ICP NETWORKS LIMITED
GENERAL TERMS AND CONDITIONS OF SALE
Conditions (unless the context otherwise requires) the following terms have the
meanings set out below:
the person who agrees to purchase the Products from the Seller subject
to these Conditions whose details may be set out on the order acknowledgement;
the terms and conditions of sale set out in this document;
the agreement between the Seller and the Buyer for the sale and
purchase of the Products;
the address for delivery of the Products which shall be the Buyer's
principal place of business unless specified overleaf;
Estimated Delivery Date"
the date on which the Seller estimates that the Products will be
delivered which may be set out overleaf;
Export Compliance Regulations”
The export regulations made available from time to time by
manufacturers of the Products or relevant
government bodies including but not limited to http://ec.europa.eu/trade/import-and-export-rules/export-from-eu/dual-use-controls/;
the goods and/or services which the Seller is to supply to the Buyer in
accordance with these Conditions and which may be listed overleaf;
ICP NETWORKS Limited (Company Number: 08298898) whose principal place
of business is at Unit E Lexicon House Third Avenue, Poynton Industrial Estate,
Poynton, Stockport, Cheshire SK12 1YL;
These Conditions apply to all contracts for the
sale of goods entered into by the Seller.
By placing an order with the Seller or accepting the Seller's quotation,
the Buyer agrees to deal with the Seller on these Conditions to the exclusion
of all other terms, conditions, warranties or representations with the
exception of any terms specified in writing overleaf.
No variation to these Conditions shall be
binding unless made in writing specifying both which clause is to be varied and full details of
such variation and signed on behalf of each of the Buyer and the Seller.
The Seller's employees or agents are not
authorised to make any representations concerning the Products unless confirmed
by the Seller in writing. In entering
into the Contract the Buyer acknowledges that it does not rely on any such
representations which are not so confirmed.
The Buyer irrevocably and unconditionally waives any right it may have
to claim damages for and/or to rescind the Contract as a result of any
misrepresentation whether or not contained in the Contract unless such
misrepresentation was made fraudulently.
Any advice or recommendation given by the Seller
or its employees or agents to the Buyer or its employees or agents as to the
storage, application or use of the Products which is not confirmed in writing
by 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.
Any typographical, clerical or other error or
omission in any sales literature, quotation, price list, acceptance of offer,
invoice or other document or information issued by the Seller shall be subject
to correction without any liability on the part of the Seller.
The Buyer agrees to purchase the Products from
the Seller and the Seller agrees to sell the Products to the Buyer following
acknowledgment of order by the Buyer.
The Buyer shall not be entitled to cancel in
whole or in part any order which the Seller has accepted by way of
acknowledgment of order whether orally or in writing.
If the Products are to be manufactured or any
process is to be applied to them by the Seller in accordance with the
specifications submitted by the Buyer or if the Products are to be marked with
any trade mark at the request of the Buyer, the Buyer shall indemnify the
Seller against all loss, damages, costs and expenses awarded against or
incurred by the Seller in connection with or paid or agreed to be paid by the
Seller in settlement of any claim for infringement of any patent, copyright,
design, trade mark or other industrial or intellectual property rights or
misuse of any confidential information of any other person or any other
liability whatsoever which results from the Seller's use of the Buyer's
specifications or the marking of the Products or from the sale or supply of
such Products by the Seller pursuant to the provisions of Clause 4 below.
The Seller reserves the right to make any
changes in the specifications of the Products which are required to conform
with any applicable safety or other requirements or which do not materially
affect their quality or performance.
The Seller shall use its reasonable efforts to
deliver the Products to the Buyer at the Delivery Address on or around the
Estimated Delivery Date, but time of delivery shall not be of the essence.
The Seller shall be entitled to deliver the
Products in instalments in which case each instalment shall be treated as an
entirely separate contract and any default or breach by the Seller in respect
of any such instalment shall not entitle the Buyer to cancel any other
instalment or treat the Contract as a whole as repudiated.
