Terms of Trading
are incorporated in all contracts for the sale of goods
or systems (“goods”) between TECHSOFT UK LIMITED (“the
Company”) and Customers for the goods (‘the Customer”).
1.1 Orders are accepted only on these terms.
1.2 Any variation of these terms in any document or otherwise without the written consent of the Company shall have no effect and, for the avoidance of doubt, any endorsement made on this contract or on any other document passing between the parties shall not be deemed to be a valid variation.
1.3 The clause headings do not form part of the contract.
1.4 Subject to clause 6.8.4 the Company and the Customer acknowledge that they have not entered into this agreement in reliance on any representation or statement made by the Company not expressly set out in this contract and as such the Company and Customer accept that this contract forms the entire agreement between them.
2.1 Delivery is deemed to take place at the Company’s place of business.
2.2 Time shall not be of the essence with regard to delivery.
2.3 Any time quoted is an estimate only and the Company shall not be liable for failure to deliver within the time quoted.
2.4 The Company reserves the right to implement any systems in stages.
2.5 The Company shall not be liable for any non-delivery of goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
2.6 Any liability of the Company for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such goods.
3.1 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
3.2 The Company reserves the right to vary the price of the goods by any reasonable amount attributable to any variation between the date of the contract and the date of delivery of the goods arising from fluctuating rates of exchange or costs of any other nature.
4.1 Time for payment of the price shall be of the essence and in the case of any payment made after credit has been granted to the Customer time shall be of the essence in relation to each payment.
4.2 Where credit is granted to the Customer payment is due 30 days from the date of the invoice unless otherwise agreed in writing.
4.3 Interest will be charged on all overdue accounts at the rate of 2% per calendar month or part thereof and such interest shall continue to be payable after any judgment.
5. SET-OFF AND LIEN
5.1 No payments may be withheld nor may any counterclaims of the Customer be set off against any payment due to the Company without the written consent of the Company.
5.2 The Company shall have a general and particular lien on all money and property of the Customer in possession of the Company or its agents.
5.3 The Customer authorises the Company to sell such goods and to apply the proceeds of sale towards any indebtedness of the Customer to the Company.
6. WARRANTY AND LIABILITY
6.1 The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee it has in respect of goods manufactured by any third party but shall have no liability under such warranty.
6.2 The Customer warrants that it shall only use the goods in accordance with any operations manual or other user guidelines supplied with the goods or made available by the manufacturer and insofar as the Company may suffer any loss howsoever arising as a result of the Customer’s breach of this warranty the Customer hereby indemnifies the Company against any such loss.
6.3 The Customer warrants that the goods shall, at all times, be used by persons properly trained to operate the goods or, where the person operating the goods is not properly trained to do so, that person shall be adequately supervised by a person who is suitably trained and the Customer indemnifies the Company for any loss that it might suffer as a result of the Customer breaching this clause.
6.4 The Customer warrants that it shall take reasonable care of the goods until such time as title in the goods passes to it in accordance with clause 8.1 of this contract.
6.5 The Customer, until such time as title in the goods passes to it in accordance with clause 8.1 of this contract, warrants that the goods are fully insured with a reputable insurance company and that the Company’s interest in the goods are noted on any such policy.
6.6 Under no circumstances shall the liability of the Company in connection with defective goods exceed the net invoice price of such goods.
6.7 Except where the Customer is
dealing as a consumer all warranties, conditions and
other terms implied by statute or common law (save for
the conditions implied by section 12 of the Sale of
Goods Act 1979) are, to the fullest extent permitted by
law, excluded from the Contract.
6.8 Nothing in this contract excludes or limits the liability of the Company:
6.8.1 for death or personal injury caused by the Company’s negligence; or
6.8.2 under section 2(3), Consumer Protection Act 1987; or
6.8.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
6.8.4 for fraud or fraudulent misrepresentation.
6.9 Subject to clause 6.7 and clause 6.8 of this contract:
6.9.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
6.9.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
6.10 In contracts for the supply of computer hardware or software a copy of the Customer’s complete specification for the performance of the same is annexed hereto and if no such specification is annexed the Customer’s requirements shall be conclusively deemed to be fulfilled by the supply by the Company of such items as it shall in its absolute discretion think fit.
6.11 The parties have freely negotiated the contract including the price in the knowledge that the liability of the Company is to be limited in accordance with these terms. The Customer acknowledges that a higher price would be payable but for such limitation.
7. FORCE MAJEURE
The Company shall not be under any liability of any kind for non-performance in whole or in part of its obligations under the contract due to causes beyond the reasonable control of the Company. In any such event the Company may without liability cancel or vary the terms of the contract, including but not limited to extending the time for performing the contract for a period at least equal to the time lost by reason of such causes.
