Terms and Conditions
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BACTA LOGICAL LIMITED (THE “COMPANY”)
CONDITIONS OF SUPPLY
1.2 In these Conditions, except where the context otherwise requires:
1.2.1 a reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
1.2.2 a reference to writing or written includes e-mail;
1.2.3 headings shall not affect the interpretation of these Conditions;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words receding those terms;
1.2.5 a person includes a natural person, corporate or unincorporated body;
1.2.6 unless the context otherwise requires, words in the singular shall include the plural and vice versa; and
1.2.7 any obligation in these Conditions on a person not to do something includes an obligation not to agree or allow that thing to be done.
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2 2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion any terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer’s order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer’s order is accepted when the Company issues a written order confirmation, at which point the Contract comes into existence. An order placed by the Customer with any of the Company’s salesmen or other employees or representatives is subject to written acceptance by the Company.
2.2 The Contract constitutes the entire agreement between the parties, with the exception of any agreement entered into in writing by the parties and signed by a director of the Company (a “Separate Agreement”). In the event of any conflict between the terms of a Separate Agreement and these Conditions, the terms of the Separate Agreement prevail. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract and waives any claim for breach of any such statement, promise, representation, assurance or warranty.
2.3 Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures (online or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have contractual force. The Company reserves the right to make alterations to the Goods and to supply the altered Goods in performance of the Contract.
2.4 The Company’s quotation is not an offer. A quotation is valid for the duration of time stated on the quotation or a period of 30 days from its date of issue, whichever is sooner. Where goods are quoted for supply from stock they are quoted subject to being unsold when the Customer’s order is accepted.
3.1 Delivery of the Goods is made by the Customer collecting the Goods at the Company’s premises following notification from the Company that the Goods are ready for collection or, if another place for delivery is agreed by the Company, by the Company delivering the Goods to that place (“Delivery Location”).
3.2 Delivery of the Goods is completed: in the case of the Customer collecting the Goods from the Company’s premises, on the completion of loading of the Goods; or, on the Goods’ arrival at the Delivery Location. Loading and/or unloading of Goods is at the Customer’s risk.
3.3 Any time quoted by the Company for delivery of the Goods and/or performance of the Services is an estimate and time is not of the essence. The Company is not be liable for any failure to meet any such estimate, nor for any loss resulting directly or indirectly therefrom. The Company reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.
3.4 The Company may deliver the Goods by instalments and may invoice for each instalment separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment does not entitle the Customer to cancel any other instalment.
3.5 Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 5 per cent more or less than the quantity ordered, and the Company may charge for the quantity of Goods delivered.
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3.6 If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies):
3.6.1 store the Goods (on its own or any third party’s premises) and charge the Customer for its reasonable costs (including without limitation costs of storage, carriage and insurance); and/or
3.6.2 sell the Goods at any time and, after deducting all costs and expenses, account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
3.7 Short or Non-delivery:
3.7.1 notification of short delivery or damage in transit must be made in writing to the Company within 2 days of the receipt of the Goods;
3.7.2 notification of non-delivery must be made in writing to the Company within 2 days after the date of the Company’s invoice;
3.7.3 the Company shall at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery, short delivery or damage notified and save as provided in this Condition
3.7.3 is not liable for any non-delivery, short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. The Company is not liable to the Customer in connection with any damage or loss in transit where delivery takes place at the Company’s premises.
4.1 Following acceptance by the Company of the Customer’s order, no cancellation, variation or suspension may be made by the Customer other than with the prior written consent of a director of the Company.
