Terms & Conditions of Sale

1. Definitions and Interpretation

1.1 The following words have the following meaning in these terms and conditions (“Conditions”):

“Applicable Laws” all applicable statutes, regulations, decisions, rulings, sanctions, governmental and regulatory policies, industry guidelines and/or codes of practice, including Sanctions and Export Controls.

“Buyer” means the company, firm, body or person so named in the Sales Confirmation, being the purchaser of the Goods.

“Collection Point” means the Seller’s warehouse at the address set out in the Sales Confirmation.

“Contract” means a contract between the Buyer and the Seller for the supply of any Goods and/or Services (as applicable), consisting of these Conditions and any Sales Confirmation issued by the Seller in accordance with condition 3.3.

“Delivery Location” the address to which the Goods are to be delivered, as set out in the Sales Confirmation or otherwise agreed in writing with the Buyer.

“Goods” means the hardware, equipment and any software specified in a Sales Confirmation.

“Order” an order by the Buyer for the purchase of any Goods and/or Services.

“Quotation” a quotation provided by the Seller to the Buyer in respect of any Goods or Services.

“Sales Confirmation” the sales confirmation document issued by the Seller to the Buyer, setting out the Buyer entity, the Goods and/or Services to be provided by the Seller, the price of the Goods and any charges for the Services, and if known at the time of issuing the Sales Confirmation, the Delivery Location.

“Sanctions and Export Controls” means all laws and regulations relating to economic and trade sanctions and export controls of (without limitation) the UK, US and EU and any other sanctions and export control laws and regulations applicable to the Buyer or the Goods.

“Seller” means Vesper Technologies Ltd (company number 08962068, with registered office address Unit 5, Rugby Park Bletchley Road, Heaton Mersey, Stockport, SK4 3EJ).

“Services” any services to be provided in respect of the installation of the Goods, as set out in a Sales Confirmation, and as may be further described in a Statement of Work.

“Specification” means a specification for any Goods described as ‘Build to Order’ or ‘Configure to Order’, issued by the Seller to the Buyer with the Quotation.

“Statement of Work” a statement of work issued by the Seller to the Buyer with the Quotation, setting out a description of any Services to be provided.

1.2 Condition headings do not affect the interpretation of these Conditions. References to conditions are to the conditions within these terms and conditions.

1.3 A reference to any statute or statutory instrument shall be construed as including a reference to any modification, extension or re-enactment thereof from time to time.

1.4 Words in the singular include in the plural and vice versa.

1.5 Any words following the terms “including”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Application of conditions

2.1 All Quotations provided by the Seller, and any Orders placed by the Buyer, are made subject to and in accordance with these Conditions.

2.2 These Conditions shall apply to all Orders and are incorporated in the Contract to the exclusion of any other terms or conditions contained in or referred to in the Buyer’s purchase order, confirmation of order and/or other documentation and/or which are implied by law, trade custom, practice or course of dealing.

2.3 The Contract comprises these Conditions and the relevant Sales Confirmation. In the event and to the extent of any conflict between these Conditions and the Sales Confirmation, these Conditions shall take precedence.

2.4 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Seller unless in writing and signed by a duly authorised representative of the Seller.

2.5 The United Nations Convention of the International Sale of Goods shall not apply to the Contract.

2.6 It is the Buyer’s obligation and responsibility, at its own cost, to comply with all Applicable Laws relating to the possession, use, import, export and/or resale of the Goods.

2.7 Where necessary, the Buyer shall inform the Seller at a reasonable time before delivery of any documents which it is necessary for the Seller to provide in order to allow export of the Goods in compliance with Applicable Laws in the relevant jurisdiction.

3. Basis of Sale

3.1 Any Quotation provided by the Seller is only valid for as long as the Seller’s costs or fees remain unchanged and the Seller is able to fulfil the order at the price provided in the Quotation. Notwithstanding any validity period which may be set out in a Quotation, the Seller may withdraw its Quotation without liability at any time (including during such validity period), for any reason, by giving notice to the Buyer, including where the Seller’s fees or cost structure has changed. All Quotations are subject to the availability of the Goods.