8.1 The Customer may return goods to the Company:
8.1.1 if the Customer is a consumer within seven working days, beginning on the day after the Customer received the goods. The Customer shall be entitled to a full refund of the price of the goods and any applicable delivery charges. The Customer will be responsible for the cost of returning the goods to the Company;
8.1.2 if the Customer is returning the goods where the goods have been sent out in error, the goods have been damaged in transit or the goods become faulty within 28 days of the date on which the Customer receives the goods (“28 Days”). The Customer shall be entitled to a full refund of the price of the goods, a refund of any applicable delivery charges and a refund of the reasonable costs of returning the goods to the Company;
8.1.3 if the Customer is returning goods which do not fall into categories 8.1.1 or 8.1.2 above:
18.104.22.168 if such goods are standard items which are available in the Company’s product guide or on the Company’s website from time to time (“Standard Items”);
22.214.171.124 provided that such Standard Items are returned in their original condition in their original packaging and have not been used; and
126.96.36.199 provided that such goods are returned within 28 Days.
The Customer shall be entitled to a full refund of the price of goods less the cost of any applicable delivery charges. The Customer shall be responsible for the cost of returning the goods to the Company.
8.2 If a Customer is seeking to return goods, within 28 Days, which are not Standard Items which the Company has sourced from a third party supplier on behalf of the Customer, the Customer will not be entitled to return such goods unless the Company has come to an agreement with the third party supplier in relation to the return of such goods. In these circumstances the Customer should contact the Company before returning the goods. If the Company is able to agree terms for the return of goods with the third party supplier the Company will inform the customer of that fact and of the administrative charge or re-stocking fee which will be incurred by the Customer as a consequence of the return (which will be a minimum of 20% of the price of the goods). The Customer shall be responsible for the cost of returning the goods to the Company.
9.1 Title to the goods comprised in each invoice rendered under this contract shall not pass to the Customer until the Company has been paid all sums due to it in respect of the goods and all other sums which are or which become due to the Company from the Customer on any account.
9.2 Until title passes under sub-clause
(a) above then the Customer shall hold the goods as
bailee for the Company and the Customer shall be in a
fiduciary position to the Company in respect of goods
(and in respect of any proceeds of sale also).
9.3 Until title passes under sub-clause (a) hereof, the Company may at any time (regardless of any period of credit given to the Customer) enter onto the premises of the Customer or of its agents or Customer to re-possess all or part of the goods and upon such re-possession on the contract shall terminate in respect of such goods only but without prejudice to any rights of the Company.
10.1 Risk in the goods shall pass to the Customer when the goods are dispatched by the Company
10.2 Until title passes the Customer shall indemnify the Company against all loss or damage to the goods or depreciation in their value.
If any of these terms is unenforceable or void at law, it shall not affect the remainder of them or the contract and it shall be deemed to be excluded from these terms and where possible to be replaced by an enforceable and valid term as near as may be to the original in both form and effect.
12. INDEMNITY BY CUSTOMER
The Customer shall indemnify the Company from any claim expense or liability in respect of any breach by the Customer of any of these terms.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 All intellectual property rights and know-how in any goods, design, document, software, program, invention, technique or information made or compiled in connection with the subject matter of this contract shall belong to the Company and the Customer will respect their confidentiality.
13.2 The Company hereby licences the Customer to lawfully use the software and literature for such period as it retains possession of the disks and ROMs onto which the software has been entered. The Customer shall not copy or attempt to copy the software or literature nor allow any other person to do so and shall indemnify the Company against any loss it may suffer as a result of any breach by the Customer of this clause.
13.3 Insofar as the Company does not own the intellectual property arising out of or in relation to the subject matter of this contract the Company agrees to licence, insofar as it is authorised to do so by the owner of the intellectual property rights involved, to the Customer those intellectual property rights for use solely in connection with the goods and the Customer hereby agrees to indemnify the Company against any loss the Company may suffer as a result of it granting any such licence to the Customer or the breach by the customer thereof including but not limited to loss of profit, loss of business and any damages or costs ordered or agreed to be paid to any party in connection with the licence and whether arising indirectly, consequentially or otherwise.
14. TERMINATION BY COMPANY
If the Customer fails to comply with any term of the contract; or commits any act of bankruptcy, makes an arrangement with creditors or suffers any distress or execution; or is ordered to be wound up or has a receiver or administrator appointed or has a resolution or petition to wind up its business past or present then the Company shall have the right (without prejudice or any other rights or remedies) to cancel any contract or part to withhold delivery of goods and demand payment of all sums due by the Customer to the Company.
15. THIRD PARTY FINANCE
15.1 Where the goods are to be purchased or funded by a third party for the use of the Customer, the Customer shall nevertheless be liable for the full amount of the purchase price unless and until the price has been fully paid by the third party.
15.2 The Customer warrants that any third party financier has been put on notice of and shown a copy of this terms of trading and the Customer indemnifies the Company for any loss it may suffer as a result of a third party financier not being put on notice of the applicability these terms.
Where the Company contracts to install or commission goods the Customer shall provide all necessary power connections and staff and other facilities and a suitable environment and if installation is delayed due to non-availability or inadequacy of any of these the Company shall be entitled to charge extra accordingly.
17.1 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.2 The formation, existence, construction, performance, validity and all aspects of this contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.