Products shall be deemed delivered once signed
for at the place of delivery stated on the acknowledgment of order. If the
Products are damaged on delivery or less than the correct amount of the
Products is delivered, then unless the Buyer notifies the Seller and the
carrier (otherwise than by a note on the delivery note) within three days of
delivery no claim against the Seller may be made in respect of damage to or
short delivery of such Products.
If the Products have not been delivered despite
receipt by the Buyer of the invoice from the Seller relating to them, then
unless the Buyer notifies the Seller within seven days after the date of such
invoice no claim against the Seller may be made in respect of non-delivery of
The Buyer shall be deemed to accept the Products
on delivery notwithstanding any late delivery by the Seller.
If the Buyer fails to take delivery of the
Products or fails to give the Seller adequate delivery instructions before the
Estimated Delivery Date, then, without prejudice to any other right or remedy
available to the Seller, the Seller may:-
store the Products until actual delivery is made
and charge the Buyer for the costs (including insurance) of storage; and/or
sell or supply the Products (whether or not such
Products were manufactured or marked by the Seller pursuant to the provisions
of Clause 3.3
above) in or to a third party in any country at the best price readily
obtainable and (after deducting all storage and selling expenses) charge the
Buyer for any shortfall below the price under the Contract
either case shall be entitled to charge interest (both before and after any
judgment) on the price payable for the Products under the Contract at 4% over
the base rate from time to time of Royal Bank of Scotland PLC together with all
costs and expenses incurred by Seller in storing Products, rearranging
re-performing delivery of Products from the Estimated Delivery Date to the date
of actual delivery.
If specified overleaf or in the relevant
quotation or the Seller's standard documentation for the Products that the
Seller is to install the Products then, as soon as reasonably possible after
their delivery, the Seller shall install them at the Delivery Address.
The Buyer shall give full access to the Delivery
Address to the Seller for the purpose of installing the Products, shall
undertake any preparatory work specified by the Seller overleaf, in the
relevant quotation or in the Seller's standard documentation and shall
compensate the Seller for any additional costs which the Seller incurs by
reason of the Buyer's failure properly to undertake any such preparatory work.
The Seller shall procure that its employees who
install the Products comply with all reasonable safety, security and other
regulations which are in force or apply at the Delivery Address and the Buyer
shall indemnify the Seller against any loss which the Seller may suffer or
incur as a result of any injury to its employees or damage to or loss of its
property whilst at the Delivery Address resulting from anything other than the
negligence of the Seller or its employees or any non-compliance by the Products
with the warranty set out in Clause 7
The price of the Products shall be the price set
out overleaf or, if not specified, the price quoted by the Seller or, if not
specified and 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
the Contract. All prices quoted are
valid for the period of time stated on the quotation or if no period is stated
for 30 days only or until earlier acceptance by the Buyer, after which time
they may be altered by the Seller without giving notice to the Buyer.
The Seller reserves the right, by giving notice
to the Buyer at any time before delivery, to increase the price of the Products
to reflect any increase in the cost to the Seller which is due to any factor
beyond its control including (without limitation) inflation, increases in costs
of any goods, materials, carriage, labour or overheads and the increase or
imposition of any tax, duty or other levy , any change in delivery dates or
methods, quantities, packaging or specifications for the Products which is
requested by the Buyer or any delay caused by any instructions of the Buyer or
failure of the Buyer to give the Seller adequate information or instructions.
Unless otherwise stated under the terms of any
quotation or in any price list of the Seller, all prices are given by the
Seller on an ex works basis unless otherwise stated on the acknowledgment of
order, and the Buyer shall be liable to pay the Seller's charges for transport,
packaging and insurance together with any additional expenses, licence fees or
duties paid or incurred by the Seller as a result of the Delivery Address not
being in the UK.
