Updated June 2015
1.DEFINITIONS & INTERPRETATION
2.BASIS OF SALE
5.TERMS OF PAYMENT
6.INSOLVENCY OF THE BUYER
10.RISK & DELIVERY
11.TRANSIT LOSS & DAMAGE
14.SPECIFICATION OF GOODS
16.INSOLVENCY OF A THIRD PARTY PROVIDER
17.HEALTH & SAFETY
19.PROTECTION OF THE SELLER’S “KNOW HOW”
24.BRIBERY ACT 2010
TERMS AND CONDITIONS FOR SALES
MIDWICH LIMITED IS A TRADE-ONLY SPECIALIST,
TECHNOLOGY SOLUTIONS DISTRIBUTOR. THESE TERMS AND CONDITIONS (THE “CONDITIONS”)
GOVERN THE SALE OF MIDWICH PRODUCTS TO COMMERCIAL RESELLERS, RETAILERS, SERVICE
PROVIDERS AND SIMILAR COMMERCIAL ENTITIES.
1. DEFINITIONS &
any subsidiary or holding company of the Seller and each and any subsidiary of
a holding company of the Seller, any business entity from time to time controlling,
controlled by, or under common control with the Seller;
"Buyer" means the person whose
order for the Goods is accepted by the Seller;
"Conditions" means the standard terms
and conditions of sale set out in this document and (unless the context
otherwise requires) includes any special terms and conditions agreed in writing
between the Buyer and the Seller;
"Contract" means these Standard Terms and Conditions of Supply for the purchase and sale of the
Goods which is governed by these Conditions and, if applicable, any further
supplemental terms (as advised by the company from time to time) and which may
be varied only by a writing signed by the duly authorised representatives of the
Buyer and Seller respectively;
“Custom Build Products” means non-cancellable non-refundable bespoke products which the
Buyer has ordered through the Seller;
“CWO” means Cash With Order;
“DOA” means Dead or Defective on
“End User” means the Buyer’s end
“End User Delivery” means deliveries made by
the Seller directly to the Buyer’s customer as requested by the Buyer;
"Goods" means the Goods (including any instalment of the Goods or any parts for them and which,
for the avoidance of doubt, may include any services offered and supplied by
the Seller) which the Seller is to supply in accordance with these Conditions;
“Incoterms” means the international rules for the interpretation of trade terms of the
International Chamber of Commerce 2010 as in force when the contract is made;
“Items" means a unit of carriage;
“MOV” means Minimum Order Value;
“NFF” means No Fault Found;
“RAN” means Returns Authorisation Number;
"Seller" means Midwich Limited (registered company number 01436289) with registered offices at Vinces Road,
Diss, Norfolk IP22 4YT. The Seller’s VAT number is GB 765 3317 22;
“Special Bids” means special pricing which may be granted to the Buyer;
“Special Bid Terms” means the Terms & Conditions governing Special Bids which the Buyer must adhere to;
“Special Order Products” shall mean non-cancellable non-refundable Products
which are not part of the Seller’s normal inventory and which have been ordered
specifically by the Buyer or products which have been configured to the Buyer’s
“Third Party” means a third party who provides Services on the Seller’s behalf but is not controlled by the
“Website” means the Seller’s internet website, accessed through the addresses of
"Writing" means email, telex, cable, facsimile transmission and any other
comparable means of communication, and "written" shall be construed
1.2 Words importing the singular shall include the plural and vice versa, words importing
a gender shall include all genders and words importing persons shall include
bodies’ corporate, unincorporated associations and partnerships.
1.3 Any reference in these Conditions to any provision of
a statute shall be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time.
1.4 The headings in these Conditions are for convenience only and shall not affect
2. BASIS OF SALE
It is a condition precedent of
the Contract that the Buyer is or is acting solely on behalf of a commercial
entity (which may include sole traders and partnerships but in no event
consumers or private individuals who intend to purchase Goods for personal
use), and the Buyer represents and warrants that he is or is acting solely on
behalf of a such a commercial entity.
To order Goods you must be
at least 18 years of age.
Goods are presented as an
invitation to treat only with businesses based in the UK. Goods are ordinarily
delivered in the UK only.
English is the only
language offered for the conclusion of this contract with a Buyer.
The Seller will treat each
order for Goods as an offer by the Buyer to purchase the Goods on the terms set
forth in these Conditions subject to the Seller’s acceptance or rejection of
The Buyer is advised to
read these Conditions carefully and retain a copy for future reference. The
Buyer’s submission of an order indicates the Buyer’s acceptance of these
Conditions as the exclusive terms of the Contract. No variation to these
Conditions can be made unless agreed in a writing signed by the duly authorised
representatives of the Buyer and Seller respectively.
The Buyer is advised to
review the Conditions prior to placing each order as the Seller may modify the
Conditions from time to time. The version of the Conditions posted on the
Seller’s website at the time that the Buyer places an order will apply to that
order unless otherwise agreed in a writing signed by duly authorised representatives
of the Buyer and Seller respectively.
The Seller’s employees or
agents are not authorised to make any representations concerning the Goods
unless confirmed by the Seller. In entering into the Contract the Buyer
acknowledges that it does not rely on, and waives any claim for breach of, any
such representations which are not so confirmed.
Any advice or recommendation
given by the Seller or its employees or agents to the Buyer or its employees or
agents as to the storage, application or use of the Goods which is not
confirmed in writing by the Seller is followed or acted upon entirely at the
Buyer’s own risk, and accordingly the Seller shall not be liable for any such
advice or recommendation which is not so confirmed.
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 Seller either in hard copy or any electronic medium shall be subject to
correction without any liability on the part of the Seller. The Seller shall
take all reasonable steps to bring any such correction to the Buyer’s attention.
