In this document the following words shall have the following meanings:
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in London, England are open for business;
"Buyer" means the firm or person who buys the Goods from the Seller;
“Conditions” means these Terms and Conditions as amended from time to time in accordance with clause 2.4;
“Contract(s)” means any one or more contracts between the Seller and the Buyer for the supply of the Goods in accordance with these Conditions;
"Goods" means the goods (or any part of them) set out in the Order;
“ List Price ” means the prices charged for the Goods by the Seller from time to time;
“Order” means an order from the Buyer for the purchase of Goods as provided either verbally or in writing to the Seller from time to time;
“Parties” means the Seller and Buyer together;
“Seller” means Digiland or Digicare Limited whose trade address is at Digiland House, Stafford Park 12, Telford, Shropshire, TF3 3BJ or such other address notified to the Buyer in writing from time to time; and
“VAT” means Value Added Tax.
2.1 Each Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
2.2 Each Order shall only be deemed to be accepted when, either: (1) the Seller accepts the Order in writing; or (2) at the time the Goods are despatched for delivery pursuant to the terms of clause 6, and on that date a Contract shall come into existence. For the avoidance of doubt each Order shall be a separate offer by the Buyer to purchase the Goods in accordance with these Conditions and upon acceptance by the Seller shall constitute a separate Contract.
2.3 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms, conditions, promises, statements and/or representations referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the Parties) shall not apply unless agreed in writing by the Seller.
2.5 Any quotation given by the Seller to the Buyer from time to time shall not constitute an offer.
3.1 The price of the Goods shall be the List Price at the time the Order is accepted pursuant to clause 2.2 above, or such other price as the Parties may agree in writing (the “Price”). The Price is exclusive of VAT and any other applicable costs (such as delivery).
3.2 The Seller shall issue an invoice to the Buyer for the Goods on or at any time after completion of delivery of some or all of the Goods supplied under the Contract.
3.3 Payment of the Price and VAT and any other applicable costs shall be due within 30 days of the end of the month following submission of the invoice referred to in clause 3.2 above. At the discretion of the Seller alternative payment terms can be agreed but will only apply once confirmed in writing by the Seller. Time shall be of the essence in respect of the payments due under this clause 3.3.
3.4 Without limiting any right or remedy of the Seller interest shall accrue on a daily basis on all or any part of the Price outstanding from time to time from the date when payment is due until the date of payment of any outstanding amounts at a rate of 5% per annum above the base rate from time to time of the Bank of England, whether before or after judgment and compounding quarterly.
3.5 If payment of all or any part of the Price is not made by the due date, the Seller shall be entitled to: (a) charge to the Buyer any and all costs incurred in procuring the collection of the late payments which shall thereafter be deemed to be included as part of the Price which could include but is not limited to the costs of engaging a third party debt recovery agent or a solicitor; (b) require payment in advance of delivery in relation to any Goods not previously delivered (under the applicable Contract or any other Contract); (c) refuse to make delivery of any such undelivered Goods and without incurring any liability at all to the Buyer for non-delivery or any delay in delivery; and/or (d) terminate all or any of the Contracts.
3.6 The Buyer shall pay all amounts due under each Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may, without limiting its other rights or remedies, set off any amount owing by it to the Buyer against any amount payable to the Seller from the Buyer.
4.1 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
4.2 Where the Goods are to be supplied in accordance with a specification provided by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller’s use of the specification provided by the Buyer. This clause 4.2 shall survive termination of the Contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the Parties accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified in the Order or an alternative address confirmed in writing by the Buyer prior to the acceptance of the Order (the “Delivery Location”) and the Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event the Buyer fails to provide a delivery address or it is agreed in writing, then the Buyer shall be obliged to collect the Goods from the Seller’s address and when doing so you warrant that you will comply with all applicable laws and regulations from time to time in force and you agree to indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us as a result of any breach of this warranty by you.
6.2 The Seller shall notify the Buyer of the estimated date of delivery or the date the Goods are available for collection (the “Delivery Date”). Time for delivery shall not be of the essence of the Contract.
6.3 Delivery of the Goods shall be deemed completed upon their arrival at the Delivery Location.
6.4 The Seller shall not be liable for any delay in delivery of the Goods that is caused by the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.5 If the Buyer fails to accept or take delivery of the Goods within 3 Business Days of the Delivery Date, then except where such failure or delay is caused by a force majeure event (referred to in clause 13 below) or by the Seller’s failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the Delivery Date; and (b) the Seller shall store the Goods until physical delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
6.6 If 10 Business Days after the Seller notified the Buyer of the Delivery Date the Buyer has not accepted or taken delivery of the Goods, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting storage and selling costs charge the Buyer for any shortfall below the Price.
6.7 The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including 5 per cent more or less than the quantity of Goods ordered.
6.8 The quantity of any consignment of Goods as recorded by the Seller on despatch shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.9 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 5 Business Days of the date when the Goods would in the ordinary course of events have been received.
6.10 The Seller’s liability for non-delivery of the Goods shall be limited to, at the sellers option replacing the Goods within a reasonable time, issuing a credit note at the pro rata price or refunding the purchase price under the Contract against any invoice raised for such Goods.
Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller’s place of business. Where the Buyer is under an obligation to collect the Goods, risk passes when the Buyer takes possession of the Goods or the Goods are set aside for its collection, whichever happens first.
8.1 Notwithstanding the provisions of clause 7 title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for all Goods delivered or made available to the Buyer under all Contracts between the Seller and the Buyer. For the avoidance of doubt payment of the full price of the Goods shall include the amount of any interest or other sum payable under these Conditions.
8.2 Until title to the Goods has passed to the Buyer, the Buyer shall: (a) hold the Goods on a fiduciary basis as the Seller’s bailee; (b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Buyer’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of delivery; (e) notify the Seller immediately if it is unable or believes that it will be unable to pay any of the monies due to the Seller; and (f) give the Seller such information relating to the Goods as the Seller may require from time to time.
8.3 If before title to the Goods passes to the Buyer the Seller believes that the Buyer will be unable to pay any amount due under any Contract to the Seller and the Seller notifies the Buyer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
9.2 The Seller warrants that (subject to the other provisions of these Conditions) on delivery the Goods shall: (a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; (b) be reasonably fit for any purpose which the Seller says the Goods are fit for or for any reasonable purpose for which the Buyer uses the Goods; and (c) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Seller in writing and the Seller had confirmed in writing that it is reasonable for the Buyer to use the Goods for that purpose.
9.3 The Seller shall not be liable for a breach of any of the warranties in clause 9.2 unless: (a) the Buyer provides written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within 5 Business Days of the time when the Buyer discovers or ought to have discovered the defect; and (b) the Seller is given a reasonable opportunity after receiving the notice to examine the Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s address provided above at the Seller’s cost for the examination to take place there.
9.4 The Seller shall not be liable for a breach of any of the warranties in clause 9.2 if: (a) the Buyer makes any further use of the Goods after giving such notice; or (b) the defect arises owing to the buyers misuse of, or as a result of accidental or malicious damage or failure to follow recommended industry practice as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or (c) the Buyer alters or repairs the Goods without the Seller’s written consent or in any manner not in line with industry practice.
9.5 Subject to clause 9.3 and clause 9.4, if any of the Goods do not conform with any of the warranties in clause 9.2 the Seller shall at the Seller’s sole option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Price under the Contract provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the part of such Goods which is defective to the Seller.
9.6 If the Seller complies with clause 9.4 the Seller shall have no further liability for a breach of any of the warranties in clause 9.2 in respect of such Goods.
10.1 Subject to clauses 10.2 and 10.4, if the Seller fails to comply with these Conditions, the Seller shall only be responsible for any losses that the Buyer suffers to the extent that those losses are a reasonably foreseeable consequence of the Seller’s failure to comply with these Conditions.
10.2 Subject to clause 10.3 the Seller shall have no liability for any losses that result from the Seller’s failure to comply with these Conditions that fall into the following categories: (a) loss of income or revenue; (b) loss of business; (c) loss of profits or contracts; (d) loss of anticipated savings; (e) loss or corruption of data; (f) loss of goodwill or business opportunity; (g) any waste of time; or (h) special, indirect or consequential loss.
10.3 This clause does not include or limit in any way the Seller’s liability for: (a) death or personal injury caused by the Seller’s negligence; or (b) fraud or fraudulent misrepresentation; or (c) any breach of the obligations implied by section 12 of the Sale of Goods Act 1979; or (d) any other matter for which it would be illegal or unlawful for the Seller to exclude or attempt to exclude the Seller’s liability.
10.4 Subject to clause 10.3 and 10.5 the Seller’s total liability in connection with the Contract whether based on contract, tort (including negligence), strict liability or otherwise is limited to an amount equal to the Price under the Contract.
10.5 In respect of any loss of or damage to the Buyer’s physical property which is caused by the Seller’s negligence or failure to comply with these Conditions the Seller’s total liability is limited to an amount equal to 250.00.
10.6 All warranties, clauses 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.
Without limiting its other rights or remedies, the Seller may terminate the Contract and/or suspend its obligations under the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under any Contract on the due date for payment or if the Seller reasonably believes that the Buyer may fail to pay any amount due under any Contract including as a result of the Buyer’s insolvency or deemed insolvency within the meaning of the relevant provisions of the Insolvency Act 1986 or any other equivalent legislation or regulations.
On termination of the Contract for any reason: (a) the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt; (b) the accrued rights and remedies of the Parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and (c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, the Seller shall be entitled to a reasonable extension of time in order to perform its obligations. If the delay persists for more than 30 days either of the Parties may terminate the Contract.
Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the Parties and nothing in these Conditions shall be deemed to construe either of the Parties as the agent of the other.
15.1 The Seller may at any time assign, charge, subcontract or deal in any other manner with all or any of its rights under the Contract.
15.2 The Buyer shall not, without the prior written consent of the Seller, assign, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.1 If the Seller or the Buyer delays or does not take action to enforce the Seller’s or the Buyer’s rights under the Contract this does not prevent either the Seller or the Buyer from taking action later.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions of the Contract shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18.1 Any notice or other communication required to be given to either of the Parties shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case and in the case of notices addressed to the Seller) its principal place of business, or sent by fax to the other party's main fax number.
18.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
18.3 This clause 18 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
The Parties intend that a person who is not a party to the Contract shall not have any rights under or in connection with it.
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, and the Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.