1.1 In these Conditions, the following definitions apply:
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions means these terms and conditions as amended from time to time in accordance with clause 16.3.
Contract means the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions and the Quotation.
Customer means the person or firm who purchases Goods from the Supplier, as identified in the Order.
Deliverables means the deliverables set out in the Quotation produced by the Supplier for the Customer.
DPA means up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the General Data Protection Regulation ((EU) 2016/679) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated form time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Goods means the goods or any part of them set out in the Order.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.
Order means the Customer’s order for the supply of Goods, as set out in the Customer’s email or purchase order form, in response to the Quotation.
Quotation means a quote issued by the Supplier for the supply of Goods and / or Services.
Services means the services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Quotation.
Software means the programs and other operating systems used in the Goods or the provision of the Services.
Supplier means Avantis Systems Limited registered in England and Wales with company number 06318008 whose registered address is Unit 2 and 3 Jessop Court, Waterwells Business Park, Quedgeley, Gloucester, England, GL2 2AP.
1.2 BASIS OF CONTRACT
1.2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
1.2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point the Contract shall come into existence (“Commencement Date”). Any telephoned orders must be confirmed by the Customer in writing to the Supplier, duly marked with any confirmation reference given by the Supplier, otherwise the Supplier cannot accept liability for any duplication of delivery that may occur. Only following the Supplier’s written acceptance will the Order be deemed to be accepted.
1.2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods and/or Services contained in the Supplier’s catalogues, Quotation or brochures are issued or published for the sole purposes of giving an approximate idea of the Goods and / or Services described in them. They shall not form part of the Contract or have any contractual force.
1.2.4 These Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, and shall prevail over any other terms and conditions contained in or referred to in any Order or other custom, and the Customer’s Order to purchase the Goods and/or Services is deemed acceptance of these Conditions.
1.2.5 No variation of these Conditions will be binding upon the Supplier unless agreed in accordance with clause 16.3.
1.2.6 Any Quotation given by the Supplier for the supply of Goods and/or Services shall not constitute an offer. Any Quotation given by the Supplier is only valid for a period of seven (7) days from its date of issue (unless otherwise agreed by the Supplier) and the Supplier shall be entitled to vary or withdraw the Quotation at its discretion after that time.
2.1 Any delivery dates stated in the Quotation or otherwise are estimates only and in regard to such date time shall not be of the essence. The Supplier shall not be liable for any delay in delivery of the Goods and/or Services that is caused by a force majeure event (as set out in clause 3 below) or the Customer’s failure to provide the Supplier with any instructions that are relevant to the supply of the Goods and/or Services.
2.2 Delivery of the Goods to the Customer’s address or any other place stipulated by him shall constitute delivery and the risk therein shall pass upon completion of such delivery to the customer.
2.3 If the Customer fails to accept delivery of the Goods within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
2.3.1 delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
2.3.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
2.4 If ten (10) Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
2.5 The company shall be entitled to make partial deliveries, or deliveries by instalments and these Conditions shall apply to each partial delivery. Each instalment shall constitute a separate Contract.
2.6 All Goods will be delivered (or credited) not more than 28 days after the original invoice date.
3. FORCE MAJEURE
3.1 The Supplier will not be deemed to be in breach of any of its obligations under the Contract or otherwise be liable to the Customer due to delay in performing or any failure to perform any such obligations by reason of any cause or event beyond the Supplier’s control including without limitation breakdown of plant or machinery, strike or industrial dispute, shortage of materials or failure of or delay in receiving supplies, act of war (whether declared or not), act of God, or any law regulation of any government or any local or municipal authority. If any such event continues for more than twenty-eight (28) days the Supplier may terminate the agreement forthwith by written notice to the Customer without prejudice to the accrued rights of either party.
4.1 Unless otherwise stated in the Quotation, the price shall be:
4.1.1 exclusive of value added tax any other taxes;
4.1.2 exclusive of carriage and insurance; and
4.1.3 exclusive of any release certificates
and the Supplier shall charge extra in respect of the above items.
4.2The price for the Goods and/or Services shall be the price set out in the Quotation.
5.1 The price set out in the Quotation is payable on demand and is dependent on the type of account opened. The type of account will be as set out in the Quotation or as otherwise agreed in writing between the parties. The types of account include:
5.1.1 Pre-Paid account: All invoices must be paid in full before Goods leave the Supplier’s premises; or
5.1.2 Credit account: All invoices must be paid in full not later than 30 days from date of invoice.
5.2 The Supplier reserves the right to suspend deliveries where payment is not received in accordance with clause 5.1 or in accordance with any alternative terms of payment agreed in writing. Time for payment shall be of the essence.
5.3 Where payment is not made in accordance with clause 5.1, then without limiting the Supplier’s remedies under clause 15 (Termination), the Customer shall pay interest on any unpaid amounts calculated at 8% above Bank of England base rate for the time being in force calculated on a daily basis.
