1. Incorporation of Conditions
1.1 The only terms of any Contract between the Company and the Customer shall be those contained expressly or by reference in the Company’s written acknowledgement of order and any representation or warranty written or oral made or given prior to the Agreement is expressly excluded.
1.2 Any Contract shall be deemed to incorporate and be subject to these Conditions and the Company shall not be bound by any variation or waiver of or addition to these Conditions which may be sought by the Customer except as accepted and agreed in writing by an authorised officer of the Company.
1.3 If the Customer submits an order containing terms inconsistent with or purporting to vary or override these Conditions then the Company’s acknowledgement or acceptance of the Order shall constitute a counter-offer by the Company to the Customer on these Conditions.
1.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without liability on the part of the Company.
2. Terms of Payment
a) The Company’s terms of payment are strictly cash or payment within 28 days of date of invoice unless otherwise stated.
b) Payment of all invoices in respect of any Maintenance, Support Contract and Managed Service shall be received by the Company in cleared funds before the commencement of the period to which such invoice relates.
c) Any claim or counterclaim or alleged claim or counterclaim shall not entitle the Customer to withhold payment.
d) The Company shall be entitled to charge interest on invoice sums outstanding for more than 30 days from the date of invoice at the rate of 2.5% or 1% above the Bank of England base rate per month or both before and after judgement from the date of invoice until payment in full has been received by the Company in cleared funds.
e) Unless otherwise specified, prices quoted are ex-works and are exclusive of VAT which shall be charged at the appropriate rate.
f) If payments received from the Customer are not stated to refer to a particular invoice the Company may appropriate such payments to any outstanding invoices.
g) All pricing and payment are to be in Pounds Sterling.
Where the cost to the Company of undertaking the supply has increased for whatever reason since the date of quotation for the supply (or in the absence of a quotation since the date when the price for the supply was agreed (the Company shall be entitled by notice in writing to the Customer to increase its price to cover such increase in cost. In addition (without limiting the foregoing):-
a) the cost to the Company of undertaking the supply shall be deemed expressly to include the cost of labour together with the cost of products;
b) in relation to the provision of services by the Company, the Company reserves the right to increase the cost of labour at any time after the expiry of 30 days calculated from either of the dates specified in clause 3 above;
c) if the Customer shall require special testing facilities in the presence of the Company or its representatives or on the Company’s premises any additional expense shall be borne by the Customer;
d) the Company’ s business includes the supply of goods and materials from outside the United Kingdom and any increase in cost due to devaluation of currencies or increase in any tax levy or import will be passed on to the Customer in writing.
4. Company’s Rights
The Company shall be entitled:
a) to refuse or delay the supply where the Customer’s credit or conduct of its account is unsatisfactory; or
b) to employ the services of any subcontractor for the purpose of undertaking the supply; or
c) to assign the benefit of any order with the Customer to any servant agent or sub-contractor; or
d) to withdraw or cancel any quotation at any time without penalty or liability before an order is placed with the Company.
5. Customer to observe legal
The Customer shall observe and perform all statutes Orders in Council regulations directions bye-laws and all other lawful requirements of government or any local or other authority imposed upon the Customer in relation to the supply.
6. Drawings and Literature
The property and copyright in all documents, drawings, plans, photographs, designs, specifications, illustrations and other printed matter prepared and submitted to the Customer will remain with the Company. The Customer will not communicate the whole or any part thereof to any third party without the Company’s prior written consent. The Company does not accept liability for any errors or omissions and reserves the right to change drawings and/or specifications without notice.
7. Where the supply includes the delivery of goods to the customer
a) Legal and beneficial ownership of the goods shall remain in the Company until payment has been made in full and in the meantime the Customer shall hold such goods in a fiduciary relationship as bailee of the Company.
b) Until ownership of the goods has passed to the Customer,
i) the goods shall be stored separately from any goods belonging to Customer or any third party, and shall be clearly marked and identifiable as being the Company’s property. The Company shall be entitled to enter the premises where the Customer has stored or installed the Goods upon reasonable notice to verify the Customer’s compliance with this clause;
ii) the Company may at any time require the Customer to return the goods to the Company in default whereof the Company shall have an irrevocable licence to enter the premises where the Goods are located to recover the goods and sever the goods from anything to which they are attached without being responsible for any damage caused. Such return or recovery shall be without prejudice to the obligation of the Customer to purchase the goods and to make payment therefor;
iii) the Customer shall keep the goods safe and insured against usual commercial risks and free from any charge lien or other encumbrance.
c) If the Customer shall fail to take delivery of the goods within 28 days of notification that the goods are ready for despatch then the Company shall have the right to payment thereon notwithstanding the other rights herein conferred upon the Company.
d) If the Customer shall fail to give the Company instructions for delivery within 21 days of notification that the goods are ready for delivery, the Company shall be entitled to arrange to store the goods at the Customer’ s expense.
e) The risk in the goods shall pass to the Customer upon the goods leaving the Company’ s premises.
f) Any recommendations and advice given by the Company or the manufacturer to the Customer with regard to the goods supplied shall be strictly followed.
g) The Company shall have the right to inspect the books of record or account of the Customer in relation to the goods and shall have the right to enter upon the premises of the Customer so to do and shall be entitled to take and to remove copies of such books.
