Com5 Ltd Terms And Conditions

 

 

Definitions

 

1 The following definitions shall apply

1.1 “Company” means Com5 Limited.

1.2 “Contract” means the contact between the company and the customer to which on any particular occasion these terms and conditions  relate.

1.3 “Customer” means the customer of the company under the contract.

1.4 ”Goods” means the goods to which the customer relates.

1.5 “Software” means such (if any) of the goods as are within the meaning of that term as currently used in the computer industry.

1.6 “Equipment” means such of the goods are not software.

1.7 “Special condition” means only a special condition or  term which has been agreed by the company and which is set out in the part of the contract signed on behalf of the company.

1.8 “Standard charges” means the charges normally made by the company from time to time as certified in writing by the company.

 

2 General

 

2.1 These terms and conditions shall apply to all contracts made between the company and the customer, whether written or in oral, and whether expressly mentioned or not, save that contracts made after the company has notified the customer of the issue of a later edition shall be subject to such later edition.

2.2 These terms and conditions shall apply to the contract says so far as varied by or inconsistent with any special condition. No other term or condition shall have any effect whatsoever and if after the existence of these terms and conditions has become known to the customer the customer makes or gives to the company any conditional offer order or acceptance, the company shall have the right (but shall not be bound) to treat the same as unconditional, either in whole or in part, as it shall in its absolute discretion think fit.

2.3 The customer shall have no right to modify cancel or change the delivery date applicable to the contract without the prior written consent of the company.

2.4 Neither the contract nor any document forming part of the contract shall be binding on the company unless it has been accepted by the company under the signature of one of its directors or other authorised signatory save that the company may at its discretion accept any order placed by the customer by taking any step to fulfil such order in which case the taking of such step shall be deemed to be sufficient acceptance of the order by the company but with the right of the customer at any time after submitting its order to the company to request the company to give written acceptance of such order within fourteen days after such request and to treat the order as having been refused by the company if written conformation of acceptance by the company is not given with such time.

2.5 No quotation or estimate given by the company shall be deemed to be an offer by the company unless expressed to be a “fixed quotation” and valid until a given date in which case it shall be open to acceptance by the customer but only by written acceptance delivered to the company by such date.

2.6 The headings appearing in these terms and conditions are for guidance only and shall not in any way be deemed to affect or prejudice the interpretation or effect thereof.

2.7 It is intended that these terms and conditions and any special conditions shall be reasonable as between the company and the customer having regard to the nature of the contract but if at any time any of them is either unenforceable or void at law it shall not adversely affect or prejudice the remainder of them or the contract and it shall be deemed to be excluded from these terms and conditions and (where possible) to be replaced by such other enforceable and valid term or condition as shall be as near as may be to the original in both form and effect.

2.8 The Company reserve the right to amend the Terms and Conditions.

 

3 Price

 

3.1 Unless the customer accepts a “fixed quotation” as mentioned above or unless the part of the contract signed on behalf of the company states that the price is fixed, the company reserves the right to increase any price in accordance with its standard charges at the date of the delivery to the customer.

3.2 A “ fixed quotation” takes into account freight rates, currency exchange rates, import and other duties and taxes of whatsoever kind (other than VAT) deemed by the company applicable at the date of the contract. It may be adjusted in accordance with the amount of any changes beyond the control of the company in such rates, duties or taxes payable or collectable by the company including those payable by the company in obtaining a supply from overseas if so requested by the customer the company shall produce proof of such changes to the customer.

3.3 The customer shall pay VAT on any sum payable by the customer to which it applies at the rate prevailing at the appropriate time.

3.4 For the purpose of the remainder of these terms and conditions “ the price” shall be deemed to be the basic price payable by the customer plus the amount of any such changes as aforesaid and VAT.

3.5 Unless otherwise expressly agreed the price does not include installation, operator training, travelling or hotel expenses and if any such are provided or carried out by the company, the customer shall pay the company its standard charges for them.

