Terms & Conditions of Sale: All orders and services are subject to these terms and conditions.
1. Application of Terms and Conditions
1.1 The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with any quotation or similar specification document which shall be subject to these Terms and Conditions; and
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
1.3 This document (together with the documents referred to on it) tells you the terms and conditions on which we supply our services described on our website www.barttech.co.uk to you (“Goods”). Our primary services are:
1.3.1 IT Support and Consultancy
1.3.2 Hardware and Software Supply & Installation
1.3.3 Broadband
1.3.4 Landlines and Voice Over IP Services
1.3.5 Co Location Services
1.3.6 Domain Registration and Web Hosting
1.3.7 Hosted Email Services
1.3.8 Online Backup Services
1.3.9 Managed IT Security
1.3.10 Hosted Desktops and Servers
1.3.11 Disaster Recovery Services
1.3.12 Marketing Services
1.3.13 Publishing Services
1.3.14 Business Consultancy Services
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day”
means any day other than a Saturday, Sunday or bank holiday;
“Commencement Date”
means the commencement date for the Contract as set out in the any quotation or similar specification document;
“Confidential Information”
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Contract”
means the contract, quote or order form for the purchase and sale of the Goods and supply of the Services under these Terms and Conditions;
“Contract Price”
means the price stated in the Contract payable for the Goods;
“Customer”
means the person who accepts a quotation or offer of the Supplier for the sale of the Goods and supply of the Services, or whose order for the Goods and Services is accepted by the Supplier;
“Delivery Date”
means the date on which the Goods are to be delivered as stipulated in the Customer’s order and accepted by the Supplier;
“Goods”
means the goods (including any instalment of the goods or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;
“Month”
means a calendar month;
“Services”
means the Services to be provided to the Customer as set out in the any quotation or similar specification document; and
“Supplier”
means Barton Technology Limited, a company registered in England under company number 3930086 of 20 Market Place, Kingston Upon Thames, Surrey, KT1 1JP and includes all employees and agents of Barton Technology Limited.
2.1 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.1.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.1.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.1.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.1.4 a Schedule is a schedule to these Terms and Conditions; and
2.1.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.1.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.2 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.3 Words imparting the singular number shall include the plural and vice versa.
2.4 References to any gender shall include the other gender.
3. Basis of Sale and Service
3.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods and Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the Goods and Services or has accepted an order placed by the Customer by whichever is the earlier of:
3.3.1 the Supplier’s written acceptance;
3.3.2 delivery of the Goods;
3.3.3 provision of the Services; or
3.3.4 the Supplier’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3.5 By placing an order, the Customer warrants that, if they are an individual, they are at least 18 years of age and, in the case where they are acting on behalf of a business, company or other body corporate, that they personally have the authority to bind that business, company or other body corporate.
3.6 The Supplier only provides credit accounts to businesses and not to individuals or consumers. All goods and services purchased from the Supplier which are invoiced to a business name, purchased on a credit account or using a business credit or debit card are treated as business to business (trade) customers and are therefore subject to trade sales legislation, not consumer legislation. Consumer purchases (where invoiced to an individual and paid via personal cheque or credit/debit card) remain subject to consumer legislation and applicable statutory rights.
3.7 Any term or terms sought to be imposed by a Customer either in documentary form or otherwise that conflict with these, the Suppliers terms and conditions, are not accepted. No agent or representative of the Supplier has authority to vary these terms and conditions unless accepted in writing by a director of the Supplier.
3.8 All services are deemed separate, so cancelling one service, doesn’t automatically cancel any other or affect them in any way.
4. The Goods
4.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.
4.2 The specification for the Goods shall be that set out in the Supplier’s sales documentation unless varied expressly in the Customer’s order (if such variations is/are accepted by the Supplier). The Goods will only be supplied in the minimum units thereof stated in the Supplier’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
4.4 The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation.
5. The Services
5.1 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with Clauses 6 and 7 will provide the Services expressly identified in the any quotation or similar specification document.
