Standard Terms and Conditions of Sale (“Conditions”)
1. GENERAL
1.1
In these Conditions, the following words and expressions shall have the following meanings:-
Word/Expression Meaning
“the Buyer” the person, firm, company, or other organisation who or which has agreed to purchase Goods and/or Services from the Company
“the Company” Palm Internet Services
“a Contract” a contract for the sale and purchase of Goods and/or Services between the Company and the Buyer[“Capital Equipment” all items manufactured or supplied by the Company which are of a capital nature including without limitation, instruments, computers, printers, and non-expendable accessories/spare parts ]
“[Consumables]” all items manufactured or supplied by the Company other than the Capital Equipment
“Goods” any [Consumables or Capital Equipment] agreed to be supplied to the Buyer by the Company
“Services” all services agreed to be performed by the Company
1.2
These Conditions shall govern each Contract to the exclusion of any conditions of the Buyer (including any terms or conditions which the Buyer purports to incorporate through any purchase order, confirmation of order, specification, or other document) except to the extent that additional or alternative conditions are agreed or stated in writing by the Company to apply. These Conditions may not be varied or waived except with the express written agreement of the Company. The failure of the Company to enforce its rights under a Contract at any time for any period of time shall not be construed as a waiver of any such rights.
1.3
All drawings, descriptive matter, specifications and advertising material issued by the Company or contained on any Company website are issued for the sole purpose of giving an approximate idea of the Goods or Services described within the Contract. They will not form part of the Contract, nor will any representation made orally or in writing by an employee or agent of the Company
1.4
A Contract shall be formed when an order received from the Buyer is accepted in writing by the Company or, if earlier, on the acceptance by the Buyer, without amendment, of any valid quotation issued by the Company.
2. PRICES AND QUOTATIONS
2.1
The price of the Goods and/or Services will be the Company quoted price (or if there is no quoted price, the Company list price on the date of delivery) inclusive of any duties but exclusive of value added or other taxes except where stated otherwise. All quotations issued by the Company for the supply of Goods and/or Services shall remain open for acceptance for the lesser of 30 days or such other period as may be stated in the quotation. In all other cases prices payable are those currently in effect for sales to third parties by the Company for the Goods or Services in question. Prices shall not include handling, freight, packaging, insurance or similar costs, for which an additional charge will be made where applicable except where otherwise stated . A handling charge may be made for small orders.
2.2
The Company shall not modify quoted prices at any time before delivery to the Buyer unless to reflect (a) any changes to its costs resulting from any alteration in or addition to the Buyer requirements or (b) any changes in external costs, charges, duties or taxes arising in relation to the provision of the Goods or Services which are outside the control of the Company.
3. PAYMENT TERMS
3.1
Unless full or partial payment in advance or other payment terms have been specified by the Company, the Company shall invoice in full for Goods on delivery.
3.2
The Company shall invoice for Services monthly annually or quarterly, all set up charges to be paid prior to commencement of the Contract.
3.3
Unless otherwise specified, payment shall be due in the currency invoiced no later than seven (7) days from the date of invoice. Bank charges incurred as a result of payment being made from overseas accounts shall be reimbursed to the Company by the Buyer. All payments shall be made free of any demand, deduction or set-off by the Buyer.
3.4
In the event of late payment the Company reserves the right:
(i) in the case of Goods, to suspend deliveries and/or any of its outstanding obligations under the Contract; and (ii) in the case of Services, to suspend the provision of Services; and in either case (iii) to charge interest and administrative and other associated costs in relation to the late payment. Interest will be charged at a monthly rate equal to 3.5 % over the Base rate from time to time of Royal Bank of Scotland on all unpaid amounts such interest to accrue daily from the due date for payment until the actual date of payment irrespective of the date of any judgement in respect of such debt. Charges for reminder letters and or telephone calls shall be incurred on late payment reminders at a charge to be fixed by the Company.
3.5
Where payment is overdue the Company reserve the right to withdraw all services immediately without prior notification the buyer.