2.11 The Seller will retain an
electronic and paper copy of these Conditions and of each order accepted by the
Seller in either electronic or paper form for one (1) year after receipt of
3.1 All orders submitted to the Seller by the Buyer
for Goods shall constitute an offer to the Seller, under the terms and
conditions of this Contract, subject to availability of the Goods and
acceptance of the order by the Seller’s authorised representatives.
3.2 All orders are accepted and the Goods supplied
subject to the express terms and conditions of this Contract only. The Seller
may at any time amend this Contract by posting the amended Contract on the
Website. The amended Contract shall apply to any orders placed on the Seller
and acceptance of an order shall be deemed to incorporate these Terms and
3.3 The Buyer shall be responsible to the Seller for
ensuring the accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer, and for giving the Seller any and all necessary
information relating to the Goods within a sufficient time to enable the Seller
to perform the Contract in accordance with its terms. The Seller is advised to
review in advance the instructions on the website concerning how to place an
3.4 If the Goods are to be manufactured or any process is
to be applied to the Goods by the Seller in accordance with a specification
submitted by the Buyer, the Buyer shall indemnify the Seller against all loss,
damages, costs and expenses awarded against or incurred by the Seller in
connection with or paid or agreed to be paid by the Seller in settlement of any
claim for infringement of any patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person which results
from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in
the specification of the Goods which are required to conform with any
applicable safety or other statutory requirements or, where the Goods are to be
supplied to the Seller’s specification, which do not materially affect their
quality or performance.
3.6 No order which has been accepted by the Seller may be
cancelled by the Buyer except with the agreement in writing of the Seller and
on terms that the Buyer shall indemnify the Seller in full against all loss
(including loss of profit), costs (including the cost of all labour and
material used), damages, charges and expenses incurred by the Seller as a
result of cancellation.
3.7 Under no circumstances may the Buyer cancel any orders
accepted by the Seller, or return any Goods (except for the reasons set out in
clause 9.2, 9.3 and 11.2) relating to:
3.7.1 SPECIAL ORDER PRODUCTS; or
3.7.2 CUSTOM BUILD PRODUCTS
3.8 Where Goods other than the Seller’s standard Goods are
made by the Seller to the Buyer’s order, the Goods may vary in accordance with
normal trade tolerances from dimensions specified by the Buyer in the order and
the Buyer shall not be entitled to make any claim against the Seller in respect
of any such variations.
3.9 No binding Contract shall be created until the Seller
has expressly accepted the order submitted by the Buyer in writing or made
delivery or part delivery of the Goods (whichever occurs earlier).
3.10 The Seller reserves the right to introduce a Minimum
Order Value (“MOV”) by giving the Buyer thirty (30) days’ notice
of any such planned implementation.
3.11 IT IS AGREED THAT THE TERMS AND CONDITIONS OF THIS
CONTRACT (OR ANY AUTHORISED AMENDMENTS TO THEM) SHALL ALWAYS PREVAIL OVER THE
BUYER’S TERMS AND CONDITIONS OF PURCHASE. ACCEPTANCE OF THE BUYER’S ORDER IS
NOT ACCEPTANCE OF THE BUYER’S TERMS AND CONDITIONS.
3.12 Without prejudice to
the generality of the foregoing any particular purpose for which the Buyer
proposes to use the Goods shall be deemed not to be known by or have been made
known to the Seller unless specifically recorded in a schedule signed by one of
the Seller’s directors. The Buyer hereby acknowledges that any purpose stated
in such schedule shall be deemed to have been specified by the Buyer.
4.1 The price of the Goods shall be the Seller’s price as quoted to the
Buyer by means of:
4.1.1 written communication either in paper or electronic mediums; or
4.1.2 through the Buyer’s account via the Seller’s website.
4.2 Quotes are valid for seven (7) days unless otherwise agreed in writing
between both parties.
The Seller reserves the right, by giving notice to the Buyer at any
time before despatch, to increase the price of the Goods to reflect any
increase in the cost to the Seller which is due to any factor beyond the
control of the Seller (such as, without limitation, any foreign exchange
fluctuation, currency regulation, alteration of duties, significant increase in
the costs of labour, material or other costs of manufacture), any change in
delivery dates, quantities or specifications for the Goods which is requested
by the Buyer, or any delay caused by any instructions of the Buyer or failure
of the Buyer to give the Seller adequate information or instructions.
Quoted prices are exclusive of any applicable Value Added Tax (VAT), transport
costs (including but not limited to export or import costs as may be
applicable), packaging and insurance costs which the Buyer shall be liable to
4.5 Where special pricing
("SPECIAL BIDS") is offered for certain orders and such pricing is
made available to the Seller from its Vendors or Suppliers, the Buyer shall:
4.5.1 comply in full with any terms advised to it by the
4.5.2 comply in full with the respective Vendors or Suppliers
4.5.3 indemnify the Seller for any
claims made against the Seller by the Vendors or Suppliers for the Buyers
non-compliance with the terms and conditions; and
4.5.4 pay any service fees charged for the Sellers
pass-through of Special Bids and other supplier driven benefits the Buyer may
receive, including any marketing funding, price protection and individual
rebates, and further agrees that pass-through and payment of such benefits will
be subject to the Seller having received the benefits from its Vendors or Suppliers.
