Terms & Conditions
1.1 In these conditions: “ADR PROCEDURE” means a procedure such as mediation and conciliation or executive tribunal or other dispute resolution technique recommended from time to time by the Centre for Dispute Resolution. “AFFILIATE” in relation to the Buyer means any person who controls alone or with others the Buyer, or is controlled by the Buyer alone or with others, or is under common control with the buyer (for which purpose “ control “ shall be construed in accordance with section 416(2) or section 840 of the Income and Corporation Taxes Act 1988). “BUYER” means the person who accepts a Quotation of the Seller for the Sale of the Goods or whose Order for the Goods is accepted by the Seller. “CATALOGUE” means any catalogue and other sales, price, marketing and similar information made available by the Seller to the Buyer in whatever form or medium, including without limitation in the form of a book or other paper or hard copy, In the form of a machine-readable medium, by sound reproduction or by visual, electronic or other display. “CONDITIONS” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and a Director of the Seller. “ CONTRACT” means the contract for the purchase and sale of the Goods such contract to include the acceptance of Orders by telephone. “DEAD ON ARRIVAL” describes Goods which on attempted initial use fail to operate properly but Goods shall be deemed not to have been “Dead on Arrival” if no initial attempt to use them is made within seven days after delivery. “ DESPATCH NOTE” means the Seller’s document that accompanies the Goods and which details the goods ordered by the Buyer. “GOODS” means the equipment (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions. “ORDER” means any written or oral request for Goods made by the Buyer to the Seller and as evidenced by the Seller’s Despatch Note. “QUOTATION” means any written or oral offer by the Seller’s authorised representative to supply Goods to the Buyer. “SELLER” means UTIL-IT LTD. (registered in England under number 04476847). “WRITING” includes cable, facsimile transmission and comparable means of communication. References to “the statutory rights of a consumer” are to the statutory rights of the Buyer where the Goods are sold under a consumer transaction for the purposes of the Consumer. Transactions (Restrictions on Statements) Order 1976. References to “ the Seller’s Procedures” are to the Seller’s procedures for the time being in force regarding notification of rejection, defects, collection or return of the Goods, proof of warranty and related matters (details of which will be available on request).
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 The heading in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Contract
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any Quotation of the Seller which is accepted by the Buyer, or any Order of the Buyer which is accepted by the seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and condition 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 Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing by a director of the seller.
2.3 The Seller’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed by a director of the seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agent as to the storage, application or use of the Goods which is not confirmed in Writing by a director of the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of Offer, Despatch Note, invoice or other document or information (whether written or oral) issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 The sale, resale, delivery, licensing and servicing of the Goods may be subject to US, UK and other laws and regulations and shall be subject to the obtaining of any necessary export control and other licences and consents the granting of which may be necessary in any relevant jurisdictions. The Seller and the Buyer shall co-operate in using their respective reasonable endeavours to obtain any such consents, at the cost of the Buyer.
2.7 To the extent that the Goods include any media containing material the intellectual property rights to which are owned by or licensed to any third party, the sale of those Goods shall be subject to the Buyer entering into such licences and other agreements as the third party may require and the Buyer shall comply with the terms thereof.
2.8 The Buyer shall comply, and shall procure that any persons to whom it may supply the Goods shall comply and shall similarly require compliance, with all the requirements of any such licence or other agreement or consent as is referred to in conditions 2.6 and 2.7 above and the Buyer shall indemnify the Seller against the consequences of any breach of the terms of any such licence or agreement or consent.
3 Orders and Specifications
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless or until confirmed by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the term of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Despatch Note shall be conclusive as to the quantity, quality and description of and any specification for any Goods ordered by the Buyer except to the extent that, within 24 hours after receipt of the Despatch Note, the Buyer by notice in writing to the seller disputes its accuracy and gives details of the alleged inaccuracy. The Buyer by notice in writing to the Seller disputes its accuracy and gives details of the alleged inaccuracy. The Buyer must keep each Despatch Note or a copy thereof for a minimum of six years.