5.4 No cash or other discounts allowed unless agreed in writing.
5.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. TITLE OF GOODS
6.1 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.2 Until title to the Goods has passed to the Customer, the Customer shall:
6.2.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.2.3 maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.2.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.2; and
6.2.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.3 Subject to clause 6.2, the Customer may resell or use the Goods in the ordinary course of business (but not otherwise) before the Supplier received payment for the Goods. However, if the Customer resells the Goods before that time:
6.3.1 it does so as principal and not as the Supplier’s agent; and
6.3.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in 15.2 then, without limiting any other right or remedy the Supplier may have:
6.4.1 the Customer’s right to resell Goods or use them in the ordinary course of business ceases immediately; and
6.4.2 the Supplier may at any time:
22.214.171.124 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
126.96.36.199 if the Customer fails to do so promptly, enter any premises of the Customer or any third party where the Goods are stored in order to recover them.
6.5 In the event that there is any Software which is proprietary, owned by the Supplier or a third party, the Customer shall comply with the terms of any end user licence agreement related to the Software.
6.6 The Customer grants to the Supplier an irrevocable licence to enter upon its premises for the purpose of inspecting the Goods, taking an inventory and reposing the same, should the Customer be in breach of any Contract entered into between the Supplier and the Customer.
7. LOSS OR DAMAGE IN TRANSIT
7.1 The Supplier will not be responsible for damage to any of the Goods or loss of the Goods or part thereof in transit unless the Customer gives written notice of a claim to the Supplier and the carrier:
7.1.1 in case of damage within three (3) Business Days of receipt of the Goods; or
7.1.2 in case of loss or shortage within three (3) Business Days of the date of the invoice.
7.2 The Customer will be asked to sign a copy of the Supplier’s carriers’ delivery manifest as acknowledgement of receipt of the Goods. The Customer should inspect the Goods thoroughly as an unqualified signature shall be deemed to signify the Customer’s acceptance that the Goods are in good condition.
8.1 If within twelve (12) calendar months of being delivered any defect of the Goods is discovered which is directly due to faulty materials of workmanship, or if a valid claim is made by the Customer under clause 7.1.1, the Supplier will at its discretion remedy the defect or damage by replacement or repair or give credit to the Customer.
8.2 The guarantee in clause 8.1 will be subject to the following conditions:
8.2.1 It will not apply to any defect or damage resulting from any alteration or modification without the Supplier’s prior written consent, incorrect storage, normal wear and tear, misuse or abnormal conditions of use, incorrect installation by anyone other than the Supplier, maintenance or repair not carried out by the Supplier, use which is not in accordance with the Supplier’s instructions, any act or omission of the Customer or any third party or any fault in any other goods or equipment;
8.2.2 The Customer must obtain by telephone or by written application a Returns Authorisation (“RMA”) number from the Supplier in respect of any such defect or damage. RMA numbers are valid for twenty-eight (28) days from the date of issue and if the Goods are not returned during that period a new RMA must be requested;
8.2.3 Allegedly defective or damaged Goods must be returned to the Supplier, carriage paid at the address confirmed by the Supplier with the original packaging and where applicable all related manuals and accessories. A valid RMA number must clearly be marked on the outside of the packaging. Any items received without a valid RMA number will be refused;
8.2.4 If the Customer makes any claim in relation to any Goods falling outside the terms of the guarantee contained in clause 8.1 the Supplier will charge the Customer a standard handling charge. Any repairs to the Goods deemed by the Supplier will be subject to a quotation and will not be carried out until the Supplier receives authorisation from the Customer; and
8.2.5 The guarantee will apply to Goods replaced or repaired under the guarantee for the balance of the original guarantee period.
9. EXCLUSION OF LIABILITY
9.1 Subject to clause 9.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with the Contract, shall be limited to the lesser of £100,000 or the total price paid under the Order under which the claim arose.
9.2 All conditions, warranties or other terms, whether express or implied, statutory or otherwise, are hereby expressly excluded providing that nothing in this clause 9 shall exclude or restrict any liability of the Supplier for death or personal injury resulting from the negligence of the company, its servants or agents or any other liability that cannot be excluded by law.
9.3 In any event the Supplier’s liability shall be limited to direct loss and shall not include indirect or consequential loss, loss of profits, loss of sales or business, loss of or damage to goodwill, loss of anticipated savings and loss of agreements and contracts.
9.4 The Supplier shall not be liable for the loss or damage to Software programs or other stored information during the upgrade or repair of any Goods whether or not the same are under warranty.
9.5 This clause 9 shall survive termination of the Contract.
10. DATA PROTECTION
10.1 Both parties will comply with all applicable requirements of the DPA. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the DPA.
10.2 The parties acknowledge that for the purposes of the DPA the Customer is the data controller and the Supplier is the data processor (where data controller and data processor have the meanings as defined in the DPA).
10.3 Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary consents and notices in place to enable lawful transfer of the Personal Data (as defined in the DPA) to the Supplier for the duration and purposes of the Contract.
10.4 Either party may, at any time on not less than 30 days’ notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of the applicable certification scheme (which shall apply when replaced by attachment to the Contract).