5.2 If no commencement date is arranged it will be deemed that the contract started on the date the order was placed or the first invoice produced, whichever the former.
5.3 The Supplier will use reasonable care and skill to perform the Services identified in the any quotation or similar specification document.
5.4 The Supplier shall use its reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.
5.5 All monthly invoiced services including but not limited to Support Agreements, Online Backup, Broadband, Server Monitoring, Web Hosting, Emails Services, Co-Location, Telephone Lines, Voice Over IP, Disaster Recovery and Regular Monthly Onsite Visits shall be binding for the minimum number of months (term) stated on the Contract.
5.6 If no minimum term is stated on the Contract then a minimum term of 12 months will be applicable.
5.7 The term will automatically renew for the same term as the original Contract period at the Contract’s expiry date. Notice of termination must be provided by the Customer giving the other not less than three (3) full calendar months notice in writing before Contract expiry date.
5.8 Notice given part way through a month will not be counted until the last day of the current month.
5.9 With regards to telecom and Internet connections; any charges arising from British Telecom to amend or cancel an order, or from a Special Faults Investigation (SFI) Engineer visit where BT do not identify a fault on their network will be passed onto the customer.
5.10 All Internet connections will be charged £50.00 + VAT for any cease or migration away from The Supplier in line with BT Openreach charges to The Supplier.
5.11 In order to give all of our customers a fair level of service we operate a Fair Use Policy, where if a customer is deemed to be using service capacity disproportionately to their service fees we reserve the right to suspend the service or charge for the work outside fair usage. For clarity fair use is defined as monthly service fee divided by number of tickets equaling no less than £30 plus VAT per ticket. E.g. for a £120 plus VAT monthly service fee, fair use is defined as 4 tickets per month.
5.12 It is important for the customer to understand that anything related to a technology project or installation is inherently complex and it’s smooth operation is reliant on many things. Sometimes something you have completed many times over and should be simple, turns out to be the most complicated and troublesome task when it comes to technology. It’s a fact of life that technology breaks down and isn’t always 100% compatible with other hardware, software or configurations. Sometimes there is an existing problem in the infrastructure which only becomes evident when the project has commenced. You can consider any technology project like a surgical procedure. And just as a surgeon is obliged to make you aware of all the risks associated and ways you can best prepare for a surgical procedure, please take note of this information with regards to your upcoming project or installation. We will always do everything we possibly can to minimise problems, disruption and downtime. After all; it inconveniences us, causes unnecessary stress and damages our relationship – and we don’t enjoy that any more than you do! And just like a surgical procedure, problems are rare but do occasionally happen. We perform hundreds of technology projects, installations and setup’s each year and the vast majority go exactly as expected, smoothly and without problems. For this reason you must be prepared that in some cases additional downtime, time taken and expense may be incurred which the customer will be liable for.
5.13 All installations, setups or reconfigurations are chargeable.
5.14 Work required due to any security or disaster recovery related problem, including but not limited to viruses, server failure and ransomware is chargeable.
5.15 The Supplier takes no responsibility for the customer’s data in any way. It is advised that every customer has at least a full daily backup of both system files and data including a “Bare Metal Restore” facility which they monitor is working properly. We also recommend that customer’s make a separate full backup before any work is carried out on their systems.
5.16 At no time will the Supplier be liable for paying any third party costs in relation to providing goods or services.
5.17 An IT support agreement is a required service before any other service can be purchased. Therefore if you terminate your IT support agreement then any other service must also be terminated. If any other service is still within it’s minimum term the IT support agreement will not terminate until that service’s minimum term has expired.
5.17 A cancellation feee of 20% of the order price will be charged for all booked jobs cancelled with less than 2 normal working days notice.
