TERMS AND CONDITIONS
FOCUS SB LTD
WEBSITE TERMS & CONDITIONS
(2) Intellectual Property Right
Unless otherwise stated, we or our licensors own the intellectual property rights in the website and material on the website. Subject to the licence below, all these intellectual property rights are reserved.
(3) Licence to use website
You must not:
(a) republish material from this website (including republication on another website);
(b) sell, rent or sub-license material from the website;
(c) reproduce, duplicate, copy or otherwise exploit material on our website for a commercial purpose;
(e) edit or otherwise modify any material on the website; or
(f) redistribute material from this website except for content specifically and expressly made available for redistribution (such as our newsletter).
(4) Acceptable use
You must not use our website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
You must not use our website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our website without our express written consent.
You must not use our website to transmit or send unsolicited commercial communications.
You must not use our website for any purposes related to marketing without our express written consent.
(5) Restricted access
Access to certain areas of our website is restricted. We reserve the right to restrict access to other areas of our website, or indeed our whole website, at our discretion.
If we provide you with a user ID and password to enable you to access restricted areas of our website or other content or services, you must ensure that that user ID and password is kept confidential.
We may disable your user ID and password in our sole discretion without notice or explanation.
(6) Limited warranties
Whilst we endeavour to ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we commit to ensuring that the website remains available or that the material on the website is kept up-to-date.
To the maximum extent permitted by applicable law we exclude all representations, warranties and conditions relating to this website and the use of this website (including, without limitation, any warranties implied by law of satisfactory quality, fitness for purpose and/or the use of reasonable care and skill).
(7) Limitations of liability
(a) to the extent that the website and the information and services on the website are provided free-of-charge, we will not be liable for any loss or damage of any nature;
(b) we will not be liable for any consequential, indirect or special loss or damage;
(c) we will not be liable for any loss of profit, income, revenue, anticipated savings, contracts, business, goodwill, reputation, data, or information;
(d) we will not be liable for any loss or damage arising out of any event or events beyond our reasonable control;
(9) Entire agreement
(10) Law and jurisdiction
(11) Registrations and authorisations
Our VAT number is 683 3994 83
(12) Our details
The full name of our company is Focus SB Limited
We are registered in England under registration number 4113926
Our registered address is Focus SB Ltd, Napier Road, Castleham Industrial Estate, St Leonards-on-Sea, East Sussex, TN38 9NY
FOCUS SB LTD
TERMS & CONDITIONS OF SALE
In these terms & conditions of sale;
1.1. The “supplier” refers to Focus SB Limited, a company registered in England under the registration number 4113926 with a registered office at Napier Road, Castleham Industrial Estate, St Leonards on Sea, East Sussex, TN38 9NY;
1.2. and the “customer” means the person, firm or company placing an order with the “supplier” to purchase the “goods” and to who the “supplier” agrees to supply.
1.3. The “goods” shall mean any goods sold or to be sold by the supplier which are subject of an order by the customer whether or not on the supplier’s standard order form and which the supplier agrees to sell to the customer;
1.4. “working day” shall mean Monday to Friday excluding any day when the clearing banks are not open for business in the City of London, or any other day the supplier is not open for business;
1.5. “specials” are goods that are custom made and do not appear in the published price list for the territory.
1.6. “territory” shall mean the geographical area that the “customer” is authorised by the “supplier” to sell “the goods” into.
1.7. “Force Majeure” is any event beyond the reasonable control of either Party including Acts of God, actions or omissions of third parties not in the same group as the Party seeking to rely on the event (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation;
2. TERMS & CONDITIONS OF SALE TO APPLY: UNLESS THE SUPPLIER PROVIDES WRITTEN AUTHORISATION TO ALTER ALL, OR A PORTION OF THE CONTENT
2.1. These Terms & Conditions of Sale are the only terms of which the supplier will be bound and any variation in any document of the customer shall not apply unless accepted in writing by the supplier.
2.2. A binding contract shall not come into existence between the supplier and the customer until the customer’s order is accepted by:
2.2.1. the supplier’s written acknowledgement of order; or
2.2.2. delivery of the goods; or
2.2.3. delivery of the supplier’s invoice.
3.1. Prices are exclusive of value added tax which will be applied at the rate ruling at the time of despatch.
3.2. All orders are accepted for execution at prices ruling at the date of order, and all quotations are submitted on that basis unless otherwise stated in writing.
3.3. Prices are determined by reference to the supplier’s standard price list current at the date of the order by the customer subject always to extra charges where applicable for specials. The supplier reserves the right at any time without notice to change its standard price list of the goods in respect of goods not yet ordered.
3.4. Carriage & packing may be charged for deliveries with a net goods value up to £75.00. Orders with a net goods value over £75.00 for delivery in one consignment to the UK mainland, will be sent carriage paid, unless special delivery arrangements are requested in writing, in this instance a packing/delivery charge may be made at the discretion of the supplier. Applicable packing charges are available on request.
