Terms & Conditions
In these Terms and Conditions the following words shall have the following meanings:
1.1 “the Company” shall mean on365 Ltd (Company Number: 2521369).
1.2 “the Goods” shall mean all goods, materials, manuals, equipment and packaging supplied by the Company to the Customer whether or not manufactured or produced by the Company.
1.3 “the Customer” shall mean any person with whom the Company contracts.
1.4 “Contract” shall mean a contract between the Company and the Customer which is subject to these Terms and Conditions.
2. MAKING THE CONTRACT
2.1 All estimates and quotations of the Company comprise of an invitation to treat which is open for a period of thirty (30) days from the date thereof PROVIDED THAT the Company has not previously withdrawn it within that period. Any order issued by the Customer shall constitute an offer (an offer made by the Customer orally should be confirmed in writing by the Customer) and is subject to acceptance by the Company and a Contract will only be formed when the Company has accepted the Customer’s offer to buy in writing.
2.2 All orders are accepted subject to these Terms and Conditions alone and supersede all previous agreements between the parties relating to the same subject matter and exclude any purported terms and conditions in the Customer’s order.
2.3 No variation of these Terms and Conditions is permitted unless expressly accepted by a Director of the Company in writing.
2.4 No servant or agent of the Company has authority to make any representation or give any warranty in relation to the Goods and if any statement or representation has been made to the Customer by the Company, its servant or agents upon which the Customer relies other than in the documents enclosed with the Company’s quotation or acknowledgement of order then the Customer must set out that statement or representation in a document to be attached to or endorsed on the order and in any such case the Company may confirm reject or clarify the same and submit a new estimate/quotation.
3.1 No cancellation by the Customer is permitted except where expressly agreed by a Director of the Company in writing.
3.2 Any variation in an order which is accepted by the Company shall entitle the Company to make an appropriate variation in prices and delivery times which shall bind the Customer.
3.3 Minor deviations by the Company shall not constitute a breach of contract. If the material specified is not available the Company reserves the right to substitute the nearest alternative, without notice.
3.4 The Customer will in event of agreed cancellation indemnify the Company fully against all expense and loss incurred up to the time of cancellation together with by way of liquidated damages a sum of Twenty per cent (20%) of the Contract price which shall be paid by the Customer to the Company forthwith.
4.1 Unless otherwise stated all prices quoted are for the cost of the Goods alone ex works exclusive of V.A.T.
4.2 All prices quoted are subject to revision or withdrawal by the Company without prior notice (until the Contract is made).
4.3 The Company reserves the right at any time prior to delivery of the Goods to adjust the price to take account of any increase in the cost of raw materials, labour or service or any currency fluctuations affecting the cost of imported materials.
4.4 Carriage, postage and packing will be charged extra.
5. TERMS OF PAYMENT
5.1 All payments must be made by our SagePay account. The purchaser can use most major Debit and Credit Cards and PayPal.
5.2 Time of payment shall be of the essence.
5.3 The Company reserves the right to charge interest at Three per cent (3%) per annum above the Base Lending Rate of Barclays Bank PLC on all overdue accounts, such interest being deemed to accrue on a day to day basis from the due date for payment under Clause 5.1
5.4 If the Customer (being a Company) suffers distress or execution against its property, has a Petition presented for its winding-up or passes a Resolution for voluntary winding-up otherwise than for the purpose of a bona fide amalgamation or reconstruction or compounds or makes a voluntary arrangement with its creditors (or carries out or suffers any analogous act or event under foreign law) or commits a material or serious breach of a Contract (and in the case of such a breach being remediable fails to remedy it within Seven (7) days of receiving notice to do so) it will be deemed to have repudiated the Contract.
5.5 The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivery of any order.
5.6 Payment will not be affected until clearance of cheque or bill of exchange.
6.1 Delivery will be deemed to have been affected when the Goods are delivered to the Customer or order of the Customer or its agent.
6.2 Time of delivery is not of the essence.
6.3 The Company shall not be liable for any loss whatsoever or howsoever arising caused by its non-delivery (or by the failure to make Goods ready for collection) on the due-date.
6.4 The Company reserves the right to make delivery by instalments and to render a separate invoice in respect of each instalment and such invoice shall be payable as in Clause 5.1
6.5 When delivery is by instalment or if there be delay in the delivery of any one or more instalments for whatever reason this will not entitle the Customer to treat a Contract as repudiated or to damages.
6.6 Where delivery is refused by the Customer or is delayed, suspended, or made by instalments at the request of the Customer or where the Company is unable to deliver the Goods due to circumstances beyond its control, the Company on giving notification of readiness to deliver shall be entitled to treat the Contract as fulfilled and place the Goods into store. Delivery will then be deemed to have taken place for invoicing and payment as in Clause 5.1 and the passing of risk. The Company at the Customer’s request shall and in any event may arrange insurance covering the major perils endorsing its own interest. The cost of storage and any insurance of the Goods shall be for the Customer’s account.
