1.2 In these conditions:
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks are open for business;
"Buyer" means the buyer of Goods from the Seller;
"Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with clause 2.2;
"Contract" means the contract between the Seller and the Buyer for the sale and purchase of Goods in accordance with these Conditions;
"Force Majeure Event" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors;
"Goods" means the goods (or any part of them) set out in the Purchase Order;
"Purchase Order" means the Buyer's written order for Goods, which shall include any order that is placed online by the Buyer on the Website;
"Seller" means Computerengland.com Ltd registered in England and Wales under number 4915838 or as appropriate any of its subsidiaries within the meaning of section 1159 Companies Act 2006;
"Website" means the website operated by the Seller from time to time, the current URL of which is http://www.computerengland.com;
and "Writing" includes facsimile transmission, e-mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 A reference to any party includes it personal representatives, successors or permitted assigns.
1.4 A reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.4 Any phrase introduced by the terms including include, in particular or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.5 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Application of Conditions
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Except as set out in these Conditions, any variation to the Contract including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Seller.
3.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and addressed to the other party at its registered office or principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally sent by pre-paid first class post, recorded delivery, commercial courier, fax or email.
3.2 Subject to these Conditions, no failure by any party to exercise any right under any Contract shall be deemed to be a waiver of any party's rights thereunder or under any other Contract save to the extent that such waiver is in writing and signed by an authorised representative of that party.
3.3 If any competent authority holds any provision of these Conditions to be invalid, illegal or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
3.4 A single arbitrator appointed by agreement or in default nominated on the application of either party shall refer any dispute arising under or in connection with these Conditions to arbitration.
3.5 A person who is not party to the Contract shall not have rights under or in connection with it.
3.6 The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfers, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
3.7 The laws of England and Wales shall govern these Conditions and the Buyer agrees to submit to the exclusive jurisdiction of the English Courts.
4. Basis of Contract
4.1 The Purchase Order constitutes an offer by the Buyer to purchase Goods in accordance with these Conditions. The Buyer is responsible for ensuring the terms of the Purchase Order are complete and accurate.
4.2 The Purchase Order shall only be deemed to be accepted when the Seller issues written acceptance of the Purchase Order at which point the Contract shall come into existence.
4.3 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
4.4 Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions or brochures 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 any contractual force.
4.5 Any quotation given by the Seller shall not constitute an offer, and is only valid for a period of 7 Business Days from its date of issue.
5.1 The Goods as described in the quotation.
5.2 The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
6.1 The price of the Goods shall be the Seller's quoted price or where no price has been quoted or a quoted price is no longer valid the price listed in the Seller's published price list current at the date of acceptance of the Purchase Order. Prices will normally be held for a period of 7 Business Days of the date of the quotation.
6.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to:
6.2.1 any factor beyond the control of the Seller such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of layout, materials or other costs of labour, materials or other costs of manufacture;
6.2.2 any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer; or
6.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
6.3 Except as otherwise stated under the terms of any quotation or any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are quoted by the Seller for the Goods are exclusive of all costs and charges for transport, packaging and insurance of the Goods which shall be invoiced to the Buyer.
6.4 The price of the Goods is exclusive of any applicable Value Added Tax (VAT) which the Buyer shall be additionally liable to pay to the Seller.
7. Terms of payment
7.1 The Buyer shall pay each invoice submitted by the Seller:
7.1.1 within 30 days of the date of the invoice; and
7.1.2 in full and in cleared funds to a bank account nominated in writing by the Seller. Time of payment shall be of the essence of the Contract.
7.2 Where cash discounts are granted, VAT is calculated on the discounted price.
7.3 All express or same day deliveries are charged extra on all orders regardless of invoice value.
7.4 Without limiting any other right or remedy of the Seller, if the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment ("Due Date"), the Seller shall have the right to charge interest on the overdue amount at the rate of 2.5 per cent per annum above the then current National Westminster Bank's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly. The Buyer shall pay interest together with the overdue amount.
7.5 The Buyer shall pay all amounts due under the 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 to it by the Buyer against any amount payable by the Seller to the Buyer.
7.5A Without limiting any other right or remedy of the Seller, if within 30 days of the Due Date the Buyer has failed to make or satisfy all payments outstanding including interest in accordance with clauses 7.1 and 7.4 (“Total Outstanding”), the parties agree that the Buyer shall pay on demand to the Seller a sum equal to 10% of the Total Outstanding (“Recovery Charge”).
7.5B The Buyer acknowledges and agrees that if within 30 days of the Due Date the Buyer has failed to make or satisfy all payments outstanding including interest in accordance with clauses 7.1 and 7.4 the Seller may engage or permit the engagement of a third party agent or factoring agent to collect from the Buyer the Total Outstanding and Recovery Charge.
7.5C The parties agree that the Recovery Charge represents a genuine pre-estimation of costs incurred by the Seller as a result of the Buyer’s breach of its obligation to pay.