The price is exclusive of any applicable value
added tax, which the Buyer shall be additionally liable to pay to the Seller
and all taxes and duties not properly accounted for or paid for by the Buyer
will not be the responsibility of the Seller. If the Buyer claims any value
added tax exemption or any other relevant duty exemptions, the Buyer must
provide a valid, signed certificate or letter of exemption for each respective
jurisdiction prior to acceptance of the order.
The Seller shall be entitled to invoice the
Buyer for all amounts due under the Contract on or at any time after delivery
of the Products unless the Products are to be collected by the Buyer or the
Buyer wrongly fails to take delivery of them, in which case the Seller shall be
entitled to invoice the Buyer at any time after the Seller has notified the
Buyer that the Products are ready for collection or (as the case may be) the
Seller has tendered delivery of the Products.
The Buyer shall make payment to the Seller in
respect of all invoices in full and without any deduction or set off (whether
in relation to such invoice or otherwise) within 14 days of the date of the
invoice. Time of payment shall be of the essence.
All payments shall be made in the currency
specified on the invoice and the Buyer shall be liable for any currency
exchange deficit due to incorrect payment.
All payments shall be applied to invoices and to
Products listed in such invoices in the order determined in its discretion by
If full payment is not received by the Seller by
the due date then without prejudice to any of its rights or remedies that the
Seller shall be entitled:-
to sue for the entire price; and/or
interest (both before and after any judgment) at the rate of at 4% over the
base rate from time to time of Royal Bank of Scotland PLC on the outstanding
balance together with all costs and expenses (including without limitation
legal fees and disbursements and court costs) incurred by Seller in collecting
such overdue amounts or otherwise enforcing Seller's rights hereunder; and/or
to require the immediate return to the Seller of
all Products agreed to be sold by the Seller to the Buyer in which the property
has not passed to the Buyer in accordance with the provisions of Clause 9
below and the Buyer hereby agrees to reimburse to the Seller upon demand the
Seller's costs or expenses in recovering such Products.
The Seller is entitled, at its sole discretion,
to offset any amount owing to it from the Buyer against any amount owed to the
Buyer by the Seller.
The Seller warrants that the Products will
correspond with any specifications set out overleaf or in the Seller's
quotation or in the Seller's standard documentation at the time of delivery and
will be free from defects in material and workmanship for a period of three
months from the date of delivery PROVIDED
the Seller shall be under no liability in
respect of any defects in the Products arising from any drawing, design,
instruction or specifications supplied by the Buyer;
the Seller shall be under no liability in
respect of any defect arising from fair wear and tear, wilful damage or
negligence by the Buyer or persons using the Products, abnormal working
conditions, failure to follow the Seller's or manufacturer’s instructions
(whether oral or in writing), or misuse or alteration or repair of the Products
without the Seller's approval;
the Seller shall be under no liability if the
total price of the Products has not been paid by the due date for payment;
any such defect in or failure to meet any such
specification by the Products shall be notified to the Seller in writing as
soon as reasonably possible after the Buyer discovers such defect or
the above warranty does not extend to parts,
materials or equipment not manufactured by the Seller, in respect of which the
Buyer shall only be entitled to the benefit of any such warranty or guarantee
as is given by the manufacturer to the Seller and which the Seller hereby
assigns to the Buyer so far as it is able.
In the event of any valid claim under Clause 7.1
above being made by the Buyer, the Seller shall be entitled to replace or
repair the Products (or the part in question) free of charge or, at the
Seller's sole discretion, refund to the Buyer the price of the Products (or a
proportionate part of the price as appropriate) but the Seller shall have no
further liability to the Buyer.
All conditions, warranties and representations
expressed or implied by statute, common law or otherwise in relation to the
Goods (save for the conditions implied by Section 12 of the Sale of Goods Act
1979 and Section 2 of the Supply of Goods and Services Act 1982) are excluded
from the Contract to the fullest extent permitted by law. There are no
warranties, conditions, guarantees or representations as to quality or fitness
for a particular purpose of the Products or other warranties, conditions,
guarantees or representations whether express or implied, oral or in writing,
except as expressly stated in the Contract.