6. Price
6.1 Save as follows in the remainder of this section, the price of the Goods and Services shall be the price listed in the Supplier’s price list (or similar document) current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer. However, the Supplier’s website and any of its price lists contain the details of a large number of goods and services and it is always possible that, despite the Suppliers best efforts some of the goods and services may be incorrectly priced. Where any goods or services correct price is less than the Suppliers stated price, the Supplier will charge the lower amount when accepting an order. If however the price of goods or services are in fact higher than the price stated on the website, the Supplier will, at its discretion, either contact the Customer for instructions before accepting the order or reject the order and notify the Customer of such rejection. The Supplier is under no obligation to provide goods or services at an incorrect price.
6.2 Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier’s published price list the price quoted shall be valid for 14 days only or such lesser time as the Supplier may specify.
6.3 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture or charges levied by the Suppliers bank or merchant services account provider in respect of debit, credit or charge card payments), any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
6.4 Except as otherwise stated under the terms of any quotation or similar specification document or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are on an ex-works basis and therefore subject to the Supplier’s charges for packaging and transport.
6.5 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
6.6 Due to Customers changing their types of service and levels it is the Customer’s responsibility to check each service and level is correctly represented on each invoice. Any discrepancies must be notified by the Customer to the Supplier in writing within 7 days of receipt of invoice otherwise the invoiced amount will be deemed as correct and payable. It is the Customer’s responsibility to check that they still require services billed for each month and notify the Supplier of any disputes relating to service levels within 10 working days from invoice date. Failure to notify the Supplier in writing within 10 working days of such dispute will deem the service level and invoice price to be valid and payable.
6.7 All Good and Services quoted for as individual items or as part of a complete project that equals more than £2,000.00 sterling will be subject to a 40% deposit which must be received prior to any Goods or Services being supplied by the Supplier to the Customer. All monthly services can only be purchased with a credit account and paid via monthly direct debit or recurring credit/debit card payment.
6.8 All Customers granted a credit account will be allocated a credit limit based on information supplied by the Customer and an appointed credit reference agency. The Supplier reserves the right to amend credit limits as they see fit and notify the Customer accordingly.
6.9 All time quoted for Services by the Supplier is an estimate only and is to provide an indication to the job’s length. Therefore all time taken to complete a job will be invoiced at the relevant rate rather than the quoted amount. Site visits are charged in one-hour intervals at the relevant rate with a minimum of two hours per visit plus travel expenses to the customer. In most cases the Supplier will attempt to send a representative from as near as possible to the customer, however in some cases due to availability or specific skills required a representative may be sent from anywhere in our national network.
6.10 The Supplier (Barton Technology Ltd) reserves the right to increase service contracts prices by 5% or the current rate of inflation (whichever the greater) twice per any 12 month period.
6.11 All prices quoted on the basis that they will be paid via a setup direct debit mandate. If no direct debit mandate is setup for payment then a 10% admin charge will be added to compensate for the administration required for ad hoc payments.
6.12 From the 1st August 2016 no onsite or hardware support is included in any support agreements, whether or not it is stated on the initial order or agreement. Onsite support can still be provided at a cost as per term 6.9 above, but no contractual arrangements apply.
6.13 On tiered level services, the supplier reserves the right to automatically upgrade customers to the next applicable level should they exceed the limits of the current level. Any price difference for this upgrade will be automatically calculated and enforced from the time of the upgrade.
7. Payment
7.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer for the price of the Goods and Services on or at any time after delivery of the Goods and/or the Provision of the Services (as applicable), unless, in the case of Goods, the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Customer for the price at any time after the Supplier has notified the Customer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods.
7.2 The Customer shall pay the price of the Goods (less any discount or credit allowed by the Supplier, but without any other deduction, credit or set off) within 10 Business Days of the date of the Supplier’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Customer and the Supplier in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery or provision may not have taken place and/or that the property in the Goods has not passed to the Customer. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.3 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
7.4 The Supplier is not obliged to accept orders from any customer or buyer who has not supplied the Supplier with references satisfactory to the Supplier. If at any time the Supplier is not satisfied as to the creditworthiness of the Customer it may give notice in writing to the Customer that no further credit will be allowed to the Customer in which event no further goods or services will be delivered or provided to the Customer other than against cash payment and notwithstanding sub-Clause 7.2 of these conditions, all amounts owing by the Customer to the Supplier shall be immediately payable in cash.
