1.1 IN these Conditions:
”the Firm” means Premier 1983 Limited trading as Form IT Solutions or any Associated Firm or Company
”the Contract” means the Contract between the Firm and the Customer for the sale or supply of Equipment
"the Customer” means the person firm or company wish whom the Contract is made by the Firm
”the Equipment” means any equipment, machinery, parts, spares, software and any other goods sold or supplied by the Firm
”the Warranty Period” means
(i) in the case of hardware a period of twelve months from the date a delivery of the balance of any warranty period provided to the
Firm by the manufacturer if greater or
(ii) in any other case a period of ninety days from the date of delivery
1.2 THESE Conditions apply to all Contracts of the Firm to sell or supply Equipment and shall prevail over any terms put forward by the Customer unless the Firm expressly agrees to them in writing. No conduct by the Firm shall be deemed to constitute acceptance of any terms put forward by the Customer and no concession made or latitude allowed by the Firm to the Customer shall affect the strict rights of the Firm under the Contract.
1.3 THESE Conditions may only be varied with the express written agreement of the Firm.
2.1 UNLESS otherwise specified prices payable for the Equipment are exclusive of carriage and are subject to the Firm's right to require payment of delivery
charges, insurances costs, customs duties, special handling charges and/or packaging charges as appropriate.
2.2 THE Firm shall have the right at anytime to revise prices to take into account increases in costs including (without limitation) costs of agreed changes in any taxes duties, levies or exchange rates or costs arising as a result of site conditions, delays, interruptions, lack of information and any other factor beyond the Firms control.
3. ORDERS AND DELIVERY
3.1 NO order shall be accepted by the Firm unless first confirmed by the Customer in writing or by facsimile.
3.2 THE Customer shall state on placing an order if he requires the Firm to arrange carriage and if so the delivery address. If the Customer so requests the Firm shall be entitled to make any contract of carriage and/or insurance and behalf of the Customer as the Firm considers necessary and will be under no obligation to notify the Customer there of. The Customer will be responsible for complying with all conditions and requirements of the carriers. Unless otherwise agreed by the Firm delivery of the Equipment will be ex-works.
3.3 ALL times or dates given for delivery of the Equipment are only estimates given in good faith and are not conditions, warranties or innominate terms (or terms otherwise howsoever), of this or another (whether collateral or otherwise) contract.
3.4 THE Firm shall give the Customer notice when the Equipment is ready for delivery. If the Customer refuses or fails to arrange collection or take delivery (as the case maybe) of Equipment ordered within seven days of service of that notice then (a) the Customer will bear the risk of any loss or damage to the Equipment after expiry of that time (b). the Firm shall be entitled to immediate payment in full for the Equipment which is the subject of the order and (c) the Customer shall in addition to the invoice price pay all costs of storage and any additional costs incurred as a result of such refusal or failure. The Firm shall not be liable to the Costumer for any loss or damage to the Equipment caused by their storage.
3.5 THE Firm may make and the Customer shall accept partial deliveries of Equipment ordered. Each delivery shall be considered to be the subject of a separate Contract and failure by the Firm to make any one or more deliveries in accordance with the Contract or any claim by the Customer in respect of any one or more deliveries shall not entitle the Customer to treat the Contract as a whole repudiated.
4.1 THE Customer will accept the Equipment even if it is delivered late and late delivery will not entitle the Customer to terminate the Contract.
4.2 THE Customer shall inspect the Equipment as soon after delivery as is reasonably practicable and in any event within 3 working days after delivery which period the Customer agrees is a reasonable period given the nature of the Equipment supplied by the Firm.
4.3 THE Customer will notify the Firm in writing of any shortage of supply, deficiency, or damage to or fault with the Equipment within 3 working days of delivery. If the Customer fails to comply with this clause the Firm shall not be liable to the Customer in respect of any shortage discrepancy, damage or fault, or in respect of any consequential losses or expenses arising there from.
4.4 THE Customer here by agrees that the retention of the Equipment with out written complaint to the Firm within 3 working days of delivery constitutes for all purposes an intimation by the Customer that the Equipment has been unconditionally accepted, and that given the nature of the Equipment supplied by the Firm, 3 working days constitutes a reasonable period within which the Equipment should be rejected.
4.5 EACH of the preceding sub-clauses of this clause is entirely without prejudice to the provisions of clause 9 here of.
FROM the time the Equipment leaves the Firms premises whether this be by way of collection by the Customer or receipt by carriers (as the case maybe) the risk in the Equipment shall pass to the Customer who shall be solely responsible for the custody and maintenance thereof.