The Seller does not seek to exclude or limit its
liability for death or personal injury resulting from negligence of the Seller
or its employees.
The Seller shall be liable to the Buyer for any
direct physical damage other than death or personal injury to the extent that
its results from the negligence of the Seller or its employees up to a maximum
of the value of the Products that give rise to the liability.
Except pursuant to sub-clause 7.4
above, the Seller shall not in any event be liable for (i) any indirect,
special or consequential liabilities; (ii) any pure economic loss; (iii) any
loss of anticipated profits, revenue or anticipated savings (iv) any loss of
goodwill or reputation; or (v) any loss of management time, howsoever caused in
connection with or arising out of the furnishing, functioning or use of the
Products, or any item or service provided, and shall not be liable for any
other damages except as provided in the Contract.
Except pursuant to sub-clauses 7.4
above and irrespective of the Seller’s insurances in no event shall the
Seller's liability in respect of any of the Products exceed the price paid for
Except pursuant to sub-clause 7.4
above, no action, regardless of form, arising out of the transactions under the
Contract may be brought by the Buyer more than two years after the cause of
action has accrued.
The Seller shall at its expense defend any
action against the Buyer and pay all damages and costs awarded against the
Buyer (except to the extent that the Buyer is entitled to recover such sums
under any policy of insurance) based on a claim that any of the Products
constitute an infringement of any patent or copyright or other intellectual
property rights of the United Kingdom or misuse any confidential information
belonging to any third party ("a Claim") PROVIDED THAT:-
the Seller shall be notified promptly in writing
by the Buyer of any notice of a Claim;
the Seller shall have the sole control of the
defence of any action on a Claim and all negotiations for settlement or
the Buyer shall allow its name to be used in
proceedings if necessary and provide all reasonable assistance in defending any
the Buyer shall take all steps reasonably
possible to mitigate or reduce any damages and costs which may be awarded
against it as a result of a Claim; and
the Buyer shall not admit liability in respect
of, or settle the matter, without the prior written consent of the Seller
If a Claim is successful or the Seller considers
that it is likely to be successful, the Seller may, at its option or as part of
a settlement or compromise, procure for the Buyer the right to continue using
the Products, modify the Products so that they are non- infringing or terminate
the Contract in so far as it applies to those Products subject to the Claim, in
which latter case the Seller shall refund to the Buyer the price paid for such
Products less depreciation on a straight line basis over the life of the
Products as determined by the Seller.
In no event shall the Seller have any liability
under this clause with respect to any claim based on the use of the Products in
combination with any other product or equipment not supplied by the Seller.
This clause states the entire obligation and
liability of the Seller with respect to infringement of intellectual property
rights and misuse of confidential information.
The Buyer will if purchasing Cisco Products from
the Seller adhere at all times to the Cisco Limited End User License Agreement
(“Limited EULA”) annexed hereto.
Risk of loss of or damage to the Products shall
pass to the Buyer on delivery at the Delivery Address and the Buyer shall
insure the Products from that time until ownership of and title to them passes
to the Buyer.
Notwithstanding delivery and the passing of risk
in the Products to the Buyer, or any other provisions of this agreement,
ownership of and legal and beneficial title to the Products shall not pass to
the Buyer and shall be retained by the Seller until the Seller has received in
cash or cleared funds payment in full of the price of the Products and of the
price of any other Products supplied to the Buyer by the Seller at any time
whether or not the price has become due.
If any of the Products owned by the Seller is
incorporated into other Products and is not identifiable in and separable from
the resulting composite or mixed Products, title to the resulting composite or
mixed Products shall vest in the Seller and shall be retained by the Seller for
so long as and on the same terms as those on which it would have retained title
to the Products in question.