3.4 The Seller 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 requirements or, where the Goods are to be supplied to the Seller’s specification which do not materially affect their quality or performance.
3.5 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit,) costs (including cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.6 All specifications and other details and information concerning the Goods contained in the Seller’s Catalogues are based on information provided by the relevant manufacturers at the time of preparation of the relevant catalogues and are liable to be changed by the manufacturers without notice. Accordingly Goods may be supplied the specifications and other details and information concerning which are those of the manufacturer at some time since the times as at which the relevant catalogues were prepared.
3.7 The Seller may record all telephone and other conversations between its representatives and those of the Buyer with or without the use of warning tones or other warnings.
4 Price of the goods
4.1. the price of the Goods shall be the Seller’s quoted price (whether the Quotation is provided orally by the Seller’s authorised representative or in Writing) 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 order;
4.1.1 Where goods are supplied for export from the United Kingdom, the Seller’s published export price list current at the date of acceptance of the order shall apply; and
4.1.2 all prices quoted are valid for 30 days only, after which time (unless the Contract has been entered into before then) they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving the buyer written notice at any time before delivery, to increase the price of the Goods to reflect:
4.2.1 any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties or taxes, significant increase in the costs of labour materials or other costs of manufacture); or
4.2.2 any change in delivery dates; or
4.2.3 any change to the quantities or specifications for the Goods which is requested by the Buyer; or
4.2.4 any delay caused by any instruction of the buyer or any failure of the Buyer to give the Seller adequate information or instructions
4.3 Except as otherwise started under the terms of any Quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. Terms of Payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to the invoice the Buyer for the price at any time after Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods. 5.2 The Buyer shall pay the price of the Goods within thirty days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request, The Seller may at any time at its discretion by notice in writing demand and the Buyer shall forthwith make early payments if the Seller certifies that it has reasonable grounds to doubt the continued creditworthiness of the Buyer.
5.3 Payment by cheque or other negotiable instrument is ineffective until such instrument is honoured and the Seller’s bank account is irrevocably credited with the amount due.
5.4 If the Buyer or any Affiliate of the Buyer fails to make any payment on the due date or breaches any other provision of the Contract or any provision of any other contract with the Seller or if Condition 10.1 applies, then the Buyer shall be deemed to have repudiated each Contract and the Seller shall be entitled to;
5.4.1 exercise its rights under Condition 7.6 and/or Condition 10.2 below;
5.4.2 appropriate any payment made by the Buyer to such of the Goods(or the Goods supplied under any other contract between the Buyer and Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
5.4.3 charge the Buyer interest ( Both before and after any judgement) on the amount unpaid, at the rate of 3 per cent. per annum above HSBC Bank Plc 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); and
5.4.4. charge the Buyer with any costs incurred by the Seller in the course of collecting monies due to the Seller from the Buyer.
5.5 The Buyer small make all payments in the currency in which the price is denominated and without any set-off, deduction or withholding. Without limitation, the Seller. In such circumstances the Buyer’s sole remedy shall be the provisions set out in Condition 8.
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises or, if some other place for delivery is agreed by the Seller delivering the Goods to that place or by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection. If it is agreed that the Goods are to be sent by a third party carrier to the Buyer, they may be sent by such method of carriage as the Seller may choose and, if the Seller arranges for the carriage and/or insurance of the Goods in transit it will do so as agent for the Buyer so that the carrier is the Buyer’s and not the Seller’s agent and the Buyer will reimburse the cost accordingly; but section 32(2) and (3) of the sale of Goods Act 1979 shall not apply
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Subject to Condition 6.3, time for delivery shall not be of the essence unless previously agreed by a director of the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date if authorised by a director of the Seller in Writing and upon giving reasonable notice to the Buyer.