8. Company’s Lien
a) The Company shall have a general as well as a particular lien on all goods materials or any other property of the Customer which shall be in the possession of the Company in respect of any unpaid account of the Customer (whether or not in relation to the goods materials or other property of the Customer) and such lien shall extend to such goods materials or property in the possession of any agent or sub-contractor of the Company or directly or indirectly under the control or disposition of the Company its agents or subcontractors.
b) The Company shall have the right to sell in the United Kingdom or abroad any of such goods materials or property by public auction or otherwise to pay or retain the costs and expenses of maintaining and exercising such lien given to the Company hereunder. The Company shall not owe a duty of care to the Customer in respect of such sale.
9. Limitations of Liability
9.1 While the Company makes reasonable endeavours to perform its obligations, the Company shall not be liable in contract tort or under any head of legal liability for any damages costs claims expenses or interest arising out of the performance or alleged non-performance of any contract entered into by the Company and in particular (without limiting the foregoing) shall not save where otherwise required by law or ordered by the court accept any liability for;
a) consequential loss or damage of any kind even if the type of possible loss or damage was specifically drawn to the attention of the Company at the date of contract.
b) any loss or damage caused by the conduct or neglect of the Customer.
c) any act neglect or default due directly or indirectly wholly or partially to any act or thing outside the control of the Company.
d) any inherent or latent defect in any goods or materials which the Company could not readily have discovered or rectified.
e) loss or damage due to delay on the part of the Company its servants or agents.
f) statements or information supplied in specifications and drawings referred to in the quotation which shall be for guidance only.
g) any claim for an amount in excess of £1,000.
9.2 Save as afore said and save as required by law all conditions warranties or other terms whether express or implied statutory or otherwise are hereby expressly excluded. Notwithstanding the foregoing in the Company accepts liability in the following but in no other circumstances;
a) where the goods supplied are proved to the Company’s satisfaction to be defective, solely due to faulty design workmanship or materials of the Company provided that such defects arise within a period of three months from the date of supply or within such period during which the goods shall remain the property of the Customer (whichever shall be the shorter) and provided there is no neglect or fault on the part of the Customer and that Condition 11 hereof is complied with. The Company will replace or repair at its discretion any of the goods proved to be defective as aforesaid and such liability for repair or replacement shall be the sole liability of the Company in connection therewith.
b) in the case of goods parts or materials not manufactured by the Company the Company will replace or repair at its discretion any of the goods or parts of the goods proved to be defective after fair and proper use provided that the goods shall at the expense of the Customer be returned to the Company within three months of the date of supply but always provided that any on site maintenance or repair replacement or maintenance after the three month period shall be chargeable by the Company and may be covered by a separate agreement.
10. Buyers & Employees
10.1 For the purposes of this clause only the following words and expressions shall have the following meanings:
“Buyer” means any person, firm, company or other organisation whatsoever to whom the Company or any associate company has supplied goods or services.
“Prospective Buyer” means any person, firm, company or other organisation whatsoever to whom the Company or any associate company has offered to supply goods or services or to whom the Company has provided details of the terms on which it would or might be willing to provide goods or services or with whom the Company has had negotiations or discussions regarding the possible supply of goods or services.
10.2 The Customer shall not at any time during the Term or for a period of 6 months thereafter alone or jointly, directly or indirectly approach or solicit any person whom to the knowledge of the Customer was a Buyer or a Prospective Buyer of the Company during the 12 months prior to such approach or solicitation.
10.3 The Customer shall not at any time during the Term or for a period of 6 months thereafter alone or jointly, directly or indirectly induce or seek to induce any employee of the Company to leave the employment of the Company. If the Customer is in breach of this clause it shall pay to the Company compensation in a sum equal to all the costs associated with the replacement of such employee, which costs shall include but shall not be limited to the direct costs involved in recruiting a replacement employee together with the loss of profit caused to the Company and directly attributable to the loss of such employee.
11. Notification of Claims
The Company shall not accept any liability for any claim whatsoever unless within 7 days of the supply or in the case of any defect not reasonably discoverable at the date of the supply within 7 days after the date of discovery of the defect by the Customer the Customer gives the Company notice in writing of the matter or thing in respect of which the claim is made. If notice is not given as aforesaid the Customer shall be deemed to have accepted the supply and shall pay for the same accordingly.
12. Time of Supply
The time for delivery or the performance of the supply by the Company shall not be of the essence.
13. Patents and Designs
Unless otherwise specified in writing the Company reserves full ownership of and copyright in all inventions designs drawings specifications plans or processes evolved during or as a result of work carried out during the supply.
14. Indemnity by Customer
The Customer shall be responsible for and shall indemnify the Company against all damages (including undue wear and tear to any goods materials or equipment of the Company and including any claim for breach of trade mark patent or registered design) costs claims demands and expenses of whatever kind and under any and every head of legal liability whether for personal injuries damage to property or otherwise suffered by or made upon the Company by reason of any breach by the Customer of the Conditions hereof or any act default or omission arising out of the performance of any contract with the Customer by the Company (other than the negligent act or default of the Company).
15. Law of Contract
The Law of England shall govern all contracts between the Company and the Customer and the courts of England shall be the courts of jurisdiction.
16. Effect of Headings
The headings to these conditions are for guidance purposes only and shall not to be construed as in any provisions of these Conditions.
Vissensa Limited. Company Registration No. 06562743