4.6 The Special Bid Terms may oblige the Buyer to
comply with certain requirements including but not limited to:
4.6.1 the sale of the Goods only to specifically named
4.6.2 the disclosure of end-user information to the Seller
and its Vendor or Suppliers for the purpose of end-user verification; and
4.6.3 the submission of copies of end-user invoices,
end-user purchase orders or end-user shipping documents to the Seller and its Vendors
or Suppliers (blackening of irrelevant data is permitted for data protection
4.7 FAILURE TO COMPLY WITH THE SPECIAL BID TERMS MAY ENTITLE THE SELLER AND / OR ITS
SUPPLIERS TO RECLAIM AND INVOICE THE BUYER IN FULL FOR ALL DISCOUNTS REBATES
AND ANY OTHER SPECIAL PRICE CONDITIONS GRANTED TO THE BUYER AND ANY SUCH
INVOICES SHALL BECOME PAYABLE IMMEDIATELY.
5. TERMS OF PAYMENT
Subject to any special terms agreed in writing between the Buyer and
the Seller, the Seller shall be entitled to invoice the Buyer for the price of
the Goods on or at any time after accepted orders are ready for despatch or, if
the Goods are to be collected by the Buyer from the Sellers premises, at the time
when the Seller has notified the Buyer that the Goods are ready for collection
or (as the case may be) the Seller has tendered delivery of the Goods.
Unless credit facilities have been provided all orders are on a “Cash
with Order” (CWO) basis. Full payment is required prior to order despatch and subject
to confirmation of clearance of funds by the Buyer’s Bank or Credit Card Provider.
5.3 Should credit facilities be provided, the Buyer
undertakes to notify the Seller without delay of any material change in its
finances, structure, share ownership and/or value of assets which may affect
the Buyer’s credit status. In addition to any remedy available at law, failure
to report any such changes may result in credit being withdrawn as set-out in
5.4 In the case of Special Order Products and Custom
Build Products as set out in clause 3.7, 3.7.1 and 3.7.2, the Buyer will be
required to pay (at the Seller’s sole discretion) either the full price of the
goods or a deposit of not less than twenty-five percent (25%) when the order
has been accepted by the Seller.
The Buyer (where credit facilities have been provided by the Seller) shall
pay the price of the Goods within 30 days of the date of the Seller’s invoice,
notwithstanding that delivery may not have taken place and the property in the
Goods has not passed to the Buyer. The time
of payment of the price shall be of the essence of the Contract.
If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller
shall be entitled to:
cancel the Contract or suspend any further deliveries to the Buyer;
demand payment of all outstanding balances whether or not due and/or
cancel any outstanding orders from the Buyer;
appropriate any payment made by the Buyer to such of the Goods (or the
goods supplied under any other contract between the Buyer and the Seller) as
the Seller may think fit (notwithstanding any purported appropriation by the
charge the Buyer interest (both before and after any judgment) on the amount
unpaid, at the rate of four percent (4%) per annum above HSBC base rate from
time to time, until payment in full is made.
The Seller reserves the right to charge an administration fee on credit
card transactions. The Buyer shall be informed of this charge at point of
5.8 The Buyer must notify the Seller in writing within
fourteen (14) days of the date of invoice of any errors within the invoice.
Failure will result in the Seller assuming the Buyer’s acceptance of the
invoice in full.
5.9 The Buyer’s credit-limit may be amended or
withdrawn at any time without the Seller giving notice to the Buyer. If credit
facilities are withdrawn all invoices shall become immediately payable by the Buyer.
5.10 The Buyer shall pay all amounts due under the
contract in full without any set-off, counterclaim, deduction or withholding
(except for any deduction or withholding required by law).
5.11 The Seller may at any time, without notice
to the Buyer, set-off any liability of the Buyer to the Seller against any
Liability of the Seller to the Buyer, whether either liability is present or
future, liquidated or unliquidated, and whether or not either liability arises
under this agreement. If the liabilities to be set off are expressed in
different currencies, the Seller may convert either liability at a market rate
of exchange for the purpose of set-off. Any exercise by the Seller of its
rights under this clause shall not limit or affect any other rights or remedies
available to it under this agreement or otherwise. If Goods
are delivered in instalments the Seller shall be entitled to invoice each
instalment upon despatch thereof.
5.12 If Goods
are delivered in instalments the Seller shall be entitled to invoice each
instalment upon despatch thereof.
Payment shall be in pounds sterling unless otherwise agreed in writing
signed by the Seller’s authorised representative.
5.14 The Buyer warrants that it will notify the Seller
if its VAT registration is amended in any way.
The Seller reserves the right to issue and send to the Buyer all
invoices, credit notes or any other company documentation in electronic format
and the Buyer accepts to receive such documentation electronically.
6. INSOLVENCY OF THE BUYER
6.1 This clause applies if:
the Buyer makes any voluntary arrangement with its creditors or becomes
subject to an administration order or (being an individual or firm) becomes
bankrupt or (being a company) goes into liquidation (otherwise than for the
purpose of amalgamation or reconstruction); or
an encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the Buyer; or
the Buyer ceases, or threatens to cease, to carry on business; or
the Seller reasonably apprehends that any of the events mentioned above is
about to occur in relation to the Buyer and notifies the Buyer accordingly.
6.2 If this clause applies then, without prejudice to any
other right or remedy available to the Seller, the Seller shall be entitled to
cancel the Contract or suspend any further deliveries under the Contract
without any liability to the Buyer, and if the Goods have been delivered but
not paid for the price shall become immediately due and payable notwithstanding
any previous agreement or arrangement to the contrary and if any of the Goods
have not been delivered the Seller may sell the Goods at the best price readily
obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under
the Contract or charge the Buyer for any shortfall below the price under the
7. TITLE RETENTION
Title of the Goods shall not pass to the buyer until the buyer has discharged all outstanding
indebtedness to the Seller whatsoever.
The Buyer shall store the Goods in such a way that they can be readily
identified as being the Seller’s property.