6.1 IF credit terms have been agreed in writing by the Firm payment shall be made in full without any deduction or set-off within thirty days of the date of the invoice unless otherwise agreed in writing by the Firm. In any event, the Firm reserves the right to withdraw credit facilities at anytime. If the trading relationship between the Customer and the Firm is terminated for whatever reason then all sums due by the Customer become payable
6.2 IF credit terms have not been agreed by the Firm then payment shall be made in full without any deduction or set-off at the time of placing the order far the Equipment.
6.3 IF the Customer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (IF the Customer is a limited company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver or administrator of the whole or any part of such company's under taking property or assets shall be appointed then if delivery of the Equipment has been effected the invoice shall immediately become due and payable by the Customer; if delivery has not been so effected then the Firm may at its option cancel the contract or cancel or suspend delivery.
6.4 NOTWITHSTANDING any of the terms and conditions here of the time of payment shall be of the essence of the Contract.
6.5 INTEREST shall be payable on overdue accounts at the rate of two per cent per month or part there of on the amount for the time being outstanding from the due date of payment there of until receipt by the Firm whether before or after judgement.
6.6 IF any cheque presented in payment of an invoice by the Customer shall be returned unpaid by the Customers bank or if any agreed standing order or direct debit arrangement shall fail to operate then the Customer shalt in addition to all other sums payable under the Contract pay to the Firm the sum of £20 for each such event or such greater sum as shall represent the cost incurred by the Firm by reason of such dishonour or failure as afore said.
6.7 IF at anytime whatsoever it is the Customer’s intention to assign its debts to an associated company of the Customer or to a Third Party, the Customer shall notify the Firm without delay.
6.8 IF credit terms have been agreed by the Firm, the Customer and its directors undertake to notify the Firm, as soon as practicable after such agreement, of the existence and identity of any associated companies under common ownership with the Customer. This obligation is a continuing obligation such that,if at anytime after credit has been granted, any other company comes into common ownership with the Customer,the same must be notified,as soon as is practicable, to the Firm. It is agreed that the requirements under this sub-clause are of the essence of the agreement to provide credit and of another contract made under or pursuant to that Agreement between the Firm and the Customer.
6.9 ANY costs and/or expenses incurred by the Firm in recovering funds from,or otherwise enforcing any of its rights against,the Customer, whether within or outside the United Kingdom, shall be fully reimbursed to the Firm by the Customer; and the Customer agrees fully to indemnify the Firm in respect of any such costs or expenses.
6.10 IF credit terms have been agreed by the Firm, the Customer undertakes to notify the Firm of any material or potentially material change in its finances and/or structure and/or position generally Such notifiable events include but are not limited to:
(1) any change in the information supplied by the Customer to the Firm for the purposes of and/or in relation to obtaining credit; and
(2) any change in the ownership of the shares in the Customer and any change in the number of such shares;
(3) any change in the ownership of the shares in any company which has been, at anytime after the granting of credit, under common ownership with the Customer;
(4) any material change in the nature and/or value of the Customer’s assets, whether as a result of disposal, acquisition, the grant or crystallization of any security, or otherwise howsoever. It is agreed that the requirements under this sub-clause are of the essence of the agreement to provide credit and of another contract made under or pursuant to that agreement between the Firm and the Customer.
7. RETENTION OF TITLE
7.1 THE Equipment shall remain the property of the Firm until payment is made in full for all sums due under all Contracts between the Firm and the
7.2 The Customer shall hold all Equipment property in which remains in the Firm as bailee (and for the avoidance of doubt, fiduciary) for the Firm, shall store the same in such a way that it can be identified as the Firm’s property and shall keep it separate from the Customer’s own property and the property of another person.
7.3 At anytime whatsoever the Firm shall be entitled to recover Equipment property in which remains in the Firm and for that purpose the Customer hereby grants to the Firm,its agents and employees an irrevocable licence to enter any premises where such Equipment is stored in order to repossess the same.
7.4 If in the normal course of business the Customer shall sell Equipment the property in which remains (prior to such sale) in the Firm:
7.4.1 the Customer shall hold on trust for the Firm absolutely all the benefit of and/or rights arising under any such contract of sale;
7.4.2 the Customer shall hold on trust for the Firm absolutely all proceeds of any such contract of sale and shall pay the same into a separate identified bank account ("the trust account”) (which shall at no time have paid into it monies other than monies held on trust for the Firm and shall at no time be overdrawn) as trustee for the Firm.
7.5 If, as a result of or of the exercise of its rights under 7.4.1 and/or 7.4.2 above, the Firm receives any monies, the same will not in whole or in part discharge:
(1) any of the Customer’s liability to pay the purchase price under this or another contract between the Firm and the Customer; or
(2) any other debts owed by the Customer to the Firm.