3.2 The Buyer shall ensure that all Orders are complete and accurate. The Seller shall not be obliged to agree to any amendments to an Order once the Order has been accepted by the Seller in accordance with condition 3.3.

3.3 Any Order placed by the Buyer shall be deemed to be an offer by the Buyer to purchase the relevant Goods and/or Services, subject to these Conditions, and shall be subject to acceptance by the Seller, entirely at the discretion of the Seller, at which point, the Seller shall issue a written Sales Confirmation.

3.4 A binding contract shall not come into existence between the Seller and the Buyer unless and until the Seller issues a Sales Confirmation to the Buyer.

3.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

3.6 The Buyer indemnifies the Seller in full and holds the Seller harmless from and against all losses, damages, costs, penalties, fines, expenses and liabilities that the Seller may incur (directly or indirectly including financing costs and legal costs on a full indemnity basis) following any breach by the Buyer of any of its obligations under these Conditions.

3.7 To the extent that the Goods include software, the Buyer acknowledges and agrees that:

• (a) the Seller is reselling such software as a reseller, and the Buyer’s use of such software is subject to the rights and restrictions for use of the software as are imposed by the relevant software provider. The Seller gives no warranty in respect of such software and shall not be liable to the Buyer in respect of any defect or error in such software or any other loss, damage, costs, penalties, fines, expenses or liabilities arising from use of such software, but nothing in this condition shall affect any warranty that may be provided by any third party in respect of any such software;
• (b) the Buyer shall comply with all applicable licence agreements, terms of use and registration requirements relating to the same;
• (c) nothing in these Conditions will be construed as assigning to the Buyer any intellectual property rights in such software;
• (d) the Seller accepts no returns in respect of the software.

4. Quantity and Description

4.1 The quantity and description of the Goods shall be as set out in the Sales Confirmation.

4.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller, and any descriptions or illustrations contained in the Seller’s catalogues, brochures and/or other advertising materials are issued or published for illustrative purposes only and they do not form part of the Contract.

4.3 In the event that the price of the Goods quoted by the Seller to the Buyer is incorrect due to any typographical or any other error or omission, including any error or omission by a third party manufacturer or vendor (but excluding the circumstances set out in condition 7.4), the Seller will notify the Buyer as soon as such a mistake comes to the Seller’s attention, and:

• (a) if the correct price of the Goods is less than the quoted price, the Buyer will be charged the lower amount when the Goods are dispatched;
• (b) if the correct price of the Goods is higher than the quoted price, the Seller shall provide the Buyer with the option to either cancel the order for the affected Goods or choose to continue with the order at the correct higher price.

5. DELIVERY, SAFETY & RISK

5.1 The Goods shall either be delivered to the Delivery Location or collected by the Buyer from the Collection Point, as agreed by the parties and set out in the Sales Confirmation or otherwise agreed by the parties in writing. Delivery shall take place as follows:

• (a) where the Goods are to be delivered to the Buyer, delivery shall take place at the Delivery Location, when the Goods are placed at the disposal of the Buyer, ready for unloading. Risk in the Goods shall pass to the Buyer immediately prior to off-loading the Goods at such Delivery Location and off-loading the Goods shall be at the risk of the Buyer; or
• (b) where the Goods are to be collected by the Buyer, delivery shall take place at the Collection Point, when the Goods are made available to the Buyer for collection, on the date agreed by the parties. Risk in the Goods shall pass to the Buyer immediately prior to loading the Goods, and the Goods shall be loaded onto the Buyer’s means of carriage at the risk of the Buyer.

5.2 Any times for delivery or collection stated by the Seller are given in good faith but are estimates only and are subject to revision from time to time. The Seller shall notify the Buyer when the Goods are ready for delivery or collection, and the parties shall agree a date for delivery or collection. Time for delivery or making the Goods available for collection is not of the essence. Delay in the delivery of the Goods shall not be a breach of the Contract and the Seller shall not be liable for the consequences of any delay in delivery, howsoever caused.