8. Buyer's insolvency or incapacity
8.1 If the Buyer becomes subject to any of the events listed in clause 8.2, or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Seller, the Seller may cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and the Seller without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Seller shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Buyer fails to make any payment under any Contract when due;
8.2.2 the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
8.2.3 any distress or execution is levied upon the Buyer's property or assets;
8.2.4 the Buyer makes or offers any arrangement or composition with its creditors;
8.2.5 the Buyer is a body corporate and any resolution or petition to wind up the Buyer's business (other than for the purpose of amalgamation or reconstruction) is passed or presented;
8.2.6 a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of the Buyer or any part thereof;
8.2.7 the Buyer is an individual, any grounds arise for the presentation of a petition for a bankruptcy order made under Part IX Chapter 1 Insolvency Act 1986 or any statutory re-enactment or modification thereof or on the presentation of such a petition.
8.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.1 Unless expressly otherwise agreed pursuant to clause 9.2, the Buyer shall collect the Goods during business hours from the Seller's premises at Joseph Mott House, 53 Buxton Road, Stockport, SK2 6LS or such other location as may be advised by the Seller prior to delivery ("Delivery Location") within 3 Business Days of the Seller notifying the Buyer that the Goods are ready. Delivery of the Goods in accordance with this clause shall be completed on the completion of loading the Goods at the Delivery Location.
9.2 In the event that the Seller and the Buyer agree that the Seller shall deliver the Goods to the Buyer then the delivery of the Goods shall be completed on the Goods arrival at the Buyer's premises or such other location specified by the Buyer.
9.3 Any dates quoted for delivery of the Goods are approximate only and time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods caused by a Force Majeure Event or the Buyer's failure to supply the Seller with adequate delivery instructions. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
9.4 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions relevant to the supply of the Goods.
9.5 The Seller may deliver the Goods by instalments which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as repudiated or to cancel any other instalment.
9.6 If the Buyer fails to take or accept delivery (as the case may be) of the Goods within 3 Business Days of the Seller notifying the Buyer that the Goods are ready where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract then:
9.6.1 delivery of the Goods shall be deemed to be completed at 9.00am on the 3rd Business Day after the day on which the Seller notified the Buyer the Goods were ready; and
9.6.2 store the Goods until actual delivery and charge the Buyer for the reasonable costs thereof, including, without limitation, insurance costs.
10. Title and Risk
10.1 Title of the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for:
10.1.1 the Goods; and
10.1.2 any other goods or services that the Seller has supplied to the Buyer.
10.2 Until title to the Goods has passed to the Buyer, the Buyer shall:
10.2.1 store all goods in such a way as to be clearly separate and identifiable from the Buyer's other goods and products;
10.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.2.3 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;
10.2.4 notify the Seller immediately if it becomes subject to any events listed in clause 8.2; and
10.2.5 give the Seller such information relating to the Goods as the Seller may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business.
10.6 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.2 or the Seller reasonably believes that any such event is about to happen and 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.
10.7 Not withstanding the above, if the Buyer sells any Goods delivered in such a manner as to pass to a third party a valid title to the Goods, the Buyer shall hold the proceeds of such sale on trust for the Seller providing that nothing herein shall constitute the Buyer the agent of the Seller for the purposes of any such sub-sale. The Buyer shall not be permitted to sell such Goods after the appointment of a receiver to its property, or after it has been placed in liquidation or administration, or, not being a company, has committed an act of bankruptcy.
10.8 The risk in the Goods shall pass to the Buyer on completion of delivery.
11. Limitation of Liability
11.1 Nothing in these Conditions shall limit or exclude the Seller's liability for:
11.1.1 death or personal injury caused by its negligence or the negligence, or the negligence of its employees, agents or sub-contractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979.
11.2 Subject to clause 11.1:
11.2.1 the Seller shall under no circumstances whatsoever be liable to the Buyer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2 the total liability of the Seller to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Buyer for the Goods.
12. Defective Goods
12.1 The Supplier warrants that on delivery, and for a period of 30 days from the date of delivery ("warranty period"), the Goods shall:
12.1.1 conform in all material respects with their description; and
12.1.2 be free from material defects in design, material and workmanship.
12.2 Subject to clause 12.3, if:
12.2.1 the Buyer gives notice in writing to the Seller within the warranty period that some of the Goods do not comply with the warranty set out in clause 12.1;
12.2.2 the Seller is given reasonable opportunity of examining the Goods;
12.2.3 the Buyer (if so asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost, the Supplier shall at its option, repair or replace the defective Goods or refund the price of the defective Goods in full.
12.3 The Seller shall not be liable for defective Goods in any of the following events:
12.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 12.2;
12.3.2 the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
12.3.3 the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
12.3.4 the Buyer alters or repairs such Goods without the written consent of the Seller;
12.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
12.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
12.4 Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 12.1.
12.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
12.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
13. Cancellation of Orders
13.1 Cancellation of a Purchase Order, in whole or part cannot be accepted without the Seller's consent in writing.
14. Force Majeure
14.1 The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.2 If the Force Majeure Event prevents the Seller from providing any of the Goods for more than 4 weeks, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.