The Buyer may sell the Goods in the normal course of its business and may
pass good title to its End Users, being a bona fide purchase without notice of
the Seller’s rights on the following conditions:
The Seller shall be entitled, immediately as a result of its ownership of the
Goods, to the beneficial ownership of the proceeds of such sale which the Buyer
shall accordingly hold as fiduciary for the Seller;
At any time the Seller may revoke the Buyer's said power of sale in the circumstances
set out in Clause 7.1 of these Conditions;
The Buyer shall notify the Seller without delay of any attachment of the
Goods or actions by third parties which might infringe our title to the Goods.
Upon determination of the Buyer's power of sale, the Seller shall be
entitled by itself, its servants or agents to enter upon any of the Buyer's
premises for the purpose of removing and repossessing such Goods or their
proceeds of sale in the event of the Buyer’s insolvency.
Nothing in these Conditions shall:
entitle the Buyer to return the Goods or to delay payment thereof; or
constitute or be deemed to have constituted the Buyer as the seller’s agent; or
render the Seller liable to any third party for any unauthorised representation
or warranty made or given by the Buyer to such third party in relation to the
8.1 The Seller retains a general lien on any of the Goods in the Buyer’s
possession for any unpaid balance the Buyer may owe to the Seller. The Seller
shall be entitled to sell such goods in the event that payment is not made in
full within 28 days of notice given to the Buyer by the Seller of its exercise
of the lien. The proceeds of sale may be taken by the Seller and used to
off-set monies owed to it by the Buyer.
9.1 The Seller warrants that it has good title to or
licence to supply all Goods to the Buyer.
9.2 If any Goods should prove defective in materials
or workmanship under normal operation or service, such Goods will be repaired
or replaced only in accordance with the warranty cover or terms stipulated by
the manufacturer of the Goods PROVIDED THAT no unauthorised modifications to
the Product or to the system of which the Goods forms part have taken place.
The Seller is not responsible for the cost of labour or other expenses incurred
in the repairing or replacing of defective or non-conforming parts andin no circumstances shall the Seller be liable,
in contract, tort (including negligence or breach of statutory duty) or
otherwise howsoever, and whatever the cause thereof, (i) for any loss of
profit, business, contracts, revenue, or anticipated savings, or (ii) for any
special indirect or consequential damage of any nature whatsoever.
9.3 The Seller’s sole obligation in the event of “Dead
on Arrival” or “Defective on Arrival” (“DOA”) Goods (which for the
avoidance of doubt shall not include DAMAGED IN TRANSIT Goods as set out in
clause 11.2) and which can be attributed to the original manufacturers of the Goods and which have been purchased from the Seller shall
be to pass on to the Buyer (in so far as possible) the benefit of any
rights or remedies afforded it by the Manufacturer (or those of their Third
Party Representatives or Service Agents) to exchange the faulty Goods for new
within the DOA periods (if any) by the relevant manufacturers.
9.3.1 Where the Seller has been authorised by the manufacturer to replace faulty
Goods within the DOA period the Buyer must obtain a Returns Authorisation
Number (RAN) from the Seller.
9.3.2 Where the Buyer or End User is required to contact the manufacturer (or their Third Party
Representatives or Service Agents) directly, the Buyer agrees to follow such
instructions in order to progress or resolve the issue. Where the Buyer or End
User is issued an authorisation or reference number for the purposes of passing
such onto the Seller in order to progress the return, the Buyer understands and
agrees that this is no guarantee to a credit note as set out clause 9.6, 9.6.1
9.3.3 Where necessary, the Buyer or End User agree to deal directly with the
Manufacturer (or their Third Party Representatives or Service Agents), to
conclude the matter as stipulated in the manufacturers terms and conditions.
9.4 Prior authorisation having been obtained as set
out in clause 9.3, 9.3.1 and 9.3.2 the Seller shall:
9.4.1 raise an invoice on the Buyer’s account for the same
Goods (if requested by the Buyer to do so) at the same price the Buyer was
originally invoiced at; and
9.4.2 despatch the replacement Goods at the Seller’s
expense to the original delivery address; and
9.4.3 collect the faulty Goods at the Seller’s expense
from the original delivery address.
9.5 It is the responsibility of the Buyer or End User
to ensure that the Goods are:
9.5.1 properly packed in the original, undefaced
manufacturers packaging, protected and suitable for transportation;and
9.5.2 returned with all standard manufacturer
accessories (including literature, whether paper or electronic.)
9.5.3 The Seller accepts no liability whatsoever for any
goods not authorised for return and which may be returned in error by the Buyer
or End User.
9.6 The Seller reserves the right to test all Goods
returned to it under warranty as set out in clause 9.3, 9.3.1 and 9.3.2 and it
is agreed between both parties that:
9.6.1 On receipt of the expected Goods and where a
genuine fault exists, the Seller shall, in the event that such price shall already have
been paid by the Buyer to the Seller, or, if such price has not been paid,
relieve the Buyer of all obligation to pay the sum by issuance of a credit note
in favour of the Buyer in the amount of such price within twenty-eight (28) days of receipt of the expected Goods, or
earlier at its absolute discretion. The Buyer shall not offset or withhold
payment (full or in part) of any monies owed to the Seller as set out in clause
9.6.2 Goods tested and deemed to be “No Fault Found”
(NFF) will be rejected. No credit note shall be issued and the Buyer shall (at
their sole expense and risk) have fourteen (14) days to arrange collection from
the Seller’s premises.