5.3 The Seller may deliver the Goods in advance of the estimated delivery date on written notice to the Buyer.

5.4 Where the Goods are to be delivered to the Buyer, the Buyer shall be responsible for preparing the Delivery Location for the delivery of the Goods and provision of any Services, and for procuring all necessary access and facilities reasonably required to deliver the Goods. The Seller may decline to deliver the Goods if it feels that it would be unsafe, unlawful or unreasonably difficult to do so or if the premises (or access to them) is unsuitable. If the Seller is prevented from carrying out delivery or installation on the agreed date due to reasons set out in this condition 5.4, or the Buyer fails to take delivery of or collect the Goods on the agreed date:

• (a) the Seller may (in its absolute discretion, without limiting or affecting any other right or remedy available to it) charge the Buyer, and the Buyer shall be liable to pay to the Seller, in addition to any other sums payable under the Contract:
  • (i) additional sums to cover the Seller’s costs and losses arising from this event, including the costs of attempting to deliver the Goods to the Buyer, and any additional costs of handling, storing and insuring the Goods pending delivery or collection; and
  • (ii) for the attendance of the Seller’s personnel, agents or contractors, to carry out any Services, and may charge the Buyer for any additional costs incurred in relation to the performance of the Services at an alternative time;
• (b) the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay in delivering the Goods and/or performing the Services.

5.5 The Buyer shall inspect the Goods on delivery. If any Goods are delivered damaged, the Buyer must immediately notify the Seller and in any event within 24 hours of delivery. In the event that written notification of damage or defect on delivery is not received by the Seller within the requisite time then the Buyer shall be deemed to have accepted the Goods and delivery shall be complete.

5.6 In respect of any damage or defect which is not apparent on delivery, the Buyer shall notify the Seller as soon as reasonably possible and in any event (a) within 7 days of delivery where the Goods are damaged during delivery and the damage is not apparent on delivery; and (b) within 30 days of delivery where Goods are defective and the defect would not have been apparent on delivery.

5.7 Should the Buyer notify the Seller that the Goods are damaged or defective in accordance with condition 5.5 or 5.6, the Buyer shall grant the Seller (and/or its carrier or other authorised representative) access to the premises on which the Goods are stored and to the Goods in order that the Goods may be inspected.

5.8 Where the Buyer has notified the Seller of any damage or defect in accordance with condition 5.5 or 5.6, condition 11.4 shall apply. The Seller shall not be liable in respect of any loss, damage or defect to the Goods which arises:

• (a) during the loading or unloading of the Goods when the Buyer collects the Goods, or during the unloading of Goods when the Seller delivers the Goods;
• (b) due to the installation, handling, use, storage, repair to or alteration of the Goods by, or negligence of, the Buyer or any other person following delivery.

5.9 The Seller may deliver the Goods in instalments. Each instalment shall be treated as a separate Contract. Where the Goods are to be delivered in instalments and the Buyer either:

• (a) fails to accept any delivery of an instalment when due; or
• (b) defaults in making any payment of an instalment when due,

then the Seller may cancel any or all subsequent deliveries and the Buyer shall indemnify the Seller in full for any loss, costs or expenses arising from such cancellation.

5.10 Some Goods may come with a manufacturer’s warranty or guarantee. The Seller shall pass on the benefit of any such warranty or guarantee to the Buyer. For details, the Buyer should refer to the manufacturer’s warranty or guarantee provided with the Goods.

5.11 The Buyer is responsible for obtaining at its own cost such import licences and other consents that are required in respect of delivery of the Goods and, if required by the Seller, the Buyer shall make those licences and consents available to the Seller prior to delivery.

6. SUPPLY OF SERVICES

6.1 The Seller shall supply the Services set out in a Sales Confirmation and any Statement of Work to the Buyer with all reasonable skill and care.

6.2 Any dates for the performance of the Services shall be estimates only and time shall not be of the essence for the performance of the Services.

6.3 The Seller may sub-contract the supply of the Services to a third party.

7. PRICE

7.1 Unless otherwise stated by the Seller and subject to any adjustment permitted by these conditions, the price for the Goods will be the price set out in the Sales Confirmation, subject to conditions 7.2, 7.3, 7.4 and 7.5.

7.2 The price in a Quotation or Sales Confirmation does not include, unless expressly agreed in the Sales Confirmation (and subject to condition 7.3):

• (a) any VAT and/or any other tax, tariff or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods;
• (b) any cost of delivery, shipping and/or carriage;
• (c) any special packaging, alteration or modification to the order required by the Buyer; or
• (d) any insurance,

which shall be payable by the Buyer in addition to the price of the Goods.

