1. INTERPRETATION
1.1 In these conditions the following words have the following meanings:
“the Buyer” means the person(s), firm or company who purchases the Goods from the Company and for to whom the Company provides the Services;
“the Company” means Synergy Integrated Systems Ltd;
"Computer Virus" means any program or software that disrupts or harms the paper operations of a computer hardware system or the associated software data;
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods and/or provision of Services;
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4;
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
"Input Material" means any documents or other materials and any other data, software, or other information provided by the Buyer relating to the Services;
"Output Material" means any documents or other materials and any data, software or other information provided by the Company relating to the Services
"Services" means only services agreed in the contract to be supplied to the Buyer by the Company (including any part of parts of them)
1.2 In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these conditions headings will not affect the construction of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 In the absence of any agreement to the contrary, these conditions apply to all the Company’s sales and supplies and any variation to these conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company.
2.4 Each order for Goods and/or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods and/or to obtain the Services subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods and/or commences the Services to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
PART A – GOODS
3. DESCRIPTION AND INTELLECTUAL PROPERTY RIGHTS
3.1 The description of the Goods shall be as set out in the Company’s quotation (if any).
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract, nor shall they be copied, reproduced or communicated to any third party without the Company's prior written consent.
3.3 The Buyer acknowledges that no rights in respect of trade marks, trade names, copyrights, patents and other intellectual property rights connected with the Goods do not pass to the Buyer.
3.4 The Buyer shall indemnify the Company against all liabilities, costs and expenses which the Company may incur as a result of work done in accordance with the Buyer's specifications which result in an infringement of any third party intellectual property right.
4. DELIVERY
4.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Buyer’s place of business.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor will any delay entitle the Buyer to terminate or rescind the Contract, save where the Goods are standard list products which do not require sourcing or assembly of components, in which case delay in delivery in excess of 90 days shall entitle the Buyer to terminate or rescind the Contract.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods will be deemed to have been delivered; and
(c) the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.5 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.6 The Company’s returns policy from time to time in force shall apply to the Goods.
5. NON-DELIVERY AND LOSS OR DAMAGE IN TRANSIT
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods unless written notice is given to the Company within 5 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4 The Company shall not be liable for damage or loss of the Goods or part thereof in transit unless the Buyer gives written notice of a claim to the Company and the carrier
(a) In the case of damage within 3 days after the deliver of the Goods; and
(b) In the case of loss or shortage within 3 days of the date of delivery of the other Goods under the relevant consignment
5.5 The Buyer will be required to sign a copy of the Company's carrier's delivery note as acknowledgement of receipt of the Goods. The Buyer should inspect the Goods carefully because an unqualified signature shall be deemed to signify the Buyer's acceptance that the Goods are in good condition.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
(e) hold the proceeds of the insurance referred to in condition 6.3(d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value [and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly]; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8. QUALITY
8.1 The Company warrants that (subject to the other provisions of these conditions) upon delivery and for a period of 12 months from the date of delivery, the Goods will:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
(b) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
8.2 The Company shall not be liable for a breach of the warranty in condition 8.1 or be liable under clause 5.4 unless:
(a) the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 3 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Buyer's cost for the examination to take place there.
8.3 The Company shall not be liable for a breach of the warranty in condition 8.1 or be liable under clause 5.4 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
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(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
8.4 Subject to conditions 8.2 and 8.3, if any of the Goods do not conform with the warranty in condition 8.1 or the Company is liable under condition 5.4 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.
8.5 If the Company complies with condition 8.4 it shall have no further liability for a breach of the warranty in condition 8.1 in respect of such Goods.
8.6 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
PART B: SERVICES
9. SUPPLY OF THE SERVICES
9.1 The Buyer shall at its own expense supply the Company with all necessary documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Company to provide the Services in accordance with the Contract. The Buyer shall ensure the accuracy of all Input Material.
9.2 The Buyer shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Company shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Buyer from the time of delivery to or to the order of the Buyer.
9.3 The Services shall be provided in accordance with any written specification and otherwise in accordance with the Company's current brochure or other published literature relating to the Services from time to time, subject to these conditions.
9.4 The Company may at any time without notifying the Buyer make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
10. CHARGES
10.1 Subject to any special terms agreed, the Buyer shall pay the Company’s standard hourly rate for the Services and any additional sums which are agreed between the Company and the Buyer.
10.2 In addition to any sums agreed pursuant to clause 10.1, the Company may, at its sole discretion, charge for services and any Goods provided with the Services on a time and materials basis where required as a result of the Buyer’s instructions or lack of instructions, the inaccuracy of any Input Material, deviation from specification by the Buyer, or any other cause attributable
10.3 The Company may vary the Company's standard charges for the Services from time to time by giving not less than three months' written notice to the Buyer.
10.4 All charges quoted to the Buyer for the provision of the Services are exclusive of any Value Added Tax, for which the Buyer shall be additionally liable at the applicable rate from time to time.
10.5 The Company may invoice the Buyer following the end of each month in which the Service is provided, or at other times agreed with the Buyer.
10.6
11. RIGHTS IN INPUT MATERIAL AND OUTPUT MATERIAL
11.1 The property and any copyright or other intellectual property rights in:
(a) Any Input Material shall belong to the Buyer;
(b) Any Output Material shall, unless otherwise agreed in writing between the Buyer and the Company, belong to the Company, but the Buyer shall be entitled to use the Output Material for the purposes of utilising the Services by way or a non-exclusive licence, subject to payment in full of all sums payable under the Contract.
11.2 Any Input Material or other information provided by the Buyer which is so designated by the Buyer and any Output Material shall be kept confidential by the Company and all Output Material or other information provided by the Company which is so designated by the Company shall be kept confidential by the Buyer; but the foregoing shall not apply to any documents or other materials, software, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
12. VIRUS CHECKING SERVICE
Where the Services consist of or include the Company's virus checking service the Company shall use its reasonable endeavours to ensure that the Buyer is not affected by Computer Viruses but subject to clause 14.3 the Company accepts no liability whatsoever in respect of any damage, loss or disruption to the Buyer's or any other person's Computer System caused by any Computer Virus.
PART C: GENERAL
13. PAYMENT
13.1 Payment of the price for the Goods and/or Services is due not later than 14 days from the date of invoice.
13.2 Time for payment shall be of the essence.
13.3 No payment shall be deemed to have been received until the Company has received cleared funds.
13.4 All payments payable to the Company under the Contract shall become due immedi-ately upon termination of this Contract despite any other provision.
13.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
13.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
14. LIMITATION OF LIABILITY
14.1 Subject to condition 8 and 12 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 14.4
14.4 Subject to conditions 14.2 and 14.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the total payments made by the Buyer under the Contract; and
(b) the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. ASSIGNMENT
15.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15.2 The Company may assign the Contract or any part of it to any person, firm or company.
16. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume or extent of the Goods or Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 20 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
17. GENERAL
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
17.5 The parties to this Contract do not intend that any term of this Contract will be enforce-able by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
18. COMMUNICATIONS
18.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
18.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery;
(c) if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.