3.5. A minimum order charge of £75.00 nett (exclusive of VAT) will be applied to all orders with the exception of items contained within the following sections:
• AV Modules.
• Dimmer Modules & Caps.
Items contained within the above sections will be subject to a £5.00 postage charge for orders below £75.00 nett (exclusive of VAT).
4. PAYMENT TERMS
4.1. Unless a credit account has been agreed with the supplier, the customer will pay for all goods on cash with order or pro-forma basis. In the case of Specials, pro-forma payment may be requested before the start of the manufacturing process, any delay in payment will affect quoted Lead Times. To request a credit account, the customer will be requested to complete a credit account application form, supply two trade references and a bank reference. A credit account will only be provided once credit checks have been carried out and a satisfactory score has been received by Focus SB.
4.2. It is within the right of the supplier to refuse any application for a credit account.
4.3. The customer shall pay the price of the goods (less any discounts to which the customer is entitled but without any other deduction) by the due date. Unless otherwise agreed in or before the customer’s order, payment shall be due by the end of the month after the month of the date of supplier’s invoice. The time of payment of the price shall be of the essence of the contract.
4.4. Where a signed distribution agreement exists between the supplier and the customer, then the payment terms within that agreement shall take precedent.
4.5. The customer shall pay all sums due to the supplier in full without any set-off, deduction or withholding whatsoever.
4.6. If payment of any sum due hereunder is not made on the due date then, without prejudice to any other right or remedy available to the supplier (whether under the contract or by any statute, regulation, law or bye-law), the supplier shall be entitled to:
4.6.1. charge the customer interest (both before and after any judgement) on the amount due but unpaid at the rate of 8 per cent per annum above the official dealing rate of the Bank of England from the due date until payment, such interest will run from day to day and to be compounded monthly;
4.6.2. sell or otherwise dispose of any goods which are subject of any order by the customer and apply the proceeds of sale to the overdue payment; and
4.6.3. Without prejudice to any of the rights and remedies, which the supplier may have, if payment is overdue the supplier may suspend or cancel delivery of goods pursuant to any contract, which it may have with the customer.
5. DELIVERY DATES
5.1. Any due dates or lead times quoted for delivery of the goods are approximate only and the supplier shall not be liable for any delay or failure in executing orders for whatever reason nor for any loss or damage arising out of any such delay or failure.
5.2. Partial delivery shall be permitted. Although the supplier will endeavour to deliver the goods under an order altogether, the supplier may deliver the goods by instalments and may invoice the customer for each delivery. Delay, default or non-delivery of any instalment shall not entitle the customer to cancel the remainder of the order.
5.3. If delivery is delayed through the customer’s default or the customer wrongfully declines or delays in accepting delivery, the supplier may (without prejudice to any other right or remedy available to it) do all or any of the following:
5.3.1. charge a reasonable storage fee and any costs incurred by the supplier;
5.3.2. sell the goods for the supplier’s account; and
5.3.3. cancel any goods that remain to be delivered to the customer under any order.
6.1. Packaging of the goods shall be in accordance with the supplier’s customary packaging practices.
7. CONTINUOUS IMPROVEMENT
7.1. The supplier’s policy is one of continuous improvement and the right is reserved to change designs, dimensions and descriptive matter at any time without notice.
7.2. Subject to informing the customer, the supplier reserves the right to make changes or improvements to the goods before delivery. All descriptions, representations, specifications, samples, colours, illustrations and other particulars furnished or made orally by the supplier or on its websites, catalogues, trade literature, price lists or other documents issued by the supplier are given for general information purposes only and the customer has not made an order in reliance upon any of them.
8. DRAWINGS AND TECHNICAL INFORMATION
8.1. All specifications, drawings, installation drawings, wiring diagrams, particulars of weight/dimensions/capacities and all other data relating to the goods are offered by the supplier in good faith and the customer acknowledges and accepts that they are approximations only and the supplier excludes all warranties, express and implied, save for those expressly set out in these terms and conditions.
8.2. Patents protect many of the supplier’s designs and “Focus SB” is a registered trademark. Full details will be supplied on genuine enquiry and no infringement will be permitted.
9. WARRANTIES, RETURNS & CANCELLATIONS
9.1. The supplier warrants that the goods will be delivered to the customer in the quantities ordered and that the goods will for twelve months from delivery be free from material defects or damage caused solely by faulty materials or poor workmanship.
9.2. The supplier shall at its option repair, replace or provide a refund for goods that are lost or damaged in transit. The customer shall upon delivery examine the goods. The customer shall promptly (but in any event within 3 working days of delivery or expected delivery) notify The supplier in writing of any apparent damage, defect, shortage or non-arrival. In default of such written notification The supplier shall be deemed conclusively to have properly performed its obligations in relation to the sale of the goods.