Until ownership of and title to all Products
owned by the Seller passes to the Buyer, the Buyer shall hold the Products in
the Buyer's possession or control as the Seller's fiduciary agent and bailee
and shall keep them separate from those of the Buyer and third parties and
properly stored, protected and insured and identified as the Seller's
The Buyer shall be entitled to resell or use
such Products in the ordinary course of its business but shall account to the
Seller for the entire proceeds of sale or otherwise of such goods whether
tangible or intangible, including insurance proceeds, and shall keep all such
amounts separate from any monies or property of the Buyer and third parties
and, in the case of tangible proceeds, properly stored, protected and insured. The Buyer shall maintain records of the
persons to whom it sells or disposes of such Products and of the payments made
by such persons for such Products and will allow the Seller to inspect those
records and the Products themselves on request.
The Seller shall be entitled to trace the proceeds of sale or otherwise
of such Products.
For the avoidance of doubt, the Products, all
other Products supplied to the Buyer by the Seller and all Products into which
the Products or such other Products have been incorporated which are in the
Buyer's possession shall be presumed to belong to the Seller unless the Buyer
can prove otherwise.
Until ownership of and title to any Products
owned by the Seller passes to the Buyer (and providing the Products are still
in existence and have not been resold), the Seller shall be entitled at any
time to require the Buyer to deliver up such Products to the Seller and to
enter upon any premises of the Buyer or any third party where such Products are
stored and repossess them. The Buyer
shall procure that any third party which holds such Products shall permit the
Seller to take possession of them and shall indemnify the Seller against any
liability which it may incur to such third party in connection with taking or
attempting to take possession of them.
The Seller shall be entitled to use or dispose of such Products as it
wishes. Unless the Seller expressly
elects otherwise any contract between it and the Buyer for the supply of the
Products shall remain in existence notwithstanding any exercise by the Seller
of any of its rights under this clause.
The Buyer shall not be entitled to pledge or in
any way charge by way of security for any indebtedness any Products which
remain the property of the Seller, but if the Buyer does so, all monies owing
by the Buyer to the Seller shall (without prejudice to any other right or
remedy of the Seller) forthwith become due and payable.
The Buyer shall comply with all laws and
regulations relating to the ownership and use of the Products including but not
limited to health and safety requirements.
The Buyer shall, unless otherwise agreed, be
solely responsible for the disposal of all Products and packaging in accordance
with all laws and regulations (whether statutory or otherwise) relating to the
protection of the environment including but not limited to the Waste Electrical
and Electronic Equipment Directive 2002/96/EC and the Restriction of Hazardous
Substances Directive 2002/95/EC.
The Buyer shall comply with all applicable laws,
statutes, regulations and codes relating to anti-bribery and anti-corruption
including the Bribery Act 2010 (Relevant
Requirements) and shall have and shall maintain in place throughout the
Term its own policies and procedures, including adequate procedures under the Bribery
Act 2010, to ensure compliance with the Relevant Requirements and will enforce
them where appropriate.
The Buyer will not forward or sell any encrypted
Products to territories where those items are not permitted to be sold by
local, US or EU laws, statutes and regulations in force from time to time and
the Buyer will indemnify the Seller against all loss, damages, costs and
expenses awarded against or incurred by the Seller resulting from the Buyer's
supply of the encrypted Products to any such restricted territory.
The Buyer will ensure compliance with all EU,
USA, and other applicable Export Compliance Regulations.
The Seller shall be entitled to terminate the
Contract forthwith by notice in writing to the Buyer if:-
the Buyer commits an irremediable breach of the
Contract, persistently repeats a remediable breach or commits any remediable
breach and fails to remedy it within 30 days of receipt of notice of the breach
requiring remedy of the same; or
the Buyer makes any voluntary arrangement with
its creditors or (being an individual or firm) becomes bankrupt or (being a
company) becomes subject to an administration order or goes into liquidation
(otherwise than for the purposes of solvent amalgamation or reconstruction); or
the Buyer ceases or threatens to cease to carry
on business; or
there is at any time a material change in the
management, ownership or control of the Buyer; or
if the Buyer is resident in a jurisdiction other
than England and Wales, if an event similar to any of those specified in Clause
occurs to or in relation to the Buyer; or
if the Seller reasonably apprehends that any of
the events specified in Clause 11.1.2
is about to occur in relation to the Buyer and notifies the Buyer accordingly.