10.5 The Customer shall comply with the Suppliers data protection policy which may be updated from time to time.
11. RETURNED GOODS AND CANCELLATIONS
The Customer shall not return any Goods (except in accordance with clause 8) or cancel any Order without the Supplier’s previous written consent. Such consent will not be given where Goods have been specially purchased by the Supplier to meet the customer’s requirements. If the Supplier at its discretion gives consent, it reserves the right to make a cancellation charge of 25% (or such higher percentage as may be notified to the customer when such consent is given by the Supplier) of the price of the Goods plus VAT.
12. TRAINING, INSTALLATION & PROFESSIONAL SERVICES
12.1 Where a Customer purchases Services such as training, installation or professional services courses from the Supplier, the following additional conditions will apply:
12.1.1 A minimum of twenty-one (21) days advance booking is required for all Services, and is subject to availability. The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimate only and time shall not be of the essence for the performance of the Services;
12.1.2 Invoices will be raised for Services on acceptance of the Order. Delivery dates can only be guaranteed once payment has been received;
12.1.3 Should changes be necessary to the booked service date, the Customer must notify the Supplier in writing no less than seven (7) days prior to the commencement of the Services. Notification less than seven (7) days prior to the commencement date will incur a change fee equal to 20% of the cost of the Services as set out in the Quotation;
12.1.4 No refunds will be offered in the event of cancellation by the Customer;
12.1.5 Where circumstances dictate, the Supplier reserves the right to alter published programmes, trainers or fees without prior notice. In the event of any Service or course being cancelled, a refund of the course fee will be made but no compensation will be paid for any additional costs incurred by the Customer.
12.1.6 The Supplier may at its discretion engage the services of certified third party sub-contractors to provide delivery of all Services on its behalf; and
12.1.7 The Supplier does not accept responsibility for anyone acting as a result of information or views expressed on its training courses including course material. Opinions expressed are those of individual trainers and not necessarily those of the Supplier.
12.1.8 The Supplier reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
13. COPYRIGHTS, PATENTS, TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS
13.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and / or Services shall be owned by the Supplier.
13.2 All technical documents issued either before or after the conclusion of any Contract for the use or information of the Customer and such other information as may be supplied to the Customer including specifications shall not be copied reproduced or communicated to any third party without the Supplier’s prior written consent.
13.3 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and Deliverables in its business. The Customer shall not sub-licence, assign or otherwise transfer the rights granted in this clause.
13.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
14. CONSTRUCTION AND USE
The Supplier shall not be responsible for adapting or modifying any Goods to conform to statutory requirements not current at the time of acceptance of the Order.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days after receipt of notice in writing to do so.
15.2 The Supplier shall be entitled by notice in writing to terminate the Contract with immediate effect without prejudice to any claim or right the Supplier may otherwise make or exercise where
the Customer shall go into liquidation (except for the purpose of reconstruction) or if any petition or resolution to wind up the Customer shall be presented or if a receiver is appointed of the Customer’s undertaking 15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days after receipt of notice in writing to do so.
15.2 The Supplier shall be entitled by notice in writing to terminate the Contract with immediate effect without prejudice to any claim or right the Supplier may otherwise make or exercise where
the Customer shall go into liquidation (except for the purpose of reconstruction) or if any petition or resolution to wind up the Customer shall be presented or if a receiver is appointed of the Customer’s undertaking.
16.1 This Contract contains the entire understanding between the parties in connection with the matters herein contained and supersedes any previous agreements, statements or undertakings (whether written, oral or implied) relating to the subject of the Contract. The parties acknowledge that in entering into the Contract neither has relied on any oral or written representation or undertaking by the other except as expressly incorporated in the Contract. Nothing in this clause 16.1 will exclude any liability in respect of misrepresentations made fraudulently.
16.2 A waiver by either party of any right under the Contract, or of any failure to perform or breach hereof by either party, shall not constitute or be deemed to be a waiver of any other or future right hereunder or of any other failure to perform or breach hereof, whether of a similar or dissimilar nature.
16.3 No variation of the Contract shall be valid unless it is in writing and signed by or on behalf of a duly authorised representative of each of the parties. For the purposes of this clause “writing” shall not include email.
16.4 For the purpose of the Contract, the Supplier shall be an independent contractor, and neither the Supplier nor its sub-contractors nor its directors or employees nor any one of them, shall be deemed to be an employee or agent of or a partner with the Customer.
16.5 The Customer shall not assign the Contract in whole or in part without the prior approval of the Supplier (such approval not to be unreasonably withheld or delayed). The Supplier shall be entitled to assign, or sub-contract any of its obligation under the Contract in whole or in part at any time without consent.
16.6 The person who is not a party to the Contract shall not have any rights under or in connection with it.
16.7 Any notice under the Contract must be given in writing to the addresses set out in the Quotation and if no address is given, the registered office of such party. Any such notices shall be effective if delivered by recorded delivery (delivery deemed to have taken place at the date and time recorded) or pre-paid first class post (delivery deemed to have taken place at 9.00am on the second Business Day after posting).
16.8 Each provision of the Contract is severable and distinct from the others and if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of the Contract, but the validity, legality and enforceability of all other provisions of the Contract shall not otherwise be affected or impaired, it being the parties intention that every provision of the Contract shall be and remain valid and enforceable to the fullest extent permitted by law.
16.9 The Contract, including any non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English and Welsh courts.