out of or in connection with the Goods and Services shall be owned by and shall at all times remain the property of the Seller or its suppliers or licensors.
13. Limitation of Liability
13.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
13.2 Nothing in these Conditions excludes or limits the liability of the Seller:
13.2.1 for death or personal injury caused by the Seller’s negligence;
13.2.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
13.2.3 for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
13.3.2 the Seller shall not be liable to the Buyer for any:
a) pure economic loss, loss of profit, loss of business or depletion of goodwill, in each case whether direct, indirect or consequential; or
b) any indirect or consequential loss whatsoever
which arises out of or in connection with the Contract.
13.4 This clause 13 shall survive the termination of the Contract.
14. Assignment and Sub-Contracting
14.1 The Seller may assign or sub-contract the Contract or any part of it to any third party without the consent of the Buyer.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it to any third party without the prior written consent of the Seller.
15. Confidentiality and Publicity
15.1 The Buyer undertakes to the Seller that:-
15.1.1 the Buyer will, and will procure that its employees, agents, representatives, consultants and sub-contractors will, regard as confidential the Contract and all information obtained by the Buyer relating to the business, products and/or services of the Seller which is marked as confidential or ought reasonably to be considered as confidential and will not use or disclose to any third party such information without the Seller’s prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer’s default; and
15.1.2 the Buyer will not, and will ensure that its employees, agents, representatives, consultants and sub-contractors will not, use or authorise or permit any other person to use any name, trade mark, logo, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or marketing materials or any other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its suppliers or licensors.
15.2 This clause 15 shall survive the termination of the Contract.
16.1 The Seller shall be entitled to terminate or suspend the Contract (and any other contract between the Seller and the Buyer) without liability to the Buyer by giving notice to the Buyer at any time if:
16.1.1 any payment from the Buyer under the Contract is more than 14 days overdue;
16.1.2 the Buyer commits a material and (if remediable) fails to remedy that breach within 14 days of written notice of the breach;
16.1.3 the Buyer commits persistent breaches of the Contract;
16.1.4 the Buyer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, scheme of arrangement, receivership, administration, liquidation, bankruptcy or winding up (or any application is made or notice filed in relation to any of the foregoing events), is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of a distraint, execution, event of insolvency or event of bankruptcy or any similar process or event, whether in the United Kingdom or otherwise;
16.1.5 the Buyer ceases, or threatens to cease, to carry on business; or
16.1.6 the Seller reasonably believes that any of the events mentioned in clause 16.1.3 or 16.1.4 are about to occur.
16.2 On termination of the Contract for any reason:
16.2.1 the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of the Goods and Services supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
16.2.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
16.2.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17. Force Majeure
17.1 In the event that either party is prevented, hindered or delayed in fulfilling its obligations under the Contract, other than the obligation to pay the price for the Goods and Services, by reason of any event beyond its reasonable control including but not limited to war, national emergency, flood, earthquake, strike or lockout (save where a strike or lock out has been induced by the affected party) (a “Force Majeure Event”) the affected party shall not be deemed to be in breach of its obligations under this Contract. The affected party shall immediately give notice of the Force Majeure Event to the other party and must take all reasonable steps to resume performance of its obligations.
17.2 If the affected party is prevented, hindered or delayed in fulfilling its obligations under the Contract as a result of a Force Majeure Event for more than 30 days the affected party shall be entitled to terminate the Contract on written notice.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.1 Any notice given in relation to the Contract shall be in writing and delivered by hand, sent by pre-paid first class post or sent by fax:
20.1.1 (in the case of a notice given to the Seller) to: Nycomm Limited, Nycomm Agecroft Road, Pendlebury, Swinton, Manchester, M27 8SB marked for the attention of Company Secretary or such other address or person as shall be notified to the Buyer by the Seller; or
20.1.2 (in the case of a notice given to the Buyer) to the registered office of the addressee if it is a company or ,in any other case to the Buyer’s last known place of business, or such other address as shall be notified to the Seller by the Buyer.
20.2 A notice shall be deemed to have been received:
20.2.1 if sent by pre-paid first class post, 2 Business Days after posting (exclusive of the day of posting);
20.2.2 if delivered by hand, on the day of delivery; or
20.2.3 if sent by fax on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
21. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
22. Governing Law and Jurisdiction
The Contract (and any associated non-contractual claims or disputes) shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.