6.3 If the Goods have not been delivered within 21 days after the anticipated date for delivery quoted by the Seller, then;
6.3.1 the Buyer may, by notice in writing to the Seller referring to this Condition 6.3, require the Seller to deliver the Goods within 14 days after service of the notice; and
6.3.2 if the Seller fails to do so, then the Buyer as its only remedy may, by further notice in writing to the Seller, cancel the Contract for the Goods.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and 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 a whole as repudiated.
6.5 The Goods may be delivered by instalments. The Buyer may not reject any Goods by reason that the Goods are, or any instalment is less than the full quantity contracted for.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time started for delivery ( otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may;
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 after seven days, sell the Goods at the best price readily obtainable and ( after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.7 If the Goods are to be delivered at the Seller’s premises and the Buyer so requests in Writing, the Seller shall afford the Buyer a reasonable opportunity to inspect and test the Goods as to conformity with the Contract when the Goods are tendered for delivery and then and there to reject any non-conforming items; and if the Buyer so inspects or tests them and does not then reject them, then it may not reject them later.
6.8 If the Goods are to be delivered elsewhere than at the Seller’s premises or are to be delivered at the Seller’s premises to a carrier for transmission to the Buyer within the Buyer having inspected and tested them, then the Buyer may only reject them for failure to conform with the Contract if it does so by notice in Writing to the Seller in accordance with the Seller’s procedures within 7 days after the date of arrival (in which case the Buyer shall at the Seller’s option deliver the Goods to, or allow them to be collected by, the Seller or its agents and meanwhile the Buyer shall retain the Goods as bailee for the Seller and store, protect and insure them accordingly).
6.9 The Buyer may not reject the Goods by reason of any matter which occurred after the passing of risk to the Buyer.
6.10 The Buyer shall accept and pay for all Goods which it may no longer reject but this is without prejudice to its warranty rights under Condition 8. Nothing in these Conditions shall affect the statutory rights of a consumer.
6.11 Any delivery receipt in respect of the Goods shall be conclusive if it is signed by a person who is or appears to be an employee or agent of the Buyer, whether or not the Buyer alleges that such person has no authority to sign delivery receipts.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.11 in the case of Goods to be delivered at the Seller’s premises, at the earlier of collection and the expiry of a period of seven days after the Seller has notified the Buyer that the Goods are available for collection and has issued an invoice for the price; or
7.12 in the case of Goods to be delivered by the Seller otherwise than at the Seller’s premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods; or
7.13 in the case of Goods to be sent to the Buyer by a carrier as agent for the Buyer, at the time of delivery to the carrier
7.2 Notwithstanding delivery of and the passing of risk in the Goods or any document representing them and notwithstanding any other provision of these Conditions, the Seller reserves the right of disposal of each item of the Goods, and the property therein shall not pass to the Buyer until (a) the Seller has received in cash or cleared funds payment in full for such item and all other Goods supplied by the Seller to the Buyer and the Affiliates of the Buyer and default interest and all other monies on any account whatsoever owed by the Buyer and the Affiliates of the Buyer to the Seller or (b) the Buyer has sold such item to an independent third party on arms length terms in the ordinary course of business (which sale shall be by the Buyer as principal and not as agent for the Seller), whichever occurs first.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as bailee for the Seller, shall retain possession of them in good order and condition, shall keep them separate from those of the Buyer and third parties and properly stored and protected and identified as the Seller’s property and shall (in the absence of proof to the contrary) be deemed to deal with goods and other Goods of the same type supplied by the Seller in the order in which they are delivered.
7.4 The Buyer shall not be entitled to pledge, charge, encumber or otherwise dispose of the Goods or any interest therein or purport to do so (other than under Condition 7.2 ( b) above).
7.5 If, before paying for them, the Buyer on-sell any of the Goods, the Buyer shall account to the Seller for the proceeds of on-sale to the extent that the Seller has not received payment of the price for such Goods and pending payments shall hold such proceeds on trust for the Seller and maintain them in a separate bank account.