7.3 Any amount included in a Quotation or Sales Confirmation in respect of tariffs or duties is an estimate or rough guide only, based on information available at the time. The Seller provides no advice in respect of the tariffs or duties which may be payable on the transportation, export, import, sale or delivery of the Goods, and the Buyer may not rely on any such information, and must take its own advice on its liability for any tariffs or duties. The Buyer shall be liable for the full cost of any such tariffs or duties, unless expressly agreed otherwise in the Sales Confirmation.

7.4 The price of the Goods is based on the description and quantity of the Goods as set out in the Sales Confirmation. The Seller may amend the price to cover any change in quantity or requirements of the Buyer, or any increase in cost which may arise as a result of additional or incomplete instructions or information being provided by the Buyer.

7.5 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery (including after the date of the Sales Confirmation), to increase the price of the Goods in an Order, to reflect any increase in the cost of the Goods that is due to:

• (a) any increase in the price of the Goods by a third party vendor or manufacturer after the date of the Quotation or Sales Confirmation; or
• (b) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, component parts, materials and other such costs).

In such event, the Buyer shall be liable for such increase, and may not cancel the Order unless, in the circumstances set out in paragraph (a) above, cancellation is expressly permitted by the relevant third party vendor or manufacturer, and subject always to any terms and conditions imposed by the relevant third party vendor or manufacturer in respect of the cancellation (including payment by the Buyer of any applicable cancellation or re-stocking fees).

7.6 The Seller may require the Buyer to pay a deposit at the time of order. Any deposit paid by the Buyer is non-refundable.

7.7 The charges payable by the Buyer for the Services shall be calculated on a time and materials basis, at the rates set out in the Sales Confirmation. Any estimate of time for the provision of the Services is an estimate only.

7.8 The Seller shall be entitled to charge the Buyer for any expenses reasonably incurred in connection with the provision of the Services including travelling expenses, hotel costs, subsistence and any associated expenses.

7.9 Rates of tax and duty on the Goods or Services will be those applying at the time of delivery of the Goods or Services. The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller any value added tax that is chargeable on the supply of the Goods or Services.

7.10 Quotations in a currency other than pounds sterling are based on the rate of exchange at the time of Quotation and (unless otherwise agreed in writing between the parties) the Seller reserves the right to vary the price if a different rate of exchange is applicable at the date of invoice.

7.11 Unless otherwise stated in a Sales Confirmation and except in respect of any deposit required from the Buyer at the time of order, the Seller may invoice the Buyer for the Goods at any time on or after dispatch of the Goods or any instalment of the Goods (as appropriate).

7.12 If any delivery is postponed at the request or by the default of the Buyer then the Seller may submit a pro forma invoice or request payment for the Goods, at any time after the Goods are ready for delivery or would have been ready but for such request or default on the part of the Buyer.

8. PAYMENT TERMS

8.1 The Buyer shall pay the price of the Goods and the charges for any Services in cleared funds as follows:

• (a) prior to the date of delivery of the Goods, unless they have an approved credit account with the Seller;
• (b) if the Buyer has an approved credit account with the Seller, within 30 days of the date of invoice from the Seller;
• (c) in respect of any Services, within 30 days of the date of invoice from the Seller, unless otherwise agreed by the Seller in the Sales Confirmation.

8.2 If the Buyer fails to pay the Seller any amount in full on the due date, the Seller may, without prejudice to any other right or remedy available to the Seller:

• (a) require the Buyer to pay the whole of the balance of the price for the Goods or Services which has not yet been paid;
• (b) terminate the Contract or suspend or cancel the delivery of the Goods or provision of the Services, or any future deliveries of Goods or provision of Services under a separate Contract;
• (c) cancel any discount offered to the Buyer; and/or
• (d) charge interest on the amount outstanding at the rate equivalent to that set pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, calculated (on a daily basis) from the date of invoice until the date of payment (before and after any judgment, unless the court orders otherwise), compounded on the first day of each calendar month.