9.3. The supplier’s liability for defective or damaged goods under 9.2 are subject to:
9.3.1. goods being returned within their warranty period.
9.3.2. prompt (and in any event within 3 working days of the Customer’s discovery) written notification by the customer to the supplier of the defect or damage;
9.3.3. Any goods returned as faulty being assessed by the supplier to confirm the fault.
9.3.4. showing to the supplier’s reasonable satisfaction that the defect or damage is solely attributable to defective materials or workmanship in the goods and not wear and tear from normal use or the combination or incompatibility of the goods with any other materials or products or post-delivery installation or moving of the goods;
9.3.5. following delivery, the goods not having been misused or subjected to neglect, improper or inadequate care, carelessness, abnormal usage conditions, or involved in any accident, repair, replacement, servicing or modification or dealt with contrary to any instructions of the supplier;
9.3.6. the customer allowing the supplier the opportunity to inspect the goods;
9.3.7. the customer returning the goods to the supplier’s premises or any other place stipulated by the supplier carriage and insurance paid at the customer’s risk and carefully packed to avoid damage in transit (and section 36 of the Sale of Goods Act 1979 shall not apply);
9.3.8. the customer having paid for the goods in full; and
9.3.9. the customer having complied with all reasonable instructions of the supplier.
9.4. Consistencies in finish cannot be guaranteed due to the nature of the manufacturing process. Replacements will be provided only if after inspection by the supplier the finish is found to be outside of the supplier’s tolerance levels.
9.5. Many of Focus SB’s products feature hand finished, or painted plates and/or switch rockers and dolly’s. Due to the nature of these processes, there may be slight variations in surface finish, colour and texture. To alleviate some of these variants, it is strongly recommended that all products on any one specific project are ordered (and therefore manufactured) in one consignment to help minimise any potential issues. Focus SB are unable to accept responsibility (or returns) for any such variants due to the nature of the processes.
9.6. In respect of any goods which are damaged or defective, the supplier shall at its option repair, replace, or refund to the customer an appropriate portion of the purchase price of the goods.
9.7. No warranty is given in respect of components manufactured by a third party which are fitted by the supplier to meet the customer’s special requirements.
9.8. Before placing orders for dimming and lighting control products, it is the responsibility of the customer to ensure that their selected lamps, luminaires and systems are compatible with Focus SB dimming and lighting control products. Focus SB strongly recommend that the customer should contact the lighting manufacturer or supplier for additional advice regarding the use of dimming or lighting control products before placing orders. Focus SB are unable to accept responsibility for any compatibility issues associated with their dimming and lighting control products unless they have either previously tested or have prior knowledge in writing regarding the suitability of lamps and luminaires intended for use.
9.9. The supplier shall be under no liability for any defect in the goods arising from any drawing, design or specification supplied by the customer or his agent.
9.10. No unauthorised returns can be accepted. For the avoidance of doubt and unless agreed in writing, the goods are not supplied on a sale or return basis. If the customer makes an invalid claim or if the customer treats the goods other than in accordance with this Condition 9, the supplier may charge the customer for all its costs incurred in examining the goods and dealing with the claim plus its costs of storage.
9.11. If the customer makes a valid claim and the supplier returns or replaces the goods, the supplier will pay for the cost of return to the original point of delivery. Delivery of the return shall be at the customer’s risk.
9.12. The supplier will not accept cancellation or return of any goods supplied in accordance with the customer orders unless the customer obtains an authorised return booking-in reference number. Returned goods will be subject to the suppliers “Booking-in procedure”. Products for return to Focus SB must have the returns Booking-in reference clearly marked on the outside of the package, and no goods will be accepted back into the Warehouse without this. Once a number is issued, goods must be returned to the supplier’s head office within 20 working days or the goods will not be accepted back into the warehouse and any debit raised against these items will be cancelled and passed to our accounts department for payment to be obtained. Authorised standard catalogue items where replacement items are not ordered, will attract a minimum administration charge of 30% of the value of the return. Authorised Standard catalogue returned items where replacements are ordered, will attract a minimum administration charge of 20% of the value of the return. ALL agreed non faulty returned items MUST be returned in the original packaging. The Supplier reserves the right to decline the return of standard catalogue items that are deemed to be more than 6 months old from date of delivery. The return of items that are specials, will not be accepted, nor will cancellation be accepted before delivery if expenditure has been incurred by the supplier, unless an authorised representative of the customer has agreed in writing to meet ALL costs as specified by the supplier. The supplier’s product range is extensive, if the customer has any doubt about an individual products stock status, it is the responsibility of the customer to contact the supplier’s Sales department for clarification of the products status in writing. Please note products that are included within the supplier’s product brochures do not necessarily constitute 'Standard catalogue items'.