5 SUITABILITY 5.1 You covenant that:
5.1.1 where the Customer uses the Goods, they will be properly used and maintained in accordance with any instructions, directions or other guidance (oral or written) from the Company and / or the manufacturer of the Goods;
5.1.2 you are solely responsible for compliance with all laws and regulations applying to the use of the Goods;
5.1.3 you are responsible for testing the Goods for their fitness and appropriateness for your intended use, process and / or purpose;
5.1.4 where you require Goods from a quality assured source or certificates of conformity, you must specify your requirements in writing at the time of placing the order and have those requirements accepted in writing by the Company;
5.1.5 you will store the goods in accordance with the manufacturers’ storage recommendations, or, where provided, guidance from the Company; and
5.1.6 you and your affiliates, employees, agents, assigns and customers are familiar with and properly trained in the use of the Goods, and are supplied with any instructions, directions or other guidance
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6 PRICE AND PAYMENT
6.1 The Company may invoice the Customer for the price of the Goods and/or Services on or after the Company has notified the Customer that the Goods are ready for collection, available for dispatch, the Company has delivered the Goods or the Company has completed the Services.
6.2 All prices are exclusive of delivery and VAT, which shall be charged where appropriate at the prevailing rate.
6.3 The Customer shall make payment in full: immediately on acceptance of an order by the Company, if the Customer doesn’t have an agreed credit account with the company; or within the time period stated on the invoice if the Company provides you with a credit account, notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer. Interest at the annual rate of 4% over the base rate of HSBC Plc will be charged on a daily basis on the due date on all monies outstanding after the due date until the actual date of payment.
6.4 Where payment is agreed to be made by instalments, any delay or default by the Customer in making payment in respect of any one instalment renders all the remaining instalments due, and interest will be charged in accordance with Condition
6.3 until the date of actual payment.
6.5 The Company may allocate any payment made by the Customer to any of the Goods (or the goods supplied under any other contract between the Company and the Customer) as the Company thinks fit.
6.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7 RISK AND TITLE
7.1 The risk in the Goods passes to the Customer on completion of delivery. Title to the Goods does not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
7.1.1 the Goods and/or Services; and
7.1.2 any other goods or services that the Company has supplied to the Customer.
7.2 Until title in the Goods has passed to the Customer, the Customer:
7.2.1 holds the Goods on a fiduciary basis as the Company’s bailee;
7.2.2 must store the Goods so that they remain readily identifiable as the Company’s property;
7.2.3 must not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.2.4 must maintain the Goods in satisfactory condition, stored in accordance with the manufacturers storage conditions and keep them insured for their full price from the date of delivery;
7.2.5 must notify the Company immediately if it becomes subject to an insolvency event; and
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7.2.6 may resell or use the Goods in the ordinary course of business save that the Company is entitled to revoke the Customer’s power to deal with the Goods and it automatically ceases if the Customer commits or is subject to any Act of Insolvency.
7.3 Upon termination of the Customer’s power to deal with the Goods, the Customer must place the Goods at the disposal of the Company and the Company and its agents are irrevocably authorised without the need for consent to enter any premises for the purpose of removing the Goods.
7.4 The Company, may in the event of recovery of Goods pursuant to condition 7.3, charge the Customer in respect of the Company’s re-stocking charges and any damaged Goods.
8 TERMINATION AND SUSPENSION
8.1 Without prejudice to any rights and remedies available to it, the Company is entitled on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to the Company becomes immediately due and payable) if:
8.1.1 any sum owing to the Company from the Customer is unpaid after the due date for payment (in which event the Company has a general lien for such sum on all and any property of the Customer in its possession);
8.1.2 the Customer commits or is subject to any Act of Insolvency;
8.1.3 the Customer commits any breach of any contract (including the Contract) with the Company.
8.2 In the event of a suspension of performance the Company is entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
9 WARRANTY AND LIMITATION OF LIABILITY
9.1 The Customer, its agent or assign must, following receipt of the Goods, examine such Goods and satisfy itself that they meet its requirements. To be valid, any claim for defective Goods must be made by the Customer to the Company within 2 days (“Investigation Period”) of the date the Goods were delivered, and such defect must not have been caused while the Goods were in transport from the Company’s warehouse or while in storage by or on behalf of the Customer. If the Customer has not notified the Company that it has rejected any Goods as defective by the end of the Investigation Period, then it is deemed to have accepted the Goods.