9.6.3 Goods not collected after fourteen days shall be
disposed of in accordance with the Waste Electrical and Electronic Equipment
(WEEE) Regulations 2006 and any costs involved in doing so shall be passed to
9.7 Where available, the details of the Manufacturers DOA & Warranty
guidelines shall be made available to the Buyer (on request) along with copies
of any relevant product information sheets, technical data sheets or product
leaflets issued by the Manufacturer, which may be in paper or electronic mediums.
9.8 All software Goods are supplied “AS IS”. The
Sellers sole obligation in connection with the supply of software Goods is to
use all reasonable endeavours to obtain and supply a corrected version from the
manufacturer concerned in the event that such original software should fail to
conform to product description PROVIDED ALWAYS THAT the Buyer notifies the
Seller of any such non-conformity within 30 days of the date of delivery of the
applicable software Product.
9.9 The Seller’s liability under this entire clause 9 shall be to the
exclusion of all other liability to the Buyer whether contractual, tortious or
otherwise for defects in the Goods or for any loss or damage to or caused by
the Goods, and subject to Conditions 9.2, 9.3, 9.4, 11.2 and 11.3 all other
conditions, warranties, stipulations or other statements whatsoever concerning
the Goods, whether express or implied, by statute, at common law or otherwise
howsoever, are hereby excluded; in particular (but without limitation of the
foregoing) the Seller grants no warranties regarding the fitness for purpose,
performance, use, nature or merchantable quality of the Goods, whether express
or implied, by statute, at common law or otherwise howsoever.
9.10 Except as specifically set out in this clause 9,
the Seller disclaims and excludes all other warranties, whether express or
implied, by statute or otherwise, including but not limited to the warranties
of description, design, satisfactory quality and fitness for a particular
purpose, or arising from any previous course of dealing, usage or trade
9.12 If and to the extent that sections 6 and/or 7(3A) of the Unfair Contract Terms
Act 1977 apply to the Contract, no provision of the Conditions shall operate or
be construed to operate so as to exclude or restrict the liability of the
Seller for breach of the applicable warranties as to title and quiet possession
implied into the terms and conditions of the Contract by section 13(3) of the
Sale of Goods Act 1979, or section 2(3) of the Supply of Goods and Services Act
1982, whichever Act applies to the Contract.
9.13 If and to the extent that section 2(1) of the Unfair Contract Terms Act
1977 applies to the Contract nothing in the Conditions shall operate or be
construed to operate so as to exclude or restrict the liability of the Seller
for death or personal injury caused by reason of the negligence of the Seller
or of its servants, employees or agents.
9.14 The Goods are not intended for sale by the Seller direct to any consumer.
Notwithstanding the foregoing, if any sale by the Seller is deemed to fall
under the Sale of Goods Act (1979) the statutory rights of the Buyer are not
affected by these Conditions.
10. RISK & DELIVERY
10.1 Risk in the Goods shall pass to the Buyer at the time the Goods are available
for collection by the Buyer at the Sellers premises or when the Goods are delivered
to the agreed address according to the terms of this Contract.
10.2 Any dates and times quoted for delivery of the Goods are expected dates
and times only and the Seller shall not be liable for any delay in delivery of
the Goods howsoever caused. It is agreed that time for delivery shall not be of
the essence unless previously agreed by the Seller in writing. The Goods may be
delivered by the Seller in advance of the quoted delivery date upon giving
reasonable notice to the Buyer.
10.3 Deliveries are normally made between 08:00 – 18:00 hours
Monday-Friday (excluding bank holidays) to the DOORSTEP of the delivery address
unless alternative arrangements have been agreed and accepted in advance
between both parties. Any departure from this condition may lead to additional
charges which the Buyer agrees to pay in full.
10.3.1 The Buyer must make all arrangements necessary for the Buyer or the
End User to take delivery of the Goods when the Seller delivers them, including
providing labour and suitable unloading equipment for the
unloading of delivered Goods. In the event that the Buyer or the End User asks
for, and the delivery driver(s) agree to assist in offloading or to provide any
other assistance not previously agreed between the Seller and the Buyer, the
Buyer or the End User accept that any subsequent claims for (but not limited
to) damages, loss (including loss of profit) or
injury shall not involve the Seller.
10.3.2 The Seller shall be entitled
to assume that any person who both reasonably appears and claims to have
authority to accept delivery and who signs a note in respect of the Goods on
behalf of the Buyer or End User (if Seller has agreed to deliver direct) does
in fact have the authority to do so.
10.4 If the Buyer or End User does not accept delivery of Goods, or the Seller is
unable to deliver, or is delayed in delivering Goods because of the Buyer or End
Users actions or omissions, then the Seller may charge the Buyer who will be liable to pay the Seller
for all costs incurred as a result.
10.5 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 brought
by the Buyer in respect of any one or more instalments shall not entitle the
Buyer to treat the Contract as a whole as repudiated.
10.6 If the Seller fails to deliver the Goods for any reason other than any cause
beyond the Seller’s reasonable control or the Buyer's fault, and the Seller is
accordingly liable to the Buyer, the Seller’s liability shall be limited to;
10.6.1 replacing those Goods not delivered; or
10.6.2 issuing a credit note equal to the value (net of VAT) over the price of the
Goods not delivered.
10.6.3 The Seller shall not be liable for any consequential loss including (but not
limited to) loss of profit.
10.7 If the Buyer or End User fails to take delivery of the Goods, or fails to give
the Seller adequate delivery instructions at the time stated for delivery
(otherwise than by reason of any cause beyond the Buyer's reasonable control or
by reason of the Seller’s fault) then, without prejudice to any other right or
remedy available to the Seller, the Seller may:
10.7.1 Store the Goods until actual delivery and charge the Buyer for the
reasonable costs (including but not limited to storage, re-delivery and Insurance
of the Goods); or
10.7.2 Sell the Goods at the best price readily obtainable and (after deducting all
reasonable costs including the aforementioned storage, re-delivery and insurance
costs and selling expenses) account to the Buyer for the excess over the price
under the Contract or charge the Buyer for any shortfall below the price under
10.8 At the time of delivery the Buyer or End User must check that the
quantity of Goods matches the quantity detailed on the Proof of Delivery
(“POD”) and that the external packaging of the Goods is in good condition and
has not been tampered with or damaged (this applies to any palletised or larger
deliveries which may have been shrink or black wrapped.)