 

4 Payment

 

4.1 The price (less any deposit paid) shall be paid within thirty days of the date marked on the invoice sent by the company to the customer or (if later) within thirty days of the date of which the goods are ready for collection by or delivery to the customer.

4.2 If any sum payable by the customer to the company is not paid within seven days of the due date the company shall have the right to charge interest (3% above HSBC Bank PLC's published base rate) on the balance from time to time in force calculated on a daily basis from the date on which such sum became due down to the actual date of payment.

 

5 Delivery and Acceptance

 

5.1 Delivery dates quoted are estimates only and the company shall not be responsible for any delays due to causes beyond its control.

5.2 The company reserves the right to make delivery by instalments. In that event theses terms and conditions shall apply to each delivery as though it where subject to a separate contract.

5.3 If the company agrees to make delivery to the customer such delivery shall be effected to the address of the customer as shown in the contract, unless otherwise agreed. Even in such cases, the company reserves the right to request the customer to nominate and or appoint its own carrier for the purpose of effecting such delivery and in that case if delivery charges are included in the price the company will reimburse the customer with the amount of such charges.

5.4 Delivery shall be deemed to be effected at the time when the customer effects collection from the company or in cases where collection is not effected by the customer or on its behalf, when delivery is made to the address of the customer. Unless the customer shall deliver written notice to the company within 24 (twenty four) hours of delivery to the effect that the goods are damaged or subject to shortage and unless the customer shall in all respects comply with the terms and conditions of the contract with the carrier (if any) the customer shall be deemed to accept that the goods have been delivered in accordance with the terms of the contract and shall not thereafter make any claim against the company in respect of any such damage or shortage.

5.5 If the company agrees to arrange for delivery of the goods the customer shall give verbal and written notice to the company forthwith if the goods are not received within 48(forty eight) hours  of the expected delivery date or within such lesser period within which such notice is required to be given by the carrier (if any) and if the customer fails to do delivery shall be deemed to have been effected whether or not it has actually been effected.

5.6 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may: store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage insurance and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

 

 

6 Property Risk and Insurance

 

6.1 Until the price payable has been paid to the company in full and the customer has complied all it’s obligations under the contract the goods shall remain the property of the company. The company shall have the right at any time prior to the price being paid in full to repossess the goods whether they be at the premises of the customer or elsewhere and without prejudice to the other rights and remedies of the company under this contract. The customer shall be liable for all transport and other costs and expenses of recovering the same.

6.2 If the customer should sell or otherwise dispose of the goods to a third party at any time before the company has received full payment for the same. The customer shall hold and keep the proceeds of sale on trust/or in a fiduciary capacity for the company. The said proceeds of sale shall be and remain the property of the company for the avoidance of doubt the customer shall place the said proceeds of sale in a separate bank account in the name of the company in order to be identifiable as the company’s property.

6.3 Notwithstanding the aforegoing, the goods shall be entirely at the risk of the customer in all respects from the time of leaving the premises of the company whether collected by the customer or not.

6.4 The customer shall adequately insure the goods with reputable insurers against all insurable risks from not later than the time the customer and all other persons in any way connected with the goods against all insurable risks to person and property which might in any way arise out of the goods or their use and such insurance shall be for the sum of one hundred thousand pounds at least on terms whereby the insurers shall be precluded from any rights of subrogation or other rights whereby they would be capable of claiming against the company or any of its employees or other persons in any way connected with it.

 

7 Copyright

 

7.1 The customer shall not be entitled to any rights of copyright or design or any similar rights in respect of any of the goods and the company shall be free to prepare and produce similar goods and sell them to other parties without any restructure whatsoever.

7.2 The customer warrants that any specifications or plans which it produces to the company are not in breach of any rights or copyright or design or other similar rights in favour of any other party and shall indemnify the company against all liability whatsoever including expenses and legal costs reasonably incurred by the company in respect of any claim which may be made against the company for alleged breach of any such right.