3.6
Queries against any invoice must be made within 7 days from the date of the invoice in writing (Recorded delivery) to the Company by the Buyer. Queries arising later than the 7 day period will not be accepted. The Buyer cannot hold back any payment on invoices against a query that is not raised within 7 days of the date of invoice.
3.7
The Buyer cannot hold back any payment on a due invoice against a query that has not been resolved by the due date.
3.8
The Buyer cannot hold back any balance on an invoice where a query is raised.
3.9
With respect to credit accounts, the Company may make a search against the Buyer with a credit reference agency which may keep a record of that search and will share that information with other businesses. The Company may also make enquiries about the proprietors, principal directors, partners or managers of the Buyer with a credit reference agency.
3.10
The Company will not be liable to any action from the Buyer (or the buyers clients) due to termination of services and/or goods where payment terms have been breached by the buyer or where any other breach by the Buyer has occurred.
3.11
Where services are supplied the Company will not be held liable for any action from the Buyer and/or their clients due to service faults outside the control of the Company and all outstanding invoices will still be valid and due for payment.
3.12
Where an outside provider is used to supply services, the Buyer will indemnify the Company against any and all costs raised by the outside provider against the Company in direct or indirect relation to the services supplied.
information with other businesses. The Company may also make enquiries about the proprietors, principal directors, partners or managers of the Buyer with a credit reference agency.
4. CHANGES
4.1
The Company reserves the right to modify the Goods to comply with statutory or EU Regulations, to improve capability or performance, or to supply Goods of equivalent performance if those requested are no longer available.
4.2
The Company reserves the right to make any change on prior notice in the specification of any Goods which does not materially affect the use, installation, performance or price thereof.
The Buyer shall confirm or cancel any order promptly on receipt of such notice.
4.3
The Company reserves the right to make any change on prior notice to the specification of any Services to be provided, which does not materially effect the value of that Service to the Buyer. The Buyer shall confirm or cancel any order promptly on receipt of such notice.
4.4
Without prejudice to the rights of the Buyer pursuant to Clause 10, Goods may only be returned with the Company prior consent. A restocking charge will be applied to deliveries returned for exchange or credit.
5. DELIVERY OF GOODS
5.1
Delivery of Goods under a Contract shall be deemed to take place at the Company, irrespective of the party arranging delivery to the Buyer.
5.2
Delivery of Goods to the Buyer is not included in the price.
5.3
In the event of late delivery of Goods by the Company, Clause 6 shall apply.
5.4
The Buyer shall notify the Company within five (5) working days in writing of any short delivery or defects in respect of Goods reasonably discoverable on careful examination. The Company sole obligation shall be, at its option, to replace or give a refund in respect of any defective Goods or refund the purchase price of any undelivered Goods.
5.5
Where delivery of any Product requires an export license or other authorisation before shipment, the Company shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorisation. It shall be the responsibility of the Buyer to obtain any export licence or authorisation required.
5.6
If, one week after the Company has notified the Buyer that the Goods are ready for delivery, for any reason the Buyer will not accept delivery of Goods, or the Company is unable to deliver the Goods because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
(a) risk in any Goods will thereupon pass to the Buyer; (b) the Goods will be deemed to have been delivered; and (c) the Company may store the Goods until delivery and the Buyer shall be responsible for all related costs, including, without limitation, all costs for storage and insurance.
6. TIMING
6.1
The Company will use all reasonable endeavours to avoid any delay in delivery of Goods or provision of Services on the dates notified to the Buyer. Failure to deliver or perform by the specified date will not be a sufficient cause for cancellation, nor will the Company be liable for any direct, indirect, consequential or economic loss, or any costs charges or expenses suffered or incurred due to delay in delivery.
7. CANCELLATION OF CONTRACT
7.1
In the event that an order for Goods or Services is cancelled prior to delivery or performance, the Buyer shall be liable to reimburse the Company for the larger of (a) the costs incurred or committed to the date of cancellation and (b) an administration fee of £50, or such fee as may be specified in relation to the Contract in question.
7.2
In the event that an order for Domain Services is cancelled by the buyer, and the services have past their renewal date, the Buyer shall be liable to reimburse the Company for, (a) the full amount of the domain service renewal charge, and, (b) an administration fee of £50, or such fee as may be specified in relation to the Contract in question.