7.5 Time is of the essence for payment of the price of the Goods and/or Services supplied or to be supplied.
7.6 All invoices are due for payment on the date shown on the invoice. Any items purchased/services provided under a credit account during each month will be collected via direct debit on or around the 15th day of the following month.
7.7 Payment is to be made in sterling unless otherwise agreed in writing by a director of the Supplier.
7.8 Should a direct debit or credit/debit card payment fail due to lack of funds, cancelled direct debit or expired credit/debit card (without notifying us 14 days beforehand) the payment will be represented 10 days later and an administration fee of £25.00 plus VAT will be applicable to cover payment failure reports, letters, administration & fees.
8. Delivery and Performance
8.1 Delivery of the Goods shall be made by the Supplier delivering the Goods to the place in the United Kingdom specified in the any quotation or similar specification document or, if no place of delivery is so specified, by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection..
8.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the Delivery Date upon giving reasonable notice to the Customer.
8.3 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1 risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure. Alternatively, after the passing of 30 days from the agreed Delivery Date, the Supplier shall be entitled, at its sole election, to sell the Goods at the best price readily obtainable and after deducting all reasonable storage and selling expenses the Supplier shall be entitled to charge the Customer for the excess above the price and/or charge the Customer for any shortfall below the contract price.
8.4 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with these Terms and Conditions and the quotation or similar specification document provide the Services expressly identified in the quotation or similar specification document.
8.5 If the Supplier agrees with the Customer to effect delivery by instalments each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments pursuant to there terms and conditions or any claim by the Customer relating to one or more instalments shall not entitle the Customer to treat the contract as a whole as repudiated.
8.6 If the Customer is purchasing as a consumer (i.e. not within the course of their business), ordinarily the Consumer Protection (Distance Selling) Regulations 2000 would allow the Customer to cancel the contract at any time within seven (7) working days, beginning on the day after they received acceptance of the order. However, by placing an order for goods and/or services the Customer agrees to the Supplier providing such goods and/or services prior to the end of the statutory cooling off period and as such will not have the right to cancel the contract pursuant to the Consumer Protection (Distance Selling) regulations 2000.
9. Non-Delivery of Goods and Services
9.1 If the Supplier fails to deliver the Goods or provide the Services or any of them on the Delivery Date (or Commencement Date, as appropriate) other than for reasons outside the Supplier’s reasonable control or the Customer’s or its carrier’s fault:
9.1.1 if the Supplier delivers the Goods and/or provides the Services at any time thereafter the Supplier shall have no liability in respect of such late delivery; or
9.1.2 if the Customer gives written notice to the Supplier within 7 Business Days after the Delivery Date (or Commencement Date, as appropriate) and the Supplier fails to deliver the Goods and/or Services within 10 Business Days after receiving such notice the Customer may cancel the order and the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods or services to those not delivered or provided over the price of the Goods or Services not delivered or provided.
10. Risk and Retention of Title
10.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
10.1.1 in the case of Goods to be delivered at the Supplier’s premises, the time when the Supplier notifies the Customer that the Goods are available for collection;
10.1.2 in the case of Goods to be delivered otherwise than at the Supplier’s premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods; or
10.1.3 in the case of Goods being installed by the Supplier, the time that the Supplier notifies the Customer that the installation is complete.
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
10.3 Sub-Clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.
10.4 Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
10.5 In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Terms and Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.
10.6 If the Goods are manufactured into another form or are used in the process of manufacturing other goods, the Supplier shall acquire legal and beneficial title to the resulting goods, or a proportion of the title equal to the contribution made to the resulting goods by the Goods.