           

8 Force Majeure

 

8.1 The company shall be under no liability for any failure to perform all or part of its obligations under the contract if such failure shall be due to Act of God, strikes, lock outs, labour disturbances, statute, order of any regulation of any government public or local or other Authority. Delays or defaults of suppliers or sub contractors, (or without prejudice to the generality of the aforegoing) any other causes beyond the reasonable control of the company and the conditions shall apply notwithstanding that it may conflict with any special condition.

 

9 Default of Customer

 

9.1 The rights of the company as set out in these conditions shall apply. In addition and without any prejudice to all rights that the company may have by common law statue or otherwise in respect of any default by customer.

9.2 If the customer fails to take delivery of any part of the goods at the time or place required under the contract the company shall have the right (I) to charge the customer with reasonable storage charges until such time as delivery is taken and/or (II) at any time thereafter to give written notice to the customer requiring the customer to take delivery of the goods in conformity with the contract within a period of twenty eight days from the date of sending such notice and in the event of the customer failing to take delivery within such period the company may, by sending further notice in writing to the customer treat the contract as having been repudiated  by the customer and recover from the customer all loses damages and costs  occasioned to the company by virtue of such repudiation.

9.3 If the customer fails to pay any monies due under contract within sixty days of due date the company shall have the rights (I) to treat the contract as having been repudiated by the customer on the same terms as set out in the areforgoing paragraph and/or (II) to enter premises of the customer and recover any part of the goods which have been delivered to the customer.

9.4 The company shall also have the right to treat the contract as repudiated by the customer forthwith and without notice should the customer become bankrupt or insolvent or make any arrangement or compound with its creditors or should any receiver be appointed in respect of its undertaking or any of its assets or should a judgement be obtained against it and remain unpaid for a period in excess of twenty-eight days.

 

10 Intellectual Property

 

10.1 The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programmes or any other material prepared by the Company whether readable by humans or by machines shall belong to the Company absolutely and they shall not be reproduced or disclosed or used in their original or translated form by the Customer without the Company’s written consent for any purpose other  than that for which they were furnished.

10.2 The Company accepts no responsibility for the accuracy of drawings, patterns or specifications supplied by the Customer. The Customer shall indemnify the Company 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 Customer’s instructions express or implied and the Customer will indemnify the Company against any liability in respect thereof and shall pay all costs and expenses which may be incurred by the Company 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.

 

11 Recruitment of employees

 

11.1 The parties hereto accept that either party will suffer loss if a member of their staff accepts an offer of  permanent employment with the other party during the continuance of this contract and six months therafter. If such a member of the party’s staff accepts such an offer of employment with the other party other than a result of a relevant bona fide employment advertisement in the press, the new employing party agrees to pay the other party the equivalent of six months salary for that member of staff.  The provisions of this clause shall apply to subsidiaries, associates and parent companies of either party.

 

12 Guarantee

 

12.1 The Company hereby guarantees to the Customer that:-

 

12.1.1 The Company shall free of charge either repair or, at its option, replace defective Goods where the defects appear under proper use within 12 (twelve) months from the date of the first delivery or such other period or periods as may be agreed in writing between the Company and the Customer whichever is the first to expire, PROVIDED THAT

12.1.1.1 notice in writing of the defects complained of shall be given to the Company upon their appearance, and

12.1.1.2 such defects shall be found to the Company’s reasonable satisfaction to have arisen solely from the Company’s faulty design, workmanship or materials, or a combination of these.

12.1.2 For the avoidance of doubt, defects will not be regarded as having arisen solely from the Company’s faulty design, workmanship or materials in any of the following circumstances:

12.1.2.1 where such defects arise from any drawing, design or specification supplied by the Customer; or

12.1.2.2 where such defects arise from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;or

12.1.2.3 where such defects arise in parts, materials, or equipment which have not been manufactured or designed by the Company but have been purchased at the Customer’s request by the Company from their designer and manufacturer or from some other third party (“the Third Party Supplier”).