7.6 If Condition 10.1 applies, then the Seller shall be entitled by notice in Writing to revoke the Seller’s consent to the Buyer retaining possession of, and any express or implied authority to sell, use or consume, any Goods the property in which has not passed to the Buyer and require the Buyer to deliver them up to the Seller (and the Buyer shall forthwith do so, failing which the Seller may repossess them, enter the premises of the Buyer or any third party where they are or are thought to be without liability for any resulting damage, against the consequences of which the Buyer shall indemnify the Seller) and re-sell them or transfer the property in them to the Buyer.
7.7 The Buyer shall keep the Goods fully insured in their full replacement value against all risks prudently insured against between risk passing and property passing and shall on demand produce evidence thereof to the Seller. Until the full price has been paid the Buyer shall hold on trust for the Seller the policy and proceeds of insurance to the extent of the unpaid price.
8. Warranties and Liability
8.1 Subject to the provisions set out below, the Seller warrants that if the Seller (who shall act reasonably) is satisfied that(a) any item of the Goods is, and was at the time of delivery, defective as to material or workmanship, or as to a failure to meet specification, and (b) within a reasonable time after discovery of the defect and in any event within the relevant warranty period (which shall be twelve months from delivery unless otherwise agreed), the Buyer has followed the Seller’s Procedures so far as applicable in relation to the defect, then the Seller shall repair or replace that item (or the part in question) free of charge, subject to availability of spares or parts, or waive or refund the price of the Goods or an appropriate part of it. This warranty shall not assignable save with the prior consent of the Seller in Writing.
8.2 The above warranty is given by the Seller subject to the following conditions;
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect of any of the following after the passing of risk in the Goods to the Buyer; fair wear and tear, wilful or accidental damage, negligence, alteration or repair of the Goods without the Seller’s approval in writing, failure to follow the manufacturer’s or the Seller’s instructions (whether oral or in writing) or, without limiting the foregoing, the use or handling of the Goods without a high standard of care (for which purpose the Buyer acknowledges that the Goods must not be moved while in operation or subjected to any physical or electromagnetic or electrostatic shock and that they should be used, handled and maintained in accordance with any applicable instructions of the Seller or the manufacturer supplied to the buyer and the Buyer shall treat the Goods accordingly and require its customers to do so);
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 if and to the extent that the Seller has the benefit of any warranty or guarantee recourse against the manufacturer which extends beyond the scope of the warranty set out in Condition 8.1 above, the Seller may, at its discretion and subject to the Buyer bearing any associated costs and expenses, pursue such recourse and make the benefit available (but not by way of assignment) to the Buyer;
8.2.5 if the Goods are not Dead on Arrival, then any defect shall be presumed to arise from one or more of the items referred to in Clause 8.2.2 unless the Buyer proves otherwise;
8.2.6 the Buyer shall indemnify the Seller against all liabilities, losses, damages, costs and expenses incurred by the Seller and arising directly or indirectly out of or in connection with any invalid warranty claim made by the Buyer under Condition 8.1;
8.2.7 the Seller shall not be liable for any loss of or damage to data contained in Goods returned to the Seller for any reason whatsoever (and the buyer should take back-copies of any such data accordingly);
8.2.8 any replacement item need not be new but shall be of a condition which is comparable to that of the original and may be the same as, or similar to, or better than, the original;
8.2.9 the warranty shall apply to the repaired item or the replacement item for the balance of the warranty period applicable to the original item; and
8.2.10 as between the Seller and the Buyer the results of independent testing by the manufacturer or the manufacturer’s agent shall be conclusive as to the cause of any failure and Condition 8.2.6 shall apply accordingly.