10.9 Where visible external damage is apparent at the time of delivery the
Buyer must either refuse the Goods or annotate the POD clearly with the word
“DAMAGED”. The Buyer or End User must not sign the POD “unchecked”,
“unexamined” or any such similar wording. The Buyer acknowledges that failure
to comply with this clause shall void the Seller’s liability to either replace
or issue a credit note at the price paid by the Buyer for any such damaged
10.10 The Buyer must notify the Seller of any overshipments no later than five (5)
days from the date of delivery and agrees that failure to do so shall be deemed
to be acceptance of the Goods and an invoice shall be raised accordingly by the
Seller to the Buyer for the overshipped Goods subject to the condition of
Section 30 (3) of the Sales of Goods Act 1979.
10.11 The Buyer must notify the Seller of undershipments or missing Goods no
later than two (2) working days from the date of delivery and agrees that
failure to do so shall be deemed to be receipt of all Goods as indicated on the
10.12 It is the Buyer’s responsibility to notify the Seller of any incorrect
Goods supplied within two (2) working days of delivery. If the Goods are not
what the Buyer has ordered, the Buyer must not deface or open the
manufacturer’s packaging or use the Goods. The Buyer agrees that failure to
adhere to the conditions shall be deemed to be acceptance of the Goods and any
and all monies owed relating to the Goods shall be due from the Buyer to the
10.13 In the event of any End User delivery, the Buyer shall ensure that the End
User complies with the Buyer’s obligations set out in this clause 10.
10.14 A signed POD by or on behalf of the Buyer shall be conclusive evidence of
delivery and (except where any damage or discrepancy is noted on the POD) that
it was received in good order and condition and accordingly no claims shall be
brought to the Seller in respect of the delivery claiming the contrary.
11. TRANSIT LOSS & DAMAGE
11.1 No Goods shall be deemed to be ‘Lost in Transit’
until seven (7) days from despatch have elapsed, and the Seller’s subsequent investigations
of such claims have concluded that the Goods are (or are deemed to be) lost irrevocably.
For the avoidance of doubt, where delivery has been made, and where the Buyer
or End User have signed the POD as receiving all Goods, the Buyer must notify
the Seller of any shortage no later than two (2) days after delivery in accordance
with clause 10.11.
11.2 Any claims brought against the Seller by the Buyer
relating to “Damages in Transit” shall only be accepted where the Buyer or End
User has annotated the POD with the word “DAMAGED” in accordance with clause
10.8 and having done so, has subsequently refused acceptance of the damaged Goods
or, having accepted them, is storing the Goods safely at the delivery address as
detailed on the invoice to avoid further damage arising.
11.3 The Seller’s sole liability in the event of proven
loss or damage will be limited to either;
11.3.1 replacing the Goods with Goods of the same or
similar specification and at the value equal to the invoice price paid by the Buyer
(if requested by the Buyer to do so); or
11.3.2 Issuance of a credit note to the Buyer at the
invoice price paid for the lost or damaged Goods including any applicable
carriage charges which the Buyer may have paid.
11.4 Credit notes issued by the Seller to the Buyer for
Lost in Transit Goods may be reversed if after fourteen (14) days from issuance
it is established that the Goods have been delivered. The Seller will notify
the Buyer in this event, and the Buyer or their End User shall either:
11.4.1 make the Goods available for collection by the
Seller who will collect and return the Goods to their inventory so long as the
goods are in the condition as set out in clause 12.2.2 ; or
11.4.2 keep the Goods in which case clause 11.4 shall
12.1 With the exception of Faulty or Damaged in Transit
Goods as specified in clauses 9.3 & 10.9, the Seller will not accept any
returns requests where the value of the Goods is seventy-five pounds (£75) or
less, net of any applicable VAT. This applies to single and multi-Goods. The
only exception shall be in the event of a proven error by the Seller, in which
event the Seller’s sole liability shall be to issue a credit note to the Buyer for
the price paid for the Goods in question. The Seller may (at their sole
discretion) allow the Buyer to keep the Goods and issue the credit note without
the need for the return of such Goods. Goods must be in the condition as set
out in clause 12.2.2.
12.2 If the Buyer wishes to return Goods over the
value set out in the above clause , then the Seller may, at its absolute
discretion, agree to accept such Goods back, provided that:
12.2.1 The request is submitted to the Seller by the Buyer
no later than fourteen (14) days from the date of the Sellers invoice to the
Buyer for the Goods in question; and
12.2.2 They Goods are sealed, undefaced and unopened in
the original manufacturers packaging, unused and undamaged; and
12.2.3 The Buyer agrees to cover all associated costs
(including but not limited to Transportation and Insurance costs); and
12.2.4 The Buyer agrees to pay a re-stocking fee equal to
fifteen percent (15%) of the original invoice value net of VAT for all Goods agreed
12.3 Upon receipt of the Goods at the Seller’s premises
and that said Goods are in the condition as set out in clause 12.2.2 the Seller
shall issue a credit note to the Buyer equal to the original invoice value paid
by the Buyer for the Goods (net of VAT) minus the agreed re-stocking fee and
any other costs borne by the Seller. Goods which do not meet the criteria shall
result in the return being rejected, no credit note shall be issued and the
Buyer shall (at their sole expense and risk) have fourteen (14) days to arrange
collection from the Seller’s premises. Goods not collected after fourteen days
shall be disposed of in accordance with the Waste Electrical and Electronic
Equipment (WEEE) Regulations 2006 and any costs involved in doing so shall be
passed to the Buyer.