9.13. This condition 9 sets out the entire liability of the supplier to the customer in respect of lost, damaged, defective or late goods and shall apply in lieu of all conditions, warranties or obligations which would otherwise be implied by statute, common law or otherwise, all of which are excluded to the fullest extent permitted by law.
10. TITLE & RISK
10.1. Title to the goods shall remain with the supplier and shall not pass to the customer until payment in full for the same and all other goods agreed to be sold by the supplier to the customer for which payment is then due has been received by the supplier.
10.2. Risk of damage to or loss of the goods shall pass to the customer at the time of delivery or, if the customer wrongfully fails to take delivery of the goods, the time when the supplier has tendered delivery of the goods.
10.3. Until such time as the property in the goods passes to the customer, the customer shall hold the goods as the supplier’s fiduciary agent and Bailee, and shall keep the goods in good condition and separate from those of the customer and third parties (and without mixing or incorporating with any other goods, materials or substances) and properly stored, protected and fully insured with a reputable insurance company and identified as the supplier’s property. Until that time the customer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to the supplier for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including (but not limited to) insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
10.4. Until such time as the property in the goods passes to the customer (and provided the goods are still in existence and have not been resold), the supplier shall be entitled at any time to require the customer to deliver up the goods to the supplier and, if the customer fails to do so forthwith, to enter upon any premises owned or occupied by the customer or any third party where the goods are stored and repossess the goods and the customer hereby gives the supplier an irrevocable licence for that purpose.
10.5. The customer shall not be entitled to deposit or in any way charge by way of security for any obligation (monetary or otherwise) any of the goods, which remain the property of the supplier, but if the customer does so all moneys owing by the customer to the supplier shall (without prejudice to any other right or remedy of the supplier) forthwith become due and payable.
11.1. The supplier does not exclude or limit its liability for its fraud or death or personal injury caused by its negligence or any liability which it cannot exclude or limit at law. In respect of all other claims by the customer (whether in contract, tort or otherwise), the total liability of the supplier to the customer will be limited to 110% of the value of the order in respect of which the claim was made and the supplier’s liability will not extend to consequential loss even if such loss was reasonably foreseeable or the supplier had been advised of the customer incurring such loss.
11.2. Except in respect of death or personal injury caused by the supplier’s negligence, the supplier shall not be liable for any consequential, indirect or economic loss or damage, loss of profits or revenue, loss of data, loss of savings or anticipated saving, interest or production, cost of management time, loss of business or business benefit whether such losses or damages, howsoever arising.
11.3. The supplier does not accept responsibility for the quality or suitability of the customer’s free issue parts and therefore cannot guarantee their suitability and/or the quality of the applied finishing.
11.4. The Supplier will not accept any financial consequential loss for customers free issued parts either through loss, damage, scrap or any other suitability or quality issues.
12. FORCE MAJEURE
12.1. Neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under these Terms & Conditions which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen.
12.2. Each Party agrees to inform the other Party in writing upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
12.3. The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
12.4. Each Party shall bear its own costs incurred by the Event of Force Majeure.
12.5. Should any performance of obligations be delayed under this Clause 12, each Party shall nevertheless accept performance as and when the other Party shall be able to perform.
12.6. If the Event of Force Majeure continues without a break for more than three months, either Party may terminate this contract forthwith by notice to the other, in which event neither Party shall have any Liability to the other Party by reason of such termination.
12.7. If the supplier has contracted to provide identical or similar products to more than one customer and is prevented from fully meeting its obligations to the customer by reason of an Event of Force Majeure, the supplier may decide at its absolute discretion which contracts it will perform and to what extent.
13. INSOLVENCY, BANKRUPTCY OR LIQUIDATION
13.1. If the customer 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 purposes of amalgamation or reconstruction); or
13.2. an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the customer; or
13.3. the customer ceases, or threatens to cease, to carry on business; or
13.4. the customer is unable to pay its debts as they fall due;
13.5. or the supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the customer and notifies the customer accordingly; then without prejudice to any other right or remedy available to it, the supplier shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the customer, 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.
14. INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE
14.1. The customer acknowledges that all intellectual property rights of whatever nature (including without limitation, patents, copyright and design in respect of the patterns and designs and trade marks in respect of trade name) in the goods belongs to the supplier.
14.2. If the goods include any software, the supplier hereby grants the customer a non-exclusive, limited, non-transferable licence to use the software only to the extent necessary to receive the benefit of the other goods with which the software is supplied.
14.3. Except as expressly permitted in these Terms & Conditions, the customer shall not: (i) modify, translate, create derivative copies of or copy the software; or (ii) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; or (iii) distribute, sub-licence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the software or customer’s right and license to use the software.
14.4. Where the customer supplies goods or designs for incorporation into the supplier’s products the customer shall indemnify and keep indemnified the supplier against any claims and liability for infringement of third party intellectual property rights.
15.1. words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.
15.2. If any provision of these terms and conditions is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in general shall not be affected thereby.