6.7 When the Company conveys the Goods the Customer shall be responsible for providing proper unloading facilities (including adequate plant and labour) and storage facilities.
6.8 Where specifications are to be supplied the Customer shall supply the same in reasonable time to enable the Company to
complete delivery within any agreed delivery period.
6.9 Where specifications are supplied by the Customer and include drawings and plans, the Company shall be entitled to assume that all dimensions on such drawings and plans are accurately represented therein and the Contract shall be deemed to be fulfilled by the Company PROVIDED THAT the Goods manufactured by the Company conform to the dimensions so supplied or if appropriate to samples accepted by the Customer as satisfactory.
7. RISK AND PASSING OF TITLE
7.1 Goods supplied by the Company shall be at the Customer’s risk immediately on delivery in accordance with Clause 6.1 and the Customer should therefore be insured accordingly.
7.2 Notwithstanding that risk in the Goods shall pass to the Customer in accordance with clause 7.1, title to the Goods (whether they remain separate and identifiable or not, or whether they are incorporated in or are mixed with other goods belonging to the Company, the Customer or a third party) shall remain with the Company until payment in full has been received by the Company:
7.2.1 for those Goods;
7.2.2 for any other goods supplied by the Company;
7.2.3 of any other monies due from the Customer to the Company on any account and for any reason.
7.3.1 Until title to the Goods passes to the Customer as above the Customer shall keep the Goods separately and readily identifiable as the property of the Company; not attach the Goods to real property without the Company’s consent; not sell the Goods to a third party (whether as part of another product or alone).
7.3.2 Notwithstanding clause 7.3.1, any resale by the Customer in which property has not passed to the Customer shall be a sale by the Customer as bailee of the Company (as between the Company and the Customer only) and subject to the following provisions, the Customer owes to the Company the normal fiduciary obligations of a bailee by way of custody in respect of the Goods. In so far as the Customer shall, or shall purport to, offer for sale and sell the goods, it shall do so only at the best obtainable price in the ordinary course of its business as principal and not as agent for the Company. The Company shall, by reason of the said relationship of bailment between the Customer (as bailee) and itself (as bailor), be and remain legally and beneficially entitled to the proceeds of sale and the Customer shall pay such proceeds of sale into a separate account or, otherwise, shall ensure that all the proceeds of sale are kept by or on behalf of the Customer in a separate and identifiable
form. The proceeds shall not be paid into an overdrawn bank account. Upon receipt of the proceeds of sale, the Customer shall discharge the debt due to the Company and shall not use or deal with the proceeds of sale in any way whatsoever until such debt has been discharged.
7.4 The Customer’s rights to possession of the Goods shall cease if it does anything or fails to do anything which would entitle an Administrator or Administrative Receiver to take possession of any assets or would entitle any person to present a petition for winding up.
7.5 The Customer grants the Company an irrevocable license to enter at any time any vehicles or premises owned or occupied by the Customer or in its possession for the purpose of repossessing and removing any such Goods the property in which it has remained in the Company under Clause 7 hereof. The Company shall not be responsible for and the Customer will indemnify the Company against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid when exercising its rights in accordance with this Clause 7.
7.6 Notwithstanding clause 7.3.2, the Customer must ensure that if the Goods are to become affixed to any land or building they shall be capable of being removed without material injury to such land or building and to take all necessary steps to prevent title to the Goods from passing to the landlord (if any) of such land or building. The Customer warrants to repair and make good any damage caused by the affixation of the Goods to or their removal from any land or building and to indemnify the Company against all loss damage or liability it may incur or sustain as a result of such affixation or removal.
7.7 The Customer is licensed by the Company to process the Goods but in so doing confirms a bailment for processing relationship with the Company, the new product or products or any chattel created shall be separately stored and marked so as to be identifiable as the property of the Company as bailor.
8. LIEN AND STOPPAGE
8.1 Until the title in the Goods has passed to the Customer the Company has the right to withhold delivery in any of the circumstances mentioned in Clause 5.4
8.2 When the title in the Goods has passed to the Customer before payment for them is received by the Company in any of the circumstances mentioned in Clause 5.4 the Company has:
8.2.1 A lien on the Goods so long as the Company is in possession of them;
8.2.2 A right of stoppage in transit; and
8.2.3 A right of resale.
9.1 The Customer is under a duty wherever possible to inspect the Goods on delivery or on collection as the case may be.
9.2 Where the Goods can not be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
9.3 The Company shall be under no liability for any defects or shortages that would be apparent on careful inspection if the terms of Clauses 9.1 and 9.2 are not complied with, and, in any event, will be under no liability if in written complaint is not delivered to the Company within seven (7) days of delivery detailing the alleged defect of shortage. Damage in transit by a carrier must also be notified to it within the time imposed by the Contract.