8.3 If the Buyer has an approved credit account the Seller reserves the right to withdraw it or reduce the credit limit or bring forward the date for repayment. The Seller may do any of these at any time without notice.

8.4 The Buyer does not have the right to withhold payment or set off any monies due to the Seller against any monies the Seller owes to the Buyer.

8.5 Without prejudice to the other rights and remedies that it may have at contract and at law, whilst the Buyer owes money to the Seller, the Seller has a general lien on any of the Buyer’s Goods or other property in the Seller’s possession. The Seller shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of the Goods or other property in such manner and at such price as it thinks fit and to apply the proceeds towards the amounts outstanding.

8.6 The Buyer consents to the Seller making credit reference and other enquiries for the purpose of assessing the credit worthiness of the Buyer and holding the results of the same for its records.

8.7 Without prejudice to any other rights it may have under law and this Contract, all sums payable to the Seller under the Contract become immediately due and owing on its termination.

8.8 Time for payment of the price shall be of the essence of the Contract.

9. TITLE TO THE GOODS

9.1 Title to and ownership of the Goods shall only pass from the Seller to the Buyer once the Seller has received payment in full and cleared funds for those Goods.

9.2 Until such time as title has passed, the Buyer shall:

• (a) have possession of the Goods on a fiduciary basis as bailee for the Seller;
• (b) store the Goods in appropriate conditions and separately from all the Buyer’s other goods and equipment or that of a third party, so that they remain readily identifiable as the Seller’s property;
• (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
• (d) take all reasonable care in relation to the Goods and maintain the Goods in good condition, and keep the Goods insured for their full price against all risks, and note the Seller on the insurance policy; and
• (e) permit or procure for the Seller, its agents or employees, access to any premises where the Goods are stored in order to inspect them.

9.3 Notwithstanding condition 9.1, the Buyer may use or re-sell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware of any event or circumstance specified in condition 14.1(c) – (h).

9.4 If at any time before title to the Goods passes to the Buyer pursuant to condition 9.1, any of the circumstances set out in condition 14.1(c) – (h) arise or the Buyer fails to make any payment to the Seller on the due date, the Buyer’s right to possession of the Goods shall terminate immediately and the Seller may require the Buyer to deliver up the Goods in the possession, custody or control of the Buyer, and if the Buyer fails to do so promptly, the Buyer shall permit or procure for the Seller, its agents or employees, access to any premises where the Goods are stored in order to recover them.

9.5 The Buyer shall inform the Seller (in writing) immediately if the Buyer becomes subject to any of the events listed in condition 14.1(c) to (h).

9.6 Notwithstanding the Seller’s retention of title to the Goods, the Seller reserves the right to take legal proceedings to recover the price of Goods supplied should the Buyer not pay the Seller by the due date.

9.7 If the Buyer uses a banking facility, factor or invoice discounter who may claim security over the Buyer’s assets, the Buyer must notify such entity of the Seller’s property rights over Goods pursuant to this condition 9.

9.8 On termination of the Contract for any reason, the provisions of this clause 9 shall remain in effect.

10. WARRANTY AND LIMITATION OF LIABILITY

10.1 The Seller warrants to the Buyer that the Goods, as at the time of delivery:

• (a) materially comply with their description on the Seller’s Sales Confirmation (except where changes are required to ensure the Goods comply with applicable statutory or regulatory requirements); and
• (b) are free from material defect (save in respect of software which is not subject to any warranty from the Seller).

10.2 The Seller gives no other warranties and hereby excludes to the maximum extent permitted by law the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and all other warranties, representations, terms and other conditions (whether express or implied) as to the Goods and/or their delivery. Any extended warranties purchased by the Buyer in respect of the Goods are provided by third parties and accordingly the Seller shall have no liability in respect of any such extended warranties.

10.3 The Seller shall under no circumstances whatever be liable to the Buyer, whether in tort (including negligence), contract, misrepresentation or otherwise for any:

• (a) loss of profits;
• (b) loss of sales or business;
• (c) loss of goodwill;
• (d) loss of anticipated savings;
• (e) loss of goods;
• (f) loss of agreements or contracts;
• (g) loss of funding;
• (h) loss or corruption of data or information; or
• (i) special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, arising under or in connection with the Contract.