15.3. The contract is personal to the parties, and may not be assigned in whole or in part.
15.4. The headings are for convenience only and shall not be used to construe the contract.
15.5. If the customer does not in confirm in writing a delivery due date and the goods are received into the supplier’s stock, after a period of 3 months the supplier reserves the right to invoice the customer for payment. The supplier also reserves the right to invoice the customer for payment if their suppliers have made any major stocking or financial commitment based on the customer’s order regardless of due dates.
15.6. Site visits made by the supplier’s engineers, or third party sub-contracted engineers; at the request of the customer will be chargeable unless such visits are necessary owing to faults in the design or manufacture of the goods as supplied by the supplier.
15.7. These Terms & Conditions constitute an agreement between the parties. Other than as expressly stated otherwise in these Terms & Conditions neither party shall be under any liability for any representations made prior to or during the operation of any agreement subject to these Terms & Conditions.
15.8. The waiver by either party of its rights in respect of any breach of any provision of this agreement shall not be taken or held to be a waiver in respect of any subsequent breach thereof.
15.9. Nothing in these Terms & Conditions shall give, directly or indirectly, any third party any enforceable benefit or any right of action against the supplier and such third parties shall not be entitled to enforce any of the terms contained within these Terms & Conditions against the supplier.
15.10. If the Supplier is requested by the customer not to ship the goods by the original due date, then the supplier reserves the right to charge the customer a storage charge of not less than 5% a month to the sales value of the goods. If after a period of 3 months a new delivery date is not confirmed, the supplier reserves the right to invoice the customer for FULL payment.
15.11. Any notice or other communication under these Terms & Conditions shall be in writing and served by personal delivery, or by first-class pre-paid post or recorded delivery letter (if to an address in the same country), or overnight courier, to the address of the other last known to the sender. Notices by post shall be deemed served two working days after posting if sent by post or overnight courier.
16. ENGLISH LAW
16.1. The validity, construction and performance of this agreement shall be governed by English Law. Any dispute, claims or proceedings of whatever nature between the customer and The supplier in connection with or arising out of the validity, construction or performance of this agreement shall be subject to the non-exclusive jurisdiction of the High Court of Justice in England and Wales to which the customer and the supplier irrevocably submit.
Effective from 18/06/2016
FOCUS SB LTD
STANDARD TERMS & CONDITIONS OF PURCHASE
Focus SB LIMITED ("the Company")
TERMS AND CONDITIONS OF PURCHASE
We, the Company, only purchase goods, rights and services ("Deliverables") on these terms and conditions ("the Terms"). If you accept our order it will be on these Terms and no other standard terms. If you act in a manner calculated to appear as an acceptance of our order, that will act as an acceptance and you will be bound by our Terms, regardless of any inconsistency in your own small print. If you wish to reject our order and make a counter-offer you MUST therefore reply to our order in words explicitly and clearly indicating rejection. Equally, if you make a counter-offer which is not clearly labelled as such (or as a rejection of our order) no subsequent behaviour of ours, in accepting Performance, can be taken to imply any acceptance by us of that counter-offer. These Terms can only be changed, or other terms agreed, in written correspondence signed by a director or other senior officer of the Company. These Terms are important and should be studied carefully.
These Terms are available from us in 12 point type size on request.
1 THE CONTRACT
1.1 Our contract with you, our supplier, will comprise our express written order, these Terms, anything else we expressly agree under section 1.2, any content imposed by law, but nothing else.
1.2 If you want us to accept a term of yours, or accept a particular responsibility, or if you wish to rely on a representation we have made, you must therefore obtain our express agreement to that. That means express written agreement, signed by a director or other senior officer of the Company and referring expressly to these Terms. We will deal with you in reliance on these Terms, so be aware that our acceptance of contractual performance by you does not imply acceptance of any terms that are different to our Terms. You must indemnify us against any consequence of your seeking to rely on any contractual terms, or any statement, understanding or representation which is not contractually agreed as set out in this section 1. For purposes of this section, written agreement can be communicated by pre-paid post, fax or e-mail, save that we never accept small print terms communicated by fax, on grounds of uncertain legibility.
1.3 If any of the terms of the contract conflict with or contradict each other those terms will over-ride each other in the following order of priority: (1) any express written agreement from us; (2) our order; (3) these Terms.
1.4 We are not contractually bound until we place a formal order and then only to the extent of the issues specifically covered by that order or in writing signed by a director. We will only be contractually bound to you when you accept our order with a formal order acknowledgement in writing or (if later) when we accept Performance by you (see below).
2.1 The price of the Deliverables will be as stated in our order and, unless otherwise stated, will be:
2.1.1 exclusive of any applicable VAT (which will be payable by us subject to receipt of a valid VAT invoice);
2.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery, commissioning or performance of Deliverables to or at the delivery address, and of any duties or levies other than VAT;
2.1.3 payable in pounds sterling; and
2.1.4 fixed for the duration of the Contract.