12.1.3 Any repaired or replaced Goods shall be redelivered to the Customer free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions.

12.1.4 Alternatively to Condition 12.1.1, the Company shall be entitled at its absolute discretion to refund the price of the defective Goods in the event that such price shall already have been paid by the Customer to the Company, or, if such price has not been paid, to relieve the Customer of all obligation to pay the sum by the issue of a credit note in favour of the Customer in the amount of such price.

12.2 The Customer agrees to insure itself against loss and damage arising in the circumstances identified in clause 12.1.2.

12.3 In respect of all Goods supplied to the Company by a Third Party Supplier the Company will pass on to the Customer   (in so far as possible) the benefit of any warranty given to the Company by such Third Party Supplier and will (on request) supply to the Purchaser details of the terms and conditions of such warranty and copies of any relevant product information sheets, technical data sheets or product leaflets issued by such Third Party Supplier and the Customer shall be solely responsible to the entire exclusion of the Company from complying with the same.

12.4 The Company’s liability under this Condition shall be to the exclusion of all other liability to the Customer whether contractual, tortuous or otherwise for defects in the Goods or for any loss or damage to or caused by the Goods, and subject to Conditions 12.7, 12.8 and 12.9 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 Company 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.

12.5 Subject to Conditions 12.7, 12.8 and 12.9 and notwithstanding anything contained in these Conditions (other than Conditions 12.7, 12.8 and 12.9) or the Contract, in no circumstances shall the Company 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.

12.6 Subject to Conditions 12.7, 12.8 and 12.9 and notwithstanding anything contained in these Conditions (other than Conditions 12.7, 12.8 and 12.9) or the Contract, the Company’s liability to the Customer in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the price of the Goods specified in the Contract.

12.7 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 Company for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Contract by section 12(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.

12.8 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 Company for death or personal injury caused by reason of the negligence of the Company or of its servants, employees or agents.

12.9 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Customer are not affected by these Conditions.

12.10 The Company 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 Company to the Purchaser of such cause, the Company shall be allowed a reasonable extension of time for the performance of its obligations. For the purpose of this Condition, “Force Majeure” means: Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); difficulties in obtaining raw materials,labour,fuel,parts or machinery;power failure or breakdown in machinery.

12.11 The Customer accepts as reasonable that the Company’s total liability for any Goods which are defective shall be as set out in these Conditions: in fixing that limit the Customer and the Company have had regard to the source specification and Contract price of the Goods, their nature, the use they will receive, and the resources available to each party including servicing facilities and insurance cover, to meet any liability.

 

13 Assignment Etc

 

13.1 The benefit and obligations of the contract shall not be assigned or sublet by the customer without the prior written consent of the company. The benefit and obligations of the contract may however be assigned or sublet by the company providing that it shall remain primarily responsible to the customer for its obligation hereunder.

 

14 Lien

 

14.1 The Company retains a general lien on any of the Customer’s equipment or materials in its possession for any unpaid balance the Customer may owe to the Company. The Company shall be entitled to sell such equipment or materials in the event that payment is not made in full within 28 days of notice given to the Customer by the Company of its exercise of the lien. The proceeds of sale may be taken by the Company for reimbursement of the expense of exercise of the lien and the sale, and payment of the said balance, and the Company shall account for any surplus.

 

15 Law

 

15.1 The contract shall be governed by and interrupted in all respects in accordance with the laws of England and any dispute or difference whatsoever in connection with or arising out of the contract shall, be refereed to the courts of the country.

 

16 Reference Material & Written or Verbal Advice/Recommendations

 

16.1 The Company or agents for The Company will always look to provide the Customer with the best possible information however, The Company accepts no liability for any loss or damage either directly or indirectly linked to the provision of reference material, written or verbal advice and recommendations or omission of aforesaid.