12.4 Under no circumstances shall the Buyer be entitled
to return (except for the reason set out in clause 11.2):
12.4.1 Custom Build Goods; or
12.4.2 Special Order Products.
13. EXPORT TERMS
13.1 In these Conditions "Incoterms" means the international rules
for the interpretation of trade terms of the International Chamber of Commerce
(ICC) 2010 as in force at the date when the Contract is made. Unless the
context otherwise requires, any term or expression which is defined in or given
a particular meaning by the provisions of Incoterms shall have the same meaning
in these Conditions, but if there is any conflict between the provisions of
Incoterms and these Conditions, the latter shall prevail.
13.2 Where Goods are supplied for export from the United Kingdom, the
provisions of this clause 13 shall (subject to any special terms agreed in
writing between the Buyer and the Seller) apply notwithstanding any other
provision of these Conditions.
13.3 The Buyer shall be solely responsible for complying with any legislation
or regulations governing the importation of the Goods into the country of
destination and to clear the Goods for import, pay any import duty and carry
out any import customs formalities.
13.4 Unless otherwise agreed in writing between the Buyer and the Seller, the
Goods shall be Delivered at Place (DAP) as defined in (Incoterms 2010) basis.
14. SPECIFICATION OF GOODS
14.1 All samples, drawings, descriptive matter, specifications and advertising
we issue and any descriptions or illustrations contained in the Seller’s
literature or on our web site are issued or published for the sole purpose of
giving the Buyer a general idea of our goods and services. Although we make
every effort to ensure that information about our goods and services is
correct, sometimes it may be incomplete, out of date or inaccurate. In
particular, some details, such as colour and dimensions, may not be a true
representation and subject to change without notice.
14.2 The Seller will not be liable in respect of any
loss or damage caused by or resulting from any variation for whatsoever reason
in the manufacturer’s specifications or technical data of the Goods.
14.3 The Seller will not be responsible for any loss or
damage resulting from curtailment or cessation of supply of Goods following any
variation as described in clause 14.1 and 14.5 of this Contract.
14.4 The Seller will use its reasonable endeavours to
advise the Buyer of any such impending variation as soon as it receives any
such notice thereof from the manufacturer.
14.5 Unless otherwise agreed, the Goods are supplied in
accordance with the manufacturer’s standard specifications as these may be
improved, substituted or modified.
14.6 The Seller reserves the right to increase its
quoted or listed prices, or to charge accordingly in respect of any orders
accepted for Goods of non-standard specifications and in no circumstances will
the Seller consider cancellation of such orders or the return of such orders
15. THIRD PARTY PROVIDER
15.1 The Seller’s Third Party providers (which include
but are not limited to Couriers and Warehousing) provide services on behalf of
the Seller however the Buyer acknowledges that the Third Party provider is
a third party, which the Seller does not control.
15.2 The Seller makes no representation, guarantee or
warranty about any Third Party provider.
16. INSOLVENCY OF A THIRD PARTY PROVIDER
16.1 If a Third Party provider enters into any type of
insolvency, administration, receivership, liquidation, creditor arrangement or
becomes the subject of winding up proceedings (“Insolvency Event”) the Seller may
terminate or temporarily suspend the provision of the Services.
16.2 If the Seller suspends the provision of the Services it
shall use reasonable endeavours to engage a new service provider on materially
similar terms in a reasonable period.
17. HEALTH AND SAFETY
17.1 The Buyer's attention is drawn
to the provisions of section 6 of the Health and Safety at Work Act 1974. The
Seller will make available on written request such information on the Goods as
is in the Seller’s possession to ensure that as far as is reasonably
practicable they are reasonably safe and without risk to health when properly
The Seller shall use all reasonable endeavours to keep confidential all
information relating to the Buyer's business to the extent that the Seller safeguards
information relating to its own business for so long as and to the extent that
such information is and remains unpublished and is not known to the Seller at
the time of disclosure by the Buyer or is not thereafter lawfully obtained by
the Seller from a third party.
19.PROTECTION OF THE SELLER’S “KNOW HOW”
19.1 The Buyer, subject as hereinafter provided, shall be responsible for
keeping and procuring to be kept secret and confidential all information
(hereinafter referred to as "the Know-How") supplied by the Seller of
a secret or confidential nature provided that the Seller shall first have given
notice in writing to the Buyer of the secret or confidential nature of such
information before so supplying it.
19.2 The obligations under this Paragraph shall cease within six months of the
publication by the Seller or any third party of information comprising or being
part of the Know-How to the extent of such publication, or of agreement by the
Seller that such information or part thereof is in the public domain.
20. INTELLECTUAL PROPERTY
20.1 The copyright subsisting or which subsequently subsists in all documents,
drawings, specifications, designs, programmes or any other material prepared by
the Seller whether readable by humans or by machines shall belong to the Seller
absolutely and they shall not be reproduced or disclosed or used in their
original or translated form by the Buyer without the seller’s written consent
for any purpose other than that for which they were furnished.
20.2 The Seller accepts no responsibility for the accuracy of drawings,
patterns or specifications supplied by the Buyer. The Buyer shall indemnify the
Seller against all claims whatsoever for damages and costs and against all liability
in respect of any infringement of patent or other intellectual property rights
resulting from compliance with the Buyer's instructions express or implied and
the Buyer will indemnify the Seller against any liability in respect thereof
and shall pay all costs and expenses which may be incurred by the Seller in
reference to any such claim. The indemnity shall extend to any amount paid on a
lawyer's advice in respect of any such claim.