8.3 The Buyer recognises that the Goods require careful handling and storage and warrants that only competent employees or agents shall be used to handle the Goods and that they shall do so in accordance with the instructions referred to in Condition 8.2.2 above. Should the Buyer be in breach of this clause then the Seller shall be under no liability under the above warranty set out in clause 8.1 (or any other warranty conditions or guarantee).
8.4 The Buyer shall indemnify the Seller against any liability which the latter may incur, whether by court proceedings or by a bona fide out of court settlement as a result of a claim against the Seller under part 1 of the Consumer Protection Act 1987 in respect of an alleged defect in the Goods The Buyer shall record all serial numbers of the Goods and ensure that proper records are kept to enable the Goods to be traced to any purchaser. The Buyer shall allow the Seller reasonable access to these records and shall indemnify the Seller against all costs, liabilities and expenses incurred by the Seller because of the Buyer’s breach of this clause 8.4
8.5 Subject as expressly provided in these conditions and except where the Goods are sold to the Buyer as a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law as to condition, fitness for purpose, correspondence with description or sample or otherwise are excluded to the fullest extent permitted by law. It is acknowledged by the buyer that the limited liability accepted by the seller is reflected in the lower prices offered to the buyer and is appropriate in view of the buyer’s expertise and that such limitations and exclusions of liability are resonable.
8.6 Nothing in these Conditions will affect any statutory rights of a consumer. Nothing in these Conditions shall exclude or restrict; (a) except in the case of an international supply contract within section 26(3) and(4) of the Unfair Contract Terms Act 1977, liability of the Seller for death or personal injury, or for the cost of repair or replacement up to £100,000 in respect of physical damage to the Buyer’s property, resulting from negligence or (b) liability of the Seller for breach of the obligations arising from section 12 of the Sale of Goods Act 1979 or (c) liability which by law cannot be excluded or restricted.
8.7 The Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential or economic loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions.
8.8 The Seller shall not be liable to the buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control;
8.8.1 Act of Good, explosion, flood, tempest, fire, or accident; 8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 act, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority (including without limitation any matters of the nature referred to in Condition 2.6 above);
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-out or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
8.9 Should for any reason any court or judicial authority deem the exclusions and limitations contained in these Conditions to be unreasonable or unenforceable then the maximum liability of the Seller (in tort or contract) shall be the amount paid to and retained by the Seller under the Contract.
8.10 Without limiting the generality of the foregoing;
8.10.1 in submitting each Order the Buyer shall be deemed to represent and warrant that it is the business of dealing in, or manufacturing, assembling or configuring computer hardware, software or related products and that it has sufficient expertise and qualifications to form its own assessment of the qualities and characteristics of the Goods (including without limitation their merchantability, fitness for required purpose, compatibility with other products and networkability); and
8.10.2 accordingly, while any advice, suggestions and recommendations which the Seller may give in relation to the Goods or the requirements of the Buyer are intended to be helpful, they are given without any liability whatsoever, subject as expressly provided in these Conditions, and the Buyer should evaluate them and rely not on them but on its own expertise.
8.11 Before using or disposing of them or returning them to the Seller, the Buyer shall scan and otherwise check the Goods and any back-up or replacement goods supplied by the Seller and any associated software, media and data for computer viruses and other inherent defects and shall require its customers to do so. The Seller shall not be liable for, and the Buyer shall indemnify the Seller against, any liabilities, losses, damages, costs and expenses arising directly or indirectly out of or in connection with the Buyer’s failure to scan or otherwise check the Goods (or to do so adequately) or the presence of any such virus or defect.
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringe the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that;
9.11 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceeding or negotiations;
9.1.3 except pursuant to a non-consensual, non-appealable final award, the Buyer shall not pay or accept any such claim, or compromise any such proceeding without the consent of the Seller in writing (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have ( or which the Buyer knows or ought reasonably to know would or might vitiate any policy of insurance or insurance cover which the Seller may have) in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10. Events of Defaults
10.1 This clauses applies if;
10.1.1 The Buyer makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company or partnership) goes into any form of liquidation, winding up dissolution or insolvency procedure (otherwise than for the purposes of amalgamation or reconstruction);or
10.1.2 an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
10.1.5 the Seller becomes entitled to exercise any of its rights under Condition 5.4 above.