2.2 We will be entitled to any discount for prompt payment, bulk purchase or the like normally granted by you in comparable circumstances.
2.3 If we will be reliant on you for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services to benefit fully from the Deliverables ("Follow-on Deliverables") then you will provide those Follow-on Deliverables or procure them to be provided, for at least 36 months following full Performance, at fair and reasonable prices which take no advantage of our dependence on you for their supply.
3.1 Invoices for the Deliverables may be sent to us on, or after, completion of Performance (as defined in section 4.1). Each invoice must quote the number of our order. No sum may be invoiced more than six months late.
3.2 Unless otherwise stated in the order, we will pay the contract price within 30 days of the end of month in which we receive the invoice.
3.3 We will be entitled to set off against the price any money owed to us by you.
4.1 If we order goods, then unless otherwise stated the order is deemed to include the supply of all relevant documentation and certification, and of any commissioning of those goods, necessary to enable the Company to use them for their intended purposes. If we order services then, unless otherwise stated, our order includes the complete performance of those services including any employee instruction, manuals, explanations or certifications necessary to enable the Company to benefit from them for their intended purposes. If we order goods or services then, unless otherwise stated, our order includes any legal rights necessary to use those goods or services for their intended purposes. As for those intended purposes, see section 6.3. References in these Terms to "Performance" are to complete performance of all your contract obligations as described in these Terms.
4.2 The quantity, quality and description of Deliverables will be as specified in our order and these Terms or as agreed by us in writing, subject to which then in full accordance with your representations (see section 6.1).
4.3 You have sole responsibility for complying with all applicable regulations and other legal and regulatory requirements concerning performance of the contract, and for ensuring that we can, in compliance likewise, fully utilise the Deliverables for their intended purposes
4.4 We will be allowed to inspect any contract goods during (and your premises for) manufacture and storage so long as we request an inspection by reasonable notice. If, as a result of the inspection, we are not satisfied that the quality of the goods or the standards of their manufacture, storage or handling conforms with the contract, you will take such steps as are necessary to ensure compliance. If, after that, we are still not satisfied we can cancel the contract without penalty.
4.5 If, before Performance has occurred in the relevant respect, we notify you in writing of any change in desired specification (including as to quality and time frame) you will respond as follows. We appreciate that a change may affect the contract price, or may even be unachievable. If the change would reduce your costs, the contract price will reduce to fairly reflect that saving. If the change would increase your costs you may notify us promptly, in writing, of a proposed revision of the contract price fairly and proportionately reflecting any unavoidable such increased cost: you and we will then use our reasonable efforts to agree the revised terms in full, including as to price, pending which the contract variation will not take effect. If the change would for any reason be unachievable you may notify us of that promptly and in writing, with reasons: again, both parties will then use reasonable efforts to reach a mutually acceptable contract variation. Failing notice under one of the two preceding sentences our proposed change will be deemed to have been accepted, and the contract will be deemed to have been varied with immediate effect to reflect the requested specification change with no price increase. What amounts to "prompt" notice for this purpose will depend on feasibility for you and urgency for us, but not in any case later than 48 hours (excluding hours of days which are Saturdays, Sundays or are recognised bank holidays in England) from our notice of proposed change. In no event, agreed or not, will we be liable to you in respect of any contract variation for more than a reasonable and proportionate reflection of such increased costs as you could not reasonably have been expected to avoid. The contract price will not in any circumstance increase except with our express written agreement under, or referring explicitly to, this sub-section.
4.6 To protect our business, we may need, sometimes urgently, information as to precisely how Deliverables were performed, and as to all relevant activities of any suppliers or sub-contractors of yours. You will meet any reasonable such request as soon as reasonably possible, and will keep records adequate for that purpose for at least two years after completion of Performance. Without limitation, these records must provide full traceability for all goods comprised in, or used in making, any contract goods which are in any respect safety-critical. They must also demonstrate compliance of the contract work with all legal or regulatory requirements and with all contractually binding quality and Performance standards.
4.7 You will comply with any reasonable requirements we may have as regards the packaging and packing of any contract goods, and as to information to be displayed on packaging or included on dispatch documentation and bills of lading. Subject to that, you will ensure that all packaging, packing, labelling and documentation is such as to ensure full compliance with legal requirements throughout the scheduled delivery process.
5 DELIVERY AND RISK
5.1 Any goods will be delivered to, and any services performed at, the address and on the date stated in the order, or else under section 5.2, during usual business hours. If no address is specified, then delivery will be at our usual or main UK premises.
5.2 If we specify the date or delivery address after ordering, we will give you reasonable notice of the details. Failing a date, supply will be as soon as reasonably possible.
5.3 The date of delivery of any goods or rights, and the performance of any services, will be of the essence of this contract.