21.1 The Seller reserves the right to sub-contract the fulfilment of the
Contract (including any installation) or any part thereof.
21.2 The Buyer shall not assign any rights under this agreement without the
prior consent in writing of one of the Seller’s directors.
21.3 Any notice required or permitted to be given by either party to the other
under these Conditions shall be in writing addressed to that other party at its
registered office or principal place of business or such other address as may
at the relevant time have been notified pursuant to this provision to the party
giving the notice.
21.4 No waiver by the Seller of any breach of the Contract by the Buyer shall
be considered as a waiver of any subsequent breach of the same or any other
21.5 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 provisions in question
shall not be affected thereby.
21.6 Each party irrevocably agrees that the
courts of England shall have exclusive jurisdiction to settle any dispute or
claim arising out of or in connection with this agreement or its subject matter
or formation (including non-contractual disputes or claims) however nothing in
this clause shall limit the right of the Supplier to take proceedings against
the Buyer in any other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdiction preclude the Supplier from taking
proceedings in any other jurisdiction, whether concurrently or not, to the
extent permitted by the law of such other jurisdiction.
22. DATA PROTECTION
22.1 The Buyer and Seller agree that they are committed to respecting the privacy rights of
individuals. The Buyer and Seller shall treat the Contract and any information it may have
obtained or received in relation thereto or arising out of or in connection with
the performance of the Contract or its negotiation or relating to the business
or affairs of the other as private and confidential. Neither the Buyer nor the
Seller shall publish or disclose the same, nor any particulars thereof without
the prior written consent of the other, or, as may be permitted under the later
provision of this Clause.
22.2 The obligations expressed in the above clause shall not apply to any information
22.2.1 is or subsequently comes into the public domain otherwise than by breach of this
22.2.2 is already in the possession of the receiving party without an accompanying obligation of
22.2.3 is obtained from a third party who is free to divulge the same;
22.2.4 is independently and lawfully developed by the recipient or its sub-Contractor
outside the scope of the Contract.
22.3 So far as it may be necessary for the performance of the Contract or for the
operation and maintenance of the Contract, the Buyer or Seller may divulge any
information to be kept confidential under Clause 22.1 of this Clause to their
employees, agents and sub- Contractors on a “need to know” basis but both the
Buyer and Seller undertake that they will take all steps necessary to ensure
compliance by such employees, agents, and sub-Contractors with the obligations
as to confidentiality expressed in this Clause, including without limitation
incorporating such clauses into their own contracts with such persons, and will
be responsible to the other party for any failure by any employee, agent or
sub-Contractor to comply with such obligations whether such employee, agent or
sub-Contractor was aware of them or not.
22.4 For the purpose of verifying the Buyers financial standing
the Seller reserves the right to obtain information on the Buyers
creditworthiness from credit agencies or credit insurers and to report such
data to them. The Buyer expressly consents and agrees that the Seller may make
such enquiries and searches and obtain such references as it considers
necessary from credit reference agencies or credit insurers (which will keep a
record of any search made) and may disclose the results of those enquiries,
searches and references and any information given by the Buyer to any credit
reference agency or to any other Affiliate of which it is a member.
22.5 Both Buyer and Seller shall ensure that they, their employees, agents and
sub-Contractors shall observe the requirements of the Data Protection Act 1998
and any amendments or revisions thereto in the provision and use of the subject
matter of the Contract and personal data processed under it and shall comply
with any request made or direction given to the other which is directly due to
the requirements of such Act.
22.6 On the conclusion or termination of the Contract both parties shall cease to use
all copies of confidential information obtained from the other except in so far
as the law requires the information be retained in which event it shall be kept
until such period is over and in any event kept strictly confidential under the
provisions of this clause.
22.7 The obligations relating to confidentiality shall continue notwithstanding
termination of this Contract and until such time as the information is no
longer confidential in nature.
23. CALL RECORDING
23.1 Calls may be recorded for training, quality improvement and security
purposes in accordance with the Telecommunications (Lawful Business Practice)
(Interception of Communications) Regulations 2000.
24. BRIBERY ACT 2010
24.1 The Buyer acknowledges and understands its legal and moral obligations as
detailed in the Bribery Act 2010.
24.2 The Buyer has an active Anti-Bribery and Corruption Policy in place which
reflects its zero tolerance approach to acts of bribery and which has been
fully trained out to all staff of the Buyer who understand
the ramifications of the Act and how it should influence their behaviour in their
dealings with the Seller.
24.3 The Buyer understands that acceptance of the Seller’s Terms and Conditions is acceptance
of the Seller’s own Anti-Bribery Policy (a copy of which can be provided on
25. FORCE MAJEURE
25.1 The Seller shall not be under any liability for any failure to perform any of its obligations under
the order due to Force Majeure. Following notification by the Seller to the Buyer
of such cause, the Seller shall be allowed a reasonable extension of time for
the performance of its obligations and include (but are not limited to) the
following from a non-exhaustive list of events such as:
Act of God, explosion, flood,
tempest, fire or accident;
war or threat of war, terrorist
atrocities, sabotage, insurrection, civil disturbance or requisition;
regulations, bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority;
import or export regulations or
strikes, lock-outs or other
industrial actions or trade disputes (whether involving employees of the Seller
or of a third party);
difficulties in obtaining raw
materials, labour, fuel, parts or machinery;
power failure or breakdown
suppliers or Service Providers undergoing an Insolvency Event;
unforeseeable shortages in the availability of
personnel caused by epidemic or pandemic;