10.4 Subject to condition 10.5 the Seller’s total liability to the Buyer in contract, tort (including negligence), misrepresentation, restitution or otherwise arising under or in connection with the Contract shall be limited:

• (a) in respect of the Goods, to the amount paid by the Buyer for the relevant Goods; and
• (b) in respect of any Services, to the amount paid by the Buyer for the relevant Services.

10.5 Nothing in these terms restricts or limits the Seller’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979 or any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

10.6 The Seller hereby excludes all liability in respect of all and any claims that the sale, supply and/or use of the Goods infringes the intellectual property of a third party.

10.7 The Seller may from time to time provide information to the Buyer as to the compatibility and/or capacity of Goods with other systems, and/or in respect of the application or use of the Goods. The information provided is not advice, and may be dependent on the Buyer’s systems and/or other factors. The Buyer is responsible for ensuring that the Goods are compatible with its own systems and suitable for its own use, and relies on all such information at its own risk. The Seller hereby excludes, to the maximum extent permitted by applicable law, all liability to the Buyer should it rely on or otherwise take action in respect of any such information provided by the Seller.

11. CANCELLATION AND RETURNS PROCEDURE

11.1 No order which has been confirmed by the Seller in a Sales Confirmation may be returned or cancelled in whole or in part by the Buyer, except:

• (a) in accordance with condition 5.5 or 5.6 and the remainder of this condition 11 in the case of damaged or defective Goods; or
• (b) in the case of Goods which are not damaged or defective, only with the prior written agreement of the Seller (at its sole discretion, with the exception of Goods described in the Sales Confirmation as Non-Cancellable and/or Non-Returnable) and subject to conditions 11.3 and 11.4 below.

11.2 The Buyer shall notify the Seller, via its account manager, of its wish to return any of the Goods, as soon as possible, and in any event, within any timescales required by the Seller, including under condition 5.5 or 5.6.

11.3 The Buyer acknowledges and agrees that:

• (a) in respect of Goods which the Buyer wishes to return which are not damaged or defective:
  • (i) the Seller may, in its absolute discretion (but is not obliged to), agree to the return of the Goods to the Seller, subject to the Buyer paying to the Seller a cancellation and handling fee notified by the Seller to the Buyer, plus the cost of collection of the original Goods and/or delivery of any replacement Goods. The Seller’s right to charge such fees is in addition to the right to retain any deposit paid by the Buyer;
  • (ii) the Buyer shall indemnify the Seller in full against all loss, costs, damages, charges and expenses incurred by the Seller as a result of any cancellation or part cancellation of and/or return of such Goods (including in respect of Goods that the Seller has committed to acquire to fulfil such order). In the event of part return or part cancellation under this condition 11.3, the Seller may invoice the Buyer for any difference in selling price of the Goods applicable to the quantity dispatched, at the time of cancellation, compared to the quantity ordered;
  • (iii) the Buyer must return the Goods complete and in the same condition and same packaging as when they were delivered (including the return of all accessories) and being as fit for sale on their return as they were on delivery (failing which the Seller may levy a higher cancellation fee under condition 11.3(a)(i), or the indemnity in condition 11.3(a)(ii) above shall apply);
• (b) in respect of any Goods which the Buyer claims are damaged or defective, the Buyer shall on request grant to the Seller (and/or its carrier or other authorised representative) access to the premises at which the Goods are stored and to the Goods in order that any damage or defect claimed by the Buyer may be inspected;
• (c) the Seller shall consider each returns request on a case by case basis;
• (d) under no circumstances whatsoever does the Seller accept returns in respect of software;
• (e) the Buyer shall comply with the Seller’s return shipping instructions and any other return instructions given to the Buyer from time to time by the Seller; and
• (f) the Buyer shall comply at all times with any additional requirements notified to the Buyer by the Seller to enable the Seller to comply with any requirements imposed by its third party supplier or manufacturer.

11.4 In respect of any Goods which are returned by the Buyer, which the Seller agrees are damaged or defective, the Seller’s liability will be limited to either (at its discretion): (a) the repair or replacement of the Goods; or (b) if it is not possible to repair or replace the Goods, a refund of the price paid by the Buyer for such Goods.