7.3
In the event a domain name has past its’s qualified renewal date, and, if the buyer has not paid the renewal fee, then the domain name will and all services related to the domain name will cease to function until such time as the renewal fee has been paid. Any charges for retrieving the domain name from a suspended state, then the buyer will pay up front all such fee’s associated with the renewal, including the renewal fee.
8. RISK AND TITLE TO GOODS
8.1
The Goods supplied under a Contract shall be at the Buyer risk on delivery.
8.2
Full legal and equitable title and interest in the Consumables shall pass to the Buyer on delivery.
8.3
Title in the Capital Equipment will not pass to the Buyer until the Company has received full payment for it and for any other Goods that the Company has sold to the Buyer for which payment is outstanding. Until title passes the Buyer holds the Capital Equipment on behalf of the Company as bailee, and shall keep such Capital Equipment maintained in good condition and insured on the Company behalf against all risks for its full purchase price. The Buyer has the right to resell the Capital Equipment provided;-
(a) any sale shall be effected in the ordinary course of the Buyer business at full market value and the
Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly; (b) such right shall terminate immediately on the Buyer in any way charging or encumbering the Capital Equipment, or suffering any proceedings in relation to insolvency or any other action in consequence of debt, or the Buyer failing to observe or perform any of its obligations to the Company under the Contract concerned.
9. SERVICES
9.1
Where the Company is to provide Services to the Buyer at its premises the Buyer shall ensure that adequate and safe facilities exist at its premises and that the Company is properly notified of any relevant regulations or health and safety requirements.
10. WARRANTY
10.1
Goods . The Company warrants that its Consumables meet the Company specifications at the time of shipment. All warranty claims on Consumables must be made within thirty (30) days of receipt of the Consumables. The Company sole liability and Buyer exclusive remedy for a breach of this warranty is limited to replacement or refund of the defective Consumables at the sole option of the Company.
10.2
Capital Equipment . The Company Capital Equipment of its own manufacture is warranted from date of delivery to be free of defects in workmanship or materials under normal usage for a period of one year. The Company sole liability and Buyer exclusive remedy of a breach of this warranty is limited to repair, replacement or refund at the sole option of the Company. Where Capital Equipment is not of the Company manufacture, the Company shall endeavour to ensure that the Buyer shall have the benefit of any warranty given by the third party manufacturer.
10.3
Services . The Company warrants that all Services will be carried out with reasonable care and skill. The Company sole liability for breach of this warranty shall be at its option to give credit for (provided that no such credit shall exceed the value of any monies received under the same Contract by the Company) or re-perform the Services in question. This warranty shall only extend for a period of sixty (60) days after the completion of the relevant part of the Services.
10.4
All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability or fitness for purpose of goods (except for the implied warranty of title), are hereby expressly excluded, as are all other warranties, representations, terms and conditions (statutory, express, implied or otherwise) in respect of the quality or timeliness of the provision of services.
THE BUYER ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 10.5, 10.6 AND 11.1.
10.5
The Company shall have no liability under any Contract or otherwise in respect of any defect in Goods arising from fair wear and tear or misuse (either on its own or in combination with other equipment), or alteration or repair of the Goods without the Company approval.
10.6
The Company shall have no liability under any Contract or otherwise in respect of any defect in Goods or in relation to the provision of Services arising from defects in specifications or materials supplied by the Buyer, wilful damage or negligence of the Buyer or its employees or agents; abnormal working conditions at the Buyer premises or failure to follow the Company instructions (whether oral or in writing).
11. LIMITATION OF LIABILITY
11.1
Subject to Condition 11.2:
(a) The Company total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of any Contract shall be limited to the total price payable under that Contract in the calendar year in question or the average of the previous three calendar years, if greater; and (b) The Company shall not be liable to the Buyer for any indirect or consequential damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise) costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with any Contract.
11.2
The exclusion of liability in these Conditions shall not apply in respect of fraudulent misrepresntation or of death or personal injury caused by the Company negligence.