10.7 The Supplier may, in accordance with the provisions of the Companies Act 2006, register any charge created by these Conditions.
10.8 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
10.9 The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.4.
10.10 The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if:
10.10.1 the Customer commits or permits any material breach of his obligations under these Conditions;
10.10.2 The Customer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
10.10.3 the Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.10.4 the Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
11. Assignment
11.1 The Supplier may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Customer.
11.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
12. Defective Goods
12.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Customer gives written notice of such defect to the Supplier within 5 Business Days of such delivery, the Supplier shall at its option:
12.1.1 replace the defective Goods within 21 Business Days of receiving the Customer’s notice; or
12.1.2 refund to the Customer the price for those Goods (of parts thereof, as appropriate) which are defective; but the Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice given by the Customer as set out.
12.2 No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier. Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier’s sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.
12.3 The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Supplier’s prior approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
12.4 Goods, other than defective Goods returned under sub-Clauses 12.1 or 12.2, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.
12.5 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.6 The Customer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer’s failure to comply with this condition.
13. Customer’s Default
13.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
13.1.1 cancel the order or suspend any further deliveries or provision of Goods and Services to the Customer;
13.1.2 appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
13.1.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum above the Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
13.1.4 charge the Customer all costs, fees or commissions incurred by the Supplier in respect of its collection agents, lawyers or any other professional advisors engaged to recover any unpaid monies.
13.2 This condition applies if:
13.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
13.2.2 the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
13.2.4 the Customer ceases, or threatens to cease, to carry on business; or
13.2.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
13.3 If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14. Liability
14.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by or arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.
14.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
14.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
14.6 Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
14.6.1 for death or personal injury caused by the Supplier’s negligence;
14.6.2 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
14.6.3 for fraud or fraudulent misrepresentation.
14.7 Subject to the remaining provisions of this Clause 14:
14.7.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
14.7.2 the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. Confidentiality
15.1 Each Party undertakes that, except as provided by sub-Clause 15.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and for 2 years after its termination:
15.1.1 keep confidential all Confidential Information;
15.1.2 not disclose any Confidential Information to any other person;
15.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;
15.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
15.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 15.1.1 to 15.1.4 above.
15.2 Either Party may:
15.2.1 disclose any Confidential Information to:
15.2.1.1 any sub-contractor or supplier of that Party;
15.2.1.2 any governmental or other authority or regulatory body; or
15.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 15.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 15, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
15.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
15.3 The provisions of this Clause 15 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
16. Communications
16.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
16.2 Notices shall be deemed to have been duly given:
16.2.1 when delivered, if delivered by courier or other messenger (including registered and recorded mail) during the normal business hours of the recipient; or
16.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
16.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
18. Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
19. Severance
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. Law and Jurisdiction
21.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
22. Acceptance
By placing an order for Goods and/or Services the Customer is deemed to have accepted these terms and conditions in their entirety. An order is deemed to have taken place when The Supplier receives:
22.1 A completed order form;
22.2 An email authorising the order;
22.3 A verbal confirmation to proceed with the order;
22.4 A completed purchase through an online website store or buy now button whether or not payment is taken at the time of order.
23. Retention of Employees
23.1 If you wish to retain any of our employees on a permanent basis at any time whilst deemed an active customer (e.g. in a contract or paying for services) and for 12 months after the last interaction as a customer, an introduction fee will be payable. The introduction fee shall be calculated as 35% of the employee’s annualised remuneration package with the customer. Fees will be invoiced on the commencement of the employee’s permanent engagement with the customer and are payable in 7 days.
24. Right to amend these Terms and Conditions
24.1 The Supplier reserves the right to revise these terms and conditions from time to time to reflect changes in market conditions affecting the Supplier’s business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements, changes in the Supplier’s system capabilities and changes in the underlying terms and conditions of any third party supplier to the Supplier.