11.5 Should the Buyer return Goods otherwise than in accordance with these Conditions, the Seller shall be entitled (in its absolute discretion) to refuse to accept delivery, to withdraw the Buyer’s right of return of the Goods, and/or to return the Goods at the Buyer’s expense. Should the Buyer return the Goods incomplete and/or without any of the accessories with which they were delivered, the Seller shall be entitled to retain the cost it incurs in replacing such items from any refund or other sums due to the Buyer.

11.6 The Seller will not accept or be liable for any returns claim received other than in accordance with this condition 11, nor shall the Seller be liable for any claim that Goods are damaged or defective where the damage or defect is caused or contributed to by:

• (a) the Buyer’s use of the Goods after giving notice in accordance with condition 5.5 or 5.6;
• (b) the Buyer’s deliberate misuse of the Goods;
• (c) the Buyer’s failure to follow the Seller’s or the manufacturer’s instructions relating to storage, commissioning, installation, use, maintenance or handling of the Goods or, where there are none, good trade practice regarding the same; or
• (d) fair wear and tear, negligence or abnormal storage or working conditions.

11.7 The Seller may suspend or cancel the order without liability to the Buyer, by written notice if:

• (a) the Buyer fails to pay the Seller any money when due (under the order or otherwise)
• (b) the Buyer suffers any event set out in condition 14.1(c) to (h);
• (c) the Buyer fails to comply with its obligations under these Conditions; or
• (d) the Seller’s source of supply of the Goods as at order acceptance is withdrawn or otherwise cancelled.

12. SPECIFICATION

12.1 Any Goods which are specified as ‘Configure to Order’ or ‘Build to Order’ are configured by the Seller to the Specification.

12.2 The Seller shall be entitled to modify the designs and specifications for Goods without prior notification, provided such modification does not materially affect the performance of the Goods.

12.3 No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the Contract.

13. RESALE OF GOODS

13.1 Where the Buyer intends to resell Goods, it shall not make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Goods which are inconsistent with, extend beyond or are in addition to those provided by the Seller.

13.2 Where the Buyer intends to resell Goods which are specified as Configure to Order or Build to Order, the Buyer must ensure that those Goods are described as such to its customer.

14. TERMINATION

14.1 Without prejudice to any other right or remedy available to the Seller, the Seller may terminate the Contract or suspend any further deliveries under the Contract without liability to the Buyer if any of the following events occur:

• (a) the Buyer commits a material breach of any term of the Contract; or
• (b) the ability of the Buyer to accept delivery of the Goods is delayed, hindered or prevented by circumstances beyond its reasonable control; or
• (c) an order is made or a resolution is passed for the winding up of the Buyer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Buyer; or
• (d) an order is made for the appointment of an administrator to manage the affairs, business and property of the Buyer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Buyer, or notice of intention to appoint an administrator is given by the Buyer or its directors; or
• (e) a receiver is appointed in respect of any of the Buyer’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Buyer, or if any other person takes possession of or sells the Buyer’s assets; or
• (f) the Buyer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
• (g) the Buyer ceases, or threatens to cease, to trade; or
• (h) if any steps or action is taken in preparation for any of the events listed in paragraph (c) to (g) above or any equivalent or similar event occurs or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any such events.

14.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision of these Conditions expressly or implicitly stated to survive termination.

14.3 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s unpaid invoices and interest and, in respect of Goods or Services supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which the Buyer shall pay immediately on receipt.

15. CONFIDENTIALITY

15.1 The Buyer undertakes that it shall not disclose to any person any confidential information of the Seller, including confidential information concerning the business, affairs, customers, clients, suppliers or prices of the Seller, disclosed to or otherwise obtained by the Buyer under or in connection with the Contract, except as permitted by condition 15.2.

15.2 The Buyer may only disclose the Seller’s confidential information:

• (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Buyer’s obligations under the Contract. The Buyer shall procure that its employees, officers, representatives or advisers to whom it discloses the Seller’s confidential information comply with this clause 15; and
• (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 The Buyer shall not use any of the Seller’s confidential information for any purpose other than to perform its obligations under the Contract.

