In these Conditions (unless the context otherwise requires) the following terms have the meanings set out below:
1.1 "the Buyer"
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;
1.2 "these Conditions"
the terms and conditions of sale set out in this document;
1.3 "the Contract"
the agreement between the Seller and the Buyer for the sale and purchase of the Products;
1.4 "the Delivery Address"
the address for delivery of the Products which shall be the Buyer's principal place of business unless specified overleaf;
1.5 "the Estimated Delivery Date"
the date on which the Seller estimates that the Products will be delivered which may be set out overleaf;
1.6 "the 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/;
1.7 "the Products"
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;
1.8 "the Seller"
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;
2 Basis of sale
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 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.
3 Sale and purchase
3.1 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.
3.2 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.
3.3 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.
3.4 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.
4.1 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.
4.2 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.
4.3 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.
4.4 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 those Products.
4.5 The Buyer shall be deemed to accept the Products on delivery notwithstanding any late delivery by the Seller.
4.6 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:-
4.6.1 store the Products until actual delivery is made and charge the Buyer for the costs (including insurance) of storage; and/or
4.6.2 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
and in 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.
5.1 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.
5.2 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.
5.3 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 below.
6 Prices and payment
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
6.6 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.
6.7 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.
6.8 All payments shall be applied to invoices and to Products listed in such invoices in the order determined in its discretion by the Seller.
6.9 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:-
6.9.1 to sue for the entire price; and/or
6.9.2 to charge 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
6.9.3 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.
6.10 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.
7 Warranty and liability
7.1 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 THAT:-
7.1.1 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;
7.1.2 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;
7.1.3 the Seller shall be under no liability if the total price of the Products has not been paid by the due date for payment;
7.1.4 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 non-conformity; and
7.1.5 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7.7 Except pursuant to sub-clauses 7.4 and 7.5 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 those Products.
7.8 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.
8 Intellectual Property
8.1 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:-
8.1.1 the Seller shall be notified promptly in writing by the Buyer of any notice of a Claim;
8.1.2 the Seller shall have the sole control of the defence of any action on a Claim and all negotiations for settlement or compromise;
8.1.3 the Buyer shall allow its name to be used in proceedings if necessary and provide all reasonable assistance in defending any action;
8.1.4 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
8.1.5 the Buyer shall not admit liability in respect of, or settle the matter, without the prior written consent of the Seller
8.2 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.
8.3 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.
8.4 This clause states the entire obligation and liability of the Seller with respect to infringement of intellectual property rights and misuse of confidential information.
8.5 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.
9 Risk and title
9.1 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.
9.2 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.
9.3 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.
9.4 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 property.
9.5 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.
9.6 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.
9.7 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.
9.8 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.
10 Laws and regulations
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 The Buyer will ensure compliance with all EU, USA, and other applicable Export Compliance Regulations.
11.1 The Seller shall be entitled to terminate the Contract forthwith by notice in writing to the Buyer if:-
11.1.1 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
11.1.2 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
11.1.3 the Buyer ceases or threatens to cease to carry on business; or
11.1.4 there is at any time a material change in the management, ownership or control of the Buyer; or
11.1.5 if the Buyer is resident in a jurisdiction other than England and Wales, if an event similar to any of those specified in Clause 11.1.2 occurs to or in relation to the Buyer; or
11.1.6 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.
11.2 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.
The remedies 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 Buyer.
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.
14.1 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 force.
14.2 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.
15.1 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.
15.2 In the absence of evidence of earlier receipt, service of a notice is deemed to have been effected as follows:
15.2.1 if delivered personally, when left at the address referred to in clause 15.1;
15.2.2 if sent by post, two working days (excluding Saturdays, Sundays and bank and public holidays) after posting it (excluding the day of posting); or
15.2.3 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 day.
15.3 Notice by email shall not be valid notice under the Contract.
The Contract 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.
17 Force Majeure
Neither party 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.
Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
19 Entire agreement
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.
No variation 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 prevail.
22 Third Party Rights
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.
23 Law and Jurisdiction
23.1 The construction, validity and performance of the Contract is governed by the laws of England.
23.2 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.