9.2 The Company will, when the price quoted includes delivery, repair or replace free of charge Goods damaged in transit provided that the Company and its designated carriers receive written notification of such damage within 2 days of delivery. Goods received in a damaged or unsatisfactory condition must be signed for as such.
9.3 Unless the Company species otherwise in its quotation, the Company will not be liable for any defect in quality of any of the Goods, and the obligations of the Company in such respect will be restricted to applying its reasonable endeavours to:
9.3.1 transfer to the Customer the benefit of any warranty or guarantee received by the Company in respect of the Goods; or
9.3.2 make and pursue any available claim under the terms of any warranty or guarantee as mentioned in clause 9.3.1; and
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9.3.3 in the event of a claim being made, the Company will promptly account to the Customer (to the extent of the buyer’s claim and subject to the deduction of an amount equal to the Company’s reasonable costs incurred in making and pursuing such claim) for any proceeds resulting to the Company, which may be limited to a repair, replacement or credit for the defective parts returned by the Customer.
9.4 The Company is under no liability in respect of any defect or breach of warranty: 9.4.1 until any monies due from the Customer under the Contract have been paid in full; and/or
9.4.2 unless notice is given to the Company within 2 days of when the Customer was or ought reasonably to have been aware of any alleged defect and/or breach of warranty.
9.5 Any claim by the Customer should be submitted in a format approved in writing by the Company and any Goods alleged to be defective or in breach of the warranty must be promptly made available to the Company for inspection and, if so required by the Company, are returned to the Company’s works for inspection. The Company reserves the right to request photographic evidence to support any defect claim.
9.6 The Company makes no representation or warranty about the Goods fitness for a particular purpose and it is the responsibility of the Customer to carry out their own tests.
9.7 Any changes to the stated specification (e.g. concentration levels of chemical) of the Goods by the Customer, will negate all product warranties and liabilities of the Company.
9.8 Nothing in these Conditions limits or excludes the Company’s liability for:
9.8.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.8.2 fraud or fraudulent misrepresentation;
9.8.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.8.4 defective products under the Consumer Protection Act 1987; or
9.8.5 any matter where it would be unlawful for the Company to exclude or restrict its liability.
9.9 Subject to condition
9.8: 9.9.1 the Company is not liable to the Customer in any circumstance for any damaged caused by Goods that were not used, stored or maintained in accordance with the instructions given, or made available, by the Company or the manufacturer of the Goods, whether in contract, tort (including negligence) or restitution, breach of statutory duty, misrepresentation or otherwise;
9.9.2 the Company is not liable to the Customer in any circumstances, whether in contract, tort (including negligence) or restitution, breach of statutory duty, misrepresentation or otherwise, for any loss of profit, goodwill, business, business opportunity, anticipated saving or any indirect or consequential loss; and
9.9.3 the Company’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence) or restitution, breach of statutory duty, misrepresentation or otherwise, shall not exceed the Contract price.
10.1 Customers who distribute the Goods agree:
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10.1.1 To only sell the Goods in the country that the Goods were delivered to by the Company or collected in by the Customer.
10.1.2 Not to sell the Goods outside of the country described in paragraph
10.1.3 Not to sell the Goods to customers of other distributors of the Goods.
10.1.4 That the Company has the right to approve or disapprove any sub-distributors proposed by the Customer relating to the sale of Goods.
10.2 Customers who distribute the Goods agree to do the following:
10.2.1 Comply with applicable laws and regulations relating to sale, storage, handling, and delivery of the Goods.
10.2.2 Not deal or be interested either directly or indirectly in the manufacture, sale, promotion, marketing or importation into the Territory of any goods, which compete with the Goods in any way.
10.2.3 Arrange and pay for all transportation, duties and taxes relating to sending the Goods outside of the United Kingdom unless arranged and paid for by the Customer’s customers.
10.2.4 Use the Goods as directed by the Company and not make changes to the Goods except where the Company has given its consent.
10.2.5 Actively and continuously promote the sale of the Goods.
10.2.6 Support the on-going account management of the Customer’s customers’ networks, including the training of the Customer’s customers in the use, installation, aftercare and removal of the Goods.