12. TRADE MARKS, PATENTS/AND INTELLECTUAL PROPERTY
12.1
Where the Buyer supplies designs, drawings and specifications to the Company to enable it to manufacture non-standard or custom made Goods the Buyer warrants that such manufacture will not infringe the intellectual property rights of any third party.
12.2
All intellectual property rights in the Goods and/or created in the course of carrying out the Services shall at all times remain vested in the Company or its employees, consultants or students, as the case may be and shall not become the property of the Buyer.
12.3
The Buyer shall have no right to apply to the Goods or otherwise use any trademark owned or used by the Company..
12.4
If any claim is made or alleged that the Goods infringe any patent rights, registered designs, copyright or other industrial property rights of another then:
(i) the Buyer shall forthwith notify the Company with full particulars and (ii) the Company or its suppliers or licensors (as case may be) shall be at liberty at their expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in the name of the Buyer and if as a result of such negotiations or litigation the Buyer shall be unable to use the Goods substantially for purposes for which they were bought the Company shall (except when Condition 12.5 applies) take them back and refund the purchase price to the Buyer and such refund shall be in full satisfaction of all claims by the Buyer against the Company.
12.5
The Buyer shall indemnify the Company against all action costs (including the cost of defending legal proceedings) expenses claims proceedings and demands in respect of any infringement or alleged infringement by the Company of patent rights registered design copyright or other industrial rights attributable to the Company complying with any special instructions from or requirements of the Buyer.
13. HEALTH SAFETY AND WASTE
13.1
The Buyer shall ensure that:
(i) the Goods as specified are safe and appropriate for the intended use: (ii) the Goods are handled in a safe manner, and (iii) any waste originating from the Goods is disposed of in accordance with any relevant regulations.
14. INDEMNITIES
14.1
Except where the claim arises as a result of the negligence of the Company, the Buyer shall indemnify the Company in respect of any claim which may be made against the Company arising in connection with the Buyer use of any Goods supplied or the results of any Services.
15. TERMINATION
15.1
In the event that the Buyer becomes bankrupt or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation) or has an administrator or receiver appointed or suffers any other action in consequence of debt the Company shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of the Company hereunder.
15.2
Without prejudice to any other right or remedy available pursuant to these Conditions, either party shall have the right to terminate the Contract on the giving of 90 days written notice in the event of a material breach of contract by the other party which is not remedied before expiry of such notice. Where the Company shall have issued such notice it shall have the right to suspend performance or deliveries under the Contract in question until the breach has been remedied. Where such material breach is incapable of remedy, the innocent party shall have the right to terminate the Contract forthwith on the service of written notice.
15.3
Any username, password, log in details, domain information and or and domain changes shall not be released, nor shall property or any intellectual rights be released until final payment of the last invoice has been received as cleared funds.
15.4
The final invoice will be sent on the last day of the notice period and shall be payable within 7 days upon receipt.
15.5
Any previous credit terms previously agreed will be revoked upon notice of termination and all invoices due will be due for payment terms previously stated in paragraph 15.4
16. FORCE MAJEURE
16.1
The Company shall not be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to strikes, lock outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure and inability to obtain equipment or where such services are provided by a third party for which the company is an agent for..
16.2
If an event of force majeure exceeds four months either party may cancel the Contract without liability.
17. GOVERNING LAW
17.1
The Contract shall be governed by and construed in accordance with the the laws of England situated and the parties hereby submit to the exclusive jurisdiction of the English Courts.
18 NOTICES
18.1
All notices shall be in writing served on the other party at its registered office or principal place of business.
Notice may be served by prepaid post registered post, Notices served by post by the company shall be deemed to have been served five working days after despatch. Notices served by the Buyer will not be recognised as served unless delivered by registered post and a legible name and signature is ascertained
19. GENERAL
19.1
If the whole or any part of a provision of these Conditions is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction, unless it alters the basic nature of the Contract concerned or is contrary to public policy.
19.2
These Conditions do not constitute one party the partner, agent, or legal representative of the other. Save as aforesaid none of these Conditions shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Contract concerned.
19.3
The Buyer shall not assign or otherwise transfer all or any part of its rights or obligations under any Contract without the Company prior written consent.