But if as a result of payment by the Customer of all or part of the monies owed by it to the Firm under this or any other contract together with receipt by the Firm of monies as a result of or of the exercise of its rights under 7.4.1 and/or 7.4.2 above, the Firm receives in total monies exceeding in amount the Customer’s contractual debts to it, the Firm shall pay to the Customers sum equivalent to such excess.
7.6 The Customer’s rights to use the Equipment are automatically revoked on the appointment of an administrative receiver to the Customer
8. SPECIFICATION AND PERFORMANCE
8.1 ALL drawings specification and technical documents issued by the Firm at anytime in relation to the Contract are issued solely for the Customer’s use in connection with the Equipment and shall not be copied reproduced or communicated to any third party without the Firm’s express written agreement.
8.2 THE Firm reserves the right to alter or depart from any specification or design of any Equipment sold provided that such alteration or departure shall not to a material extent adversely affect the performance of the Equipment or the quality of the workmanship or the materials used.
8.3 UNLESS otherwise expressly agreed in writing any performance figures quoted or referred to in any specification or other document are estimates only based on assumed conditions in a well managed office with experienced adequate and efficient operatives and appropriate services and proper use of satisfactory material.
9.1 THE Firm will make good by repair or exchange (at its option) such of the Equipment or part there of which is shown to its reasonable satisfaction to have proved defective in materials or workmanship during the Warranty Period on the, following items:
9.1.1 any defect in or failure of the Equipment must be notified to the Firm in writing as soon as practicable and in any event no later then 3 working days after discovery.
9.1.2 the Equipment must be unmodified have been properly used under normal working conditions and have been properly stored installed and maintained.
9.1.3 before returning the Equipment or any part there of the Customer must obtain a return authorisation number from the Firm and details of the Firm’s returns procedure which must be fully complied with.
9.1.4 the Equipment or part to be returned must be delivered to the Firm’s premises in its original packaging together with supporting documentation showing full description of the alleged fault and quoting the relevant returns number. In the event that the Customer fails to comply with this requirement then the Firm will be entitled to charge a 15% minimum handling fee upon authorised return of the Equipment.
9.1.5 all delivery charges for carriage to and from the Firm’s premises must be paid by the Customer.
9.1.6 where parts only are returned the Firm shall not be responsible for installing any such part after repair or exchange.
9.1.7 the Firm may elect to carry out any repairs at the premises of the Customer and if so electing then the Customer shall provide the Firm’s employees or agents with free access to the place of installation and free access to any service or facilities that maybe required to repair the Equipment.
9.1.8 It so elects the Firm may require the Customer to return the Equipment or part direct tot he manufacturer for repair or exchange in which case such repair or exchange on the part of the manufacturer shall satisfy the Firms obligations under this clause 9
9.1.9 the foregoing warranty shall only apply to any replacement Equipment or parts there of supplied by the Firm under this warranty for the balance of the warranty period applicable to the Equipment sold.
9.2 THE Firm gives no undertaking that the Equipment is fit for any particular purpose (including any purpose for which such equipment is commonly supplied) or is of any particular quality in respect of its appearance, finish, safety, durability or freedom from defects or otherwise. The Customer, having greater knowledge of his own requirements, relies entirely on his own skill and judgement in evaluating whether the equipment is in every respect of satisfactory quality.
9.3 SUBJECT to the foregoing all conditions, terms and representations, express or implied by statute, common law, custom or usage in relation to the Equipment are hereby excluded and the Firm shall be under no liability to the Customer for any loss, damage or injury, direct or indirect, resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Firm, its employees or agents.
9.4 IN no event shall the Firm be under any liability whatsoever and howsoever arising for any Loss of use or loss of profits, interruption of business or any other indirect special or consequential loss of any type arising or alleged to have arisen out of any act or default, whether negligent or otherwise, of the Firm in respect of the Firm’s obligations under the Contract.
9.5 IF the Customer deals as a consumer as defined in S.12 of the Unfair Contracts Terms Act 1977 the above provisions shall not apply and the Customer’s statutory rights under the Sale of Goods Act will be unaffected.
9.6 THE Firm does not exclude liability for death or personal injury to the extent that it is caused by the negligence of the Firm its employees or agents nor for breach of any of the undertakings as to title implied into the Contract by S.12 of the Sale of Goods Act 1979.
9.7 The Firm gives no express warranty in relation to the Product’s Year 2000 compliance and cannot accept any liability In relation to any Losses, costs or expenses which arise through any difficulty caused over date changes.
10. PROGRAM LICENCES
10.1 The Customer acknowledges that all copyright and other rights in any programs old by the Firm remain the property of the Licensors or Suppliers of the program and that neither the Customer nor any Third Party to whom the Customer supplies or transfers the program has any rights there in except as expressly licensed by the Licensed or supplier of the program.