10.2 If this Condition applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled by notice in writing to the Buyer to do all or any of the following;(a) terminate or cancel the Contract;(b) suspend any further deliveries under the Contract;(c) suspend any warranty or other support for the Goods or any other goods supplied by the Seller to the Buyer, whether or not they have been paid for; (d) declare (whereupon there shall forthwith become ) immediately due and payable the price for the Goods so far as not already paid (whether or not the Goods have been delivered and notwithstanding any previous agreement or arrangement to the contrary);(e) set off any amount owed by the Seller to the Buyer against any amount owed by the Buyer to the Seller, on any account whatsoever, and (f) exercise its rights under Condition 5.4 and/or Condition 7.6.
11 Export Terms
11.1 In these conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the data when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
11.4 Unless otherwise agreed in writing between the Buyer and Seller, the Goods are to be delivered fob the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.6 Payment of the price of the Goods and all other amounts payable by the Buyer to the Seller under the Contract shall be made in cash on or before delivery.
11.7 The Seller will charge and the Buyer will pay on demand VAT in relation to the Goods unless evidence satisfactory to HM Customs & Excise to establish that the supply of the Goods is zero rated for the purposes of United Kingdom value added tax is provided to the Seller.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 The Seller’s strict rights shall not be prejudiced or restricted by any concession, indulgence or forbearance extended to the Buyer. No waiver by the Seller of any breach of any provision of any Contract by the Buyer shall be considered as a waiver of any other or subsequent breach of the same or any other provision of that or any other Contract. The Seller’s rights under these Conditions are in addition to any other rights which the Seller may have under the general law or otherwise. If the Buyer comprises two or more persons, their obligations are joint and several.
12.3 If any provision of these Conditions is held by any competent authority to be invalid 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 thereby.
12.4 The parties will attempt in good faith to resolve any dispute or claim (other than one based on non-payment) arising out of or relating to these Conditions or any Contract promptly within 14 days by negotiations between senior executives of the parties who have authority to settle the dispute. If the matter is not resolved through negotiation the parties will attempt in good faith to resolve the dispute through an ADR Procedure. If the parties need advice in appointing a suitable neutral to assist in the settlement and/or in formulating the appropriate procedure they will seek assistance from the Centre for Dispute Resolution (CEDR), 100 Fetter Lane, London, EC4A 1DD. Unless extended by agreement of the parties if the matter has not been resolved by an ADR Procedure within 28 days of the initiation of such procedure, or if either party will not participate in an ADR Procedure, the parties shall litigate or arbitrate the dispute under Clause 12.6 or 12.7.
12.5 These Conditions and all Contracts shall be governed by and construed in accordance with English law. Neither the Uniform law on International Sales nor the Convention on Contracts for the International Sale of Goods shall apply to any Contract.
12.6 If the Buyer is domiciled in one of the member states of the European Community, then any dispute within the last sentence of Clause 12.4 and any claim based on nonpayment shall be litigated and for the Seller’s exclusive benefit the Buyer irrevocably submits to the jurisdiction of the English courts and agrees (without limiting the Seller’s rights to bring proceedings in any other courts of competent jurisdiction, whether concurrently or not) that the English courts shall have jurisdiction to settle the dispute or claim and that their judgements will be binding, conclusive and enforceable by the courts of other jurisdictions.
12.7 If the Buyer is not domicile in one of the member States of the European Community, then any dispute within the last sentence of Clause 12.4 and any claim based on non-payment shall be arbitrated and shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by a single arbitrator, appointed In accordance with those Rules. The arbitration will be heard in London, England. The language of the proceedings will be English.