10.2.7 Submit information to the Company on sales volumes, with a penetration rate from the Customer’s customers where available, on a monthly basis or on request.
10.2.8 Honour all warranties/guarantees supplied with and representations made in respect of the Goods to the Customer’s customers and end users under the contractual terms and conditions provided by the Customer to the Customer’s customers and end users.
10.2.9 Ensure that all its employees and agents that are actively engaged with the Goods are fully conversant with the Company’s sales processes and use of the Company’s documentation, training manuals and trading and management practices, where provided.
10.2.10 Support the physical training of all appropriate employees and agents in the provision of Goods training, including those engaged by or on behalf of the Customer’s customers.
11 HEALTH AND SAFETY
11.1 For the purposes of Section 6(8) of the Health and Safety at Work etc. Act 1974 the Customer undertakes to comply with all instructions relating to the Goods made available by the manufacturer of the Goods or by the Company from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used and maintained by a person at work.
11.2 The Customer will ensure that all users of the Goods are trained in the use of and provided with the appropriate personal protective equipment when using the goods and that they users do not allow the Goods to adversely impact any bystanders.
12 INTELLECTUAL PROPERTY RIGHTS
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12.1 If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods and/or their use or resale the Customer must notify the Company in writing and the Company must be given full control of any proceedings or negotiations in connection with any such claim. The Customer must give the Company all reasonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer must not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which must not be unreasonably withheld). The Customer must do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
12.2 The Company retains for itself all proprietary rights in all designs, engineering details and other data pertaining to the Goods and to all inventions, patent rights and design rights arising out of work done in connection with the Contract and to any products developed as a result.
13 EXPORT TERMS
13.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 13 shall apply.
13.2 Any term or expression which is defined in the provisions of Incoterms 2000 (or any subsequent revision thereof) imports the respective obligations of Buyer and Seller into these Conditions, but in the event of conflict these Conditions prevail.
13.3 Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.
13.5 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in the UK acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of HSBC Plc in England as may be specified in the bill of exchange. 14 DATA PROTECTION INFORMATION
14.1 The Company may make a search with a credit reference agency, which will keep a record of that search and will share that information with other businesses. The Company may also make enquires about the principal directors of the Customer with a credit reference agency.
14.2 The Company may monitor and record information relating to the Customer’s trade performance.
15.1 Assignment and other dealings
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The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
15.2 Notices Any notice required to be given in writing under the Contract shall be given, where possible, by email and otherwise by prepaid signed for or tracked post or courier service addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing by the receiving party, and shall be deemed to have been received, in the case of a email, on the date transmitted and, in other cases, when delivered.
15.4 If any provision of this Contract becomes invalid, illegal or unenforceable, it is deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision is deemed deleted. Any modification to or deletion of a provision or part-provision under this clause does not affect the validity and enforceability of the rest of this Contract.
15.5 Waiver A waiver of a deemed right or remedy under the Contract or law is only effective if given in writing and is not deemed a waiver of any subsequent breach or default. No failure or delay on the part of the Company to exercise any of its rights under the Contract operate as a waiver of nor shall any waiver by the Company of any breach by the Customer of any of its obligations under the Contract affect the rights of the Company in the event of any further or continuing breach.
15.6 Third Party Rights A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Force Majeure Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by an event beyond that party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable. This Condition will not restrict the liability of the Customer to make any payments due under the Contract.
15.8 Variation Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.
15.9 No Partnership, Joint Venture or Agency Neither the Conditions nor the Contract shall create or evidence, or be deemed to create or evidence, any joint venture, agency or partnership between (i) the Company, and (ii) the Customer or any third party.
15.10 Licences and Consents It is the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties) are duly complied with. It is a condition precedent to the performance by the Company of its obligations under the Contract that all
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necessary licences, permits and consents shall have been obtained by the Customer. Without prejudice to the generality of Condition 13.2 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the Contract.
15.11 Choice of Law and Jurisdiction The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English Law. Each party irrevocably submits to the exclusive jurisdiction of the English Courts.