5.4 A packing note quoting the number of the order must accompany each delivery or consignment of goods and must be displayed prominently.
5.5 Where Deliverables are to be supplied in instalments, the contract is still to be treated as a single contract. If you fail to deliver or perform any instalment we may treat the whole contract as repudiated.
5.6 We may reject any Deliverables which are not fully in accordance with the contract. Acceptance does not occur until we have had a reasonable time to inspect or consider the relevant Deliverables following supply and, in the case of latent defect, a reasonable time after the defect becomes apparent.
5.7 We will not be bound to return to you any packaging or packing material, but if any relevant requirement for packaging recycling applies, you will take materials back free of charge on request.
5.8 If any Deliverables are not supplied on or by the agreed date then, in addition to any other remedies available to us, we will be entitled to deduct 1% of the overall contract price for those Deliverables, for every week's delay.
5.9 Risk of damage to or loss of any goods passes to us on delivery.
5.10 Property and ownership of any goods will pass to us on delivery unless we have paid in whole or in part for the goods in advance. In that case it will pass to us as soon as the goods have (or, if goods are being assembled for us, each successive component of the goods has) been appropriated to the contract.
5.11 If we supply any articles to you, e.g. for modification or copying, they stay our property at all times. Those articles must be kept confidential and secure and we can enter your premises at any time on reasonable notice to ensure that this is so. While those articles are in your custody you must not use them, copy them or disseminate them, electronically or otherwise, except in the performance of our contract. We retain copyright and any other available intellectual property rights in any plans, design drawings, computer programs, compilations of data, specifications or the like which we supply to you. You must indemnify us against any loss caused to us, and account to us for any profit which you make, through breach of this provision.
5.12 If any Performance occurs on our premises this sub-section will apply. You will ensure that best industry standards are adopted for the health and safety both of your personnel and of any other individuals affected by your actions. We may refuse or terminate access to any individual whom we reasonably consider undesirable to have on our premises. Your personnel must, while on our premises, comply with our reasonable requirements as to security, health and safety routines, times and areas of access, and otherwise. You will be responsible to us on a full indemnity basis for all damage and injury caused by your staff.
5.13 If the contract terms refer to terms such as F.O.B and C. & F. which bear defined meanings in the current edition of Incoterms, those defined meanings will apply unless expressly stated otherwise.
5.14 Any goods provided by us to you on a free issue basis will remain our absolute property throughout, and will be at your risk while the goods are, or are supposed to be, in your possession. You are not to part with possession (save to us) unless with our express prior consent.
6 WARRANTIES AND LIABILITY
6.1 You promise that:
6.1.1 the quantity, quality, description and specification for the Deliverables will be those set out in our order, apart from which then of the best standards reasonably to be expected in the market for that kind of Deliverable; and
6.1.2 any goods will be free from defects in materials and workmanship; and
6.1.3 any Deliverables will comply with all statutory requirements and regulations, and with all normally applicable quality standards, relating to their sale or supply; and
6.1.4 all claims made by you about any Deliverables, and all apparently serious claims in your advertising and promotional material, are correct and can be relied upon; and
6.1.5 any services will be performed by appropriately qualified and trained personnel; and
6.1.6 neither the sale and supply of any Deliverable, nor its proper use by us for an intended purpose, will breach any property rights in or about that Deliverable, including intellectual property rights, of any other person.
6.2 All warranties, conditions and other terms implied by statute or common law in our favour will apply to any Deliverables bought from you.
6.3 It is your responsibility to find out from us the purposes that we intend the Deliverables to be put to (including any applicable deadline affecting us). You promise that they will be suitable for those intended purposes, save only for any unsuitability which you have, as soon as might reasonably have been expected of you (and in any case before starting Performance) expressly notified to us.
6.4 You will indemnify us and keep us indemnified immediately upon our written demand against any cost, claim, expense or liability arising from any risk for which you are responsible under this contract.
6.5 If you fail to comply with any obligation under the contract we will be entitled, at our discretion, to reject any Deliverable and you will not be entitled to receive payment for that Deliverable.
6.6 If any contract goods do not comply with all contract requirements we can demand that you repair them or supply replacement goods within seven days or, at our sole discretion, we can reject the goods and demand the repayment of any sum already paid for them.
6.7 We will not be liable to you for any delay or failure to perform any of our obligations under this contract if the delay or failure was due to a cause beyond our reasonable control.
6.8 If any contract goods or rights were bought or obtained by you from a third party then any benefits or indemnities that you hold from that other party, in respect of those items, will be held on trust for us.
6.9 You will insure yourselves, and keep insured until Performance is complete, against all normal insurance risks relevant to your work for or with us, on terms and for amounts consistent with normal business prudence. You will demonstrate to us the terms and currency of any such insurance on request.
7.1 Any rights which you are contracted to supply must be provided to us in accordance with sections 7.2 or 7.3 as applicable.