15.4 The Seller does not make any express or implied warranty in relation to the accuracy or completeness of, and reserves all rights in, its confidential information.

15.5 The provisions of this condition 15 shall continue to apply after termination of the Contract.

16. FORCE MAJEURE

If the Seller is prevented from or delayed in performing its obligations under the Contract due to any act, event, omission or accident beyond its reasonable control (a Force Majeure Event), including : act of God, flood, drought, earthquake, storm or other natural disaster; epidemic or pandemic; war or armed conflict, terrorist attack, riot or civil unrest; nuclear, chemical or biological contamination; governmental action or intervention, import or export restrictions; change in or compliance with applicable law; breakdown of plant, machinery, computers or transportation; collapse of buildings, fire, explosion or accident; interruption or failure of a transport network or utility service, including internet, power, gas or water supply; labour disputes, strikes, industrial action or lockout; adverse weather conditions; and/or non-performance by suppliers or subcontractors, the Seller shall not be in breach of the Contract or otherwise liable for any such failure or delay, and reserves the right, without liability to the Buyer and without limitation, to defer the date of delivery for the Goods or Services, or to cancel the Contract or reduce the amount of Goods ordered if prevented from performing these obligations due to such Force Majeure Event.

17. GENERAL

17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

17.2 The Buyer shall not, without the prior written consent of the Seller, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Seller may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

17.3 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else. The Contracts (Rights of Third Parties) Act 1999, to the extent it is applicable to the Contract, is hereby expressly excluded.

17.4 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Sales Confirmation (or such other address as may have been notified by that party for such purposes). A notice delivered by hand shall be deemed to have been received when delivered (or, if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

17.5 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.6 If any provision or part provision of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, it shall be deleted from these Conditions and the other provisions and parts of the same provision shall remain in full force and effect.

17.7 No variation to these Conditions shall apply unless agreed in writing by an authorised signatory of both parties.

17.8 Nothing in these Conditions or in a Contract shall be intended to, or shall operate to, create a partnership between the parties or to authorise either party to act as agent for the other. Neither party shall have the right to act in the name of or on behalf of the other or to bind the other in any way.

17.9 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.

18. REGULATORY COMPLIANCE

18.1 The Buyer warrants and agrees that it shall (and shall procure that its directors, officers, agents, affiliates and employees shall):

• (a) observe and comply with all Sanctions and Export Controls and shall not do anything which would cause the Seller to breach any Sanctions and Export Controls;
• (b) not sell, transfer, export, re-export, or forward the Goods in breach of any Sanctions and Export Controls which apply to the Seller, Buyer or any manufacturer or provider of any of the Goods, in any territory, or to any individual, entity or jurisdiction subject to Sanctions and Export Controls (including The People’s Republic of China or its territories, any country, territory, entity, or individual identified by U.S. Department of Commerce’s Bureau of Industry and Security (BIS), U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), or U.S. Customs as restricted, prohibited, or embargoed and any entity or individual included on the BIS Entity List, Denied Persons List, OFAC’s Specially Designated Nationals (SDN) List, or any other restricted parties lists maintained by U.S. government agencies), or to any country for which the government or any regulatory body or agency in a relevant territory requires, at the time of export, an export licence or other governmental approval without first obtaining such licence or approval;
• (c) determine export and import licensing or permitting requirements for the Goods, obtain any required licenses and permits, and ensure that any such licenses, permits and authorisations are provided to the Seller within 5 working days, on request;
• (d) contractually oblige any third party to whom it transfers or sells any of the Goods to make an undertaking to it in terms equivalent to those set out in this condition;
• (e) keep records relating to the Goods, including but not limited to, any documents relating to the sale, transfer, export, re-export, or forwarding of the Goods, for a minimum of 5 years after entering into the Contract with the Buyer; and
• (f) indemnify, defend, and hold harmless, the Seller against any and all claims, damages, liabilities, losses, costs, or expenses (including legal fees) arising from or related to the Buyer’s breach of this condition.

18.2 Breach of this condition shall be a material breach of the Contract.

19. GOVERNING LAW AND JURISDICTION

19.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.

19.2 Subject to condition 19.3, the parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

19.3 Nothing in this condition 19 shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Seller from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.