10.2 The Customer may not except as expressly licensed by the Licensor or Supplier of the program:
i. reproduce or translate any program or part of a program
ii. sell, rent, lease or otherwise part with possession or control of a program to another party.
10.3 The Customer agrees to ensure that all programs supplied by the Firm are used by any Third Party to whom the Customer transfers the program only as expressly licensed by the Licensor Supplier of the program.
10.4 Upon any supply or transfer of the program by the Customer to any Third Party the Customer agrees to transfer to the Third Party clauses 10.1 to 10.3 of these conditions and thereby bind the Third Party to the same.
THE Firm shall incur no liability to the Customer for misrepresentation by virtue of any statement made by or on behalf of the Firm prior to the Contract whether orally or in any letter document or sales literature and the Customer shall not be entitled to rescind the Contract on the grounds of any such misrepresentation.
THE Firm shall be under no obligation to accept return of any Equipment other than as provided in Clause 9. If not with standing the Firm shall in any particular case agree to accept return of Equipment which is not defective then it shall only do so on terms that: (a) the Customer shall pay a sum in respect of the costs so incurred by the Firm equal to twenty five per cent of the full invoice price subject to a minimum charge of £30, (b) the Customer shall obtain a returns authorisation number from the Firm and comply with the Firm’s returns procedure and (c) the Equipment must be delivered to the Firm’s premises in its original packaging.
13. TELECOMMUNICATIONS EQUIPMENT
13.1 WHEN the Equipment supplied by the Firm is to be used in conjunction with British Telecom lines or apparatus then the following additional condition shall apply:
13.1.1 British Telecom shall have the right to require modifications to be carried out to Equipment which is already installed and in use. Any modifications required will be carried out at the Customer’s expense.
13.1.2 in no event shall the Firm be liable for damages, loss or injury to British Telecom equipment or personnel in connection with or arising out of the Customer's act or neglect.
14. FORCE MAJEURE
THE Firm shall not be liable for any delay or failure in performance of its obligations under the Contract which is due to or results from any circumstances beyond its reasonable control including but not limited to delays or defaults of suppliers, or the defaults of any subcontractor war, strike, lock-out, trade dispute, flood, accident to plant or machinery, shortage of materials or labour. In any such event the Firm shall been titled to delay or cancel delivery of the Equipment. If due to any such event the Firm has insufficient stocks to meet all its commitments the Firm may apportion available stocks between its Customers at its sole discretion.
NO Contractor order maybe cancelled without the Firm’s written consent. In the event that cancellation is agreed for whatever reason the Customer shall indemnify the Firm against all costs, claims, loss and expense occasioned there by including any consequential loss and loss of profits.
16.1 If under this Contract the Goods are to be exported out of England and/or Wales by the Firm to the Customer or its order, the following shall apply:
16.1.1 Clause 9.1(and all sub-clauses of clause 9.1) here of shall not apply. The Goods are sold with the manufacturer’s warranty (if any is provided) only. Subject to its absolute discretion as to how to do so the Firm will use its best endeavours, if requested to do so by the Customer, to ensure that the Customer’s rights against the manufacturer under any such warranty are satisfied.
16.2 It is a condition of this Contract that the Customer enters this Contract as principal and not as agent for any other person or party The Customer by ntering this Contract agrees and represents that it does so as principal and not as an agent.
16.3 If as a result of any non-payment or any other breach of this Contract by the Customer the Firm takes any steps, action or proceedings howsoever to btain payment or to enforce its rights hereunder, the Customer shall be obliged fully to indemnify the Firm in respect of any costs (which if roceedings are issued, shall be paid by the Customer on the indemnity basis) or expenses or liabilities there by suffered or incurred by the Firm.
17.1 IF at anytime one or more of the above Conditions becomes in whole or in part void, invalid or unenforceable then the remainder of these Conditions shall nevertheless remain valid and enforceable.
17.2 ALL notices hereunder shall be in writing and shall be given by hand or sent by prepaid first class post or facsimile to the party concerned at its last known address. Notices sent by first class post shall be deemed (In the absence of earlier receipt) to have been delivered forty-eight hours after despatch and notices sent by facsimile shall be deemed to have been delivered on the first working day following the date of their despatch.
17.3 THE construction, performance and validity of the Contract and of these Conditions shall in all respects be governed by the laws of England and the parties to this Contract hereby submit to the exclusive jurisdiction of the Courts of England and Wales.
17.4 ASSOCIATED Firm or Company shall mean FORM IT SOLUTIONS or any subsidiary thereof(unless otherwise expressly defined) and 'subsidiary’ having the meaning as defined by section 736 of the Companies Act 1985:
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