In the event of termination by the Seller
pursuant to Clause 11.1
above then, without prejudice to any other right or remedy available to the
Seller, the Seller shall be entitled to cancel the Contract or suspend any
further deliveries under it without any liability to the Buyer and, if the
Products have already been delivered but not paid for, the price shall become
immediately due and payable notwithstanding any previous agreement or
arrangement to the contrary and the Seller shall be entitled to charge interest
(both before and after any judgment) at the rate of 4% over the base rate from
time to time of Royal Bank of Scotland PLC on the outstanding balance together
with all costs and expenses (including without limitation legal fees and
disbursements and court costs) incurred by Seller in collecting such overdue
amounts or otherwise enforcing Seller's rights hereunder from the time of such
cancellation or suspension until the Seller receives payment.
available to the Seller under the Contract shall be without prejudice to any
other rights, either at common law or under statute, which it may have against
The failure or
delay of the Seller to enforce or to exercise, at any time or for any period of
time, any term of or any right, power or privilege arising pursuant to the
Contract does not constitute and shall not be construed as a waiver of such
term or right and shall in no way affect either party's right later to enforce
or exercise it nor shall any single or partial exercise of any remedy, right,
power or privilege preclude any further exercise of the same or the exercise of
any other remedy, right, power or privilege.
If any clause of a Contract, (or part of a
clause), is found by any court or administrative body of competent jurisdiction
to be invalid, unenforceable or illegal, the other clauses shall remain in
If any invalid, unenforceable or illegal clause
of a Contract would be valid, enforceable or legal if some part of it were
deleted, the clause shall apply with whatever modification is necessary to give
effect to the commercial intention of the parties.
A notice under or in connection with the
Contract shall be in writing and shall be delivered personally or sent by first
class post or sent by facsimile transmission to the other party at its last
known address or facsimile number.
In the absence of evidence of earlier receipt,
service of a notice is deemed to have been effected as follows:
if delivered personally, when left at the
address referred to in clause 15.1;
if sent by post, two working days (excluding
Saturdays, Sundays and bank and public holidays) after posting it (excluding
the day of posting); or
if sent by facsimile on a working day before
5.00 p.m. at the time of its transmission and otherwise on the next working
Notice by email shall not be valid notice under
is personal to the Buyer and the Buyer may not assign, transfer, sub-contract
or otherwise part with the Contract or any right or obligation under it without
the prior written consent of the Seller.
shall be liable to the other if its performance of its obligations under the
Contract (other than an obligation to pay money) is prevented or hindered due
to any circumstances outside its control.
headings are purely for ease of reference and do not form part of or affect the
interpretation of the Contract.
contains all the terms agreed by the parties relating to the subject matter of
the Contract and supersedes any prior agreements, understandings or
arrangements between them, whether oral or in writing, and no representation
(unless made fraudulently), undertaking or promise shall be taken to have been
given or been implied from anything said or written in negotiations between the
parties prior to the Contract except as set out in the Contract.
or amendment to the Contract shall be effective unless in writing signed by
authorised representatives of the parties.
In the event
of any conflict between the provisions of the Contract and of any other
agreement referred to in the Contract, the provisions of the Contract shall
Nothing in the
Contract is intended to confer on any person any right to enforce any clause of
a Contract which that person would not have had but for the Contracts (Rights
of Third Parties) Act 1999.
The construction, validity and performance of
the Contract is governed by the laws of England.
The courts of England have exclusive
jurisdiction to hear and decide any suit, action or proceedings, and to settle
any disputes, which may arise out of or in connection with the Contract and,
for these purposes, each party irrevocably submits to the jurisdiction of the
courts of England.