7.2 This sub-section will apply to the following types of contract right: where the contract expressly identifies particular rights as covered by it; where the rights in question are evidently not unique to our Deliverable (for instance you evidently supply the same thing, in the relevant respect, to others); or if those rights evidently derive from a third party of whom the same would be true (for instance you supply software on what you have told us is a proprietary third party platform). In those cases we are not to expect full ownership of those rights. You will however validly licence those rights to us, or procure them to be validly licensed to us, on the following terms: assignable; royalty-free; covering usage for any likely intended purpose; and free of any obligation on us save such as we expressly agree in the contract or as are the minimum reasonably necessary for the maintenance of the right in question.
7.3 This sub-section will apply to all contract rights to which section 7.2 does not. In that case you will transfer to us, or procure to be transferred to us, with full title guarantee the ownership of those rights to the full extent (including as to territory) that we reasonably need them for our intended purposes, and to the full extent of any wider rights available to you. You will execute any documents and make any declarations reasonably required by us, now or in future, to transfer those rights, you will not exploit those rights save for us or with our written consent, and you will (to the extent not yet legally transferred) hold all such rights on trust for us absolutely for the maximum permitted period of eighty years. We have your irrevocable power of attorney to execute any such documents and make any such declarations on your behalf if you fail to do so promptly on request.
7.4 If you carry out any development work at our request and wholly or primarily at our expense we will own all intellectual property rights generated by that work, and section 7.3 will apply to those rights.
7.5 You will do anything reasonably required by us, during or after Performance, to perfect any transfer or licence of rights to us under this section or to assist us in registering or authenticating (but not at your cost enforcing or defending) those rights.
8.1 If goods have been offered by you as, or if they are, standard or stock items we can, by notice to you, at any time up to delivery cancel our commitment to buy them. Any other commitment of ours to receive and pay for Deliverables may be cancelled by us as follows. We will be bound to reimburse you for all irrecoverable costs incurred, or unavoidably committed, by you up to the point of cancellation. By "costs" is meant for this purpose the direct costs to you of Performance, to an aggregate amount not exceeding 80% of the purchase price for the cancelled commitment. We will be entitled, if we wish it, to the benefit of the part-finished Deliverables in question.
8.2 We may suspend performance of, or cancel, or suspend and then at any subsequent time cancel, the contract without any liability to you if you breach its terms, or if your business fails.
8.3 Your business will be treated for this purpose as having failed if:
8.3.1 you make any voluntary arrangement with your creditors;
8.3.2 (being an individual or firm) you become bankrupt;
8.3.3 (being a company) you become subject to an administration order or go into liquidation;
8.3.4 any third party takes possession of, or enforces rights over, any of your property or assets under any form of security ;
8.3.5 you stop or threaten to stop carrying on business;
8.3.6 you suffer any process equivalent to any of these, in any jurisdiction; or
8.3.7 we reasonably believe that any of the events mentioned above is about to occur and we notify you accordingly.
8.4 Any right of cancellation or suspension under this section is additional to any rights available to us under the law of any relevant jurisdiction.
9.1 You will keep strictly confidential all information which you learn about us or our customers, and use that information only for the performance, in good faith, of your contractual obligations to us. By way of illustration only, you may not use such information to help our competitors, poach our staff or disparage our reputation. This restriction will apply until the fifth anniversary of the contract date, and does not apply to information which was demonstrably public knowledge at the time of usage by you.
9.2 Our relationship is as independent contractors only, not as partners or as principal and agent. The contract is non-assignable by you. It is assignable by us only to a group company, that is a company in the same ultimate beneficial ownership. You may sub-contract or delegate Performance in particular respects but not generally and not as regards your responsibility to us, nor your direct contact with us, in any respect.
9.3 You will procure that none of your associates behaves in a way which, had the behaviour been yours, would have breached the contract. We hold the contract on trust for ourselves and all associates of ours, and the contract is made for the benefit of all of them so that you will be liable for damage caused to our associates as well as ourselves. Our respective associates for this purpose are any parent company or ultimate controlling shareholder and any company owned by either.
9.4 No waiver by us of any breach of contract by you will be considered as a waiver of any subsequent breach of the same or any other provision, or as a release of the provision which you breached. No delay by us in enforcement, and no toleration shown by us, is to imply any waiver or compromise of our rights.
9.5 If any provision of these Terms is held by competent authority to be invalid or unenforceable in whole or in part the validity of the other Terms and of the remainder of the provision in question will not be affected. Every provision is severable from every other.
9.6 Any written notice under these Terms will be deemed to have been sufficiently served if posted by pre-paid official postal service, or if sent by fax then on receipt of successful answerback, or if sent by e-mail (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by that e-mail route).
9.7 The contract will be governed by the law of [England], and you submit to the non-exclusive jurisdiction of the [English] courts.