9.5 Returns of either defective or non-defective Goods must be cleared with the Company before their return (all defective or non-defective Goods must be returned by the Customer). In the case of defective Goods returned with prior approval to the Company to replace, these must be returned to the Company delivery paid. In the case of non-defective Goods approved for return, these must be returned to the Company works delivery paid and, in addition, the Company reserves the right to charge Twenty percent (20%) handling charge. Where it is not practical to return defective Goods because of their size, weight or permanent installation the Company reserves the right to charge for all works and costs involved in attending and returningthe Goods. All charges will be in accordance with those prevailing at the time of repair.
9.6 Subject to Clause 9 and 10 the Company shall be under no liability for shortage or defect.
10.1 The Company shall not be liable for any consequential loss or indirect loss suffered by the Customer whether this loss is as a result of a breach of a duty in contract or tort in any other way (including loss arising from the Company’s negligence, other than claims in relation to death or personal injury). Non-exhaustive illustrations of consequential or indirect loss would be:
10.1.1 loss of profits;
10.1.2 loss of contracts;
10.1.3 damage to property of the Customer or anyone else; and
10.1.4 personal injury to the Customer or anyone else (except so far as such injury is attributable to the Company’s negligence);
10.1.5 site labour costs including removal, replacement or making good or delay or disturbance to other works.
10.2 The Company’s total liability for any one claim or for the total of all claims (other than claims in relation to death or personal injury arising from the Company’s negligence) arising from any one act or default of the Company (whether arising from the Company’s negligence or otherwise) shall not exceed the amount of insurance which is available to the Company in relation to any claim that is made against the Company.
10.3 The Customer will keep the Company indemnified against all actions, costs, claims and liability arising from faulty or unsuitable instructions given by the Customer or from allegations of breach of the Intellectual Property rights of a third party arising out of the Customer’s instructions.
10.4 In the case of Goods not manufactured by the Company, the Company gives no representation, warranty or condition whatsoever that the sale or use of the Goods will not infringe the Intellectual Property rights of any other person, firm or company and the Customer is required to make its own representations regarding the same.
11. FORCE MAJEURE
11.1 The Company shall not be liable for any failure to deliver the Goods arising from circumstances outside the Company’s control.
11.2 Non-exhaustive illustrations of such circumstances would be act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lock-outs, local, national or supra-national government action or regulations (UK or otherwise), delay by suppliers, accidents and shortages or materials, labour or manufacturing facilities.
11.3 Should the Company be prevented from delivering in the above circumstances, it shall give the Customer written notice of this fact as soon as reasonably practicable after discovering it.
11.4 If the circumstances preventing delivery are still continuing Three (3) months after the Customer receives the Company’s notice, then either party may give written notice to the other cancelling the Contract.
11.5 If the Contract is cancelled in this way, the Company will refund any payment which the Customer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Customer) but the Company will not be liable to compensate the Customer for any further loss or damage caused by the failure to delivery.
Drawings, catalogues technical circulars, price lists and other literature issued by the Company are for the Customer’s general guidance only and the particulars contained therein shall not constitute representations by the Company and the Company shall not be bound thereby.
13. PROTECTION OF INTELLECTUAL PROPERTY
13.1 The trademarks, trade names, know how copyrights, design rights, goodwill, patents and all other proprietary rights (the “Intellectual Property”) arising out of existing in or upon the Goods or the documentation referred to in Clause 12 are the property of the Company.
13.2 The Customer shall not cause or permit anything which may damage or endanger the Intellectual Property of the Company of the Company’s title to it nor assist nor allow to do so and shall maintain as confidential both during the Contract as well as at all times thereafter all information relating to the Company the Goods and the Intellectual Property.
13.3 The Customer shall notify the Company of any suspected infringement of the Intellectual Property
13.4 The Customer shall not tamper with any markings or name plates or other indications of the source or origin of the Goods which may be placed by the company upon the Goods.
13.5 The Intellectual Property is licensed on a non-exclusive basis to the Customer but such licence shall automatically be revoked in the event that any of the circumstances mentioned in Clause 5.4 apply and in the event that payment is not made in accordance with Clause 5.
Any notice to be served on either of the parties by the other shall be in writing and sent to the last known address of the recipient or to such other address as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be hand delivered or be sent by Recorded or Special Delivery post or , facsimile transmission and shall be deemed to have been effectively served if by hand when delivered, if by Recorded or Special Delivery post Forty Eight (48) hours after posting and if by facsimile transmission when despatched.
The Customer shall not assign or transfer or purport to assign or transfer the Contract or the benefits there of to any other person without the prior written consent of the Company.
16. PROPER LAW AND JURISDICTION
The Contract shall be governed by and constructed in accordance with English Law (including English Conflict of Laws) and all disputes arising in connection with the Contract shall be submitted to the jurisdiction of the English Courts.
The headings of the conditions are for convenience only and shall have no effect on the interpretation thereof.